Ex Parte Lloyd et al

Board of Patent Appeals and Interferences

Mar 26, 2012

10738078 (B.P.A.I. Mar. 26, 2012)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
10/738,078 12/17/2003 David Hugh Lloyd TS7616 (US) 1315
23632 7590 03/27/2012
SHELL OIL COMPANY
P O BOX 2463
HOUSTON, TX 772522463
EXAMINER
MCAVOY, ELLEN M
ART UNIT PAPER NUMBER
1771
MAIL DATE DELIVERY MODE
03/27/2012 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte DAVID HUGH LLOYD
and TREVOR STEPHENSON
____________

Appeal 2010-003038
Application 10/738,078
Technology Center 1700
____________

Before JEFFREY T. SMITH, BEVERLY A. FRANKLIN, and
MICHAEL P. COLAIANNI, Administrative Patent Judges.

FRANKLIN, Administrative Patent Judge.

DECISION ON APPEAL

Appellants appeal under 35 U.S.C. § 134 from the Examiner's
rejection of claims 34-45. We have jurisdiction under 35 U.S.C. § 6.

STATEMENT OF THE CASE
Claim 34 is representative of the subject matter on appeal and is set
forth below:
34. A method for increasing the rate of acceleration of a compression
ignition engine which accelerates from a speed of 1350 revolutions per
Appeal 2010-003038
Application 10/738,078

2
minute (rpm) to a speed of 1500 rpm or more over an elapsed time under
first acceleration conditions burning a diesel fuel having a given density, the
method comprising:
reducing the density of the diesel fuel by blending from 1 to 25 v/v%
Fischer-Tropsch derived fuel with the diesel fuel to produce a blend having a
reduced density; and,

accelerating the compression ignition engine from a speed of 1350
rpm to the speed of 1500 rpm or more burning the blend under second
acceleration conditions;

wherein, when the first acceleration conditions and the second
acceleration conditions are the same, the speed of 1500 rpm is achieved over
a reduced elapsed time burning the blend.

The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Kimura et al. 6,158,413 Dec. 12, 2000
Berlowitz et al. (Berlowitz ‘842) 6,180,842 B1 Jan. 30, 2001
Berlowitz et al. (Berlowitz ‘909) 6,860,909 B2 Mar. 1, 2005
Guinther et al. 6,971,337 B2 Dec. 6, 2005

Appellants rely upon the following article (listed in the Evidence
Appendix):

Owen, Keith et al., Automotive Fuels Reference Book Second Edition,
Society of Automotive Engineers, Inc., pp. 406-409 (1995).

Appeal 2010-003038
Application 10/738,078

3
THE REJECTION1
1. Claims 34-45 are rejected as being obvious under 35 U.S.C. § 103(a)
over Berlowitz ‘909 or Berlowitz ‘842 in view of Kimura and Guinther.
ANALYSIS

As an initial matter, Appellants have not presented separate arguments
for all of the rejected claims. Any claim not separately argued will stand or
fall with its respective independent claim. See 37 C.F.R. § 41.37(c)(1)(vii).
We essentially adopt the Examiner’s findings pertinent to the issues
raised by Appellants for Rejection 1, and therefore incorporate the
Examiner’s position as set forth in the Answer. We add the following for
emphasis.
With regard to the Berlowitz ‘909 patent, we refer to the Examiner’s
findings made on page 4 of the Answer in support of the obviousness
rejection. Among the findings therein, the Examiner finds that Berlowitz
‘909 teaches a method of operating a diesel engine and that the engine is a
direct injection, turbocharged diesel engine. Berlowitz ‘909, col. 8, ll. 15-25
and Table 5. The Examiner recognizes that Berlowitz ‘909 does not disclose
the acceleration speed recited in claim 34, but that such a result would be

1 On page 2 of the Answer, the Examiner indicated that Appellants’ Brief is
missing discussion of the obviousness rejection involving Berlowitz ‘909.
Appellants rectified this in their Reply Brief which discusses the
obviousness rejection involving Berlowitz ‘909. Reply Br. 2-8. Appellants
explain that Berlowitz ‘842 and ‘909 were argued together during
prosecution, and refer to their Response (mailed July 17, 2008) made in
response to the Non-final Rejection mailed May 1, 2008 . Reply Br. 2. As
such, we hold harmless Appellants’ oversight made in the Brief in this
regard.
Appeal 2010-003038
Application 10/738,078

4
met when utilizing the Fischer-Tropsch diesel fuels in a diesel engine
according to Berlowitz ‘909 in view of Kimura and Guinther.
With specific regard to Appelants’ claimed range of “from 1 to 25
v/v% Fischer-Tropsch derived fuel”, Appellants do not dispute that
Berlowitz '909’s teaching of a diesel fuel composition that comprises 5 to 90
vol% of a Fischer-Tropsch derived distillate suggests this claimed amount.
Reply Br. 2-8.
Rather, Appellants rely upon an article by Owen (listed in their
Evidence Appendix) in an effort to show that one skilled in the art would
have been discouraged from blending a relatively lower density Fischer-
Tropsch derived fuel with a diesel fuel in order to increase the acceleration
rate of a compression ignition engine. We refer to Appellants’ detailed
discussion of Owen made on pages 6 and 7 of the Brief and also on pages 4-
5 of the Reply Brief, in this regard. In other words, it is Appellants’ position
that because Owen demonstrates a known correlation between power and
fuel density (i.e., that it would be unlikely that a lower density fuel would
increase the acceleration rate of a compression ignition engine), this known
correlation would teach away from adding lower density Fischer -Tropsch
derived fuel to diesel fuel in order to increase the acceleration rate of a
volumetrically fueled engine.
In reply, the Examiner gives little weight to the Owen article because
Owen is not related to Fischer-Tropsch derived diesel fuels blended with
conventional diesel fuels. Ans. 6-7. We do agree that the Owen reference
would have more probative value if it was directed to Fischer-Tropsch
derived fuel blended-type diesel fuels. On page 4 of the Reply Brief,
Appeal 2010-003038
Application 10/738,078

5
Appellants reiterate that based upon the teachings of Owen, one skilled in
the art would have expected the rate of acceleration of a compression
ignition engine to increase as the density of the fuel increases. 2 However,
this is with respect to the five fuels tested as mentioned on page 407 of
Owen, none of which include Fischer-Tropsh derived fuel blends.
We reiterate that it is the Examiner’s basic position that it would have
been obvious to have utilized Berlowitz 909’s Fisher-Tropsch derived fuel
with a diesel fuel to produce a blend having reduced density, in a
compression ignition engine, and thus the claimed accelerating step would
be met because it is a property of the fuel blend being used. This is a
reasonable position because “[w]hile the references do not show a specific
recognition of that result, its discovery by appellants is tantamount only to
finding a property in the old composition.” In re Tomlinson, 363 F.2d 928,
934 (CCPA 1966).
Accordingly, it is up to Appellants to show that the fuel blend
suggested by the applied art would not perform the claimed method when
used in a compression ignition engine. See, e.g., Ex parte Novitski,
26 USPQ2d 1389 (Bd. Pat. App. & Inter. 1993). In the instant case,
Appellants have not convincingly done so.
Appellants then argue that they have discovered that the acceleration
rate did not increase linearly, as predicted, with the amount of Fischer-
Tropsch derived fuel blended into the diesel fuel. Appellants state that the

2 It also appears that Appellants are relying upon Owen in an effort to
show that their claimed accelerating step is unexpected because Appellants
achieved the claimed acceleration rate using a reduced density fuel rather
than an increased density fuel.
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Appeal 2010-003038
Application 10/738,078

7
The table of data would be more probative if blends having less than
15 % v/v were also included in the comparison. In this way, the claimed
range of from 1-25% v/v would be more fully represented. Currently, the
data does not provide information on blends lower than 15% v/v.
The graph set forth in Appellants’ Figure 1 also does not provide
needed data because the extrapolation made with F1 is not helpful since F1
is a different fuel than F2 and F3 (F2 and F3 are blended with the Fischer-
Tropsch fuel). Hence, we do not know whether or not the blends having an
amount less than 15% v/v would also having greater acceleration. In this
context, we agree with the Examiner’s conclusion regarding this data made
on pages 7-8 of the Answer.
In view of the above, we affirm Rejection 1. We need not specifically
discuss the Berlowitz ‘842 reference, as this reference is cumulative of the
teachings of Berlowitz ‘909.

CONCLUSIONS OF LAW AND DECISION
Rejection 1 is affirmed.
TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1).
AFFIRMED

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