Ex Parte Paterson et al

Patent Trial and Appeal Board

Oct 30, 2018

12497219 (P.T.A.B. Oct. 30, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/497,219 07/02/2009
53609 7590 11/01/2018
REINHART BOERNER VAN DEUREN P.C.
2215 PERRYGREEN WAY
ROCKFORD, IL 61107
FIRST NAMED INVENTOR
Clark Paterson
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
506907 6021
EXAMINER
LAURENZI, MARK A
ART UNIT PAPER NUMBER
3748
NOTIFICATION DATE DELIVERY MODE
11/01/2018 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):
RockMail@reinhartlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CLARK PATERSON, ED VAN DYNE, MARK R. WOOLSTON,
and GREGORY A. MOLENAAR
Appeal2018-000629
Application 12/497 ,219 1
Technology Center 3700
Before LINDA E. HORNER, BRETT C. MARTIN, and
RICHARD H. MARSCHALL, Administrative Patent Judges.
HORNER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants seek our review under 35 U.S.C. § 134(a) of the
Examiner's rejections of claims 2-12 and 14-26 under 35 U.S.C. § 103(a).
Non-Final Office Action (August 31, 2016) ("Non-Final Act."). We have
jurisdiction under 35 U.S.C. § 6(b).
1 Appellants identify Woodward, Inc. as the real party in interest. Appeal
Brief (January 23, 2017) ("Appeal Br."), at 2.
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Application 12/497 ,219
The Examiner rejected the claims as unpatentable over two
combinations of prior art. Appellants contest the first ground of rejection
arguing that the Examiner erred in certain findings as to the scope and
content of the prior art and provided insufficient reasoning for the proposed
combination. Appellants contest the second ground of rejection arguing that
the Examiner failed to provide sufficient evidence to support the prior art
combination. We agree with the Examiner's findings about the disclosures
of the prior art, and we find that the Examiner supported the proposed
modifications of the prior art with adequate evidence and reasoning. Thus,
we AFFIRM.
CLAIMED SUBJECT MATTER
The claimed subject matter relates to "a system and method for
determining soot and ash accumulation in a [ diesel particulate filter]."
Specification (July 2, 2009) ("Spec."), ,r 1. Claims 2, 5, 9, 12, 14, 16, 19,
and 20 are the independent claims. Claims 2 and 5 illustrate the subject
matter on appeal and are reproduced below with the disputed claim language
shown in italics for emphasis.
2. A method of detecting conditions of a diesel
particulate filter (DPF) used in an exhaust system of a diesel
engine, the exhaust system including a heat addition device for
initiating a regeneration of the DPF, the heat addition device
being controlled by a controller programmed with a regeneration
algorithm that determines when to initiate the regeneration
process, at least one sensor is coupled to the controller for
monitoring input characteristics of exhaust entering the DPF
including at least one temperature sensor for monitoring an input
temperature of the exhaust entering the DPF and at least one
sensor for monitoring an output temperature of the exhaust
exiting the DPF, the method comprising the steps of:
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Application 12/497 ,219
determining an estimated thermal exit temperature profile
of the exhaust exiting the DPF based at least in part on the input
characteristics of the exhaust entering the DPF;
measuring the output temperature of the exhaust exiting
the DPF to determine an actual thermal exit temperature profile
of exhaust exiting the DPF;
comparing the estimated thermal exit temperature profile
to the actual thermal exit temperature profile to determine a
difference therebetween;
determining the condition of the DPF by analyzing the
difference;
initiating a regeneration of the DPF; and
wherein the step of analyzing comprises the steps of:
integrating the difference between the estimated thermal
exit temperature profile and the actual thermal exit temperature
profile to determine an amount of soot burned during
regeneration; and
adjusting an initiation of a subsequent regeneration based
on the amount of soot burned during the regeneration relative to
a predicted amount of soot burned during the regeneration.
5. A method of detecting conditions of a diesel
particulate filter (DPF) used in an exhaust system of a diesel
engine, the exhaust system including a heat addition device for
initiating a regeneration of the DPF, the heat addition device
being controlled by a controller programmed with a regeneration
algorithm that determines when to initiate the regeneration
process, at least one sensor is coupled to the controller for
monitoring input characteristics of exhaust entering the DPF
including at least one temperature sensor for monitoring an input
temperature of the exhaust entering the DPF and at least one
sensor for monitoring an output temperature of the exhaust
exiting the DPF, the method comprising the steps of:
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determining estimated thermal exit temperature data of the
exhaust exiting the DPF based at least in part on the input
characteristics of the exhaust entering the DPF;
measuring the output temperature data of the exhaust
exiting the DPF to determine actual thermal exit temperature data
of exhaust exiting the DPF;
comparing the estimated thermal exit temperature data to
the actual thermal exit temperature data, and determining a
difference therebetween;
determining the condition of the DPF by analyzing the
difference;
initiating an enhanced regeneration of the DPF to establish
a baseline clean condition of the DPF;
after completion of the enhanced regeneration, applying a
heat pulse to the DPF, the heat pulse comprising a temperature
increase followed by a temperature decrease;
determining the estimated thermal exit temperature data of
the exhaust exiting the DPF based at least in part on the input
temperature of the exhaust entering the DPF during the heat
pulse;
measuring the output temperature of the exhaust exiting
the DPF during the heat pulse to determine actual thermal exit
temperature data of the exhaust exiting the DPF during the heat
pulse;
comparing the estimated thermal exit temperature data
during the heat pulse to the actual thermal exit temperature data
during the heat pulse, and determining a calibration difference
therebetween; and
calibrating the step of determining estimated thermal exit
temperature data of exhaust exiting the DPF during a subsequent
process based on the calibration difference.
Appeal Br. 26-28 (Claims Appendix).
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Application 12/497 ,219
Schonauer
Singh
He
EVIDENCE
US 6,432,168 B2
US 2008/0034738 Al
US 8,443,589 B2
REJECTIONS
Aug. 13, 2002
Feb. 14,2008
May 21, 2013
The Non-Final Office Action includes the following rejections2 :
1. Claims 2--4, 7, 8, 14, 15, 17, 18, and 23 are rejected under
35 U.S.C. § I03(a) as unpatentable over Singh and Schonauer.
2. Claims 5, 6, 9-12, 16, 19-22, and 24-26 are rejected under
35 U.S.C. § I03(a) as unpatentable over Singh and He.
ANALYSIS
Unpatentability over Singh and Schonauer
The Examiner found that Singh discloses the method of claim 2
including comparing an estimated temperature rise across a soot filter to an
actual temperature rise across the soot filter to determine the amount of soot
burned. Non-Final Act. 7-8. The Examiner found that Singh does not
explicitly disclose determining an estimated thermal exit temperature profile
and an actual thermal exit temperature profile and integrating the difference
between these profiles to determine the amount of soot burned during
regeneration. Id. at 8-9. The Examiner found Schonauer teaches that
integrating a difference between estimated and actual thermal profiles to
determine the amount of soot burned is an alternative to Singh's technique.
Id. at 9. The Examiner determined that it would have been obvious to one of
2 The Examiner also rejected claims 2-6, 9-11, 14-16, and 19-22 under
35 U.S.C. § 101 as directed to patent ineligible subject matter. Non-Final
Act. 5. The Examiner subsequently withdrew this rejection. Examiner's
Answer (August 30, 2017), at 2.
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Application 12/497 ,219
ordinary skill in the art to use Schonauer's art-recognized equivalent
integration technique in place of Singh's technique for determining the
amount of soot burned. Id.
Appellants present four arguments alleging error in the rejection of the
claims subject to the first ground of rejection. 3 First, Appellants argue that
Singh teaches away from the integration method disclosed in Schonauer.
Appeal Br. 19--21 (citing Singh ,r,r 9, 13). Singh does not teach away.
Paragraph 9 of Singh teaches that measuring differential pressure across a
diesel particulate filter to estimate the amount of particulate matter
accumulated in the filter has drawbacks. Singh ,r 9. Singh explains that the
differential pressure technique does not account for certain variables, such as
variations in engine operating conditions, and it integrates errors over time
and deviates from real soot loading conditions. Id. Singh again discourages
the use of differential pressure sensors in applications that spend extended
periods at low flows, because the sensors require significant exhaust flow
rates to be reliable. Id. ,r 13. Singh prefers instead a mixed sensor and
model-based approach, even though the mixed approach degrades over long
periods without any direct soot measurements. Id. Singh does not
discourage the use of a technique based on temperature differences across a
filter during regeneration and using an integration technique to estimate the
amount of soot burned during regeneration, as claimed. Thus, we do not
3 Appellants argue the claims subject to the first ground of rejection as a
group. Appeal Br. 19-23. We select independent claim 2 as representative
of the group. The remaining claims subject to the first ground stand or fall
with claim 2. See 37 C.F.R. § 4I.37(c)(l)(iv).
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Application 12/497 ,219
find error in the Examiner's proposed modification of Singh with the
integration technique of Schonauer.
Second, Appellants argue that the Examiner improperly relied on
paragraph 7 5 of Singh to teach a temperature measurement, rise, or
comparison of the filter temperature. Appeal Br. 21. Appellants also argue
that the combination of Singh and Schonauer does not teach determining an
estimated thermal exit temperature rise of the exhaust exiting the filter based
on characteristics of the exhaust entering the filter or temperature of the fluid
entering the filter. Id.
In the Non-Final Action, the Examiner found that paragraphs 78
through 79 of Singh disclose comparing an estimated temperature rise across
the filter to the actual temperature rise across the filter to determine an
amount of soot burned. Non-Final Act. 8. We find no error in this reading
of Singh. Singh describes soot verification module 226 observes the
temperature rise across soot filter 126 and compares the observed
temperature rise to an expected temperature rise. Singh ,r 78. Singh
describes estimating the expected temperature rise from the rate of
temperature generation within the soot filter, the exhaust flow, and the
temperature of the exhaust flow upstream of the soot filter. Id. Thus, we
understand Singh's estimated temperature rise across the filter is based, at
least in part, on the temperature of the exhaust entering the filter.
Singh teaches that soot verification module 226 is important because
few opportunities may exist to make direct measurements of soot in soot
filter 126. Id. ,r 81. Singh describes that a higher than expected observed
temperature rise may indicate more soot on soot filter 126 than estimated,
and a lower than expected observed temperature rise may indicate less soot
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on soot filter 126 than estimated. Id. Singh teaches increasing or decreasing
the frequency of regeneration of the filter according to the results from the
soot verification module. Id. In sum, Singh teaches analyzing the difference
between the actual temperature rise across the filter and the expected
temperature rise across the filter to determine the amount of soot burned in
the soot filter and adjusting subsequent regeneration accordingly. Thus, the
Examiner did not err in the findings as to the scope and content of Singh.
Third, Appellants challenge the Examiner's articulated reason for the
combination of Singh and Schonauer. Appellants argue that Singh's soot
verification module 226 determines the amount of soot burned during
regeneration, and, thus, a person having ordinary skill in the art would have
had no reason to seek out other teachings to determine this amount. Appeal
Br. 22 ( citing Ex parte Rinkevich, Appeal 2007-1317 (BP AI May 29, 2007)
( non-precedential)).
The Examiner explained that the claimed integration of the difference
between the estimated and actual thermal exit temperature profiles to
determine the amount of soot burned during regeneration is not a patentable
distinction over the prior art in light of Schonauer' s teaching that the
claimed integration technique was a known alternative method to the method
disclosed in Singh for determining soot loading. Ans. 3 ( citing Schonauer,
col. 6, 11. 46-65). Appellants respond that if the methods in Singh and
Schonauer are equivalent, then no motivation or advantage comes from
substituting Singh's technique with Schonauer's technique. Reply Brief
(October 24, 2017), at 15.
We find no error in the Examiner's determination of obviousness
based on the simple substitution of Singh's method of determining the
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amount of soot burned during regeneration for another method of
determining the same parameter known in the field, where the combination
yields a predictable result. See KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398,
416 (2007) ("[W]hen a patent claims a structure already known in the prior
art that is altered by the mere substitution of one element for another known
in the field, the combination must do more than yield a predictable result.").
Fourth, Appellants argue that Schonauer does not teach integrating
the difference between the estimated thermal exit temperature profile and the
actual thermal exit temperature profile to determine an amount of soot
burned during regeneration because Schonauer does not teach using curves 1
and 2 of Figure 5 with an integration function. Appeal Br. 23. The
Examiner relies Schonauer's discussion of Figure 5 in columns 6 and 7.
Non-Final Act. 9; Ans. 3-4. We find no error in the Examiner's reading of
Schonauer.
Figure 5 of Schonauer depicts reference curve 1, which illustrates the
temperature curve of the molded element without soot loading, and curve 2,
which illustrates the temperature progression of the molded element with
soot loading. Schonauer, col. 6, 11. 43-53. Schonauer describes, "Due to the
combustion of the soot, higher temperatures are reached in curve 2 than in
curve 1." Id. at col. 6, 11. 53-55. Schonauer teaches using the difference
between the maximum temperatures Tl and T2 of curves 1 and 2,
respectively, to calculate the amount of soot on the molded element. Id. at
col. 6, 11. 55-57. Schonauer states, "Of course, for an average technician,
instead of such a mathematical evaluation of the curves as to their slope, an
integral formation or an evaluation over time is also possible." Id. at col. 6,
11. 62-65. We understand this sentence to provide two alternatives to
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evaluating the slope of the curves, i.e., either "integral formation" or "an
evaluation over time." We agree with the Examiner's understanding of this
sentence of Schonauer to teach that one having ordinary skill in the art could
use the difference between the integrations of curves 1 and 2, in place of the
differences between the maximum temperatures of curves 1 and 2 to
determine the amount of soot combusted. As the Examiner explained,
Schonauer does not describe how to perform an integration of each curve
because an average technician would know how to perform this technique.
Ans. 4.
By contrast, an average technician may not necessarily know what
Schonauer means by the second alternative technique, i.e., "an evaluation
over time." Thus, Schonauer provides an example of this technique.
Schonauer, col. 6, 1. 65 - col. 7, 1. 12 (describing a method that analyzes how
long a soot sensor has a temperature T above a temperature Tx and
calculates a difference between the time curve 1 is above Tx and the time
curve 2 is above Tx to determine the amount of soot combusted). We
disagree with Appellants' assertion that this description of an example
evaluation over time is the "integral formation" referred to in the prior
sentence of Schonauer.
In the end, we agree with the Examiner's findings as to the disclosures
in Singh and Schonauer, and we find that the Examiner articulated adequate
reasoning for the proposed modification of Singh with the teachings of
Schonauer for a determination of obviousness. Thus, we sustain the
rejection of claims 2--4, 7, 8, 14, 15, 17, 18, and 23 under 35 U.S.C. § 103(a)
as unpatentable over Singh and Schonauer.
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Unpatentability over Singh and He
The Examiner found that Singh discloses the method of claim 5
including initiating an enhanced baseline regeneration of the soot filter, but
Singh does not explicitly teach applying a heat pulse to the soot filter after
completion of the enhanced regeneration. Non-Final Act. 15-16. The
Examiner found that He teaches applying a heat pulse to calibrate a diesel
oxidation catalyst. Id. at 16-17. The Examiner determined that it would
have been obvious to one of ordinary skill in the art to have incorporated
He's calibration routine in the method of Singh to provide an effective check
and feedback on Singh's soot filter. Id. at 17.
Appellants argue that the Examiner has failed to show that one having
ordinary skill in the art would have understood He's techniques for verifying
proper operation of a diesel oxidation catalyst to be applicable to
determining soot loading in Singh's diesel particulate filter during and after
regeneration. 4 Appeal Br. 24-25. The Examiner responds that "He is relied
upon solely for the teaching that an intrusive test (i.e., in the form of a heat
pulse) can be performed to test a thermal response of a temperature-
dependent/ catalyzed exhaust gas treatment component" such as Singh's
filter. Ans. 4-5. Appellants reply that that the Examiner's proposed
modification to Singh based on the teachings of He, as articulated in the
Office Action and Answer, are "inconsistent." Reply Br. 16. Appellants do
not explain this alleged inconsistency, and we fail to see it.
4 Appellants argue the claims subject to the second ground of rejection as a
group. Appeal Br. 24-25. We select independent claim 5 as representative
of the group, and the remaining claims subject to the second ground stand or
fall with claim 5. See 3 7 C.F .R. § 41.3 7 ( c )( 1 )(iv).
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Appellants also argue that the Examiner failed to provide adequate
evidence to support the position that He's calibrating routine could be used
to test the thermal response of a soot filter. Reply Br. 16. We find sufficient
evidence in the art to support the Examiner's findings.
Singh describes that the soot verification module may be configured
"to test the accuracy of a soot loading estimate." Singh ,r 22. Singh
explains, "The soot verification module may utilize the current conditions of
a soot filter to predict a temperature rise based on soot combustion, and the
soot verification module may compare an observed temperature rise to the
expected temperature rise to test the soot loading estimate." 5 Id. Singh
describes performing "a diagnostic test when the regeneration indicator is
active" that includes a soot filter temperature rise check. Id. ,r,r 24, 99,
Fig. 7.
He discloses a testing system for a diesel oxidation catalyst, which sits
upstream of the diesel particulate filter. He, col. 1, 1. 45; Fig. 1. He's testing
involves initiating a post-fuel injection process to heat the exhaust gases to
the filter by oxidizing fuel in diesel oxidation catalyst and comparing the
predicted temperature at the exit of the catalyst with the measured
temperature at the exit of the catalyst to verify proper operation of the diesel
oxidation catalyst. Id. at col. 3, 11. 43-53, col. 4, 11. 1-24. Thus, He teaches
testing the efficiency of a diesel oxidation catalyst through a post-fuel
injection process to heat the exhaust gases and then comparing a measured
temperature rise of the gases across the catalyst to an expected temperature
rise to verify the proper operation of the catalyst.
5 Singh similarly uses an expected temperature rise and an observed
temperature rise to test the efficacy of the catalytic component. Id. ,r 21.
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As discussed above, Singh recognizes that a similar comparison of a
measured and expected temperature rise across the soot filter can be used to
assess the amount of soot loading in the soot filter. Based on the knowledge
in the art about testing of a soot filter using a temperature rise across the soot
filter during regeneration, and the knowledge in the art of a post-fuel
injection technique for testing the proper operation of other
temperature-dependent components of an exhaust gas system using expected
and measured temperature rises across these components, it would have been
obvious to apply He's testing system to test the proper operation of the soot
filter. We find that a person of ordinary skill in the art would recognize that
He's technique would improve Singh's diagnostic method in the same way
as disclosed in He, and that application of this technique to Singh's system
would not have been beyond the skill of a person of ordinary skill in the art.
See KSR Int 'l Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007). Thus, we do
not find error in the Examiner's determination of obviousness.
Appellants also challenge, for the first time in the Reply Brief, the
Examiner's finding that He discloses the claimed "heat pulse." Id. The
Examiner made this finding in the Non-Final Office Action. Non-Final
Act. 16. This argument is not responsive to an argument raised in the
Examiner's Answer, and Appellants have not explained why they did not
raise this argument earlier. Thus, Appellants have not shown good cause for
the Board to consider this new argument presented for the first time in the
Reply Brief. See 37 C.F.R. § 4I.41(b)(2). Appellants' argument is
untimely, and we will not consider it.
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DECISION
The decision of the Examiner rejecting claims 2-12 and 14-26 is
affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l )(iv).
AFFIRMED
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