KOMPETENZZENTRUM - DAS VIRTUELLE FAHRZEUG FORSCHUNGSGESELLSCHAFT MBHDownload PDFPatent Trials and Appeals BoardMay 25, 20212020001838 (P.T.A.B. May. 25, 2021) Copy Citation 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. 14/784,302 10/14/2015 JOSEF ZEHETNER 66374-355 4004 25269 7590 05/25/2021 DYKEMA GOSSETT PLLC 1301 K STREET, NW Suite 1100 West WASHINGTON, DC 20005 EXAMINER ALHIJA, SAIF A ART UNIT PAPER NUMBER 2128 NOTIFICATION DATE DELIVERY MODE 05/25/2021 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): patents@dykema.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte JOSEF ZEHETNER, MICHAEL PAULWEBER, HELMUT KOKAL, and MARTIN BENEDIKT Appeal 2020-001838 Application 14/784,302 Technology Center 2100 Before ALLEN R. MACDONALD, MICHAEL J. ENGLE, and SCOTT RAEVSKY, Administrative Patent Judges. RAEVSKY, Administrative Patent Judge. DECISION ON APPEAL Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s decision to reject claims 1–20. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as Kompetenzzentrum- Das Virtuelle Fahrzeug, Forschungsgesellschaft GmbH. Appeal Br. 4. Appeal 2020-001838 Application 14/784,302 2 CLAIMED SUBJECT MATTER The claims relate to the co-simulation of two subsystems. Spec., Abstr. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A method for co-simulating two subsystems of an overall system which are reciprocally communicatively coupled by way of coupling variables, the method including: receiving input variables and/or measured variables of the subsystems; utilizing data-based model identification and the received input variables and/or measured variables of the subsystems to determine a mathematical model of the subsystems valid at a current time step of the overall system; extrapolating coupling variables for a subsequent time step based on the mathematical model; and transmitting the coupling variables to the two subsystems. REFERENCES The Examiner relies upon the following prior art: Name Reference Date Ernst US 6,425,762 B1 July 30, 2002 Zhang US 2012/0109341 A1 May 3, 2012 Benedikt EP 2442248 B1 Oct. 11, 2011 Pierluigi Pisu and Giorgio Rizzoni, A Comparative Study Of Supervisory Control Strategies for Hybrid Electric Vehicles, vol. 15, no. 3, IEEE TRANSACTIONS ON CONTROL SYSTEMS TECHNOLOGY, 508 (hereinafter “Pisu”) May 2007 Appeal 2020-001838 Application 14/784,302 3 REJECTIONS2 The Examiner made the following rejections: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis 1–6, 8, 9, 11–16, 183 103 Benedikt, Zhang 7, 10, 17 103 Benedikt, Zhang, Ernest 19, 20 103 Benedikt, Zhang, Pisu ANALYSIS Independent Claim 1 Appellant advances several arguments for the patentability of claim 1. Appeal Br. 8–12. Appellant focuses on the following claim language: “extrapolating coupling variables for a subsequent time step based on the mathematical model.” Appeal Br. 9. We find none of these arguments persuasive. Appellant first contends that the “cited references” generally “teach signal-based model extrapolation, not data-based model extrapolation as claimed.” Id. at 8; see also id. at 9–10 (similar argument over Benedikt). This argument falls flat because Appellant does not sufficiently explain why the prior art is “signal-based” rather than “data-based.” Appellant does not 2 We determine that the claims recite little more than mathematical concepts. Should there be further prosecution of this application, the Examiner should strongly consider reinstating the rejection of the claims under § 101 as directed to patent ineligible subject matter. See Final Act. 2 (withdrawing the § 101 rejection); MPEP §§ 2103–2106.07(c). 3 The heading on page 7 of the Final Action rejects claims “15 and 19-20” over Benedikt and Zhang, but the substantive analysis only addresses claim 15. The Final Action relies on Benedikt, Zhang, and Pisu to reject claims 19 and 20. Final Act. 8. As the rejection over claim 15 uses the same references as the first listed rejection, we have included claim 15 in that rejection. Appeal 2020-001838 Application 14/784,302 4 provide any citations to the prior art in its discussion of this issue. See id. at 8–9. Mere attorney arguments and conclusory statements that are unsupported by factual evidence are entitled to little probative value. In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997). Appellant next advances three arguments based on Zhang. We address the first two arguments together. First, Appellant contends that Zhang’s “signal-based model is predetermined and is relied-upon without consideration for any delay compensation values (e.g., coupling variables).” Appeal Br. 9. Second, Appellant asserts that Zhang is incapable of “addressing future time-delay of the sub-systems via coupling variables.” Id. These arguments fail for the same reason: the Examiner cites Benedikt, not Zhang, for the claimed “coupling variables.” Final Act. 3. Thus, Appellant argues the references individually instead of addressing the Examiner’s rejection. But non-obviousness cannot be established by attacking references individually where the rejection is based upon a combination of references. See In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986). Appellant’s third Zhang argument is that Zhang “cannot conduct real-time compensation.” Appeal Br. 9. But the claims do not recite “real-time compensation,” so this argument is also unpersuasive. See In re Self, 671 F.2d 1344, 1348 (CCPA 1982) (Terms that do not appear in the claim cannot be relied upon for patentability.). Lastly, Appellant faults the Examiner’s reason to combine. Appeal Br. 10–12. The Examiner finds, “Zhang implements the delay (dead) time computation (Fig. 2) discussed in Benedikt ([0037]) thereby complementing the error correction for the next time step which would apply to the measured values of Zhang as well as the received values of Benedikt.” Final Appeal 2020-001838 Application 14/784,302 5 Act. 3–4. Appellant contends, “the similar teachings of the two respective references would appear to negate any need for combining the references whatsoever.” Appeal Br. 11. That is, Appellant contends that Benedikt already teaches the delay (dead time) computation, and Zhang merely implements the computation. Id. at 10–11. The Examiner responds that “two prior art documents that are essentially the same would obviously lend themselves to be . . . used together by one of ordinary skill in the art.” Ans. 10. In this case, we agree. Appellant has not persuasively explained why one of ordinary skill in the art would have rejected Zhang as unsuitable for modifying Benedikt. Just because the references are similar does not negate their combinability. Thus, we sustain the Examiner’s rejection of claim 1. Independent Claim 6 Appellant contends that the Examiner has not cited any teachings in Benedikt or Zhang for claim 6’s limitation, “at least one extrapolation unit communicatively coupled to each of the at least two subsystems.” Appeal Br. 12. Appellant observes that the Examiner’s rejection of claim 6 merely relies on the rejection of claim 1. Id. (citing Final Act 5). But Appellant protests that claim 1 does not recite an “extrapolation unit” or “any correspondence to the extrapolation unit of claim 6.” Id. In the Answer, the Examiner newly finds that Benedikt teaches the disputed limitation: The Examiner notes at least Figure 1 [of Benedikt4] which extrapolation units, elements 13, communicatively 4 The Examiner does not specify a reference, but it is apparent from the Figures of Benedikt that the Examiner meant Benedikt. Appellant Appeal 2020-001838 Application 14/784,302 6 coupled to at least two subsystems, both elements 11 on the right. The elements in Figure 1 are also recited in at least paragraph 30 which states “The simulation of the subsequent subsystems 11 supplies the simulation result 31 and serves as the basis for further extrapolations 13 at the coupling times, where the data exchange between the involved subsystems 11 takes place.” Ans. 9–10. Appellant responds with a procedural argument and then argues the merits. First, Appellant contends, “the Examiner’s Answer appears to be the first allegation by the Office of such correspondence to the ‘subsequent subsystems 11’ of Benedikt.” Reply Br. 5. So Appellant requests that we disregard the Examiner’s new finding. Id. at 6. Second, Appellant argues that the Answer “recites no specific correspondence to any of the claimed elements, but instead refers generically to paragraphs and figures of Benedikt and Zhang without any explanation.” Id. at 5. We reject Appellant’s procedural argument. This argument amounts to contending that the Examiner issued an improper new ground of rejection. But Appellant overlooks our rule governing undesignated new grounds, which mandates that such arguments are waived unless Appellant timely challenged the new grounds by petition to the Director: Any request to seek review of the primary examiner’s failure to designate a rejection as a new ground of rejection in an examiner’s answer must be by way of a petition to the Director under §1.181 of this title filed within two months from the entry of the examiner’s answer and before the filing of any reply brief. Failure of appellant to timely file such a petition apparently agrees. See Reply Br. 5 (referring to the Answer’s discussion of Benedikt). Appeal 2020-001838 Application 14/784,302 7 will constitute a waiver of any arguments that a rejection must be designated as a new ground of rejection. 37 C.F.R. § 41.40(a) (emphasis added); see also MPEP § 1207.03(b) (“37 CFR 41.40 sets forth the exclusive procedure for an appellant to request review of the primary examiner’s failure to designate a rejection as a new ground of rejection via a petition to the Director under 37 CFR 1.181.” (emphasis added)). Our review of Office records finds no indication that Appellant filed a petition under 37 C.F.R. § 1.181 to challenge the Examiner’s alleged undesignated new ground(s) of rejection. So we treat Appellant’s procedural challenge as waived. On the merits, Appellant ignores the Examiner’s new findings by contending that the Answer “recites no specific correspondence to any of the claimed elements, but instead refers generically to paragraphs and figures of Benedikt and Zhang without any explanation.” Reply Br. 5. To the contrary, the Examiner’s findings in the Answer relate explicit teachings of Benedikt to the limitation Appellant argues. See Ans. 9–10. But Appellant does not argue why Benedikt does not teach this limitation. So we sustain the Examiner’s rejection of claim 6. Dependent Claim 9 Appellant contends that the cited references do not teach or suggest “extrapolating coupling variables over multiple time steps based on the mathematical model,” as recited in claim 9. Appeal Br. 12–13. Appellant argues that Zhang “does not determine . . . input variables over multiple time steps, as claimed, nor does the system appear to rely upon any mathematical model.” Id. at 13. Finally, Appellant is unsure what, if any, aspects of Zhang the Examiner maps to the claimed “applying a known time behavior of the subsystems.” Id. Appeal 2020-001838 Application 14/784,302 8 The Examiner cites Zhang, paragraph 6, for claim 9. Final Act. 5. Then in the Answer, the Examiner newly cites Benedikt paragraphs 9 and 30 for the claimed “by extrapolating coupling variables over multiple time steps based on the mathematical model.” Ans. 10. Appellant does not traverse this finding, so this argument fails. See Reply Br. 6. As for the claimed “applying a known time behavior of the subsystems,” we note that Zhang mentions: variable operating conditions (¶ 7), process delays (¶ 9), and measurement delays involving a gas turbine at a precedent time (¶¶ 10–11). Under the broadest reasonable interpretation standard, we find that these disclosures of Zhang teach or suggest “applying a known time behavior of the subsystems.” Thus, we sustain the rejection of claim 9. Dependent Claims 19 and 20 For claims 19 and 20, Appellant contends that the Examiner’s rationale for combining Benedikt, Zhang, and Pisu is deficient. Appeal Br. 15–16. The Examiner reasons: It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to apply the teachings of Zhang and Benedikt to the teachings of Pisu since a hybrid vehicle is an example of a coupled system as recited in Zhang and Benedikt. Benedikt notes that the invention is directed to “any engineering discipline” as per paragraph 2. Final Act. 8. The crux of Appellant’s argument is that “the Examiner has failed to present any rationale to make the necessary changes in the reference device.” Appeal Br. 15. At the same time, Appellant contends that Benedikt’s “overly broad” statement about “any engineering discipline” does not permit combining Benedikt with any prior art reference. Id. at 16. Appeal 2020-001838 Application 14/784,302 9 We disagree. The Examiner satisfied the requirement to articulate a prima facie rationale to combine. Appellant’s arguments amount to stating that the Examiner is wrong without explaining why one of ordinary skill in the art would not have combined the references. So we sustain the Examiner’s rejection of claims 19 and 20. Remaining Dependent Claims We sustain the rejections of the remaining dependent claims, which Appellant does not argue separately. See 37 C.F.R. § 41.37(c)(1)(iv). CONCLUSION In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1–6, 8, 9, 11– 16, 18 103 Benedikt, Zhang 1–6, 8, 9, 11– 16, 18 7, 10, 17 103 Benedikt, Zhang, Ernest 7, 10, 17 19, 20 103 Benedikt, Zhang, Pisu 19, 20 Overall Outcome 1–20 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 Copy with citationCopy as parenthetical citation