Ex Parte Munsterhuis et al

Patent Trial and Appeal Board

Aug 24, 2018

13227405 (P.T.A.B. Aug. 24, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/227,405
90545 7590
HONEYWELL/STW
Patent Services
115 Tabor Road
P.O. Box 377
09/07/2011
08/28/2018
MORRIS PLAINS, NJ 07950
FIRST NAMED INVENTOR
Wim Munsterhuis
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.
H0027334-1271.l 109101 5411
EXAMINER
ZUBER!, RABEEUL I
ART UNIT PAPER NUMBER
3743
NOTIFICATION DATE DELIVERY MODE
08/28/2018 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):
patentservices-us@honeywell.com
Honeywell. USPTO@STWiplaw.com
sherry. vallabh@honeywell.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte WIM MUNSTERHUIS and GERWIN LANGIUS 1
Appeal2017-011074
Application 13/227,405
Technology Center 3700
Before JAMES P. CAL VE, WILLIAM A. CAPP, and
GEORGE R. HOSKINS, Administrative Patent Judges.
CAL VE, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Office Action
finally rejecting claims 12, 13, 18, 19, and 22-32. See Appeal Br. 26. We
have jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM.
1 Honeywell International Inc. is identified as the real party in interest.
Appeal Br. 3.
Appeal2017-011074
Application 13/227 ,405
CLAIMED SUBJECT MATTER
Claims 12, 22, and 26 are independent. Claim 12 is illustrative and is
reproduced below.
12. A gas burner regulating system for regulating a
gas-combustion-air mixture that is provided to a gas burner,
compnsmg:
a gas flow rate adjusting device comprising a gas valve;
a control unit configured to control the gas flow rate
adjusting device, the control unit enriching the gas-combustion-
air mixture that is provided to a gas burner by moving the gas
flow rate adjusting device to a more open position, and
enleaning the gas-combustion-air mixture that is provided to a
gas burner by moving the gas flow rate adjusting device to a
more closed position;
a sensor associated with an exhaust gas discharged from
the gas burner, the sensor configured to provide a measurement
signal that is related to a concentration of at least one
combustible or oxidizable constituent in the exhaust gas;
the control unit initiating a calibration process at each of
two or more predetermined times, and during the calibration
process, and starting from a relatively lean gas-combustion-air
mixture which is fed to the gas burner for combustion, the
control unit communicates with the gas flow rate adjusting
device to move the gas flow rate adjusting device to a more
open position to enrich the gas-combustion-air mixture until the
measurement signal of the sensor first increases and then
reduces to approximately zero, wherein the gas-combustion-air
mixture which corresponds to the measurement signal being
approximately zero is defined as a gas-combustion-air mixture
with a stoichiometric combustion air ratio of A = 1; and
the control unit then moves the gas flow rate adjusting
device to a more closed position to enlean the gas-combustion-
air mixture to a desired combustion air ratio of A > 1.
Appeal Br. 27 (Claims App.).
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Application 13/227 ,405
REJECTI0NS 2
Claims 12, 19, 22, 25, 26, 28, 30, and 32 are rejected under 35 U.S.C.
§ I03(a) as unpatentable over Hori (US 4,361,123, iss. Nov. 30, 1982),
Linder (US 3,827,237, iss. Aug. 6, 1974), Chiesa (US 4,306,529, iss. Dec.
22, 1981), and Smith (US 2008/0280238 Al, pub. Nov. 13, 2008).
Claims 13, 18, 23, 24, 27, and 31 are rejected under 35 U.S.C.
§ I03(a) as unpatentable over Hori, Linder, Chiesa, Smith, and Basten (US
5,122,053, iss. June 16, 1992).
Claim 29 is rejected under 35 U.S.C. § I03(a) as unpatentable over
Hori, Linder, Chiesa, Smith, and Mittricker (US 2013/0125555 Al, pub.
May 23, 2013).
ANALYSIS
Claims 12, 19, 22, 25, 26, 28, 30, and 32
Rejected Over Hori, Linder, Chiesa, and Smith
Appellants present the same arguments for independent claims 12, 22,
and 26 and do not separately argue any of dependent claims 19, 25, 28, 30,
and 32. Appeal Br. 7-25. We select claim 12 as the representative claim.
See 37 C.F.R. § 4I.37(c)(l)(iv).
The Examiner finds that Hori teaches a gas burner regulating system
as recited in claim 12 with a control unit (e.g., control device 114) to control
a gas flow rate to enrich and enlean a gas-combustion-air mixture by moving
a gas flow rate adjusting device (solenoid valve 102) to a more open or more
closed position in response to signals from a sensor ( oxygen sensor 80), but
does not teach a calibration process. Final Act. 3--4.
2 The Examiner withdrew the rejection of claim 12 under 35 U.S.C. § 112,
second paragraph, as being indefinite. Ans. 16.
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Application 13/227 ,405
The Examiner finds that Linder discloses a "calibration process" that
starts from a "somewhat lean mixture" sensed by exhaust sensors and then is
enriched to cause the sensor signal to increase before being reduced to about
zero. Ans. 17 (citing Linder, 6:56-7: 15). The Examiner finds that Linder's
oxygen sensor increases its signal as the gas-combustion-air mixture is
enriched, reduces its signal rapidly to zero as the gas-combustion-air mixture
approaches a stoichiometric combustion air ratio of A = 1, and then begins to
exceed A= 1, as claimed. Id. at 17-18. The Examiner finds that Linder's
"calibration process" alternatingly enleans and enriches a gas-combustion-
air mixture to oscillate a sensed value about a command value of A = 1 and
this process increases a measured sensor signal, and then reduces the signal
to approximately zero, as claimed. Id. at 18. We agree. 3
Essentially, the claimed calibration process is designed to identify a
stoichiometric combustion air ratio of A = 1 for a particular burner and gas
quality by enleaning and enriching the gas-combustion-air mixture. Initially,
the mixture has an air ratio of A > 1 ( a lean gas-combustion-air mixture) and
then the mixture is enriched to an air ratio of A < 1 before being reduced to
an air ratio of A= 1. Spec. 2:22-33, 4:6-37. An exhaust gas sensor detects
and signals the increased enrichment before detecting and signaling reduced
emissions to about zero at a stoichiometric air ratio A= 1. Id. at 4:6-37.
3 The Examiner interprets "a calibration process" as an intended use that
does not result in a structural difference between the claims and the prior art
(Final Act. 4--5), but then clarifies that the claimed "calibration process"
does not denote any further structure or controller function beyond what is
recited in the claims (Ans. 18). As set forth further below, our affirmance is
based on the Examiner's findings and determinations concerning how the
cited prior art references would lead to a control unit operating as set forth in
claim 12, not on the Examiner's intended use claim construction position.
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Appeal2017-011074
Application 13/227 ,405
In other words, the calibration process identifies a stoichiometric
combustion air ratio of A = 1 by first enleaning and then enriching the gas-
combustion-air mixture so the concentration of a detected combustible or
oxidizable exhaust gas constituent oscillates about, and settles at, zero.
Linder discloses a similar "calibration process" that is designed to set
and maintain the combustion air ratio A at a desired command level, which
Linder teaches is suitable at A= 0.98 to 0.99. Linder, 7:1-15. Linder does
this same process as Appellants by taking a lean mixture ("A > 1) and then
enriching the mixture so the ratio of gas to combustion air increases, which
results in increased measurement signals of the sensor, and then is reduced
to a gas-combustion-air mixture with a stoichiometric combustion air ratio
of A = 1, which results in a sensor measurement signal of approximately zero
as illustrated in Figure 4B of Linder. Linder, 6:56-7:15, Fig. 4b. As the
Examiner correctly finds, Linder teaches to calibrate the engine combustion
at a command value of essentially A = 1 by first enleaning and then enriching
the gas-combustion-air mixture while using a sensor to track this changing
air ratio A before reducing the combustion air ratio to A= 1. Id.; Ans. 17-18.
We agree with Appellants that the claimed calibration process recites
more than an intended use. It claims a particular way that the gas burner
regulating system functions or operates. Appeal Br. 10-11; Reply Br. 3--4.
We also agree with Appellants that the Examiner must establish that
Linder teaches the claimed calibration process as recited in claim 12, rather
than by supposing that a skilled artisan could reprogram Linder's system to
perform the claimed calibration process. Appeal Br. 11-12; Reply Br. 3.
As discussed above, we agree with the Examiner that Linder discloses
the claimed calibration process without the need for any reprogramming.
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Appeal2017-011074
Application 13/227 ,405
Appellants' arguments that "none of the cited art is capable of
performing the claimed calibration process" and "[ t ]he cited references lack
any such structure" (Reply Br. 3) do not address the Examiner's findings
above and therefore do not apprise us of Examiner error in this regard.
We also agree with the Examiner that Figure 4b of Linder illustrates
how a sensor value (voltage) increases as the gas-combustion-air mixture is
enriched (A< 1) and reduces to "approximately zero" as the gas-combustion-
air mixture reaches a stoichiometric combustion air ratio of A= 1. Figure 11
of Linder illustrates how carbon monoxide content 96 increases as a lean
gas-combustion-air mixture is enriched (moves from A= 1 toward A= 0.6)
and decreases to approximately zero as the mixture reaches a combustion air
ratio of approximately A= 1. See Linder, 3:8-14.
Appellants also argue that a skilled artisan would not consider Hori or
Linder because they relate to internal combustion engines that function very
differently from a gas burner recited in claim 12 (Appeal Br. 9-10), and the
Examiner ignores these differences in trying to recreate the invention using
unrelated art (Reply Br. 2).
We agree with the Examiner that Hori and Linder are reasonably
pertinent to the problem confronting Appellants of controlling a combustion
process by throttling/adjusting the mixture of combustion reactants supplied
to the combustion chamber. Ans. 16-17. Appellants disclose a method that
regulates and adjusts the composition of the gas-combustion-air mixture that
is fed to a gas burner to ensure good combustion quality for different gas
qualities. Spec. 1 :26-35. Appellants first calibrate the system to identify a
stoichiometric combustion air ratio to a A = 1 and then control the mixture to
a combustion ratio of A> 1 to promote desired combustion. Id. at 2:22-33.
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Appeal2017-011074
Application 13/227 ,405
Hori and Linder also address the problem of controlling an air-fuel
mixture supplied to a combustion chamber in reference to a stoichiometric
air-fuel ratio to improve combustion. Hori, 1:5-52 (maintain air-fuel ratio at
about the stoichiometric air-fuel ratio± 0.1), 4:24--54 (enrich or enlean the
air-fuel mixture as desired for combustion); Linder, 1 :55-68 (control the air-
fuel ratio to improve combustion), 2:60-3:59 (effect of stoichiometric ratios
of A= 1 and above on combustion), 6:57-7: 15 (control the air-fuel mixture
to a command value of A= 0.98---0.99); see also In re Clay, 966 F.2d 656,
659 (Fed. Cir. 1992) ("If a reference disclosure has the same purpose as the
claimed invention, the reference relates to the same problem, and that fact
supports use of that reference in an obviousness rejection.") (cited with
approval in In re Kahn, 441 F.3d 977, 987 n.3 (Fed. Cir. 2006)); In re
Paulsen, 30 F.3d 1475, 1481-82 (Fed. Cir. 1994) (problem confronted by
inventors of how to connect and secure a display to a computer were not
unique to portable computers so a skilled artisan "'would have consulted the
mechanical arts for housings, hinges, latches, springs, etc."'). 4
Appellants also argue that the prior art does not teach action by the
control unit at a predetermined time (claim 12) or in response to a manual
trigger event ( claim 22), or a calibration trigger signal ( claim 26). Appeal
Br. 13, 18-19, 24. These arguments do not address the Examiner's findings
that Chiesa and/ or Linder teaches these features. Final Act. 5; Ans. 18-19.
4 Claim 12 recites "[a] gas burner regulating system for regulating a gas-
combustion-air mixture that is provided to a gas burner" but claim 12 does
not recite any further features of the gas burner or the combustion process.
Hori and Linder teach the importance of controlling the ratio of the air-fuel
mixture that is fed to a combustion engine. Therefore, the purpose of their
regulating systems is the same as Appellants' claim: to control the gas-
combustion-air mixture provided to a combustor to improve combustion.
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Appeal2017-011074
Application 13/227 ,405
Appellants' arguments that the prior art does not teach the calibration
process initiation recited in independent claims 22 and 26 (Appeal Br. 18-
19, 24) are not persuasive because they merely point out what each claim
recites and argue that the prior art does not disclose that feature. 37 C.F.R.
§ 4I.37(c)(l)(iv); In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) (holding
that the Board had reasonably interpreted 37 C.F.R. § 4I.37(c)(l)(vii) (the
predecessor to§ 4I.37(c)(l)(iv)) as requiring "more substantive arguments
in an appeal brief than a mere recitation of the claim elements and a naked
assertion that the corresponding elements were not found in the prior art");
see also Ans. 18-19 ( citing Chiesa and Linder for such features); Reply
Br. 4--5 (arguing that Chiesa does not teach the claimed calibration process).
Appellants further argue that modifying Hori' s controller to initiate a
calibration process at the times recited in independent claims 12, 22, and 26
would render Rori's controller unsatisfactory for its intended purpose by
altering the gas-combustion-air ratio and negatively impacting the catalytic
converters and/or thermos-reactors of the Hori system. Appeal Br. 13, 18,
24. This argument is not persuasive in view of Chiesa's teaching that air and
fuel mixture delivery systems are calibrated to provide a specific air/fuel
ratio such as a stoichiometric ratio, but this calibrated ratio is difficult to
maintain over the entire operating range of the engine, and it varies as the
values of engine operating parameters vary. Chiesa, 1 :7-16. As a result,
Chiesa teaches to use open and closed loop control systems that monitor the
air/fuel ratios at predetermined times or in response to a sensor reading to
maintain the ratio within a specified band needed for catalytic treatment of
the exhaust gases. Id. at 1:21--45. Indeed, Chiesa compares sensed values to
calibration constants at predetermined intervals. Id. at 13: 15-54; Ans. 18.
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Appeal2017-011074
Application 13/227 ,405
Hori teaches to maintain the air-fuel ratio of a combustion mixture
close to a stoichiometric air-fuel ratio to improve the purification of the
exhaust gas in the catalytic converter. Hori, 1: 10-18. Hori thus varies the
duty cycle to enrich or enlean the mixture in response to output signals from
sensor 80 related to changing engine parameters. Id. at 4:24--5:6, Fig. 5.
Therefore, Hori and Chiesa both recognize that a change in engine
operating parameters may require recalibration or resetting of an air-fuel
mixture supplied to the combustion chamber. Linder teaches to recalibrate
under changing engine operating conditions to maintain stoichiometric air-
fuel ratios as discussed above. We determine that performing a calibration
process at predetermined times or events would be understood to improve
the operation of a combustion process rather than to undermine it as alleged
by Appellants. See Becton, Dickinson and Co. v. Tyco Healthcare Grp., LP,
616 F.3d 1249, 1260 (Fed. Cir. 2010) (unsupported attorney argument "is an
inadequate substitute for record evidence."); In re Geisler, 116 F.3d 1465,
1470 (Fed. Cir 1997) (attorney argument cannot take the place of evidence).
Finally, Appellants argue that comparing a measured value to a
calibration constant in Chiesa is not equivalent to the claimed calibration
process. Reply Br. 4. This argument is not persuasive because Linder is
relied upon to teach the claimed calibration process, and Chiesa is relied on
to teach a recalculation (recalibration) of air-fuel mixtures at predetermined
time intervals or triggering events as claimed. Chiesa stores constants in a
memory relating to an adjustment amount determined to produce a desired
air-fuel ratio at particular operating points in response to changes in engine
parameters, but Chiesa also teaches the need to update these values (i.e., to
recalibrate). Chiesa, 1 :30-2:37. Linder teaches such a calibration process.
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Appeal2017-011074
Application 13/227 ,405
In addition to teachings discussed above regarding the desirability of
controlling the air-fuel ratio to a stoichiometric ratio of A= 1 or to leaner or
richer ratios as desired depending upon engine operating parameters, Smith
teaches the desirability of leaner mixtures of A > 1 to minimize production of
NOx as a pollutant. Smith ,r,r 8, 9 ("[t]aking into account tradeoffs with
engineering considerations and other pollutants, low NOx burners generally
bum with as much excess air (i.e. 'lean') as possible"); Final Act. 5. Thus,
we sustain the rejection of claims 12, 19, 22, 25, 26, 28, 30, and 32.
Claims 13, 18, 23, 24, 27, and 31
Rejected Over Hori, Linder, Chiesa, Smith, and Basten
Appellants argue that Basten does not cure the deficiencies of Hori,
Linder, Chiesa, and Smith as to independent claims 12, 22, and 26 from
which claims 13, 18, 23, 24, 27, and 31 depend, respectively. Appeal Br. 25.
Because we sustain the rejection of claims 12, 22, and 26 as unpatentable
over Hori, Linder, Chiesa, and Smith, this argument is not persuasive and we
also sustain the rejection of claims 13, 18, 23, 24, 27, and 31.
Claim 29
Rejected Over Hori, Linder, Chiesa, Smith, and Mittricker
Appellants argue that Mittricker does not cure the deficiencies of
Hori, Linder, Chiesa, and Smith as to independent claim 26 from which
claim 29 depends. Appeal Br. 26. Because we sustain the rejection of claim
26 as unpatentable over Hori, Linder, Chiesa, and Smith, this argument is
not persuasive and we also sustain the rejection of claim 29.
DECISION
We affirm the rejections of claims 12, 13, 18, 19, and 22-32.
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Application 13/227 ,405
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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