Ross Dykstra. Pursifull et al.

Patent Trials and Appeals Board

Sep 27, 2019

13620021 - (D) (P.T.A.B. Sep. 27, 2019)

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.
13/620,021 09/14/2012 Ross Dykstra Pursifull 83247565 9945
36865 7590 09/27/2019
MCCOY RUSSELL LLP
806 S.W. BROADWAY, SUITE 600
PORTLAND, OR 97205
EXAMINER
CAMPBELL, JOSHUA A
ART UNIT PAPER NUMBER
3747
NOTIFICATION DATE DELIVERY MODE
09/27/2019 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):
usptomail@mccrus.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte ROSS DYKSTRA PURSIFULL, ROBERT ROY JENTZ,
and JOHN ERIC ROLLINGER
____________

Appeal 2017-0099521
Application 13/620,0212
Technology Center 3700
____________

Before BRADLEY B. BAYAT, FREDERICK C. LANEY, and
PAUL J. KORNICZKY, Administrative Patent Judges.

BAYAT, Administrative Patent Judge.

DECISION ON APPEAL

Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
decision rejecting claims 1–4, 6–11, 13, 15–18, and 20–22, which are the
only claims pending in the Application. We have jurisdiction under
35 U.S.C. § 6(b). An oral hearing was held on September 12, 2019.
We AFFIRM-IN-PART.

1 Our Decision references Appellants’ Appeal Brief (“Appeal Br.,” filed
Feb. 13, 2017), Reply Brief (“Reply Br.,” filed July 17, 2017), the
Examiner’s Answer (“Ans.,” mailed June 14, 2017), and Final Office Action
(“Final Act.,” mailed July 12, 2016).
2 Appellants identify “Ford Global Technologies, LLC” as the real party in
interest. Appeal Br. 4.
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Application 13/620,021

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STATEMENT OF THE CASE
Claimed Subject Matter
Appellants’ claimed invention is directed to “CRANKCASE
INTEGRITY BREACH DETECTION.” Spec., Title. Independent claim
16, reproduced below, is illustrative of the subject matter on appeal.
16. An engine crankcase ventilation system of a
vehicle, comprising:
an engine including an intake passage and a crankcase;
a crankcase vent tube having an inlet mechanically connected to
the intake passage upstream of a compressor and an outlet
mechanically connected to the crankcase via an oil separator, the
crankcase vent tube located external to the engine;
a PCV valve coupled between the crankcase and an engine
intake manifold at a location downstream of an intake throttle;
a flow sensor coupled in the crankcase vent tube for estimating
air flow through the crankcase vent tube; and
a control system with computer readable instructions stored in
read-only memory for,
during engine cranking,
decreasing an opening of a PCV valve to a
low flow position, and
estimating a change in air flow through the
crankcase vent tube;
during engine running after engine cranking,
monitoring a change in steady-state
crankcase vent tube pressure relative to a change in
steady-state manifold air flow; and
differentiating between disconnection of a
crankcase vent tube from degradation of the PCV
valve based on characteristics of a transient dip in
crankcase vent tube pressure; and
setting different diagnostic codes based on
whether the crankcase vent tube is disconnected or
the PCV valve is degraded.

Appeal Br. 39–40, Claims App.
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Application 13/620,021

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Rejections
Claim 7 is rejected under 35 U.S.C. § 112, second paragraph, as being
indefinite.
Claims 1–4 and 21 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Pursifull et al., (US 2010/0147270 A1, published June 17,
2010) (hereinafter Pursifull), Carlson et al., (US 2,516,547, issued July
25,1950) (hereinafter Carlson), Moren, (US 2001/0022175 A1, published
Sept. 20, 2001), Miwa et al., (US 7,726,270 B2, issued June 1, 2010)
(hereinafter Miwa), and Hewelt et al., (US 5,792,949, issued Aug. 11, 1998)
(hereinafter Hewelt).
Claim 6 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Pursifull, Carlson, Moren, Miwa, Hewelt, and Niessen et al., (US
7,229,381 B2, issued June 12, 2007) (hereinafter Niessen).
Claim 7 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Pursifull, Carlson, Moren, Miwa, Hewelt, and Niessen, and Baeuerle et
al., (US 6,779,388 B2, issued Aug. 24, 2004) (hereinafter Baeuerle).
Claim 8 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Pursifull, Carlson, Moren, Miwa, Hewelt, and Schneider et al., (US
6,575,022 B1, issued June 10, 2003) (hereinafter Schneider).
Claims 9–11 and 15 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Pursifull, Carlson, Moren, Schneider, and Monros, (US
2010/0180872 A1, published July 22, 2010).
Claim 13 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Pursifull, Carlson, Moren, Monros, and O’Daniel, (US 5,897,597,
issued Apr. 27, 1999).
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Claims 16, 18, 20, and 22 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Pursifull, Carlson, Moren, Miwa, Schneider,
Hewelt, and Beyer et al., (US 7,080,547 B2, issued July 25, 2006)
(hereinafter Beyer).
Claim 17 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Pursifull, Carlson, Moren, Miwa, Schneider, Hewelt, Beyer, and
Monros.
ANALYSIS
35 U.S.C. § 112, second paragraph
The Examiner rejected claim 7 as indefinite because there is
insufficient antecedent basis for the recitation “the indicating” in line 1.
Final Act. 5. In response, “Appellant agrees with the Office and will address
the antecedent basis correction in claim 7 after appeal as the Office’s
interpretation of claim 7 conforms with Appellant’s intent.” Appeal Br. 10.
Accordingly, we summarily sustain the rejection of claim 7 as
indefinite.

35 U.S.C. § 103(a)
For a number of reasons, we are persuaded that the combination of
prior art references, as proposed by the Examiner, does not render obvious
the claimed invention.
In rejecting independent claim 16 as unpatentable over Pursifull,
Carlson, Moren, Miwa, Schnedier, Hewelt, and Beyer, the Examiner found
Pursifull discloses “a PCV valve coupled between the crankcase and an
engine intake manifold at a location downstream of an intake throttle” (Final
Act. 21), but Pursifull does not disclose “decreasing an opening of the PCV
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valve to a low flow position” during engine cranking. Id. at 21. To cure this
deficiency, the Examiner found “Carlson discloses reducing an opening of a
crankcase vent tube [through valve 30 and restricted by-pass 40] during
engine cranking” (Ans. 25), and determined that “it would have been
obvious to a person having ordinary skill in the art at the time the invention
was made to simply substitute the valve disclosed by Pursifull with the PCV
valve disclosed by Carlson.” Final Act. 22. The Examiner found “Pursifull
and Carlson do not disclose an arrangement wherein a vent tube outlet is
mechanically connected to the crankcase” as required by claim 16 (id.), and
relied on Moren “to modify the crankcase ventilation system disclosed by
Pursifull with the arrangement of crankcase vent tubes disclosed by Moren.”
Id. at 23. Further, the Examiner found that “Pursifull, as modified by
Carlson and Moren, does not explicitly disclose indicating degradation of the
valve based on deviations of an estimated crankcase vent tube air flow
profile” and instead relied on Schneider to cure this deficiency. Id. at 23.
Even further, the Examiner found the combination of Pursifull, Carlson,
Moren, and Schneider fails to disclose
during engine running after engine cranking,
monitoring a change in steady-state
crankcase vent tube pressure relative to a change in
steady-state manifold air flow; and
differentiating disconnection of a crankcase vent
tube from degradation of the PCV valve and further
based on . . . characteristics of a transient dip in
crankcase vent tube pressure; and
setting different diagnostic codes based on whether
the crankcase vent tube is disconnected or the PCV valve
is degraded
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(id. at 23–24), and relied on Hewett, Miwa, and Beyer to additionally
modify the modified Pursifull system to arrive at the claimed invention. Id.
at 24–25.
We are not persuaded that a skilled artisan would have been motivated
to substitute Pursifull’s PCV valve for Carlson’s plug valve 30 as a simple
substitution of known art-recognized components with predictable results.
Pursifull discloses “an electronically actuable, normally open valve
operatively coupled to controller 46[, which is] configured to open the
PCV/bypass valve during engine cranking.” Pursifull ¶ 32. Under these
conditions, Pursifull teaches that “crankcase 12, if unbreeched, will develop
a vacuum,” whereas, the failure to develop a vacuum indicates a breach of
the crankcase. Id. In other words, Pursifull’s breach detection mechanism
functions by opening the PCV-bypass valve during engine cranking to assess
an expected positive pressure. In contrast, “Carlson discloses reducing an
opening of a crankcase vent tube [through valve 30 and restricted by-pass
40] during engine cranking” (Ans. 25), which the Examiner equates to
“decreasing an opening of the PCV valve to a lowflow position,” as recited
in claim 16. Final Act. 21. Thus, Pursifull’s breach detection functions by
opening the PCV-bypass valve, while Carlson’s crankcase venitaltor
functions by reducing the opening during engine cranking.
The fact that these structures increase or decrease the opening of a
valve does not necessarily support a finding that one of ordinary skill in the
art could have substituted these different structures for one another as a
simple substitution, as the Examiner proposes. To rely on simple
substitution as a rationale supporting an obviousness rejection, the prior art
must support a finding to substitute one known element for another, and the
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results of the substitution and functions of the combination would have been
predictable. See MPEP § 2143(I)(B). Despite the similarity between the
structures in Pursifull and Carlson, the Examiner has not established that one
of ordinary skill would have been motivated to substitute one component for
another because each of these elements were known in the art to perform a
different function. To rely on equivalence as a rationale supporting an
obviousness rejection, the prior art must recognize the equivalency. The
mere fact that the components at issue are functional or mechanical
equivalents is not enough. MPEP § 2144.06 II.
We agree with Appellants that opening and reducing an opening are
opposite actions and “modifying Pursifull with Carlson requires that
Pursifull be modified to the exact opposite valve control than what it
discloses in terms of diagnostics of the PCV system based on the sensed
crankcase pressure.” Reply Br. 3. The Examiner has not adequately shown
and “there is insufficient evidence based on Carlson that a negative pressure
or vacuum would be allowed to develop and a crankcase breach detected if
Pursifull were modified to include the valve of Carlson.” Id. at 4. In fact,
based on Carlson’s teachings, the substitution as proposed by the Examiner
“would lead to the reduction of effective suction during cranking, not the
development of vacuum.” Id.
In addition, we find the Examiner’s reliance on Moren, Miwa,
Schnedier, Hewelt, and Beyer, which would require further modifications to
the Pursifull/Carlson system, ostensibly negates the Examiner’s simple
substitution rationale because those additional modifications would
necessarily require more than a simple substitution of one known element
for another to obtain predictable results. As such, we agree with Appellants
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that the Examiner “relies on much more than a simple valve substitution.”
Appeal Br. 14. Such modifications do not involve a simple substitution of
one part for another equivalent part; instead, they involve hindsight
reconstruction.
Accordingly, we do not sustain the rejection of independent claim 16,
and its dependent claims. For the same reasons, we also do not sustain the
rejection of independent claims 1 and 9, and their dependent claims, which
are rejected based on the same flawed reasoning as claim 16. See Final Act.
5–10, 13–18.
DECISION
The rejection under 35 U.S.C. § 112, second paragraph, is affirmed.
The rejections under 35 U.S.C. § 103(a) are reversed.
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-IN-PART