Ex Parte Inuzuka et al

Patent Trial and Appeal Board

Dec 13, 2016

13454344 (P.T.A.B. Dec. 13, 2016)

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.
13/454,344 04/24/2012 Hiroyuki Inuzuka MNL-2018-2890 4635
23117 7590 12/15/2016
NIXON & VANDERHYE, PC
901 NORTH GLEBE ROAD, 11TH FLOOR
ARLINGTON, VA 22203
EXAMINER
MOUBRY, JAMES G
ART UNIT PAPER NUMBER
3747
NOTIFICATION DATE DELIVERY MODE
12/15/2016 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):
PTOMAIL@nixonvan.com
pair_nixon @ firsttofile. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte HIROYUKIINUZUKA and MAKOTO MIWA
Appeal 2014-009313
Application 13/454,344
Technology Center 3700
Before JENNIFER D. BAHR, EDWARD A. BROWN, and
SEAN P. O’HANLON, Administrative Patent Judges.
BAHR, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Hiroyuki Inuzuka and Makoto Miwa (Appellants) appeal under
35 U.S.C. § 134(a) from the Examiner’s decision rejecting claims 3—22. We
have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART, and designate the affirmance as NEW
GROUNDS OF REJECTION pursuant to 37 C.F.R. § 41.50(b).
Appeal 2014-009313
Application 13/454,344
THE CLAIMED SUBJECT MATTER
Claim 3, reproduced below, is illustrative of the claimed subject
matter.
3. A fuel-property reforming apparatus for an internal
combustion engine, comprising:
a reforming-fuel injector injecting a reforming-fuel into a
medium fluid which will be supplied to an intake pipe of the
internal combustion engine;
a fuel reforming portion reforming the fuel in the medium
fluid; and
a reforming controller establishing an injection quantity of
the reforming-fuel according to a driving condition of the
internal combustion engine, wherein:
the reforming controller varies an injection cycle of the
reforming-fuel according to a subject quantity which represents
at least one of an injection quantity of the reforming-fuel and
a flow rate of the medium fluid.
REJECTIONS
I. Claims 3—7, 11—17, 21, and 22 stand rejected under 35 U.S.C.
§ 102(b) as anticipated by Sakurai (JP 2007-113420 A, pub. May
10, 2007).1
II. Claims 8—10 and 18—20 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Sakurai and Kerns (US 2011/0132306 Al, pub.
June 9, 2011).
1 An English-language translation of Sakurai was entered into the electronic
record of the present application on May 8, 2013. Any references to
paragraphs of Sakurai in this opinion are to this English-language
translation.
2
Appeal 2014-009313
Application 13/454,344
DISCUSSION
Rejection I
Claims 3 and 13:
Independent claim 3 recites an apparatus comprising, in pertinent part,
a reforming controller that establishes “an injection quantity of the
reforming-fuel according to a driving condition of the internal combustion
engine” and “varies an injection cycle of the reforming-fuel according to a
subject quantity which represents at least one of an injection quantity of the
reforming-fuel and a flow rate of the medium fluid.” Appeal Br. 16 (Claims
App.) (emphasis added). Independent claim 13 recites an electronic control
unit comprising a substantially similar limitation, namely, “a computer
processor system configured to[] establish an injection quantity of the
reforming-fuel. . . and vary an injection cycle of the reforming-fuel
according to a subject quantity which represents an injection quantity of the
reforming-fuel and/or a flow rate of the medium fluid.” Id. at 18 (Claims
App.) (emphasis added). Appellants argue that Sakurai fails to disclose the
reforming controller varying an injection cycle of the reforming-fuel as
called for in claims 3 and 13. Appeal Br. 10, 11.
The Examiner finds that Sakurai discloses “a reforming controller
(50) that facilitates establishing an injection quantity of the reforming-fuel
according to a driving condition of the internal combustion engine.” Ans. 2
(citing Sakurai H 31, 32). The Examiner finds further that “Sakurai
discloses that the reforming controller varies the injection quantity of the
reforming-fuel according to a subject quantity which represents at least one
of an injection quantity of the fuel reforming portion and a flow rate of the
medium fluid.” Id. (citing Sakurai 132). More specifically, the Examiner
3
Appeal 2014-009313
Application 13/454,344
finds that “Sakurai discloses that the controller (ECU (50)) switches (varies)
the injection quantity of the reforming-fuel according to a subject quantity
which represents at least one of an injection quantity of the fuel reforming
portion.” Id. at 6 (citing Sakurai 32, 34); see also id. at 3. According to
the Examiner, “‘switching’ in Sakurai represents a variation of the injection
cycle as provided in claim 3.” Id. at 6. The Examiner explains that
Sakurai’s “ECU (50) disables and enables injection of reformed gas” and
that “[ujpon this enablement of the reformed gas injection cycle, injection
increases from zero-flow (off) to some final injection flow rate (on).” Id.
(citing Sakurai 132,11. 1—3; 134,11. 1—3). The Examiner interprets “[tjhis
increase to the final injection flow rate” as “the reforming controller (34)
var[ying] an injection cycle,” as called for in claims 3 and 13. Id.
In interpreting claim language, we apply the broadest reasonable
meaning of the words in their ordinary usage as they would be understood
by one of ordinary skill in the art, taking into account whatever
enlightenment by way of definitions or otherwise that may be afforded by
the written description. See In re Morris, 127 F.3d 1048, 1054 (Fed. Cir.
1997). See also In re Am. Acad. ofSci. Tech. Ctr., 367 F.3d 1359, 1364
(Fed. Cir. 2004).
[Ujnder the broadest reasonable interpretation, the Board’s
construction “cannot be divorced from the specification and the
record evidence,” In reNTP, Inc., 654 F.3d 1279, 1288 (Fed. Cir.
2011), and “must be consistent with the one that those skilled in
the art would reach,” In re Cortright, 165 F.3d 1353, 1358 (Fed.
Cir. 1999). A construction that is “unreasonably broad” and
which does not “reasonably reflect the plain language and
disclosure” will not pass muster.
4
Appeal 2014-009313
Application 13/454,344
Microsoft Corp. v. Proxyconn, Inc., 789 F.3d 1292, 1298 (Fed. Cir. 2015)
(quoting In re Suitco Surface, Inc., 603 F.3d 1255, 1260 (Fed. Cir. 2010)).
Appellants’ Specification expressly defines “injection cycle” as “a
time period from when the reforming-fuel injector 26 injects the reforming-
fuel until when the reforming-fuel injector 26 injects the reforming fuel
successively again.” Spec. 6,11. 31—33; see also Reply Br. 3 (emphasizing
same). Appellants’ definition of “injection cycle” indicates that Appellants
use the term “cycle” in accordance with its ordinary and customary meaning
of “a recurring period of time in which certain events or phenomena occur
and reach completion or repeat themselves in a regular sequence.”2
Appellants contend, and we agree, that “[mjerely disabling and
enabling injection of reformed gas to thereby turn off (zero flow) or turn on
(non-zero flow) the injection of reformed gas does not disclose varying a
time period from when the reforming-fuel injector injects the reforming-fuel
until when the reforming-fuel injector injects the reforming fuel successively
again.” Reply Br. 3. Construing “injection cycle” consistent with the
definition in Appellants’ Specification and the aforementioned ordinary and
customary definition of “cycle,” there is no “injection cycle” during the
period in which fuel injection by Sakurai’s reforming-fuel injector (second
injector 40) is disabled or suspended.3 Consequently, switching from
2 Cycle. (2014). In Collins English Dictionary. Retrieved from
http://search.credoreference.com/content/entry/hcengdict/cycle/0 (last
referenced December 5, 2016).
3 When abnormalities are detected in Sakurai’s fuel reforming means based
on outputs from temperature sensor 54, a carbon monoxide sensor, or a
hydrogen sensor, fuel injection by the reforming-fuel injector (second
injector 40) is suspended, and any unmodified fuel and any mixed gas
5
Appeal 2014-009313
Application 13/454,344
disabling fuel injection by second injector 40 to enabling fuel injection by
second injector 40, as described in paragraphs 34 and 39 of Sakurai, does not
constitute the reforming controller or computer processor system “var[ying]
an injection cycle,” as called for in claims 3 and 13. Thus, the Examiner
fails to establish, by a preponderance of the evidence, that Sakurai discloses
this feature of claims 3 and 13.
Nevertheless, we find that Sakurai discloses the subject matter of
claims 3 and 13. Sakurai discloses a fuel-reforming portion (fuel reformer
34) and a reforming-fuel injector (second injector 40), which injects a
reforming-fuel into a medium fluid (exhaust gas from exhaust pipe 32),
which is supplied after reforming with reforming-fuel in fuel reformer 34 to
the intake of internal combustion engine 11. Sakurai, Fig. 1; H 21—23.
Sakurai also discloses a reforming controller (electronic control unit (ECU
50)), which determines (i.e., establishes) a reforming-fuel quantity (“2nd
fuel oil consumption”) based on a predetermined air-fuel ratio for fuel
reformer 34 and the value of refining air content supplied to fuel reformer
34, which is determined according to the target torque of the engine based
on an accelerator opening detected by accelerator opening sensors 53. Id.
31, 28 (disclosing that “accelerator opening sensors 53 which detect the
amount of treading in of an accelerator pedal as an accelerator opening are
provided, and the present accelerator opening is outputted to ECU50”).
Appellants state that “Sakurai is totally silent about the injection cycle of the
reforming-fuel” (Appeal Br. 11), but admit that “[i]n Sakurai, the reforming-
fuel is injected at a regular interval corresponding to the determined fuel
remaining in the fuel reforming means is purged. Sakurai H 9, 12, 13, 30,
34.
6
Appeal 2014-009313
Application 13/454,344
injection quantity’'' (id. at 10) (emphasis added). As such, Sakurai’s ECU 50
sets the injection cycle (i.e., the regular interval) according to a subject
quantity which represents at least one of an injection quantity (i.e., the
detected accelerator opening or the value of the determined reforming-fuel
quantity) and a flow rate of the medium fluid (i.e., the value of refining air
content supplied to fuel reformer 34, which is determined according to the
target torque of the engine based on an accelerator opening detected by
accelerator opening sensors 53). In other words, according to Appellants’
admission, the injection cycle of Sakurai’s reforming-fuel is not a fixed
value, but, rather, is determined based on detected quantities that represent
injection quantity of the reforming-fuel and a flow rate of the medium fluid.
Thus, Sakurai’s ECU 50 is configured to vary “the injection cycle of the
reforming-fuel according to a subject quantity which represents at least one
of an injection quantity of the reforming-fuel and a flow rate of the medium
fluid,” as called for in claims 3 and 13.
Accordingly, we sustain the rejection of claims 3 and 13 under
35 U.S.C. § 102(b) as anticipated by Sakurai. However, because our
affirmance of this rejection is predicated on findings not relied on, or at least
not articulated with sufficient clarity, by the Examiner, we designate our
affirmance as a new ground of rejection pursuant to 37 C.F.R. § 41.50(b) in
order to provide Appellants with an opportunity to respond thereto.
Claims 4—7 and 14—17:
In addressing these claims, the Examiner makes no specific findings
directed to the particular limitations in these claims. See Ans. 3. Rather, the
Examiner merely points out that intended use “does not differentiate the
7
Appeal 2014-009313
Application 13/454,344
claimed apparatus from a prior art apparatus satisfying the claimed structural
limitations” and states that
any statement of intended use and all other functional
implications have been carefully considered but are deemed not
to impose any patentably distinguishing structure over that
disclosed by Sakurai which is capable of being used in the
intended manner, i.e., operating the controller to vary the
injection cycle based upon engine operating conditions.
Id. For the reasons set forth by Appellants on page 13—14 of their Appeal
Brief, the Examiner’s statements are inadequate to establish by a
preponderance of the evidence that Sakurai anticipates the subject matter of
these claims. Accordingly, we do not sustain the rejections of claims 4—7
and 14—17 under 35 U.S.C. § 102(b) as anticipated by Sakurai.
Claims 11, 12, 21, and 22:
Claims 11 and 21 require the reforming controller to be configured to
vary the injection quantity of the reforming-fuel according to a subject
temperature representing at least one of a temperature of the fuel reforming
portion and a temperature of the medium fluid. Appeal Br. 17, 19 (Claims
App.). Claims 12 and 22 require the reforming controller to be configured to
decrease the injection quantity of the reforming-fuel as the subject
temperature decreases and to increase the injection quantity of the
reforming-fuel as the subject temperature increases. Id. at 17—18 (Claims
App.); Amendment filed July 30, 2013.4
In addressing these limitations, the Examiner finds that Sakurai
“discloses that the reforming controller varies the injection quantity of the
reforming-fuel according to a subject temperature which represents at least
4 The Claims Appendix in the Appeal Brief omits claim 22.
8
Appeal 2014-009313
Application 13/454,344
one of a temperature of the fuel reforming portion and a temperature of the
medium fluid.” Ans. 4 (citing Sakurai 35, 40, 41).
As Appellants point out, these paragraphs “disclose detecting a
reforming catalyst temperature Tc and determining whether this temperature
Tc is between upper and lower temperature limits Tl, T2.” Appeal Br. 14.
Sakurai discloses that ECU 50 uses this determination to determine whether
reforming-fuel injection by second injector 40 should be suspended. Sakurai
40, 41. By suspending reforming-fuel injection by second injector 40,
Sakurai’s controller ECU 50 varies the injection quantity of the reforming-
fuel from the injection quantity effected by second fuel injection at Step S16
to zero. Sakurai 139; see also id. 131 (disclosing establishing the injection
quantity of the reforming-fuel (i.e., “the 2nd fuel oil consumption”)). Thus,
Sakurai supports the Examiner’s finding that Sakurai’s ECU 50 varies the
injection quantity of the reforming-fuel according to a subject temperature
which represents at least a temperature of the fuel reforming portion.
Accordingly, we sustain the rejection of claims 11 and 21. Because our
affirmance of the rejection of these claims is predicated in part on the
findings discussed above with respect to claims 3 and 13, we designate it as
a new ground of rejection pursuant to 37 C.F.R. § 41.50(b) to provide
Appellants with an opportunity to respond thereto.
However, we do not sustain the rejection of claims 12 and 22 because,
as Appellants point out, “there is no specific teaching or disclosure in these
cited paragraphs of [varying the injection quantity of reforming-fuel] so that
the injection quantity of the reforming-fuel is decreased as the subject
temperature becomes lower and increased as the subject temperature
becomes higher,” as called for in these claims. Appeal Br. 14.
9
Appeal 2014-009313
Application 13/454,344
Rejection II
In contesting the rejection of claims 8—10 and 18—20, Appellants
argue only that “Kerns fails to resolve” the asserted “deficiencies of Sakurai
with respect to claims 3 and 13.” Appeal Br. 14. As discussed above,
Appellants fail to apprise us of deficiencies in Sakurai with respect to claims
3 and 13, and, for the same reasons, fail to apprise us of error in the rejection
of claims 8—10 and 18—20. Accordingly, we sustain the rejection of claims
8—10 and 18—20 under 35 U.S.C. § 103(a) as unpatentable over Sakurai and
Kerns. Because our affirmance of the rejection of these claims is predicated
in part on the findings discussed above with respect to claims 3 and 13, we
designate it as a new ground of rejection pursuant to 37 C.F.R. § 41.50(b) to
provide Appellants with an opportunity to respond thereto.
DECISION
The Examiner’s decision rejecting claims 3, 8—11, 13, and 18—21 is
AFFIRMED.
The Examiner’s decision rejecting claims 4—7, 12, 14—17, and 22 is
REVERSED.
FINALITY OF DECISION
This decision contains new grounds of rejection pursuant to 37 C.F.R.
§ 41.50(b). 37 C.F.R. § 41.50(b) provides “[a] new ground of rejection
pursuant to this paragraph shall not be considered final for judicial review.”
37 C.F.R. § 41.50(b) also provides:
When the Board enters such a non-final decision, the appellant,
within two months from the date of the decision, must exercise
one of the following two options with respect to the new ground
10
Appeal 2014-009313
Application 13/454,344
of rejection to avoid termination of the appeal as to the rejected
claims:
(1) Reopen prosecution. Submit an appropriate
amendment of the claims so rejected or new Evidence relating to
the claims so rejected, or both, and have the matter reconsidered
by the Examiner, in which event the prosecution will be
remanded to the Examiner. The new ground of rejection is
binding upon the examiner unless an amendment or new
Evidence not previously of Record is made which, in the opinion
of the examiner, overcomes the new ground of rejection
designated in the decision. Should the examiner reject the
claims, appellant may again appeal to the Board pursuant to this
subpart.
(2) Request rehearing. Request that the proceeding be
reheard under § 41.52 by the Board upon the same Record. The
request for rehearing must address any new ground of rejection
and state with particularity the points believed to have been
misapprehended or overlooked in entering the new ground of
rejection and also state all other grounds upon which rehearing
is sought.
Further guidance on responding to a new ground of rejection can be
found in the Manual of Patent Examining Procedure § 1214.01.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l)(iv).
AFFIRMED-IN-PART; 37 C.F.R, $ 41.50(b)
11