NEC Europe Ltd.

Patent Trials and Appeals Board

Oct 1, 2020

15304074 - (D) (P.T.A.B. Oct. 1, 2020)

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.
15/304,074 10/14/2016 Anett Schuelke 815456 5244
95683 7590 10/01/2020
Leydig, Voit & Mayer, Ltd. (Frankfurt office)
Two Prudential Plaza, Suite 4900
180 North Stetson Avenue
Chicago, IL 60601-6731
EXAMINER
PAN, YUHUI R
ART UNIT PAPER NUMBER
2116
NOTIFICATION DATE DELIVERY MODE
10/01/2020 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):
chgpatent@leydig.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte ANETT SCHUELKE, ROMAN KURPATOV, and
NITIN MASLEKAR
________________

Appeal 2019-002882
Application 15/304,074
Technology Center 2100
____________

Before JAMES R. HUGHES, JOYCE CRAIG, and
MATTHEW J. McNEILL, Administrative Patent Judges.

McNEILL, Administrative Patent Judge.

DECISION ON APPEAL

Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 1–3 and 5–20, which are all the claims pending in this
application. 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. § 42. Appellant identifies the real party in interest as NEC
Laboratories Europe GMBH. Appeal Br. 1.
Appeal 2019-002882
Application 15/304,074

2

STATEMENT OF THE CASE
Introduction
Appellant’s application relates to a method for load balancing of
multiple charging stations for mobile loads, particularly for electric vehicles
(EVs) within a charging stations network. Spec.2 ¶ 2. Claim 1 is illustrative
of the appealed subject matter and reads as follows:
1. A method for load balancing of charging stations for
mobile loads within a charging stations network, the method
comprising:
based on a prediction of a charging demand of the mobile
loads, performing a distribution of an energy-power-range
limitation for each of the charging stations p under consideration
of a definable optimization parameter, wherein p = 1, . . . , n and
wherein n and p are integers, and
under consideration of the distribution, performing at least
one of an adaptation or a selection of at least one transportation
parameter of at least one of the mobile loads, which comprises
transforming at least one of the mobile loads into at least one
time tolerant and capacity tolerant mobile load, so as to at least
partially fulfill the energy-power-range limitation for each of the
charging stations p or for a definable number of the charging
stations p.

The Examiner’s Rejection
Claims 1–3 and 5–20 stand rejected under 35 U.S.C. § 103 as
unpatentable over Anglin (US 2013/0006677 A1; Jan. 3, 2013) and Schuelke
(WO 2013/045449 A2; Apr. 4, 2013). Final Act. 3.

2 Citations to the Specification are to the “Substitute Specification (Clean
Version),” filed October 14, 2016.
Appeal 2019-002882
Application 15/304,074

3

ANALYSIS
Appellant argues the Examiner erred in rejecting claim 1 as
unpatentable over Anglin and Schuelke. See Appeal Br. 3‒8. In particular,
Appellant argues “transforming at least one of the mobile loads into at least
one time tolerant and capacity tolerant mobile load” means transforming a
mobile load into one that is both time tolerant and capacity tolerant, and that
the Examiner erred by misconstruing this limitation. Id. at 5–6. Appellant
argues that even if Schuelke teaches a time tolerant and capacity tolerant
mobile load, Schuelke does not teach transforming a mobile load into a time
tolerant and capacity tolerant mobile load, as recited in claim 1. See Reply
Br. 2–3.
Appellant also argues Schuelke does not teach “transforming the
mobile load into a time tolerant load,” and instead teaches away from such
limitation. Id. at 6–7. Appellant further argues the Examiner failed to present
a prima facie case of obviousness by not articulating a reason with some
rational underpinning for combining Anglin and Schuelke. Id. at 7–8.
Ans.3 3–4.
Appellant has not persuaded us of Examiner error. Schuelke teaches
“a method for charging electric vehicles by charging stations” that includes
“[a]ssigning electric vehicles to different electric vehicle supply equipment
. . . of the charging stations” and “[c]harging the electric vehicles,” where “a
matching of electric vehicle charging information . . . of electric vehicles . . .
and charging power information . . . of different charging stations . . . is
predicted based on electric vehicle information and a charging station

3 Citations to the Answer are to the Second Examiner’s Answer, dated
January 4, 2019.
Appeal 2019-002882
Application 15/304,074

4

parameter.” Schuelke, code (57). In one embodiment, Schuelke teaches the
following:
For example, if electric cars arriving at the charging station
wherein assigned by the prior charging station to this charging
station, these cars may be regrouped: For example if the state-of-
charge (SOC) has changed during transfer of the electric vehicle
from the prior adjacent charging station to this charging station,
regrouping is necessary to avoid a critical state-of-charge (SOC).
Other cars with non-critical state-of-charge conditions may be
further assigned to the next adjacent charging station if the
charging information of these electric vehicles allows travelling
from this charging station to the next adjacent charging station.

Id. at 7:22–33. More specifically, Schuelke teaches grouping electric
vehicles approaching a charging station CSk into three sub-fleets: “a first ad
hoc fleet Nχk . . . comprising electric vehicles which have a critical-state-of-
charge SOC condition”; “[a] second ad hoc fleet . . . denoted with reference
sign Nσk compris[ing] electric vehicles having an optional state-of-charge
SOC and/or user preferences conditions”; and a “third . . . ad hoc fleet Nνk
comprising all electric vehicles with uncritical state-of-charge SOC or user
preferences condition.” Id. at 10:28–11:10. Schuelke teaches assigning these
sub-fleets of vehicles to charging stations as follows:
[T]he [Nχk] sub-fleet comprising the electric vehicles with
critical state-of-charge condition, will be mandatorily assigned
to this charging station CSk. Otherwise due to the critical SOC
condition, the electric vehicles would not have enough battery
power left to reach the next charging station on their travel route.
The other two groups, i.e., the second and third ad hoc sub-fleets
Nσk, Nνk are analysed with respect to the next adjacent charging
station CSk+1. Based on power grid segment conditions
charging station capacity as well as the state-of-charge of the
electric vehicles belonging to the sub-fleets Nσk, Nνk are sorted
or grouped into a further ad hoc fleet Nρk+1 within the proximity
Appeal 2019-002882
Application 15/304,074

5

range πk+1 defining electric vehicles assigned for potential
charging at the next adjacent charging station CSk+1.

Id. at 11:19–29.
Based on the above disclosure, we find that Schuelke teaches
“performing at least one of an adaptation or a selection of at least one
transportation parameter of at least one of the mobile loads,” as recited in
claim 1. That is, Schuelke selects either a current charging station or a next
charging station for an electric vehicle that represents a mobile load. This
selection is based on the sub-fleet grouping of the electric vehicle, which
depends on its charge state and user preferences. The assigned charging
station for an electric vehicle meets the broadest reasonable interpretation of
the term “transportation parameter.”
We also find Schuelke teaches “at least one of an adaptation or a
selection” that “comprises transforming at least one of the mobile loads into
at least one time tolerant and capacity tolerant mobile load.” In particular,
the fact that Schuelke’s electric vehicles in the second and third sub-fleets
can wait to be charged until they reach a further charging station (see
Schuelke, 7:27–30, 11:23–29) teaches that they are “time-tolerant” (see
Spec. ¶ 7 (“Time-tolerance is used for all types of devices or processes
which can accept a delay or advance in energy usage”)).
Appellant’s argument that Schuelke teaches away from “time
tolerant” electric vehicles (Appeal Br. 6–7; Reply Br. 6–7) is not persuasive.
Appellant relies on Scheulke’s teaching that “power grid or charging station
friendly behavior cannot be influenced reasonably in a similar way like in
the case of normal charging e.g. by load shifting or throttling resulting in the
disadvantage that such fast charging process can only minimally be
Appeal 2019-002882
Application 15/304,074

6

influenced when an electric vehicle is connected to a charging station.”
Schuelke, 2:19–23. This teaching in Schuelke has no apparent bearing on
time tolerance, which relates to a delay or advance in charging (see Spec.
¶ 7), not some action taken while a vehicle is charging. Accordingly,
Schuelke does not “criticize, discredit, or otherwise discourage” time
tolerance in electric vehicles. See In re Fulton, 391 F.3d 1195, 1201 (Fed.
Cir. 2004). To the contrary, Schuelke in fact teaches time tolerance, as noted
above. See Schuelke, 7:27–30, 11:23–29.
We further find that Schuelke at least suggests that the electric
vehicles in the second and third sub-fleets are “capacity tolerant,” because
the fact that these vehicles can proceed to the next charging station indicates
that they retain enough charge to do so. See id. at 11:4–10 (second subfleet
vehicles have an “optional state-of-charge SOC and/or user preferences
conditions” and third sub-fleet vehicles have an “uncritical state-of-charge or
user preference condition.”).
Appellant argues that “[w]hile having electrical battery storage can be
used to enable capacity tolerance, a battery alone is not enough to render a
vehicle capacity tolerant.” Reply Br. 3. This argument is unpersuasive. The
Specification provides that “[c]apacity tolerance is possible for devices
which can reduce their power/energy usage either by different operational
modes, or by flexibility of power adaption, like electrical battery storages.”
Spec. ¶ 7 (emphasis added). One of ordinary skill in the art would have
understood that electric vehicles with an “optional” or “uncritical state-of-
charge,” such as vehicles in Schuelke’s second or third sub-fleet (see
Schuelke, 11:6–10), not only have the possibility of being capacity tolerant
by virtue of being electric vehicles with batteries, but are actually capacity
Appeal 2019-002882
Application 15/304,074

7

tolerant due to the fact that they have sufficient charge remaining to reach
the next charging station. Appellant has not identified what more is required
to be capacity tolerant than having a battery with some level of charge, and
we have found no further definitions in the Specification.
Appellant also argues that, “to the extent . . . that Schuelke’s 2nd sub-
fleet is a time tolerant and capacity tolerant mobile load, it was not
transformed into that state.” Reply Br. 2. Specifically, Appellant argues that
“nothing in Schuelke’s charging station assignment transforms the vehicle
into one that can accept a delay or advance in energy usage” and
“Schuelke’s vehicles presumably already had a battery and nothing else is
disclosed as providing a transformation to a capacity tolerant load.” Id. at 3.
Here, Appellant appears to imply that claim 1 requires some physical
transformation of an electric vehicle. We disagree.
The Specification does not expressly define what “transforming”
means in the context of claim 1, but provides the following examples:
“Utilization of EV mobility for transforming the EVs into time- and
capacity-tolerant mobile loads through traffic control procedures”
Spec. ¶ 50; and “Active transforming the EVs into time- AND capacity-
tolerant mobile loads by impacting the charging profile for a certain point of
location and time through modifications of transportation parameters” Id.
¶ 51. Thus, without specifying exactly what transforming entails,4
Appellant’s disclosure provides that it may be accomplished through traffic

4 Upon further prosecution, the Examiner may wish to consider whether the
“transforming” limitation is properly enabled under 35 U.S.C. § 112(a).
Although the Board is authorized to reject claims under 37 C.F.R.
§ 41.50(b), no inference should be drawn when the Board elects not to do so.
See Manual of Patent Examining Procedure (MPEP) § 1213.02.
Appeal 2019-002882
Application 15/304,074

8

control procedures or modification of transportation parameters. “[A]
transportation parameter can be one or more of a user preference, a route, a
route guidance, a routing information, a distance, a direction, a charging
time, a travel time, a speed, a waiting time and a break.” Id. ¶ 29. So, in
Appellant’s disclosure, determining a route, for example, is a way to
transform a mobile load into a time tolerant and capacity tolerant mobile
load. In other words, the transformation can be an entirely conceptual step,
such as recognizing, in a model or some other representation, mobile loads
that correspond to electric vehicles as time tolerant and capacity tolerant if
the vehicles proceed on a particular route.5 Accordingly, the broadest
reasonable interpretation of “transforming at least one of the mobile loads
into at least one time tolerant and capacity tolerant mobile load,” as recited
in claim 1, includes recognizing a mobile load as time tolerant and capacity
tolerant as part of adapting or selecting a transportation parameter for that
mobile load.
We find that Schuelke teaches the “transforming” limitation as
construed above because Schuelke’s grouping or re-grouping of electric
vehicles into different sub-fleets as they approach a charging station
(“transforming”) is at least part of determining whether the current charging
station or a next charging station (“selecting a transportation parameter”)

5 We urge the Examiner to consider whether the claims are patent-ineligible
for being directed to an abstract idea, e.g., a mental process, without
significantly more. See 2019 Revised Patent Subject Matter Eligibility
Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019). Although the Board is authorized
to reject claims under 37 C.F.R. § 41.50(b), no inference should be drawn
when the Board elects not to do so. See MPEP § 1213.02.
Appeal 2019-002882
Application 15/304,074

9

should be assigned to each electric vehicle. See Schuelke, 7:22–30, 10:28–
11:29.
Finally, Appellant’s argument that the Examiner failed to present a
prima facie case of obviousness (Appeal Br. 7–8; Reply Br. 4–5) is not
persuasive of Examiner error. We note that the Federal Circuit has
repeatedly explained that “the prima facie case is merely a procedural device
that enables an appropriate shift of the burden of production.” Hyatt v.
Dudas, 492 F.3d 1365, 1369 (Fed. Cir. 2007) (citing In re Oetiker, 977 F.2d
1443, 1445 (Fed. Cir. 1992)). The “PTO carries its procedural burden of
establishing a prima facie case when its rejection satisfies 35 U.S.C. § 132,
in ‘notify[ing] the applicant . . . [by] stating the reasons for [its] rejection, or
objection or requirement, together with such information and references as
may be useful in judging of the propriety of continuing the prosecution of
[the] application.’” In re Jung, 637 F.3d 1356, 1362 (Fed. Cir. 2011)
(alterations in original) (quoting 35 U.S.C. § 132). The PTO violates § 132
“when a rejection is so uninformative that it prevents the applicant from
recognizing and seeking to counter the grounds for rejection.” Chester v.
Miller, 906 F.2d 1574, 1578 (Fed. Cir. 1990). But if the PTO “adequately
explain[s] the shortcomings it perceives . . . the burden shifts to the applicant
to rebut the prima facie case with evidence and/or argument.” Hyatt, 492
F.3d at 1370.
The Examiner here has met the burden of establishing a prima facie
case by identifying where in the prior art references the claim limitations can
be found and providing a reason for combining the prior art references on
the ground of obviousness. See Ans. 3–6; Final Act. 3–13. In particular, the
Examiner finds it would have been obvious to combine Schuelke with
Appeal 2019-002882
Application 15/304,074

10

Anglin “in order to provide users an increased flexibility for charging
electric vehicles.” Final Act. 5 (citing Schuelke, 2:31–32).
Appellant argues that “the Office’s proffered reasons to combine the
prior art do not have a rational connection between the facts and the
conclusion that the invention as a whole is obvious.” Appeal Br. 7. More
specifically, Appellant argues that “there is not a reasoned explanation why a
skilled artisan would have specifically wanted to provide users flexibility for
fast charging their electric vehicles by assigning them to charging stations
based on wait time when Anglin is concerned with load balancing at the
charging station.” Id. at 8; see also Reply Br. 5. Appellant’s arguments are
not persuasive of Examiner error.
Both Anglin and Schuelke relate to charging electric vehicles. See
Anglin, code (57); Schuelke, code (57). Anglin addresses the concern that
“electrical grid systems could be strained if battery electric vehicles are
plugged in en masse at times of peak electricity demand,” particularly where
“the location of the electrical need is not as predictable.” Anglin ¶ 3.
Accordingly, Anglin discloses redistributing the electrical supply on an
electrical grid system to charging stations based on anticipated electric loads
(id. ¶ 4), which Appellant refers to as load balancing (see Appeal Br. 8).
Schuelke also addresses power grid concerns by disclosing an “objective of
the present invention to provide an operator of a power grid connected to
charging stations also an enhanced flexibility with regard to the variability of
the loads at the charging stations due to the fluctuating number of electric
vehicles to be charged at the charging station.” Schuelke, 3:4–7. Thus,
Schuelke’s assigning of electric vehicles to charging stations based on state-
of-charge not only provides users some measure of “increased flexibility for
Appeal 2019-002882
Application 15/304,074

11

charging their electric vehicles” (Schuelke, 2:31–32), as the Examiner
identifies (Final Act. 5), but also addresses similar power grid problems
addressed by Anglin.
Given the similarities between the electric vehicle charging systems
and the problems addressed in Anglin and Schuelke, we agree with the
Examiner that implementing Schuelke’s electric vehicle charging station
assignments based on state-of-charge in Anglin’s system would have been
obvious to one of ordinary skill in the art. See KSR Int’l Co. v. Teleflex Inc.,
550 U.S. 398, 417 (2007) (“[I]f a technique has been used to improve one
device, and a person of ordinary skill in the art would recognize that it would
improve similar devices in the same way, using the technique is obvious
unless its actual application is beyond his or her skill”). Moreover, Appellant
has not shown that using state-of-charge information from electric vehicles
to assign charging stations in Anglin would have been “uniquely challenging
or difficult for one of ordinary skill in the art” at the time of Appellant’s
invention, see Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157,
1162 (Fed. Cir. 2007) (citing KSR, 550 U.S. at 418), particularly in view of
the fact that Anglin already “receives from a number of battery electric
vehicles usage data that comprises a current charge level.” Anglin ¶ 56.
Accordingly, we sustain the obviousness rejection of independent
claim 1. We also sustain the obviousness rejection of independent claim 19,
and dependent claims 2, 3, 5–18, and 20, for which Appellant relies on the
same arguments as independent claim 1. See Appeal Br. 8–9.
Appeal 2019-002882
Application 15/304,074

12

DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–3, 5–20 103 Anglin, Schuelke 1–3, 5–20
Overall
Outcome
1–3, 5–20

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.
§ 41.50(f).

AFFIRMED