Ex Parte Breuer et al

Board of Patent Appeals and Interferences

Oct 26, 2009

10520109 (B.P.A.I. Oct. 26, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
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Ex parte NORBERT BREUER and STEFAN FISCHER
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Appeal 2009-001020
Application 10/520,109
Technology Center 3700
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Decided: October 26, 2009
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Before LINDA E. HORNER, JOHN C. KERINS, and MICHAEL W.
O’NEILL, Administrative Patent Judges.

O’NEILL, Administrative Patent Judge.

DECISION ON APPEAL

Norbert Breuer et al. (Appellants) seek our review under 35 U.S.C.
§ 134 of the final rejection of claims 20-22, 24-29, and 31-41. Appellants
argued the § 103 rejection of 20-22, 31-39, and 41 and the § 103 rejection of
claims 24-29 and 40. In view of Appellants’ arguments presented in the
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Appeal Brief, the Examiner indicated that claims 24-29 and 40 were
objected to as being dependent upon a rejected base claim, see Ans. 2.
Accordingly, the Examiner has withdrawn the rejection of those claims. See
MPEP § 1207.02. We have jurisdiction under 35 U.S.C. § 6(b) (2002).
The claimed invention is to an apparatus for cleaning exhaust gas
from an internal combustion engine. Spec. 1, ¶ 0002.
Claim 20, reproduced below, is illustrative of the subject matter on
appeal.
20. A method for purifying the exhaust gas stream in the
exhaust gas line (7) of an internal combustion engine (1),
of particles such as soot, the exhaust gas stream being
enriched with ozone, the method comprising the steps of
effecting a continuous enrichment of the exhaust gas
stream with ozone such that particles that are present are
to a great extent oxidized during the flow through the
exhaust gas line (7), measuring at least one of the
temperature of the exhaust gas and the particle content of
the exhaust gas downstream of the enriching, and
controlling the concentration of the ozone essentially as a
function of at least one of the temperature and the
particle content of the exhaust gas, such that the
remaining particle content of the exhaust gas stream does
not exceed a predetermined limit value.
The Examiner’s rejection that is now before us for review is the
rejection of claims 20-22, 31-39, and 41 under 35 U.S.C. § 103(a) as being
unpatentable over Birckigt (US 6,938,409 B2, issued Sep. 6, 2005) in view
of Caren (US 6,321,531 B1, issued Nov. 27, 2001).
The dispositive issue for this appeal is whether the scope and content
of the combination of Birckigt and Caren renders obvious the claimed
limitation of controlling the concentration of the ozone essentially as a
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function of at least one of the temperature and the particle content of the
exhaust gas.
Birckigt is directed to having diesel engine exhaust gases flow
through a ceramic soot filter such that the particles contained in the exhaust
gas are deposited and then oxidized to regenerate the filter. See Birckigt,
Abstract. As the Examiner has directed our attention, see Ans. 4, the plasma
regeneration of the filter can take place continuously and the plasma power
requirements are dictated by a function which causes the power to drop as
the filter temperature rises, and to rise as the emission of the particulates
rises. Birckigt, col. 4, ll. 49-52. The Examiner finds that this passage in
Birckigt satisfies the parts of the claimed method with respect to: effecting a
continuous enrichment of the exhaust gas stream, not with ozone, but with
an electric gas discharge, such that particles that are present are to a great
extent oxidized during the flow through the exhaust gas line; measuring at
least one of the temperature of the exhaust gas and the particle content of the
exhaust gas downstream of the enriching; and controlling the concentration
of electric gas discharge, instead of ozone, essentially as a function of at
least one of the temperature and the particle content of the exhaust gas, such
that the remaining particle content of the exhaust gas stream does not exceed
a predetermined limit value. See Ans. 4. The Examiner then finds that it
would have been obvious to utilize, in the Birckigt apparatus, Caren’s
teaching of generating ozone in a reaction chamber and to supply the ozone
to the exhaust gas in order to provide “a highly reactive gas species ozone
necessary to purify harmful emissions….” Ans. 4.
While, in the grounds of rejection, the Examiner acknowledges that
Birckigt fails to use ozone, the Examiner finds, in the Response to
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Argument, that Birckigt produces ozone based on several inferences. See
Ans. 7. Appellants reply that the Examiner’s finding that Birckigt produces
ozone is an error in fact and explain the theory behind Birckigt’s process that
reduces the levels of particle emissions. Reply Br. 2.
Birckigt breaks down the particulates on the filters by inducing
electron collisions with oxygen in a non-thermal plasma discharge to
produce oxygen free radicals. The oxygen free radicals react with the
carbon on the filter surface and form a surface bonded carbon monoxide.
Carbon monoxide forms carbon dioxide by a further oxidation process.
Birckigt, col. 6, ll. 4-30. As such, Birckigt does not describe producing
ozone.
The Examiner’s logic is flawed with respect to finding Birckigt
generates ozone. It is not reasonable or technically sound to infer that ozone
is necessarily produced in Birckigt, solely on the basis that one of the
Appellants’ manners of making ozone is with plasma generation and that
Birckigt uses plasma generation in its process of filter regeneration. Further,
we cannot find, nor has the Examiner cogently explained, how, if ozone is
produced, Birckigt would use the ozone to enrich exhaust gas downstream,
much less control the concentration of the ozone essentially as a function of
the measured temperature and/or particle content of the exhaust gas
downstream of the enrichment.
Caren describes using a corona discharge device to produce free
radicals and related gaseous species to reduce pollutants in an exhaust gas
stream. Caren, col. 11, l. 45 to col. 12, l. 65. One of the related gaseous
species that may be produced, depending upon the hydrocarbon species
present in the exhaust gas stream and whether conditions favoring branching
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reactions are present, is ozone. Id. The free radicals and gaseous species are
introduced preferably upstream of the catalytic converter. Id. Oxidation
occurs and essentially yields an exhaust stream free of any material other
than carbon dioxide, water, nitrogen, and methane. Id. While Caren
discloses that ozone may be produced, there is no disclosure, nor has the
Examiner cogently explained, how the ozone concentration would be
controlled, in either the Caren apparatus or the Birckigt apparatus, as a
function of temperature and/or particle content.
Accordingly, the combination of Birckigt and Caren fails to render
obvious controlling the concentration of the ozone essentially as a function
of temperature and/or particle content of the exhaust gas, such that the
remaining particle content does not exceed a value limit.
In view of the foregoing, Appellants have demonstrated error in the
Examiner’s findings with respect to the scope and content of the
combination of Birckigt and Caren.

DECISION
The Examiner’s decision to reject claims 20-22, 31-39, and 41 is
reversed.

REVERSED

Appeal 2009-001020
Application 10/520,109

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RONALD E. GREIGG
GREIGG & GREIGG P.L.L.C.
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