DENSO CORPORATIONDownload PDFPatent Trials and Appeals BoardMay 26, 20202019003403 (P.T.A.B. May. 26, 2020) Copy Citation 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. 15/319,185 12/15/2016 Kazuhiko KOIKE RYM-2635-1624 3132 23117 7590 05/26/2020 NIXON & VANDERHYE, PC 901 NORTH GLEBE ROAD, 11TH FLOOR ARLINGTON, VA 22203 EXAMINER KRCHA, MATTHEW D ART UNIT PAPER NUMBER 1798 NOTIFICATION DATE DELIVERY MODE 05/26/2020 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): PTOMAIL@nixonvan.com pair_nixon@firsttofile.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte KAZUHIKO KOIKE, MASAYUKI TAMURA, and HIROKATSU IMAGAWA Appeal 2019-003403 Application 15/319,185 Technology Center 1700 ____________ Before ROMULO H. DELMENDO, CHRISTOPHER L. OGDEN, and JANE E. INGLESE, Administrative Patent Judges. DELMENDO, Administrative Patent Judge. DECISION ON APPEAL The Appellant1 appeals under 35 U.S.C. § 134(a) from the Primary Examiner’s final decision to reject claims 1–10.2 We have jurisdiction under 35 U.S.C. § 6(b). We reverse. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42—namely, “DENSO CORPORATION” (Application Data Sheet filed December 15, 2016 at 6), which is also identified as the real party in interest (Appeal Brief filed January 11, 2019 (“Appeal Br.”) at 3). 2 See Appeal Br. 6–14; Reply Brief filed March 27, 2019 (“Reply Br.”) at 2–7; Final Office Action entered August 28, 2018 (“Final Act.”) at 3–8; Examiner’s Answer entered February 1, 2019 (“Ans.”) at 3–5. Appeal 2019-003403 Application 15/319,185 2 I. BACKGROUND The subject matter on appeal relates to a particulate matter detection sensor for detecting particulate matter in an exhaust gas discharged from an internal combustion engine (Specification filed December 15, 2016 (“Spec.”) ¶ 2). Figure 2 (annotated), which illustrates an embodiment of the claimed subject matter, is reproduced from the Drawings filed December 15, 2016, as follows: Figure 2 depicts a partially enlarged view showing a part of a particulate matter detection sensor 1 in accordance with an embodiment of the claimed subject matter, wherein the sensor includes, inter alia, a particulate amount detector 2 with a deposition portion 21 on which spaced-apart detection electrodes 23 are disposed and on which particulate matter is deposited, a Appeal 2019-003403 Application 15/319,185 3 cover member 3 with a cylindrical cover wall 31 having exhaust gas introduction holes 311 through which exhaust gas G is introduced and an exhaust gas discharge hole 321, and an outer cover member 4 with outer introduction holes 411 and outer discharge hole 421 (Spec. ¶¶ 20, 23). As shown in Figure 2 and as described in the Specification, the exhaust gas introduction holes 311 are formed at positions closer to the tip side of the cover 3 than is the deposition portion 21, which is oriented towards the tip side (id. ¶¶ 9–11, 23). The Specification explains that because the orientation (in the circumferential direction) of the deposition portion 21 does not change relative to the exhaust gas G’s flow direction F, it is not necessary to control the circumferential orientation of the deposition portion 21 relative to the exhaust gas flow in any particular way (id. ¶ 9). Additionally, the Specification states that “the exhaust gas [G] easily contacts the deposition portion [21]” (id. ¶ 10 (bracketed matter added)). Representative claim 1 is reproduced from the Claims Appendix to the Appeal Brief, as follows: 1. A particulate matter detection sensor, comprising: a particulate matter detection unit including a deposition portion on which a part of particulate matter contained in an exhaust gas discharged from an internal combustion engine is deposited, and a plurality of detection electrodes disposed being spaced apart from each other on the deposition portion, wherein an output of an electrical signal is changed according to change of electrical characteristics due to the deposition of the particulate matter on the deposition portion; and a cover member including a cylindrical cover wall arranged so as to surround the particulate matter detection unit, wherein: the deposition portion of the particulate matter detection unit is disposed so as to be oriented towards a tip side in an axial direction of the cover member; and Appeal 2019-003403 Application 15/319,185 4 the cover wall of the cover member is provided with a plurality of exhaust gas introduction holes which are formed at positions closer to the tip side than the deposition portion is, such that the full extent of each of the plurality of exhaust gas introduction holes is closer to the tip side than the deposition portion in the axial direction of the cover member. (Appeal Br. 15 (emphases added)). II. REJECTIONS ON APPEAL The claims on appeal stand rejected under 35 U.S.C. § 103, as follows:3 A. Claims 1–3 and 10 as unpatentable over Sugiura et al.4 (“Hiroshi”) in view of Takenami et al.5 (“Susumu”); B. Claim 4 as unpatentable over Hiroshi, Susumu, and Okumura et al.6 (“Tatsuya”); and C. Claims 5–9 as unpatentable over Hiroshi, Susumu, and Yamada7 (Hirokazu). (Final Act. 3–5; Ans. 3–5). III. DISCUSSION A dispositive issue in this appeal is whether the preponderance of the evidence supports the Examiner’s conclusion that a person having ordinary 3 The Examiner and the Appellant identify each cited reference by the first- listed inventor’s given name (Final Act. 3, 5; Appeal Br. 6, 14). To avoid confusion, we also refer to the references by the first-listed inventor’s given name in our discussion below. 4 JP 2012-78130, published April 19, 2012 (machine-generated translation). 5 JP 2012-68148, published April 5, 2012 (machine-generated translation). 6 JP 2008-116355, published May 22, 2008 (machine-generated translation). 7 US 2004/0244467 A1, published December 9, 2004. Appeal 2019-003403 Application 15/319,185 5 skill in the art would have determined—through routine experimentation— the optimum positioning of the prior art’s exhaust gas introduction holes such that their distances from the cover’s tip are closer than that of the deposition portion to the tip (Final Act. 3–4). For the reasons given by the Appellant and below, we hold that the Examiner’s conclusion is not supported by sufficient factual evidence and, therefore, constitutes reversible error. Hiroshi discloses a particulate matter (PM) detection sensor S in Figure 2(a) (annotations in English added to the copy of record), as follows: Hiroshi’s Figure 2(a) above shows a particulate sensor S including, inter alia, a sensor element 1 comprising an insulation base body 10 on which a detection unit 2 made of detection electrodes e1–e5 is provided and a cover body 40 provided with holes 410 (not shown) and 411 for in-flow and out- Appeal 2019-003403 Application 15/319,185 6 flow of particulate matter-containing exhaust gas (Hiroshi Abstract; ¶ 37). As the Examiner acknowledges (Final Act. 3–4), Hiroshi does not disclose the last clause highlighted in reproduced claim 1 above. In addition, we find that Hiroshi does not disclose a deposition portion that is “oriented towards a tip side in an axial direction of the cover member,” as required by claim 1 (id.). Instead, Hiroshi’s Figure 2(a) shows the detection unit 2 is oriented radially with respect to the cover body 40 rather than axially towards the cover body 40’s tip side. The Examiner relies on Susumu to bridge the gaps between Hiroshi and claim 1’s subject matter (Final Act. 4). But, as the Appellant argues (Appeal Br. 9–13; Reply Br. 3–7), Susumu does not resolve the differences between claim 1’s subject matter and Hiroshi. Specifically, Susumu’s Figure 4 (annotations in English added to the copy of record) is reproduced as follows: Appeal 2019-003403 Application 15/319,185 7 Susumu’s Figure 4 above shows a particulate material sensor including a detecting element 10 provided with a detection unit 11 onto which measurement gas introduced through holes H1 on cover member 20 is collided (Susumu Abstract; ¶ 46). Susumu teaches a “vortex forming distance [L2] from the center of the detecting portion 11 to the tip of the cover member 20 is provided” (id. ¶ 46 (bolding added)). Thus, a person having ordinary skill in the art would have understood that Susumu’s teaching of forming a vortex flow of the particulate matter- containing gas after its collision with a radially-oriented detection unit 11 to provide efficient collection of the particulate matter relates to a completely different concept or purpose from that disclosed for the current invention, which is to provide exhaust gas introduction holes that may be positioned anywhere circumferentially relative to the deposition portion because the Appeal 2019-003403 Application 15/319,185 8 holes are positioned closer axially to a cover member’s tip side than the deposition portion (Spec. ¶¶ 6–11 (distinguishing claimed invention over Susumu)). The Examiner offers no evidence that optimizing the vortex distance in Susumu would result in the distance or positional relationship between the deposition portion and the exhaust gas introduction holes recited in claim 1. Indeed, such optimization would be unlikely because the configuration recited in claim 1 would not result in a collision of the particulate-matter containing exhaust gas and a radially-oriented deposition portion so as to create vortex flow, as required by Susumu. In re Ratti, 270 F.2d 810, 813 (CCPA 1959) (“Th[e] suggested combination of references would require a substantial reconstruction and redesign of the elements shown in [the prior art reference] as well as a change in the basic principles under which the [prior art reference’s] construction was designed to operate.”). It follows then that the Examiner’s obviousness analysis based on routine experimentation has no basis in fact. In re Applied Materials, Inc., 692 F.3d 1289, 1295 (Fed. Cir. 2012) (citing In re Antonie, 559 F.2d 618, 620 (CCPA 1977)). For these reasons, we cannot uphold Rejection A. Because neither Tatsuya nor Hirokazu has been cited to cure the deficiencies in the Examiner’s combination of Hiroshi and Susumu, we also cannot sustain Rejections B and C. Appeal 2019-003403 Application 15/319,185 9 IV. CONCLUSION In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1–3, 10 103 Hiroshi, Susumu 1–3, 10 4 103 Hiroshi, Susumu, Tatsuya 4 5–9 103 Hiroshi, Susumu, Hirokazu 5–9 Overall Outcome 1–10 REVERSED Copy with citationCopy as parenthetical citation