Ex Parte Miyazaki et al

Patent Trial and Appeal Board

Apr 21, 2017

12845067 (P.T.A.B. Apr. 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.
12/845,067 07/28/2010 Shinsuke Miyazaki GPK-2018-2570 9267
23117 7590 04/25/2017
NIXON & VANDERHYE, PC
901 NORTH GLEBE ROAD, 11TH FLOOR
ARLINGTON, VA 22203
EXAMINER
LAGUARDA, GONZALO
ART UNIT PAPER NUMBER
3747
NOTIFICATION DATE DELIVERY MODE
04/25/2017 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):
PTOMAIL@nixonvan.com
pair_nixon @ firsttofile. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SHINSUKE MIYAZAKI, AKIRA FURUKAWA, OSAMU
SHIMANE, KAZUSHI SASAKI, and EIJI TAKEMOTO
Appeal 2014-000189
Application 12/845,0671
Technology Center 3700
Before MICHAEL C. ASTORINO, PHILIP J. HOFFMANN, and
MATTHEW S. MEYERS, Administrative Patent Judges.
ASTORINO, Administrative Patent Judge.
DECISION ON APPEAL
The Appellants appeal under 35U.S.C. § 134 from the Examiner’s
decision finally rejecting claims 1—11. We have jurisdiction over the appeal
under 35 U.S.C. § 6(b).
We REVERSE.
1 According to the Appellants, “[t]he real party in interest is Denso
Corporation.” Appeal Br. 3.
Appeal 2014-000189
Application 12/845,067
STATEMENT OF THE CASE
Claimed Subject Matter
Claims 1 and 11 are the independent claims on appeal. Claim 1,
reproduced below, is illustrative of the subject matter on appeal.
1. A low pressure exhaust gas recirculation apparatus for an
internal combustion engine that is communicated with an intake
air passage, through which intake air is supplied to the internal
combustion engine, and an exhaust passage, through which
exhaust gas of the internal combustion engine is released to
atmosphere, the low pressure exhaust gas recirculation apparatus
comprising:
a low pressure exhaust gas recirculation (EGR) passage,
which is configured to recirculate the exhaust gas as EGR gas
from a low exhaust gas pressure area of the exhaust passage to a
low negative intake air pressure generating area of the intake air
passage;
a low pressure EGR regulating valve, which regulates an
opening degree of the low pressure EGR passage to regulate a
flow quantity of the EGR gas through the low pressure EGR
passage;
a throttle valve, which is adapted to reduce an opening
degree of one of the intake air passage and the exhaust passage
to increase an EGR flow quantity of the EGR gas in the low
pressure EGR passage;
an electric actuator, which drives the low pressure EGR
regulating valve;
a link device, which converts an output of the electric
actuator to drive the throttle valve;
a low pressure EGR opening degree sensor, which senses
an opening degree of the low pressure EGR regulating valve;
a low pressure EGR valve return spring, which urges the
low pressure EGR regulating valve in a closing direction thereof
for closing the low pressure EGR passage upon stopping of
energization of the electric actuator;
a mechanical stopper, which limits a maximum opening
degree of the throttle valve; and
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Application 12/845,067
a failure sensing means for executing a failure
determination to determine presence of a failure in a case where
a sensed opening degree, which is sensed with the low pressure
EGR opening degree sensor, is other than an opening degree that
corresponds to a maximum opening degree of the throttle valve
limited by the mechanical stopper, wherein the failure sensing
means is activated after the energization of the electric actuator
is stopped in response to stopping of the internal combustion
engine.
Rejections
I. Claim 7 is rejected under 35 U.S.C. § 112, second paragraph, as
indefinite.
II. Claims 1—3, 5, 8, and 11 are rejected under 35 U.S.C. § 102(b)
as anticipated by Tussing (US 7,163,005 B2, iss. Jan. 16, 2007).
III. Claims 6 and 7 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Tussing.
IV. Claim 7 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Tussing and Nanba (US 7,234,444 B2, iss. June 26, 2007).
V. Claims 4, 9, and 10 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Tussing and Shutty (US 2011/0088674 Al, pub. Apr. 21,
2011).
ANALYSIS
Rejection I
Claim 7 recites in part:
the low pressure EGR regulating valve includes an overturning
means for overturning the low pressure EGR regulating valve
from a first side of a full closed position of the low pressure EGR
regulating valve, the first side including a full open position of the
low pressure EGR regulating valve, to a second side of the full
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Application 12/845,067
closed position, the second side of the full closed position
opposite from the first side of the full closed position.
Appeal Br., Claim App. (emphasis added).
The Examiner determines that the above-recited language of claim 7
“reads that at the full closed position of the EGR regulating valve includes
the full open position of the EGR regulating valve which contradicts itself.”
Final Act. 3 (emphasis omitted).
We determine that one of ordinary skill in the art would understand
what is claimed when the claim is read in light of the Specification. See
Appeal Br. 17—19; Orthokinetics, Inc. v. Safety Travel Chairs, Inc., 806 F.2d
1565 (Fed. Cir. 1986). Specifically, a skilled artisan would understand the
following: at a full closed position the low pressure EGR regulating valve is
positioned at a certain angle (e.g., 0 degrees); and moving the valve away
from the full closed position in one direction refers to a first side of a full
closed position, whereas moving the valve away from the full closed
position in a second direction refers to a second side of the full closed
position. See Appeal Br. 18—19. Also, when the low pressure EGR
regulating valve is positioned on the first side and at a certain angle (e.g.,
positive 90 degrees), the valve is at full open position. See id.
In other words, claim 7 does not equate a full closed position with a
full open position of the EGR regulating valve, but uses the full closed
position of the EGR regulating valve (e.g., the position of the valve at 0
degrees) as a reference point to delineate two separates sides of the valve.
So, the first and second sides of the full closed position may be understood
as designating operating ranges of the low pressure EGR regulating valve.
For example, the first side of a full closed position could include an
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Application 12/845,067
operating range of the valve from above 0 degrees to positive 90 degrees and
the second side of a full closed position could include an operating range of
the valve from below 0 degrees to minus 10 degrees.
Thus, we do not sustain the rejection of claim 7 as indefinite.
Rejections II—V
Independent claim 1, recites
a failure sensing means for executing a failure
determination to determine presence of a failure in a case where
a sensed opening degree, which is sensed with the low pressure
EGR opening degree sensor, is other than an opening degree that
corresponds to a maximum opening degree of the throttle valve
limited by the mechanical stopper, wherein the failure sensing
means is activated after the energization of the electric actuator
is stopped in response to stopping of the internal combustion
engine.
Appeal Br., Claims App. (emphasis added).
The Examiner fails to adequately support the finding that Tussing
discloses a “failure sensing means [that] is activated after the energization of
the electric actuator is stopped in response to stopping of the internal
combustion engine,” as recited in independent claim 1. See Appeal Br. 14;
Reply Br. 6. Independent claim 11 includes a similar limitation and the
Examiner’s finding that Tussing discloses the similar limitation of claim 11
likewise fails to be adequately supported.
More specifically, the Examiner explains that the foregoing claim
language is functional and that Tussing’s CPU receives data from sensors to
determine valve position and failure, and is “fully capable of performing
these specifications before[,] during[,] and after activation.” Final Act. 5—6
(emphasis omitted) (citing Tussing col. 6,11. 42-49, col. 9,11. 24—25); see
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also Final Act. 9-10, 19 (citing Tussing col. 10,11. 4—6). In response to the
Appellants’ argument that “[t]he Final Office Action fails to identify any
portion of Tussing that would teach or suggest that anything should occur
after a determination that the engine is stopped, e.g., as recited in the
independent claims” (Appeal Br. 15), the Examiner offers the position that
Tussing’s “ECU [(i.e., engine control unit)] is not powered by the engine but
the battery and so the engine being off does not affect the ECU from
continuing to operate.” Ans. 3. However, the Appellants persuasively
contend that “even if the Examiner’s Answer is correct that Tussing teaches
an ECU’s connection to a batter[y] that allows the ECU to operate when the
engine is stopped, Tussing still would not teach or suggest an action or
configuration occur[s] in response to the stoppage of an internal combustion
engine.” Reply Br. 6. Put simply, the Examiner appears to use speculation
— rather than adequately supported evidence or technical reasoning — to
find that Tussing’s ECU responds to the stoppage of Tussing’s engine as
required by the claims.
Thus, we do not sustain the Examiner’s rejection of claims 1—3, 5, 8,
and 11 as anticipated by Tussing. The remainder of the Examiner’s
rejections — based on Tussing alone or in combination with Nanba or
Shutty — rely on the same inadequately supported finding as discussed
above. As such, we do not sustain the Examiner’s rejections under 35
U.S.C. § 103(a) of claims 6 and 7 as unpatentable over Tussing, claim 7 as
unpatentable over Tussing and Nanba, and claims 4, 9, and 10 as
unpatentable over Tussing and Shutty.
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DECISION
We REVERSE the Examiner’s decision rejecting claims 1—11.
REVERSED
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