Ex parte HAMMARBERG

Board of Patent Appeals and Interferences

Apr 30, 1998

08391234 (B.P.A.I. Apr. 30, 1998)

Application for patent filed February 21, 1995.1
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(2) is not binding precedent of the Board.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. 17
UNITED STATES PATENT AND TRADEMARK OFFICE
__________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________
Ex parte GORAN HAMMARBERG
__________
Appeal No. 97-2806
Application 08/391,2341
__________
ON BRIEF
__________
Before HAIRSTON, KRASS, and JERRY SMITH, Administrative Patent
Judges.
KRASS, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal from the final rejection of
claims 9 through 21, all of the claims pending in the
application.
Appeal No. 97-2806
Application No. 08/391,234
2
The invention pertains to sensors for detecting the degree
of ionization in a combustion chamber in combustion engines with
direct fuel injection and to combustion engines equipped with
such sensors. More particularly, rather than separately locating
the sensor in the combustion chamber or incorporating the sensor
in other engine components, the invention seeks to obviate the
creation of new holes in the combustion chamber and to minimize
costs by locating the sensor in the same duct as the fuel
injector.
Representative independent claim 9 is reproduced as follows:
9. A sensor for detecting a degree of ionization in a
combustion chamber of a combustion engine, which combustion
chamber is partly bounded by a cylinder head having a duct which
opens into the chamber and in which a fuel injector for injecting
fuel directly into the combustion chamber is arranged, the sensor
comprising: a substantially sleeve-shaped electrode arranged in
the duct surrounding the fuel injector, the electrode being in
communication with the combustion chamber and means connected to
the electrode for detecting the degree of ionization in the
combustion chamber.
The examiner relies on the following references:
Kizler et al. 4,359,893 Nov. 23, 1982
(Kizler)
Suzuki et al. 4,461,170 Jul. 24, 1984
(Suzuki)
Bullis et al. 4,463,729 Aug. 7, 1984
(Bullis)
Appeal No. 97-2806
Application No. 08/391,234
3
Claims 9 through 21 stand rejected under 35 U.S.C. § 103.
As evidence of obviousness, the examiner cites Kizler, Suzuki and
Bullis.
Reference is made to the briefs and answers for the
respective positions of appellant and the examiner.
OPINION
We reverse.
The initial burden is on the examiner to establish a case of
prima facie obviousness. In our view, the examiner has not
presented such a case.
The examiner contends that Kizler discloses all the subject
matter of instant claims 9 and 11 through 21 but for the
electrode surrounding a fuel injector. Instead, Kizler discloses
a spark plug. The examiner then relies on Suzuki for the
teaching of surrounding a fuel injector with a combustion
condition detector even though the examiner recognizes that
Suzuki employs an optical ion detector. Finally, the examiner
cites Bullis for the teaching of surrounding a fuel injector with
a start of combustion (SOC) sensor. Bullis does recognize that
the sensor may be for sensing ionization accompanying the onset
of combustion [column 5, lines 58-59 of Bullis].
Appeal No. 97-2806
Application No. 08/391,234
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The examiner then concludes that it would have been obvious,
within the meaning of 35 U.S.C. § 103, to modify Kizler by
surrounding a fuel injector, rather than a spark plug, with a
combustion detector as taught by Suzuki, motivated by Bullis’
teaching of a substantially sleeve-shaped electrode serving as an
ionization detector being incorporated in the structure of a fuel
injector [see page 4 of the principal answer].
First, independent claims 9 and 20 require a fuel injector
which injects fuel into the combustion chamber and around which
the sleeve-shaped electrode is arranged. Although the examiner
contends that incorporation of an ionization sensor with either a
spark plug or a fuel injector is viewed as “functionally
equivalent alternatives,” [page 5 of the principal answer], the
examiner has provided no evidence to support this allegation. As
such, for whatever Kizler teaches about ionization detectors and
sleeve-shaped electrodes, Kizler teaches it in regard to
surrounding a spark plug, not a fuel injector.
Second, Suzuki clearly shows a fuel injector but there is no
ionization sensor taught therein. Instead, Suzuki is interested
in detecting a combustion flame and transmitting the light from
the flame via a light path to a photoelectric transducer in order
to determine an actual time of combustion. Essentially, then,
Appeal No. 97-2806
Application No. 08/391,234
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the only relevance Suzuki appears to have to the instant claimed
invention is in the teaching of a fuel injector. Suzuki does not
teach or suggest the claimed type of sensor, the claimed
electrode or the electrode surrounding the fuel injector.
Accordingly, the examiner’s rationale for substituting the fuel
injector of Suzuki for the spark plug of Kizler appears to have
been motivated merely by appellant’s disclosure rather than by
anything suggested by the applied references.
Further, the requirement of the instant claims that the
electrode surrounds the fuel injector makes it clear that the
sensor, which comprises the sleeve-shaped electrode arranged in
the duct surrounding the fuel injector, is separate from the fuel
injector itself. Yet, while the examiner relies on Bullis for
the teaching of surrounding the fuel injector with a sensor, it
is clear from Bullis that either the sensor and fuel injector are
entirely separate units located apart from each other [See
Figures 1 and 6, for example] or, in Bullis’ alternative
embodiment [See column 15, lines 52-55], the sensor is
“incorporated” in, i.e., made integral with, the structure of the
injector. Thus, we find no teaching or suggestion in the applied
references of providing distinct fuel injector and sensor units
Appeal No. 97-2806
Application No. 08/391,234
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within the same duct by surrounding the fuel injector with the
sensor, as claimed.
While the examiner has certainly found bits and pieces of
the instant claimed subject matter taught by the prior art, as
represented by the applied references, we find ourselves in
agreement with appellant that the only way the artisan would have
reconstructed the instant claimed invention from the teachings of
the cited references would have been by “making modifications to
the prior art structure using appellant’s claims as a blueprint”
[page 3 of the reply brief]. Basing a conclusion of obviousness
on such hindsight is clearly improper under 35 U.S.C. § 103.
The examiner’s decision rejecting claims 9 through 21 under
35 U.S.C. § 103 is reversed.
REVERSED
Kenneth W. Hairston )
Administrative Patent Judge )
)
)
)
Errol A. Krass ) BOARD OF PATENT
Administrative Patent Judge ) APPEALS AND
) INTERFERENCES
)
)
Jerry Smith )
Administrative Patent Judge )

Appeal No. 97-2806
Application No. 08/391,234
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