Ex Parte Yezerets et al

Board of Patent Appeals and Interferences

Jan 30, 2012

11613760 (B.P.A.I. Jan. 30, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte ALEKSEY YEZERETS, SRIRAM POPURI, and
NEAL W. CURRIER
____________

Appeal 2010-010833
Application 11/613,760
Technology Center 3700
____________

Before JENNIFER D. BAHR, JOHN C. KERINS, and
STEFAN STAICOVICI, Administrative Patent Judges.

STAICOVICI, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF THE CASE
Aleksey Yezerets et al. (Appellants) appeal from the Examiner’s
decision to reject under 35 U.S.C. § 102(e) claims 1-4, 6-15, 17-22, 25 and
28 as anticipated by Nagaoka (US 7,051,520 B2, issued May 30, 2006); and
under 35 U.S.C. § 103(a) claims 23, 24, 26, 27, 29 and 30 as unpatentable
over Nagaoka and Uchida (US 6,755,013 B2, issued Jun. 29, 2004).1 We
have jurisdiction over this appeal under 35 U.S.C. § 6.

THE INVENTION
Appellants’ invention relates to a method and system for diagnosing
operation of a NOx adsorber catalyst. Spec. para. [0001] and figs. 1-2.
Claims 11 and 19 are illustrative of the claimed invention and read as
follows:
11. A method for diagnosing operation of a NOx adsorber
catalyst configured to receive exhaust gas produced by an
internal combustion engine, the method comprising:
monitoring an operating temperature of the catalyst,
when the operating temperature of the catalyst exceeds a
catalyst desulfation temperature threshold, determining an
oxygen storage capacity of the catalyst as a function of an
oxygen concentration of the exhaust gas exiting the catalyst,
and
storing the oxygen storage capacity in a memory unit.

1 Claims 5 and 16 were objected to by the Examiner as being dependent upon
a rejected base claim and otherwise indicated as being allowable if rewritten
in independent form including all the limitations of the base claim and any
intervening claims. See Final Rej. 8, mailed Jul. 17, 2009.
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19. A system for diagnosing operation of a NOx adsorber
catalyst configured to receive exhaust gas produced by an
internal combustion engine, the system comprising:
means for determining an operating temperature of the
catalyst,
an outlet oxygen sensor fluidly coupled to an exhaust gas
outlet of the catalyst and configured to produce an outlet
oxygen signal corresponding to an oxygen concentration of the
exhaust gas exiting the catalyst, and
a control circuit including a memory having instructions
stored therein that are executable by the control circuit to
monitor the operating temperature of the catalyst and to
determine an oxygen storage capacity of the catalyst as a
function of at least the outlet oxygen signal when the operating
temperature of the catalyst exceeds a desulfation temperature
threshold.

SUMMARY OF DECISION
We REVERSE and ENTER NEW GROUND OF REJECTION
PURSUANT TO OUR AUTHORITY UNDER 37 C.F.R. § 41.50(b).

OPINION
Claims 1-4, 6-15, 17-22, 25 and 28
Appellants argue that Nagaoka fails to teach (1) the method step of
determining an oxygen storage capacity of a NOx adsorber catalyst as a
function of an oxygen concentration of an exhaust gas entering and exiting
the catalyst, as required by independent claim 1; (2) the method step of
determining an oxygen storage capacity of a NOx adsorber catalyst as a
function of an oxygen concentration of an exhaust gas exiting the catalyst, as
required by independent claim 11; and (3) a system for determining an
oxygen storage capacity of a NOx adsorber catalyst as a function of at least
an outlet oxygen signal that corresponds to an oxygen concentration of an
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exhaust gas exiting the catalyst, as required by independent claim 19. App.
Br. 11-13. See also App. Br., Claims Appendix. In response, the Examiner
takes the position that feedback control of the upstream oxygen
concentration detected by the first oxygen concentration sensor 13 of
Nagaoka shows (1) the method step of determining an oxygen storage
capacity of a NOx adsorber catalyst, as required by each of claims 1 and 11;
and (2) a system for determining an oxygen storage capacity of a NOx
adsorber catalyst, as required by claim 19. Ans. 11. Appellants counter that
Nagaoka’s technique for controlling the exhaust gas air-fuel ratio upstream
of a NOx catalyst does not, by itself, determine an oxygen storage capacity
of the NOx catalyst, as required by independent claims 1, 11 and 19. Reply
Br. 3. We agree.
In this case, we find that Nagaoka teaches a sulphur purge control
system and method for preventing carbon monoxide from being emitted into
the atmosphere that includes a first oxygen concentration sensor 13, a
second oxygen concentration sensor 14, and a NOx occlusion reduction type
catalyst 11. See Nagaoka, fig. 1. In Nagaoka, the oxygen concentration is
monitored downstream of the NOx catalyst by the second oxygen
concentration sensor 14. If the oxygen concentration Od is equal or superior
to a predetermined threshold Od0, it means that the sulphur purge is in the
early stages when NOx is released. The first air-fuel ratio of λ=0.93 to 0.98
is set as the target air-fuel ratio until the oxygen concentration Od is lower
than Od0 and the first sulphur purge control is performed. In a second
sulphur purge, when the downstream oxygen concentration Od detected by
the second oxygen concentration sensor 14 is less than a predetermined
threshold Od0, feedback control of the upstream oxygen concentration Ou
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detected by the first oxygen concentration sensor 13 regulates the air-fuel
ratio in the exhaust gas flowing in the NOx catalyst 11 by changing the
target air-fuel ratio from the first (rich) air-fuel ratio (λ=0.93 to 0.98) to a
predetermined second stoichiometric air-fuel ratio (λ=0.997 to 1.002) ). See
Nagaoka, col. 8, ll. 37-54 and col. 9, ll. 41-51 and fig. 3.
Although we appreciate that feedback control of the upstream oxygen
concentration Ou of Nagaoka is used to control the air-fuel ratio in the
exhaust gas flowing in the NOx catalyst 11, we find that the Examiner has
not provided any evidence as to how this feedback control mechanism is
used to determine an oxygen storage capacity of the NOx occlusion
reduction type catalyst 11 of Nagaoka. In this case, like Appellants, we find
that oxygen storage capacity is based on a calculated value. App. Br. 13.
See also Spec. paras. [0052]-[0054] and fig. 3. We could not find any
portion in Nagaoka and the Examiner has not pointed to any portion of
Nagaoka that discloses determining (calculating) an oxygen storage capacity
of the NOx occlusion reduction type catalyst 11. Nagaoka merely teaches
setting a target, rich air-fuel ratio and changing it to a second, predetermined
stoichiometric air-fuel ratio when the oxygen concentration Od downstream
of the NOx catalyst becomes lower than a threshold value Od0. Nagaoka,
Abstract. For example, Nagaoka fails to teach determining the amount of
oxygen the NOx catalyst absorbs per unit time or the amount of oxygen it
releases per unit time based on the exhaust gas air-fuel ratio and the amount
of intake air. Moreover, Nagaoka fails to teach measuring the times when
the air-fuel mixture entering and exiting NOx catalyst 11 transitions from
lean to rich and from rich to lean.
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As such, we agree with Appellants that the feedback control
mechanism of the upstream oxygen concentration Ou of Nagaoka is for
setting a desired (predetermined) air-fuel ratio and not for determining an
oxygen storage capacity. App. Br. 13. Hence, we find that Nagaoka fails to
teach (1) the method step of determining an oxygen storage capacity of the
catalyst, as required by claims 1 and 11; and (2) a system including a control
circuit that can determine an oxygen storage capacity of the catalyst, as
required by claim 19.
Accordingly, Nagaoka does not teach all the limitations of
independent claims 1, 11 and 19 or their respective, dependent claims 2-4, 6-
10, 12-15, 17, 18, 20-22, 25 and 28. Therefore, the rejection of claims 1-4,
6-15, 17-22, 25 and 28 under 35 U.S.C. § 102(e) as anticipated by Nagaoka
cannot be sustained.

Claims 23, 24, 26, 27, 29 and 30
With respect to claims 23, 24, 26, 27, 29 and 30, the Examiner has
cited Uchida merely for disclosing a system for diagnosing operation of a
NOx absorber catalyst 32 that includes a mass air flow sensor 20 fluidly
coupled to an intake manifold 12 of an internal combustion engine 10. Ans.
8-9. As such, Uchida, as applied by the Examiner, does not remedy the
deficiencies of Nagaoka as described above. Therefore, we are constrained
to reverse the rejection of claims 23, 24, 26, 27, 29 and 30 under 35 U.S.C. §
103(a) as unpatentable over Nagaoka and Uchida.

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NEW GROUND OF REJECTION
We make the following new grounds of rejection pursuant to 37
C.F.R. § 41.50(b).
Independent claims 1, 11 and 19 are rejected under 35 U.S.C. § 103(a)
as unpatentable over Nagaoka and Uchida.
Nagaoka discloses a method for diagnosing operation of a NOx
adsorber catalyst 11, including the method steps of (1) monitoring an
operating temperature of the catalyst Tc (step S12 of fig. 3), wherein the
operating temperature of the catalyst Tc exceeds a catalyst desulfation
temperature Tc0 (step S12 proceeding to S14 of fig. 3); and (2) storing
information in a memory unit (ECU) 20. Nagaoka, col. 5, l. 63 through col.
6, l. 7, col. 7, l. 64 through col. 8, l. 23 and figs. 1 and 3. Nagaoka further
discloses a system for diagnosing operation of a NOx adsorber catalyst 11,
wherein the system includes: (1) means for determining an operating
temperature of the catalyst Tc; (2) an outlet oxygen sensor 14 fluidly
coupled to an exhaust gas outlet of the catalyst 11 and configured to produce
an outlet oxygen signal (see fig. 1) corresponding to an oxygen
concentration of the exhaust gas Gc exiting the catalyst 11; and (3) a control
circuit (ECU) 20 including a memory having instructions stored therein that
are executable by the control circuit (ECU) 20 to monitor the operating
temperature of the catalyst Tc when the operating temperature of the catalyst
exceeds a desulfation temperature threshold Tc0. Nagaoka, col. 5, ll. 35-48
and l. 63 through col. 6, l. 7, col. 7, l. 64 through col. 8, l. 23 and figs. 1 and
3.
Nagaoka fails to disclose the method steps of (1) determining an
oxygen storage capacity of the catalyst as a function of an oxygen
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concentration of the exhaust gas entering the catalyst and an oxygen
concentration of the exhaust gas exiting the catalyst, as required by
independent claim 1; (2) determining an oxygen storage capacity of the
catalyst as a function of an oxygen concentration of the exhaust gas exiting
the catalyst, as required by independent claim 11; and (3) storing an oxygen
storage capacity in a memory unit, as required by each of independent
claims 1 and 11. Nagaoka further fails to disclose a system, wherein the
control circuit determines an oxygen storage capacity of the catalyst as a
function of at least the outlet oxygen signal, as required by independent
claim 19.
Uchida discloses a method for diagnosing operation of a NOx
adsorber catalyst 32, including the method steps of (1) determining an
oxygen storage capacity OSC of catalyst 32 as a function of an oxygen
concentration of exhaust gas entering catalyst 32 at 36 and an oxygen
concentration of exhaust gas exiting catalyst 32 at 38; (2) determining an
oxygen storage capacity OSC of catalyst 32 as a function of an oxygen
concentration of exhaust gas exiting catalyst 32 at 38; and (3) storing the
oxygen storage capacity OSC in a memory unit (ECU) 40. Uchida, col. 6, ll.
38-67, and col. 9, ll. 19-21 and figs. 1 and 3. Uchida further discloses a
system for diagnosing operation of a NOx adsorber catalyst 32, wherein
control circuit (ECU) 40 determines an oxygen storage capacity OSC of
catalyst 32 as a function of at least the outlet oxygen signal. Uchida, col. 9,
ll. 19-21 and figs. 1 and 3.
Uchida also discloses that the device detects the oxygen storage
capacity OSC of upstream-side catalyst 32, and determines deterioration of
upstream-side catalyst 32 based on the detected value of the oxygen storage
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capacity OSC, wherein detecting deterioration of upstream-side catalyst 32
provides for purifying emissions from an internal combustion engine.
Uchida, col. 1, ll. 18-21 and col. 7, ll. 11-14 and 23-27. Hence, it would
have been obvious for a person of ordinary skill in the art to include (1)
determining an oxygen storage capacity OSC of a catalyst; and (2) storing
the oxygen storage capacity OSC in a memory unit, as taught by Uchida, in
the diagnosing method/system of Nagaoka, in order to detect deterioration of
the catalyst to provide for purifying emissions from an internal combustion
engine.
In light of the above, we conclude that independent claims 1, 11 and
19 are unpatentable under 35 U.S.C. § 103(a) over Nagaoka and Uchida.
With respect to claims 2-4, 6-10, 12-15, 17, 18 and 20-30, although we
decline to reject every claim under our discretionary authority under 37
C.F.R. § 41.50(b), we emphasize that our decision does not mean the
remaining claims are patentable. Rather, we merely leave the patentability
determination of these claims to the Examiner. See MPEP § 1213.02.
DECISION
The decision of the Examiner to reject claims 1-4, 6-15 and 17-30 is
reversed.
We enter new ground of rejection of claims 1, 11 and 19 under 35
U.S.C. § 103(a) as unpatentable over Nagaoka and Uchida.
This decision contains new ground of rejection pursuant to 37 C.F.R.
§ 41.50(b). 37 C.F.R. § 41.50(b) provides "[a] new ground of rejection
pursuant to this paragraph shall not be considered final for judicial review."
37 C.F.R. § 41.50(b) also provides that the Appellants, WITHIN
TWO MONTHS FROM THE DATE OF THE DECISION, must exercise
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one of the following two options with respect to the new ground of rejection
to avoid termination of the appeal as to the rejected claims:
(1) Reopen prosecution. Submit an
appropriate amendment of the claims so rejected or
new evidence relating to the claims so rejected, or
both, and have the matter reconsidered by the
examiner, in which event the proceeding will be
remanded to the examiner. . . .
(2) Request rehearing. Request that the
proceeding be reheard under § 41.52 by the Board
upon the same record. . . .
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).

REVERSED; 37 C.F.R. § 41.50(b)

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