Appellants lose in appeal of Green Tech battery case

Ex parte Gale

The case involved "green technology":


We note the underlying application in this appeal has been granted a petition to make special under 37 CFR § 1.102, from a petition filed on March 17, 2011, and renewed on April 28, 2011. The petition to make the above-identified application special was requested under the pilot program for applications pertaining to Green Technologies as set forth in 74 Federal Register Notice 64666 (December 8, 2009) and amended by 75 Federal Register Notice 28554 (May 21, 2010) and 75 Federal Register Notice 69049 (November 10, 2010). Therefore, the application will "have special status in any appeal to the Board of Patent Appeals and Interferences (BPAI)." (74 Federal Register Notice 64666). We treat Appellants' appeal with special dispatch.

We affirm.


The technology related to batteries:


Appellants' claimed invention is generally directed to determining a
condition of a battery based on impedance parameters of the battery. A default charge profile for the battery may be altered based on the condition. The battery may be charged with the altered charge profile.



As to obviousness:


In rejecting claims under 35 U.S.C. § 103, it is incumbent upon the
Examiner to establish a factual basis to support the legal conclusion of obviousness. See In re Fine, 837 F.2d 1071, 1073 (Fed. Cir. 1988). In so doing, the Examiner must make the factual determinations set forth in Graham v. John Deere Co., 383 U.S. 1, 17 (1966). “[T]he Examiner bears the initial burden, on review of the prior art or on any other ground, of presenting a prima facie case of unpatentability.” In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992). Furthermore, “‘there must be some articulated reasoning with some rational underpinning to support the legal conclusion of obviousness’ . . . [H]owever, the analysis need not seek out precise teachings directed to the specific subject matter of the challenged claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007)(quoting In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)).



The appellants lose:



Appellants contend that "vague and conclusory statements such as 'for advantages such as providing reliable charging' cannot satisfy the examiner's burden to provide' articulated reasoning with some rational underpinning to support the legal conclusion of obviousness.'" (App. Br.3; see generally Reply Br. 2).
The Examiner believes "it is understood in the art that one would look to Maleus to remedy Sato since they both determine and use battery characteristics to control the charging cycle of a battery and are, therefore, analogous prior art." (Ans. 3). We agree with the Examiner that the teachings of the two references are from the same field of endeavor as Appellants’ claimed invention, regardless of the problem addressed regarding battery charging and, and are reasonably pertinent to the particular problem with which the inventor is involved - adjusting the charging of the battery. Therefore, the skilled artisan would consider the teachings in
combination generally with respect to the relationship of some characteristic for adjusting the values and manner of charging the battery.

Appellants rely upon the same arguments advanced with respect to independent claim 1 in addressing the rejection of independent claim 11. Therefore, independent claim 11 is grouped with independent claim 1 and falls for the same reasons. (App. Br. 3).