Ex Parte Lin

Board of Patent Appeals and Interferences

Jun 18, 2009

11023458 (B.P.A.I. Jun. 18, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte GEORGE LIN
____________

Appeal 2009-002331
Application 11/023,458
Technology Center 3700
____________

Decided:1 June 18, 2009
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Before WILLIAM F. PATE, III, LINDA E. HORNER, and
STEFAN STAICOVICI, Administrative Patent Judges.

HORNER, 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 2009-002331
Application 11/023,458

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STATEMENT OF THE CASE
George Lin (Appellant) seeks our review under 35 U.S.C. § 134 of
the Examiner’s decision rejecting claims 1-31. We have jurisdiction under
35 U.S.C. § 6(b) (2002).

SUMMARY OF DECISION
We REVERSE.

THE INVENTION
The Appellant’s claimed invention is an exhaust treatment device
monitoring system configured to determine a condition of the exhaust
treatment device based on temperature information. Spec. 1, para. 01.
Claim 1, reproduced below, is representative of the subject matter on appeal.
1. An exhaust system, comprising:
an exhaust path configured to direct an
exhaust stream away from an engine;
an exhaust treatment device in the exhaust
path and configured to act on one or more
substances in the exhaust stream;
at least one temperature sensing device
configured to determine a temperature profile of a
surface area of a working material of the exhaust
treatment device by determining the temperatures
of various portions of the surface area of the
working material; and
a controller configured to generate a
temperature map which shows the determined
temperature profile of the surface area of the
working material of the exhaust treatment device
and to determine deviations from an expected
temperature map.
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THE EVIDENCE
The Examiner relies upon the following evidence:
Hardy US 4,835,963 Jun. 6, 1989
Maus US 5,307,626 May 3, 1994
Saito US 5,421,719 Jun. 6, 1995

THE REJECTIONS
The Appellant seeks our review of the following rejections:
1. The Examiner rejected claims 1, 4-8, 10-12, 15-21, 23-25, 28, 29, and
31 under 35 U.S.C. § 102(b) as anticipated by Maus.
2. The Examiner rejected claims 2, 3, 13, 14, 26, and 27 under 35 U.S.C.
§ 103(a) as unpatentable over Maus and Saito.
3. The Examiner rejected claims 9, 22, and 30 under 35 U.S.C. § 103(a)
as unpatentable over Maus and Hardy.

ISSUE
In each of the rejections, the Examiner relies on Maus as disclosing “a
controller configured to generate a temperature map which shows the
determined temperature profile of the surface area of the working material of
the exhaust treatment device and to determine deviations from an expected
temperature map.” Ans. 3-4 (citing Maus, Figure 1; col. 3, ll. 17-31; col. 4,
ll. 10-50). The Appellant argues that Maus fails to disclose a controller
configured to determine deviations from an expected temperature map.
App. Br. 13.
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The issue presented by this appeal is:
Has the Appellant shown the Examiner erred in finding that Maus
discloses a controller configured to determine deviations from an expected
temperature map?

FINDINGS OF FACT
We find that the following enumerated facts are supported by at least
a preponderance of the evidence. Ethicon, Inc. v. Quigg, 849 F.2d 1422,
1427 (Fed. Cir. 1988) (explaining the general evidentiary standard for
proceedings before the Office).
1. The Appellant’s Specification does not provide a definition of the
phrase “expected temperature map” or any of the terms
comprising that phrase, as used in the claims. Spec., passim.
2. The word “expect” is commonly understood to mean “to look for
as likely to occur or appear.” Webster’s New Universal
Unabridged Dictionary, Deluxe Second Ed. (1983).
3. The Appellant’s Specification describes that one embodiment of
an “expected” temperature map is a temperature map that is
predetermined and stored in memory and used for comparison to
the actual temperature map, with deviations possibly indicative
of abnormal operating conditions due to malfunction or failure of
the exhaust treatment device. Spec. 9, para. 38; see also Spec.
14, para. 54 to Spec. 15, para. 56 (describing usefulness of
temperature maps for detecting failures).
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4. The Appellant’s Specification describes the claimed invention as
configured to determine the condition of the exhaust treatment
device based on temperature information. Spec. 1, para. 01.
5. Maus discloses that prior art methods deviated from optimal
engine performance and consumption control as a safety measure
to protect the catalytic converter against excess temperature.
Maus, col. 2, ll. 32-37. Maus discloses an object of the invention
is to use the current temperature of the catalytic converter for
engine control, so that deviations from optimum control are
minimized as needed to protect the catalytic converter from
predetermined critical temperatures. Maus, col. 1, ll. 51-62.
If Maus’s device detects a critical temperature in the catalytic
converter 8, the engine control 2 can modify engine operation to
prevent further temperature increase in the catalytic converter.
Maus, col. 3, l. 66 to col. 4, l. 5.
6. Maus discloses a method and an apparatus for controlling an
internal combustion engine through use of an engine control 2
and/or an electronic monitoring apparatus 10, based on the
current temperature of a down-stream catalytic converter. Maus,
col. 1, ll. 12-15; col. 6, ll. 14-18. The temperature of the catalytic
converter is provided by two temperature sensors TF1, TF2
(preferably disposed in the vicinity of the two end surfaces of the
catalytic converter 8), that are connected by measurement lines
13, 14 to electronic monitoring apparatus 10. Maus, col. 3, ll. 28-
31; col. 6, ll. 7-12; Fig. 1.
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7. The electronic monitoring apparatus 10 processes the measured
temperature values to ascertain a temperature distribution2, the
mean and/or maximum temperature, the functional capability, the
operating state, and the life expectancy of the catalytic converter.
Maus, col. 3, ll. 32-44; col. 6, ll. 19-23.
8. Maus discloses use of the actual temperature to provide
advantages in the cold starting phase of the catalytic converter.
Maus, col. 2, ll. 44-46. Maus discloses by monitoring the actual
temperature of the catalytic converter, the cold starting phase can
be terminated when operating temperature is reached, avoiding
the prior art engine control program’s disadvantages of possibly
terminating the cold start phase too early or too late. Maus,
col. 2, ll. 46-59.
9. Maus discloses use of the catalytic converter temperature
information over time to diagnosis and respond to engine
malfunctions in order to prevent damage to the catalytic
converter. Maus, col. 4, ll. 11-34. For example, in the event of a
misfiring cylinder, an emergency operation program can briefly
and individually stop fuel delivery to individual cylinders, the
resulting effect on temperature in the catalytic converter will
identify which cylinder is misfiring, and fuel can be discontinued
to the misfiring cylinder. Maus, col. 4, ll. 26-34.
10. Maus does not disclose the engine control 2 or electronic
monitoring apparatus 10 compares the actual temperature to an

2 We are intentionally not deciding if Maus’s “temperature distribution” is
the claimed “temperature map” because we reverse for other reasons.
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expected temperature under normal operating conditions for the
catalytic converter. Maus, passim.

PRINCIPLES OF LAW
“A claim is anticipated only if each and every element as set forth in
the claim is found, either expressly or inherently described, in a single prior
art reference.” Verdegaal Bros. v. Union Oil Co. of California, 814 F.2d
628, 631 (Fed. Cir. 1987).
“Section 103 forbids issuance of a patent when ‘the differences
between the subject matter sought to be patented and the prior art are such
that the subject matter as a whole would have been obvious at the time the
invention was made to a person having ordinary skill in the art to which said
subject matter pertains.’” KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 406
(2007). The question of obviousness is resolved on the basis of underlying
factual determinations including (1) the scope and content of the prior art,
(2) any differences between the claimed subject matter and the prior art, (3)
the level of skill in the art, and (4) where in evidence, so-called secondary
considerations. Graham v. John Deere Co., 383 U.S. 1, 17-18 (1966). See
also KSR, 550 U.S. at 407 (“While the sequence of these questions might be
reordered in any particular case, the [Graham] factors continue to define the
inquiry that controls.”)
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ANALYSIS
Rejection of claims 1, 4-8, 10-12, 15-21, 23-25, 28, 29, and 31 under
35 U.S.C. § 102(b) as anticipated by Maus
Claim Construction
Claim 1 contains the limitation that the controller must be configured
to generate a temperature map that shows the temperature profile of the
surface area of the working material of the exhaust treatment device and to
determine deviations from an expected temperature map. Appellant’s
Specification does not define the phrase “expected temperature map,” and
the common understanding of the word “expect” is “to look for as likely to
occur or appear” (Fact 1, 2). The use of the phrase in the context of the
Specification is that the “expected” temperature is used for comparison to
the actual temperature so that deviations between the two values help to
identify malfunctions in the exhaust treatment device (Fact 3). In this
context, the “expected temperature map” is what is looked for to occur when
the catalytic converter is operating under normal operating conditions, and
serves as the baseline for comparison to the actual temperature map. This
interpretation is consistent with the object of the claimed device, namely to
determine the condition of the exhaust treatment device (Fact 4).
Giving claim 1 the broadest reasonable interpretation consistent with
the Specification, a person of ordinary skill in the art would understand the
claim to require the controller to compare the actual temperature map during
certain operating conditions to a predicted temperature map under normal
operating conditions for the catalytic converter. Using this claim
construction, we now compare claim 1 to the reference.

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Maus
Maus discloses a controller (engine control 2 and/or electronic
monitoring apparatus 10) for an internal combustion engine that uses the
current temperature of the catalytic converter to minimize programmed
deviations from optimum engine control designed to prevent excess catalytic
converter temperature (increasing the periods of optimum control), while
still protecting the catalytic converter from excess temperature (Facts 5, 6).
Maus discloses that the controller has several capabilities. First, the
controller can collect data from temperature sensors at each end of the
catalytic converter surface to ascertain a temperature distribution, mean
value and/or maximum value, and the controller calculates the catalytic
converter’s functional capability, conversion rate, and life expectancy
(Fact 7). None of these capabilities involve an “expected” temperature.
Second, the controller can compare actual temperature to a temperature limit
such as a critical temperature or a starting temperature (Facts 5, 8).
However, a temperature limit is not an expected temperature under normal
operating conditions for the catalytic converter, as claimed. Finally, Maus
also discloses that the controller can diagnose and respond to engine
malfunctions by tracking changes to temperature over time (Fact 9). This
capability is not disclosed as including a comparison of the actual
temperature to a predicted temperature (Fact 10).
Maus does not disclose a controller configured to compare an actual
temperature to an expected temperature as recited in claim 1. We reverse
the Examiner’s decision to rejection claim 1 and its dependent claims 4-8,
10, and 11. Claims 12 and 25 each contain the same limitation related to the
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controller, for this reason we also reverse the Examiner’s decision rejecting
claims 12 and 25, and their dependent claims 15-21, 23, 24, 28, 29, and 31.

Rejection of claims 2, 3, 13, 14, 26, and 27 under 35 U.S.C. § 103(a) as
unpatentable over Maus and Saito
The Examiner relies on Saito in the rejection of claims 2, 3, 13, 14,
26, and 27 to teach the use of an infrared temperature sensor, and does not
allege that the teachings of Saito cure the deficiencies noted in the analysis
of the first rejection, supra. Ans. 5. Therefore the rejection of claims 2, 3,
13, 14, 26, and 27 as being unpatentable over Maus and Saito also cannot be
sustained.

Rejection of claims 9, 22, and 30 under 35 U.S.C. § 103(a) as unpatentable
over Maus and Hardy
Examiner relies on Hardy in the rejection of claims 9, 22, and 30 to
teach the use of a particulate trap, and does not allege that the teachings of
Hardy cure the deficiencies noted in the analysis of the first rejection, supra.
Ans. 6. Therefore the rejection of claims 9, 22, and 30 as being unpatentable
over Maus and Hardy also cannot be sustained.

CONCLUSION
The Appellant has shown the Examiner erred in finding that Maus
discloses a controller configured to determine deviations from an expected
temperature map.
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DECISION

We reverse the Examiner's decision to reject claims 1-31.

REVERSED

Vsh

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