DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/process/file/efs/guidance/eTD-info-I.jsp.
Claims 21-40 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims of US 12,115,972. Although the claims at issue are not identical, they are not patentably distinct from each other because the claims of the reference patent recite all the limitations of corresponding claims of the instant application along with additional limitations.
The limitations claimed within the current application such as a hybrid vehicle having a electric supercharger installed to boost the battery power and to calculate the SOC based on the navigation data is covered by the patented claims. Current claims are broader limitations of the patented claims which is not patentably distinct.
The notable difference between Claim 21 and the patented claim 1, where claims 21 rolls the “vehicle” into the apparatus instead of separately reciting engine/drive motor/battery/supercharger; the battery and electric supercharger are not called out here but are required by dependent Claim 22 and by the “driving mode of the battery” language. Broadly claiming “vehicle driven by engine and drive motor” is simply a generic restatement of the hybrid architecture already claimed. Thus Claim 21 is an obvious generic/reshuffled version of patented Claim 1 and is not patentably distinct.
Claim Rejections - 35 USC § 102
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim(s) 21 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Phillips (US 2012/0010767).
Claim 21. Phillips teaches an apparatus for controlling a vehicle, the apparatus comprising: the vehicle configured to be driven by an engine and a drive motor (para 0016, 0018) “The basic components of the HEV powertrain include an internal combustion engine 16 … an electric motor 46…”;
a navigation device configured to calculate a driving path from a starting point to a destination point and driving information (para 0004-0005, 0021 and 0023) “Utilizing available route information, including road characteristics, vehicle conditions, and traffic conditions…”;
a controller configured to calculate a driving load from the driving path and the driving information calculated by the navigation device (para 0021, 0023) “Environmental condition inputs for controller 10 include road length, road grade, and vehicle speed of a route to be traveled by the vehicle.”,
determine an optimal SOC (state of charge) for each section from the starting point to the destination point based on the driving load (para 0004-0005, 0021 and 0031) “Optimizing the charging and discharging of the battery depending on the route.”,
determine a driving mode of the vehicle based on a required torque of a driver and a driving mode of a battery to follow the optimal SOC for each section (para 0019, 0021) “Controller 10 controls the charging and discharging of battery 12 and thereby controls the state of charge (SoC) … and manages operating modes.”,
and adjust an operating point of the engine (para 0018-0019 and 0029) “ Engine 16… can provide mechanical power … and at the same time charge battery 12…”.
Allowable Subject Matter
Claims 22-40 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MASUD AHMED whose telephone number is (571)270-1315. The examiner can normally be reached M-F 9:00-8:30 PM PST with IFP.
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MASUD . AHMED
Primary Examiner
Art Unit 3657A
/MASUD AHMED/Primary Examiner, Art Unit 3664