DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 01/29/2026 has been entered.
Response to Amendments and Arguments
The amendments and arguments filed 01/29/2026 are acknowledged and have been fully considered. Claims 1, 3, 5, 6, 14, 15, and 19-21 have been amended (note that at least claim 14 improperly includes unlabeled amendments); claims 4, 8-13, and 16-18 have been canceled; no claims have been added or withdrawn. Claims 1-3, 5-7, 14, 15, and 19-21 are now pending and under consideration.
The previous objections to the drawings have been updated in order to address the amendments to the specification and maintained.
The previous objections to the specification have been withdrawn, in light of amendments to the specification.
The previous objections to claims 1, 5, 14, and 15 have been mostly withdrawn, in light of the amendments to the claims. Remaining objections were neither addressed by amendment nor argument and have been maintained below.
The previous rejections of claims 1-3, 5-7, 14, 15, and 19-21 under 35 U.S.C. 112(b) have been withdrawn, in light of the amendments to the claims.
Applicant asserts on pages 8-9 of the remarks that the prior art rejections of independent claims 1 and 14 under 35 U.S.C. 102(a)(1) as being anticipated by U.S. Patent Application Publication No. 2021/0054795 to Riley et al. cannot be maintained in view of the amendments to the claims, first asserting on page 9 of the remarks that:
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The examiner respectfully disagrees. Although independent claims 1 and 14 are not identical in scope, such that the citations and interpretations to Riley in the instant Office Action are also not identical with respect to the prior art rejections of claims 1 and 14, Applicant’s remarks appear to address claims 1 and 14 together when arguing against the current prior art rejections of the claims under 35 U.S.C. 102(a)(1). While disclosure of “adjusting” fuel broadly can, indeed, include each of decreasing fuel and increasing fuel, it is unclear why Applicant believes, based on the disclosure of Riley, that “adjusted” in “[the] amount of fuel delivered to one or more of the cylinders is adjusted to maintain a desired load level” mentioned in ¶ 0066 of Riley actually refers to decreased fueling to maintain the desired load level, as claims 1 and 12 of Riley together are clearly directed to the opposite of decreasing the amount of fuel delivered to the one or more combusting cylinders, as claims 1 and 12 of Riley together expressly require “if the current exhaust gas temperature is at or below the threshold exhaust gas temperature, operating one or more cylinders as combusting cylinders and activating the exhaust valves of one or more of the combusting cylinders with a reduced frequency of activation relative to normal exhaust valve activation [and] operating fewer than all cylinders as combusting cylinders and increasing the amount of fuel delivered to the combusting cylinders” (emphasis added). Therefore, the examiner respectfully maintains that Riley discloses that the amount of fuel delivered to the one or more of the combusting cylinders is increased to maintain the desired load level.
Next, Applicant asserts on page 9 of the remarks that:
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The examiner respectfully disagrees. As discussed in detail above, claims 1 and 12 of Riley together expressly require “if the current exhaust gas temperature is at or below the threshold exhaust gas temperature, operating one or more cylinders as combusting cylinders and activating the exhaust valves of one or more of the combusting cylinders with a reduced frequency of activation relative to normal exhaust valve activation [and] operating fewer than all cylinders as combusting cylinders and increasing the amount of fuel delivered to the combusting cylinders” (emphasis added), which, in view of at least ¶ 0017, 0046, 0062-0065 & 0067-0070 of Riley, includes: (1) activating the at least one exhaust valve 13 of fewer than all of the “combusting cylinders” without the “reduced frequency of activation relative to normal exhaust valve activation” (e.g., “standard mode cylinder”), (2) differently activating the at least one exhaust valve 13 of remaining one(s) of the “combusting cylinders” with the “reduced frequency of activation relative to normal exhaust valve activation,” and (3) operating remaining one(s) of the cylinders 101, other than the “combusting cylinders,” as non-combusting cylinders (e.g., “…that is deactivated completely, having no combustion and no exhaust valve activation”) (e.g., “air spring mode cylinder”). Therefore, the examiner respectfully maintains that Riley discloses an engine operating condition that combines combusting non-EVD cylinders (Standard Mode) with non-combusting EVD cylinders (Air Spring Mode).
Riley further teaches that, for example: “Four cylinders could be combusting cylinders each having a fueling level of approximately 16/4 that of 16 cylinder operation at that load level [and these] cylinders may also participate in exhaust valve deactivation” (emphasis added) via ¶ 0069—“may” expresses “also participate in exhaust valve deactivation” as a possibility but not as a requirement and therefore does not require participation by the number of combusting cylinders (of the total number of cylinders, of which the remaining cylinders are non-combusting cylinders) in the “exhaust valve deactivation” (especially in view of section title “Exhaust Valve Deactivation of Fewer than all Cylinders and/or with Fueling Adjustment” via ¶ 0062), where ¶ 0067-0069 expressly discloses that the remaining cylinders are non-combusting cylinders combining cylinder deactivation (no fueling) with the “exhaust valve deactivation.”
Therefore, the prior art rejections of independent claims 1 and 14 under 35 U.S.C. 102(a)(1) have been maintained and updated in order to address the amendments to the claims.
Next, Applicant asserts on pages 10-12 of the remarks that the prior art rejection of independent claim 1 under 35 U.S.C. 103 as being unpatentable over Riley in view of U.S. Patent Application Publication No. 2018/0230914 to McCarthy, JR. et al. cannot be maintained in view of the amendments to the claims, first asserting on page 10 of the remarks that:
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The examiner respectfully disagrees. Applicant’s remarks misrepresent the prior art rejection of claim 1. The obviousness rejection of claim 1 was presented in the alternative to the anticipation rejection of claim 1 only in such a case where Applicant is able to sufficiently show that Riley does not fully teach steps of “operating one or more cylinders as air spring mode cylinders and the remaining cylinder(s) as standard mode cylinders; and increasing the amount of fuel delivered to one or more of the standard mode cylinders” and/or in such a case where Riley is not interpreted or relied upon to fully teach steps of “operating one or more cylinders as air spring mode cylinders and the remaining cylinder(s) as standard mode cylinders; and increasing the amount of fuel delivered to one or more of the standard mode cylinders.” As discussed in detail above, Applicant’s remarks did not sufficiently show that Riley does not fully teach steps of “operating one or more cylinders as air spring mode cylinders and the remaining cylinder(s) as standard mode cylinders; and increasing the amount of fuel delivered to one or more of the standard mode cylinders.” However, even if Riley is not interpreted or relied upon to fully teach steps of “operating one or more cylinders as air spring mode cylinders and the remaining cylinder(s) as standard mode cylinders; and increasing the amount of fuel delivered to one or more of the standard mode cylinders,” the obviousness rejection of claim 1 asserted that it would have been obvious to one having ordinary skill in the art at the time the invention was made to have modified the controller-implemented method of Riley with the teachings of McCarthy, if even necessary, to further include performing of “operating one or more cylinders as air spring mode cylinders and the remaining cylinder(s) as standard mode cylinders; and increasing the amount of fuel delivered to one or more of the standard mode cylinders,” at least at times, because Riley expresses no limitation to which cylinder mode(s) are to be individually controlled at each cylinder of the two-cycle uniflow-scavenged engine when striving to produce higher exhaust temperatures at lower loads during operation of a two-cycle diesel engine (apparent from at least ¶ 0017 & 0061-0070 of Riley), and McCarthy further demonstrates higher exhaust temperatures at lower loads of a two-cycle diesel engine are also alternatively achievable via individual cylinder mode control of cylinders of the two-cycle diesel engine by operating one or more of the cylinders as air spring mode cylinders and the remaining cylinder(s) as standard mode cylinders, while increasing the amount of fuel delivered to the standard mode cylinders. Implementing the individual cylinder mode control of cylinders of the two-cycle diesel engine of McCarthy in place of the open-ended individual cylinder mode control of cylinders of the two-cycle diesel engine of Riley, at least at times, would not be reasonably expected by one having ordinary skill in the art to destroy operability of the two-cycle diesel engine of Riley, as each of Riley and McCarthy is directed to increasing exhaust temperatures at lower loads of a two-cycle diesel engine via selective individual control of at least two cylinder groups, including to increase fueling of combusting cylinder(s) without exhaust valve deactivation while deactivating remaining cylinder(s), and because Riley expresses no limitation to which cylinder mode(s) are to be individually controlled at each cylinder of the two-cycle uniflow-scavenged engine when striving to produce higher exhaust temperatures at lower loads during operation of the two-cycle diesel engine. Thus, such a modification, if even necessary, would also amount to a simple substitution of one known element for another to obtain predictable results (e.g., see: MPEP 2143_I_B). Therefore, the examiner cannot agree with Applicant’s misrepresentation of the obviousness rejection of claim 1.
Applicant further asserts on pages 10-11 of the remarks that the obviousness rejection cannot be maintained in view of the amendments to claim 1 because:
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The examiner respectfully disagrees. As discussed in detail above, Riley fully teaches “operating one or more cylinders as air spring mode cylinders.” It is further apparent from at least Figs. 1, 3 & 5-8 in view of at least ¶ 0002-0003, 0008, 0010, 0012, 0016-0021, 0025, 0032 & 0052 of Riley that the engine has a two-stroke engine cycle in which air is received via an intake plenum (11), and it is further apparent from at least Figs. 1, 3 & 5-8 of Riley that the air spring mode cylinder is open to communication with the intake plenum during a portion of the two-stroke engine cycle. Also, note that Fig. 1 of Riley appears to be identical to Fig. 1 of Applicant’s originally-filed drawings. Thus, there is no need to modify the engine of Riley to have a two-stroke engine cycle in which air is received via an intake plenum or to modify the air spring mode cylinder of Riley such that the air spring mode cylinder is open to communication with the intake plenum during a portion of the two-stroke engine cycle because Riley teaches each and every aforementioned element of claim 1. In contrast to Applicant’s remarks, at least ¶ 0043 of McCarthy does, in fact, teach 2-stroke diesel operation of an engine, such that the disclosure of McCarthy is not limited to “a 4-stroke engine” as suggested by Applicant on page 11 of the remarks.
Applicant goes on to assert on pages 11-12 of the remarks that:
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The examiner respectfully disagrees. In response to Applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the Applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971). Also, in response to Applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). Also, the test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981). Applicant’s remarks misrepresent the basis for the obviousness rejection in order to manufacture a difference.
As discussed in detail above, in such a case where Applicant is able to sufficiently show that Riley does not fully teach steps of “operating one or more cylinders as air spring mode cylinders and the remaining cylinder(s) as standard mode cylinders; and increasing the amount of fuel delivered to one or more of the standard mode cylinders” and/or in such a case where Riley is not interpreted or relied upon to fully teach steps of “operating one or more cylinders as air spring mode cylinders and the remaining cylinder(s) as standard mode cylinders; and increasing the amount of fuel delivered to one or more of the standard mode cylinders,” it is also noted that McCarthy teaches a controller-implemented method of operating a two-cycle diesel engine, the two-cycle diesel engine having a number of cylinders, each cylinder having at least one exhaust valve (as depicted by at least Figs. 1-4B and as at least ¶ 0034-0037, 0039-0043, 0054 & 0060-0073, a combustion engine 110 is, in one example, a diesel engine having cylinders, with each of the cylinders being operable “according to a stroke cycle so that intake, combustion, and exhaust functions can be performed” including in a 2-stroke diesel operation mode, where each of the cylinders includes an exhaust valve 150), comprising: defining a standard mode of cylinder operation such that a standard mode cylinder is a combusting cylinder consuming an amount of fuel with its at least one exhaust valve activated with a standard frequency defined as every engine cycle; defining an air spring mode of cylinder operation such that an air spring mode cylinder is a non-combusting cylinder with its at least one exhaust valve activated with a reduced frequency relative to standard frequency; operating one or more cylinders as air spring mode cylinders and the remaining cylinder(s) as standard mode cylinders; and increasing the amount of fuel delivered to one or more of the standard mode cylinders [as depicted by at least Figs. 4A-6 and as discussed by at least ¶ 0038-0043, 0050-0061 & 0064-0078, a first group of the cylinders (e.g., “standard mode cylinders”) is operated in a normal operation mode (e.g., “standard mode of cylinder operation”) while a remaining second group of the cylinders (e.g., “air spring mode cylinders”) is operated in a definable cylinder deactivation (CDA) mode (e.g., “air spring mode of cylinder operation”), where each of the cylinder(s) operated in the normal operation mode is a combusting cylinder having increased fueling and activation of its exhaust valve 150 during every 2-stroke cycle (e.g., “standard frequency”), where each of the remaining cylinder(s) operated in the CDA mode is a non-combustion cylinder having its exhaust valve 150 deactivated during every 2-stroke cycle (e.g., “reduced frequency”)].
Therefore, even if Riley is not interpreted or relied upon to fully teach steps of “operating one or more cylinders as air spring mode cylinders and the remaining cylinder(s) as standard mode cylinders; and increasing the amount of fuel delivered to one or more of the standard mode cylinders,” it would have been obvious to one having ordinary skill in the art at the time the invention was made to have modified the controller-implemented method of Riley with the teachings of McCarthy, if even necessary, to further include performing of “operating one or more cylinders as air spring mode cylinders and the remaining cylinder(s) as standard mode cylinders; and increasing the amount of fuel delivered to one or more of the standard mode cylinders,” at least at times, because Riley expresses no limitation to which cylinder mode(s) are to be individually controlled at each cylinder of the two-cycle uniflow-scavenged engine when striving to produce higher exhaust temperatures at lower loads during operation of a two-cycle diesel engine (apparent from at least ¶ 0017 & 0061-0070 of Riley), and McCarthy further demonstrates higher exhaust temperatures at lower loads of a two-cycle diesel engine are also alternatively achievable via individual cylinder mode control of cylinders of the two-cycle diesel engine by operating one or more of the cylinders as air spring mode cylinders and the remaining cylinder(s) as standard mode cylinders, while increasing the amount of fuel delivered to the standard mode cylinders. Implementing the individual cylinder mode control of cylinders of the two-cycle diesel engine of McCarthy in place of the open-ended individual cylinder mode control of cylinders of the two-cycle diesel engine of Riley, at least at times, would not be reasonably expected by one having ordinary skill in the art to destroy operability of the two-cycle diesel engine of Riley, as each of Riley and McCarthy is directed to increasing exhaust temperatures at lower loads of a two-cycle diesel engine via selective individual control of at least two cylinder groups, including to increase fueling of combusting cylinder(s) without exhaust valve deactivation while deactivating remaining cylinder(s), and because Riley expresses no limitation to which cylinder mode(s) are to be individually controlled at each cylinder of the two-cycle uniflow-scavenged engine when striving to produce higher exhaust temperatures at lower loads during operation of the two-cycle diesel engine. Thus, such a modification, if even necessary, would also amount to a simple substitution of one known element for another to obtain predictable results (e.g., see: MPEP 2143_I_B).
Drawings
The drawings are objected to as failing to comply with 37 CFR 1.84(p)(4) because reference character “204” has been used to designate both “a decision step that determines if the engine is operating in ‘at or below threshold exhaust’ conditions [or] If the current exhaust temperature is at or above the threshold temperature” (emphasis added; see at least page 13 of Applicant’s original specification in view of the specification amendments filed 01/29/2026) and “AT OR BELOW THRESHOLD EXHAUST TEMPERATURE” (emphasis added; see Figs. 2 & 4 of Applicant’s amended drawings filed 07/24/2025).
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Specification
The amendment filed 01/29/2026 is objected to under 35 U.S.C. 132(a) because it introduces new matter into the disclosure. 35 U.S.C. 132(a) states that no amendment shall introduce new matter into the disclosure of the invention. The added material which is not supported by the original disclosure is as follows:
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Applicant is required to cancel the new matter in the reply to this Office Action.
The lengthy specification has not been checked to the extent necessary to determine the presence of all possible minor errors. Applicant’s cooperation is requested in correcting any errors of which applicant may become aware in the specification.
Claim Objections
Claims 1-3, 6, 14, 15, and 19 are objected to because of the following informalities:
Claim 1 recites “the engine” in line 3, which should be amended to instead recite --the two-cycle uniflow-scavenged engine-- for consistency and proper antecedent basis with “a two-cycle uniflow-scavenged engine” in lines 1-2 of the claim.
Claim 1 recites “one or more cylinders” in line 14, which should be amended to instead recite --one or more of the cylinders-- for consistency and proper antecedent basis with “a number of cylinders, each cylinder” in lines 2-3 of the claim.
Claim 1 recites “air spring mode cylinders” in line 14, which should be amended to instead recite --the air spring mode cylinders-- for consistency and proper antecedent basis with “an air spring mode cylinder” in line 9 of the claim.
Claim 1 recites “standard mode cylinders” in line 15, which should be amended to instead recite --the standard mode cylinders-- for consistency and proper antecedent basis with “a standard mode cylinder” in line 6 of the claim.
Claim 2 recites “standard mode cylinders” in line 2, which should be amended to instead recite --the standard mode cylinders-- for consistency and proper antecedent basis with “a standard mode cylinder” in line 6 of claim 1.
Claim 2 recites “air spring mode cylinders” in line 3, which should be amended to instead recite --the air spring mode cylinders-- for consistency and proper antecedent basis with “an air spring mode cylinder” in line 9 of claim 1.
Claim 3 recites “air spring mode cylinders” in lines 4-5, which should be amended to instead recite --the air spring mode cylinders-- for consistency and proper antecedent basis with “an air spring mode cylinder” in line 9 of claim 1.
Claim 6 recites “wherein the engine is a two-cycle uniflow-scavenged engine having a predetermined exhaust gas temperature threshold” in lines 1-3, which should be amended to instead recite --wherein the has a predetermined exhaust gas temperature threshold-- for consistency and proper antecedent basis with “a two-cycle uniflow-scavenged engine” in lines 1-2 of the claim.
Claim 14 recites “an actuator associated with each cylinder's at least one exhaust valve operable to activate and deactivate the at least one exhaust valve” in lines 6-7, which appears to be a misstating of --an actuator associated with each cylinder's at least one exhaust valve and operable to activate and deactivate the at least one exhaust valve--.
Claim 14 should be amended to recite --and-- immediately following the semicolon at the end of line 7.
Claim 14 should be amended to remove “and” from the end of line 9.
Claim 14 should be amended to recite --and-- immediately following the semicolon at the end of line 15.
Claim 14 recites “an air spring mode cylinder” in line 17, which should be amended to instead recite --[[an]] the air spring mode cylinder-- for consistency and proper antecedent basis with “an air spring mode cylinder” in line 9 of the claim.
Claim 15 recites “whether the cylinders operate as standard mode cylinders or air spring mode cylinders” in lines 3-4, which should be amended to instead recite --whether each cylinder operates as the standard mode cylinder or the air spring mode cylinder-- for consistency and proper antecedent basis with “a standard mode cylinder” in lines 8-9 of claim 14 and “an air spring mode cylinder” in line 9 of claim 14.
Claim 19 recites “wherein wherein” in line 1, which appears to be a misstating of --wherein --.
Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 1-3, 5-7 and 19-21 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Claim 1, as amended, now recites “operating one or more cylinders as air spring mode cylinders and the remaining cylinder(s) as standard mode cylinders; and increasing the amount of fuel delivered to one or more of the standard mode cylinders” in the last four lines of the claim, such that the claim now more broadly includes “increasing the amount of fuel delivered to one or more of the standard mode cylinders” in replacement of “increasing the amount of fuel delivered to the standard mode cylinders.” Specifically, it is unclear exactly where and exactly how Applicant’s originally-filed specification provides sufficient disclosure to support new inclusion of such a broadening amendment. For example, only page 20 of Applicant’s originally-filed specification appears to expressly disclose increasing an amount of fuel delivered to standard mode cylinders of an engine at a uniform fueling level per standard mode cylinder, when one or more cylinders of the engine are operated as air spring mode cylinders and the remaining cylinders of the engine are operated as the standard mode cylinders, via “When some cylinders are operating in Air Spring Mode, there is uniform fueling of the Standard Mode cylinders. This fueling may be at the same level per cylinder as when all cylinders are in Standard Mode or may be at a higher level” (emphasis added). There is, however, no disclosure of non-uniform fueling of the standard mode cylinders, which would be included by the newly broadened scope of “increasing the amount of fuel delivered to one or more of the standard mode cylinders,” and Applicant’s remarks filed 01/29/2026 do not point out exactly where and exactly how “increasing the amount of fuel delivered to one or more of the standard mode cylinders” is fully supported by Applicant’s original disclosure. Thus, the aforementioned amendments improperly introduce “new matter” to claim 1, such that the claim now fails to comply with the written description requirement.
Claims 2, 3, 5-7, and 19-21 depend from claim 1, such that claims 2, 3, 5-7, and 19-21 also include the “new matter” of claim 1 and are rejected for at least the same reasons that claim 1 is rejected.
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-3, 5-7, and 19-21 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 1, as amended, is directed to a “controller-implemented method” and recites “operating one or more cylinders as air spring mode cylinders and the remaining cylinder(s) as standard mode cylinders” in line 14-15. Each of claims 19-21 depends from claim 1. Claim 19, as amended, also now recites “the operating step is performed in response to engine conditions when a current exhaust gas temperature is at or below the predetermined exhaust gas temperature threshold” in lines 2-5; claim 20, as amended, now recites “wherein the operating step is performed in response to conditions when emissions require mitigation” in lines 1-3; and claim 21, as amended, now recites “wherein the operating step is performed in response to conditions when fuel advantages will occur” in lines 1-3. The step “operating one or more cylinders as air spring mode cylinders and the remaining cylinder(s) as standard mode cylinders” in lines 14-15 of claim 1 is understood to corresponds to “the operating step” referred to in each of lines 2-3 of claim 19, lines 1-2 of claim 20, and lines 1-2 of claim 21. Claim scope is not limited by claim language that suggests or makes optional but does not require steps to be performed, or by claim language that does not limit a claim to a particular structure (e.g., see: MPEP 2111.04_I), and the broadest reasonable interpretation of a method (or process) claim having contingent limitations requires only those steps that must be performed and does not include steps that are not required to be performed because the condition(s) precedent are not met (e.g., see: MPEP 2111.04_II). Each of claims 19-21 improperly broadens the scope of the claimed “controller-implemented method” by differently presenting “the operating step” as a contingent limitation. Firstly, the broadest reasonable interpretation of claim 19, as amended, now includes “the operating step” being not performed as part of the claimed “controller-implemented method” at times including when the condition “a current exhaust gas temperature is at or below the predetermined exhaust gas temperature threshold” is not met (e.g., when the current exhaust gas temperature is above the predetermined exhaust gas temperature threshold), which appears to be in sharp contrast to the requirements of claim 1 when considered in isolation from claim 19. Next, the broadest reasonable interpretation of claim 20, as amended, now includes “the operating step” being not performed as part of the claimed “controller-implemented method” at times including when the condition “conditions when emissions require mitigation” is not met (e.g., in response to other conditions when emissions do not require the mitigation), which appears to be in sharp contrast to the requirements of claim 1 when considered in isolation from claim 20. Additionally, the broadest reasonable interpretation of claim 21, as amended, now includes “the operating step” being not performed as part of the claimed “controller-implemented method” at times including when the condition “conditions when fuel advantages will occur” is not met (e.g., in response to other conditions when the fuel advantages will not occur), which appears to be in sharp contrast to the requirements of claim 1 when considered in isolation from claim 21. Therefore, in view of amended claims 19-21, it is now unclear what exactly is required by recitation of “operating one or more cylinders as air spring mode cylinders and the remaining cylinder(s) as standard mode cylinders” in line 14-15 of claim 1.
Claims 2, 3, 5-7, and 19-21 are dependent from claim 1, such that claims 2, 3, 5-7, and 19-21 also include the indefinite subject matter recited by claim 1 and are rejected for at least the same reasons that claim 1 is rejected.
Claim 19, as amended, now refers to “the control unit” in line 2. Claim 19 is dependent from claim 1; however, neither claim previously introduces “a control unit,” such that it is unclear what exactly is meant by “the control unit” in line 2 of claim 19. Thus, there is improper antecedent basis for the limitation in the claim.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claims 19-21 are rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
Claim 19, as amended, also now recites “the operating step is performed in response to engine conditions when a current exhaust gas temperature is at or below the predetermined exhaust gas temperature threshold” in lines 2-5; claim 20, as amended, now recites “wherein the operating step is performed in response to conditions when emissions require mitigation” in lines 1-3; and claim 21, as amended, now recites “wherein the operating step is performed in response to conditions when fuel advantages will occur” in lines 1-3. Each of claims 19-21 depends from claim 1, and claim 1, as amended, is directed to a “controller-implemented method” and recites “operating one or more cylinders as air spring mode cylinders and the remaining cylinder(s) as standard mode cylinders” in line 14-15. The step “operating one or more cylinders as air spring mode cylinders and the remaining cylinder(s) as standard mode cylinders” in lines 14-15 of claim 1 is understood to corresponds to “the operating step” referred to in each of lines 2-3 of claim 19, lines 1-2 of claim 20, and lines 1-2 of claim 21. Claim scope is not limited by claim language that suggests or makes optional but does not require steps to be performed, or by claim language that does not limit a claim to a particular structure (e.g., see: MPEP 2111.04_I), and the broadest reasonable interpretation of a method (or process) claim having contingent limitations requires only those steps that must be performed and does not include steps that are not required to be performed because the condition(s) precedent are not met (e.g., see: MPEP 2111.04_II). Each of claims 19-21 improperly broadens the scope of the claimed “controller-implemented method” by differently presenting “the operating step” as a contingent limitation.
Firstly, the broadest reasonable interpretation of claim 19, as amended, now includes “the operating step” being not performed as part of the claimed “controller-implemented method” at times including when the condition “a current exhaust gas temperature is at or below the predetermined exhaust gas temperature threshold” is not met (e.g., when the current exhaust gas temperature is above the predetermined exhaust gas temperature threshold), which appears to be in sharp contrast to the requirements of claim 1 when considered in isolation from claim 19. Next, the broadest reasonable interpretation of claim 20, as amended, now includes “the operating step” being not performed as part of the claimed “controller-implemented method” at times including when the condition “conditions when emissions require mitigation” is not met (e.g., in response to other conditions when emissions do not require the mitigation), which appears to be in sharp contrast to the requirements of claim 1 when considered in isolation from claim 20. Additionally, the broadest reasonable interpretation of claim 21, as amended, now includes “the operating step” being not performed as part of the claimed “controller-implemented method” at times including when the condition “conditions when fuel advantages will occur” is not met (e.g., in response to other conditions when the fuel advantages will not occur), which appears to be in sharp contrast to the requirements of claim 1 when considered in isolation from claim 21. Therefore, each of amended claims 19-21 is of improper dependent form for failing to include all the limitations of the claim upon which it depends by virtue of now providing for the “the operating step” being not performed as part of the claimed “controller-implemented method” under a broadest reasonable interpretation.
Claim Rejections - 35 USC § 102
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1-3, 5-7, 14, 15, and 19-21 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by U.S. Patent Application Publication No. 2021/0054795 to Riley et al. (hereinafter: “Riley”).
With respect to claim 1, Riley teaches a controller-implemented method of operating a two-cycle uniflow-scavenged engine (e.g., 100 or 300 or 500 or 600 or 700), the two-cycle uniflow-scavenged engine having a number of cylinders (101), each cylinder having at least one exhaust valve (13) (apparent from at least Figs. 1-8 in view of at least ¶ 0002, 0016-0018, 0020-0022, 0026-0027, 0038-0040 & 0056), and the engine having a two-stroke engine cycle in which air is received via an intake plenum (11) (apparent from at least Figs. 1, 3 & 5-8 in view of at least ¶ 0002-0003, 0008, 0010, 0012, 0016-0021, 0025, 0032 & 0052), comprising: defining a standard mode of cylinder operation such that a standard mode cylinder is a combusting cylinder with its at least one exhaust valve activated with a standard frequency defined as every engine cycle; defining an air spring mode of cylinder operation such that an air spring mode cylinder is a non-combusting cylinder with its at least one exhaust valve activated with a reduced frequency relative to the standard frequency [as depicted by at least Figs. 2 & 4 and as discussed by at least ¶ 0016-0017, 0026-0027, 0034-0037, 0041-0043, 0046-0048, 0050, 0063-0065 & 0067-0070, and as set forth by at least claims 1 & 11-14 of Riley; for example: “if the current exhaust gas temperature is at or below the threshold exhaust gas temperature, operating one or more cylinders as combusting cylinders and activating the exhaust valves of one or more of the combusting cylinders with a reduced frequency of activation relative to normal exhaust valve activation … operating fewer than all cylinders as combusting cylinders and increasing the amount of fuel delivered to the combusting cylinders” (e.g., claims 1 & 12 of Riley together) includes: (1) activating the one or more exhaust valves 13 of fewer than all of the “combusting cylinders” without the “reduced frequency of activation relative to normal exhaust valve activation” (e.g., “standard mode of cylinder operation”), (2) differently activating the one or more exhaust valves 13 of remaining one(s) of the “combusting cylinders” with the “reduced frequency of activation relative to normal exhaust valve activation,” and (3) operating remaining one(s) of the cylinders 101, other than the “combusting cylinders,” as non-combusting cylinders (e.g., “…that is deactivated completely, having no combustion and no exhaust valve activation”) (e.g., “air spring mode of cylinder operation”); note that page 20 of Applicant’s originally-filed specification discloses that “Selection of which cylinders are in Air Spring Mode or Standard Mode may be rotated around the engine to promote uniform operation across the entire engine over time. This schedule may vary from 1 engine cycle to X engine cycles” (emphasis added), such that “a standard frequency defined as every engine cycle” in “defining a standard mode of cylinder operation such that a standard mode cylinder is a combusting cylinder with its at least one exhaust valve activated with a standard frequency defined as every engine cycle” necessarily includes, for example, the “at least one exhaust valve” of the “standard mode cylinder” being normally activated for as briefly as a single (i.e., “1”) engine cycle under a broadest reasonable interpretation (also, note that claim 2, which depends from claim 1, further requires “rotating which cylinders operate as standard mode cylinders and which cylinders operate as air spring mode cylinders”), and such that “a reduced frequency relative to the standard frequency” in “defining an air spring mode of cylinder operation such that an air spring mode cylinder is a non-combusting cylinder with its at least one exhaust valve activated with a reduced frequency relative to the standard frequency” necessarily includes, for example, the “at least one exhaust valve” of the “air spring mode cylinder” being deactivated for as briefly as a single (i.e., “1”) engine cycle under a broadest reasonable interpretation], wherein during the air spring mode of cylinder operation, the air spring mode cylinder is open to communication with the intake plenum during a portion of the two-stroke engine cycle (apparent from at least Figs. 1, 3 & 5-8); operating one or more cylinders as air spring mode cylinders and the remaining cylinder(s) as standard mode cylinders; and increasing the amount of fuel delivered to one or more of the standard mode cylinders {as depicted by at least Figs. 2 & 4 and as discussed by at least ¶ 0016-0017, 0026-0027, 0034-0037, 0041-0043, 0046-0048, 0050, 0062-0065 & 0067-0070 (and at least claims 1 & 11-14 of Riley); for example: “Four cylinders could be combusting cylinders each having a fueling level of approximately 16/4 that of 16 cylinder operation at that load level [and these] cylinders may also participate in exhaust valve deactivation” (emphasis added) via ¶ 0069—“may” expresses “also participate in exhaust valve deactivation” as a possibility but not as a requirement and therefore does not require participation by the number of combusting cylinders (of the total number of cylinders, of which the remaining cylinders are non-combusting cylinders) in the “exhaust valve deactivation” (especially in view of section title “Exhaust Valve Deactivation of Fewer than all Cylinders and/or with Fueling Adjustment” via ¶ 0062), where ¶ 0067-0069 expressly discloses that the remaining cylinders are non-combusting cylinders combining cylinder deactivation (no fueling) with the “exhaust valve deactivation”}.
With respect to claim 2, Riley teaches the controller-implemented method of Claim 1, further comprising rotating which cylinders operate as standard mode cylinders and which cylinders operate as air spring mode cylinders [apparent from at least Figs. 2 & 4 in view of at least ¶ 0039-0048, 0055-0056 & 0070 (and at least claim 13 of Riley)].
With respect to claim 3, Riley teaches the controller-implemented method of Claim 1, wherein the two-cycle uniflow scavenged engine has a predetermined exhaust gas temperature threshold (apparent from at least Figs. 2 & 4 in view of at least ¶ 0041-0042, 0045-0048 & 0055-0056) and if a current exhaust gas temperature is at or below the predetermined exhaust gas temperature threshold, the number of cylinders operating as air spring mode cylinders is incrementally increased [because if a current exhaust gas temperature is at the predetermined exhaust gas temperature threshold and if a current exhaust gas temperature is below the predetermined exhaust gas temperature threshold are recited in the alternative, it is sufficient to address one of the claimed alternatives; note: the broadest reasonable interpretation of a method (or process) claim having contingent limitations requires only those steps that must be performed and does not include steps that are not required to be performed because the condition(s) precedent are not met (e.g., see: MPEP 2111.04_II), and claim scope is not limited by claim language that suggests or makes optional but does not require steps to be performed, or by claim language that does not limit a claim to a particular structure (e.g., see: MPEP 2111.04_I), and because “the number of cylinders operating as air spring mode cylinders is incrementally increased” is neither necessarily recited as a process step of the claimed “controller-implemented method” nor necessarily further defines a previously introduced process step of the claimed “controller-implemented method,” “the number of cylinders operating as air spring mode cylinders is incrementally increased” would not necessarily be performed as part of, and therefore does not necessarily further limit the scope of, the claimed “controller-implemented method” under a broadest reasonable interpretation, especially at times when one of the alternative conditions “if a current exhaust gas temperature is at […] the predetermined exhaust gas temperature threshold” and “if a current exhaust gas temperature is […] below the predetermined exhaust gas temperature threshold” is not met during performing of the claimed “controller-implemented method” (e.g., when the current exhaust gas temperature is differently above the predetermined exhaust gas temperature threshold during performing of the claimed “controller-implemented method”), such that “if a current exhaust gas temperature is at or below the predetermined exhaust gas temperature threshold, the number of cylinders operating as air spring mode cylinders is incrementally increased” does not necessarily further limit the scope of the claimed “controller-implemented method” under a broadest reasonable interpretation; even so, apparent from at least Figs. 2 & 4 in view of at least ¶ 0039-0048 & 0055-0056].
With respect to claim 5, Riley teaches the controller-implemented method of Claim 1, wherein the two-cycle uniflow-scavenged engine further has a predetermined exhaust gas temperature threshold (apparent from at least Figs. 2 & 4 in view of at least ¶ 0041-0042, 0045-0048 & 0055-0056) and a compressor (e.g., 16a or 56 or 76a), and further comprising the step of reducing a compressor mass air flow if a current exhaust gas temperature is at or below the predetermined exhaust gas temperature threshold [because if a current exhaust gas temperature is at the predetermined exhaust gas temperature threshold and if a current exhaust gas temperature is below the predetermined exhaust gas temperature threshold are recited in the alternative, it is sufficient to address one of the claimed alternatives; the step “reducing a compressor mass air flow” would not necessarily be performed as part of the claimed “controller-implemented method” at times including when one of the alternative conditions “if a current exhaust gas temperature is at […] the predetermined exhaust gas temperature threshold” and “if a current exhaust gas temperature is […] below the predetermined exhaust gas temperature threshold” is not met during performing of the claimed “controller-implemented method” (e.g., when the current exhaust gas temperature is above the predetermined exhaust gas temperature threshold during performing of the claimed “controller-implemented method”), such that “the step of reducing a compressor mass air flow if a current exhaust gas temperature is at or below the predetermined exhaust gas temperature threshold” does not necessarily further limit the scope of the claimed “controller-implemented method” under a broadest reasonable interpretation (e.g., see: MPEP 2111.04_I & 2111.04_II, as discussed in detail above with respect to at least claim 3); even so, apparent from at least Fig. 4 in view of at least ¶ 0017, 0049-0056 & 0060-0061].
With respect to claim 6, Riley teaches the controller-implemented method of Claim 1, wherein the engine is a two-cycle uniflow-scavenged engine (as discussed in detail above with respect to claim 1) having a predetermined exhaust gas temperature threshold (apparent from at least Figs. 2 & 4 in view of at least ¶ 0041-0042, 0045-0048 & 0055-0056) and the predetermined exhaust gas temperature threshold occurs above Notch 3 (as discussed by at least ¶ 0042) [also, no part of “having a predetermined exhaust gas temperature threshold and the predetermined exhaust gas temperature threshold occurs above Notch 3” requires further step(s) to be performed as part of the claimed “controller-implemented method” or necessarily further defines any previously introduced step of the claimed “controller-implemented method,” such that “having a predetermined exhaust gas temperature threshold and the predetermined exhaust gas temperature threshold occurs above Notch 3” does not necessarily further limit the claimed “controller-implemented method” under a broadest reasonable interpretation (e.g., see: MPEP 2111.04_I, as discussed in detail above with respect to at least claim 3)].
With respect to claim 7, Riley teaches the controller-implemented method of Claim 1, wherein the two-cycle uniflow-scavenged engine has an intake manifold (12), and further comprising regulating intake manifold air pressure with a bypass (71) to atmosphere (apparent from at least Fig. 7 in view of at least 0061-0062).
With respect to claim 14, Riley teaches an improved two-cycle uniflow-scavenged engine (e.g., 100 or 300 or 500 or 600 or 700), the two-cycle uniflow-scavenged engine having a number of cylinders (101), each cylinder having at least one exhaust valve (13) (apparent from at least Figs. 1-8 in view of at least ¶ 0002, 0016-0018, 0020-0022, 0026-0027, 0038-0040 & 0056), and the two-cycle uniflow-scavenged engine further having a two-stroke engine cycle in which air is received via an intake plenum (11) (apparent from at least Figs. 1, 3 & 5-8 in view of at least ¶ 0002-0003, 0008, 0010, 0012, 0016-0021, 0025, 0032 & 0052), comprising: an actuator (13a) associated with each cylinder's at least one exhaust valve operable to activate and deactivate the at least one exhaust valve (apparent from at least Figs. 1-8 in view of as discussed by at least ¶ 0026 & 0040); a control unit (e.g., 120 or 320) programmed to control whether each cylinder operates as a standard mode cylinder or as an air spring mode cylinder; and wherein the standard mode cylinder is a combusting cylinder with its at least one exhaust valve activated with a standard frequency defined as every engine cycle; wherein the air spring mode cylinder is a non-combusting cylinder with its at least one exhaust valve activated with a reduced frequency relative to the standard frequency [it is apparent from at least Figs. 1-8 in view of at least ¶ 0016-0017, 0026-0027, 0034-0037, 0041-0043, 0046-0048, 0050, 0063-0065 & 0067-0070 (and at least claims 1 & 11-14 of Riley) that the control unit 120 (or 320) is structured, via programming, to perform functions to individually control an operating mode of each one of the cylinders 101, including to individually control whether each of a first cylinder (or a first group) and a second cylinder (or a second group) of the cylinders 101 operates with combustion and with normal exhaust valve operation during every engine cycle of a definable period of at least one engine cycle (e.g., “standard mode cylinder”) OR operates without combustion and with exhaust valve deactivation during the definable period of at least one engine cycle (e.g., “with its at least one exhaust valve activated with a reduced frequency relative to the standard frequency”) (e.g., “air spring mode cylinder”) OR operates in accordance with one of other unclaimed cylinder mode(s) not explicitly specified by open-ended claim 14, such as operating with combustion and with normal exhaust valve operation during every other engine cycle; for example: “if the current exhaust gas temperature is at or below the threshold exhaust gas temperature, operating one or more cylinders as combusting cylinders and activating the exhaust valves of one or more of the combusting cylinders with a reduced frequency of activation relative to normal exhaust valve activation … operating fewer than all cylinders as combusting cylinders and increasing the amount of fuel delivered to the combusting cylinders” (e.g., claims 1 & 12 of Riley together) includes: (1) activating the at least one exhaust valve 13 of fewer than all of the “combusting cylinders” without the “reduced frequency of activation relative to normal exhaust valve activation” (e.g., “standard mode cylinder”), (2) differently activating the at least one exhaust valve 13 of remaining one(s) of the “combusting cylinders” with the “reduced frequency of activation relative to normal exhaust valve activation,” and (3) operating remaining one(s) of the cylinders 101, other than the “combusting cylinders,” as non-combusting cylinders (e.g., “…that is deactivated completely, having no combustion and no exhaust valve activation”) (e.g., “air spring mode cylinder”); also, note that page 20 of Applicant’s originally-filed specification discloses that “Selection of which cylinders are in Air Spring Mode or Standard Mode may be rotated around the engine to promote uniform operation across the entire engine over time. This schedule may vary from 1 engine cycle to X engine cycles” (emphasis added), such that “a standard frequency defined as every engine cycle” in “wherein the standard mode cylinder is a combusting cylinder with its at least one exhaust valve activated with a standard frequency defined as every engine cycle” necessarily includes, for example, the “at least one exhaust valve” of the “standard mode cylinder” being normally activated for a single (i.e., “1”) engine cycle under a broadest reasonable interpretation, and such that “a reduced frequency relative to the standard frequency” in “wherein the air spring mode cylinder is a non-combusting cylinder with its at least one exhaust valve activated with a reduced frequency relative to the standard frequency” necessarily includes, for example, the “at least one exhaust valve” of the “air spring mode cylinder” being deactivated for a single (i.e., “1”) engine cycle under a broadest reasonable interpretation], such that the air spring mode cylinder is open to communication with the intake plenum during a portion of the two-stroke engine cycle (apparent from at least Figs. 1, 3 & 5-8); and wherein the control unit is further programmed to increase fuel to every standard mode cylinder when any cylinder is operating as an air spring mode cylinder [as discussed by at least ¶ 0017, 0046, 0062-0065 & 0067-0070 (and at least claims 1 & 11-14 of Riley, and the Abstract) that the control unit 120 (or 320) is structured, via programming, to perform functions to “[operate] one or more cylinders as combusting cylinders and [activate] the exhaust valves of one or more of the combusting cylinders with a reduced frequency of activation relative to normal exhaust valve activation” (e.g., claims 1 & 14) and to “[operate] fewer than all cylinders as combusting cylinders and [increase] the amount of fuel delivered to the combusting cylinders” (e.g., claim 12, which depends from claim 1) such that the control unit 120 (or 320) is structured, via programming, to perform functions to increase fuel to combusting cylinders of the cylinders 101, including when at least one of the combusting cylinder(s) of the cylinders 101 is definable as a “standard mode cylinder,” when fewer than all of the cylinders 101 are operated as combusting cylinders (such that at least one of the cylinders 101 is operating as a definable “air spring mode cylinder”)].
With respect to claim 15, Riley teaches the improved two-cycle uniflow-scavenged engine of Claim 14, wherein the control unit further stores a predetermined exhaust gas temperature threshold and is further programmed to control whether the cylinders operate as standard mode cylinders or air spring mode cylinders based on whether the predetermined exhaust gas temperature threshold is not met (apparent from at least Figs. 2 & 4 in view of at least ¶ 0041-0042, 0045-0048 & 0055-0056).
With respect to claim 19, Riley teaches the controller-implemented method of Claim 1, wherein wherein the control unit further stores a predetermined exhaust gas temperature threshold and the operating step is performed in response to engine conditions when a current exhaust gas temperature is at or below the predetermined exhaust gas temperature threshold [no part of “wherein wherein the control unit further stores a predetermined exhaust gas temperature threshold” requires further step(s) to be performed as part of the claimed “controller-implemented method” or necessarily further defines any previously introduced step of the claimed “controller-implemented method,” such that “wherein wherein the control unit further stores a predetermined exhaust gas temperature threshold” does not necessarily further limit the claimed “controller-implemented method” under a broadest reasonable interpretation (e.g., see: MPEP 2111.04_I, as discussed in detail above with respect to at least claim 3); also, “the operating step is performed in response to engine conditions” (which appears to refer to “operating one or more cylinders as air spring mode cylinders and the remaining cylinder(s) as standard mode cylinders” in claim 1) would not necessarily be performed as part of the claimed “controller-implemented method” at times including when the condition “when a current exhaust gas temperature is at or below the predetermined exhaust gas temperature threshold” is not met during performing of the claimed “controller-implemented method” (e.g., when the current exhaust gas temperature is above the predetermined exhaust gas temperature threshold during performing of the claimed “controller-implemented method”), such that “the operating step is performed in response to engine conditions when a current exhaust gas temperature is at or below the predetermined exhaust gas temperature threshold” does not necessarily further limit the scope of the claimed “controller-implemented method” under a broadest reasonable interpretation (e.g., see: MPEP 2111.04_I & 2111.04_II, as discussed in detail above with respect to at least claim 3); even so, apparent from at least Figs. 2 & 4 in view of at least ¶ 0041-0042, 0045-0048 & 0055-0056].
With respect to claim 20, Riley teaches the controller-implemented method of Claim 1, wherein the operating step is performed in response to conditions when emissions require mitigation [“the operating step is performed” (which appears to refer to “operating one or more cylinders as air spring mode cylinders and the remaining cylinder(s) as standard mode cylinders” in claim 1) would not necessarily be performed as part of the claimed “controller-implemented method” at times including when the condition “conditions when emissions require mitigation” is not met during performing of the claimed “controller-implemented method” (e.g., when only other conditions, of which emissions do not require mitigation, occur during performing of the claimed “controller-implemented method”), such that “wherein the operating step is performed in response to conditions when emissions require mitigation” does not necessarily further limit the scope of the claimed “controller-implemented method” under a broadest reasonable interpretation (e.g., see: MPEP 2111.04_I & 2111.04_II, as discussed in detail above with respect to at least claim 3); even so, as discussed by at least ¶ 0002, 0006 & 0042-0045].
With respect to claim 21, Riley teaches the controller-implemented method of Claim 1, wherein the operating step is performed in response to conditions when fuel advantages will occur [“the operating step is performed” (which appears to refer to “operating one or more cylinders as air spring mode cylinders and the remaining cylinder(s) as standard mode cylinders” in claim 1) would not necessarily be performed as part of the claimed “controller-implemented method” at times including when the condition “conditions when fuel advantages will occur” is not met during performing of the claimed “controller-implemented method” (e.g., when only other conditions, of which the fuel advantages will not occur, occur during performing of the claimed “controller-implemented method”), such that “wherein the operating step is performed in response to conditions when fuel advantages will occur” does not necessarily further limit the scope of the claimed “controller-implemented method” under a broadest reasonable interpretation (e.g., see: MPEP 2111.04_I & 2111.04_II, as discussed in detail above with respect to at least claim 3); even so, as discussed by at least ¶ 0063].
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1-3, 5-7, and 19-21 are rejected under 35 U.S.C. 103 as being unpatentable over Riley in view of U.S. Patent Application Publication No. 2018/0230914 to McCarthy, JR. et al. (hereinafter: “McCarthy”), in the alternative to being rejected under 35 U.S.C. 102(a)(1) as being anticipated by Riley.
With respect to claim 1, Riley teaches a controller-implemented method of operating a two-cycle uniflow-scavenged engine, the two-cycle uniflow-scavenged engine having a number of cylinders, each cylinder having at least one exhaust valve, and the engine having a two-stroke engine cycle in which air is received via an intake plenum, comprising: defining a standard mode of cylinder operation such that a standard mode cylinder is a combusting cylinder consuming an amount of fuel with its at least one exhaust valve activated with a standard frequency defined as every engine cycle; defining an air spring mode of cylinder operation such that an air spring mode cylinder is a non-combusting cylinder with its at least one exhaust valve activated with a reduced frequency relative to the standard frequency; wherein during the air spring mode of cylinder operation, the air spring mode cylinder is open to communication with the intake plenum during a portion of the two-stroke engine cycle; operating one or more cylinders as air spring mode cylinders and the remaining cylinder(s) as standard mode cylinders; and increasing the amount of fuel delivered to one or more of the standard mode cylinders [as discussed in detail above with respect to the rejection of claim 1 under 35 U.S.C 102(a)(1) as being anticipated by Riley].
As discussed in detail above, Riley teaches each and every limitation of the controller-implemented method of claim 1 so as to anticipate the claim under a broadest reasonable interpretation. However, in such a case where Applicant is able to sufficiently show that Riley does not fully teach steps of “operating one or more cylinders as air spring mode cylinders and the remaining cylinder(s) as standard mode cylinders; and increasing the amount of fuel delivered to one or more of the standard mode cylinders” and/or in such a case where Riley is not interpreted or relied upon to fully teach steps of “operating one or more cylinders as air spring mode cylinders and the remaining cylinder(s) as standard mode cylinders; and increasing the amount of fuel delivered to one or more of the standard mode cylinders,” it is also noted that McCarthy teaches a controller-implemented method of operating a two-cycle diesel engine, the two-cycle diesel engine having a number of cylinders, each cylinder having at least one exhaust valve (as depicted by at least Figs. 1-4B and as at least ¶ 0034-0037, 0039-0043, 0054 & 0060-0073, a combustion engine 110 is, in one example, a diesel engine having cylinders, with each of the cylinders being operable “according to a stroke cycle so that intake, combustion, and exhaust functions can be performed” including in a 2-stroke diesel operation mode, where each of the cylinders includes an exhaust valve 150), comprising: defining a standard mode of cylinder operation such that a standard mode cylinder is a combusting cylinder consuming an amount of fuel with its at least one exhaust valve activated with a standard frequency defined as every engine cycle; defining an air spring mode of cylinder operation such that an air spring mode cylinder is a non-combusting cylinder with its at least one exhaust valve activated with a reduced frequency relative to standard frequency; operating one or more cylinders as air spring mode cylinders and the remaining cylinder(s) as standard mode cylinders; and increasing the amount of fuel delivered to one or more of the standard mode cylinders [as depicted by at least Figs. 4A-6 and as discussed by at least ¶ 0038-0043, 0050-0061 & 0064-0078, a first group of the cylinders (e.g., “standard mode cylinders”) is operated in a normal operation mode (e.g., “standard mode of cylinder operation”) while a remaining second group of the cylinders (e.g., “air spring mode cylinders”) is operated in a definable cylinder deactivation (CDA) mode (e.g., “air spring mode of cylinder operation”), where each of the cylinder(s) operated in the normal operation mode is a combusting cylinder having increased fueling and activation of its exhaust valve 150 during every 2-stroke cycle (e.g., “standard frequency”), where each of the remaining cylinder(s) operated in the CDA mode is a non-combustion cylinder having its exhaust valve 150 deactivated during every 2-stroke cycle (e.g., “reduced frequency”)].
Therefore, even if Riley is not interpreted or relied upon to fully teach steps of “operating one or more cylinders as air spring mode cylinders and the remaining cylinder(s) as standard mode cylinders; and increasing the amount of fuel delivered to one or more of the standard mode cylinders,” it would have been obvious to one having ordinary skill in the art at the time the invention was made to have modified the controller-implemented method of Riley with the teachings of McCarthy, if even necessary, to further include performing of “operating one or more cylinders as air spring mode cylinders and the remaining cylinder(s) as standard mode cylinders; and increasing the amount of fuel delivered to one or more of the standard mode cylinders,” at least at times, because Riley expresses no limitation to which cylinder mode(s) are to be individually controlled at each cylinder of the two-cycle uniflow-scavenged engine when striving to produce higher exhaust temperatures at lower loads during operation of a two-cycle diesel engine (apparent from at least ¶ 0017 & 0061-0070 of Riley), and McCarthy further demonstrates higher exhaust temperatures at lower loads of a two-cycle diesel engine are also alternatively achievable via individual cylinder mode control of cylinders of the two-cycle diesel engine by operating one or more of the cylinders as air spring mode cylinders and the remaining cylinder(s) as standard mode cylinders, while increasing the amount of fuel delivered to the standard mode cylinders. Implementing the individual cylinder mode control of cylinders of the two-cycle diesel engine of McCarthy in place of the open-ended individual cylinder mode control of cylinders of the two-cycle diesel engine of Riley, at least at times, would not be reasonably expected by one having ordinary skill in the art to destroy operability of the two-cycle diesel engine of Riley, as each of Riley and McCarthy is directed to increasing exhaust temperatures at lower loads of a two-cycle diesel engine via selective individual control of at least two cylinder groups, including to increase fueling of combusting cylinder(s) without exhaust valve deactivation while deactivating remaining cylinder(s), and because Riley expresses no limitation to which cylinder mode(s) are to be individually controlled at each cylinder of the two-cycle uniflow-scavenged engine when striving to produce higher exhaust temperatures at lower loads during operation of the two-cycle diesel engine. Thus, such a modification, if even necessary, would also amount to a simple substitution of one known element for another to obtain predictable results (e.g., see: MPEP 2143_I_B).
With respect to claim 2, Riley modified supra teaches the controller-implemented method of Claim 1, further comprising rotating which cylinders operate as standard mode cylinders and which cylinders operate as air spring mode cylinders [as discussed in detail above with respect to: claims 1 and 2 under 35 U.S.C. 102(a)(1) as being anticipated by Riley, and claim 1 under 35 U.S.C. 103 as being unpatentable over Riley in view of McCarthy; also, see at least ¶ 0070 of McCarthy].
With respect to claim 3, Riley modified supra teaches the controller-implemented method of Claim 1, wherein the two-cycle uniflow scavenged engine has a predetermined exhaust gas temperature threshold and if a current exhaust gas temperature is at or below the predetermined exhaust gas temperature threshold, the number of cylinders operating as air spring mode cylinders is incrementally increased [as discussed in detail above with respect to: claim 3 under 35 U.S.C. 102(a)(1) as being anticipated by Riley, and claim 1 under 35 U.S.C. 103 as being unpatentable over Riley in view of McCarthy; also, see at least ¶ 0069-0076 of McCarthy].
With respect to claim 5, Riley modified supra teaches the controller-implemented method of Claim 1, wherein the two-cycle uniflow-scavenged engine further has a predetermined exhaust gas temperature threshold and a compressor, and further comprising the step of reducing a compressor mass air flow if a current exhaust gas temperature is at or below the predetermined exhaust gas temperature threshold [as discussed in detail above with respect to: claim 5 under 35 U.S.C. 102(a)(1) as being anticipated by Riley, and claim 1 under 35 U.S.C. 103 as being unpatentable over Riley in view of McCarthy].
With respect to claim 6, Riley modified supra teaches the controller-implemented method of Claim 1, wherein the engine is a two-cycle uniflow-scavenged engine having a predetermined exhaust gas temperature threshold and the predetermined exhaust gas temperature threshold occurs above Notch 3 [as discussed in detail above with respect to: claim 6 under 35 U.S.C. 102(a)(1) as being anticipated by Riley, and claim 1 under 35 U.S.C. 103 as being unpatentable over Riley in view of McCarthy].
With respect to claim 7, Riley modified supra teaches the controller-implemented method of Claim 1, wherein the two-cycle uniflow-scavenged engine has an intake manifold, and further comprising regulating intake manifold air pressure with a bypass to atmosphere [as discussed in detail above with respect to: claim 7 under 35 U.S.C. 102(a)(1) as being anticipated by Riley, and claim 1 under 35 U.S.C. 103 as being unpatentable over Riley in view of McCarthy].
With respect to claim 19, Riley modified supra teaches the controller-implemented method of Claim 1, wherein wherein the control unit further stores a predetermined exhaust gas temperature threshold and the operating step is performed in response to engine conditions when a current exhaust gas temperature is at or below the predetermined exhaust gas temperature threshold [as discussed in detail above with respect to: claim 19 under 35 U.S.C. 102(a)(1) as being anticipated by Riley, and claim 1 under 35 U.S.C. 103 as being unpatentable over Riley in view of McCarthy; also, see at least ¶ 0068-0073 of McCarthy].
With respect to claim 20, Riley modified supra teaches the controller-implemented method of Claim 1, wherein the operating step is performed in response to conditions when emissions require mitigation [as discussed in detail above with respect to: claim 20 under 35 U.S.C. 102(a)(1) as being anticipated by Riley, and claim 1 under 35 U.S.C. 103 as being unpatentable over Riley in view of McCarthy; also, see at least ¶ 0068-0073 of McCarthy].
With respect to claim 21, Riley modified supra teaches the controller-implemented method of Claim 1, wherein the operating step is performed in response to conditions when fuel advantages will occur [as discussed in detail above with respect to: claim 21 under 35 U.S.C. 102(a)(1) as being anticipated by Riley, and claim 1 under 35 U.S.C. 103 as being unpatentable over Riley in view of McCarthy; also, see at least ¶ 0068-0073 of McCarthy].
Conclusion
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/JOHN M ZALESKAS/Primary Examiner, Art Unit 3747