Ex Parte Hayman et al

Patent Trial and Appeal Board

Jun 30, 2017

13181981 (P.T.A.B. Jun. 30, 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.
13/181,981 07/13/2011 Alan W. Hayman P015587-PTUS-RRM 5470
80748 7590 07/05/2017
Cantor Colburn LLP-General Motors
20 Church Street, 22nd Floor
Hartford, CT 06103
EXAMINER
ZALESKAS, JOHNM
ART UNIT PAPER NUMBER
3747
NOTIFICATION DATE DELIVERY MODE
07/05/2017 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):
usptopatentmail@cantorcolbum.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ALAN W. HAYMAN, RODNEY E. BAKER, and
ROBERT S. McALPINE
Appeal 2015-006890
Application 13/181,981
Technology Center 3700
Before JENNIFER D. BAHR, WILLIAM A. CAPP, and
BRANDON J. WARNER, Administrative Patent Judges.
CAPP, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants seek our review under 35 U.S.C. § 134 of the final
rejection of claims 1—16 and 18—20. We have jurisdiction under 35 U.S.C.
§ 6(b).
We AFFIRM.
Appeal 2015-006890
Application 13/181,981
THE INVENTION
Appellants’ invention relates to internal combustion engines with
exhaust gas recirculation (“EGR”) systems. Spec. 12. Claim 1, reproduced
below, is illustrative of the subject matter on appeal.
1. An internal combustion engine comprising:
a working cylinder;
an EGR cylinder;
an intake system including a mechanically driven
compressor for supplying a combustion air charge through a
first intake runner to the working cylinder and through a second
intake runner to the EGR cylinder;
a throttle body disposed in the second intake runner
downstream of the mechanically driven compressor for
controlling a quantity of the combustion air charge supplied to
the EGR cylinder;
a first exhaust system for removing exhaust gas from the
working cylinder and to the atmosphere;
a second exhaust system for removing exhaust from the
EGR cylinder and supplying the exhaust gas through an EGR
supply conduit to the intake system upstream of the
mechanically driven compressor,
an EGR bypass conduit extending between and fluidly
connecting the EGR supply conduit and the first exhaust
system;
a first valve assembly disposed in the EGR supply conduit
between the intake system and an inlet of the EGR bypass
conduit;
a second valve assembly disposed in the EGR bypass
conduit; and
a controller in signal communication with the throttle body,
the controller configured for monitoring one or more engine
and exhaust system parameters and modulating a position of the
throttle body so as to control the combustion air charge to the
EGR cylinder.
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Application 13/181,981
THE REJECTIONS
The Examiner relies upon the following as evidence in support of the
rejections:
Pott US 6,053,154 Apr. 25, 2000
Tanaka US 6,269,791 B1 Aug. 7, 2001
Bechle US 6,295,815 B1 Oct. 2,2001
Birky WO 2007/008196 A1 Jan 18,2007
Cooper US 2009/0007563 A1 Jan. 8, 2009
The following rejections are before us for review:
1. Claims 1—5, 9, 11—13, 17, and 20 are rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Birky, Pott, and Cooper.
2. Claims 6—8, 10, 14—16, and 18 are rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Birky, Pott, Cooper, and Bechle.
3. Claim 19 is rejected under 35 U.S.C. § 103(a) as being
unpatentable over Birky, Pott, Cooper, and Tanaka.
OPINION
Unpatentability of Claims 1—5, 9, 11—13, 17, and 20
over Birky, Pott, and Cooper
Appellants argue these claims as a group. Appeal Br. 5—8. We select
claim 1 as representative. See 37 C.F.R. § 41.37(c)(l)(iv) (2016).
The Examiner finds that Birky discloses the claimed invention except
for: (1) a throttle body disposed in a second intake runner; and (2) a
compressor that is “mechanically driven” (i.e., a supercharger instead of a
turbocharger). Final Action 4—7. The Examiner relies on Pott as disclosing
the throttle body and the Examiner further relies on Cooper as disclosing the
supercharger. Id. at 7—8. The Examiner concludes that it would have been
obvious to a person of ordinary skill in the art at the time of the invention to
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Application 13/181,981
have modified Birky’s engine with Pott’s teaching of a throttle body. Id.
at 6. According to the Examiner, a person of ordinary skill in the art would
have done this to provide Birky’s engine with a simple and well-known
means of adjusting intake air pressure. Furthermore, the Examiner
concludes that it would have been obvious to a person of ordinary skill in the
art at the time the invention was made to modify Birky’s engine with
Cooper’s teaching of a mechanically driven compressor. Id. at 8. According
to the Examiner, a person of ordinary skill in the art would have done this to
overcome issues associated with exhaust gas driven turbochargers (e.g.,
“turbo lag”). Id. at 8.
Appellants traverse the Examiner’s rejection by arguing that it would
not have been obvious to modify Birky with Cooper’s teaching of a
supercharger. Appeal Br. 5. Appellants argue that the Examiner’s proposed
combination is not supported by articulated reasoning with rational
underpinning and that the Examiner’s proposed reasoning is illogical. Id.
In response, the Examiner explains, correctly, that Appellants
mischaracterize the teachings of Cooper. Ans. 4. The Examiner, in
summary, states:
[Paragraph 5] of Cooper is understood to propose an engine
system (see: Fig. 1) which includes the arrangement of a single
exhaust gas driven turbocharger 10 together with an additional
mechanically driven supercharger 14, so as to overcome the . . .
well-known deficiencies associated with a single turbocharger
(e.g., “turbo lag”) or a single supercharger (e.g., reduced engine
efficiency) or two turbochargers in series.
Id. at 4—5.
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Application 13/181,981
Appellants next argue that “substantial reconstruction” would be
required to physically add the supercharger of Cooper to Birky. Appeal
Br. 7.
[I]n addition to the substantial reconstruction needed to
physically add the supercharger itself to Birky, e.g., additional
pulleys, belts, and modifications to intake manifold 49 would
be necessary. Further additional reconstruction would be
needed to direct the EGR gases as described in the independent
claims. The Appellant respectfully submits that the substitution
suggested by the Examiner would therefore require much more
than a substantial redesign and reconfiguration of the system
described in Birky.
Id. Appellants, therefore, conclude that a person of ordinary skill in the art
would not make the substitution suggested by the Examiner. Id.
In response to Appellants’ “substantial reconstruction” argument, the
Examiner states:
[I]t is clear that the invention of Birky is not intended to be
limited only to what is shown and described in the publication.
Cooper discloses in at least the general background information
of [paragraphs 2—3] that it was well known to include
superchargers in an engine system, and Cooper appears to be
silent to any challenges associated with incorporating a
supercharger into an engine system. Instead, Cooper simply
discloses in [paragraph 16] that “it is preferred that [the
supercharger] is mechanically driven, e.g. by a belt drive
coupled to the engine crankshaft.” Respectfully, combining
well-known elements according to well-known methods would
not equate to “substantial reconstruction.”
Ans. 6—7.
We are not persuaded by Appellants’ “substantial reconstruction”
argument. Appellants present neither evidence nor persuasive technical
reasoning that tends to show that substituting a supercharger for a
turbocharger in Birky requires more than mere ordinary skill. Appellants’
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Application 13/181,981
position boils down to mere attorney argument. Invitrogen Corp. v.
Clontech Labs, Inc., 429 F.3d 1052, 1068 (Fed. Cir. 2005) (unsubstantiated
attorney argument is no substitute for competent evidence).
Appellants next argue that Birky, modified as proposed by the
Examiner, would still lack structure that would deliver exhaust gas through
an EGR supply conduit to the intake system “upstream” of a supercharger.
Appeal Br. 7. In response, the Examiner points out that Birky Figure 1
depicts a compressor 47 of turbocharger 45 upstream of where EGR
conduit 77 introduces exhaust gas into the air intake line. Ans. 8.
Furthermore, the Examiner points out that Cooper Figure 1 depicts
supercharger 14 as provided to an intake system downstream from
turbocharger compressor 10 downstream of where EGR supply conduit 20
supplies exhaust gas to inlet duct 4, which is also downstream of
turbocharger compressor 10. Id. Or, in other words, the EGR supply
conduit is “upstream” of the supercharger.
Cooper discloses the following regarding the depictions of Figure 1:
Situated in the exhaust duct 6 upstream of the turbine wheel 8 is
an exhaust purification device 18 of any appropriate type whose
purpose is to remove unwanted emissions (e.g. particulates and
hydrocarbons) from the engine exhaust gas. Extending between
the exhaust duct 6, at a position between the fdter 18 and the
turbine wheel 8, and the inlet duct 4, at a position between the
compressor wheel 10 and the supercharger 14, is an EGR duct
20, whose purpose is to permit exhaust gas to be recycled and
to be admitted into the cylinders mixed with the inlet air.
Cooper 117 (emphasis added). Given the foregoing teaching of Cooper,
Appellants’ argument that the Examiner’s proposed modification of Birky
would not deliver exhaust gas through an EGR supply conduit upstream of a
supercharger is not supported by the evidence of record.
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Next, Appellants argue that the Examiner’s proposed combination
lacks a “throttle body” as claimed. Appeal Br. 7. Appellants argue that
flaps 20 and 21 of Pott control the flow of exhaust gas to outer cylinders but
are not associated with controlling a combustion air charge. Id. Appellants
contend that combustion air is controlled through flap 19 arranged in
common intake duct 18. Id. at 7—8. Appellants further contend that outer
cylinders 2 and 5 are not EGR cylinders. Id. at 8.
In response, the Examiner directs our attention to Figure 1 of Pott and
takes the position that flap 20 is associated with controlling a combustion air
charge. Ans. 10. The Examiner points out that flap 20 is provided in intake
duct 14 of the engine, which the Examiner equates to the arrangement of
throttle valve 58 in Figure 1 of Appellants’ application. Id.
Pott describes its Figure 1 embodiment as follows:
In the typical embodiment of the invention schematically
shown in FIG. 1, a cylinder-selective throttling and exhaust gas
return arrangement is provided in an internal combustion
engine 1 having four cylinders 2, 3, 4, and 5 and corresponding
inlet valves 6, 8,10, and 12 and outlet valves 7, 9,11, and 13,
respectively. The inlet valves are connected by corresponding
individual cylinder intake ducts 14, 15,16, and 17 to a common
intake duct 18 having a manifold throttle flap 19. In addition,
as shown in FIG. 1, an individual throttle flap 20 is mounted in
the individual cylinder intake duct 14 of the first cylinder and
another throttle flap 21 is mounted in the individual cylinder
intake duct 17 of the fourth cylinder, for selective throttling of
the combustion gas supplied to, the first and fourth cylinders 2
and 5 respectively.
Pott, col. 2,11. 10-25. Figure 1 of Pott shows that throttle flap 20 is disposed
in cylinder intake duct 14 of the first cylinder which corresponds to a
“second intake runner.” Pott, Fig. 1
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Application 13/181,981
With respect to the argument that Pott’s cylinders are not “EGR
cylinders,” the Examiner states that “EGR cylinders” has been given its
plain meaning and examined under the broadest reasonable interpretation.
Ans. 12. The Examiner directs our attention to Paragraph 4 of Appellants’
Specification which states:
One or two of the four cylinders is operated at customized
levels of air and fuel (EGR cylinders); as may be determined by
an engine controller that is in signal communication with
various engine, vehicle and exhaust system sensors.
Spec. 14. The Examiner finds, and we agree, that cylinders 2 and 5 of Pott
operate at customized and controlled levels of air and fuel such that they
constitute “EGR cylinders” under the broadest reasonable construction of the
term.
In view of the foregoing, we are not apprised of Examiner error and
we sustain the rejection of claims 1—5, 9, 11—13, 17, and 20.
Unpatentability of Claims 6—8, 10, 14—16, and 18
over Birky, Pott, Cooper, and Bechle
Appellants argue claims 6 and 14 together and do not separately argue
for the patentability of claims 7, 8, 10, 15, 16, and 18. Appeal Br. 8. We
select claim 6 as representative. Claim 6 depends from claim 1 and adds the
limitation: “a third valve assembly disposed in the EGR supply conduit
between the intake system and the inlet of the EGR bypass conduit, and
configured to operate in a range between fully open and fully closed.”
Claims App. The Examiner relies on Bechle as disclosing this feature. Final
Action 16. The Examiner concludes that it would have been obvious to a
person of ordinary skill in the art at the time of the invention to modify
Birky with Bechle’s teaching of a third valve assembly disposed in the EGR
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supply conduit. Id. According to the Examiner, a person of ordinary skill in
the art would have done this as a simple alternative to a single valve
assembly for supplying EGR supply control. Id. at 17 (citing Bechle, col. 4,
11. 10-17; col. 6,11.31-36).
Appellants traverse the rejection by arguing that Bechle does not teach
an EGR bypass. Appeal Br. 8. Appellants further argue that Bechle does
not provide two valves in an EGR line. Id.
The Examiner interprets claims 1 and 6 together so as to require two
valve assemblies in an EGR supply conduit between an intake system and an
inlet of an EGR bypass conduit. Ans. 13. The Examiner states that
Appellants’ Brief is non-responsive to the Examiner’s relied-upon citations
to Bechle. Id. at 14. The Examiner directs our attention to column 4 of
Bechle which provides that “[alternatively, several flap valves 24 may be
arranged in series or in parallel in the exhaust gas re-circulation line."
Id. (quoting Bechle, col. 4,11. 10—17). The Examiner interprets Bechle as
teaching that several flap valves 24 (e.g., two flap valves) may be provided
in the EGR line 18 in the alternative to a single flap valve 24 in the EGR
line 18. Id. The Examiner maintains that, considering the Bechle reference
as a whole, it would have been obvious to one having ordinary skill in the art
at the time the invention was made to have replaced a single valve in an
EGR line (i.e., “a first valve assembly”) with two valves in the EGR line
(i.e., “a first valve assembly” and “a third valve assembly”). Id.
With respect to Appellants’ argument that Bechle does not disclose a
bypass conduit, we note that the Examiner relied on Birky for such
disclosure. Final Action 5. Thus, Appellants’ argument amounts to an
individual attack on Bechle. However, non-obviousness cannot be
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established by attacking references individually where the rejection is based
upon the teachings of a combination of references. In re Merck & Co., 800
F.2d 1091, 1097 (Fed. Cir. 1986); In re Keller, 642 F.2d 413, 425 (CCPA
1981).
In view of the foregoing discussion, we determine that the Examiner's
findings of fact are supported by a preponderance of the evidence and that
the Examiner's legal conclusion of unpatentability is well-founded.
Accordingly, we sustain the Examiner’s unpatentability rejection of
claims 6—8, 10, 14—16, and 18.
Unpatentability of Claim 19
over Birky, Pott, Cooper, and Tanaka
Claim 19 depends from claim 11. Claims App. Appellants do not
argue for the separate patentability of claim 19 apart from arguments
presented with respect to claim 11 which we have previously considered.
We sustain the rejection of claim 19. See 37 C.F.R. § 41.37(c)(l)(iv)
(failure to separately argue claims).
DECISION
The decision of the Examiner to reject claims 1—16 and 18—20 is
affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
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