Ex Parte Auffret et al

Patent Trial and Appeal Board

Dec 21, 2017

13320412 (P.T.A.B. Dec. 21, 2017)

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.
13/320,412 11/14/2011 Nicolas Auffret 000009-589 1027
51707 7590 12/26/2017
WRB-IP LLP
801 N. Pitt Street
Suite 123
ALEXANDRIA, VA 22314
EXAMINER
MONAHON, BRIAN P
ART UNIT PAPER NUMBER
3747
NOTIFICATION DATE DELIVERY MODE
12/26/2017 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):
HARRY@WRB-IP.COM
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte NICOLAS AUFFRET and ROMAIN LE FORESTIER
Appeal 2016-002279
Application 13/320,412
Technology Center 3700
Before NEIL T. POWELL, BRANDON J. WARNER, and
ARTHUR M. PESLAK, Administrative Patent Judges.
PESLAK, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Nicolas Auffret and Romain Le Forestier (“Appellants”) appeal under
35 U.S.C. § 134(a) from the Examiner’s decision rejecting claims 1-14.1 An
oral hearing pursuant to 37 C.F.R. § 41.47(b) was held on December 11,
2017. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 Appellants submit the real party in interest is Renault Trucks. Appeal
Br. 1.
Appeal 2016-002279
Application 13/320,412
THE CLAIMED SUBJECT MATTER
Appellants’ invention is directed to methods of operating a four stroke
internal combustion engine. Spec. ^ 1. Claim 1, reproduced below, is
representative of the claimed subject matter.
1. Method for operating an internal combustion engine having
at least one cylinder in which a piston connected to a crankshaft
is displaced between a top dead center position and a bottom
dead center position, thereby defining in the cylinder a variable
volume combustion chamber, the engine operating according to
a four stokes cycle including an intake stroke, a compression
stroke, a power stroke, and an exhaust stroke, wherein the
engine comprises at least one controlled intake port and at least
one controlled exhaust port to control communication of the
combustion chamber respectively with an intake line and with
an exhaust line, comprising
controlling the intake port to achieve a main open phase
mainly during the intake stroke,
controlling the exhaust port to achieve a main open phase
mainly during the exhaust stroke, and
controlling the intake port to achieve an auxiliary open
phase during the power stroke,
wherein the auxiliary open phase lasts between 15 and 50
degrees of the crankshaft’s revolution.
REJECTION
Claims 1-14 are rejected under 35 U.S.C. § 102(b) as anticipated by
Reitz (US 2006/0201481 Al, published Sept. 14, 2006), or, in the
alternative, under 35 U.S.C. § 103(a) as unpatentable over Reitz.
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Application 13/320,412
DISCUSSION
The Examiner finds that Reitz discloses all the limitations of claim 1,
including the limitation of “the auxiliary open phase lasts between 15 and 50
degrees of the crankshaft’s revolution.” Final Act. 2-3. The Examiner finds
that the disclosure in Reitz of “preferably opening an intake valve 7 degrees”
corresponds to this limitation. Id. at 3 (citing Reitz 25). Alternatively, the
Examiner determines that it would have been obvious “to modify the system
of Reitz to have an auxiliary open phase lasting between 15 and 50 degrees
since it has been held where the general conditions of a claim are disclosed
in the prior art, discovering the optimum or workable ranges involves only
routine skill in the art.” Id.
Appellants argue that, during the auxiliary open phase of the claimed
method, “a certain quantity of combustion products” are expelled into the
intake line and then readmitted “into the cylinder during the following main
open phase . . . such that the global [engine temperature] can be increased.”
Appeal Br. 3 (citing Spec. 5:17-6:19). Appellants next argue that one of
ordinary skill in the art would have no reason “to increase the period of
opening over 7 degrees” because Reitz discloses that “it will usually be
desirable to have an opening period of no more than 5 degrees because
having an opening period greater than 7 degrees results in more substantial
power losses.” Id. at 4 (citing Reitz 25). Appellants next argue that
paragraph 25 of Reitz teaches away from an opening period over 7 degrees
and that if one of ordinary skill in the art attempted to increase the range of
the auxiliary open phase to a value above 5 degrees, “it would be
substantially beyond the level of ordinary skill in the art to triple the
maximum recommended open phase and more than double the open phase
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Application 13/320,412
beyond which it is disclosed that there are adverse consequences.” Id. at 4-
5.
The Examiner responds that Reitz discloses that power loss above 7
degrees of opening ‘“may be acceptable if emissions reductions and other
objectives are met’” and “‘escaping gases may generate mixing flows within
the combustion chamber 102, which may enhance burning of particulates
and thereby result in lower emissions.’” Ans. 6 (citing Reitz 21, 23). The
Examiner further reasons that a “longer opening of the intake valve during
the power stroke as taught by Reitz would . . . further enhance the burning of
particles and lower emissions.” The Examiner argues based on this
disclosure in Reitz that it is “well within the capability of one of ordinary
skill in [the] art to modify the auxiliary open phase to 15-50 degrees as
claimed, where greater power losses would occur; however, lower emissions
and better mixing of the exhaust gas would additionally occur as a benefit.”
Id.
In connection with the rejection of claims 1-14 under 35 U.S.C.
§ 102(b) as anticipated by Reitz, the Examiner has not directed us to any
disclosure in Reitz of an auxiliary open phase lasting “between 15 and 50
degrees” as required by claim 1. Final Act. 2-3. We, therefore, do not
sustain the anticipation rejection of claims 1-14 under 35 U.S.C. § 102(b).
The Examiner’s rejection under 35 U.S.C. § 103(a) is based on the
premise that the claimed auxiliary open phase lasting between 15 and 50
degrees is a workable range for operating the engine, the determination of
which involves only routine skill in the art where the general conditions of a
claim are disclosed in the prior art. Final Act. 3. A rejection such as this
requires both that the general conditions be known in the art and that the
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Application 13/320,412
parameter involved be recognized as a result effective variable. In re
Antonie, 559 F.2d 618, 620 (CCPA 1977).
In this case, Appellants argue, based on part of the Specification, that
the result of the auxiliary opening phase in the claimed method is an increase
of the global temperature in the cylinder. Appeal Br. 3. Claim 1, however,
is not limited to a method in which the auxiliary open phase results in an
increase of the global temperature of the cylinder. Appellants’ Specification
also provides that “opening of one of the ports of the cylinder so early in the
power stroke is detrimental to the amount of work which can be retrieved by
the piston” and consequently, “the auxiliary open phase of the intake valve
should be short in time.” Spec. ^ 21-22. The result of the auxiliary
opening phase is a “direct high temperature EGR [(exhaust gas
recirculation)].” Id. at 24. The Specification also notes that a reason for the
use of EGR is to limit exhaust emissions. Id. at 5. Based on the
Specification, in addition to any increase in the global temperature, the
length of the auxiliary open phase affects the amount of work retrieved by
the piston and also affects exhaust emissions.
Reitz discloses that the auxiliary open phase “results in a power loss”
and also affects “emissions reduction.” Reitz 23. Consequently, Reitz
discloses that the length of the auxiliary opening phase is a result effective
variable. Appellants only argument directed to the workable range rejection
is that more than routine skill is required to determine the claimed range
from the values in Reitz. Appeal Br. 4-5. However, this is speculative
attorney argument unsupported by evidence and does not apprise us of error.
Appellants’ argument that there is no reason disclosed in Reitz to
increase the period of opening over 7 degrees is not persuasive because the
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Application 13/320,412
Examiner does not rely on a specific disclosure in Reitz of opening for a
period over 7 degrees. Therefore, this argument is not persuasive because it
is not responsive to the rejection.
Appellants’ teaching away argument is also unpersuasive for the
following reasons. Appellants argue that the disclosure in paragraph 25 of
Reitz that “more substantial power losses occur above approximately 7
degrees” teaches away from the claimed invention. Appeal Br. 4. However,
to evaluate whether a reference teaches away, we must consider the
reference in its entirety. See W.L. Gore & Assoc., Inc. v. Garlock, Inc., 721,
F.2d 1540, 1550 (Fed. Cir. 1983). We note that Reitz also discloses that
“power loss may be acceptable if emissions reduction and other objectives
are met.” Reitz ^ 23. In this case, as noted by the Examiner, one of ordinary
skill in the art would consider the tradeoffs between power loss and
emissions reduction in determining the working range for the auxiliary
opening phase. See Ans. 6-7. The Federal Circuit explains that
“[Ojbviousness must be determined in light of all the facts, and there is no
rule that a single reference that teaches away will mandate a finding of
nonobviousness. Fikewise, a given course of action often has simultaneous
advantages and disadvantages, and this does not necessarily obviate
motivation to combine.” Medichem, S.A. v. Rolabo, S.L., 437 F.3d 1157,
1165 (Fed. Cir. 2006). We appreciate Appellants’ reference to Reitz’s
disclosure of power loss under certain auxiliary opening conditions.
However, even if we were to agree with Appellants that paragraph 25 may
discourage one of ordinary skill in the art from an auxiliary opening phase
over 7 degrees, the disclosure of Reitz considered in its entirety, including
paragraph 23, indicates that power loss is not the only variable affected by
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the auxiliary open phase. In light of the entire disclosure in Reitz,
Appellants have not persuaded us that one of ordinary skill in the art would
have been discouraged by Reitz from considering an auxiliary opening phase
greater than 7 degrees when considering the tradeoffs between power loss
and emissions and the relative advantages and disadvantages to both.
As Appellants’ arguments do not apprise us of Examiner error, we
sustain the Examiner’s rejection of claims 1-14 under 35 U.S.C. § 103(a) as
unpatentable over Reitz.
DECISION
The Examiner’s decision rejecting claims 1-14 is affirmed.
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)(l)(iv).
AFFIRMED
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