Ex Parte Pollard et al

Patent Trial and Appeal Board

Nov 20, 2017

12219977 (P.T.A.B. Nov. 20, 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.
12/219,977 07/31/2008 Michael J. Pollard 08350.8062-00000 9473
58982 7590 11/22/2017
CATERPILLAR/FINNEGAN, HENDERSON, L.L.P.
901 New York Avenue, NW
WASHINGTON, DC 20001-4413
EXAMINER
JONAITIS, JUSTIN M
ART UNIT PAPER NUMBER
3744
NOTIFICATION DATE DELIVERY MODE
11/22/2017 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):
regional-desk @ finnegan. com
us_docket_clerk@cat.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MICHAEL J. POLLARD, PETR MICHLIK, JEFF A. JENSEN,
SCOTT A. JOHNSTON, and PINGSHUN ZHAO
Appeal 2015-007920
Application 12/219,977
Technology Center 3700
Before JENNIFER D. BAHR, BRANDON J. WARNER, and
ARTHUR M. PESLAK, Administrative Patent Judges.
WARNER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Michael J. Pollard et al. (“Appellants”)1 appeal under 35 U.S.C.
§ 134(a) from the Examiner’s decision rejecting claims 1—5, 21—24, 26—29,
and 31—34, which are all the pending claims. See Appeal Br. 1, 7. We have
jurisdiction over the appeal under 35 U.S.C. § 6(b).
We AFFIRM.
1 According to Appellants, the real party in interest is Caterpillar Inc.
Appeal Br. 3.
Appeal 2015-007920
Application 12/219,977
CLAIMED SUBJECT MATTER
Appellants’ disclosed invention is “directed to a fuel injector and,
more particularly, to materials for a fuel injector.” Spec. 11. Claims 1, 5,
and 21 are independent. Claim 1, reproduced below, is illustrative of the
subject matter on appeal.
1. A fuel injector, comprising:
an injector body; and
an injector needle located inside the injector body, the
injector body and injector needle each having a portion
configured to be exposed to a combustion chamber, the portion
of the injector needle including maraging or carburizing steel
and having a nitrided outer layer;
wherein the nitrided outer layer is formed by diffusing
nitrogen into a surface of the portion of the injector needle at a
temperature of about 480° Celsius.
EVIDENCE
The Examiner relied on the following evidence in rejecting the claims
appeal:
Bart US 4,101,076 July 18, 1978
Bentz US 5,607,106 Mar. 4, 1997
Shafer US 6,173,913 B1 Jan. 16, 2001
Reiter US 6,302,371 B1 Oct. 16, 2001
Technical data sheets for materials known in the art, including
Ferrium® C61™ Case-Hardened Gear Steel with Ultrahigh-Strength
Core from QuesTek Innovations LLC (2012), Maraging C300 steel
alloy from Maher Global Metal Solutions (2008 via Internet Archive),
and Maraging C350 steel alloy from Maher Global Metal Solutions
(2008 via Internet Archive) (collectively “Technical Data Sheets”)
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Appeal 2015-007920
Application 12/219,977
REJECTION
The following rejection is before us for review: Claims 1—5, 21—24,
26—29, and 31—34 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Bart, Reiter, and Technical Data Sheets. Non-Final
Act. 3^4.
ANALYSIS
The Examiner determined that a combination of teachings from Bart,
Reiter, and Technical Data Sheets renders obvious the subject matter
claimed. See Non-Final Act. 3^4. Appellants argue that the Examiner has
failed to make a proper case of obviousness in rejecting the claims. See
Appeal Br. 10-14 (arguments regarding independent claim 1); id. at 14—15
(same arguments for independent claims 5 and 21); id. at 15—18 (same
general arguments for the dependent claims). After careful consideration of
the record before us, Appellants’ arguments do not apprise us of error in the
Examiner’s factual findings from Bart, Reiter, or Technical Data Sheets, as
these are supported by a preponderance of the evidence, or the Examiner’s
reasonable conclusion of obviousness, which is rationally articulated based
on prior art teachings. In short, we sustain the Examiner’s rejection based
on the reasoned positions set forth therein and in light of the Examiner’s
thorough responses to Appellants’ arguments. See Non-Final Act. 3^4;
Ans. 2—5.
In particular, Appellants assert that the Examiner has not sufficiently
identified disclosure in the art of specific fuel injector elements, such as the
exposed portion of the injector needle, being formed of the particular
materials recited in the claims. See Appeal Br. 10—12, 14—18. But these
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Appeal 2015-007920
Application 12/219,977
assertions do not address the ultimate issue for the present rejection of
whether the claimed subject matter as a whole would have been obvious at
the time the invention was made to a person having ordinary skill in the art
to which said subject matter pertains. See 35 U.S.C. § 103(a). Further, one
of ordinary skill must be presumed to know something about the art apart
from what a reference expressly discloses. See In re Jacoby, 309 F.2d 513,
516 (CCPA 1962).
Here, we agree with the Examiner that a person of ordinary skill in the
art would understand that the materials disclosed in the cited Technical Data
Sheets would be suitable for the formation of the specific fuel injector
components recited, and could select such known materials on the basis of
their suitability for the intended purpose as a matter of obvious engineering
design choice. See Ans. 2—5; In reLeshin, 277 F.2d 197, 199 (CCPA 1960).
Appellants do not provide any factual evidence or persuasive technical
reasoning to explain how the use of known materials for the specific fuel
injector components recited would be unpredictable or somehow beyond the
level of ordinary skill in the art. See KSR Int 7 Co. v. Teleflex Inc., 550 U.S.
398, 417—18 (2007) (an obviousness determination “can take account of the
inferences and creative steps that a person of ordinary skill in the art would
employ”). Thus, Appellants’ assertions do not apprise us of error in the
Examiner’s reasonable conclusion that the use of known materials for
known fuel injector components, to achieve expected results, would have
been obvious to a person of ordinary skill in the art.
Appellants also contend that the Examiner has ignored the limitation
regarding formation specifics of the nitrided outer layer recited (i.e.,
“diffusing nitrogen ... at a temperature of about 480° Celsius”). See Appeal
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Appeal 2015-007920
Application 12/219,977
Br. 12—13. However, the Examiner provides a reasoned explanation of how
the limitation was considered, noting that Appellants have not identified
evidence to show that the formation specifics recited are critical to providing
any benefit or would fall outside what is typical for nitriding—in other
words, the limitation was not ignored. Ans. 2—3. Appellants do not submit a
Reply Brief to assert any error with respect to the Examiner’s explanation.
Thus, this contention does not apprise us of error in the rejection.
We note that any other arguments not specifically addressed in detail
herein have been thoroughly considered by the panel but are not persuasive
for the reasons well expressed in the Examiner’s Answer.
After careful consideration of all the evidence of record, Appellants’
arguments do not apprise us of error in the Examiner’s findings or reasoning
in support of the conclusion of obviousness. Accordingly, we sustain the
rejection.
DECISION
We AFFIRM the Examiner’s decision rejecting claims 1—5, 21—24,
26—29, and 31—34 under 35 U.S.C. § 103(a) as being unpatentable over Bart,
Reiter, and Technical Data Sheets.
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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