Appeal No. 2006-0109 Παγε 6
Application No. 10/350,187
intake cam phaser 18 and ETC 20 to ensure smooth engine
operation.
Even assuming the examiner is correct that the Kabasin switching algorithm results in
smooth engine operation without sudden increases in torque, it is essential to keep in
mind that Kabasin achieves such results by controlling the operation of two-step
switching device 16, intake cam phaser 18 and ETC 20, not just the two-step switching
device and phaser. Consequently, without further details of the algorithm, it would be
speculative to assume that any avoidance in sudden torque shifts results from ensuring
that one condition variable of the combustion does not change rather than, for example,
changes in two condition variables which offset one another in their effects on torque. It
is well established that an anticipation rejection cannot be predicated on an ambiguous
reference. Rather, disclosures in a reference relied on to prove anticipation must be so
clear and explicit that those skilled in the art will have no difficulty in ascertaining their
meaning. In re Turlay, 304 F.2d 893, 899, 134 USPQ 355, 360 (CCPA 1962).
For the foregoing reasons, we cannot sustain the examiner’s rejection of claims
1-3, 6 and 9-12 as being anticipated by Kabasin. We see nothing in the examiner’s
application of Sondermann which makes up for the above-noted deficiency of Kabasin.
Thus, we also cannot sustain the examiner’s rejection of claim 7 as being unpatentable
over Kabasin in view of Sondermann.
REMAND TO THE EXAMINER
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