Ex Parte Crary

Board of Patent Appeals and Interferences

Apr 28, 2011

11972927 (B.P.A.I. Apr. 28, 2011)

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.
11/972,927 01/11/2008 Lynwood F. Crary 705 [2681.3271.002] 7624
23399 7590 04/28/2011
REISING ETHINGTON P.C.
P O BOX 4390
TROY, MI 48099-4390
EXAMINER
BACON, ANTHONY L
ART UNIT PAPER NUMBER
3747
MAIL DATE DELIVERY MODE
04/28/2011 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte LYNWOOD F. CRARY1
____________________

Appeal 2010-010043
Application 11/972,927
Technology Center 3700
____________________

Before JEFFREY B. ROBERTSON, DANIEL S. SONG, and
EDWARD A. BROWN, Administrative Patent Judges.

BROWN, Administrative Patent Judge.

DECISION ON APPEAL

1 The real party in interest is TI Group Automotive Systems, L.L.C. (App.
Br. 5).
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The Appellant appeals under 35 U.S.C. § 134(a) from a Final
Rejection of claims 1-12 and 14-20 (App. Br. 5). We have jurisdiction over
this appeal under 35 U.S.C. §§ 6(b) and 134(a).
We AFFIRM-IN-PART.
The claimed invention is directed to an apparatus that provides
pressurized fuel for delivery to a fuel injected engine, a fuel delivery module
for a returnless fuel system for a fuel injected engine, and a method of
relieving hot soak fuel pressure in a fuel rail of a fuel injected internal
combustion engine (see, e.g., claims 1, 9 and 17). Illustrative Figure 1 is
reproduced below.

Figure 1 above shows a schematic view of an embodiment of an
apparatus 10 for supplying pressurized fuel to a fuel injected engine 12
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(Spec. ¶¶ [0010], [0016]). The apparatus 10 includes a fuel pump 26 that
supplies pressurized fuel from a fuel reservoir 14; a check valve 46 that
prevents backflow of the fuel toward the fuel pump 26; and a bypass path 64
(Spec. ¶¶ [0018], [0019], [0022] and [0025]). The bypass path 64 includes a
fuel pressure control apparatus 66 with a pressure control valve 72 biased by
a spring (192) (see FIG. 5) (Spec. ¶¶ [0025], [0027] and [0028]). When the
fuel pump 26 is operating, fuel does not flow through the valve 72 (Spec.
¶ [0031]). When the fuel pump 26 is not operating, the valve 72 may open
to allow fuel to flow through it, so as to relieve fuel pressure downstream of
the check valve 46 and at the engine 12 to a level less than the system
operating pressure and greater than atmospheric pressure (Spec. ¶ [0031]).
Independent claim 1 is representative of the appealed claims and reads
as follows (App. Br. 51, Claims App'x., emphasis added):
1. An apparatus to provide pressurized fuel for
delivery to a fuel injected engine, comprising:
a fuel pump to pressurize fuel to a system
operating pressure;
a check valve in downstream fluid communication
with the fuel pump to prevent backflow of fuel from the
engine through the check valve toward the fuel pump;
and
a fuel pressure control apparatus in parallel fluid
communication across the check valve and in
downstream fluid communication with the fuel pump
upstream of the check valve, wherein the control
apparatus includes a pressure control valve constructed
and arranged to be yieldably biased by a spring to close
to prevent flow of fuel therethrough when the fuel pump
is operating and upon deactivation of the fuel pump so
that it is not operating to open to permit flow of fuel
therethrough so as to relieve fuel pressure downstream of
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the check valve and at the engine to a level less than the
system operating pressure and greater than atmospheric
pressure.

THE REJECTIONS
The following Examiner’s rejections are before us for review:
1. Claims 1, 9 and 17 are rejected under 35 U.S.C. § 102(e) as
anticipated by, or in the alternative under 35 U.S.C. § 103(a) as unpatentable
over, Schelhas (US 2006/0225711, published Oct. 12, 2006).
2. The following claims are rejected under 35 U.S.C. § 103(a) as
unpatentable over the noted references:
A. Claims 1, 9 and 17 over Schelhas in view of Crary (US
7,188,610, issued Mar. 13, 2007).
B. Claims 2-4, 7 and 8 over Schelhas in view of Mason (US
2007/0227510, published Oct. 4, 2007).
C. Claims 5, 6, 14, 19 and 20 over Schelhas in view of
Robinson (US 6,039,030, issued Mar. 21, 2000).
D. Claims 10-12, 15 and 16 over Schelhas in view of
Robinson and Mason.
E. Claim 18 over Schelhas in view of Crary and Mason.

ISSUES
The following issues have been raised in the present appeal.
1. Whether the Examiner correctly determined that Schelhas alone
discloses, or rendered obvious, the respective apparatus, fuel delivery
module and method of claims 1, 9 and 17, in which the pressure control
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valve or bypass path is opened to relieve fuel pressure downstream of the
check valve and at the engine to a level below the system operating pressure
upon deactivation of the fuel pump.
2. Whether the Examiner erred in concluding that the combination
of Schelhas and Crary rendered obvious the respective apparatus, fuel
delivery module and method of claims 1, 9 and 17.
3. Whether the Examiner erred in concluding that the combination
of Schelhas, Crary and Mason rendered obvious the method of claim 18.

FINDINGS OF FACT
The record supports the following findings of fact (FF) by a
preponderance of the evidence.
1. Schelhas discloses a device for delivering fuel from a tank to an
internal combustion engine (Abstract). Figure 1 of Schelhas is
reproduced below.

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Figure 1 of Schelhas above illustrates a device for delivering
fuel to an internal combustion engine 13 that includes a
reservoir 4; a fuel-supply pump 7 operable to deliver
pressurized fuel from the reservoir 4 to a fuel rail 12; a check
valve 21; and a pressure control valve 22 (¶¶ [0011]-[0013],
[0021]).
2. In Schelhas, the pressure control valve 22 includes a spring
element 35 that resiliently biases a valve member 29 to close
when the fuel-supply pump 7 is operating (¶¶ [0023], [0032]).
3. Schelhas describes that when the fuel-supply pump 7 is
switched off, the pressure control valve 22 opens if fuel
pressure acting on the valve member 29 exceeds the spring
force of the spring element 35 (¶ [0034]).
4. Schelhas describes that the spring element 35 is designed so
that the pressure control valve 22 opens when the pressure in
the fuel rail 12 or the pressure line 10 downstream of the check
valve 21 reaches or exceeds a "predetermined opening
pressure," which is independent of the pressure generated by
the fuel-supply pump (¶¶ [0032], [0035]).
5. Schelhas describes that a pressure increase in the fuel rail 12 or
pressure line 10 downstream of check valve 21 can occur in a
hot parking phase (¶ [0036]).
6. Crary describes a no-return loop fuel system including a valve
having a closure biasing force that can be specified such that
fuel pressure maintained in a fuel rail when the engine is off is
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equal to or higher than idle operating pressure (Abstract; col. 6,
ll. 43-49).
7. Crary describes that, preferably, as the engine speed increases,
the required fuel pressure within the fuel rail increases, and
"[t]his increase in pressure is especially true for turbo-charged
engines where the rail pressure at wide open throttle conditions
is typically approximately twice the required rail pressure at
idle." (Col. 6, ll. 52-57).
8. Crary describes that when the engine is shut down, the pressure
relief valve remains open until fuel pressure exerted on the rail-
side port equals or is slightly less than the closure biasing force
(col. 7, ll. 10-18).

PRINCIPLES OF LAW
"A claim is anticipated only if each and every element as set forth in
the claim is found, either expressly or inherently described, in a single prior
art reference." Verdegaal Bros., Inc. v. Union Oil Co. of Cal., 814 F.2d 628,
631 (Fed. Cir. 1987).
35 U.S.C. Section 103(a) 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 Court noted that "[t]o facilitate review, this analysis
should be made explicit." Id. at 418 (citing In re Kahn, 441 F.3d 977, 988
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(Fed. Cir. 2006) ("[R]ejections on obviousness grounds cannot be sustained
by mere conclusory statements; instead, there must be some articulated
reasoning with some rational underpinning to support the legal conclusion of
obviousness.")).

ANALYSIS
Rejection of claims 1, 9 and 17 as anticipated by, or obvious over, Schelhas
As to claim 1, the Examiner determines that Schelhas discloses a fuel-
supply pump 7; a check valve 21 in downstream fluid communication with
the fuel-supply pump 7; and a pressure control valve 22 (i.e., fuel pressure
control apparatus) in downstream fluid communication with the fuel-supply
pump 7 upstream of the check valve 21 (Ans. 4; FF 1). Regarding the
limitation "when … the fuel pump … is not operating to open to permit flow
of fuel therethrough so as to relieve fuel pressure downstream of the check
valve and at the engine to a level less than the system operating pressure,"
the Examiner states that in Schelhas, in order to protect the pressure line and
fuel rail from impermissibly high pressure, the bias of the spring element 35
of the pressure control valve 22 can be "substantially no greater than the
system operating pressure of the pump" (Ans. 5; FF 1-4). The Examiner
states that the 'worst-case scenario' would be for the spring element to have a
stiffness substantially equal to the operating pressure (Ans. 5). The
Examiner also presents the alternative position that it would have been
obvious to one skilled in the art to provide a spring element having a bias
"no greater than the system operating pressure" in order to prevent damage
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to the system from excessive pressure, which is the purpose of Schelhas
(Ans. 5-6).
The Appellant argues that, in Schelhas, when the fuel-supply pump
shuts down, the pressure control valve normally remains closed to maintain
the system operating pressure, and will open only if the pressure in the fuel
rail increases to significantly above that pressure (e.g., during hot soak
conditions) to reduce the increased pressure, and it will then again close at a
pressure greater than the system operating pressure (App. Br. 20-24; Reply
Br. 2-6). Hence, the Appellant argues that Schelhas does not disclose or
suggest that the pressure control valve opens to relieve fuel pressure in the
system to below the system operating pressure upon shutdown of the fuel-
supply pump (Reply Br. 2-6).
With respect to anticipation, we agree with the Appellant that the
Examiner has not established that each limitation of claim 1 is expressly or
inherently disclosed in Schelhas. In this regard, Schelhas describes that the
spring element is designed so that the pressure control valve opens to relieve
pressure in the fuel rail or pressure line downstream of the check valve when
the pressure reaches or exceeds a "predetermined opening pressure" (FF 4),
but does not describe that the predetermined opening pressure is lower than
the system operating pressure. We also find the Examiner's contention that
the "worst-case scenario" would be for the spring element in Schelhas to
have a stiffness that is substantially equal to the operating pressure (Ans. 5)
is insufficient to establish inherency of the claimed pressure control valve.
Rather, Schelhas must necessarily meet the claimed limitations in order to
establish inherency. See In re Robertson, 169 F.3d 743, 745 (Fed. Cir. 1999)
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("Inherency, however, may not be established by probabilities or
possibilities. The mere fact that a certain thing may result from a given set
of circumstances is not sufficient."). Hence, we do not sustain the
anticipation rejection of claim 1.
With respect to obviousness, we also agree with the Appellant that the
Examiner did not establish a reason based on the evidence in the record for
implementing the pressure control valve in Schelhas to open to relieve fuel
pressure in the system to below the system operating pressure upon
shutdown of the fuel-supply pump. The Examiner contends that it would
have been obvious to provide a spring in the Schelhas pressure control valve
having a bias "no greater than the system operating pressure" (Ans. 5-6).
However, the claim requires that the pressure control valve relieves pressure
to a level less than the system operating pressure, not to a level that may be
as high as the system operating pressure. Hence, the Examiner has not
articulated a rationale for implementing the pressure control valve in
Schelhas so that it meets all of the claimed limitations. As such, the
Examiner's articulated reasoning appears to be based on hindsight and is
insufficient to support the obviousness rejection. See KSR, 550 U.S. at 418.
Therefore, we also do not sustain the obviousness rejection of claim 1.
Both independent claims 9 and 17 similarly require opening of the
pressure control valve or bypass path at a pressure below the system
operating pressure so as to relieve pressure downstream of the check valve
and at the engine to a level below the system operating pressure (App. Br.
54-55, 58, Claims App'x.). Hence, for the reasons discussed supra, we do
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not sustain the Examiner's anticipation and obviousness rejections of claims
9 and 17 based solely on Schelhas (Ans. 6-7).

Rejection of claims 1, 9 and 17 as obvious over Schelhas and Crary
The Examiner also rejects claims 1, 9 and 17 as obvious over the
combination of Schelhas and Crary (Ans. 8). The Examiner contends that
Crary discloses a fuel system in which a pressure regulating device relieves
fuel pressure to the system operating pressure or below, and concludes that it
would have been obvious to modify the spring element of Schelhas to have
an opening pressure below the system operating pressure because Schelhas
discloses relieving excess fuel pressure by overcoming a spring bias in a
relief valve, and Crary teaches that it is desirable to relieve pressure to below
the system operating pressure (Ans. 8).
As to claim 1, the Appellant argues that Crary does not teach a fuel
pressure control apparatus in parallel communication across a check valve
and in fluid communication with a fuel pump upstream of the check valve
(App. Br. 32). However, we agree with the Examiner that Schelhas
discloses these limitations (Ans. 4). With respect to Schelhas, the Appellant
argues that the conduit 23 of the pressure control valve 22 communicates
with the fuel-supply pump 7 only downstream of the check valve 21 (App.
Br. 20). In response, the Examiner contends that the conduit 23 is located
downstream of the fuel-supply pump and also is in communication with the
fuel-supply pump upstream of the check valve (Ans. 20).
We note that claim 1 recites the directional terms "downstream" and
"upstream," but does not correlate these flow directions to whether the
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engine is turned on or off. However, we understand that claim 1 is directed
to an embodiment of the apparatus as depicted in Figure 1, in which fuel can
flow in different directions depending on whether the engine is operating or
not (App. Br. 6-7; Spec. ¶¶ [0025], [0031]). In Schelhas also, fuel can flow
in different directions, for example, into the conduit 23 when the fuel-supply
pump 7 is on, or in the reverse direction from the conduit 23 when the fuel-
supply pump 7 is switched off (¶¶ [0032], [0034]). Fuel that flows from the
conduit 23 to the fuel-supply pump 7 originated from the fuel-supply pump
7, and so the conduit 23 can reasonably be considered downstream of the
fuel-supply pump 7 with respect to flow direction, as well as upstream of the
check valve 21. Hence, we find no error in the Examiner's position that the
conduit 23 is in communication with the fuel-supply pump upstream of the
check valve in Schelhas.
The Appellant also argues that Crary discloses a different non-return
fuel system construction and concept, and does not disclose relieving fuel
pressure to a level less than the system operating pressure and above
atmospheric pressure (App. Br. 32-33; Reply Br. 8). The Appellant further
argues that combining the teachings of Crary with Schelhas would probably
make the pressure control valve 22 of Schelhas inoperative (App. Br. 33).
We do not find these arguments persuasive. Firstly, the Examiner
does not propose physically incorporating the Crary pressure regulating
device into the Schelhas pressure control valve 22, but rather, merely
proposes modifying the spring element of Schelhas to bias the valve member
so that it opens and maintains pressure at a level less than the system
operating pressure (Ans. 25-26). The Examiner also takes the position that
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the proposed modification in Schelhas could be easily accomplished by one
having ordinary skill in the art without destroying Schelhas (Ans. 26). We
agree. Schelhas discloses that the opening pressure of the pressure control
valve 22 is independent of the pressure generated by the fuel-supply pump 7
(FF 4). As such, modifying the spring bias as proposed by the Examiner
would appear to still allow the valve to remain closed when the fuel-supply
pump is on, while also allowing the valve to open at the desired pressure
when the fuel-supply pump is switched off. The Appellant has not provided
any persuasive evidence to show that this modification would somehow
render Schelhas inoperative. Thus, we find no reversible error in the
Examiner's position.
We also find that the Examiner has stated a rational reason for
modifying the spring element of Schelhas in view of Crary to have an
opening pressure below the system operating pressure; that is, Schelhas
discloses relieving excess fuel pressure by overcoming a predetermined
spring bias in a pressure relief valve, and Crary teaches the desirability of
relieving fuel pressure to a level below the system operating pressure in a
no-return loop fuel system (FF 6-8). Hence, we sustain the obviousness
rejection of claim 1 over the combination of Schelhas and Crary.
Independent claim 9 is similar to claim 1 discussed supra, but is
directed to a fuel delivery module. The Appellant relies on the same
arguments made with respect to claim 1 for patentability of claim 9 (App.
Br. 34; Reply Br. 8-9). Hence, we sustain the obviousness rejection of claim
9 for substantially the same reasons set forth relative to claim 1.
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As to independent claim 17, the Appellant argues that neither
Schelhas nor Crary explicitly states any method or method steps, and also
relies on arguments similar to those made with respect to claim 1 for
patentability of claim 17 (App. Br. 34-37; Reply Br. 8-9). We do not find
these arguments persuasive. Schelhas describes the manner of operation of
the device when the fuel-supply pump 7 is switched on and off. For similar
reasons as those discussed supra with respect to claim 1, we agree with the
Examiner that it would have been obvious to modify Schelhas in view of
Crary to perform each of the method steps recited in claim 17 including,
inter alia, opening the pressure control valve at a pressure below the system
operating pressure when the fuel-supply pump is switched off, and closing
the valve when the engine is operating. Hence, we sustain the obviousness
rejection of claim 17 over the combination of Schelhas and Crary.

Rejection of claims 5, 6, 14, 19 and 20 as obvious over the combination of
Schelhas and Robinson
Independent claim 5 is directed to an apparatus comprising a fuel
pressure control apparatus including, inter alia, a flow through pressure
regulator that, when the fuel pump is deactivated, opens to relieve pressure
downstream of the check valve and at the engine to a level below the system
operating pressure (App. Br. 52-53, Claims App'x.). Independent claims 6
and 14 are directed to an apparatus and a fuel delivery module, respectively,
comprising a fuel pressure control apparatus including, inter alia, a standard
type pressure regulator that provides this same pressure relief function (App.
Br. 53-54, 56-57, Claims App'x.). The Examiner relies on Robinson for the
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teaching of a flow through pressure regulator and a standard type pressure
regulator (Ans. 11-17). However, the Examiner's application of Robinson
does not remedy the deficiencies of the Examiner’s reliance on Schelhas
discussed supra. Thus, we reverse the obviousness rejection of claims 5, 6
and 14, as well as claims 19 and 20, which depend ultimately from claim 17.

Rejection of claim 18 as obvious over the combination of Schelhas, Crary
and Mason
The Examiner relies on Mason for the teaching of a pressure control
valve 50 (i.e., pre-filter pressure control valve) having an outlet in upstream
fluid communication with a fuel pump 22 (Ans. 8, 9 and 19; Mason FIG. 1,
¶ [0014]). The Examiner concludes that it would have been obvious to
include the Mason pressure control valve in the Schelhas device with the
valve inlet downstream of the fuel pump and upstream of the check valve,
and the valve outlet in upstream fluid communication with the fuel pump,
because it is desirable to return excess fuel to the tank and prevent excessive
pressure in the fuel system (Ans. 8-9).
The Appellant argues that the Mason pressure control valve 50 is not
in upstream fluid communication with any check valve, and serves the
different purpose of providing overpressure relief of the fuel pump at a
relatively high fuel pump pressure (Reply Br. 9-10, 21 and 22). We do not
find these arguments convincing. Firstly, the Examiner has articulated a
rational reason to use the Mason pressure control valve in the Schelhas
device, that is, to prevent excessive pressure in the fuel line downstream of
the fuel-supply pump, and to return excess fuel to the fuel tank. See KSR,
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550 U.S. at 418. We also agree with the Examiner that it would have been
obvious to locate the inlet of the pressure control valve upstream of the
check valve (Ans. 9), as this would appear to prevent excessive pressure in
the fuel line between the check valve and fuel rail caused by operation of the
fuel pump. Hence, we sustain the obviousness rejection of claim 18 over the
combination of Schelhas, Crary and Mason.

Other obviousness rejections
With respect to the following rejections under 35 U.S.C. § 103(a):
claims 2-4, 7 and 8 over the combination of Schelhas and Mason (see Ans.
8-11; Reply Br. 9-12); and claims 10-12, 15 and 16 over the combination of
Schelhas, Robinson and Mason (see Ans. 17-18; Reply Br. 19-21), the
Examiner relies on the secondary and tertiary reference for disclosing further
limitations recited in the respective dependent claims. However, the
Examiner's application of these additional references does not remedy the
deficiencies of the Examiner’s reliance on Schelhas discussed supra relative
to independent claims 1 and/or 9. Thus, we reverse both of these
obviousness rejections.

CONCLUSIONS
1. The Examiner erred in determining that Schelhas alone
discloses, or rendered obvious, the respective apparatus, fuel delivery
module and method of claims 1, 9 and 17, in which the pressure control
valve or bypass path is opened to relieve fuel pressure downstream of the
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check valve and at the engine to a level below the system operating pressure
upon deactivation of the fuel pump.
2. The Examiner did not err in concluding that the combination of
Schelhas and Crary rendered obvious the respective apparatus, fuel delivery
module and method of claims 1, 9 and 17.
3. The Examiner did not err in concluding that the combination of
Schelhas, Crary and Mason rendered obvious the method of claim 18.

DECISION
1. The rejection of claims 1, 9 and 17 as anticipated by, or obvious
over, Schelhas is reversed.
2. The rejection of claims 1, 9 and 17 as obvious over Schelhas in
view of Crary is affirmed.
3. The rejection of claims 2-4, 7 and 8 as obvious over Schelhas in
view of Mason is reversed.
4. The rejection of claims 5, 6, 14, 19 and 20 as obvious over
Schelhas in view of Robinson is reversed.
5. The rejection of claims 10-12, 15 and 16 as obvious over
Schelhas in view of Robinson and Mason is reversed.
6. The rejection of claim 18 as obvious over Schelhas in view of
Crary and Mason 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).

AFFIRMED-IN-PART
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