Ex Parte Crawley et al

Board of Patent Appeals and Interferences

Jun 22, 2009

10931092 (B.P.A.I. Jun. 22, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte WILBUR H. CRAWLEY and RANDALL J. JOHNSON
____________________

Appeal 2008-006352
Application 10/931,092
Technology Center 3700
____________________

Decided:1 June 22, 2009
____________________

Before: JENNIFER D. BAHR, JOHN C. KERINS and
STEVEN D.A. McCARTHY, Administrative Patent Judges.

McCARTHY, Administrative Patent Judge.

DECISION ON APPEAL

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304 (2008), begins to run from the
Decided Date shown on this page of the decision. The time period does not
run from the Mail Date (paper delivery) or the Notification Date (electronic
delivery).

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STATEMENT OF THE CASE 1
The Appellants appeal under 35 U.S.C. § 134 (2002) from the 2
decision of the Examiner finally rejecting claims 1 and 3-5 under 35 U.S.C. 3
§ 102(b) (2002) as being anticipated by Pischinger (US 4,730,455, issued 4
Mar. 15, 1988); finally rejecting claims 2, 6-9, 11 and 15-19 under 35 U.S.C. 5
§ 103(a) (2002) as being unpatentable over Pischinger, Shinzawa (US 6
4,610,138, issued Sep. 9, 1986) and Kemp (US 3,302,683, issued Feb. 7, 7
1967);2 and finally rejecting claims 10 and 12-14 under § 103(a) as being 8
unpatentable over Pischinger and Kemp.3 We have jurisdiction under 35 9

2 The Examiner states in the Answer that claims 11, 15 and 16 are
rejected over Pischinger and Shinzawa only. (See Ans. 8 and 9). Claims 11,
15 and 16 depend from claims 10 and 13, which the Examiner rejects over
Pischinger and Kemp. In stating the reasoning underlying the rejections of
claims 11, 15 and 16, the Examiner refers to “modified Pischinger” (see
Ans. 8 and 9), that is, Pischinger’s system modified in view of the teachings
of Kemp. Therefore, we construe the rejections of claims 11, 15 and 16 as
being over Pischinger, Shinzawa and Kemp.

3 The Examiner also cites the following prior art as being “Evidence
Relied Upon:”

Stark US 4,373,330 Feb. 15, 1983
Ludecke US 4,573,317 Mar. 4, 1986
Rao US 4,720,972 Jan. 26, 1988
Kusuda US 4,840,028 Jun. 20, 1989
Goerlich US 4,848,083 Jul. 18, 1989
Saito US 4,923,484 May 8, 1990
Goerlich US 4,945,722 Aug. 7, 1990
Langen US 5,045,097 Sep. 3, 1991
Shimato US 5,930,994 Aug. 3, 1999

The Examiner does not appear to rely on any of these references in any
appealed rejection.
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U.S.C. § 6(b) (2002). 1
We REVERSE. 2
The claims on appeal relate to emission abatement systems selectively 3
operating fuel-fired burners to regenerate particulate filters in the exhaust 4
systems of diesel truck engines. (See Spec. 3, ll. 13-23). Independent 5
claims 1 and 10 are typical of the claims on appeal: 6
7
1. An emission abatement assembly, 8
comprising: 9
a first particulate filter having a first fuel-10
fired burner positioned upstream thereof, 11
a second particulate filter having a second 12
fuel-fired burner positioned upstream thereof, and 13
a control unit configured to control 14
operation of both the first fuel-fired burner and the 15
second fuel-fired burner. 16
17
10. An emission abatement assembly, 18
comprising: 19
a first particulate filter having a first fuel-20
fired burner positioned upstream thereof, 21
a second particulate filter having a second 22
fuel-fired burner positioned upstream thereof, and 23
a control unit having a housing and an air 24
valve positioned in the housing, wherein a first 25
outlet of the air valve is coupled to the first fuel-26
fired burner, and a second outlet of the air valve is 27
coupled to the second fuel-fired burner. 28
29
ISSUES 30
Claims 3-5 depend ultimately from claim 1. The Examiner finds that 31
Pischinger discloses a control unit configured to control both a first fuel-32
fired burner and a second fuel-fired burner. (Ans. 3). The Appellants 33
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contend that Pischinger actually discloses separate control means controlling 1
each of Pischinger’s two burners. (App. Br. 5). The issues raised by this 2
appeal include: 3
Have the Appellants shown that the Examiner erred in 4
finding that Pischinger discloses a control unit configured to 5
control both a first fuel-fired burner and a second fuel-fired 6
burner? 7
Each of claims 2 and 6-16 recites, expressly or by dependency, an 8
emission abatement assembly including an air valve with a first outlet 9
coupled to a first fuel-fired burner and a second outlet coupled to a second 10
fuel-fired burner. Each of claims 17-19 recites, expressly or by dependency, 11
positioning an air valve in a first valve position to direct the flow of 12
combustion air to a first fuel-fired burner during regeneration of a first 13
particulate filter and positioning the air valve in a second valve position to 14
direct the flow of combustion air to a second fuel-fired burner during 15
regeneration of a second particulate filter. The Examiner reasons that Kemp 16
would have suggested improving Pischinger’s system by substituting a 17
single three-way air valve for two two-way air valves disclosed by 18
Pischinger “for the advantage of a reduced number of parts which would 19
reduce the overall cost of the system.” (Ans. 5). The Appellant disagrees. 20
(App. Br. 9). The issues raised by this appeal include: 21
Have the Appellants shown that the Examiner failed to 22
articulate reasoning with some rational underpinning sufficient 23
to support the conclusion that it would have been obvious from 24
the teachings of Pischinger and Kemp to use a single air valve 25
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to control air supply to two burners in an emission abatement 1
system or method? 2
Have the Appellants shown that the Examiner failed to 3
articulate reasoning with some rational underpinning sufficient 4
to support the conclusion that it would have been obvious from 5
the teachings of Pischinger, Shinzawa and Kemp to use a single 6
air valve to control air supply to two burners in an emission 7
abatement system or method? 8
9
FINDINGS OF FACT 10
The record supports the following findings of fact (“FF”) by a 11
preponderance of the evidence. 12
1. Pischinger discloses a system for regenerating two transversely 13
arranged particulate filter traps 1, 1′ including a pair of burners 7, 7′ 14
mounted upstream of the traps 1, 1′. (Pischinger, col. 1, l. 63 – col. 2, l. 2; 15
col. 2, l. 67 – col. 3, l. 5; col. 3, ll. 8-14 and Fig. 1). 16
2. Pischinger’s burners 7, 7′ have air inlet lines 17, 17′ and fuel 17
lines 12, 12′. (Pischinger, col. 3, ll. 26-28). The fuel lines 12, 12′ of 18
Pischinger’s burners 7, 7′ have fuel control valves 13, 13′. The air inlet lines 19
17, 17′ of Pischinger’s burners 7, 7′ have air control valves 19, 19′. 20
(Pischinger, col. 3, ll. 26-28 and 33-37). Control means 20, 20′ operate the 21
fuel control valves 13, 13′ in the fuel lines 12, 12′ and the air control valves 22
19, 19′ in the air inlet lines 17, 17′ so as to control the burners 7, 7′. 23
(Pischinger, col. 3, ll. 33-37; see also id., col. 3, ll. 44-45 and 66-67). 24
3. Pischinger further discloses that, when the filter 1 is to be 25
regenerated, the control 20 opens and then closes the fuel control valve 13 26
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and the air control valve 19 so as to direct a flame onto the filter 1 for a short 1
duration. Pischinger makes no disclosure regarding the function of the 2
control means 20′. (Pischinger, col. 3, ll. 33-37; see also id., col. 3, ll. 44-45 3
and 66-67). 4
5. Claims 8 and 10 of Pischinger recite processes for regenerating 5
one or more particulate filter traps. The two claims do not recite control 6
structure for controlling the processes. The Examiner identifies nothing in 7
the recited processes which necessarily would require the control of two 8
burners by a control unit. 9
6. Therefore, Pischinger does not expressly or necessarily disclose 10
a control unit configured to control both a first fuel-fired burner and a 11
second fuel-fired burner in an emission abatement system. 12
7. Pischinger teaches alternately directing a jet of high velocity 13
flame from each burner 7, 7′ onto its associated filter 1, 1′ for a short 14
duration. As each burner 7, 7′ directs a flame onto its associated filter 1, 1′ 15
to initiate combustion of the particulates collected in its associated filter 1, 16
1′, the high velocity flame jet diverts the exhaust gas to flow through the 17
other filter 1′, 1. In this manner, the flame jet which each burner 7, 7′ uses to 18
regenerate its associated filter 1, 1′ does not mix with the exhaust gas inflow. 19
(Pischinger, col. 2, ll. 3-14; see also id., claims 8 and 10). 20
8. Pischinger states that “[t]he combustion intervals of the 21
respective burners are short relative to the time for completing filter 22
regeneration, so that flame jets 30, 30′ alternately and intermittently push 23
away the exhaust gases in the areas of their nozzles and initiate 24
regeneration.” (Pischinger, col. 4, ll. 6-10). 25
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9. Pischinger does not disclose an air valve with an outlet coupled 1
to each of two burners. 2
10. Shinzawa discloses an exhaust particle removal system 3
including a filter 23, a burner 25, an engine-driven air pump 34 and a 4
pressure-operated three-way valve 35. (Shinzawa, col. 1, ll. 38-39; col. 3, ll. 5
26-27 and 29-32). The three-way valve 35 controls the supply of air from 6
the air pump 34 to a mixture injection tube and thence to the burner 25. 7
(Shinzawa, col. 2, l. 66 – col. 3, l. 3 and col. 3, ll. 26-46). In this manner, the 8
three-way valve controls the single burner 25. Shinzawa does not disclose 9
an air valve with an outlet coupled to each of two burners. 10
11. Kemp discloses a burner assembly 11 in a furnace for heat 11
treating a material in a controlled reducing atmosphere. (Kemp, col. 1, ll. 12
11-18). Kemp’s burner assembly 11 includes a refractory body 12 having a 13
burner cone 14 and an extraction cone 16. (Kemp, col. 3, ll. 25-30 and 34-14
38). 15
12. Kemp teaches preheating the combustion air by heat exchange 16
with exhaust gases. (Kemp, col. 1, ll. 36-42). Kemp discloses extracting 17
furnace gases from the furnace through the extraction cone 16 and then 18
mixing the furnace gases with air so that the furnace gases may be burned to 19
preheat the combustion air. (Kemp, col. 1, ll. 36-42; col. 2, ll. 8-14; col. 3, 20
ll. 34-38). 21
13. Kemp discloses the use of a flap valve 19 located at the 22
junction of the two air flow passages 15, 17 leading respectively to the 23
burner cone 14 and the extraction cone 16 to control and proportion the 24
airflow between the two passages. (Kemp, col. 3, ll. 39-46). 25
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14. Kemp discloses controlling and proportioning the flow of 1
supply air to provide the burner cone 14 the fuel-to-air ratio required to 2
maintain a correct CO/CO2 ratio in the furnace according to the operating 3
temperature and quality of the material being treated in the furnace. The 4
valve 19 supplies to the extraction cone 16 the balance of the air not 5
supplied to the burner cone 14. (Kemp, col. 2, ll. 15-28). 6
7
PRINCIPLES OF LAW 8
“To anticipate a claim, a prior art reference must disclose every 9
limitation of the claimed invention, either explicitly or inherently.” In re 10
Schreiber, 128 F.3d 1473, 1477 (Fed. Cir. 1997). A claim is unpatentable 11
for obviousness under 35 U.S.C. § 103(a) if “the differences between the 12
subject matter sought to be patented and the prior art are such that the 13
subject matter as a whole would have been obvious at the time the invention 14
was made to a person having ordinary skill in the art to which said subject 15
matter pertains.” In Graham v. John Deere Co., 383 U.S. 1 (1966), the 16
Supreme Court set out factors to be considered in determining whether 17
claimed subject matter would have been obvious: 18
19
Under § 103, the scope and content of the prior art 20
are to be determined; differences between the prior 21
art and the claims at issue are to be ascertained; 22
and the level of ordinary skill in the pertinent art 23
resolved. Against this background, the 24
obviousness or nonobviousness of the subject 25
matter is determined. 26
27
Id., 383 U.S. at 17. 28
29
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ANALYSIS 1
Pischinger does not expressly or inherently disclose a control unit 2
configured to control both a first fuel-fired burner and a second fuel-fired 3
burner in an emission abatement system. (FF 6). While Pischinger does 4
disclose two control means 20, 20′ which control two burners 7, 7′, the term 5
“control unit” as used in claim 1 cannot reasonably be interpreted 6
sufficiently broadly to include two control means. Since the Examiner 7
identifies no formal definition of the term “control means” in the 8
Specification, and since the ordinary usage of “control unit” is limited to “a 9
piece . . . of apparatus serving to perform one particular [control] function,” 10
WEBSTER’S THIRD NEW INT’L DICTIONARY at 2500 (G&C Merriam Co. 11
1971)(“unit,” def. 2d), the term “control unit” is not sufficiently broad to 12
encompass two control means. Therefore, Pischinger does not disclose a 13
control unit configured to control both a first fuel-fired burner and a second 14
fuel-fired burner. 15
Neither Pischinger nor Shinzawa discloses an air valve with an outlet 16
coupled to each of two burners. (FF 9-10). Pischinger teaches alternately 17
directing a jet of high velocity flame from each burner 7, 7′ onto its 18
associated filter 1, 1′ for a short duration. (FF 7). As a result, the intervals 19
during which Pischinger’s burners are active are short compared to the time 20
required to completely regenerate a filter. (FF 8). As the Appellants point 21
out (see App. Br. 9), one of ordinary skill in the art would understand 22
Pischinger to teach shutting off both burners for significant time intervals. 23
Kemp discloses the use of a flap valve to proportion the flow of 24
supply air between a burner cone and an afterburner downstream of an 25
extraction cone. (FF 13-14). The Examiner’s reasoning (see Ans. 5) does 26
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not suffice to explain why Kemp’s disclosure of a single three-way air valve 1
which proportions air supply between two burners would have provided one 2
of ordinary skill in the art reason to replace two air valves which shut off 3
both burners during significant time intervals. Therefore, the Examiner’s 4
reasoning does not support the conclusion that it would have been obvious 5
from the teachings of Pischinger, Shinzawa and Kemp to use a single air 6
valve to control air supply to two burners in an emission abatement system 7
or method. 8
9
CONCLUSIONS 10
The Appellants have shown that the Examiner erred in finding that 11
Pischinger discloses a control unit configured to control both a first fuel-12
fired burner and a second fuel-fired burner. Therefore, the Appellants have 13
shown that the Examiner erred in rejecting claims 1 and 3-5 under § 102(b) 14
as being anticipated by Pischinger. 15
The Appellants have shown that the Examiner failed to articulate 16
reasoning with some rational underpinning sufficient to support the 17
conclusion that it would have been obvious from the teachings of Pischinger 18
and Kemp to use a single air valve to control air supply to two burners in an 19
emission abatement system or method. Therefore, the Appellant has shown 20
that the Examiner erred in rejecting claims 10 and 12-14 under § 103(a) as 21
being unpatentable over Pischinger and Kemp. 22
The Appellants have shown that the Examiner has failed to articulate 23
reasoning with some rational underpinning sufficient to support the 24
conclusion that it would have been obvious from the teachings of Pischinger, 25
Shinzawa and Kemp to use a single air valve to control air supply to two 26
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burners in an emission abatement system or method. Therefore, the 1
Appellant has shown that the Examiner erred in rejecting claims 2, 6-9, 11 2
and 15-19 under § 103(a) as being unpatentable over Pischinger, Shinzawa 3
and Kemp. 4
5
DECISION 6
We REVERSE the rejections of claims 1-19. 7
8
REVERSED 9
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mls 15
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PAMELA A. KACHUR 19
950 W 450 S 20
BLDG. 4 21
COLUMBUS, IN 47201 22