Ex parte Barnes et al.

Board of Patent Appeals and Interferences

Mar 30, 2000

08283099 (B.P.A.I. Mar. 30, 2000)

1
THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered today (1)
was not written for publication in a law journal and (2) is
not binding precedent of the Board.
Paper No. 25
UNITED STATES PATENT AND TRADEMARK OFFICE
_____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_____________
Ex parte TRAVIS E. BARNES,
and BRIAN E. UHLENHAKE
_____________
Appeal No. 1999-0276
Application 08/283,099
______________
ON BRIEF
_______________
Before CALVERT, COHEN and CRAWFORD, Administrative Patent
Judges.
CALVERT, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal from the final rejection of claims 1 to
6, all the claims in the application.
The subject matter in issue is defined by independent
Appeal No. 1999-0276
Application 08/283,099
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claim 1 as:
Appeal No. 1999-0276
Application 08/283,099
3
1. A method for electronically controlling the timing of
fuel injection to start an internal combustion engine (55),
comprising the steps of:
sensing the temperature of the engine (55) and producing
a temperature signal (T ) indicative of the sensed enginec
temperature;
sensing the engine speed and producing an engine speed
signal (S ) indicative of a magnitude of the sensed enginef
speed; and
receiving the engine speed and temperature signals,
determining the start of injection to cause combustion at
substantially Top Dead Center (TDC) based on the magnitude of
the engine speed and temperature, and producing a timing angle
signal (2) representing when fuel is to be injected relative
to (TDC), wherein the magnitude of the timing angle signal (2)
includes a predetermined ignition delay from the time that
fuel is injected to the start of combustion.
The text of the appealed claims is set forth in Appendix A of
appellants' brief.
The references applied in the final rejection are:
Tsai 4,463,733 Aug.
7, 1984
Igashira et al. (Igashira) 4,722,310 Feb. 2,
1988
Barnes et al. (Barnes) 5,357,912 Oct. 25,
1994
(filed Feb. 26, 1993)
Claims 1 to 6 stand finally rejected under 35 U.S.C.
§ 103(a) as follows:
Appeal No. 1999-0276
Application 08/283,099
Since claim 4 is dependent on claim 1, it seems1
incongruous for the examiner not to have included Barnes in
the rejection of claim 4. However, in the view we take of
this case, this incongruity is of no consequence.
4
(1) Claims 1 to 3, unpatentable over Igashira in view of
Barnes;
(2) Claim 4, unpatentable over Igashira in view of Tsai ;1
(3) Claims 5 and 6, unpatentable over Igashira in view of
Tsai, further in view of Barnes.
First considering the rejection of claim 1, the
examiner's position as stated on pages 2 and 3 of the final
rejection (Paper No. 15) is, in essence, that it would have
been obvious to modify the Igashira injection system to
correct the injection timing based on engine temperature,
asserting that the indirect sensing of viscosity disclosed by
Barnes at col. 4, lines 31 to 33,
is the use of engine temperature, since engine
temperature and its relationship to fuel
temperature, and thus fuel viscosity, is well known
in the art. Also, coolant temperature is clearly
identified in Barnes as an input into fuel quantity
calculations, and the quantity is used to set
injection timing (column 4, lines 28-54).
The examiner further argues on pages 4 and 5 of the answer
Appeal No. 1999-0276
Application 08/283,099
5
that:
It remains the examiner's position that this
indirect sensing of viscosity would have been
obvious to achieve using engine temperature.
Furthermore, it is extremely well known in the
diesel injection art to advance timing as engine
temperatures decrease. For the applicant to assert
that it is not known to advance timing as engine
temperatures are lowered makes no sense.
Combustion, particularly in a diesel engine always
takes longer at lower engine temperatures and this
is particularly true at starting. Igashira (column
1, lines 1-58) clearly teaches using timing data to
first determine a desired timing for injection and
then correcting any errors using the actual ignition
data. This is a refinement of the known systems
which all consider engine temperature.
Initially, we find nothing in the Barnes patent to
support the examiner's statement, supra, that "coolant
temperature is clearly identified in Barnes as an input into
fuel quantity calculations." Barnes does not mention sensing
coolant temperature or engine temperature, and in fact, does
not expressly disclose sensing any temperature in the entire
specification. The only express disclosure of sensing any
temperature in Barnes is the recitation of means for sensing
ambient temperature and of an ambient temperature signal (Ta)
in claims 9 and 10, and an arrow labelled "Ta" in Fig. 1.
With regard to the examiner's assertion, quoted above,
Appeal No. 1999-0276
Application 08/283,099
6
that it would have been obvious, in view of Barnes' disclosure
of indirectly sensing actuating fluid viscosity, to sense
engine temperature, appellants disagree (e.g., on page 12 of
their brief), and the examiner has cited no evidence in
support of his
Appeal No. 1999-0276
Application 08/283,099
7
assertion. He also has not cited any evidence in support of
his statement that "the known systems . . . all consider
engine temperature." It is fundamental that a rejection under
§ 103 must rest on a factual basis, which the PTO has the duty
of supplying. The PTO may not, because it may doubt the
invention is patentable, resort to speculation, unfounded
assumptions or hindsight reconstruction to supply deficiencies
in its factual basis. In re Warner, 379 F.2d 1011, 1017, 154
USPQ 173, 178 (CCPA 1967), cert. denied, 389 U.S. 1057 (1968),
quoted in In re GPAC, Inc., 57 F.3d 1573, 1582, 35 USPQ2d
1116, 1123 (Fed. Cir. 1995). Here, the examiner has cited
Igashira and Barnes as evidence of obviousness in rejecting
claim 1, but we find no factual basis in those references to
support the conclusion that the step of sensing the
temperature of the engine and producing a temperature signal
indicative of the sensed engine temperature, as recited in the
claim, would have been obvious to one of ordinary skill in the
art; any such conclusion would appear to be based on improper
hindsight, derived from appellants' own disclosure.
Accordingly, we will not sustain the rejection of claim
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Application 08/283,099
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1.
The rejection of dependent claims 2 to 6 likewise will not be
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Application 08/283,099
9
sustained; as to claims 4 to 6, the additional reference,
Tsai, does not supply the above-discussed evidence which is
lacking in Igashira and Barnes.
Conclusion
The examiner's decision to reject claims 1 to 6 is
reversed.
REVERSED

IAN A. CALVERT )
Administrative Patent Judge)
)
) BOARD OF
PATENT
) APPEALS
AND
IRWIN CHARLES COHEN )
INTERFERENCES
Administrative Patent Judge)
)
)
)
MURRIEL E. CRAWFORD )
Appeal No. 1999-0276
Application 08/283,099
10
Administrative Patent Judge)
Appeal No. 1999-0276
Application 08/283,099
11
David M. Masterson
Caterpillar Inc.
Patent Dept. AB6490
100 N E Adams Street
Peoria, IL 61629-6490
IAC/dal