Ex Parte KRUSE et al

Patent Trial and Appeal Board

Sep 7, 2018

14556416 (P.T.A.B. Sep. 7, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/556,416 12/01/2014
24131 7590 09/11/2018
LERNER GREENBERG STEMER LLP
PO BOX 2480
HOLLYWOOD, FL 33022-2480
FIRST NAMED INVENTOR
CARSTEN KRUSE
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.
EM-86558 1747
EXAMINER
NASSIRI MOTLAGH, ANITA
ART UNIT PAPER NUMBER
1734
NOTIFICATION DATE DELIVERY MODE
09/11/2018 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):
boxoa@patentusa.com
docket@patentusa.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CARSTEN KRUSE, THOMAS NAGEL,
RICHARD DORENKAMP, GERHARD KARMANN, and
THORSTEN DUSTERDIEK
Appeal 2017-011176
Application 14/556,416
Technology Center 1700
Before ROMULO H. DELMENDO, JEFFREY R. SNAY, and
MERRELL C. CASHION, JR., Administrative Patent Judges.
CASHION, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
This is an appeal under 35 U.S.C. § 134(a) from the Examiner's Final
Rejection of claims 4--6, 11, and 13, which constitute all the claims pending
in this application. We have jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM.
Appeal 2017-011176
Application 14/556,416
Independent claim 6 is generally illustrative of the subject matter on
appeal and is reproduced below:
6. A method for operating a motor vehicle, the method
comprising the following steps:
providing the motor vehicle with an internal combustion
engine, an exhaust system having at least one heater and a
catalytic converter for the conversion of hydrocarbons and a
controller associated with the internal combustion engine and the
exhaust system;
adapting operation of the at least one heater as a function
of an aging state of the catalytic converter by determining a
hydrocarbon conversion temperature of the catalytic converter,
comparing the hydrocarbon conversion temperature with a
predefined threshold temperature and operating the at least one
heater if the hydrocarbon conversion temperature is lower than
the predefined threshold temperature;
eliminating an unnecessary determination of the
hydrocarbon conversion temperature of the catalytic converter
and avoiding unnecessary interrogations of the controller of the
motor vehicle by adapting the operation of the at least one heater
not in a first operating phase of the motor vehicle but only when
the predefined threshold temperature reaches a particular value;
and
determining a duration of the first operating phase based
on:
an operating distance of the motor vehicle or
an operating time of the motor vehicle.
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Appeal 2017-011176
Application 14/556,416
Appellant 1 (see generally App. Br.) requests review of the following
rejections from the Examiner's Final Office Action2 :
I. Claims 5, 6, 11, and 13 rejected under pre-AIA 35 U.S.C.
§ I03(a) as unpatentable over Serifsoy (DE 4133117 Al, published April 8,
1993, and relying on an English machine translation dated April 27, 2016),
Christensen (US 5,307,627, issued May 3, 1994), Mussmann (US 6,601,381
B2, issued August 5, 2003), and Zhang (US 2012/0031085 Al, published
February 9, 2012). 3
II. Claim 4 rejected under pre-AIA 35 U.S.C. § I03(a) as
unpatentable over Serifsoy, Christensen, Mussmann, Zhang, and Bhatia (US
2009/0113883 Al, published May 7, 2009).
OPINION
The Prior Art Rejections
Appellant only argues independent claim 6 and does not present
arguments for the remaining claims 5, 11, 13 and separately rejected claim 4.
See generally App. Br. Accordingly, we select independent claim 6 as
representative of the subject matter before us for review on appeal and
1 Emitec Gesellschaft Fuer Emissionstechnologie MBH of Lohmar,
Germany is the Applicant/ Appellant. Emitec Gesellschaft Fuer
Emissionstechnologie MBH and Volkswagen Aktiengesellschaft of
Wolfsburg, Germany are identified as the real parties in interest. App. Br. 1.
2 The Examiner withdrew the rejections under 35 U.S.C §§ 112, first
paragraph (enablement requirement) and 112, second paragraph
(indefiniteness). Ans. 2-3; App. Br. 4. Accordingly, these rejections are not
before us for review on appeal.
3 The prosecution history shows that Appellant cancelled claims 10 and 12
in an amendment after final submitted on November 23, 2016 that was
entered by the Examiner in the Advisory Action dated December 13, 2016.
The rejection statement has been modified to reflect the cancellation of these
claims.
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Appeal 2017-011176
Application 14/556,416
decide the appeal as to all grounds of rejection based on the arguments made
by Appellant in support of this claim.
After review of the respective positions provided by Appellant and the
Examiner, we affirm the Examiner's rejections of claims 4--6, 11, and 13
under 35 U.S.C. § 103(a) for the reasons presented by the Examiner. We
add the following for emphasis.
Claim 6
The Examiner finds, and Appellant does not dispute (see generally
App. Br.), that the combined teachings of Serifsoy, Christensen, and Zhang
teach a method for operating a motor vehicle that differs from the claimed
method in that the combined teachings do not disclose the step of
eliminating unnecessary determination of the hydrocarbon conversion
temperature of the catalytic converter and avoiding unnecessary
interrogations of the controller of the motor vehicle during a first operating
phase of the motor vehicle. Final Act. 5-8. The Examiner finds Mussmann
teaches operating a vehicle with catalysts that have been adequately aged.
Final Act. 8; Mussmann col. 3, 11. 37--41. As explained in the Answer,
Mussmann teaches switching the trim control off during the initial operating
hours for the vehicle to avoid the problems with fresh catalysts. Ans. 4--5;
Mussmann col. 3, 1. 42---col. 4, 1. 5. The problems include errors in trim
control with fresh catalysts that can be avoided this way. Mussmann col. 2,
11. 41--43. The Examiner determines that it would have been obvious to one
of ordinary skill in the art to eliminate the determination of the hydrocarbon
conversion temperature of the catalytic converter and avoid unnecessary
interrogations of the controller of the motor vehicle during a first operating
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Appeal 2017-011176
Application 14/556,416
phase of the motor vehicle based on the operating distance of the motor
vehicle and/or the operating time of the motor vehicle in the process from
the combined teachings of Serifsoy, Christensen, and Zhang in view of
Mussmann's teachings. Final Act. 8-9.
Appellant argues that Mussmann teaches away from eliminating
unnecessary determination of the hydrocarbon conversion temperature of the
catalytic converter and avoiding unnecessary interrogations of the controller
of the motor vehicle during a first operating phase of the motor vehicle
because Mussmann discloses closely controlling the catalyst even in a first
operating phase as the catalyst requires a certain ageing in order to function
properly and constantly. App. Br. 7. According to Appellant, the present
invention assumes that the catalyst functions optimally in the initial phase of
operation and, therefore, avoids the interrogations of the controller in the
first operating phase. Id.
We are unpersuaded by these arguments. As the Examiner explains,
Mussmann's disclosure that the initial trim control can be switched off
during the initial operating hours of a vehicle is a recognition that
monitoring the catalyst during this initial operating period is unnecessary.
Ans. 4--5. Thus, contrary to Appellant's arguments, Mussmann does not
require monitoring the catalyst in a first operating phase of a vehicle. In
view of this, Appellant has not adequately explained why one skilled in the
art, using no more than ordinary creativity, would not have been capable of
modifying the method from the combined teachings of Serifsoy,
Christensen, and Zhang so as to eliminate unnecessary temperature
determinations and interrogations by a controller during the first operating
phase of a vehicle in view of the teachings of Mussmann. KSR Int 'l Co. v.
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Appeal 2017-011176
Application 14/556,416
Teleflex Inc., 550 U.S. 398, 421 (2007) ("A person of ordinary skill is also a
person of ordinary creativity, not an automaton."); see also In re Sovish, 769
F.2d 738, 743 (Fed. Cir. 1985) (Skill is presumed on the part of one of
ordinary skill in the art.).
Moreover, Serifsoy expressly discloses that a relatively low kick or
preheating temperature or time can be set for new catalysts which is then
raised above the operating time corresponding to the state of aging. Serifsoy
2. In other words, and consistent with Appellant's disclosure on paragraph
20, Serifsoy teaches that a new (fresh) catalyst does not need to be preheated
for adequate performance. Thus, the claimed invention is not patentably
distinguishable from the combined teachings of the cited art.
Accordingly, we affirm the Examiner's prior art rejections of claims
4---6, 11, and 13 under 35 U.S.C. § 103(a) for the reasons presented by the
Examiner and given above.
DECISION
The Examiner's prior art rejections of claims 4--6, 11, and 13 are
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)(l )(iv).
AFFIRMED
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