Ex Parte Heinstein et al

Board of Patent Appeals and Interferences

Jun 11, 2009

11042455 (B.P.A.I. Jun. 11, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte AXEL HEINSTEIN and KLAUS RIES-MUELLER
____________

Appeal 2009-000623
Application 11/042,455
Technology Center 3700
____________

Decided:1 June 12, 2009
____________

Before: JENNIFER D. BAHR, LINDA E. HORNER, and STEVEN D.
McCARTHY, Administrative Patent Judges.

BAHR, 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, 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 Notification Date (electronic delivery).
Appeal 2009-000623
Application 11/042,455

2
STATEMENT OF THE CASE
Axel Heinstein et al. (Appellants) appeal under 35 U.S.C. § 134 from
the Examiner's decision rejecting claims 1, 2, 4, 5, 9, and 10. Claim 3 was
canceled. Claims 6-8 were indicated as allowable. We have jurisdiction
over this appeal under 35 U.S.C. § 6 (2002).

The Invention
Appellants' claimed invention is directed to a method of diagnosing an
adjusting device situated in an exhaust duct of an internal combustion
engine. Specification 2:15-16, 7:1. Adjusting device 25 contains a valve 40
that moves between positions 41 and 42 to direct exhaust gases to exhaust
paths 26 and 27, respectively. Fig. 1. Upstream of adjusting device 25 are
sensors 21-24, while downstream of both paths 26 and 27 are sensors 30-33.
Naturally, gases directed through path 26 would take less time to reach
sensors 30-33 than gases directed through the longer path 27. Specification
7:1-9, fig. 1. If a change in some characteristic of the exhaust gases were
measured at sensors 21-24, the time it took for this same change to be
measured at sensors 30-33 would indicate the transit time the gases needed
to travel through a path. Specification 7:1-9. The identity of the path taken
by the gases could then be determined by the transit time, with a longer
transit time indicative of the gases traveling down the longer path 27. Id.
Therefore, by knowing which path the gases took, compared to which path
the gases were supposed to take, one would know whether or not adjusting
device 25 was operating properly. Id.
Claim 1, reproduced below, is illustrative of the claimed invention.
Appeal 2009-000623
Application 11/042,455

3
1. A method for operating an internal combustion
engine, in which a diagnosis is performed of an
adjusting device situated in an exhaust duct of the
internal combustion engine, which distributes
exhaust gas between a first exhaust-gas path and at
least one second exhaust-gas path, the method
comprising:
comparing a transit time from a change of a
characteristic quantity of the exhaust gas in front
of the adjusting device until an appearance behind
the adjusting device detected by a sensor to a
specified transit time threshold value, the transit
time threshold value being established as a
function of a setpoint position of the adjusting
device;
providing a fault signal in the event of at
least one of (a) a deviation from and (b) an
exceedance of the threshold value; and
detecting the change of the characteristic
quantity in front of the adjusting device by a
further sensor.

The Rejections
Appellants seek review of the Examiner's rejection under 35 U.S.C.
§ 103(a) of claims 1, 2, 4, 5, 9, and 10 as being unpatentable over Takakura
(US 6,477,830 B2, issued Nov. 12, 2002) in view of Ueno (US 7,062,968
B2, issued Jun. 20, 2006).

Appeal 2009-000623
Application 11/042,455

4
SUMMARY OF DECISION
We REVERSE.

ISSUES
The Examiner finds that Takakura discloses the subject matter of
claim 1, with the exception of the step of detecting the change of the
characteristic quantity (humidity) in front of the adjusting device by a further
sensor. Ans. 3-4. The Examiner concludes, however, that, in view of the
teachings of Ueno, “it is at least obvious” to a person of ordinary skill in the
art that Takakura further detects a change in exhaust gas humidity in front of
the adjusting device (valve 18) by a further humidity sensor. Ans. 4.
Appellants argue that there is no reason to detect exhaust gas humidity
upstream of Takakura’s adjustment device (valve 18). Reply Br. 2-3.
Appellants argue claims 1, 2, 4, 5, 9, and 10 as a group.
The issue presented in this appeal is whether Appellants have shown
that the Examiner has failed to articulate a reason with rational underpinning
for modifying Takakura by detecting the change of the characteristic
quantity in front of the adjusting device by a further sensor, as recited in
claim 1 (or providing a means, including a further sensor, for detecting the
change of the characteristic quantity in front of the adjusting device, as
called for in claim 10).

FACTS PERTINENT TO THE ISSUES
FF1 Takakura describes an apparatus for determining faults in an exhaust
passage switching valve 18 (the adjusting device). Abstract; col. 7, ll.
44-46. Exhaust passage switch 8 in adjusting device 18 directs
Appeal 2009-000623
Application 11/042,455

5
exhaust gases between main exhaust passage 14 and bypass exhaust
passage 15. Col. 6, ll. 1-17, col. 7, ll. 20-43, fig. 2. Humidity sensor
22 determines the humidity of exhaust gases after they have passed
through either main exhaust passage 14 (via holes 12a) or bypass
exhaust passage 15. Col. 7, ll. 44-50, fig. 2. Path 15 contains a
hydrocarbon (HC) adsorbent 13 that also adsorbs moisture from the
exhaust gases. Col. 6, ll. 29-39. Over time, the HC filter 13 becomes
saturated and gradually stops adsorbing moisture from the exhaust
gas. Col. 12, ll. 33-40. Consequently, if the exhaust switch 8 and
adjusting device 18 are operating properly to direct the exhaust into
passage 15, the humidity sensor 22 detects a gradual increase in
humidity. Id. On the other hand, if the exhaust switch 8 and adjusting
device 18 are not operating properly, such that exhaust is flowing not
at all or not sufficiently into passage 15, the humidity sensor 22
detects either no increase or a smaller increase. Col. 12, ll. 43-49.
Using this knowledge, an initial humidity level at sensor 22 (DINI) is
measured at engine startup and compared to a later humidity level at
sensor 22 (D). Col. 9, ll. 43-46, fig. 3 at S3, col. 11, ll. 36-38, 49-63,
fig. 5 at S24, S26. If the humidity change is less than expected, then it
is determined that the switching valve 18 has failed. Col. 3, ll. 34-47,
col. 12, ll. 41-49.
FF2 Takakura describes that the apparatus for determining faults in an
exhaust passage switching valve can operate in several embodiments.
The first embodiment checks the humidity of sensor 22 compared to
an initial reading after a set amount of time, TVLV. Col. 11, ll. 39-54,
fig. 5. Another embodiment determines a time taken until a
Appeal 2009-000623
Application 11/042,455

6
previously set humidity level is reached after the start of the engine.
Col. 13, ll. 35-44.
FF3 The Examiner finds that Takakura does not describe detecting the
change of the characteristic quantity in front of the adjusting device
by a further sensor. Ans. 4.
FF4 Ueno describes a temperature control apparatus for a humidity sensor.
Abstract. Humidity sensor 19 is exposed to an internal combustion
engine's exhaust gases to measure the humidity of the gases after they
pass through HC filter 10. Col. 1, ll. 34-49, col. 5, ll. 57-60, fig. 2.
However, water droplets and unburnt fuel can stick to the humidity
sensor, causing erroneous readings, especially immediately after the
engine starts and the sensors are cold. Col. 1, ll. 49-56, fig. 10. The
erroneous readings come initially from condensation and over a
longer time from stuck-on impurities in the exhaust gases. Col. 3, ll.
17-23, 61-67. Therefore, Ueno describes a heater 21 near humidity
sensor 19 to prevent impurities from sticking to the sensor 19,
restoring the sensor to its original working condition. Col. 2, ll. 62-
67.
FF5 Takakura describes the calculation of a saturated absolute humidity
value DS using a formula shown in fig. 4. This value is calculated
using the HC filter's temperature (TTRS) and the atmospheric
pressure (PA) at engine start-up. Col. 9, ll. 12-18, figs. 3, 4. TTRS
and PA may also be obtained by a sensor attached to exhaust pipe 4 or
the engine air intake. Col. 9, ll. 19-26, 27-31. The value DS is used
to determine whether or not the ambient meteorological conditions
will cause the HC filter 13 to be saturated before the test is over, such
Appeal 2009-000623
Application 11/042,455

7
that the expected change in humidity is not reached in the expected
amount of time. Col. 10, ll. 1-16, figs. 3, 7. In this situation, the test
will indicate that the adjusting device 18 has failed even if no such
failure occurred. Id. As such, the value DS is calculated once and is
not a measure of the humidity of exhaust gases.
FF6 Takakura recognizes several situations in which the fault test should
not be determined. Fig. 3, fig. 5. If the temperature is too hot or too
cold, the sensor 22 does not operate properly. Col. 8, 49-65, fig. 3 at
S1. Too hot means the engine has recently been running and too cold
means the temperature is below the operable range of the sensor. Id.
If the weather conditions are such that a saturated absolute humidity
level is reached early, the test gives a false positive. FF5.
FF7 Ueno does not teach or suggest providing a humidity sensor upstream
of an adjusting device (switching valve) to detect humidity upstream
of the adjusting device.

PRINCIPLES OF LAW
Rejections on obviousness grounds must be supported by “some
articulated reasoning with some rational underpinning” to combine the
known elements in the manner required in the claim at issue. KSR Int’l. Co.
v. Teleflex Inc., 550 U.S. 398, 418 (2007). However, “the analysis need not
seek out precise teachings directed to the specific subject matter of the
challenged claim, for a court can take account of the inferences and creative
steps that a person of ordinary skill in the art would employ.” Id. In making
a rejection on the basis of obviousness, the examiner has the initial duty of
supplying the requisite factual basis and may not, because of doubts that the
Appeal 2009-000623
Application 11/042,455

8
invention is patentable, resort to speculation, unfounded assumptions or
hindsight reconstruction to supply deficiencies in the factual basis. In re
Warner, 379 F.2d 1011, 1017 (CCPA 1967).

ANALYSIS
As shown above, Takakura describes diagnosing an adjusting device
18 (FF1) by comparing a time until humidity sensor 22 reaches a threshold
humidity value (FF2). The sensor 22 is behind adjusting device 18 (FF1),
and a fault signal is generated if a deviation occurs from the threshold (FF1,
FF2). Takakura does not describe detecting the change of the characteristic
quantity in front of the adjusting device by a further sensor. FF3. Ueno
describes a humidity sensor 19 with a heater 21 that aids in the elimination
of condensation that causes faulty humidity readings, especially after engine
start-up. FF4. Ueno does not teach or suggest placing a humidity sensor
upstream of the adjusting device. FF7.
The Examiner states Takakura describes several upstream sensors to
obtain an initial humidity value DINI at engine start-up. Ans. 7. Next, the
Examiner reasons that the humidity sensor 22 of Takakura could not be used
at engine start-up to give an initial humidity reading because of the
condensation problems described by Ueno. Ans. 4, 7-8. Therefore,
according to the Examiner, one of ordinary skill would need to use a
humidity sensor other than sensor 22 to get the initial humidity value. Ans.
7. The Examiner further reasons that one of ordinary skill would have
reason to place this second humidity sensor in the engine air intake, located
upstream of the adjusting device 18, because of the existence of other
sensors in the engine air intake, such as an air pressure sensor. Id., see FF5.
Appeal 2009-000623
Application 11/042,455

9
Appellants argue that neither the references nor the Examiner give a
reason to position a second sensor upstream of the adjustment device. Reply
Br. 3. Specifically, Takakura does not need to know the humidity of the
upstream air to test adjustment device 18. Id.
The initial humidity value (DINI) in Takakura is measured by sensor
22 (FF1), not by upstream sensors as indicated by the Examiner (Ans. 7).
The saturated absolute humidity (DS) is calculated by upstream sensors, but
this value is not a measure of the humidity of the exhaust gases. FF5.
Further, if a humidity value were read from a sensor located in the engine
intake, as suggested by the Examiner (Ans. 7), this sensor would measure
the humidity of the intake gas, not the exhaust gas, failing to meet the
limitations of claims 1 and 10. The Examiner makes no finding that the
initial exhaust gas humidity would be the same as the intake gas humidity.
Takakura describes detecting a fault in the switching valve 18 by
monitoring whether switching valve 18 is diverting exhaust gas into HC
filter 13 so as to cause the HC adsorbent to saturate over time. Takakura
need measure only the absolute humidity of the exhaust gas downstream
from HC filter 13 because a decline in the moisture content of the exhaust
gas downstream of filter 13 suffices to show that exhaust gas is being
diverted into the adsorbent. See FF1. Detecting a change in humidity in
front of switching valve 18 by means including a further sensor would not
help in knowing if HC filter 13 is removing water from the exhaust gases.
Even if a further humidity sensor were placed upstream of the
adjusting device solely for getting a more accurate initial humidity reading
as the Examiner suggests (which would not detect a change, as called for in
claims 1 and 10), this second sensor seemingly would fall prey to the same
Appeal 2009-000623
Application 11/042,455

10
accuracy concerns described in Takakura (FF6) and Ueno (FF4). This is
because this second sensor would be exposed to the same condensation-
causing exhaust gases as sensor 22, resulting in the same accuracy concerns.
In sum, there is no indication in this record that the second set of sensors
would address any shortfall of Takakura. Ueno proposes a different solution
to the recognized problem, namely, providing a heater 21 near humidity
sensor 19 to prevent impurities from sticking to the sensor 19 (FF4). The
references, in combination, give no reason for an upstream exhaust gas
humidity sensor.
In light of the above, Appellants’ arguments persuade us that the
Examiner erred in rejecting claims 1, 2, 4, 5, 9, and 10 as unpatentable under
35 U.S.C. § 103(a) in view of Takakura and Ueno.

CONCLUSIONS OF LAW
Appellants have shown that the Examiner has erred in rejecting claims
1, 2, 4, 5, 9, and 10 as unpatentable under 35 U.S.C. § 103(a) in view of
Takakura and Ueno. In particular, the Examiner has failed to articulate a
reason with rational underpinning for modifying Takakura by detecting the
change of the characteristic quantity in front of the adjusting device by a
further sensor, as recited in claim 1 (or providing a means, including a
further sensor, for detecting the change of the characteristic quantity in front
of the adjusting device, as called for in claim 10).
Appeal 2009-000623
Application 11/042,455

11
DECISION
The Examiner's decision is reversed as to claims 1, 2, 4, 5, 9, and 10.
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) (2007).
REVERSED

LV

KENYON & KENYON LLP
One Broadway
New York, NY 10004