11704035 (P.T.A.B. Sep. 26, 2012)

Ex Parte Porten et al

Patent Trial and Appeal BoardSep 26, 2012

11704035 (P.T.A.B. Sep. 26, 2012)

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. 11/704,035 02/07/2007 Guido Porten 10191/5075 6007 26646 7590 09/26/2012 KENYON & KENYON LLP ONE BROADWAY NEW YORK, NY 10004 EXAMINER VILAKAZI, SIZO BINDA ART UNIT PAPER NUMBER 3747 MAIL DATE DELIVERY MODE 09/26/2012 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 PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte GUIDO PORTEN, THOMAS WORTMANN and JEAN-MARC FRIES ____________________ Appeal 2010-009204 Application 11/704,035 Technology Center 3700 ____________________ Before: STEVEN D.A. MCCARTHY, BRETT C. MARTIN, and ANNETTE R. REIMERS, Administrative Patent Judges. MARTIN, Administrative Patent Judge. DECISION ON APPEAL Appeal 2010-009204 Application 11/704,035 2 STATEMENT OF CASE Guido Porten et al. (Appellants) seek our review under 35 U.S.C. § 134 of the Examiner’s rejection of claims 1-12. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. THE INVENTION Appellants’ claims are directed generally “to a method for operating an internal combustion engine, a computer program product, a computer program, and a control and/or regulation device for an internal combustion engine.” Spec. 1:8-11. Claim 1, reproduced below, with emphasis added, is illustrative of the claimed subject matter: 1. A method for operating an internal combustion engine, comprising: specifying a setpoint value for a variable characterizing an air/fuel mixture in at least one operating state of the internal combustion engine; ascertaining a value of at least one variable characterizing a quality of combustion; comparing the ascertained value for the at least one variable characterizing the quality of the combustion to a first specified threshold value; and correcting the setpoint value if the ascertained value for the at least one variable characterizing the quality of the combustion deviates from the first specified threshold value by an amount that exceeds a second specified threshold value. REFERENCES The prior art relied upon by the Examiner in rejecting the claims on appeal is: Shimizu Frelund US 5,913,299 US 6,598,589 Jun. 22, 1999 Jul. 29, 2003 Appeal 2010-009204 Application 11/704,035 3 Kirschke Nakai Sasaki US 6,895,934 US 6,962,140 US 7,163,007 May 24, 2005 Nov. 8, 2005 Jan. 16, 2007 REJECTIONS The Examiner made the following rejections: Claims 1, 2, 5-7, 11, and 12 stand rejected under 35 U.S.C. §102(e) as being anticipated by Sasaki. Ans. 4. Claims 3 and 4 stand rejected under 35 U.S.C. §103(a) as being unpatentable over Sasaki and Frelund. Ans. 9. Claim 8 stands rejected under 35 U.S.C. §103(a) as being unpatentable over Sasaki and Nakai. Ans. 10. Claim 9 stands rejected under 35 U.S.C. §103(a) as being unpatentable over Sasaki and Shimizu. Ans. 10. Claim 10 stands rejected under 35 U.S.C. §103(a) as being unpatentable over Sasaki and Kirschke. Ans. 11. ANALYSIS Independent claim 1 calls for “specifying a setpoint value for a variable characterizing an air/fuel mixture in at least one operating state of the internal combustion engine.” Independent claims 11 and 12 contain the same or similar limitations. The Examiner’s finding of anticipation is premised on the interpretation of the above limitation as identifying “[e]ither a fuel or air amount alone.” Ans. 13. The Examiner goes on to state that “[a] variable that is an air-fuel ratio on the other hand, would be an explicit recitation, and would absolutely require both air and fuel amounts, as the ratio specifically denotes the amount of air with regards [sic] to the amount Appeal 2010-009204 Application 11/704,035 4 of fuel” and that the claimed limitation “does not meet these same requirements.” Id. Appellants point out that the term ‘an air/fuel mixture’ clearly means a mixture including both air and fuel, and one of ordinary skill in the art would readily interpret ‘a variable characterizing an air/fuel mixture’ to mean a variable that characterizes the overall mixture including both air and fuel, not merely one component of the mixture. Reply Br. 3. We understand the Examiner’s point that there is a difference between a “mixture” and “a variable characterizing a mixture” and that the latter can be interpreted as at least nominally broader than the former. We do not, however, agree with the Examiner that, in this context, where the claim requires “specifying a setpoint value for a variable characterizing an air/fuel mixture in at least one operating state of the internal combustion engine,” that such a broad interpretation, so as to include only the fuel component of the mixture via the fuel injection parameter of Sasaki, is proper. As Appellants further correctly point out, the Examiner’s position that any changes to the fuel injection amount in turn change the air fuel ratio…is logically deficient in that changes to the fuel injection amount would not change the air/fuel ratio if the air quantity was also correspondingly changed, i.e., the lack of information in variable Q* regarding air quantity renders variable Q* incapable of characterizing the overall air/fuel mixture. App. Br. 6-7. We therefore agree with Appellants that one of skill in the art would not interpret the claim language at issue in light of the disclosure to represent only Sasaki’s fuel injection parameter as asserted by the Examiner. Accordingly, we agree with the Appellants’ construction for the term at issue of “a variable that characterizes the overall mixture including both air Appeal 2010-009204 Application 11/704,035 5 and fuel.” As such, we cannot sustain the Examiner’s rejections over Sasaki which relate only to a fuel injection parameter. DECISION For the above reasons, we REVERSE the Examiner’s decision to reject claims 1-12. REVERSED mls