Ex Parte Schneider et al

Board of Patent Appeals and Interferences

Sep 23, 2002

09105124 (B.P.A.I. Sep. 23, 2002)

The opinion in support of the decision being entered today was
not written for publication and is not binding precedent of the
Board.
Paper No. 11
UNITED STATES PATENT AND TRADEMARK OFFICE
__________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________
Ex parte MATTHEW L. SCHNEIDER, ABHAY P. BHAGWAT,
ALFRED SCHUPPE, and GEORGE M. KUHNS
___________
Appeal No. 2000-2000
Application No. 09/105,124
__________
ON BRIEF
_________
Before JERRY SMITH, LALL, and LEVY, Administrative Patent Judges.
LALL, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134 from the
examiner’s final rejection of claims 1-16, which constitute all
the claims in this application.
According to appellants (brief at pages 2 and 3), the
present invention involves the sensing of crankcase blow-by gases
by measuring the volumetric flow of such gases rather than the
prior art method of measuring the pressure of these gases.
Volumetric flow of the blow-by gases is accomplished by routing a
portion of these gases through a venturi which has high pressure
Appeal No. 2000-2000
Application No. 09/105,124
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and low pressure taps therein. A differential pressure sensor is
then attached to the high and low pressure taps in order to
measure the pressure differential between the taps. This
differential pressure is related to the volumetric flow of blow-
by gases through the venturi, and hence the volumetric flow of
blow-by gases around the engine pistons. Both the instantaneous
measurement of this volumetric flow, as well as the historical
trend analysis, provide useful information in determining the
health of the engine as well as to predict future needs for
service of the engine. The sensor will therefore yield data
suitable for trend analysis to aid diagnostics and prognostics,
and can be used to avoid catastrophic failure. The following
claim is further illustrative of the invention.
1. An internal combustion engine, comprising:
at least one cylinder;
at least one piston slidingly disposed within the at least
one cylinder in order to define a combustion chamber above the
piston;
an air intake system operable to supply air to the
combustion chamber;
a crankcase coupled to the at least one cylinder, wherein an
interior of the crankcase is in fluid communication with an
interior of the at least one cylinder below the at least one
piston, wherein combustion gases which blow-by the at least one
piston may enter the crankcase;
a venturi having an inlet port and an outlet port, wherein
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Application No. 09/105,124
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the inlet port is coupled to the crankcase interior and the
outlet port is coupled to the air intake system such that gas
within the crankcase may flow through the venturi;
a high pressure tap extending from an exterior of the
venturi to an interior of the venturi;
a low pressure tap extending from the venturi exterior to
the venturi interior; and
a sensor coupled to the venturi and operative to measure a
differential pressure between the high pressure tap and the low
pressure tap.
The examiner relies on the following references:
Gluntz 3,445,335 May 20, 1969
Obata 4,345,573 Aug. 24, 1982
Claims 1-16 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Obata in view of Gluntz.
Rather than repeat the arguments of appellants and the
examiner, we make reference to the brief (Paper No. 7), the reply
brief (Paper No. 9) and the examiner’s answer (Paper No. 8) for
the respective details thereof.
OPINION
We have considered the rejection advanced by the examiner
and the supporting arguments. We have, likewise, reviewed the
appellants’ arguments set forth in the briefs.
We reverse.
As a general proposition, in an appeal involving a rejection
under 35 U.S.C. § 103, an Examiner is under a burden to make out
Appeal No. 2000-2000
Application No. 09/105,124
4
a prima facie case of obviousness. If that burden is met, the
burden of going forward then shifts to the applicant to overcome
the prima facie case with argument and/or evidence. Obviousness,
is then determined on the basis of the evidence as a whole and
the relative persuasiveness of the arguments. See In re Oetiker,
977 F.2d 1443, 1445, 24 USPQ2d 1443, 1444 (Fed. Cir. 1992); In re
Hedges, 783 F.2d 1038, 1039, 228 USPQ 685, 686 (Fed. Cir. 1986);
In re Piasecki, 745 F.2d 1468, 1472, 223 USPQ 785, 788 (Fed. Cir.
1984); and In re Rinehart, 531 F.2d 1048, 1052, 189 USPQ 143, 147
(CCPA 1976).
At the outset, we note that appellants elect to have all the
claims stand or fall together, see brief at page 3. We take
claim 1 as representative of the group. In response to the
rejection of claim 1 under 35 U.S.C. § 103 over Obata in view of
Gluntz (final rejection at pages 2 and 3), appellants argue
(brief at page 6) that:
The Examiner’s assumptions of what would have been
obvious to one having ordinary skill in the art are
therefore in direct contravention to the teachings of
the prior art of record [Obata and Gluntz]. Only
Applicant has recognized that there is a reason to
measure the volume of blow-by gases removed from the
engine crankcase: they are a direct indication of the
health of the engine, specifically the health of the
piston rings which seal the combustion chambers.
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Application No. 09/105,124
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Appellants therefore argue that there is no motivation in the
prior art to modify the Obata reference with the teaching of
Gluntz to arrive at the claimed invention. The examiner responds
(answer at page 4) that:
Here, the motivation indeed does come from the prior
art. It does not necessarily spring from the explicit
teachings of the cited references, but instead it rises
from an appreciation of the knowledge generally
available to one of ordinary skill in the art.
Specifically, it is notoriously well-known in the art
to control the air/fuel ratio of an internal combustion
engine to an optimum point (as at least suggested by
col. 4 of the Obata reference). It is also known that
blow-by gas, when recirculated in a PCV-type system,
alters the overall a/f ratio (again, this fact is at
least alluded to in col. 4 of Obata).
Appellants respond (reply brief at page 2) that “[n]owhere does
the Examiner explain why one having ordinary skill in the art
would be motivated when Obata ‘573 teaches that it is not
necessary [to measure the volumetric flow of the blow-by gases
for any reason at all].”
The Federal Circuit states that “[the] mere fact that the
prior art may be modified in the manner suggested by the Examiner
does not make the modification obvious unless the prior art
suggested the desirability of the modification.” In re Fritch,
972 F.2d 1260, 1266 n.14, 23 USPQ2d 1780, 1783-84 n.14 (Fed. Cir.
1992), (citing In re Gordon, 773 F.2d 900, 902, 221 USPQ 1125,
1127 (Fed. Cir. 1984)). “Obviousness may not be established
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Application No. 09/105,124
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using hindsight or in view of the teachings or suggestions of the
inventor.” Para-Ordinance Mfg. v. SGS Importers Int’l, 73 F.3d
at 1087, 37 USPQ2d at 1239 (Fed. Cir. 1995) (citing W.L. Gore &
Assocs. v. Garlock, Inc., 721 F.2d 1551, 1553, 220 USPQ 311, 312-
13 (Fed. Cir. 1983)).
In the present case, we find that the examiner has not
pointed to any specific teaching in the prior art to modify Obata
with the disclosure of Gluntz in such a way that it meets the
recited claim limitations. The mere assertions by the examiner
for the suggested modification without any specific reference to
any evidence in the prior art relied upon in the rejection is
sheer speculation on the part of the examiner. Whereas it may be
well known to an artisan to run an internal combustion engine
with an optimum air-fuel ratio, to make the jump from that to the
specifics recited in the claim is not justified within the
meaning of obviousness requirements under 35 U.S.C. § 103.
Therefore, we do not sustain the obviousness rejection of claim 1
and of the other independent claims 7 and 13 which contain
limitations similar to those in claim 1.
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Application No. 09/105,124
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Accordingly, the rejection of independent claims 1, 7, and 13 and
the dependent claims 2-6, 8-12, and 14-16 is reversed.
REVERSED
Jerry Smith )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
Parshotam S. Lall ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
Stuart S. Levy )
Administrative Patent Judge )
Appeal No. 2000-2000
Application No. 09/105,124
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