HUSQVARNA AB

Patent Trials and Appeals BoardDec 27, 2021

2021001013 (P.T.A.B. Dec. 27, 2021)

UNITED STATES PATENT AND TRADEMARK OFFICE UNITED STATES DEPARTMENT OF COMMERCE United States Patent and Trademark Office Address: COMMISSIONER FOR PATENTS P.O. Box 1450 Alexandria, Virginia 22313-1450 www.uspto.gov APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 14/646,818 05/22/2015 Mikael Willgert 38004/09974/P2861US00 7250 148434 7590 12/27/2021 Burr Forman McNair Husqvarna Bank of America Plaza 101 South Tryon Street, Suite 2610 Charlotte, NC 28280 EXAMINER OHARA, BRIAN R ART UNIT PAPER NUMBER 1724 NOTIFICATION DATE DELIVERY MODE 12/27/2021 ELECTRONIC Please find below and/or attached an Office communication concerning this application or proceeding. The time period for reply, if any, is set in the attached communication. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address(es): mcnairip@mcnair.net PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte MIKAEL WILLGERT, LARS DERNEBO, MARTIN LARSÉN, and RAJINDER MEHRA Appeal 2021-001013 Application 14/646,818 Technology Center 1700 ____________ Before LINDA M. GAUDETTE, CHRISTOPHER C. KENNEDY, and LILAN REN, Administrative Patent Judges. REN, Administrative Patent Judge. DECISION ON APPEAL Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1–3, 5–15, 39, and 41–45. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as “Husqvarna AB.” Appeal Br. 1. Appeal 2021-001013 Application 14/646,818 2 CLAIMED SUBJECT MATTER Claims 1 and 42, reproduced below, are illustrative of the claimed subject matter: 1. A battery pack comprising: a plurality of battery cells; a cell retainer defining a plurality of cell reception slots configured to retain respective ones of the battery cells, the cell retainer defining an enclosure that fixes the battery cells and is not penetrated by any cooling apparatus, the cell retainer being in thermal communication with the battery cells to transfer heat away from the battery cells; a heat exchanger assembly in thermal communication with the cell retainer to at least passively transfer heat away from the cell retainer while the battery pack is operated in a discharge mode, the heat exchanger assembly being disposed at least partially between portions of some of the battery cells and corresponding portions of the cell reception slots; and a cover, wherein each of the plurality of cell reception slots extends along an entire length of the respective battery cell being retained by the cell reception slot, wherein a single structure comprises the cell retainer and the heat exchanger assembly, and wherein the single structure comprises a thermally conductive material configured to transfer some of the heat away from the battery cells and store at least some of the heat. 42. A battery pack comprising: a plurality of battery cells; a cell retainer defining a plurality of cell reception slots configured to retain respective ones of the battery cells, the cell retainer defining an enclosure that fixes the battery cells and is not penetrated by any cooling apparatus, the cell retainer being in thermal communication with the battery cells to transfer heat away from the battery cells; Appeal 2021-001013 Application 14/646,818 3 a heat exchanger assembly in thermal communication with the cell retainer to at least passively transfer heat away from the cell retainer while the battery pack is operated in a discharge mode, the heat exchanger assembly being disposed at least partially between portions of some of the battery cells and corresponding portions of the cell reception slots; and a cover, wherein a single structure comprises the cell retainer and the heat exchanger assembly, wherein the single structure comprises a thermally conductive material configured to transfer some of the heat away from the battery cells and store at least some of the heat, wherein the heat exchanger assembly comprises a plurality of fins on a side of the heat exchanger assembly, each fin of the plurality of fins being proximate other of the fins and extending between a surface of the cell retainer and the cover parallel to a length of the cell retainer, and wherein each of the plurality of fins is configured to carry the heat away from the cell retainer. Claims Appendix (Appeal Brief 12, 14–15). REFERENCES The prior art relied upon by the Examiner are: Name Reference Date An US 2011/0135993 Al June 9, 2011 Yoshihara US 2009/0104516 Al Apr. 23, 2009 Yahnker US 2005/0202310 Al Sept. 15, 2005 REJECTIONS Claims Rejected 35 U.S.C. § Reference(s)/Basis 42–45 102 An 1–3, 5–8, 10–13, 39, 41–45 103 An, Yoshihara 9, 14, 15 103 An, Yoshihara, Yahnker Appeal 2021-001013 Application 14/646,818 4 OPINION We review the appealed rejection for error based upon the issues identified by Appellant and in light of the arguments and evidence produced thereon. Cf. Ex parte Frye, 2010 WL 889747, *4 (BPAI 2010) (precedential), cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) (“[I]t has long been the Board’s practice to require an applicant to identify the alleged error in the examiner’s rejections.”). After having considered the evidence presented in this Appeal and each of Appellant’s contentions, we are not persuaded that reversible error has been identified, and we affirm the Examiner’s section 102 and section 103 rejections for the reasons expressed in the Final Office Action and the Answer. We add the following primarily for emphasis. Anticipation: Claim 422 Appellant argues that the Examiner reversibly erred because An does not disclose “the heat exchanger assembly comprises a plurality of fins extending between a surface of the cell retainer and the cover parallel to a length of the cell retainer, each of the plurality of fins being configured to carry the heat away from the cell retainer.” Appeal Br. 6 (emphasis removed). Appellant argues that “fins 121, 122 of AN, . . . are only disclosed as separating battery cells 200 from one another” and An “does not disclose anything related to fins being configured to carry heat away from the cell retainer.” Id. at 8. Appellant argues that “the fins 121, 122 do not extend in an external direction between the holder case 100 and the holder frame 110” 2 Appellant does not separately argue for claims 43–45. See Appeal Br. 6–9. These claims stand or fall with claim 42. See id.; see also 37 C.F.R. § 41.37(c)(1)(iv). Appeal 2021-001013 Application 14/646,818 5 and instead “the fins 121, 122 are disposed at internal positions that only extend between the cells 20.” Id. Appellant’s arguments are unpersuasive. First and foremost, Appellant dost not address the Examiner’s fact findings including the Examiner’s annotated Figure 2.3 Compare id. at 6–8 (discussing Figures 1 and 3 of An only), with Final Act. 3–6 (explaining, for example, that “the plurality of fins are denoted in the circle portion with the letter A pointing to them, the fins are the portion extending in the x direction”). To prevail in an appeal to this Board, Appellant must adequately explain or identify reversible error in the Examiner’s anticipation rejection. See 37 C.F.R. § 41.37(c)(1)(iv); see also In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011). Appellant’s arguments are unpersuasive also because the arguments do not address the Examiner’s finding that “AN discloses the same structure as the instant claimed invention and the same structure would have the same 3 Appellant raises, for the first time in the Reply Brief, arguments with regard to annotated Figure 2 of An. Reply Br. 2–3. An argument raised for the first time in a Reply Brief can be considered waived if Appellants do not explain why it could not have been raised previously. 37 C.F.R. § 41.41(b)(2); see Ex parte Nakashima, 93 USPQ2d 1834 (BPAI 2010) (informative) (explaining that arguments and evidence not timely presented in the principal Brief will not be considered when filed in a Reply Brief, absent a showing of good cause explaining why the argument could not have been presented in the Principal Brief); Ex parte Borden, 93 USPQ2d 1473, 1477 (BPAI 2010) (informative) (“Properly interpreted, the Rules do not require the Board to take up a belated argument that has not been addressed by the Examiner, absent a showing of good cause.”). In this case, Appellant does not explain why these arguments could not have been raised in the opening brief. A new argument advanced in such a manner has not afforded the Examiner an opportunity to respond to the argument. We, therefore, base our decision on those arguments raised in the opening brief. Appeal 2021-001013 Application 14/646,818 6 properties.” Compare Appeal Br. 6–8, with Final Act. 5. Appellant does not address the Examiner’s finding that “AN is capable of each of the plurality of fins being configured to carry heat away from the cell retainer.” Compare id., with Final Act. 5. Appellant does not structurally distinguish the prior art and we are unpersuaded that a patentable distinction has been shown. See Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1468 (Fed. Cir. 1990) (“[A]pparatus claims cover what a device is, not what a device does.”). Obviousness: Claim 14 Appellant argues that the Examiner reversibly erred because none of the prior art references teaches or suggests “each of the plurality of cell reception slots extends along an entire length of the respective battery cell being retained by the cell reception slot” Appeal Br. 9 (emphasis omitted). Appellant argues that rather than the recited “entire length of the respective battery cell,” the Examiner finds that “the cell reception slots extend along the [entire] length of the battery as shown within the z direction for half of the battery.” Id; Final Act. 12 (citing Figure 3 as well as Figures 1 and 2 of An). Appellant’s argument is unpersuasive. As the Examiner points out, the illustration in Figure 3 of An is “a portion . . . of the battery pack.” Ans. 29 (citing An ¶ 25). The Examiner further explains that whereas Figures 2 and 3 each “show one half of the retainer,” Figure 1 illustrates “that the retainer has two halves which when closed to form the whole battery pack provide 4 Appellant does not separately argue for claims 2, 5–8, 10–13, 39, 41, 43, and 45. See Appeal Br. 9–11. These claims stand or fall with claim 1. See id.; see also 37 C.F.R. § 41.37(c)(1)(iv). Appeal 2021-001013 Application 14/646,818 7 for cells whose lengths entirely fit within their respective slots.” Id. As the Examiner finds in the Final Rejection, this particular limitation is taught by “figures 1–3” of An and “best seen within figure 3.” Final Act. 11. Appellant’s argument, based only on the partial view of Figure 3 of An is unpersuasive because it does not respond to the Examiner’s fact findings based on additional prior art teachings. Appellant argues, for the first time, in the Reply Brief, that the prior art structure in An includes “gaps 130 between the columns that support the battery cells” and because “the fins 121 and 122 ‘separate the battery cells 200’. . . , the columns formed by the fins do not ‘extend along the entire length of the respective battery cell’ as recited in claim 1.” Reply Br. 3 (citing An ¶ 41). From the outset, as we noted in FN. 3 supra, an argument raised for the first time in a Reply Brief can be considered waived if Appellants do not explain why it could not have been raised previously. 37 C.F.R. § 41.41(b)(2). Where, as here, Appellant raises, for the first time in the Reply Brief, the argument with regard to gap 130 (Reply Br. 3) but does not explain why it could not have been raised in the opening brief, we consider only the arguments timely raised in the opening brief because the Examiner has not had an opportunity to consider the belatedly raised argument. Additionally, Appellant’s argument is unpersuasive because the argument does not adequately explain why the structure recited in open ended claim 1 precludes the prior art gap 130. We sustain the obviousness rejection here. Appeal 2021-001013 Application 14/646,818 8 Obviousness: Claims 42 & 44 Appellant repeats the same argument for the obviousness rejection of claims 42 and 44 as those raised for the anticipation rejection. That is, Appellant argues that “AN does not disclose anything related to the fins being configured to carry heat away from the cell retainer.” Compare Appeal Br. 8, with 10–11. We find the argument unpersuasive for the reasons stated supra with regard to the anticipation rejection of claim 42. We further note that Appellant’s briefing – specifically with regard to claims 42 and 44 – does not comply with 37 C.F.R. § 41.37(c)(1)(iv), which requires that “any claim(s) argued separately or as a subgroup shall be argued under a separate subheading that identifies the claims by number.” CONCLUSION The Examiner’s rejections are affirmed. Appeal 2021-001013 Application 14/646,818 9 DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 42–45 102 An 42–45 1–3, 5–8, 10–13, 39, 41–45 103 An, Yoshihara 1–3, 5–8, 10–13, 39, 41–45 9, 14, 15 103 An, Yoshihara, Yahnker 9, 14, 15 Overall Outcome 1–3, 5–15, 39, 41–45 TIME PERIOD FOR RESPONSE No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED