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 .
Response to Arguments
Applicant’s arguments with respect to claim 2 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Applicant has amended the subject matter of claim 2 (previously rejected under 35 U.S.C. 112(b)) to further define the previously claimed quality management range to specifically include an ASIL designation. Examiner appreciates Applicant’s IDS filed 07/29/2026; however, the ASIL designation does not overcome the issues under 35 U.S.C. 112(b), which will be explained below. The arguments hinge upon Applicant’s reference to an article entitled “What is ASIL (Automotive Safety Integrity Level)?” and the quality management if the ASIL risk level is low. Applicant goes on to assert that, “the risk classification of ASIL was established with the publication of the ISO 26262 functional safety standard in 2011 (with updates finalized in 2018), and therefore one skilled in the hybrid vehicle art (i.e., the claimed invention) would certainly understand and be well acquainted with ASIL.”
While Examiner appreciates the information provided by Applicant, the specificity of the information relied upon in the arguments was not present in the specification at the time of effective filing, and, thus, constitutes new matter. This information also attempts to further limit the subject matter which was only broadly disclosed in the original specification, which is a narrowing of the subject matter and creates a written description/new matter issue. For this reason, Applicant’s information about ASIL included in the remarks does not serve to overcome issues under 35 U.S.C. 112.
Further, it should be noted that it is unlikely that mere incorporation of industry technical standards into subject matter of a claim will not likely result in patentable subject matter since the industry standard must pre-date the invention for incorporation (unless the inventor is the sole source of the industry standard) and the standard will always be considered prior art (the standard relied upon by Applicant – ISO 26262 – was published in 2018).
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 1 and 3-6 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
The specificity of the information relied upon in the arguments was not present in the specification at the time of effective filing, and, thus, constitutes new matter. This information also attempts to further limit the subject matter which was only broadly disclosed in the original specification, which is a narrowing of the subject matter and creates a written description/new matter issue. Applicant has amended the claim to recite that ASIL is the quality management standard being relied on to define the claimed upper limit torque and lower limit torque based on a vehicle speed and the gear position of the transmission such that an acceleration state and deceleration state are within a quality management standard. The specification provides no standard for which provisions of all pre-filing ASIL documentation are to be considered as defining the “quality management standard.”
The lack of adequate written description surrounding the details of what is to be/not to be included in the parameters of this claim within Applicant’s original disclosure evidence that the Applicant did not have possession of the invention at the time of effective filing. Applicant also has not defined how the acceleration/deceleration profiles are defined according to the standard, merely stating that they are within a range of quality management of ASIL. Applicant has also not disclosed which specific standard and which parts of the standard are being applied such that possession can be shown. This does not properly establish the range, what the ranges constitute, how the acceleration/deceleration profiles are being connected, and how exactly the ASIL standard is being applied to arrive at a particular metes and bounds establishing possession of the claimed invention.
Claims 3-6 are rejected as inheriting the deficiencies of claim 1.
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1 and 3-6 rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 2 recites that "an acceleration state and a deceleration state of the hybrid vehicle are within a range of quality management in an automotive safety integrity level (ASIL)." Applicant's specification provides a definition of "a range of quality management in an automotive safety integrity level" constituting "an acceleration state of the hybrid vehicle to be within a range of quality management in Automotive Safety Integrity Level (ASIL) when the acceleration QM torque Tqma is further output to the input shaft 3i of the transmission 3 in addition to a torque corresponding to the torque command Ti* under predefined preconditions." This does not provide a reader with the requisite detail needed to establish which ASIL standard(s) is/are being contemplated. This also creates an issue regarding ambiguity as to which ASIL standard would apply and is intended to be leveraged to define the claim's requirement, as written, and would be limited to ASIL only an ASIL standard published at the time of effective filing. Applicant also has not defined how the acceleration/deceleration profiles are defined according to the standard, merely stating that they are within a range of quality management of ASIL. This does not properly establish the range, what the ranges constitutes, how the acceleration/deceleration profiles are being connected, and how exactly the ASIL standard is being applied to arrive at a particular metes and bounds establishing possession of the claimed invention.
Further, the plain meaning of a "range of quality management" is far broader than what is disclosed in Applicant's specification as, according to plain meaning, this could be established based on arbitrary/alternative criteria which are unknown to the reader based on the disclosure. The ambiguity of the range and lack of detail in the specification provide no context as to how to interpret this portion of the claim. Further, automakers are bound to federal/state safety standards for each manufactured vehicle sold, which would necessarily require some type of quality management standard to be applied so that production vehicles meet federal and state safety regulations. The breadth and ambiguity of this claim render it indefinite.
Lastly, Applicant’s inclusion of ASIL defined by the 2018 ISO 26262 standard information in the remarks cannot be considered part of the original disclosure since it attempts to further define what was unduly broad in the original disclosure. An initial inclusion of a non-specific ASIL standard cannot be considered definite without express disclosure as to which elements/portions of the standard are intended to be included or not included within the disclosure and to define the parameters of the claim.
Claims 3-6 are rejected as inheriting the deficiencies of claim 1.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claim 1 is rejected under 35 U.S.C. 103 as being unpatentable over JP 2005045862 (previously cited) in view of JP 2004282852 (previously cited) and in further view of ISO 26262: Functional Safety Standard for Modern Road Vehicles (April 2020) (NPL).
Regarding claim 1, as best understood, JP 2005045862 discloses a hybrid vehicle that includes an engine connectable to a drive shaft (At least engine, 22 and drive shaft), an electric motor (At least one of MG1 or MG2) connectable to the drive shaft, and a battery that exchanges electric power with the electric motor (At least battery, 50), the hybrid vehicle comprising: a controller (At least one and/or a combination of ECU, 24/40/52; CPU, 72; and hybrid electronic control unit) that sets an upper limit torque and a lower limit torque of the electric motor (At least where JP 2005045862 establishes the upper and lower torque limits established for MG2 during power consumption deviation calculations are obtained in view of the reference/correction torques.) such that a difference between a torque command indicating a torque to be output to the drive shaft and an actual torque output to the drive shaft is within an allowable range based on an operational condition of the hybrid vehicle (At least where JP 2005045862 discloses setting the torque command of MG2 to encompass the required torque and the torque command and where the vehicle calculates the "required torque to be output to the ring gear shaft 32a as the drive shaft based on the accelerator opening Acc and the vehicle speed V corresponding to the depression amount of the accelerator pedal by the driver," which is the torque command. Additionally, JP 2005045862 subsequently discloses that, "the operation of the engine 22, the motor MG1, and the motor MG2 is controlled so that the required power corresponding to the required torque is output to the ring gear shaft 32a. As operation control of the engine 22, the motor MG1, and the motor MG2, the operation of the engine 22 is controlled so that power corresponding to the required power is output from the engine 22, and all of the power output from the engine 22 is the power distribution and integration mechanism 30. Torque conversion operation mode for driving and controlling the motor MG1 and the motor MG2 so that the torque is converted by the motor MG1 and the motor MG2 and output to the ring gear shaft 32a, and the required power and the power required for charging and discharging the battery 50," which realizes the difference with the actual torque output based on an operational condition relate to the battery.).
JP 2005045862 discusses estimating engine torque, but does not expressly discuss control of the electric motor to output torque based on a difference between the estimated output and torque command or acceleration/deceleration range within a range of ASIL.
Nevertheless, JP 2004282852 discloses a hybrid vehicle control system which controls the electric motor to output a torque (At least where JP 2004282852 discloses that "if there is torque deviation, the assist torque of the motor is calculated based on the torque deviation and gear ratio of the transmission ) based on a difference between the torque command and an estimated output torque of the engine (At least where JP 2004282852 discloses that the "ECU obtains a torque deviation" and that the "torque deviation is a difference between the driver required torque and the actual torque of the internal combustion engine" and that the "actual torque of the internal combustion engine can be estimated from the actual operation state of the internal combustion engine" which yields a torque estimate. JP 2004282852 further discloses that "if there is torque deviation, the assist torque of the motor is calculated based on the torque deviation and gear ratio of the transmission so as to compensate for the torque deviation," thus providing an electric motor output where a differential between torque command and estimated engine torque output exists.) within a range from the lower limit torque to the upper limit torque (At least via the torque range and power distribution as provided in JP 2005045862, which is discussed above).
Thus, it would have been obvious to a PHOSITA at the time of effective filing to have modified the system of JP 2005045862 to have controlled the electric motor output based on a difference between torque command and estimated engine torque, as taught by JP 2004282852, in order to prevent overshooting rotational speed/ damaging components and to ensure that the power output to the driveshaft is smooth for increased longevity of components and for improved driving experience.
Also, ISO 26262: Functional Safety Standard for Modern Road Vehicles (April 2020) discloses an ASIL quality management standard for road vehicles.
As best understood, it would have been obvious to a PHOSITA at the time of effective filing to have modified the vehicle of JP 2004282852 to follow a quality management standard from ASIL in order to improve functional safety of a vehicle.
Allowable Subject Matter
Claims 7-10 are allowed.
Claims 3-6 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 and resolving the outstanding 35 U.S.C. 112(a/b) issues.
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Brodie Follman whose telephone number is (571)270-1169. The examiner can normally be reached 8am-4:30pm EST M-F.
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/BRODIE J FOLLMAN/Primary Patent Examiner, Art Unit 3669
