KOMPETENZZENTRUM - DAS VIRTUELLE FAHRZEUG FORSCHUNGSGESELLSCHAFT MBH

Patent Trials and Appeals Board

May 25, 2021

2020001838 (P.T.A.B. May. 25, 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.
14/784,302 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

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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.
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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
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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
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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).
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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.
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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.
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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