Ex Parte Song et alDownload PDFPatent Trial and Appeal BoardDec 29, 201713490885 (P.T.A.B. Dec. 29, 2017) 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. 13/490,885 06/07/2012 B. Jerry Song P019703 (8540P-001282) 1066 74175 7590 Harness Dickey & Pierce, P.L.C. (GM) P.O. Box 828 Bloomfield Hills, MI 48303 EXAMINER LAGUARDA, GONZALO ART UNIT PAPER NUMBER 3747 NOTIFICATION DATE DELIVERY MODE 01/03/2018 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): gm-inbox@hdp.com troymailroom @hdp. com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte B. JERRY SONG, ETHAN E. BAYER, BEN W. MOSCHEROSCH, and CALVIN K. KOCH Appeal 2016-0054391 Application 13/490,885 Technology Center 3700 Before STEVEN D.A. MCCARTHY, ANNETTE R. REIMERS, and GORDON D. KINDER, Administrative Patent Judges. REIMERS, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE B. Jerry Song et al. (Appellants) appeal under 35 U.S.C. § 134(a) from the Examiner’s decision to reject under 35 U.S.C. § 102(b) claims 1 and 4—6 as anticipated by Aoyagi (US 2013/0054122 Al, published Feb. 28, 2013) and to reject under 35 U.S.C. § 103(a): (1) claims 2, 3, 7—9, and 11— 192 as unpatentable over Aoyagi; and (2) claims 10 and 20 as unpatentable 1 Appellants identify GM GLOBAL TECHNOLOGY OPERATIONS LLC as the real party in interest. Appeal Br. 3 (filed Nov. 13, 2015). 2 Claim 20 is listed in the heading of this rejection but is not discussed in the body of the rejection. See Final Act. 3, 7 (dated July 21, 2015). We consider Appeal 2016-005439 Application 13/490,885 over Aoyagi and Banks (US 7,254,477 Bl, issued Aug. 7, 2007). We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. CLAIMED SUBJECT MATTER The claimed subject matter “relates to internal combustion engines and more particularly systems and methods for controlling an engine based on humidity.” Spec. 12. Claims 1 and 11 are independent. Claim 1 is illustrative of the claimed subject matter and recites: 1. An engine control system for a vehicle, comprising: an oxygen mass flow rate module that generates a mass flow rate of oxygen flowing into an engine based on a mass air flow rate (MAF) into the engine and a percentage of oxygen by volume measured using an intake oxygen (10) sensor in an intake system; an oxygen per cylinder module that generates a mass of oxygen for a combustion event of a cylinder of the engine based on the mass flow rate of oxygen flowing into the engine; and a fuel control module that controls fueling to the cylinder for the combustion event based on the mass of oxygen. ANALYSIS Anticipation by Aoyagi Claims 1 and 4—6 Independent claim 1 is directed to an engine control system for a vehicle including “an oxygen mass flow rate module that generates a mass flow rate of oxygen flowing into an engine based on a mass air flow rate (MAF) into the engine and a percentage of oxygen by volume measured this a typographical error. 2 Appeal 2016-005439 Application 13/490,885 using an intake oxygen (10) sensor in an intake system.” Appeal Br. 13, Claims App. The Examiner finds that Aoyagi discloses an engine control system having “an oxygen mass flow rate module [71] that generates a mass flow rate of oxygen flowing into an engine based on a mass air flow rate (MAF) into the engine and a percentage of oxygen by volume measured using an intake oxygen sensor ... in an intake system.” See Final Act. 2 (citing Aoyagi ^fl[ 4, 10, 169). Appellants acknowledge that Aoyagi discloses “intake oxygen concentration” and “a mass flow of air into the engine.” Appeal Br. 7 (citing Aoyagi ^fl[ 4, 10, 169). However, Appellants contend that the Examiner’s cited portions of Aoyagi are silent as to generating a mass flow rate of oxygen flowing into an engine. More importantly, Aoyagi is silent as to generating a mass flow rate of oxygen flowing into an engine based on a mass air flow rate (MAF) into the engine and/or a percentage of oxygen by volume measured using an intake oxygen (IO) sensor in an intake system. See Appeal Br. 7; see also id. at 6, 8. In response to Appellants’ contention, the Examiner finds that Aoyagi discloses an air flow sensor, item 71, in paragraph 169 stating that it is “configured to output a signal depending on the amount of intake air that is the mass flow of air flowing through the intake pipe” which will be taken to be the mass air flow rate or MAF. In paragraph 10 [Aoyagi] details that it calculates oxygen concentration off at least an intake air amount which is determined by sensor 71. Paragraph 10 goes on to state there can also be provided an intake oxygen concentration sensor in the intake, concentration and percentage being equivalent terms as shown in paragraph 193. In conjunction with the controllers measurement of the mass flow of air the concentration of oxygen would then yield an understanding of the mass flow rate of air. 3 Appeal 2016-005439 Application 13/490,885 Ans. 33; see also Final Act. 8. As an initial matter, we agree with Appellants that “[cjlaim 1 explicitly distinguishes oxygen from air” and that “[a] mass flow rate of oxygen is different than a mass air flow rate.” See Appeal Br. 8; Reply Br. 24; see also Appeal Br. 13, Claims App.; Spec. 36, 37. Aoyagi discloses that “[t]he intake air flow sensor 71 is configured to output a signal depending on the amount of intake air that is the mass flow of air flowing through the intake pipe 32 and introduced into the engine 10 (that is, the mass of air introduced into the engine 10).” Aoyagi 1169. As such, we agree with the Examiner and Appellants that Aoyagi discloses “a mass air flow rate (MAF).” See Final Act. 2, 8; Ans. 3; Appeal Br. 7. Aoyagi further discloses that “numerical value 23.2 represents the oxygen concentration of air (percent concentration of mass) in the standard state.” Aoyagi 1193; see also Ans. 3. Here, Appellants correctly note that this parameter is “used to estimate the amount of NOx by applying these values to a model for estimating NOx.” See Appeal Br. 7; see also Aoyagi 4, 192, 193. The Examiner does not direct us to any express discussion in Aoyagi regarding “any mass flow rate of oxygen” or that the oxygen concentration of air (i.e., the percentage of oxygen by volume of air) combined with mass air flow rate (MAF) is used to generate a mass flow rate of oxygen. See Final Act. 2, 8; Ans. 3; see also Appeal Br. 7—8; Reply Br. 2. The Examiner further does not provide sufficient evidence or technical reasoning to establish that combining the oxygen concentration of air (i.e., the percentage 3 Dated Mar. 31, 2016. 4 Filed May 6, 2016. 4 Appeal 2016-005439 Application 13/490,885 of oxygen by volume of air) with the mass air flow rate (MAF) in Aoyagi necessarily results in the generation of a mass flow rate of oxygen. Stated differently, the Examiner does not provide any express analysis as to the meaning of the phrase “[i]n conjunction with the controllers measurement of the mass flow of air the concentration of oxygen would then yield an understanding of the mass flow rate of air” (see Ans. 3), so as to explain how or why this arrangement satisfies the limitation of generating “a mass flow rate of oxygen.” It is also not clear on the record before us how the Examiner is interpreting the “amount of air” to be indicative of “an example of what is a ‘known relationship to oxygen concentration.’” See Ans. 3; see also Final Act. 8. In order for us to provide any meaningful appellate review there must be some evidence or analysis in the record to support the Examiner’s factual findings and legal conclusions. In re Zurko, 258 F.3d 1379, 1386 (Fed. Cir. 2001). A rejection must be set forth in sufficiently articulate and informative manner as to meet the notice requirement of35U.S.C. § 132, such as by identifying where or how each limitation of the rejected claims is met by the prior art references. In re Jung, 637 F.3d 1356, 1363 (Fed. Cir. 2011). ft is neither our place, nor Appellants’ burden, to speculate as to the basis for rejecting claims. In re Stepan Co., 660 F.3d 1341, 1345 (Fed. Cir. 2011) (ft is the PTO’s obligation to provide timely notice to the applicant of all matters of fact and law asserted.). For these reasons, we do not sustain the Examiner’s rejection of claim 1, as well as dependent claims 4—6, as anticipated by Aoyagi.5 5 We note that any consideration of what a skilled artisan may deem obvious in view of the teachings of Aoyagi for this set of claims is immaterial to the 5 Appeal 2016-005439 Application 13/490,885 Obviousness over Aoyagi Claims 2, 3, 1—9, and 11—19 Claims 2, 3, and 7—9 depend from claim 1. See Appeal Br. 13—15, Claims App. Independent claim 11 is directed to an engine control method including the step of “generating a mass flow rate of oxygen flowing into an engine based on a mass air flow rate (MAF) into the engine and a percentage of oxygen by volume measured using an intake oxygen (10) sensor in an intake system.” See id. at 16, Claims App. Claims 12—19 depend from claim 11. See id. at 16—18, Claims App. The Examiner relies on the same unsupported findings for claims 2, 3, 7—9, and 11—19 as those discussed above for claim 1. See Final Act. 3—7. Thus, the Examiner’s findings with respect to Aoyagi are deficient for claims 2, 3, 7—9, and 11—19 as well. Accordingly, for reasons similar to those discussed above for claim 1, we do not sustain the Examiner’s rejection of claims 2, 3, 7—9, and 11—19 as unpatentable over Aoyagi. Obviousness over Aoyagi and Banks Claims 10 and 20 Claim 10 depends from claim 1 and claim 20 depends from claim 11. See Appeal Br. 15, 18, Claims App. The Examiner’s rejection of claims 10 and 20 as unpatentable over Aoyagi and Banks is based on the same anticipation rejection made here and before us for review. We further note that the Patent Trial and Appeal Board is a review body, rather than a place of initial examination, and we therefore decline to make a determination of what a skilled artisan may conclude; rather, we leave it to the Examiner to determine the appropriateness of any further course of action based on such a conclusion should there be further prosecution of this application. 6 Appeal 2016-005439 Application 13/490,885 unsupported findings discussed above with respect to claims 1 and 11. See Final Act. 7—8. The Examiner does not rely on Banks to remedy the deficiencies of Aoyagi. Accordingly, for reasons similar to those discussed above for claims 1 and 11, we do not sustain the Examiner’s rejection of claims 10 and 20 as unpatentable over Aoyagi and Banks. DECISION We REVERSE the decision of the Examiner to reject claims 1 and 4— 6 as anticipated by Aoyagi. We REVERSE the decision of the Examiner to reject claims 2, 3, 7—9, and 11—19 as unpatentable over Aoyagi. We REVERSE the decision of the Examiner to reject claims 10 and 20 as unpatentable over Aoyagi and Banks. REVERSED 7 Copy with citationCopy as parenthetical citation