Ex Parte Cleeves et al

Patent Trial and Appeal Board

Mar 28, 2018

13535165 (P.T.A.B. Mar. 28, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/535, 165 06/27/2012 James M. Cleeves
64046 7590 03/30/2018
Mintz Levin/San Diego Office
One Financial Center
Boston, MA 02111
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
38328-514001US 1739
EXAMINER
MONAH ON, BRIAN P
ART UNIT PAPER NUMBER
3747
NOTIFICATION DATE DELIVERY MODE
03/30/2018 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):
IPDocketingBOS@mintz.com
IPFileroombos@mintz.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JAMES M. CLEEVES and MICHAEL A. WILLCOX
Appeal2017-004437
Application 13/535,165
Technology Center 3700
Before MICHAEL L. HOELTER, ANNETTE R. REIMERS, and
LISA M. GUIJT, Administrative Patent Judges.
GUIJT, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants 1 seek our review under 35 U.S.C. § 134(a) of the
Examiner's decision2 rejecting claims 1-20. We have jurisdiction over the
appeal under 35 U.S.C. § 6(b ).
We AFFIRM.
1 Appellants identify the real party in interest as Pinnacle Engines, Inc.
Appeal Br. 2.
2 Appeal is taken from the Final Office Action dated September 28, 2015.
Appeal2017-004437
Application 13/535,165
THE CLAIMED SUBJECT MATTER
Claims 1 and 11 are the independent claims on appeal. Claim 1,
reproduced below, is illustrative of the claimed subject matter on appeal,
with disputed limitations italicized for emphasis.
1. A method comprising:
increasing an amount of air flowing through an air intake
into a combustion chamber of an internal combustion engine in
response to a first load control input demanding an engine power
output to satisfj; an imposed engine load, the increasing of the
amount of air comprising changing a position of a physical
throttle controlling flow of air through the air intake into the
combustion chamber and providing in the combustion chamber
a combustion mixture having a first air-fuel ratio or a first range
of air-fuel rations;
computing, as a function of the imposed engine load, a
current engine speed, a current engine brake efficiency, and a
current emissions output, an amount of diluent for addition to the
combustion chamber;
providing, during the increasing of the amount of air
flowing through the air intake, the computed amount of the
diluent to the combustion chamber;
stopping the increasing of the amount of air flowing
through the air intake upon reaching a wide open throttle position
at which the physical throttle allows a maximum possible air
flow delivered to the combustion chamber; and
increasing an amount of fuel delivered to the combustion
chamber when the demanded engine power output to satisfj; the
imposed engine load exceeds a maximum engine power output
attainable at the wide open throttle position of the physical
throttle using the first air-fuel ration or the first range of air-fuel
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Application 13/535,165
rations, the increasing of the amount of the fuel delivered
occurring without further increases beyond the maximum
possible air flow delivered to the combustion chamber at the
wide open throttle position such that the combustion mixture
provided to the combustion chamber has a second air-fuel ratio
or second range of air-fuel ratios richer than the first air-fuel
ratio or the first range of air-fuel ratios to further increase
engine power output after the wide open throttle position is
reached up to an overall maximum engine output power.
THE REJECTIONS
I. Claims 3 and 13 stand rejected under 35 U.S.C. § 112, second
paragraph, as being indefinite.
II. Claims 1, 7-11, and 17-20 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Zhu (US 2004/0084026 Al; published May 6,
2004) and Fujieda (US 5,666,916; issued Sept. 16, 1997).
III. Claims 2-5 and 12-15 stand rejected under 35 U.S.C. § 103(a)
as unpatentable over Zhu, Fujieda, and zur Loye (US 6,230,683 B 1; issued
May 15, 2001).
IV. Claims 6 and 16 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Zhu, Fujieda, and Iwata (US 5,899,290; issued May 4,
1999).
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Application 13/535,165
Rejection I
OPINION
The Examiner determines that claims 3 and 13 are indefinite because
there is insufficient antecedent basis for the claim term "the second
dynamically varying." Final Act. 2. Moreover, we note that claim 13
depends from claim 13.
Appellants do not respond to the Examiner's rejection. Appeal Br.
16-20; Reply Br. 5-9.
Accordingly, we summarily sustain the Examiner's rejection of claims
3 and 13 under 35 U.S.C. § 112, second paragraph.
Rejection II
Regarding independent claim 1, the Examiner finds, inter alia, that
Zhu teaches increasing an amount of air flowing into a combustion chamber
in response to a first load control input demanding an engine power output
that provides a combustion mixture having a first air-fuel ratio, and also
stopping the increasing amount of air flow upon reaching a wide open
throttle position allowing maximum possible air flow delivery, as claimed.
Final Act. 3--4 (citing Zhu i-fi-1277, 280). The Examiner determines that Zhu
is silent regarding the claimed step of increasing an amount of fuel delivered
to the combustion chamber, and relies on Fujieda for teaching increasing an
amount of fuel delivered to the combustion chamber when the demanded
engine power output exceeds a maximum engine power output attainable at
the wide open throttle position (without further increases beyond the
maximum possible air flow delivered to the combustion chamber at the wide
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Application 13/535,165
open throttle position) to provide a combustion mixture having a second air-
fuel ratio richer than the first air-fuel ratio. Id. at 4 (citing Fujieda 10:45-
11: 17, Fig. 27). The Examiner reasons that because Zhu and Fujieda "are
both from the same field of endeavor, the purpose disclosed" by Fujieda
"would have been recognized in the pertinent art" of Zhu and further, that it
would have been obvious to modify "Zhu's method of meeting torque
demand before wide open throttle with [Fujieda]'s method of meeting torque
requirements at wide open throttle." Id. at 4--5.
Appellants argue that Zhu "does not describe or even suggest" the
claimed step of "increasing of an amount of fuel delivered to the combustion
chamber," as fully recited in claim 1. Appeal Br. 18 (emphasis added). The
Examiner correctly responds that "Zhu is not relied upon to teach the
transitioning to a second air fuel ratio." Ans. 3. Thus, Appellants' argument
does not apprise us of error in the Examiner's findings with respect to Zhu
and Fujieda.
Appellants also argue that Zhu "explicitly teaches away" from
increasing an amount of fuel delivered to the combustion chamber, as
specified in claim 1. Appeal Br. 18. In support, Appellants submit that:
Zhu states that "[ e ]ngines are typically operated at a
stoichiometric air to fuel ratio" and further, notes
disadvantages to operating at either a lean or a rich condition
relative to the stoichiometric air to fuel ratio when using a three-
way catalytic converter .... Accordingly, the disclosure of Zhu
is directed toward a sensor usable at wide open throttle to ensure
an accurate reading of the air to fuel ratio and thereby permit
optimized control of the air to fuel ratio at a value very close to
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Application 13/535,165
stoichiometric. In direct contrast, the subject matter of claim 1
requires that the engine is operated at a non-stoichiometric
condition for at least part of its operation.
Id. at 18-19 (citing Zhu i-f 133); see also Reply Br. 6-8.
Although Zhu discloses maintaining the air to fuel ratio at the
stoichiometric ratio "to optimize the air to fuel ratio ... when an engine is
operated at wide open throttle ... [to] maximize the engine's torque output
with the best fuel economy" (Zhu i-f 132) or "to optimize catalytic converter
performance" (id. i-f 133), as argued by Appellants, we are not persuaded that
Zhu teaches away from allowing the air to fuel ratio for an engine operating
at wide open throttle to deviate from the stoichiometric air to fuel ratio, for
example, to meet "a required amount of torque/load at fully opened throttle,"
as the Examiner determines is taught by Fujieda supra, or when the
optimization disclosed in Zhu is undesirable with respect to other
performance objectives. 3 Final Act. 4. A reference teaches away from a
claimed invention or a proposed modification if "a person of ordinary skill,
upon reading the reference, would be discouraged from following the path
set out in the reference, or would be led in a direction divergent from the
path that was taken by the applicant." In re Kubin, 561F.3d1351, 1357
(Fed. Cir. 2009) (citing In re Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994)).
3 Zhu discloses that "[ t ]he best combustion efficiency can be achieved when
the combustible mixture attains its fastest laminar flame speed," which "[ f]or
most fuels, ... usually occurs ... where A ... equals 0.9," wherein A is "[t]he
excess-air factor ... which indicates the amount that an air to fuel ratio AFR
is above or below a stoichiometric mixture." Zhu i-f 136.
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However, prior art does not teach away from claimed subject matter merely
by disclosing a different solution to a similar problem unless the prior art
also criticizes, discredits, or otherwise discourages the solution claimed. See
In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004).
Appellants argue for the first time in their Reply Brief that the
Examiner's modification "would impermissibly alter the mode of operation
of Zhu." Reply Br. 8. In accordance with 37 C.F.R. § 41.41(b )(2), lacking a
showing of good cause, we decline to consider this argument, which is not
responsive to findings or reasoning presented for the first time in the
Examiner's Answer.
Appellants also argue that "Fujieda fails to remedy the shortcomings
in Zhu and also explicitly teaches away from [the claimed step of increasing
an amount of fuel delivered to the combustion chamber]," as fully recited in
claim 1 supra. Appeal Br. 18. In support, Appellants submit that "Fujieda
describes up-shifting at full throttle and then, in response to these conditions,
decreasing the airflow to prevent a 'feeling of physical disorder' experienced
presumably by the rider(s) of the vehicle," and that "[b ]y decreasing the
airflow, Fujieda does not maintain full throttle and ... teaches away from
what is recited in claim 1 where the throttle position is maintained at the
wide open throttle position and, instead, the amount of fuel delivered to the
combustion chamber is altered." Appeal Br. 19 (citing Fujieda 7:37---60).
The Examiner responds that this teaching in Fujieda is disclosed with
respect to the third embodiment depicted in Figure 14, and that the Examiner
is relying instead on the embodiment disclosed with reference to Figure 27.
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Application 13/535,165
Ans. 3; cf Final Act. 4 (citing 7:37---60, 10:45-11:17, Fig. 27). According to
the Examiner, "[t]he method of [Figure] 14 ... does not teach away from the
claim limitation, [it] only teaches a secondary method of providing more
power." Id. Indeed, with reference to Figure 27, Fujieda discloses that
"[ w ]hen the required torque is to be changed at the 1st speed, the air/fuel
ratio is brought into 30 in the fully-opened condition of the throttle valve"
and "[ w ]hen the torque need to be further increased, the fuel amount is
increased to change the air/fuel ratio to 20." Fujieda 10:61---65. Unlike the
third embodiment, this embodiment does not suggest also reducing the air
amount to address, for example, shock.
Thus, we are not persuaded by Appellants' argument that Fujieda
teaches away from the Examiner's proposed modification, as set forth supra.
Put another way, Fujieda does not discourage a person of ordinary skill in
the art from modifying Zhu' s method to increase the amount of fuel
delivered to the combustion chamber to increase engine torque, without
increasing the amount of air flowing through the combustion chamber, but
rather, discloses increasing the fuel, without increasing air flow, as an
alternative for increasing torque.
Appellants also reply that "this issue is moot in light of the teaching
away from the claimed invention by Zhu." Reply Br. 8. In support
Appellants submit that:
[t]he failure of a secondary reference to explicitly contradict the
teachings of a primary reference is not enough to salvage a valid
prima facie basis for obviousness when creation of the invention
as instantly claimed would require one skilled in the art to modify
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Application 13/535,165
the primary reference (Zhu in this case) in a manner that changes
the elements and their respective functions in a manner that does
not produce a combination yielding predictable results.
Id.
As discussed supra, we do not agree that Zhu teaches away from the
Examiner's proposed modification, nor do we agree with Appellants that the
Examiner has failed to state a prima facie case of obviousness.
Accordingly, we sustain the Examiner's rejection of independent
claim 1. Appellants chose not to present separate arguments for the
patentability of independent claim 11 or for claims 7-10 and 17-20
depending from independent claims 1 and 11. Therefore, for the same
reasons stated supra, we also sustain the Examiner's rejection of claims 7-
11 and 17-20.
Re} ections III and IV
Appellants do not present arguments for the patentability of claims 2-
6, and 12-16, which depend from claims 1 and 11. Accordingly, for the
reasons stated supra, we sustain the Examiner's rejection of claims 2-6, and
12-16 under 35 U.S.C. § 103(a) as unpatentable over Zhu, Fujieda, and zur
Lo ye or Iwata.
DECISION
The Examiner's rejection of claims 3 and 13 under 35 U.S.C. § 112,
second paragraph, is affirmed.
The Examiner's rejection of claims 1-20 under 35 U.S.C. § 103(a) is
affirmed.
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No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
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