Ex Parte Marriott

Board of Patent Appeals and Interferences

Oct 13, 2009

11389568 (B.P.A.I. Oct. 13, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE 1
____________________ 2
3
BEFORE THE BOARD OF PATENT APPEALS 4
AND INTERFERENCES 5
____________________ 6
7
Ex parte CRAIG D. MARRIOTT 8
____________________ 9
10
Appeal 2009-002549 11
Application 11/389,568 12
Technology Center 3700 13
____________________ 14
15
Decided: October 13, 2009 16
____________________ 17
18
Before LINDA E. HORNER, MICHAEL W. O’NEILL, and 19
FRED A. SILVERBERG, Administrative Patent Judges. 20
21
SILVERBERG, Administrative Patent Judge. 22
23
24
DECISION ON APPEAL 25
26
Appeal 2009-002549
Application 11/389,568

2
STATEMENT OF THE CASE 1
Craig D. Marriott (Appellant) seeks our review under 35 U.S.C. § 134 2
of the final rejection of claims 1-19. We have jurisdiction under 35 U.S.C. 3
§ 6(b) (2002). 4
5
SUMMARY OF DECISION 6
We REVERSE. 7
8
THE INVENTION 9
The Appellant’s claimed invention is directed to a tuned induction 10
control system for an engine having a piston reciprocally disposed in a 11
cylinder (Spec. 2: ¶ [0005]). 12
Claim 1, reproduced below, is representative of the subject matter on 13
appeal. 14
1. A tuned induction control system for an 15
engine having a piston that is reciprocally disposed 16
in a cylinder, comprising: 17
a first module that actuates an intake valve 18
associated with said cylinder; 19
a second module that determines a second 20
intake valve open timing based on an intake air 21
temperature and an engine speed, wherein said first 22
module actuates said intake valve during a first 23
intake event and actuates said intake valve during a 24
second intake event that is subsequent to said first 25
intake event, wherein said first and second intake 26
events occur during a common intake stroke of 27
said piston and said intake valve is opened at said 28
second intake valve open timing during said 29
second intake event. 30
31
Appeal 2009-002549
Application 11/389,568

3
THE REJECTIONS 1
The Examiner relies upon the following as evidence of 2
unpatentability: 3
Hamamoto US 6,311,653 B1 Nov. 6, 2001 4
Sellnau US 6,810,844 B2 Nov. 2, 2004 5
Hitomi (Abstract) JP 03168328 A Jul. 22, 1991 6
7
The following rejections by the Examiner are before us for review: 8
1. Claims 1, 3, 4, 6-8, 10, 11, 13-15, 18 and 19 are rejected under 35 9
U.S.C. § 102(b) as being anticipated by Hamamoto. 10
2. Claims 2, 9 and 16 are rejected under 35 U.S.C. § 103(a) as being 11
unpatentable over Hamamoto in view of Hitomi. 12
3. Claims 5, 12 and 17 are rejected under 35 U.S.C. § 103(a) as being 13
unpatentable over Hamamoto in view of Sellnau. 14
15
ISSUE 16
The issue before us is whether the Examiner erred in finding that 17
Hamamoto describes determining a second intake valve open timing based 18
on an intake air temperature and an engine speed as called for in claims 1, 8 19
and 15. 20
21
ANALYSIS 22
Appellant contends that Hamamoto does not inherently teach or 23
suggest a second module that determines a second intake valve open timing 24
based on intake air temperature (Reply Br. 2). 25
The Examiner found that Hamamoto describes (1) an engine control 26
unit 11 that is supplied with a variety of input signals, (2) the signals include 27
Appeal 2009-002549
Application 11/389,568

4
an engine speed signal of the engine E and an air intake amount signal 1
representative of an amount of intake air, and (3) the engine control unit 11 2
is arranged and programmed to carry out a processing operation in 3
accordance with the above signals (Hamamoto, col. 3, ll. 53-67) (Ans. 6). 4
Appellant agrees with the Examiner “that Hamamoto expressly 5
receives a signal indicative of intake air amount.” (Hamamoto, col. 3, ll. 53-6
67) (Reply. Br. 4). 7
The Examiner further found that Hamamoto’s engine control unit 11 8
would receive an intake air temperature signal inherently as a consequence 9
of the intake air amount provided to the engine control unit 11 (Ans. 6). The 10
Examiner provides a formula as the basis for making the finding (Ans. 6). 11
We agree with Appellant that since Hamamoto refers to accumulated 12
mass flow (mass) (kg) and the mass flow rate (kg/sec) of the intake air, it is 13
unclear whether the unit of measurement for the intake air amount is mass 14
(kg) or mass flow rate (kg/sec) (Hamamoto, figs. 4-5) (Reply Br. 4). 15
Appellant further contends that the applicability of the formula 16
provided by the Examiner is dependent on whether the intake air amount 17
refers to mass or mass flow rate, and if the intake air amount of Hamamoto 18
refers to mass, the formula is inappropriate (Reply Br. 4). We agree. The 19
Examiner’s formula relies on the air intake amount being provided as mass 20
flow rate (kg/sec). As we found supra, it is unclear from Hamamoto 21
whether the air intake amount is provided as mass (kg) or mass flow rate 22
(kg/sec). Thus, the Examiner’s formula is based on speculation. 23
Therefore, based on the evidence provided by the Examiner, it is 24
speculative, at best, that in Hamamoto, the “intake air amount signal 25
representative of an amount of intake air” supplied to the engine control unit 26
Appeal 2009-002549
Application 11/389,568

5
11 (Hamamoto, col. 3, ll. 53-67) includes an intake air temperature signal as 1
the Examiner found. See In re Oelrich, 666 F.2d 578, 581 (CCPA 1981) 2
(quoting Hansgirg v. Kemmer, 102 F.2d 212, 214 (CCPA 1939)) 3
(“Inherency, however, may not be established by probabilities or 4
possibilities. The mere fact that a certain thing may result from a given set 5
of circumstances is not sufficient.”). See also In re King, 801 F.2d 1324, 6
1327 (Fed. Cir. 1986) (When relying on the theory of inherency, the 7
examiner has the initial burden of providing a basis in fact and/or technical 8
reasoning to reasonably support the determination that the allegedly inherent 9
characteristic reasonably flows from the teachings of the applied prior art.). 10
Accordingly, since receipt by Hamamoto’s engine control unit 11 of 11
an intake air temperature signal as an inherent consequence of the intake air 12
amount provided to the engine control unit 11 appears to be based upon 13
speculation, Hamamoto does not anticipate claims 1, 8 and 15. For the same 14
reasons, Hamamoto does not anticipate claims 3, 4, 6, 7, 10, 11, 13, 14, 18 15
and 19, which depend from claims 1, 8 and 15, respectively. 16
The Examiner has not relied on Hitomi or Sellnau for any teaching 17
that would remedy the deficiency in Hamamoto (Ans. 4-5). We thus 18
conclude that the Examiner also erred in rejecting claims 2, 9 and 16 over 19
Hamamoto in view of Hitomi; and claims 5, 12 and 17 over Hamamoto in 20
view of Sellnau. 21
22
CONCLUSION OF LAW 23
Appellant has established that the Examiner erred in finding that 24
Hamamoto describes determining a second intake valve open timing based 25
Appeal 2009-002549
Application 11/389,568

6
on an intake air temperature and an engine speed as called for in claims 1, 8 1
and 15. 2
3
DECISION 4
The decision of the Examiner to reject claims 1-19 is reversed. 5
6
REVERSED 7
8
9
10
11
12
13
14
15
16
17
18
mls 19
20
CHRISTOPHER DEVRIES 21
GENERAL MOTORS CORPORATION 22
300 RENAISSANCE CENTER - M.C. 482-C23-B21 23
P.O. BOX 300 24
DETROIT, MI 48265-3000 25