Appeal No. 97-0455
Application No. 08/344,043
Claims 21-34 and 37-40
Claim 21 to 40 are directed to a method for lubricating a direct fuel injected, crankcase scavenged
two-stroke cycle engine. Applicant argues that the cited references do not direct one to use the disclosed
compositions for lubrication of a directed fuel injected, crankcase-scavenged two-cycle stroke engine.
Appeal Brief (Paper 11), p.5. As we indicated above, such engines were known in the art. Applicant’s
specification notes that direct fuel injected crankcase-scavenged two-stroke cycle engines are “those in
which the lubricant is not pre-mixed with the fuel.” Specification (Paper 1), p. 37. Davis ‘757 and '138
teach that the disclosed lubricants are useful in two-stroke cycle engines. Davis ‘757, 18:51-56; Davis
‘138, 18:53-58). Davis '138 also teaches
[i]n some two-cycle engines the lubricating oil may be injected into the combustion
chamber along with the fuel or into the fuel just prior to the time the fuel enters the
combustion chamber. The two-cycle lubricants of this invention are intended for
use in such two-cycle engines.
Davis ‘138, 18:53-58. We find that the lack of premixing of lubricant and fuel and the separate
introduction of the fuel and lubricant would suggest the use of the Davis lubricants in direct fuel injected
crankcase-case scavenged two-stroke cycle engines to the person of ordinary skill in the two-stroke cycle
engine arts. The use of the Davis lubricants in this known type of two-cycle engine would have been prima
facie obvious.
Applicant argues that, unlike the claimed lubricants, the two-stroke cycle engine lubricants
disclosed by Davis ‘757 and '138 would be unable to withstand the harsh environment of the crankcase.
Appeal Brief (Paper 11), p. 5. No objective evidence has been provided that supports this position. The
argument of counsel unsupported by evidence in the record is of little weight in deciding patentability. Estee
Lauder, 129 F.3d at 593, 44 USPQ2d at 1615 (Fed. Cir. 1997). In any event, for the reasons stated
above, we hold that the Davis patents suggest the use of ashless lubricants. We note particularly the
teaching in Davis ‘138 that ashless lubricants should be used with “heavier duty two-cycle lubricants” to
avoid “deposit induced preignition.” Davis ‘138, 17:34-42 and Davis ‘757, 23:10-23 (Example B) .
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