DELPHI TECHNOLOGIES IP LIMITED

Patent Trials and Appeals Board

Feb 7, 2022

2021000721 (P.T.A.B. Feb. 7, 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. 15/956,059 04/18/2018 Ross J. Solanskey DP-324446 6945 184301 7590 02/07/2022 WARNER NORCROSS + JUDD LLP In re BorgWarner, Inc. 150 OTTAWA AVE NW SUITE 1500 GRAND RAPIDS, MI 49503 EXAMINER SUN, CAITLYN MINGYUN ART UNIT PAPER NUMBER 1795 NOTIFICATION DATE DELIVERY MODE 02/07/2022 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): patents@wnj.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte ROSS J. SOLANSKEY, ALFREDO I. COVARRUBIAS, and DANIEL RAMIREZ Appeal 2021-000721 Application 15/956,059 Technology Center 1700 ____________ Before KAREN M. HASTINGS, DONNA M. PRAISS, and MICHELLE N. ANKENBRAND, Administrative Patent Judges. PRAISS, Administrative Patent Judge. DECISION ON APPEAL1 Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the Examiner’s decision to reject claims 1-16, which constitute all the claims pending in this application. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 In this Decision, we refer to the Specification filed Apr. 18, 2018 (“Spec.”), the Final Office Action dated Jan. 31, 2020 (“Final Act.”), the Appeal Brief filed June 29, 2020 (“Appeal Br.”), and the Examiner’s Answer dated Aug. 3, 2020 (“Ans.”). 2 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies Delphi Technologies IP Limited as the real party in interest. Appeal Br. 3. Appeal 2021-000721 Application 15/956,059 2 STATEMENT OF THE CASE The invention relates to a gas sensor with a sensing element having a sensing electrode exposed to a gas to be sensed and a reference electrode exposed to atmospheric air, which is used as a reference gas. Spec. ¶ 1. According to the Specification, the gas sensor may be arranged to sense oxygen concentration levels of exhaust gases in an exhaust conduit of an internal combustion engine. Id. ¶ 21. The Specification discloses an upper shield that is radially crimped around a sealing member to prevent intrusion of water and other contaminants. Id. ¶ 38. The upper shield has reference gas apertures to provide an inlet for a reference gas, preferably atmospheric air, to the chamber formed within the upper shield. Id. The Specification discloses sizing gas apertures to prevent liquid water from entering the chamber; the gas aperture size depends on the surface tension of the liquid water and the differential pressure between the outside of the upper shield and the chamber. Spec. ¶ 51. The Specification states the apertures obviate the need for costly breathable membranes, but discloses optionally including a hydrophobic coating in the areas surrounding upper shield reference gas apertures to further reduce the potential for liquid water to enter the reference gas apertures. Id. ¶¶ 54, 56. The Specification states a reference electrode is exposed to atmospheric air provided by a reference gas channel, which receives a reference gas through a port in fluid communication with the chamber, while a sensing electrode is exposed to an exhaust stream. Id. ¶¶ 46, 55. A volt meter monitors the voltage between the sensing electrode and the reference electrode to determine the oxygen concentration in the exhaust stream. Id. ¶ 55. Appeal 2021-000721 Application 15/956,059 3 Independent claim 1, reproduced below, is illustrative (emphasis added). 1. A gas sensor comprising: a sensing element having an electrochemical cell comprising a solid electrolyte layer disposed between a sensing electrode and a reference electrode, said sensing element also having a reference gas channel in fluid communication with said reference electrode; a shield made of a metal material, said shield being hollow such that a chamber is located within said shield and such that said shield has an inner surface and an outer surface, said sensing electrode and said reference electrode being located outside of said chamber and said reference gas channel being in fluid communication with said chamber which provides fluid communication from said chamber to said reference electrode, said shield having a reference gas aperture extending through said metal material from said outer surface to said inner surface such that said reference gas aperture is configured to permit a reference gas to flow into said chamber while preventing liquid water from entering said chamber. Appeal Br. 13 (Claims App.). Claim 9, the other independent claim pending in this Appeal, also requires a shield having a reference gas aperture similar to independent claim 1. Id. at 14-15. ANALYSIS We review the appealed rejections for error based upon the issues Appellant identifies, and in light of the arguments and evidence produced thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential) (cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) (“[I]t has long been the Board’s practice to require an applicant to identify the alleged error in the examiner’s rejections.”)). After considering the Appeal 2021-000721 Application 15/956,059 4 argued claims in light of each of Appellant’s arguments, we are not persuaded Appellant has identified reversible error in the appealed rejections. The Examiner rejects claims 1-16 as follows for the reasons provided in the Final Office Action. Final Act. 2-18. Claims 35 U.S.C. § Basis/References 1-4, 7-12, 15, 16 103 Saitou,3 Ito4 5, 6, 13, 14 103 Saitou, Ito, Kato5 Obviousness over Saitou and Ito Appellant argues the obviousness rejection of claims 1-4, 7-12, 15, 16 as a group. Appeal Br. 9-11. Therefore, we confine our discussion to claim 1, which we select as representative. Claims 2-4, 7-12, 15, and 16 stand or fall with claim 1. See 37 C.F.R. § 41.37(c)(1)(iv) (2019). The Examiner finds Saitou teaches a gas sensor having claim 1’s recited features except for the reference gas aperture configured to permit the reference gas to flow into the chamber while preventing liquid water from entering the chamber. Final Act. 2-6. The Examiner finds Ito teaches a gas sensor element protected by a protective layer that has a water- impermeable property. Id. at 6. The Examiner finds Ito’s protective layer has gas introduction ports for introducing measurement gas to the main body, and specifically the measurement gas-side electrode, and the ports effectively suppress water intruding into the gas sensor element. Id. at 6 (citing Ito Fig. 1, ¶¶ 31, 34, 61). The Examiner finds Ito’s ports have a width 3 US 8,673,128 B2, iss. Mar. 18, 2014. 4 US 2017/0343505 A1, pub. Nov. 30, 2017. 5 US 6,348,141 B1, iss. Feb. 19, 2002. Appeal 2021-000721 Application 15/956,059 5 of 0.5mm-2.0 mm and effectively suppress pressure increase inside the gas sensor element while further improving the resistance of the gas sensor to water damage. Id. (citing Ito ¶ 61). The Examiner determines it would have been obvious to a person having ordinary skill in the art to modify Saitou’s gas sensor with Ito’s gas introduction ports to permit the gas to flow into the measurement chamber while preventing liquid water from entering the measurement chamber. Id. (citing Ito ¶ 61). According to Appellant, the Examiner erred in combining the teachings of Saitou and Ito because they operate in different environments. Appeal Br. 10. Appellant contends Saitou’s reference gas inlet holes are exposed to an environment that may include water being splashed from the road, whereas Ito’s measurement gas introduction ports are limited to liquid water as a combustion byproduct for only a short time period as the exhaust components’ temperature quickly rises and vaporizes any liquid water. Id. Appellant contends Ito does not suggest its port configuration would be useful outside of the exhaust conduit, where it would be subject to a higher severity of liquid water. Id. at 10-11 (analogizing subjecting Ito’s port configuration to a raincoat “known to keep the wearer dry in rain [that] would not inherently be thought to keep the wearer dry while swimming”). Appellant also asserts Ito does not disclose any advantage of its measurement gas introduction ports over a water repellant filter. Id. at 11. Appellant’s arguments do not persuade us that the Examiner reversibly erred in rejecting claim 1 as obvious over Saitou’s teachings as modified with Ito for essentially the reasons the Examiner provides in the Final Office Action and the Answer. We add the following primarily for emphasis. Appeal 2021-000721 Application 15/956,059 6 Appellant’s argument that Ito does not teach or suggest an advantage over Saitou’s water repellent filter (Appeal Br. 11) is not persuasive of error because the rejection is not based on substituting Ito’s ports for Saitou’s filter. Rather, the rejection applies Ito’s teachings to modify Saitou’s reference gas aperture to function as Ito teaches. Final Act. 6. Appellant’s argument also is not persuasive of error because claim 1 does not preclude Saitou’s additional protective feature. Ans. 21. During examination, the claims must be interpreted as broadly as their terms reasonably allow. In re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1369 (Fed. Cir. 2004). The Examiner’s interpretation of claim 1 permitting other components such as Saitou’s water repellant filter is proper because claim 1 recites “comprising.” Thus, claim 1 permits additional protective features in the recited gas sensor device. Appellant’s argument that a person having ordinary skill in the art would not have applied Ito’s teachings to Saitou’s gas sensor device because Ito’s sensor operates in a different environment (Appeal Br. 10-11) is not persuasive of error because Ito’s teachings are reasonably pertinent to the problem with which the applicant is concerned; namely, preventing water from entering a chamber while allowing gas to enter. Ans. 20; Ito ¶ 61 (“[I]t is possible to facilitate both the introduction of . . . gas . . . while effectively suppressing intrusion of water into the gas sensor element”); Spec. ¶ 8 (describing the invention as “configured to permit a . . . gas to flow into the chamber while preventing liquid water from entering the chamber”). In sum, Appellant’s arguments are not persuasive of reversible error in the Examiner’s conclusion of obviousness. Accordingly, we affirm the Appeal 2021-000721 Application 15/956,059 7 Examiner’s rejection of claim 1, as well as the rejection of claims 2-4, 7-12, 15, and 16 under 35 U.S.C. § 103 over Saitou and Ito. Obviousness over Saitou, Ito, and Kato Appellant argues the obviousness rejection of claims 5, 6, 13, and 14 over the combination of Saitou, Ito, and Kato as a group. Appeal Br. 12. Therefore, we confine our discussion to claim 5, which we select as representative. Claims 6, 13, and 14 stand or fall with claim 5. See 37 C.F.R. § 41.37(c)(1)(iv). Claim 5 depends from claim 1 and recites “wherein said reference gas aperture extends through said metal material along an axis and said reference gas aperture has a maximum width that is less than or equal to 1100 µm in a direction perpendicular to said axis.” Appeal Br. 14 (Claims App.). Appellant argues we should reverse the Examiner’s rejection of claim 5 because the combination of Saitou and Ito fails to teach or suggest the shield having a reference gas aperture configured to permit a reference gas to flow into a chamber while preventing liquid water from entering the chamber as claim 1 requires. Appeal Br. 12. Appellant contends Kato does not cure this deficiency of Saitou and Ito. Id. Because Appellant has not identified reversible error in the Examiner’s rejection of claim 1 over Saitou and Ito for the reasons discussed above, there is no deficiency for Kato to cure. Thus, we sustain the Examiner’s obviousness rejection of claim 5, as well as claims 6, 13, and 14. Appeal 2021-000721 Application 15/956,059 8 CONCLUSION For these reasons and those provided in the Final Office Action and the Examiner’s Answer, we uphold the Examiner’s rejections of claims 1- 16. DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § References/Basis Affirmed Reversed 1-4, 7-12, 15, 16 103 Saitou, Ito 1-4, 7-12, 15, 16 5, 6, 13, 14 103 Saitou, Ito, Kato 5, 6, 13, 14 Overall Outcome 1-16 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)(1)(iv). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED