Ex Parte Pfaeffle et al

Board of Patent Appeals and Interferences

Aug 27, 2012

11045175 (B.P.A.I. Aug. 27, 2012)

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.
11/045,175 01/27/2005 Andreas Pfaeffle 10191/4101 4853
26646 7590 08/28/2012
KENYON & KENYON LLP
ONE BROADWAY
NEW YORK, NY 10004
EXAMINER
TRAN, BINH Q
ART UNIT PAPER NUMBER
3748
MAIL DATE DELIVERY MODE
08/28/2012 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte ANDREAS PFAEFFLE, MICHAEL KOLITSCH, and
ANDREAS SCHAFFRATH
____________________

Appeal 2010-005681
Application 11/045,175
Technology Center 3700
____________________

Before: JENNIFER D. BAHR, KEN B. BARRETT, and
MICHAEL C. ASTORINO, Administrative Patent Judges.

BAHR, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2010-005681
Application 11/045,175
2
STATEMENT OF THE CASE
Andreas Pfaeffle et al. (Appellants) appeal under 35 U.S.C. § 134
from the Examiner’s decision rejecting claims 1 and 7-12. We have
jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
The Claimed Subject Matter
Claim 1, reproduced below, is illustrative of the claimed subject
matter.
1. A method for operating an exhaust gas treatment device of an
internal combustion engine, the method comprising:
starting a timer to count down a predetermined, fixed
time period in response to an operative mode change request;
during a time period set by the timer, continuously
deciding, based on an evaluation of at least one parameter,
whether a change in an operating mode of the engine can be
made, the operative mode change being made immediately if
this is the case, and the operative mode change being made no
later than when the predetermined, fixed time period counted
down by the timer has expired, wherein the parameter is a
signal indicative of at least one of
a deceleration fuel cutoff of the internal
combustion engine,
a gear change in a transmission associated with the
internal combustion engine,
a load condition of the internal combustion engine,
or
dynamics of at least one of the internal combustion
engine and a motor vehicle; and
using the operative mode change to one of initiate and
terminate a regeneration of the exhaust gas treatment device.
Evidence
The Examiner relied on the following evidence in rejecting the claims
on appeal:

Appeal 2010-005681
Application 11/045,175
3
Yoshizaki
Kolmanovsky
US 6,014,859
US 6,370,868 B1
Jan. 18, 2000
Apr. 16, 2002
Rejections
Appellants request review of the following rejections under 35 U.S.C.
§ 103(a) made by the Examiner:
(1) claims 1, 7, and 8 as unpatentable over Kolmanovsky and
(2) claims 9-12 as unpatentable over Kolmanovsky and Yoshizaki.
OPINION
For the reasons set forth by Appellants in their Appeal Brief, from
page 5, line 6 to page 6, line 24, and in their Reply Brief, from page 4, line 6
to page 5, line 12, Kolmanovsky does not disclose a method as called for in
claim 1 including “the operative mode change being made no later than
when the predetermined, fixed time period counted down by the timer has
expired.”
The Examiner asserts that in Kolmanovsky:
when a probability of the engine to enter into a high load and
high speed condition exceeds a probability threshold value, a
purge of the NOx trap is delayed for a predetermined time
interval, which means that the purge will occur no later than
when the time period (predetermined time interval) has expired.
(Ans. 7). This assertion simply is not consistent with Kolmanovsky’s
disclosed method, which operates based on a set of conditions triggered by
probability estimates, not a predetermined time period counted down by a
timer, as called for in claim 1. More specifically, once the estimated NOx
mass in the trap exceeds a NOx mass threshold, Kolmanovsky discloses
estimating the probability that the engine operation will transition to a high
speed and high load condition before expiration of a first predetermined time
interval and initiating purge unless the estimated probability exceeds a
Appeal 2010-005681
Application 11/045,175
4
probability threshold value. Col. 4, ll. 54-61 (claim 11, ll. 4-11); col. 2, ll.
47-54. If, on the other hand, the estimated probability exceeds the
probability threshold value, Kolmanovsky’s method delays the decision of
whether to initiate purge for a second predetermined time interval and
increases the probability threshold each time the purge is delayed. Col. 4, ll.
62-67 (claim 11, ll. 12-17); col. 2, ll. 58-62. Thus, as pointed out by
Appellants, “[t]he purge-delay process of the Kolmanovsky reference is
repeated for a variable, indeterminate number of iterations until the
estimated probability threshold is not exceeded.” App. Br. 6. Therefore, the
point in time at which purging is executed in Kolmanovsky’s method, and
hence the time within which purging must be executed, are clearly
“unknown in advance” (id.) and thus cannot reasonably be considered to
correspond to a fixed time period counted down by a timer.
The Examiner’s proposed modification to Kolmanovsky to provide a
timer that counts down rather than counting up (Ans. 4) does not make up
for the deficiency of Kolmanovsky discussed above.
Thus, the Examiner erred in determining that Kolmanovsky renders
obvious the subject matter of claim 1. We reverse the rejection of claim 1
and of its dependent claims 7 and 8.
We also reverse the rejection of claims 9-12 as unpatentable over
Kolmanovsky and Yoshizaki, as it suffers from the same deficiency as the
rejection of claim 1.
DECISION
The Examiner’s decision rejecting claims 1 and 7-12 is reversed.
REVERSED

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