Joseph D. Rocci et al.

Patent Trials and Appeals Board

Sep 27, 2019

12888181 - (D) (P.T.A.B. Sep. 27, 2019)

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.
12/888,181 09/22/2010 Joseph D. Rocci 104361.000007 3919
23377 7590 09/27/2019
BakerHostetler
Cira Centre 12th Floor
2929 Arch Street
Philadelphia, PA 19104-2891
EXAMINER
TORRES RUIZ, JOHALI ALEJANDRA
ART UNIT PAPER NUMBER
2859
NOTIFICATION DATE DELIVERY MODE
09/27/2019 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):
eofficemonitor@bakerlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte JOSEPH D. ROCCI and MICHAEL L. QUELLY
____________________

Appeal 2018–0005601
Application 12/888,181
Technology Center 2800
____________________

Before ST. JOHN COURTENAY III, THU A. DANG, and
JOHN A. EVANS, Administrative Patent Judges.

DANG, Administrative Patent Judge.

DECISION ON APPEAL

I. STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s final
rejection of claims 2–6, 8–11, 13, 14, 16, 20–22 and 24–39, which are all of
the pending claims. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

A. INVENTION

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies Phoenix Broadband Technologies, LLC
as the real party in interest. Appeal Br. 1.
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According to Appellant, the invention relates to “system and method
of equalizing and monitoring the amount of charge of individual batteries
connected in a string of batteries managed by a string-level charging
system,” the system and method utilizing “battery monitoring sensors or
equivalent circuitry in order to reduce the charge on overcharged batteries.”
Spec. ¶ 19.

B. REPRESENTATIVE CLAIM
Claim 24 is representative of the subject matter on appeal:
24. A method for monitoring the health of, and adjusting
the charge of, a battery in a string of batteries, wherein there is
a sensor associated with each battery, each sensor being in
communication with a controller, the method comprising:

via each sensor and at each battery, obtaining an
indication of the battery voltage, and also applying a pulse
width modulated (PWM) excitation signal, and based on a
battery response to the application of the excitation signal,
determining at least one non-voltage health characteristic of
each battery and providing an indication of the health of the
battery;

at the controller, receiving from each sensor the health
indications and the indication of battery voltage;

calculating, according to an algorithm carried out by the
controller, a target battery voltage for each battery in the string
based on the battery voltage indications;

based on the calculation, sending, from the controller to
one or more selected ones of the sensors, one or more discharge
instructions; and
at each selected sensor, generating a variable digital
signal having pulse widths that are based on the discharge
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instruction and applying the variable digital signal to a current
switching device operatively coupled across the battery so as to
discharge the battery until the target battery voltage has been
attained.

C. REJECTIONS
Claims 4, 5, 10, 11, 20–22, 24, 25, 27, 28, and 31–39 stand rejected
under 35 U.S.C. § 103(a) over Loncarevic (US 2010/0052615 A1; published
Mar. 4, 2010), Windebank (US 4,433,294; issued Feb. 21, 1984), and Lim
(US 8,054,034 B2; issued Nov. 8,2011).
Claims 2, 3, 13, and 14 stand rejected under 35 U.S.C.
§ 103(a) over Loncarevic, Windebank, Lim, and Stocker (US 2010/0237702
A1; published Sep. 23, 2010).
Claims 6, 8, 16, and 29 stand rejected under 35 U.S.C.
§ 103(a) over Loncarevic, Windebank, Lim, and Sufrin-Disler (US
2008/0252257 A1; published Oct. 16, 2008).
Claims 9 and 30 stand rejected under 35 U.S.C. § 103(a) over
Loncarevic, Windebank, Lim, Sufrin-Disler and Dunn (US 6,239,579 B1;
issued May 29, 2001).

II. ISSUES
The principal issues before us are whether the Examiner erred in
finding the combination of Loncarevic, Windebank, and Lim teaches or
suggests a method comprising the steps of:
“at each battery, obtaining an indication of the battery voltage,”
“applying a pulse width modulated (PWM) excitation signal,” and “based on
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a battery response to the application of the excitation signal, determining at
least one non-voltage health characteristic of each battery;”
“calculating, according to an algorithm carried out by the controller, a
target battery voltage for each battery in the string based on the battery
voltage indication;” and
“based on the calculation, sending . . . one or more discharge
instructions.”
See Appeal Br., Claims App. 2.

III. FINDINGS OF FACT
The following Findings of Fact (FF) are shown by a preponderance of
the evidence.
Loncarevic
1. Loncarevic discloses a Battery Management System (BMS) for
controlling the charging and discharging of a plurality of batteries, each
battery having an associated plurality of control circuits which monitor and
control the charging of the individual battery. Loncarevic, Abstract. These
units are controlled by a central controller which shunts current around the
battery if it is fully charged, and stops discharge if the battery is fully
discharged, to prevent damage to the batteries. Id.
In the BMS, circuits/functions common to all cells are provided
centrally, whereas individual cells are provided with corresponding control
systems comprising cell balancing means and/or slave sensor means. Id.
¶ 11. Figure 1 is reproduced below:
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Figure 1 shows battery management system (BMS) 10 connected to a
plurality of lithium ion cells 12. Id. ¶ 25. As shown in Figure 1, each
lithium ion cell 12 is connected to a separate monitoring and controlling
circuit, the monitoring and controlling circuit including cell balancing circuit
32, temperature sensor 34, and communication/sensing slave circuit 36
establishing communication from cell balancing circuit 32 and temperature
sensor 34 to and from central master microcontroller 14. Id. ¶¶ 28, 36.
Lim
2. Lim discloses a battery management system (BMS) to manage a
battery wtih a plurality of cells, the BMS including a sensing unit, a
microcontroller unit (MCU) and a cell balancing unit. Lim, Abstract. Lim
recognizes using a BMS with cell balancing control to manage a plurality of
battery cells connected to each other. Id. at 1:43–48. Accordingly, Lim
provides a sensing unit to measure a cell voltage of each of the plurality of
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cells, wherein the MCU detects cells requiring cell balancing and generates a
plurality of cell voltage signals to control the cell balancing. Id. at 2:8–12.
The MCU calculates an average voltage of all the cells and then
compares the calculated average voltage with a voltage of each cell in the
battery, wherein, if the absolute value of the difference is greater than a
predetermined set-point voltage, the MCU transfers a control signal to the
cell balancing unit to balance the charge states of cells. Id. at 5:7–19. The
cell balancing unit balances the charge state of each cell, discharging a cell
having a comparatively high charge state and charges a cell having a
comparatively low charge state. Id. at 5:2–6.
Windebank
3. Windebank discloses testing the operating condition and/or
characteristics of a battery. Windebank, Abstract. When a test cycle is
initiated, the power output circuit supplies a controllable varying test
charging current (“test current”) to the battery. Id. at 7:41–50. Dynamic
voltage current characteristic is obtained for the battery under test to
determine the actual charge capacity of the battery. Id. at 9:12–19. Figure 4
is reproduced below:

Figure 4 shows a power output circuit comprising a voltage-controlled
rectifier 40, an inverter 42, a transformer 44 and an output rectifier 48,
wherein the DC currents produced by voltage-controlled rectifier 40 are
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supplied to inverter 42 which in turn produces an AC signal which, when
rectified, corresponds to the test current or a charging voltage. Id. at 18:35–
53. Inverter 42 may include a pulse width modulator which generates pulse
width modulated (PWM) signals corresponding to the test current and the
charging voltage supplied to the battery. Id. at 18: 53–57.

IV. ANALYSIS
We have reviewed the Examiner’s rejection in light of Appellant’s
arguments presented in this appeal. Arguments which Appellant could have
made, but did not make in the Brief are deemed to be waived. See 37 C.F.R.
§ 41.37(c)(1)(iv) (2016). On the record before us, we are unpersuaded the
Examiner erred.
Appellant contends that “Loncarevic does not teach the battery
voltage equalization features of the claims.” App. Br. 14. In particular,
Appellant contends that “Loncarevic does not teach the claimed features of
calculating a target voltage for discharge purposes, much less doing so based
on the voltages of other batteries (cells) in a string of batteries (cells),” as
claimed. Id. at 15.
Further, according to Appellant, “Lim et al. do not teach or suggest
measuring the voltage of each battery in a string of batteries, much less a
sensor associated with each battery in the string of batteries,” as claimed. Id.
In particular, Appellant contends that “Lim et al. expressly teach that a goal
of his system is to provide fewer sensors.” Id. Appellant contends that “the
claims provide that there is a discharge instruction associated with each
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battery, as contrasted to Lim et al., which teaches fewer discharge signals
than there are batteries (cells).” Id. at 16.
Appellant then contends Lim “teach[es] away from the use of variable
digital signals for selectively discharging cells.” Id. Thus, according to
Appellant, Lim “expressly teach[es] away from both (i) sensing each battery
in the string of batteries and (ii) any ability to adjust the voltage of
individual batteries in the string of batteries.” Id. at 15.
Although Appellant acknowledges that the Examiner relies on
Windebank for teaching and suggesting “applying a PWM signal to battery
(cell) and monitoring its response thereto to obtain [the battery’s non-voltage
health] charactertics” (id. at 16), Appellant contends that “Windebanks
applies a ramped signal, i.e., an analog signal, not a PWM or even a digital
signal, to each battery.” Id. at 16–17. In particular, Windebanks’ PWM
signal “are applied to an inverter 42 that creates an analog AC, signal that is
applied [to] the battery,” wherein “Windebank does so for the purpose of
determining a voltage characteristic of the battery, rather than a non-voltage
characteristic.” Id. at 17.
Appellant then contends that the ordinarily skilled artisan “would not
combine [the references] in a manner that arrives at the claimed invention
[when the references are ] viewed as a whole,” but instead, “would be led
away from the claimed invention [when] viewed as a whole.” Id. at 17.
According to Appellant, “all of the references are directed to either battery
voltage equalization or measure of battery characteristic, but none is directed
to both and none suggest both in a single system.” Id. at 18.
We have considered all of Appellant’s arguments and evidence
presented. However, we agree with the Examiner’s findings, and find no
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error with the Examiner’s conclusion that claim 24 would have been obvious
over the combination of the teachings and suggestions of Loncarevic, Lim,
and Windebank.
Although Appellant contends that “Loncarevic does not teach the
battery voltage equalization features of the claims,” and that Lim “[does] not
teach or suggest measuring the voltage of each battery in a string of
batteries” (App. Br. 14–15), the Examiner rejects the claim as obvious over
the combination of Loncarevic, Lim, and Windebank. The test for
obviousness is what the combination of Loncarevic, Lim, and Windebank
teaches or would have suggested to one of ordinary skill in the art. See In re
Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986). As the Examiner
points out, “one cannot show nonobviousness by attacking references
individually where the rejections are based on combinations of references.”
Ans. 2 (citing In re Keller, 642 F.2d 413, 426 (CCPA 1981); Merck, 800
F.2d at 1097).
Thus, although Appellant contends that Lim “[does] not teach or
suggest measuring the voltage of each battery in a string of batteries” (App.
Br. 15), the Examiner relies on Loncarevic for teaching and suggesting the
claimed measuring of voltage of “each battery in a string of batteries.” Ans.
4. Loncarevic discloses a Battery Management System (BMS) for
controlling the charging and discharging of a string of batteries, wherein
each battery monitors and controls its own charging. FF 1. In particular, in
Loncarevic’s BMS, each battery cell is connected to a separate monitoring
and controlling circuit which includes cell balancing circuit, temperature
sensor and communication/sensing slave circuit. Id.
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Here, the Examiner finds that “Loncarevic teaches one or more
batteries (12) in a string of batteries (Par.25) comprising a controller
(14)(Par. 26) and a plurality of battery sensors (monitoring and control
circuit)(Par. 26), each a sensor (monitoring and controlling circuit)
associated with each battery (12).” Final Act. 3. We find no error with the
Examiner’s reliance on Loncarevic to teach and suggest a method for
“adjusting the charge of . . . a battery in a string of batteries, wherein there is
a sensor associated with each battery, each sensor being in communication
with a controller,” the method comprising the step of: “via each sensor and
at each battery, obtaining an indication of the battery voltage.” See Appeal
Br., Claims App. 2.
Similarly, although Appellant contends that “Loncarevic does not
teach the claimed features of calculating a target voltage for discharge
purposes” (App. Br. 15), the Examiner relies on Lim, instead, for teaching
and suggesting the claimed “calculating a target voltage” step. See Ans. 3.
Lim discloses a BMS for managing a battery including a plurality of
cells, wherein the BMS uses balancing control to manage the plurality of
battery cells connected to each other. FF 2. In Lim, a sensing unit measures
a cell voltage of each of the plurality of cells, and an MCU detects cells
requiring cell balancing, wherein the MCU calculates an average voltage of
all the cells and then compares the calculated average voltage with a voltage
of each cell in the battery. Id. If the absolute value of the difference is
greater than a predetermined set-point voltage, the MCU transfers a control
signal to a cell balancing unit to balance the charge states of cells, and the
cell balancing unit discharges a cell having a comparatively high charge
state and charges a cell having a comparatively low charge state. Id.
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As the Examiner finds, “Lim teaches calculating a target voltage
(average voltage) of each battery (CELL1-CELL40) in a string of batteries
based on battery voltage indications,” and “discharging a battery until the
target battery voltage has been attained.” Ans. 3. Accordingly, we find no
error with the Examiner’s reliance on Lim to teach and suggest the steps of
“calculating, according to an algorithm carried out by the controller, a target
battery voltage for each battery . . . based on the battery voltage indications,”
and “based on the calculations, sending from the controller to one or more
selected ones of the sensors, one or more discharge instructions.” Appeal
Br., Claims App. 2.
We also do not find any error with the Examiner’s reliance on
Windebank to teach and suggest a method “for monitoring the health of . . .
a battery,” comprising the step of “applying a pulse width modulated
(PWM) excitation signal, and based on a battery response signal,
determining at least one non-voltage health characteristic of each battery.”
Appeal Br., Claims App. 2. In particular, the Examiner finds that
“Windebank teaches determining a non-voltage characteristic [(]charge
capacity) of the battery (10).” Ans. 6.
We are unpersuaded by Appellant’s contention that Windebank’s
PWM signals are not applied to the battery. App. Br. 17. As shown in
Figure 4 of Windebank, an excitation signal (test current) is applied to the
battery wherein the excitation signal may comprise a PWM signal as
modulated at the inverter 42. FF 3.
We are also unpersuaded by Appellant’s contention that Windebank’s
excitation signals are applied “for the purpose of determining a voltage
characteristic of the battery, rather than a non-voltage characteristic such as
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admittance.” App. Br. 17. As an initial matter of claim construction, we
note that the claims and the specification do not provide any specific
definition for “non-voltage characteristic” of claim 24. We are unconvinced
that the Examiner’s interpretation of “non-voltage characteristic” as
encompassing Windebank’s “charge capacity” of battery 10 is unreasonable
or overly broad. See Ans. 6; see also FF 3. That is, a “charge capacity” is
not a voltage and thus, given the broadest, reasonable interpretation, we find
no error with the Examiner’s broad but reasonable interpretation of “non-
voltage” characteristic as encompassing a “charge capacity” that is not a
voltage characteristic. See In re Morris, 127 F.3d 1048, 1054 (Fed. Cir.
1997).
Based on the record before us, we agree with the Examiner’s finding
that the combination of Loncarevic, Lim and Windebank teaches or at least
suggests the contested limitations.
Furthermore, we are unpersuaded by Appellant’s contention that the
ordinarily skilled artisan “would not combine [the references] in a manner
that arrives at the claimed invention [when the references are ] viewed as a
whole,” but instead, “would be led away from the claimed invention [when]
viewed as a whole.” App. Br. 17.
A prior art teaches away from the claimed invention if “a person of
ordinary skill, upon reading the reference, would be discouraged from
following the path set out in the reference, or would be led in a direction
divergent from the path that was taken by the [A]pplicant.” In re Gurley, 27
F.3d 551,553 (Fed Cir. 1994). Merely discussing a preferred embodiment,
“does not teach away [as] it merely expresses a general preference for an
alternative invention but does not ‘criticize, discredit, or otherwise
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discourage’ investigation into the invention claimed.” DePuy Spine, Inc. v.
Medtronic Sofamor Danek, Inc., 567 F.3d 1314, 1327 (Fed. Cir. 2009)
(quoting In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004)).
Here, both Loncarevic and Lim are directed to the same field of
endeavor of using a BMS for cell balancing. FF 1–2. We find no error with
the Examiner’s combination of Lim’s calculation of a “target voltage for
each battery” (FF 2) with Loncarevic’s BMS for controlling each battery in a
string of batteries (FF 1) to “effectively manage [Loncarevic’s] plurality of
batteries . . . by balancing the charge in the batteries thereby preventing
damage due to overcharging or over-discharging.” See Ans. 4. That is, the
Examiner has provided an “articulated reasoning with some rational
underpinning to support the legal conclusion of obviousness.” In re Kahn,
441 F.3d 977, 988 (Fed. Cir. 2006).
We are also unpersuaded by Appellant’s contention that “none [of the
cited references] is directed to both [battery voltage equalization and
measure of battery characteristic] and none suggest both in a single system.”
App. Br. 18. Since the Examiner rejects the claim as obvious over the
combination of the references, the test is what the combination of
Loncarevic, Lim, and Windebank teaches or suggests to one of ordinary skill
in the art. See Merck, 800 F.2d at 1097. The Supreme Court guides that the
conclusion of obviousness can be based on the background knowledge
possessed by a person having ordinary skill in the art. KSR Int’l Co. v.
Teleflex Inc., 550 U.S. 398, 418 (2007). The skilled artisan is “a person of
ordinary creativity, not an automaton.” Id. at 421.
Here, we agree with the Examiner that one of ordinary skill in the art,
upon reading Windebank’s method of monitoring the health of a battery
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(“measur[ing] the battery characteristic”) (FF 3), would have found it
obvious to add a step of battery health monitoring to Loncarevic’s and Lim’s
method of adjusting the battery charge (FF 1–2) to “determine[] the
operating condition of the battery and establish if the battery needs
replacement.” Final Act. 4.
Appellant also argues the Examiner has relied upon impermissible
hindsight in combining the cited references. App. Br. 19. However,
Appellant does not provide any evidence sufficient to demonstrate that
combining the teachings in the manner proffered by the Examiner would
have been “uniquely challenging or difficult for one of ordinary skill in the
art,” Leapfrog Enters., Inc. v. FisherPrice, Inc., 485 F.3d 1157, 1162 (Fed.
Cir. 2007), nor has Appellant provided any objective evidence of secondary
considerations, which our reviewing court guides “operates as a beneficial
check on hindsight.” See Cheese Sys., Inc. v. Tetra Pak Cheese and Powder
Sys., Inc., 725 F.3d 1341, 1352 (Fed. Cir. 2013).
Accordingly, Appellant has not shown the Examiner erred in rejecting
claim 24, and claims 4, 5, 10, 11, 20–22, 25, 27, 28, and 31–38 , which are
not separately argued and thus falling therewith, over Loncarevic, Lim and
Windebank. Appellant does not provide substantive arguments for claims 2,
3, 6, 8, 9, 13, 14, 16, 29, and 30 separate from those for claim 24.
Accordingly, we also affirm the Examiner’s rejections of: claims 2, 3, 13,
and 14 over Loncarevic, Windebank, Lim, and Stocker; claims 6, 8, 16, and
29 over Loncarevic, Windebank, Lim, and Sufrin-Disler; and claims 9 and
30 over Loncarevic, Windebank, Lim, Sufrin-Disler and Dunn.

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CONCLUSION
In summary:

V. DECISION
We affirm the Examiner’s rejections of claims 2–6, 8–11, 13, 14, 16,
20–22 and 24–39 under 35 U.S.C. § 103(a).

Claims Rejected Basis Affirmed Reversed
4, 5, 10, 11, 20–22,
24, 25, 27, 28, and
31–39
§ 103(a)
Loncarevic,
Windebank, Lim
4, 5, 10, 11, 20–
22, 24, 25, 27,
28, and 31–39

2, 3, 13, and 14 § 103(a)
Loncarevic,
Windebank, Lim,
and Stocker
2, 3, 13, and 14
6, 8, 16, and 29 § 103(a)
Loncarevic,
Windebank, Lim,
and Sufrin-Disler
6, 8, 16, and 29
9 and 30 § 103(a)
Loncarevic,
Windebank, Lim,
Sufrin-Disler and
Dunn
9 and 30

Overall Outcome 2–6, 8–11, 13,
14, 16, 20–22
and 24–39

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No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED