11582913 (P.T.A.B. Jul. 21, 2014)

Ex Parte Doring

Patent Trial and Appeal BoardJul 21, 2014

11582913 (P.T.A.B. Jul. 21, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE 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 APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 11/582,913 10/18/2006 Andreas Doring MTDA,jaS0260 1892 7590 07/22/2014 ROBERT W. BECKER & ASSOCIATES Suite B 707 Highway 66 East Tijeras, NM 87059 EXAMINER TRAN, DIEM T ART UNIT PAPER NUMBER 3748 MAIL DATE DELIVERY MODE 07/22/2014 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte ANDREAS DORING ____________________ Appeal 2012-004359 Application 11/582,913 Technology Center 3700 ____________________ Before: MICHAEL L. HOELTER, LYNNE H. BROWNE, and JILL D. HILL, Administrative Patent Judges. BROWNE, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Andreas Doring (Appellant) appeals under 35 U.S.C. § 134 from the Examiner’s decision rejecting claims 1–19. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. Appeal 2012-004359 Application 11/582,913 2 CLAIMED SUBJECT MATTER The claims are directed to a method of avoiding undesired NO2 emissions of internal combustion engines. Claim 11, reproduced below, is illustrative of the claimed subject matter: 1. A method of reducing undesired NO2 emissions of an internal combustion engine that operates with excess air and has an exhaust gas section, the method including the steps of: providing said exhaust gas section with at least one catalytic converter that operates with NO oxidation activity, wherein said catalytic converter is adapted to increase the NO2 content in the exhaust gas of the internal combustion engine for exhaust gas post treatment processes that are adapted to follow; and during operation of the internal combustion engine, varying a content of materials that compete with the NO oxidation in such a way that a 1:1 ratio of NO: NO2 is always present downstream of said catalytic converter, wherein said varying step is adapted to all operating levels of the internal combustion engine and a state of said catalytic converter, whereby a conversion rate of said catalytic converter is regulated as a function of all operating conditions of the internal combustion engine throughout all of said operating conditions. REFERENCES The prior art relied upon by the Examiner in rejecting the claims on appeal is: Montreuil US 7,390,469 B2 Jun. 24, 2008 Chiffey Engeler US 2005/0016164 A1 EP 881367 A1 Jan. 27, 2005 Dec. 2, 1998 1 The copy of claim 1 in the Claims Appendix is not identical to claim 1 as amended in the Amendment filed October 19, 2010. We reproduce above claim 1 as amended in the Amendment filed October 19, 2010. Appeal 2012-004359 Application 11/582,913 3 REJECTIONS 1. Claims 1–19 stand rejected under 35 U.S.C. § 112 first paragraph as failing to comply with the written description requirement. 2. Claims 1, 2, 4–6, and 9–13 stand rejected under 35 U.S.C. § 102(e) as being anticipated by Montreuil. 3. Claims 3, 7, and 8 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Montreuil and Chiffey. 4. Claims 14 and 15 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Montreuil. 5. Claims 16–19 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Montreuil and Engeler. OPINION Written Description Claims 1–19 Appellant argues claims 1–19 together.2 We select independent claim 1 as the representative claim and claims 2–19 stand or fall with claim 1. See 37 C.F.R. § 41.37(c)(1)(vii) (2011). The Examiner determines that independent claims 1, 9, and 10 recite new matter because the phrase “a 1:1 ratio of NO:NO2 is always present downstream of said catalytic converter, wherein said varying step is adapted to all operating levels of the internal combustion engine ...” does not appear to be described in the original specification and drawings in a way to reasonably [convey] to one skilled in the art 2 App. Br. 7–8; Reply Br. 2–4. Appeal 2012-004359 Application 11/582,913 4 that the inventor had possession of the claimed subject matter at the time of the invention. Ans. 5. Appellant argues that: The features of original claim 1 that theoretical NO2 content is present in the exhaust gas that is required for a subsequent exhaust gas post treatment is only fulfilled then when the ratio of NO: NO2 equals 1:1. Thus, it must be clear that the ratio of NO: NO2 equals 1:1 is implicitly disclosed in the original specification (on page 5, first paragraph). App. Br. 8. When an explicit limitation in a claim is not present in the written description, it must be shown that a person of ordinary skill would have understood that the description requires that limitation. Hyatt v. Boone, 146 F.3d 1348, 1353 (Fed. Cir. 1998). Appellant’s argument is not convincing because Appellant has not shown that a person of ordinary skill in the art at the time of the invention would have known that the condition claimed in original claim 1 is only fulfilled when the ratio of NO:NO2 equals 1:1. Appellant further argues that: the limitation of “all operating conditions” (i.e., levels) is specifically disclosed in the original specification at page 10, lines 19-22, which states[:] “The NO2 emissions can thus be held to a minimum at all operating states of the internal combustion engine, taking into consideration the state of the catalytic converter that operates with NO2 oxidation activity” (emphasis added). App. Br. 8. While Appellant correctly quotes the Specification, claim 1 does not claim holding the NO2 emissions to a minimum at all operating states. Rather, claim 1 requires “whereby a conversion rate of said catalytic converter is regulated as a function of all operating conditions of the internal combustion engine throughout all of said operating conditions.” App. Br. Appeal 2012-004359 Application 11/582,913 5 18. Appellant does not identify, nor do we discern where the Specification provides support for this limitation. For these reasons, we sustain the Examiner’s decision rejecting independent claim 1, and claims 2–19 which fall therewith, as failing to comply with the written description requirement. Anticipation Claims 1, 2, 4–6, and 9–13 The Examiner finds, inter alia, that Montreuil discloses “varying a content of materials (hydrocarbons) that compete with the NO oxidation in such a way that a 1: 1 ratio of NO:NO2 content is always present downstream of said catalytic converter.” Ans. 5. Appellant notes that in the Montreuil method “the arrangement is only optimally adjustable for one operating level of the internal combustion engine by the design of the catalytic converters.” App. Br. 11. Appellant explains that “[i]f the raw emissions of the internal combustion engine deviate from those at this operating level, then the ratio of NO:NO2 after the catalytic conversion is no longer 1:1.” Id. Appellant argues that: This is completely different than the method of the present invention, in which when the operating level of the internal combustion engine changes, the amount of the hydrocarbon upstream of the catalytic converter for NO[- ]oxidation is increased or reduced depending on if the NO- oxidation catalytic converter is to oxidize more or less NO to NO2. [In the claimed method, h]ow much NO2 is required is determined by the chemical reactions occurring downstream of the NO-oxidation catalytic converter. Id. We agree. In Montreuil the ration of NO:NO2 exiting the catalytic converter is approximately 50:50 regardless of the amount of excess air downstream of the catalytic converter. Montreuil, Abstr. Appeal 2012-004359 Application 11/582,913 6 For these reasons, we do not sustain the Examiner’s decision rejecting independent claim 1 and claims 2, 4–6, and 9–13, which depend therefrom, as anticipated by Montreuil. Obviousness Claims 3, 7, 8, and 14–19 Chiffey does not cure the deficiency in Montreuil discussed supra. Accordingly, we do not sustain the Examiner’s decision rejecting claims 3, 7, and 8 as obvious in view of Chiffey. The Examiner’s determination that it would have been obvious to perform Montreuil’s method as a continuous control loop does not cure the deficiency in Montreuil discussed supra. Accordingly, we do not sustain the Examiner’s decision rejecting claims 14 and 15 as obvious in view of Montreuil. Engeler does not cure the deficiency in Montreuil discussed supra. Accordingly, we do not sustain the Examiner’s decision rejection claims 16– 19 as obvious in view of the combined teachings of Montreuil and Engeler. DECISION The Examiner’s rejection of claims 1–19 under 35 U.S.C. § 112, first paragraph is AFFIRMED. The Examiner’s rejections of claims 1–19 under either 35 U.S.C. § 102(e) or 103(a), as discussed supra, are REVERSED. Appeal 2012-004359 Application 11/582,913 7 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)(1)(iv). AFFIRMED hh