Ex Parte Storhok et al

Patent Trial and Appeal Board

Nov 8, 2012

11675528 (P.T.A.B. Nov. 8, 2012)

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.
11/675,528 02/15/2007 Eric Storhok 81151449 6459
36865 7590 11/08/2012
ALLEMAN HALL MCCOY RUSSELL & TUTTLE, LLP
806 S.W. BROADWAY, SUITE 600
PORTLAND, OR 97205
EXAMINER
COLEMAN, KEITH A
ART UNIT PAPER NUMBER
3783
MAIL DATE DELIVERY MODE
11/08/2012 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte ERIC STORHOK, ZHENG XU, JIANWEN YI,
GOPICHANDRA SURNILLA, and JIM HILDITCH
____________________

Appeal 2010-008326
Application 11/675,528
Technology Center 3700
____________________

Before: PHILLIP J. KAUFFMAN, MICHAEL L. HOELTER, and
HYUN J. JUNG, Administrative Patent Judges.

KAUFFMAN, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2010-008326
Application 11/675,528

2
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from a rejection of claims 1
and 3-10. Appellants’ representative presented oral argument on November
5, 2012. We have jurisdiction under 35 U.S.C. § 6(b). We reverse.

Background
By a submittal dated June 8, 2009, the same day as Appellants’
Appeal Brief, Appellants sought to cancel claims 2 and 11-19, and alter
claim 5 to depend from claim 1 instead of claim 2.1
Appellants state the proffered amendment was intended to reduce the
issues on appeal and place the application in better condition for appeal.
App. Br. 6. Further, Appellants expressed intent to pursue claims 1 and 3-10
and not pursue claims 2 and 11-19. See App. Br. 5 (identifying claims 1 and
3-10 as pending and under appeal); see also App. Br. 7-8 (not addressing the
subject matter of independent claim 11); App. Br. 10-16 and Reply Br. 2-6
(presenting no arguments for claims 2 and 11-19). Thus, we consider claims
2 and 11-19 withdrawn from the appeal, and suggest the Examiner cancel
these claims upon return of jurisdiction of this application to the Examiner.
See MPEP § 1215.03.

The Invention
Independent claim 1 is the sole independent claim on appeal, and is
reproduced below:

1 We find no evidence in the record that this amendment was entered or
denied entry.
Appeal 2010-008326
Application 11/675,528

3
1. A method for starting an internal combustion
engine having direct fuel injection into a cylinder,
comprising:
under selected conditions during an engine
start, directly injecting fuel to the cylinder at least
twice, only for a first combustion event from the
engine start, where at least one of the said two
injections at least partially occurs during a
compression stroke.

The Rejections
The following rejections are before us on appeal:
1. Claim 1 under 35 U.S.C. § 102(b) as anticipated by Fukasawa (US
2006/0243243 A1; pub. Nov. 2, 2006).
2. Claims 3-9 under 35 U.S.C. § 103(a) as unpatentable over Fukasawa.
3. Claim 10 under 35 U.S.C. § 103(a) as unpatentable over Fukasawa
and Wiebicke (US 2,305,801, iss. Dec. 22, 1942).

OPINION
Claim 1 as anticipated by Fukasawa
Independent method claim 1 calls for, inter alia, directly injecting fuel
into the cylinder at least twice for a first combustion event from the engine
start. The plain language of claim 1 requires that the first combustion event
from engine start involve directly injecting fuel into the cylinder at least
twice.
Appellants’ Specification describes that, under some conditions, it can
be desirable to have multiple injections during a first combustion event from
the start, yet multiple injections for the second or subsequent combustion
events may degrade performance. Spec. 7:17-19; see also App. Br. 8
Appeal 2010-008326
Application 11/675,528

4
(identifying this portion of the disclosure as related to the claimed subject
matter.); Reply Br. 2-5 (construing the claim in like manner). Further, the
Specification provides an example of the first combustion event from engine
start involving at least two direct injections of fuel. See Spec. 15:6-10, 17-
19; fig. 5 (a first combustion event for condition 2, fourth column, involves
two injections, “C:C”, and subsequent combustion events involve a single
injection, “C” or “I”); see also App. Br. 10-11. Therefore, the Specification
is consistent with the interpretation that independent claim 1 calls for the
first combustion event from engine start to involve at least two direct
injections of fuel.
The Examiner found that Fukasawa discloses directly injecting fuel
into the cylinder at least twice (split injection2) for a first combustion event
from engine start as called for in claim 1. Ans. 3 (referring, inter alia, to
Fukasawa, fig. 2, row (e)), 25 (referring to Fukasawa, para. [0059]; fig. 5,
S301).3
Appellants argue that, “Fukasawa fails to show using the double
injection of Row (e) during a first combustion event from the engine start.”
App. Br. 12. Specifically, according to Appellants, Fukasawa utilizes split
injection only under certain conditions and those conditions exclude the first
combustion event. Id.
We agree with the Examiner that Fukasawa identifies a split injection
pattern that injects fuel twice for a single combustion event during the
compression stroke. See Fukasawa, paras. [0021], [0043]; fig. 2 (row (e)),

2 Split injection refers to multiple injections per cylinder cycle. See
Fukasawa, para. [0011], fig. 2, row (e).
3 The context of the second and third rejection demonstrates reliance on this
finding in the first rejection. See Ans. 4, 11.
Appeal 2010-008326
Application 11/675,528

5
fig. 5 (S301, S305). However, Fukasawa does not explicitly disclose that
operating in split injection mode is possible for the first combustion event
from engine start as claimed. Fukasawa, passim. Rather, Fukasawa
discloses that split injection is possible only when each of three conditions
are met, and when any of the three conditions are not met, split injection is
determined to be impossible. Fukasawa, para. [0045], [0050]. The three
conditions are: engine rotation speed within a specified range, engine torque
(engine load) within a predetermined range, and the fuel injection valve
being normal. Fukasawa, paras. [0046]-[0048]. Fukasawa does not disclose
the breadth of these conditional predetermined ranges for engine rotation
speed and engine torque. Fukasawa, passim. Without these criteria, we
cannot find that it is more likely than not that these criteria would be met for
a first combustion event from start.4 Thus, the Examiner has not established
by a preponderance of the evidence that Fukasawa anticipates the claimed
method. Accordingly, we do not sustain the rejection of claim 1.

Claims 3-9 as unpatentable over Fukasawa
Claims 3-9 depend from independent claim 1.
The Examiner found that Fukasawa discloses that the injection pattern
of split injection can be arbitrarily changed in accordance with the engine
operation state, and that split injection may be utilized if deterioration of the
combustion state is sensed or predicted. Ans. 4, 10 (citing Fukasawa, para.
[0043]). In light of this, the Examiner concluded that it would have been

4 The Examiner does not address these three pre-conditions for split
injection. Ans. passim.
Appeal 2010-008326
Application 11/675,528

6
obvious to modify Fukasawa regarding injection for subsequent combustion
events (events after the first combustion event from engine start). Id.
We agree with the Examiner that Fukasawa discloses that the injection
pattern of split injection can be arbitrarily changed in accordance with the
engine operation state, and that split injection may be utilized if deterioration
of the combustion state is sensed or predicted. See Fukasawa, para. [0011],
[0043]. However, these disclosures do not alter the criteria for when split
injection is permitted, as discussed in the analysis of claim 1, supra. Thus,
this rejection suffers from the same shortcoming as that of the first rejection.

Claim 10 as unpatentable over Fukasawa and Wiebicke
Claim 10 depends from claim 1. This rejection relies upon Wiebecke
for a modification to Fukasawa’s method unrelated to utilization of at least
two direct injections of fuel during the first combustion event from engine
start. See Ans. 11. Thus, this rejection suffers from the same shortcoming
as that of the first rejection.

DECISION
We reverse the Examiner’s decision to reject claims 1 and 3-10.

REVERSED

Klh