Ex Parte Dingle

Patent Trial and Appeal BoardMay 28, 2013

10819586 (P.T.A.B. May. 28, 2013)

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. 10/819,586 04/07/2004 Philip J. Dingle DP-310842 6284 22851 7590 05/29/2013 Delphi Technologies, Inc. M/C 480-410-202 P.O. Box 5052 Troy, MI 48007 EXAMINER BOECKMANN, JASON J ART UNIT PAPER NUMBER 3752 MAIL DATE DELIVERY MODE 05/29/2013 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 PATENT TRIAL AND APPEAL BOARD ____________ Ex parte PHILIP J. DINGLE ____________ Appeal 2011-002496 Application 10/819,586 Technology Center 3700 ____________ Before LYNNE H. BROWNE, ANNETTE R. REIMERS and RICHARD E. RICE, Administrative Patent Judges. BROWNE, Administrative Patent Judge DECISION ON APPEAL Appeal 2011-002496 Application 10/819,586 2 STATEMENT OF THE CASE Philip J. Dingle (Appellant) appeals under 35 U.S.C. § 134 from the Examiner’s decision finally rejecting claims 1, 3, 4, 8, 16, 18, 19, 23, 34 and 35. Br. 2-3; 7-8. Claims 2, 5-7, 9-15, 17, 20-22 and 24-33 have been canceled. Id. at 2. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. THE INVENTION Claim 1, reproduced below, is illustrative of the subject matter on appeal. 1. A fuel injector, comprising: a control unit for controlling the fuel injector; an actuator located in the fuel injector; a fuel injector nozzle for dispersing fuel during homogeneous charge compression ignition and non-homogeneous charge compression ignition, the fuel injector nozzle comprising: a plurality of first outlet openings that disperse fuel in response to the actuator during homogeneous charge compression ignition and non-homogeneous charge compression ignition; and a plurality of second outlet openings that disperse fuel in response to the control unit that controls the actuator and the plurality of second outlet openings disperse fuel only during non-homogeneous charge compression ignition and fuel dispersed from said plurality of second outlet openings collides with fuel dispersed from said plurality of first outlet openings, and said plurality of first outlet openings are smaller than said plurality of second outlet openings. Appeal 2011-002496 Application 10/819,586 3 PRIOR ART Lambert1 US 6,260,775 B1 Jul. 17, 2001 Stewart US 6,978,760 B2 Dec. 27, 2005 Tsutsumoto JP 06147056 A May 27, 1994 GROUNDS OF REJECTION 1. Claims 1, 3, 4, 16, 18, 19, 34 and 35 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Stewart and Tsutsumoto. 2. Claims 8 and 23 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Stewart, Tsutsumoto and Lambert. OPINION Obviousness based on Stewart and Tsutsumoto Claims 1, 3 and 4: Appellant argues claims 1, 3, 4 and 8 as a group.2 We select independent claim 1 as the representative claim and claims 3, 4 and 8 stand or fall with claim 1. See Br. 8-16; see also 37 C.F.R. § 41.37(c)(1)(vii) (2011). The Examiner finds that Stewart discloses all of the limitations of independent claim 1 except that “Stewart et al. does not specifically disclose that the plurality of first outlet openings are smaller than the plurality of second outlet openings.” Ans. 3-4. The Examiner finds that Tsutsumoto “discloses a fuel injector including a nozzle body (1 or 41) containing a plurality of first outlet openings (3 or 43), being smaller than a plurality of 1 The Examiner has not listed Lambert in Section (8) of the Examiner’s Answer; however, claims 8 and 23 stand rejected as obvious over Stewart, Tsutsumoto and Lambert. See Ans. 5. 2 Although claims 3 and 4 are each presented under a separate heading, no separate arguments are presented for these claims. See Br. 15-16. Appeal 2011-002496 Application 10/819,586 4 second outlet openings (9 or 49).” Ans. 4. The Examiner further finds that in Tsutsumoto “flow f[ro]m the plurality of second outlet opening[s] collides with the flow f[ro]m the plurality of first outlet openings when the fuel from both sets of openings i[s] inside the piston cylinder.” Id. Based on these findings the Examiner concludes that claim 1 would have been obvious to one of ordinary skill in the art at the time of the invention because “[t]his modification would increase the quantity of fuel delivered to the cylinder by mixing the fuel f[ro]m the plurality of first outlet openings and a plurality of second outlet openings, spreading out the fuel so that it lights easier, reducing smoke and delaying fuel injection to reduce NOx emissions.” Id. Appellant argues that: Nowhere in either Stewart et al. or Tsutsumoto et al. is there any teaching of a plurality of second outlet openings that disperse fuel only during non-homogeneous charge compression ignition and fuel dispersed from said plurality of second outlet openings collides with fuel dispersed from said plurality of first outlet openings, and said plurality of first outlet openings are smaller than said plurality of second outlet openings. Br. 9-10. Appellant’s argument is unconvincing because nonobviousness cannot be established by attacking the references individually when the rejection is predicated upon a combination of prior art disclosures. See In re Merck & Co. Inc., 800 F.2d 1091, 1097, (Fed. Cir. 1986). As discussed supra, the Examiner finds that Stewart discloses a plurality of second outlet openings that disperse fuel only during non-homogeneous charge compression ignition, that Stewart discloses that fuel dispersed from the plurality of second outlet openings will inherently collide with fuel dispersed from the Appeal 2011-002496 Application 10/819,586 5 plurality of first outlet openings, that Tsutsumoto discloses a plurality of first outlet openings that are smaller than a plurality of second outlet openings, and that Tsutsumoto discloses that fuel dispersed from its plurality of second outlet openings will collide with fuel dispersed from its plurality of first outlet openings. See Ans. 3-4. Appellant has not apprised us of error in these findings. Appellant merely reiterates a portion of what the disputed claim limitations recite and makes a general allegation that neither Stewart nor Tsutsumoto disclose these limitations. Br. 9-10. Merely reciting the language of the claims and asserting that the cited prior art references do not disclose each claim limitation is insufficient. See 37 C.F.R. § 41.37(c)(vii) (“A statement which merely points out what a claim recites will not be considered an argument for separate patentability of the claim.”); see also In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) (“we hold that the Board reasonably interpreted Rule 41.37 to require more substantive arguments in an appeal brief than a mere recitation of the claim elements and a naked assertion that the corresponding elements were not found in the prior art.”); cf. In re Baxter Travenol Labs., 952 F.2d 388, 391 (Fed. Cir. 1991) (“It is not the function of this court to examine the claims in greater detail than argued by an appellant, looking for [patentable] distinctions over the prior art.”)). Accordingly, Appellant’s argument is unpersuasive. We note the Examiner’s observation that Appellant does not challenge the Examiner’s rationale for combining Stewart and Tsutsumoto or the Examiner’s finding that Tsutsumoto discloses a plurality of first outlet openings that are smaller than a plurality of second outlet openings. Ans. 6. Based on that observation, the Examiner boils Appellant’s argument down to Appeal 2011-002496 Application 10/819,586 6 two separate arguments, first, that nether Stewart nor Tsutsumoto teach a fuel injector where the plurality of second outlet openings disperse fuel only during non-homogeneous charge compression ignition (when the cylinder is at bottom dead center) and, second, that nether Stewart nor Tsutsumoto teach that the fuel from the second outlet openings collides with the fuel dispersed from the plurality of first outlet openings. Id. The Examiner then provides findings and reasoning to support his position that Stewart discloses a fuel injector where the plurality of second outlet openings disperse fuel only during non-homogeneous charge compression ignition (id. at 6-7) and that Stewart and Tsutsumoto each teach that the fuel from the second outlet openings collides with the fuel dispersed from the plurality of first outlet openings (id. at 7-8). We discern no error in the Examiner’s findings or reasoning. Appellant also argues that “Tsutsumoto et al. specifically teaches away from an actuator and control unit for dispersing fuel from the first and second outlet openings during homogeneous charge compression ignition and non-homogeneous charge compression ignition.” because Tsutsumoto discloses “a fuel injection pump synchronizing with engine rotation.” Br. 12 (citing Tsutsumoto paragraphs [0007] and [0008]). Appellant’s argument is not responsive to the rejection as articulated by the Examiner. The rejection does not rely upon Tsutsumoto to teach an actuator and control unit as Stewart discloses these elements. Furthermore, a reference does not teach away from a proposed combination with another reference simply because there are differences between the two references. See In re Beattie, 974 F.2d 1309, 1312-13 (Fed. Cir. 1992). Appellant argues that “Tsutsumoto et al. appears to be directed to the Appeal 2011-002496 Application 10/819,586 7 avoidance of the crossing of the center lines of the main nozzle hole 9 and the pilot nozzle hole 3.” Br. 13. We note that claim 1 does not require “crossing of the center lines of the main nozzle hole 9 and the pilot nozzle hole 3.” Accordingly, Appellant’s argument is inapposite. Appellant argues that “Tsutsumoto et al. is silent as to homogeneous charge compression ignition and non-homogeneous charge compression ignition.” Br. 14. Again, Appellant’s argument is not responsive to the rejection as articulated by the Examiner. The rejection does not rely upon Tsutsumoto to teach homogeneous charge compression ignition and non- homogeneous charge compression ignition as Stewart discloses these elements. Appellant argues that Stewart “discloses non-intersecting plumes that occur at top dead center or bottom dead center.” Br. 14-15 (citing Stewart, col. 7, ll. 32-58 which refers to Fig. 10). The Examiner finds that “[o]nce the fuel is in the piston cylinder, it is inherent that it will eventually collide with the fuel that leaves the plurality of second outlet openings before or during combustion.” Ans. 8. The fact that the plumes do not intersect does not persuade us that the Examiner’s reasoning is flawed because claim 1 requires colliding fuel, not colliding plumes. Appellant has not apprised us of error in the Examiner’s finding that the fuel will eventually collide. Accordingly, Appellant’s argument is unpersuasive. For these reasons, we sustain the Examiner’s rejection of claim 1 and claims 3 and 4 which depend therefrom and were not argued separately. Claims 16, 18, 19, 34 and 35: Appeal 2011-002496 Application 10/819,586 8 Appellant argues claims 16, 18, 19, 34 and 35 as a group.3 We select independent claim 16 as the representative claim and claims 18, 19, 34 and 35 stand or fall with claim 16. See App. Br. 16-22. As with claim 1, the Examiner finds that Stewart discloses all of the limitations of independent claim 16, except for first outlet openings are smaller than the plurality of second outlet openings. See Ans. 3-4. The Examiner finds that Tsutsumoto cures this deficiency in Stewart and, as discussed supra, concludes that claim 16 would have been obvious to one of ordinary skill in the art at the time of the invention. Ans. 4. Appellant essentially repeats the same arguments for claim 16 that were made for claim 1. In the interest of brevity, we will not repeat our response to these arguments and will only address those arguments that differ from the arguments previously presented. Appellant argues that “[n]owhere in either Stewart et al. or Tsutsumoto et al. is there any teaching of a plurality of second outlet openings that only disperse fuel when the cylinder is at or about top dead center.” Br. 17. The Examiner finds that Stewart discloses “a plurality of second outlet openings (84) that dispense fuel in response to the actuator, only during non-homogeneous charge compression ignition (when the cylinder is at top dead center).” Ans. 3. As discussed supra, Appellant’s general allegation that Stewart fails to disclose this limitation does not apprise us of error in the rejection. Accordingly, Appellant’s argument is not persuasive. 3 Although claims 18, 19, 34 and 35 are each presented under a separate heading, no separate arguments are presented for these claims. See Br. 21- 22. Appeal 2011-002496 Application 10/819,586 9 For these reasons, we sustain the Examiner’s rejection of claim 16 and claims 18, 19, 34 and 35 which depends therefrom and were not argued separately. Obviousness based on Stewart, Tsutsumoto and Lambert Claim 8: Appellant argues “[c]laim 8 depends from claim 1 and is believed to be allowable for at least the same reasons as claim 1 in addition to providing additional limitations.” Br. 16. As we have found no deficiencies in the rejection of claim 1 and Appellant has not provided separate arguments with respect to the additional limitations set forth in claim 8, we sustain the Examiner’s rejection of claim 8. Claim 23: Appellant argues “[c]laim 23 depends from claim 16 and is believed to be allowable for at least the same reasons as claim 16 in addition to providing additional limitations.” Br. 21. As we have found no deficiencies in the rejection of claim 16 and Appellant has not provided separate arguments with respect to the additional limitations set forth in claim 23, we sustain the Examiner’s rejection of claim 23. Appeal 2011-002496 Application 10/819,586 10 DECISION We affirm the Examiner’s rejection of claims 1, 3, 4, 8, 16, 18, 19, 23, 34 and 35. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). AFFIRMED rvb