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Patent Trials and Appeals Board

Dec 2, 2019

14253950 - (D) (P.T.A.B. Dec. 2, 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.
14/253,950 04/16/2014 KEVIN MICHAEL FISHER 269964-1 (552-0235) 8795
91959 7590 12/02/2019
The Small Patent Law Group, LLC
225 S. Meramec, Suite 725
St. Louis, MO 63105
EXAMINER
ISMAIL, MAHMOUD S
ART UNIT PAPER NUMBER
3662
NOTIFICATION DATE DELIVERY MODE
12/02/2019 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):
Docket@splglaw.com
TransportationPatentCorrespondence@ge.com
john.kramer1@ge.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KEVIN MICHAEL FISHER
____________

Appeal 2019-004197
Application 14/253,950
Technology Center 3600
____________

Before CHARLES N. GREENHUT, ANNETTE R. REIMERS, and
MICHAEL L. WOODS, Administrative Patent Judges.

WOODS, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1, 3–7, 9–12, and 21–29, which
constitute all the claims pending in this application. Appeal Br. 3. Claims 2,
8, and 13–20 have been cancelled. Id. at 22–27 (Claims App’x). 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(a). The Real Party in Interest is GE Global Sourcing LLC. Suppl.
Appeal Br. (dated Sept. 6, 2019).
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CLAIMED SUBJECT MATTER
Appellant’s invention relates to a vehicle system, such as a rail vehicle
system or consist, that may be powered by diesel fuel and natural gas for
propulsion. See Spec. ¶¶ 1, 3. A “consist” may have “one or more powered
units mechanically coupled to one or more non-powered rail cars.” Id. ¶ 1.
Of the rejected claims, claims 1, 7, and 29 are independent. Appeal
Br. 22–24, 26–27 (Claims App’x). We reproduce claim 1, below, with
emphasis added to a particular limitation discussed in this Decision.
1. A system comprising:
an energy management processor configured to:
obtain a first cost of a first fuel used in a vehicle consist
configured for duel fuel operation and comprising at least one
fuel car operably connectable to at least one powered vehicle
via a fuel distribution path;
obtain a second cost of a second fuel used in the vehicle
consist;
determine a proportional ratio of the first fuel and the
second fuel for each of plural power settings available for use
during performance of a mission of the vehicle consist along a
route;
determine a fuel cost for each of the plural power settings
based on the corresponding proportional ratio of the first fuel
and the second fuel, and the first cost and the second cost;
determine a trip plan specifying power settings for
corresponding plural sections of the route to perform the
mission using a preferential weighting of the power settings to
lower a total combined total fuel cost based on the determined
corresponding fuel cost for each of the plural power settings
based on the corresponding proportional ratio of the first fuel
and the second fuel; and
control propulsion of the vehicle based on the trip plan.
Id. at 22 (emphasis added).

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REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Kumar US 2011/0257869 A1 Oct. 20, 2011
Cook US 2014/0365049 A1 Dec. 11, 2014
REJECTION
Claims 1, 3–7, 9–12, and 21–29 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Kumar and Cook. Final Act. 4.
OPINION
Appellant contests the rejection of claims 1, 4–7, 9–12, and 22–29
collectively. See Appeal Br. 3–14. Appellant presents additional arguments
for dependent claims 3 and 21. See id. at 16–18.
We select claim 1 as representative, treating claims 4–7, 9–12, and
22–29 as standing or falling with representative claim 1. See 37 C.F.R.
§ 41.37(c)(1)(iv). We also address Appellant’s separate arguments
contending the rejection of dependent claims 3 and 21.

I. Examiner’s Rejection of Independent Claim 1
In rejecting claim 1, the Examiner relies on Kumar for disclosing
several of the claimed features. See Final Act. 4–6 (citations omitted).
Kumar is titled “Fuel Management System and Method” and discloses a
“system including an engine and controller.” Kumar, codes (54), (57).
Kumar discloses a “vehicle consist” that may have “one or more propulsion
systems connected together so as to provide motoring and/or braking
capability.” Id. ¶ 26; see also id. at Fig. 3 (depicting a locomotive).
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To address the claimed “obtain a first cost of a first fuel used in a
vehicle consist configured for dual fuel operation” and “obtain a second cost
of a second fuel used in the vehicle consist,” the Examiner cites in-part to
Kumar’s disclosure that “[r]elevant operating conditions for the natural gas
and diesel-fueled power generating unit may include one or more of . . .
relative cost of each fuel type.” Final Act. 4–5 (citing Kumar ¶ 92).
To address the claimed “determine a proportional ratio of the first fuel
and the second fuel for each of plural power settings available for use during
performance of a mission of the vehicle consist along a route,” the Examiner
cites to Kumar’s paragraphs 98 and 6. Id. at 5. Kumar discloses a method
that “includes controlling a fuel system to supply a first fuel at a first flow
volume and a second fuel at a second flow volume to an engine to define an
initial fuel ratio.” Kumar ¶ 6. That paragraph further discloses, “[t]he
method further includes changing the first flow volume, the second flow
volume, or both the first and second flow volumes to define a subsequent
fuel ratio in response to a change in a power demand on the engine.” Id.
To address the claimed “determine a trip plan specifying power
settings for corresponding plural sections of the route to perform the
mission,” the Examiner relies on Kumar’s disclosure that “[u]pon the
controller creating a trip profile within each segment, the weight coefficients
for each fuel among the plurality of fuels in each respective segment may be
selected based on pre-determined factors (such as cost . . . required power
levels, and the like).” Final Act. 6 (quoting Kumar ¶ 117).
To address the claimed “determine a fuel cost for each of the plural
power settings based on the corresponding proportional ratio of the first fuel
and the second fuel” and “using a preferential weighting of the power
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settings to lower a total combined total fuel cost based on the determined
corresponding fuel cost for each of the plural power settings,” the Examiner
relies on a combination of Kumar and Cook. Id. at 6–7 (citations omitted).
In particular, the Examiner cites to Cook’s disclosure that “the fuel
consumption priority parameter may include a fuel cost, wherein the method
includes calculating for each throttle notch power level a fuel consumption
cost” and “wherein a total fuel cost is the sum of the first fuel cost and
second fuel cost.” Id. at 7 (citing Cook ¶¶ 38, 40). The Examiner finds that
Cook’s disclosure “indicates that there is a fuel cost for each throttle notch
power level (power setting) and that the total fuel cost (fuel cost) is based on
both the first and second fuel/cost.” Id.
In combining Kumar with Cook, the Examiner reasons that a skilled
artisan would have modified Kumar with Cook’s teachings to meet the
limitations in order “to reduce the total cost of fuel consumed by a
locomotives, particularly a locomotive consist including dual fuel
locomotives.” See id. at 7–8 (citing Cook ¶ 2).

a. Appellant’s Argument
Appellant presents the following arguments in contesting the rejection
of claim 1.
(a) Appellant argues that claim 1 requires “the use of
preferential weighting of power settings to lower a total fuel
cost based on a proportional ratio of a first fuel and a second
fuel in determining a trip plan specifying power settings,” and
that the “cited art, either alone or in combination does not teach,
suggest, or otherwise render obvious such a system.” Appeal
Br. 11.

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(b) Appellant also argues that “both Kumar and Cook teach
away from the presently claimed subject matter, as each relates
to maintaining power level at a predetermined level.” Id.
(emphasis added).

(c) Appellant further argues that the proposed combination
of Kumar and Cook would “render Kumar unfit for an intended
purposes (e.g., maintaining a power demand or power level).”
Id. at 14 (emphasis added).

(d) Appellant also argues that “modifying Kumar to arrive at
the presently claimed subject matter would change a principle
of operation of Kumar (e.g., changing away from Kumar’s
teaching of maintaining a power level to instead determining
fuel costs for multiple power settings and determining a power
level using a preferential weighting).” Id. (emphasis added).

b. Analysis of Claim 1
We agree with the Examiner’s findings, reasoning, and analysis as set
forth in the Final Office Action and Answer and adopt these as our own. We
provide additional analysis, below, to supplement the Final Office Action
and Answer.

i. Argument (a)
Appellant argues that claim 1 requires “the use of preferential
weighting of power settings to lower a total fuel cost based on a proportional
ratio of a first fuel and a second fuel in determining a trip plan specifying
power settings,” and that the “cited art, either alone or in combination does
not teach, suggest, or otherwise render obvious such a system.” Appeal Br.
11. In support of this argument, Appellant asserts that “Kumar, the primary
reference, relates to a fuel management system that operates in multiple
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operating modes.” Id. at 12 (citing Kumar, Abstr.). Appellant further
asserts that “Cook relates to locomotive throttle optimizers (LTO’s)” and
that “[t]he LTO systems of Cook are configured to receive an already
determined power level for a consist.” Id. at 15–16 (citing Cook ¶ 27).
We disagree.
We first point out that Appellant’s argument is not persuasive because
one cannot show nonobviousness by attacking references individually where
the rejection is based on combinations of references. In re Merck & Co.,
800 F.2d 1091, 1097 (Fed. Cir. 1986). The test for obviousness is “what the
combined teachings of the references would have suggested to those of
ordinary skill in the art.” In re Keller, 642 F.2d 413, 425 (CCPA 1981).
In the present case, the Examiner relied on the teachings of Cook and
Kumar to meet this limitation. See Final Act. 6–8.
Kumar discloses that “[u]pon the controller creating a trip profile
within each segment, the weight coefficients for each fuel among the
plurality of fuels in each respective segment may be selected based on pre-
determined factors (such as cost, availability, desired emissions levels,
required power levels, and the like).” Kumar ¶ 117 (emphases added).
We agree with the Examiner’s finding that this disclosure “indicates
that a trip plan is created for each segment (section) of the route and that
each weight coefficient for each fuel can be selected based on factors such as
cost, power level, etc.” Ans. 6 (citing Kumar ¶ 117).
Turning to Cook, Cook discloses that
The fuel consumption priority parameter may include a
fuel consumption cost for each throttle notch power level,
wherein the alternate throttle setting is based on minimizing the
total fuel cost. The fuel consumption priority parameter may
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include a fuel cost, wherein the method includes calculating for
each throttle notch power level a fuel consumption cost,
wherein the alternate throttle setting is based on minimizing the
total fuel cost.
Cook ¶ 38 (emphases added). Cook also discloses,
The locomotive information includes a fuel type used in the
locomotive, a fuel consumption rate corresponding to each of a
plurality of throttle notch power levels, and a fuel consumption
priority parameter corresponding to each fuel type used in the
locomotive. The controller is also configured to generate an
alternate throttle setting for each locomotive, wherein the
alternative throttle setting includes a selected throttle notch
power level.
Id. ¶ 28 (emphases added).
We find that Cook’s throttle setting, or power setting, is generated
based on a first fuel consumption rate and a second fuel consumption rate.
We further find that the first and second fuel consumption rates correspond
to a first power value and a second power value, respectively, and that the
preferential weighting of power values of these fuel types is used to generate
alternate throttle settings that minimize the total fuel cost and are based on
the total fuel cost of each fuel consumption rate.
Based in-part on these disclosures, we agree with the Examiner that
the proposed combination of Kumar and Cook satisfies the claim limitation.
We further agree with the Examiner that a skilled artisan would have
combined Kumar and Cook to reduce the total cost of fuel consumed by the
locomotives. Final Act. 7–8; see also Ans. 5.
Accordingly, Appellant’s first argument is not persuasive.

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ii. Argument (b)
Appellant also argues that “both Kumar and Cook teach away from
the presently claimed subject matter, as each relates to maintaining a power
level at a predetermined level.” Appeal Br. 11 (emphasis added).
Specifically, Appellant asserts that both Kumar and Cook teach
“maintaining of a power level at a predetermined level . . . [and are]
contradictory to and cannot teach . . . determining fuel costs for plural power
settings . . . as fully set forth by Claim 1.” Id. at 11–12.
Appellant’s argument is unpersuasive for at least two reasons.
First, we disagree with Appellant’s characterization of Kumar and
Cook. We do not find that these references only teach maintaining power at
a single, predetermined level. See id. Indeed, Kumar explicitly discloses
adjusting the ratio of fuel usage “as the power demand lowers” (Kumar ¶ 98)
and Cook discloses multiple fuel consumption rates that each correspond to
“a plurality of throttle notch power levels” (Cook ¶ 28).
Second, a prior art reference does not teach away from the claimed
subject matter unless the prior art reference criticizes, discredits or otherwise
discourages the solution claimed. See In re Fulton, 391 F.3d 1195, 1201
(Fed. Cir. 2004); see also DePuy Spine, Inc. v. Medtronic Sofamor Danek,
Inc., 567 F.3d 1314, 1327 (Fed. Cir. 2009) (“A reference does not teach
away, however, if it merely expresses a general preference for an alternative
invention but does not ‘criticize, discredit, or otherwise discourage’
investigation into the invention claimed.”) (Citing Fulton, 391 F.3d at 1201).
Appellant does not cite to anything in either Kumar or Cook that criticizes,
discredits, or otherwise discourages the combination. See, generally, Appeal
Br.
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As such, Appellant’s argument (b) is not persuasive.

iii. Arguments (c) and (d)
Appellant argues that the proposed combination of Kumar and Cook
would “render Kumar unfit for an intended purposes (e.g., maintaining a
power demand or power level).” Appeal Br. 14 (emphasis added).
Appellant also argues that “modifying Kumar to arrive at the presently
claimed subject matter would change a principle of operation of Kumar
(e.g., changing away from Kumar’s teaching of maintaining a power level to
instead determining fuel costs for multiple power settings and determining a
power level using a preferential weighting).” Id. (emphasis added).
As similarly discussed above in response to Argument (b), Appellant
mischaracterizes Kumar’s intended purpose and principle of operation.
Specifically, Kumar’s intended purpose is not to maintain a power level.
See id. Contrary to Appellant’s assertion, we find that Kumar explicitly
discloses varying power levels, including by adjusting the ratio of fuel usage
“as the power demand lowers.” Kumar ¶ 98.
As such, Appellant’s arguments (c) and (d) are not persuasive.

II. Dependent Claim 3
Claim 3 depends from claim 1 and further recites, “wherein the energy
management processor is configured to select between use of at least two of
the power settings to preferentially weight use of at least one of the at least
two of the power settings based on a difference between the first cost of the
first fuel and the second cost of the second fuel.” Appeal Br. 23 (Claims
App’x).
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To address claim 3, the Examiner cites to Cook’s paragraph 28 and
finds that Cook’s controller is “configured to generate an alternate throttle
setting for each locomotive, wherein the alternate throttle setting includes a
selected throttle notch power level.” Final Act. 8.
In contending the rejection, Appellant asserts that “the cited portion of
Cook relates to implementation of a power value provided by a person, and
not determination of a trip plan.” Appeal Br. 17 (emphasis added).
Appellant’s argument is unpersuasive for at least two reasons.
First, Appellant’s contention is a straw man’s argument, as the
Examiner relies on Kumar—not Cook—for addressing the step of
determining a “trip plan.” See Final Act. 6 (citing Kumar ¶ 117).
Second, Appellant mischaracterizes the cited portion of Cook. Cook
discloses, “[i[n response to executing the program instructions, the controller
is configured to receive an engineer throttle notch value corresponding to a
total power value” and that the “controller is also configured to generate an
alternate throttle setting for each locomotive, wherein the alternate throttle
setting includes a selected throttle notch power level . . . wherein the
alternate throttle setting is based on the fuel consumption priority
parameter.” Cook ¶ 28 (emphasis added). In other words, even if Cook’s
controller receives an engineer throttle input from a person, ultimately, it is
Cook’s controller that is “configured to generate an alternate throttle
setting.” Id.
Accordingly, Appellant’s argument as to claim 3 is not persuasive.

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III. Dependent Claim 21
Claim 21 depends from claim 1 and further recites,
wherein the vehicle consist includes a first group of at least one
vehicle configured to use at least the first fuel and the second
fuel and a second group of at least one vehicle configured to use
only one of the first fuel or the second fuel, wherein the energy
management processor is configured to select between use of
the first group and the second group to preferentially weight
use of one of the first group or the second group based on a
difference between the first cost of the first fuel and the second
cost of the second fuel.

Appeal Br. 25 (Claims App’x) (emphasis added).
To address claim 21, the Examiner cites to Cook’s disclosure of “dual
fuel locomotives in a consist with an added single diesel powered
locomotive” and Cook’s disclosure that “the calculation to consume the
most natural gas would result in all four units operating at notch 5 which
would have replaced the most diesel fuel with natural gas thus saving the
railroad more money.” Final Act. 15 (citing Cook ¶¶ 23, 76).
In contesting the rejection, Appellant asserts that Cook’s “teaching
only shows different locomotives that may be part of a consist, and is silent
with respect [to] selecting between groups as fully set forth by Claim 21.”
Appeal Br. 18 (emphasis added).
Appellant’s argument is not persuasive.
Cook discloses operating multiple locomotives in a consist and
shutting down a diesel locomotive to reduce cost when its throttle setting is
below a certain level. See Cook ¶ 76; see also id. ¶ 22 (“at lower throttle
settings when there are multiple dual fuel locomotives and one diesel only
locomotive which would not be operated at any throttle setting below notch
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7”). We find that by shutting down its diesel locomotive at low power
settings, Cook “select[s] between use of the first group and the second
group” to reduce fuel costs, thus meeting the claimed limitation.

IV. Summary
Appellant’s arguments do not apprise us of Examiner error, and we
affirm the rejection of claims 1, 3, and 21 as unpatentable over Kumar and
Cook. We also affirm the rejection of claims 4–7, 9–12, and 22–29, which
fall with claim 1.
CONCLUSION
The Examiner’s rejection is affirmed.
DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 3–7, 9–
12, 21–29
103 Kumar, Cook 1, 3–7, 9–
12, 21–29

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