Ex Parte Ishizuka et alDownload PDFPatent Trial and Appeal BoardDec 7, 201612210409 (P.T.A.B. Dec. 7, 2016) Copy Citation 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. 12/210,409 09/15/2008 Koji ISHIZUKA RYM-2018-2120 6534 23117 7590 12/09/2016 NIXON & VANDERHYE, PC 901 NORTH GLEBE ROAD, 11TH FLOOR ARLINGTON, VA 22203 EXAMINER HAMAOUI, DAVID E ART UNIT PAPER NUMBER 3747 NOTIFICATION DATE DELIVERY MODE 12/09/2016 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 KOJIISHIZUKA and KENICHIRO NAKATA Appeal 2015-000834 Application 12/210,409 Technology Center 3700 Before MICHAEL L. HOELTER, LYNNE H. BROWNE, and JEFFREY A. STEPHENS, Administrative Patent Judges. HOELTER, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE This is a decision on appeal, under 35 U.S.C. § 134(a), from the Examiner’s non-final rejection of claims 1—3, 6—14, and 17—20. App. Br. 9. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. Appeal 2015-000834 Application 12/210,409 THE CLAIMED SUBJECT MATTER The disclosed subject matter “relates to an internal combustion engine control device that controls an operation state of an internal combustion engine by controlling operation of an injector and the like.” Spec. 1:9—11. Claims 1 and 12 are independent. Claim 1 is illustrative of the claims on appeal and is reproduced below: 1. A control device of an internal combustion engine, the control device comprising: a torque increasing means for performing fuel injection by operating an injector of the internal combustion engine, thereby increasing output torque of the internal combustion engine; a torque sensing means for actually sensing a value of the output torque of the internal combustion engine; a torque increase amount sensing means for sensing an increase amount of the output torque caused in connection with the fuel injection or a physical quantity relevant to the increase amount; an injection quantity sensing means for sensing an actual injection quantity of the fuel injection or a physical quantity relevant to the injection quantity; a storing means for storing a value of an anticipated torque that is anticipated to occur under an assumption that all of the actual injection quantity contributes to combustion of the internal combustion engine, the anticipated torque being obtained by assigning the value of the actual injection quantity to a relational expression; a combustion ratio calculating means for calculating a combustion ratio between the increase amount of the output torque of the internal combustion engine or the physical quantity relevant to the increase amount, which is actually sensed by the torque increase amount sensing means, and the anticipated torque or a physical quantity relevant to the anticipated torque; and a controlling means for controlling an operation state of the internal combustion engine in accordance with the 2 Appeal 2015-000834 Application 12/210,409 combustion ratio calculated by the combustion ratio calculating means; wherein the controlling means is an injection controlling means for controlling an operation of the injector to change an injection mode of the fuel in accordance with the combustion ratio, the injection controlling means is configured to be able to execute control of multi-stage injection for injecting the fuel multiple times during one combustion cycle, and the injection controlling means changes the injection mode by changing at least one of the number of injection stages in the multi-stage injection, an injection quantity of each injection stage of the multi-stage injection, and injection timing of each injection stage of the multi-stage injection. THE REJECTIONS ON APPEAL Claims 1—3, 6—8, 10-14, 17, 18, and 20 are rejected under 35 U.S.C. § 103(a) as obvious over Nakagawa, Futonagane, and Tashiro. Claims 9 and 19 are rejected under 35 U.S.C. § 103(a) as obvious over Nakagawa, Futonagane, Tashiro, and Wilstermann. REFERENCES RELIED ON BY THE EXAMINER Wilstermann Futonagane Tashiro Nakagawa US 6,230,546 B1 May 15, 2001 US 6,729,297 B2 May 4, 2004 US 6,901,747 B2 June 7, 2005 US 7,840,334 B2 Nov. 23, 2010 3 Appeal 2015-000834 Application 12/210,409 ANALYSIS The rejection of claims 1—3, 6—8, 10—14, 17, 18, and 20 as obvious over Nakagawa, Futonagane, and Tashiro Appellants present arguments for claims 1 and 12 together (App. Br. 10-16), claims 6 and 17 together (App. Br. 16—18), claims 8 and 18 together (App. Br. 18—19), and claims 11 and 20 together (App. Br. 19-20). We select claims 1, 6, 8, and 11 for review, with claims 2, 3, 7, 10, 12—14, 17, 18, and 20 standing or falling therewith. See 37 C.F.R. § 41.37(c)(l)(iv). Claim 1 The Examiner primarily relies on the teachings of Nakagawa, including disclosing “an algorithm substantially similar to the recited algorithm.” Non-Final Act. 3—6. However, the Examiner relies on Futonagane for disclosing the “injection quantity sensing means” limitation (Non-Final Act. 6), and the Examiner relies on Tashiro for disclosing both the “injection controlling means” limitations. Non-Final Act. 6—7. The Examiner also provides statements as to why one skilled in the art would look to the Nakagawa algorithm and also why the three references would be combined. Non-Final Act. 6—7. Appellants contend that “Nakagawa considers the fuel that actually enters the combustion chamber to be combusted fuel.”* 1 App. Br. 9 1 Appellants further state, “[tjhus, with a direct injection type system, all injected fuel would be combusted according to Nakagawa.” App. Br. 10 fn. 1. For added emphasis, Appellants state, “the combusted quantity of fuel in Nakagawa is the amount of fuel that actually enters the combustion chamber. This means that Nakagawa assumes that the fuel that enters the combustion chamber is fully combusted and converted to torque.” App. Br. 11; see also Reply Br. 2. 4 Appeal 2015-000834 Application 12/210,409 (referencing Nakagawa 13:59-62); see also Reply Br. 2. Appellants also acknowledge that “Nakagawa’s residual fuel is the fuel that is injected but not combusted.” App. Br. 9 (referencing Nakagawa 2:53—58). This is because “part or almost all of the injected fuel does not flow into a combustion chamber because it adheres to a wall of the engine intake passage.” App. Br. 9 (referencing Nakagawa 1:28—32). The Examiner takes issue with Appellants’ characterization of Nakagawa, and particularly Appellants’ assertion that Nakagawa presumes all fuel that enters the chamber is combusted. Ans. 10—11. The Examiner deems Appellants’ understanding of Nakagawa to be based on a “false premise.” Ans. 11. This is because the Examiner identifies (Ans. 10) where Nakagawa states: Specifically, the residual fuel quantity (unbumed fuel) remains mainly in the intake passage (wall in the inlet port, inlet valve surface, or the like) for the inlet port injection engine, and in cylinders (inner wall surface of combustion chamber, piston surface and the like) for the in-cylinder injection type engine, respectively.2 Nakagawa 3:35—36 (emphasis added). Thus, Nakagawa discloses that “residual fuel” can be found in the combustion chamber itself. Nevertheless, elsewhere, Nakagawa states that the fuel that actually flows into the combustion chamber is “the combustion fuel quantity” (with no reference to this fuel also including residual fuel). Nakagawa 13:59-62; see also App. Br. 9. Accordingly, the parties identify different portions of Nakagawa 2 Nakagawa also states that residual fuel is that “unbumed fuel quantity portion that is not devoted to combustion in the injection fuel quantity.” Nakagawa 13:51—53. Nakagawa further elaborates that this residual fuel is computed based on “the difference between the actual injection fuel quantity (Ti) and the combustion fuel quantity (Fuel_C).” Nakagawa 13:54—58. 5 Appeal 2015-000834 Application 12/210,409 regarding whether residual fuel is only found in the intake passage or whether residual fuel can also be found in the combustion chamber itself. As indicated, support for both positions can be gleaned from Nakagawa. However, the Examiner is relying on Nakagawa’s disclosure of residual fuel also being found in the combustion chamber. Ans. 10. In contrast, Appellants base their arguments on a different premise (i.e., that residual fuel is fuel that “does not flow into a combustion chamber’''). App. Br. 9-11. Hence, Appellants’ reliance on residual fuel only being found in the intake passage is not responsive to the Examiner’s rejection, which is based on such fuel also being found in the combustion chamber itself. See supra. Appellants’ premise, which contrasts with the basis of the Examiner’s rationale, underlies subsequent arguments, thereby rendering them unpersuasive. App. Br. 10-12. For example, in seeking to distinguish Nakagawa, Appellants contend that “the combusted quantity of fuel in Nakagawa is the amount of fuel that actually enters the combustion chamber” and that as a result, “[t]his means that Nakagawa assumes that the fuel that enters the combustion chamber is fully combusted and converted to torque.” App. Br. 11. That is not the case under the Examiner’s rationale because, as indicated supra, Nakagawa does not assume that all fuel that enters the chamber is fully combusted. Instead, Nakagawa states that some of the fuel entering the combustion chamber is residual fuel that is not combusted and can be found on the “inner wall surface of [the] combustion chamber,” as well as elsewhere. Nakagawa 3:35—37. Appellants seem to recognize the defect in their premise when stating that “considering Nakagawa’s combusted fuel quantity to be equivalent to 6 Appeal 2015-000834 Application 12/210,409 the actual injection amount [i.e., no residual fuel] would be pointless” “because there would be no accounting for the residual fuel, and determining residual fuel is the entire focus of Nakagawa.” App. Br. 12. Hence, since Appellants declare that “determining residual fuel is the entire focus of Nakagawa,” one might then question Appellants’ presumption that Nakagawa’s combusted fuel quantity is equivalent to the actual injection amount (i.e., no residual fuel) because Appellants’ state that this presumption is “pointless.” Appellants also contend that Nakagawa fails to disclose the claimed “combustion ratio” because this ratio “is not ‘equivalent’ to any alleged calculation based on Nakagawa’s combustion fuel quantity and residual fuel quantity.” App. Br. 10. The Examiner seems to acknowledge that the exact parameters recited for this ratio (i.e., calculations based on actual torque vs. anticipated torque) are not employed in Nakagawa, but the Examiner indicates that Nakagawa instead employs related parameters (i.e., calculations based on combusted fuel vs. actual fuel).3 Non-Final Act. 5. Accordingly, the Examiner states that “Nakagawa discloses an algorithm substantially similar to the recited algorithm.” Non-Final Act. 5 (where the Examiner provides a comparison of Appellants’ system and Nakagawa’s system). The Examiner states, “[sjimply put, both Applicant and Nakagawa consider how much torque should have been produced by the amount of injected fuel (in an ideal system) and then determine how much fuel was not combusted by determining how much torque was actually produced.” Non- 3 Nakagawa discloses a relationship between torque and fuel. Nakagawa 12:43—48. 7 Appeal 2015-000834 Application 12/210,409 Final Act. 5. As a consequence, the Examiner deems the representations as “functional equivalents” and that it would have been obvious “to choose from such mathematical representations as a matter of preference.”4 * * * 8Non- Final Act. 5. This is especially the case, according to the Examiner, because “Applicant has not disclosed any criticality for this aspect of the feature in question.” Non-Final Act. 5. Appellants appear to agree with this assessment by the Examiner when stating “[t]he entirety of Nakagawa describes a way to determine the residual fuel (the ‘non-contributing fuel amount’ according to the Office Action) by measuring torque.” App. Br. 11 (emphasis added). However, Appellants again rely on the above false premise by further stating “[i]n other words, Nakagawa teaches a way to calculate fuel that enters the combustion chamber (burned fuel) versus fuel that did not bum because it never entered the combustion chamber.'1'’ App. Br. 11 (emphasis added). In view of Appellants’ continued reliance on a false premise, the above contention regarding the recited “combustion ratio” is not persuasive of Examiner error. In other words, Appellants are not persuasive that the teachings of Nakagawa fail to provide a functionally equivalent mathematical representation, or that it would not have been obvious “to choose from such mathematical representations.” Non-Final Act. 6. In addition, we agree with the Examiner that Nakagawa’s method of calculation does not depend on where the non-combusted fuel is located. Ans. 9 (“By virtue of the fact that [Nakagawa’s] algorithm only cares about 4 The Examiner further clarifies, stating “[a]s can be seen, the algorithms are substantially the same except for whether the math is done in the realm of fuel amount or torque amount. As best understood, they start and end at substantially the same points.” Non-Final Act. 6 (emphasis added). 8 Appeal 2015-000834 Application 12/210,409 how much power was produced by the amount injected, it will always produce the same answer for how much fuel did not combust no-matter where that fuel ended up.”). As the Examiner finds, “Nakagawa considers the actual output torque,” and “this is how Nakagawa determines how much fuel actually contributed to combustion.” Non-Final Act. 5. The Examiner’s findings are supported by Nakagawa, which “obtains the combustion fuel quantity (Fuel_C) based on the engine speed (Ne).” Nakagawa 14:39-40. This is consistent with Appellants’ Specification, which describes an embodiment in which “the torque increase amount sensing section is a rotation speed sensor that senses rotation speed of an output shaft of the internal combustion engine (i.e., engine rotation speed) as the physical quantity.” Spec. 5:23—26. The difference between the Nakagawa device’s calculations and the values recited in claim 1 is simply that Nakagawa converts output torque to a combustion fuel value and compares that to the injection fuel quantity (see Nakagawa 15:1—8), while Appellants convert the amount of injection fuel to anticipated torque and compare that to actual output torque. We agree with the Examiner that representing the torque lost to unbumed fuel as a ratio of torque amounts rather than a difference in fuel amounts is inconsequential and would have been obvious to one of ordinary skill in the art. Non-Final Act. 6. Appellants further contend that “a careful reading of Appellants’ arguments shows that the arguments are directed to the realization that burned fuel can perform differently based upon various parameters.” App. Br. 13. We agree with the Examiner (Ans. 12) that, regardless of the intent behind the actions performed in Nakagawa, the same result is obtained and the claimed mathematical functions for arriving at or representing the result 9 Appeal 2015-000834 Application 12/210,409 are obvious in view of Nakagawa’s similar calculations. Accordingly, Appellants’ contention is not persuasive that the Examiner’s reliance on Nakagawa for such teachings is either incorrect or improper. Appellants also allege that “Nakagawa Fails To Disclose Or Suggest Multi-Stage Injection According To Claims 1 And 12.” App. Br. 14; Reply Br. 3. However, we agree with the Examiner that “Nakagawa was not relied upon for this feature; Toshiro was.” Ans. 12; see also Non-Final Act. 6—7. Accordingly, Appellants’ contentions based on Nakagawa on this point are not persuasive of Examiner error. Appellants again address controlling the fuel “in Accordance with the Combustion Ratio.” App. Br. 15; Reply Br. 4. Appellants contend this is the case because the Non-Final Office Action referenced where such discussion can be found “by an asterisk” but that “the Office Action addresses other features when explaining the asterisk.” App. Br. 15—16. Appellants also reference a “prior Office Action” that relied on column 3 of Nakagawa for this teaching, but Appellants contend that this identified column 3 “does not disclose” the recited controlling operation. App. Br. 16. Appellants’ contentions are not persuasive. The Non-Final Office Action states “the combustion ratio* (discussed below) [is] calculated by the combustion ratio calculating means (col. 15, In 11—22).” Non-Final Act. 4; see also Ans. 13. Appellants do not address the teachings of column 15 of Nakagawa as clearly indicated by the Examiner. This portion of Nakagawa discusses how the residual fuel quantity “is obtained from the difference between the injection fuel quantity (Ti) and the combustion fuel quantity (Fuel_C) every cycle.” Nakagawa 15:15—18. Appellants do not indicate how this disclosure, as well as the surrounding disclosure ranging from lines 10 Appeal 2015-000834 Application 12/210,409 11 to 22, fail make this teaching. See, e.g., Reply Br. 4. Accordingly, Appellants’ contention on this point is not persuasive of Examiner error. In summation, we are not persuaded by Appellants’ contentions that the Examiner erred in rejecting independent claims 1 and 12, and also dependent claims 2, 3, 10, 12—14, and 20, as being obvious over Nakagawa, Futonagane, and Tashiro. We sustain the rejection. Claim 6 Appellants contend, “nothing in Tashiro’s Fig. 6 provides any reason why” one skilled in the art would make the changes stated by the Examiner. App. Br. 17; Non-Final Act. 7; see also App. Br. 18 and Reply Br. 4. Appellants expand on this stating, “[njone of the references provide any disclosure or motivation to change an injection quantity of a pilot injection.” App. Br. 17; see also Reply Br. 4. Appellants’ contentions are not persuasive because the Supreme Court has made it clear that the reason for the combination need not arise from the references themselves. See KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 419 (2007). Nevertheless, the Examiner has explained that it would have been obvious to modify the combined system of Nakagawa and Futonagane “as taught by Tashiro, as it is a known technique and thus within the capability of one having ordinary skill.” Non-Final Act. 7; see also Ans. 14. Again, the Supreme Court has clearly stated that “if a technique has been used to improve one device, and a person of ordinary skill in the art would recognize that it would improve similar devices in the same way, using the technique is obvious unless its actual application is beyond his or her skill.” KSR, 550 U.S. at 417. In the matter before us, Appellants provide no reason why the application of the teachings of Tashiro to the combined system of Nakagawa and Futonagane 11 Appeal 2015-000834 Application 12/210,409 would have been beyond the abilities of one skilled in the art. Accordingly, we are not persuaded the Examiner erred in rejecting claims 6, 7, and 17 as being obvious over Nakagawa, Futonagane, and Tashiro. We sustain the rejection of these claims. Claim 8 Here, Appellants’ arguments are similar to those discussed above, i.e., “nothing in Tashiro’s Fig. 6 provides any reason why” the injection timing would be changed. App. Br. 19; see also Reply Br. 5. According to Appellants, because there is no reason provided, the Examiner’s “rejection is totally disconnected” and must be overturned. App. Br. 19. Based on the same instructions provided by the Supreme Court, and also on the Examiner’s stated explanation discussed supra, Appellants’ contention is not persuasive that the Examiner erred in rejecting claims 8 and 18. We sustain the rejection of these claims as being obvious over Nakagawa, Futonagane, and Tashiro. Claim 11 Claim 11 includes the limitation of “estimating a cetane number of the fuel based on the combustion ratio.” Appellants acknowledge the Examiner’s position that “estimating a cetane number of fuel based on combustion states is well known” (App. Br. 19; Non-Final Act. 8), but Appellants contend that “[absolutely nothing further is provided for the rejection of these claims in view of the applied references.”5 App. Br. 19. 5 In Appellants’ Reply Brief, Appellants contend, “the Examiner’s Answer fails to provide a single reference to show that estimating cetane number is known.” Reply Br. 6. However, Appellants fail to indicate how this statement by the Examiner is false; instead, Appellants only contend that the 12 Appeal 2015-000834 Application 12/210,409 In short, Appellants contend that “[t]he mere allegation that some feature of a claim is well known is insufficient reason to reject a claim as obvious.” App. Br. 20. The Examiner does state that estimating a cetane number “is well known,” but the Examiner also explains that the benefits of the proposed combination may also “be applied to a diesel engine” since “an amount of uncombusted fuel [is] independent of how the fuel is ignited.” Non-Final Act. 8; see also Ans. 16. Accordingly, Appellants’ contention based on the issue of a “mere allegation that some feature of a claim is well known” is not persuasive of Examiner error. Appellants also contend that “there must be some rational explanation why it would have been obvious” to make the proposed modification. App. Br. 20 (referencing KSR, 550 U.S. at 417). Despite the Supreme Court’s instructions enumerated above (regarding a technique used to improve one device is likely to be obvious when applied to another), Appellants contend that this is not sufficient because Appellants seek an additional “rational explanation why it would have been obvious.” Nevertheless, the Examiner, as indicated supra, further stated that estimating a cetane number is equally applicable to diesel engines “as the benefits of determining an amount of uncombusted fuel [is] independent of how the fuel is ignited.” Non-Final Examiner failed to provide support for such statement. Reply Br. 6. As is well known, “[t]he PTO bears the initial burden of showing a prima facie case of obviousness. In re Sullivan, 498 F.3d 1345, 1351 (Fed. Cir. 2007). When a prima facie case of obviousness is made, the burden then shifts to the applicant to come forward with evidence and/or argument supporting patentability. In re Glaug, 283 F.3d 1335, 1338 (Fed. Cir. 2002).” In re Giannelli, 739 F.3d 1375, 1379 (Fed. Cir. 2014). In the present case, Appellants do not come forward with evidence and/or arguments other than to say that the Examiner’s statement was not supported by “a single reference.” Appellants’ contention is not persuasive. 13 Appeal 2015-000834 Application 12/210,409 Act. 8; see also Ans. 16. However, Appellants contend that “estimating a cetane number does not make sense with respect to Nakagawa” because Nakagawa’s device has a spark ignition and is not a diesel engine. App. Br. 20. Appellants’ contention does not explain how, regardless of the fuel employed, it is not beneficial to know the amount of uncombusted fuel as stated by the Examiner. Accordingly, Appellants’ contention is not persuasive of Examiner error. We sustain the Examiner’s rejection of claims 11 and 20 as being obvious over Nakagawa, Futonagane, and Tashiro. The rejection of claims 9 and 19 as obvious over Nakagawa, Futonagane, Tashiro, and Wilstermann Appellants do not respond to the Examiner’s rejection of claims 9 and 19, nor do Appellants address the additional reference to Wilstermann. See generally Appeal and Reply Briefs. Accordingly, Appellants provide no indication as to any error the Examiner might have made, or that the Examiner failed to provide a prima facie case of obviousness. See Non- Final Act. 9. Lacking any reason to conclude otherwise,6 we sustain the Examiner’s rejection of claims 9 and 19 as being obvious over Nakagawa, Futonagane, Tashiro, and Wilstermann. DECISION The Examiner’s rejections of claims 1—3, 6—14, and 17—20 are affirmed. 6 Arguments Appellants could have made, but chose not to make in the Briefs, are waived. See 37 C.F.R. § 41.37(c)(l)(iv). 14 Appeal 2015-000834 Application 12/210,409 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv). AFFIRMED 15 Copy with citationCopy as parenthetical citation