Ex Parte Rollinger et al

Board of Patent Appeals and Interferences

Jun 18, 2009

11209452 (B.P.A.I. Jun. 18, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte JOHN E. ROLLINGER,
PAUL A. PIETRZYK, MICHAEL SWEPPY,
ERIC A. LUEHRSEN, and ROBERT M. GRANT
____________

Appeal 2009-001555
Application 11/209,452
Technology Center 3700
____________

Decided:1 June 18, 2009
____________

Before LINDA E. HORNER, JOHN C. KERINS, and
STEVEN D.A. McCARTHY, Administrative Patent Judges.

HORNER, Administrative Patent Judge.

DECISION ON APPEAL

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, begins to run from the decided date
shown on this page of the decision. The time period does not run from the
Mail Date (paper delivery) or Notification Date (electronic delivery).
Appeal 2009-001555
Application 11/209,452

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STATEMENT OF THE CASE
John Rollinger et al. (Appellants) seek our review under 35 U.S.C.
§ 134 of the Examiner’s decision rejecting claims 1-22. We have
jurisdiction under 35 U.S.C. § 6(b) (2002).

SUMMARY OF DECISION
We REVERSE.

THE INVENTION
The Appellants’ claimed invention is a method for operating an
engine having a variable cam timing control system, including methods for
operating the engine in the event of a fault in a sensor used in the variable
cam timing control system. Spec. 1:6-9. Claims 1 and 11, reproduced
below, are representative of the subject matter on appeal.
1. A method for operating an engine having a
variable cam timing control system, for controlling
a camshaft angle in such engine, comprising:
setting the camshaft angle to a constant
predetermined angle for a predetermined duration
after failure in a sensor used to control the variable
cam timing system; and
subsequently allowing the camshaft angle to
return to the camshaft angle determined by the
variable cam timing system.
11. A method for operating an engine,
comprising:
maintaining camshaft angle substantially
constant for up to a predetermined duration in
response to a sensor failure.

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THE EVIDENCE
The Examiner relies upon the following evidence:
Urushihata US 7,107,951 B2 Sep. 19, 2006

THE REJECTION
The Appellants seek our review of the Examiner’s decision to reject
claims 1-22 under 35 U.S.C. § 103(a) as unpatentable over Urushihata.

ISSUE
The Examiner found that Urushihata “is able to detect a failure in a
sensor, move to a mechanical reference position, and use accumulated
values of timing variations at that mechanical reference position for
calculating actual valve timing (column 19, lines 1-7).” Ans. 4-5. The
Examiner further found that the reference states or suggests that “the
mechanical reference position is maintained until an accumulated value of
valve timing variation from the mechanical reference position can be
calculated and used to set the actual valve timing,” and that it would be
obvious from this disclosure that the “mechanical reference position would
have to be maintained for a specific duration of time.” Ans. 5. The
Examiner found that the inclusion of specific time periods was “a matter of
obvious choice to one of ordinary skill in the art.” Ans. 3-4. The Examiner
concluded Urushihata renders obvious the subject matter of claims 1-22.
Ans. 5.
The Appellants contend that Urushihata does not disclose that, in
response to a sensor failure, the device either sets the camshaft angle to a
constant predetermined angle for a predetermined duration, or maintains the
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camshaft angle at a constant angle for a predetermined duration. App. Br. 6-
7, 10-11. In particular, the Appellants contend that Urushihata does not
disclose maintaining the camshaft at a mechanical reference position; rather,
Urushihata discloses a reference position from which to commence the
calculations of actual valve timing. App. Br. 9.
The issue before us is:
Have the Appellants shown the Examiner erred in a finding of fact
underlying the conclusion of obviousness that Urushihata discloses moving
the camshaft to a predetermined angle and maintaining the camshaft angle at
a constant angle in response to a sensor failure?

FINDINGS OF FACT
We find that the following enumerated facts are supported by at least
a preponderance of the evidence. Ethicon, Inc. v. Quigg, 849 F.2d 1422,
1427 (Fed. Cir. 1988) (explaining the general evidentiary standard for
proceedings before the Office).
1. Urushihata discloses 26 embodiments of a variable valve timing
control device of an internal combustion engine for varying the valve timing
of intake or exhaust valves. Urushihata, col. 1, ll. 17-20; passim. The
Examiner’s rejection is based on the disclosure of Urushihata’s sixth
embodiment. Ans. 3-4.
2. Urushihata discloses it is a shortcoming of the prior art that
calculation of the actual valve timing was done on the basis of crank and
camshaft angle signals (in steps), lowering precision of control because
actual valve timing changes continuously rather than in steps. Urushihata,
col. 16, ll. 43-65. Urushihata discloses it is an object of the sixth
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embodiment to increase precision of control by calculating actual valve
timing even during intervals when the cam angle signal is not being
outputted. Urushihata, col. 16, l. 66 to col. 17, l. 4.
3. In the sixth embodiment, actual valve timing is calculated at a
predetermined interval (computation period, P) matching the signal output
interval of the cam angle sensor and crank angle sensor. Urushihata, col. 17,
ll. 50-61; col. 19, ll. 19-24. When the cam angle sensor 19 is operating
properly, each time cam angle sensor 19 outputs a signal, Engine Control
Unit (ECU) 30 calculates actual valve timing (VTC) based on the cam angle
signal from the cam angle sensor 19 and the crank angle signal from the
crank angle sensor 20. Urushihata, col. 8, ll. 9-10; col. 19, ll. 19-24. Then
valve timing variation (ΔVT) is calculated based on the difference between
the speed of motor 26 and the speed of the intake-side camshaft over the
known computation period. Urushihata, col. 19, ll. 24-27. Final actual
valve timing (VT) is then calculated using the actual valve timing (VTC)
and the valve timing variation (ΔVT). Urushihata, col. 19, ll. 27-30; Figs.
15, 17 (showing actual valve timing calculation program). The ECU 30
feedback-controls the variable valve timing device 18, which varies the
rotation phase of the intake-side camshaft 16 with respect to the crankshaft
12. Urushihata, col. 7, ll. 5-10; col. 19, ll. 14-18; Figs. 1, 2.
4. In the sixth embodiment, when the cam angle sensor fails, ECU
30 calculates final actual valve timing by two alternate methods.
Urushihata, col. 22, ll. 27-40.
5. In the first method, final actual valve timing (VT) is calculated
by adding the actual valve timing (VTC) prior to cam angle sensor failure to
the valve timing variation ΔVTH (the accumulated value of dVTH)
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subsequent to the cam angle sensor failure. Urushihata, col. 22, ll. 27-31;
Fig. 16.
6. In the second method, which is used for both failure of the cam
angle sensor 19 and for engine stoppage, final actual valve timing (VT) can
be calculated by an accumulated value of valve timing variation from a
reference position (either a mechanical reference position, such as a most
retarded angle position, or a reference position detected by other means).
Urushihata, col. 22, ll. 35-40; col. 19, ll. 2-7; Fig. 17.
7. In both calculation methods (Facts 5, 6), valve timing variation
(dVTH) is calculated and accumulated based on the speed difference
between the motor 26 and the intake-side camshaft 16 over the known
computation period. Urushihata, col. 20, l. 44 to col. 21, l. 30; Figs. 16, 17.

PRINCIPLES OF LAW
“Section 103 forbids issuance of a patent when ‘the differences
between the subject matter sought to be patented and the prior art are such
that the 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.’” KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 406
(2007). The question of obviousness is resolved on the basis of underlying
factual determinations including (1) the scope and content of the prior art,
(2) any differences between the claimed subject matter and the prior art, (3)
the level of skill in the art, and (4) where in evidence, so-called secondary
considerations. Graham v. John Deere Co., 383 U.S. 1, 17-18 (1966). See
also KSR, 550 U.S. at 407 (“While the sequence of these questions might be
reordered in any particular case, the [Graham] factors continue to define the
inquiry that controls.”)
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ANALYSIS
Rejection of claims 1-22 under 35 U.S.C. § 103(a) as unpatentable over
Urushihata
Claims 1-10
Claim 1 contains the limitation of “setting the camshaft angle to a
constant predetermined angle for a predetermined duration after failure in a
sensor used to control the variable cam timing system.”
The Examiner’s rejection finds that column 19, lines 1 through 7 of
Urushihata (the sixth embodiment) discloses that when the cam angle sensor
fails, “the actual valve timing can be calculated by going to a mechanical
reference position (for example, a most retarded position).” Ans. 4. We find
that Urushihata does not operate in this manner.
Urushihata discloses a variable valve timing control device for
internal combustion engines (Fact 1). It is an object of the sixth embodiment
of the device to increase precision by calculating actual valve timing even
during intervals when the cam angle signal is not being outputted, as
compared to the prior art which performs updates in steps based on the
interval of the crank and camshaft angle signals (Fact 2). While the cam
angle sensor is operational, the Engine Control Unit calculates final actual
valve timing using actual valve timing (based on the cam angle signal and
the crank angle signal) and the valve timing variation (the difference
between the motor speed and the camshaft speed) (Fact 3).
When the cam sensor fails, the device responds by calculating final
actual valve timing by two alternate methods (Fact 4). The first method
calculates final actual valve timing by adding an accumulated value of valve
timing variation subsequent to the cam sensor failure to the last outputted
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actual valve timing (Fact 5). The second method calculates final actual
valve timing by an accumulated value of valve timing variation from a
reference position (Fact 6). Each of these methods includes valve timing
variation in the calculation, which is based on the speed difference between
the intake-side cam shaft and the motor over the computation period
subsequent to the sensor failure (Fact 7).
From this operation, we conclude that in response to a sensor failure,
Urushihata does not use a “constant predetermined angle,” but rather sets the
camshaft angle to a calculated angle based in part on valve timing variation
which is a calculation performed subsequent to cam angle sensor failure.
This operation also makes clear that the Examiner based the conclusion of
obviousness upon an erroneous underlying finding of fact that Urushihata
discloses that after cam angle sensor failure, the camshaft angle moves to a
reference position. Rather, Urushihata discloses the reference position is
used as a location to measure from, not a position to move to (Fact 6). The
Appellants have shown the Examiner erred in concluding the subject matter
of claim 1 was obvious in view of Urushihata because the Examiner erred in
the underlying finding that Urushihata discloses setting the camshaft angle
to a constant predetermined angle after failure in a sensor. We also reverse
the Examiner’s decision to reject claims 2-10 by virtue of their dependence
on claim 1.
Claim 11
The Appellants argue that Urushihata does not disclose the limitation
of claim 11 of “maintaining camshaft angle substantially constant for up to a
predetermined duration in response to a sensor failure” because Urushihata
uses “closed loop control whereas with the present invention, a
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predetermined angle is commanded as open loop actuator command without
feedback.” App. Br. 10-11.
We agree with the Appellants’ argument based on the operation of
Urushihata’s device explained in the analysis of claim 1, supra.
Urushihata’s device calculates final actual valve timing when the cam angle
sensor is inoperative based in part on the feedback of valve timing variation
subsequent to cam angle sensor failure (a closed loop) (Facts 4-6), while the
claimed device has the predetermined response of maintaining the camshaft
angle substantially constant (open loop). Further, as we found in the
analysis of claim 1, supra, Urushihata does not disclose that after cam angle
sensor failure the camshaft angle moves to and thereafter maintains the
camshaft angle at a constant reference position, as found by the Examiner.
Ans. 5.
The Appellants have shown the Examiner erred in the decision to
reject claim 11. We also reverse the decision to reject claims 12-19 by
virtue of their dependence on claim 11.
Claims 20 and 21
Similarly to claim 11, claims 20 and 21 contain the limitations that in
response to detection of a sensor failure, either the device drives the
camshaft to a constant position (claim 20), or the device maintains the
camshaft at a constant angle (claim 21). In the analysis of claim 1, supra,
we determined that after failure of the cam angle sensor, Urushihata sets the
camshaft angle based on one of two calculations (Fact 4). Urushihata does
not drive the camshaft to a constant position, nor maintain the camshaft at a
constant angle. The Appellants have shown the Examiner erred in the
decision to reject claims 20 and 21.
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Claim 22
Claim 22 contains the limitation of having “code for setting the
camshaft angle to a constant predetermined angle for a predetermined
duration after failure in a sensor used to control the variable cam timing
system.” We determined in the analysis of claim 1, supra, that the subject
matter of claim 1 was not obvious in view of Urushihata because the
Examiner erred in finding that Urushihata discloses setting the camshaft
angle to a constant predetermined angle after failure in a sensor. Because
Urushihata does not disclose a device that takes this action, Urusihata also
does not disclose code for taking such action. The Appellants have shown
the Examiner erred in the decision to reject claim 22.

CONCLUSION
The Appellant has shown the Examiner erred in a finding of fact
underlying the conclusion of obviousness because Urushihata does not, in
response to a sensor failure, set the camshaft angle to a constant
predetermined angle or maintain the camshaft angle at a constant angle.

DECISION
We reverse the Examiner's rejection of claims 1-22.

REVERSED

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