Deere & Company

Patent Trials and Appeals Board

Mar 30, 2022

2022000182 (P.T.A.B. Mar. 30, 2022)

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. 16/007,489 06/13/2018 Danan Dou 208065-9207-US01 9685 132636 7590 03/30/2022 MICHAEL BEST & FRIEDRICH LLP (JOHN DEERE) 790 N WATER ST SUITE 2500 MILWAUKEE, WI 53202 EXAMINER AYALA DELGADO, ANTHONY ART UNIT PAPER NUMBER 3746 NOTIFICATION DATE DELIVERY MODE 03/30/2022 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): mkeipdocket@michaelbest.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte DANAN DOU, ERIC J. HRUBY, and BRYAN T. GEISICK Appeal 2022-000182 Application 16/007,489 Technology Center 3700 Before JOHN C. KERINS, CHARLES N. GREENHUT, and JEREMY M. PLENZLER, Administrative Patent Judges. PLENZLER, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1-16. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as Deere & Company. Appeal Br. 2. Appeal 2022-000182 Application 16/007,489 2 CLAIMED SUBJECT MATTER The claims relate to exhaust gas treatment. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. An exhaust gas treatment system for an internal combustion engine, the system comprising: an exhaust gas pathway configured to receive exhaust gas from the internal combustion engine; a heater operable to heat the exhaust gas as it passes through the exhaust gas pathway; an injector configured to inject reductant into the exhaust gas pathway, the reductant including at least one of ammonia or an ammonia precursor; a first treatment element positioned in the exhaust gas pathway downstream of the heater and the injector; a second treatment element positioned in the exhaust gas pathway downstream of the first treatment element; and a temperature sensor configured to sense a temperature of the exhaust gas; a NOx concentration sensor configured to sense a concentration of NOx in the exhaust gas downstream of the first treatment element; and a controller configured to control operation of the heater based on feedback from the temperature sensor and to modulate flow of the reductant through the injector based on feedback from the NOx concentration sensor, wherein at least one of the first treatment element or the second treatment element includes a selective catalytic reduction (SCR) element, and wherein the exhaust gas treatment system does not include a precious metal catalyst upstream of the first treatment element. Appeal 2022-000182 Application 16/007,489 3 REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Kakinohana US 2009/0235648 A1 Sept. 24, 2009 Driscoll US 2013/0047583 A1 Feb. 28, 2013 Tsumagari US 2015/0360177 A1 Dec. 17, 2015 Schmitt US 2016/0346732 A1 Dec. 1, 2016 Sharp US 2018/0058297 A1 Mar. 1, 2018 Odajima JP 2006125382 May 18, 2006 REJECTIONS Claims 1-8 are rejected under 35 U.S.C. § 103 as being unpatentable over Driscoll, Sharp, and Schmitt. Claims 9-14 are rejected under 35 U.S.C. § 103 as being unpatentable over Driscoll and Kakinohana. Claim 15 is rejected under 35 U.S.C. § 103 as being unpatentable over Driscoll, Kakinohana, and Odajima. Claims 16 is rejected under 35 U.S.C. § 103 as being unpatentable over Driscoll, Kakinohana, and Tsumagari. OPINION Claim 1 The Examiner finds that Driscoll teaches the features recited in claim 1, other than the heater and corresponding controller. Final Act. 4-5. The Examiner finds that Sharp teaches the recited heater and controller and that Schmitt teaches a control scheme using a NOx sensor. Id. at 5. Appellant does not dispute these findings. Appellant’s sole dispute regarding claim 1 is whether one skilled in the art would have added a heater to Driscoll’s system. Appellant faults the Appeal 2022-000182 Application 16/007,489 4 Examiner’s rejection because “Driscoll already teaches the advantage cited by the Examiner as providing the alleged motivation to combine (i.e. providing a highly efficient SCR)” and “Driscoll teaches away from adding additional components that would add size, cost, and complexity to the aftertreatment system.” Appeal Br. 9; see also id. at 9-11 (reiterating the same). Appellant’s contentions are not persuasive. There is no dispute that Driscoll provides heat to its system without the addition of a separate heater. See, e.g., Driscoll ¶ 27 (describing a passive system for generating heat). The Examiner’s point is that inclusion of a separate heater provides more control over temperature. See Ans. 4 (citing Sharp ¶ 78). There is no meaningful dispute from Appellant regarding this finding, which supports the Examiner’s conclusion of obviousness. Appellant also fails to identify a teaching away from the Examiner’s proposed inclusion of a heater in Driscoll’s system. The consideration of additional cost and complexity added to the system from the additional component is not a teaching away, but, rather, a design consideration one skilled in the art would weigh relative to increased temperature control provided by the addition of the heater. See Winner Int’l Royalty Corp. v. Wang, 202 F.3d 1340, 1349 n.8 (Fed. Cir. 2000) (“The fact that the motivating benefit comes at the expense of another benefit, however, should not nullify its use as a basis to modify the disclosure of one reference with the teachings of another. Instead, the benefits, both lost and gained, should be weighed against one another.”). At best, Driscoll could be read as indicating that the lower cost, lower complexity design is preferred. But that, too, does not rise to the level of a teaching away. See In re Farrenkopf, Appeal 2022-000182 Application 16/007,489 5 713 F.2d 714, 718 (Fed. Cir. 1983) (“That a given combination would not be made by businessmen for economic reasons does not mean that persons skilled in the art would not make the combination because of some technological incompatibility. Only the latter fact would be relevant.”); see also Fleming v. Cirrus Design Corp., 2022 WL 710549, at *7 (Fed. Cir. Mar. 10, 2022). Appellant relies on the unpersuasive arguments presented in connection with claim 1 for the patentability of claims 2-7. For at least the reasons set forth above, we are not apprised of error in the Examiner’s decision to reject claims 1-7. Claim 8 Claim 8 depends from claim 1, and specifies that “the heater is operable to heat the exhaust gas to a temperature of at least 550 degrees Celsius.” The Examiner finds that “Sharp paragraph [0072] discloses range of heating operation of 540 degree Celsius to 650 degree Celsius.” Final Act. 7. Appellant contends that one skilled in the art would not further modify Driscoll’s teachings as proposed by the Examiner to arrive at the features recited in claim 8. Appellant effectively reasserts its dispute regarding the rejection of claim 1. See Appeal Br. 11. Appellant’s contentions are not persuasive for the reasons set forth above regarding claim 1. Appellant does not dispute the Examiner’s additional finding that Sharp’s heater is operable to heat the exhaust gas to a temperature of at least 550 degrees Celsius. When this heater is added to Driscoll’s system, which is the result of the rejection of claim 1, claim 8 is also met by the combination. Appeal 2022-000182 Application 16/007,489 6 For at least these reasons, we are not apprised of error in the Examiner’s decision to reject claim 8. Claim 9 Claim 9 is independent, and is similar to claim 1, but also includes “an ozone injector configured to inject ozone into the exhaust gas pathway.” The Examiner finds that Kakinohana teaches this additional feature. Final Act. 9. Appellant does not dispute this finding. See Appeal Br. 12-13. Other than reiterating unpersuasive contentions similar to those presented with respect to claim 1, Appellant contends that there is no evidence to support the Examiner’s rationale for the proposed modification regarding the ozone injector. Appeal Br. 13. The Examiner finds that “providing the Ozone upstream of the SCRF 30 mitigates issues when over temperature and abnormal temperature when regenerating the SCRF 30, see paragraph [0011]-[0013] of Kakinohana.” Final Act. 9. The Examiner reasons that “it would have been obvious to include an ozone supply upstream of filter . . . since this would enable . . . the advantage of avoid[ing] cracking and thermal damage of the filter of Driscoll, see paragraph [0011].” Id. Appellant alleges fault in the Examiner’s reasoning because “there is no evidence that Driscoll’s aftertreatment system 10 would suffer from cracking and thermal damage as suggested by the Examiner.” Appeal Br. 13. But as the Examiner finds, “Kakinohana discloses the use and reasoning why providing ozone upstream of a SCRF would be beneficial,” and while “[i]t is true that Driscoll does not mention anything about thermal damage or cracking . . . Kakinohana is teaching that events such as regeneration can Appeal 2022-000182 Application 16/007,489 7 cause abnormal temperature which can damage the filter.” Ans. 10. Appellant does not dispute this finding. See Reply Br. 4. Accordingly, we are left with no separate dispute regarding the rejection of claim 9, and are left with only Appellant reiterating the unpersuasive contentions presented in connection with claims 1 and 8. Claims 10-16 depend from claim 9. Appellant does not present separate argument with respect to those claims. For the reasons set forth above, we are not apprised of error in the Examiner’s decision to reject claims 9-16. CONCLUSION The Examiner’s rejections are affirmed. DECISION SUMMARY In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1-8 103 Driscoll, Sharp, Schmitt 1-8 9-14 103 Driscoll, Kakinohana 9-14 15 103 Driscoll, Kakinohana, Odajima 15 16 103 Driscoll, Kakinohana, Tsumagari 16 Overall Outcome 1-16 Appeal 2022-000182 Application 16/007,489 8 TIME PERIOD FOR RESPONSE 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) (2020). AFFIRMED