Ex Parte ConradDownload PDFPatent Trial and Appeal BoardMar 23, 201612774327 (P.T.A.B. Mar. 23, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 121774,327 05/05/2010 28289 7590 03/25/2016 THE WEBB LAW FIRM, P.C. ONE GATEWAY CENTER 420 FT. DUQUESNE BL VD, SUITE 1200 PITTSBURGH, PA 15222 FIRST NAMED INVENTOR Larry J. Conrad 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 ATTORNEY DOCKET NO. CONFIRMATION NO. 2361-100787 7772 EXAMINER LEE, BRANDON DONGPA ART UNIT PAPER NUMBER 3748 NOTIFICATION DATE DELIVERY MODE 03/25/2016 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@webblaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte LARRY J. CONRAD Appeal2014-002169 Application 12/774,327 1 Technology Center 3700 Before JOHN C. KERINS, STEFAN STAICOVICI, and FREDERICK C. LANEY, Administrative Patent Judges. ST AI CO VICI, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Larry J. Conrad (Appellant) appeals under 35 U.S.C. § 134(a) from the Examiner's final decision rejecting claims 1-21. We have jurisdiction over this appeal under 35 U.S.C. § 6(b). SUMMARY OF DECISION We AFFIRM-IN-PART. According to Appellant, the real party in interest is Brookville Equipment Corporation. Appeal Br. 2 (filed July 8, 2013). Appeal2014-002169 Application 12/774,327 INVENTION Appellant's invention relates to "a filter regeneration system and method for use in facilitating regeneration of filter arrangement in fluid communication with an exhaust gas system of an internal combustion engine." Spec. 1, i-f 2. Claims 1, 13, and 20 are independent. Claim 1 is illustrative of the claimed invention and reads as follows: 1. A filter regeneration system for use with an internal combustion engine that includes a gas exhaust system for fluidly expelling exhaust gas at an exhaust gas temperature and a filter arrangement in fluid communication with the gas exhaust system and configured to capture particulate matter in the exhaust gas, said regeneration system comprising: a load generating arrangement coupled to the internal combustion engine for applying a mechanical load to the internal combustion engine; and a controller coupled to the load generating arrangement, said controller operative for controlling the exhaust gas temperature to be at a desired temperature by controlling the mechanical load applied to the internal combustion engine by the load generating arrangement. App. Br. 19 (Claims App.). REJECTIONS The following rejections are before us for review: I. The Examiner rejected claims 1-12, 20, and 21under35 U.S.C. § 112, second paragraph, as being indefinite. II. The Examiner rejected claims 1-8 and 11-21under35 U.S.C. § 102(b) as being anticipated by Gomulka (US 6,865,883 B2, issued March 15, 2005). 2 Appeal2014-002169 Application 12/774,327 III. The Examiner rejected claims 9 and 10 under 35 U.S.C. § 103(a) as being unpatentable over Gomulka and Appellant's Admitted Prior Art (AAPA).2 ANALYSIS Rejection I The Examiner finds that the limitation of a "controller operative for controlling" in each of independent claims 1 and 20 is indefinite because it is not clear whether it is "positively reciting control logic with the controller or merely reciting the capability of the controller." Final Act. 4 (mailed Jan. 7, 2013). According to the Examiner, "the language is interpreted to describe the capability of the controller." Id. Appellant argues that the disputed limitation describes "a capability of the controller" and cites to paragraph 22 of the Specification as support. Appeal Br. 4. In response, the Examiner takes the position that "[a]lthough the claims 1 and 20 have been interpreted by the office as to only requiring the general purpose computer (broad interpretation), nonetheless the claims ... have been reject[ed] under [the] narrower interpretation which requires the special computer with specific control logic to perform the functions." Ans. 3. 2 The Examiner takes Official Notice that "it is well known to one skilled in the art at the time of the invention that [catalyzed soot filters (CSP)] contain[] oxidation catalyst which oxidizes hydrocarbons and carbon monoxides in the exhaust gas." Final Act. 13. 3 Appeal2014-002169 Application 12/774,327 In this case, both Appellant and Examiner agree that the limitation of a "controller operative for controlling" describes "a capability of the controller." Compare Final Act. 4 with Appeal Br. 4. As correctly noted by Appellant, the Specification describes controller 22 as "configured, adapted or programmed to control ... the load generating arrangement 20." Spec. 6, i-f 22. Thus, "those skilled in the art would understand what is claimed when the claim is read in light of the [S]pecification." Orthokinetics, Inc. v. Safety Travel Chairs, Inc., 806 F.2d 1565, 1576 (Fed. Cir. 1986) (citations omitted). Moreover, by not specifying what type of control logic is required, but merely stating the capability of the controller, the claim is merely broad, not ambiguous. See In re Johnson, 558 F.2d 1008, 1016 n.17 (CCPA 1977) (breadth is not indefiniteness). That is to say, it is clear that the claim requires a controller capable of performing the claimed function; no further detail is necessary to know the metes and bounds of the claim. Accordingly, we do not sustain the rejection of claims 1-12, 20, and 21under35 U.S.C. § 112, second paragraph, as being indefinite. Rejection II Claims 1--8, 11, 12, and 14-19 Independent claim 1 requires, inter alia, a "controller operative for controlling the exhaust gas temperature to be at a desired temperature by controlling the mechanical load applied to the internal combustion engine." Appeal Br. 9. Similarly, independent claim 13 recites, "controlling the exhaust gas temperature to be at a desired temperature by controlling the mechanical load on the internal combustion engine." Id. at 11. 4 Appeal2014-002169 Application 12/774,327 The Examiner finds that Gomulka teaches a filter regeneration system including a load generating arrangement 30, 34 coupled to an internal combustion engine 10 and a filter arrangement 20, 22, 24. See Final Act. 5. The Examiner further finds that when the exhaust gas temperature is not sufficient for regeneration, Gomulka's controller 14 controls the exhaust gas temperature to be above a specified temperature of 400, 500, or 700 QC by activating heater load bank 30 to increase the load on engine 10, and thus increase the exhaust gas temperature. See Ans. 4 (citing Gomulka, col. 1, 11. 12-25 and 55-67; col. 2, 11. 1-8; col. 3, 11. 50-64; Fig. 1 ). Appellant argues that Gomulka fails to teach, "controlling the exhaust gas temperature to be at a desired temperature by controlling a mechanical load applied to an internal combustion engine." Appeal Br. 5. According to Appellant, Gomulka teaches, "blindly activating the heating elements ... without regard to the exhaust gas temperature being at a desired temperature." Reply Br. 3. We are not persuaded by Appellant's arguments because limitations not appearing in the claims cannot be relied upon for patentability. In re Self, 671F.2d1344, 1348 (CCPA 1982). Although the claims are interpreted in light of the Specification, limitations from the Specification are not read into the claims. We must be careful not to read a particular embodiment appearing in the written description into the claim if the claim language is broader than the embodiment. See Superguide Corp. v. DirecTV Enterprises, Inc., 358 F.3d 870, 875 (Fed. Cir. 2004). In this case, in contrast to the Specification, which uses the term "adjust" (see Spec. 7, i-f 5 Appeal2014-002169 Application 12/774,327 24 ), independent claims 1 and 13 recite the broader term of "controlling" 3 the engine load in order to control the desired exhaust gas temperature. Here, because Gomulka uses controller 14 to achieve an exhaust gas temperature sufficient for regeneration/desulfation of 400, 500, or 700 QC, Gomulka's controller 14 controls, that is, influences the exhaust gas temperature. See Gomulka, col. 1, 11. 12-25. Furthermore, because in Gomulka the load on engine 10 is influenced by the activation of heater load bank 30, Gomulka's controller 14 also controls engine load. See id., col. 3, 11. 51---64. As such, we agree with the Examiner that Gomulka teaches all the limitations of independent claims 1 and 13. See Ans. 4. In conclusion, for the forgoing reasons, we sustain the rejection of independent claims 1and13 under 35 U.S.C. § 102(b) as being anticipated by Gomulka. With respect to the rejection of dependent claims 2-8, 11, 12 and 14-- 19, Appellant relies on the same arguments as presented supra. See Appeal Br. 5. Accordingly, we likewise sustain the anticipation rejection of dependent claims 2-8, 11, 12 and 14--19. Claims 20 and 21 In contrast to independent claims 1 and 13, independent claim 20 recites "controlling at least one operating parameter of the load generating 3 An ordinary and customary meaning of the term "control" is "to exercise restraining or directing influence over." Merriam Webster's Collegiate Dictionary (10th ed. 1997). 6 Appeal2014-002169 Application 12/774,327 arrangement to set the temperature of the exhaust gas temperature at a desired temperature." Br. 12 (emphasis added). At the outset, we note that the use of the term "set" 4 in claim 20, rather than the term "control," as per claims 1 and 13, connotes a different meaning. See CAE Screenplates Inc. v. Heinrich Fiedler GmbH, 224 F.3d 1308, 1317 (Fed. Cir. 2000) ("In the absence of any evidence to the contrary, we must presume that the use of these different terms in the claims connotes different meanings."). When construing claim terminology in the United States Patent and Trademark Office, claims are to be given their broadest reasonable interpretation consistent with the Specification. See In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). In this case, Appellant's Specification describes controller 22 as "adjust[ing] the engine load to emit exhaust gas at the desired exhaust gas temperature." Spec. 7, ,-r 24. Appellant's Specification also describes using controller 22 to control the engine idle speed or the electric load/torque of generator 24 in order "to selectively control the emitted exhaust gas temperature." Id. at 7-8, i-fi-126, 27. Hence, in light of the Specification, we agree with Appellant that independent claim 20 requires a "control relationship between an operating parameter of the load generating arrangement" and "setting the temperature of the exhaust gas at a desired temperature." Appeal Br. 6. In other words, the "control relationship" alluded by Appellant requires more than merely increasing the exhaust gas temperature until a regeneration level is achieved, 4 An ordinary and customary meaning of the term "set" is "to adjust (a device and especially a measuring device) to a desired position." Merriam Webster's Collegiate Dictionary (10th ed. 1997) 7 Appeal2014-002169 Application 12/774,327 but rather the ability to adjust the exhaust gas temperature to a specific value based on controlling an operating parameter of the load generating arrangement. However, in Gomulka, controller 14 merely activates heater load bank 30, i.e., turns it ON, to increase the exhaust gas temperature to a level suitable for regeneration/ desulfation. See Gomulka, col. 3, 11. 51---61. We thus agree with Appellant that, "blindly activating the heating elements [32]" does not constitute "set[ ting] the temperature of the exhaust gas temperature at a desired temperature," as called for by independent claim 20. Reply Br. 3. Accordingly, for the forgoing reasons, we do not sustain the rejection of independent claim 20, and its dependent claim 21, under 35 U.S.C. § 102(b) as anticipated by Gomulka. Rejection III Claims 9 and 10 depend indirectly from independent claim 1. See Appeal Br. 10. Appellant relies on the same arguments as presented supra with respect to the rejection of independent claim 1. See Appeal Br. 5. Accordingly, for the same reasons as discussed above, we sustain the rejection of claims 9 and 10 under 35 U.S.C. § 103(a) as being unpatentable over Gomulka and AAP A. SUMMARY The Examiner decision to reject claims 1-12, 20, and 21under35 U.S.C. § 112, second paragraph, as being indefinite, is reversed. 8 Appeal2014-002169 Application 12/774,327 The Examiner's decision to reject claims 1-8 and 11-21under35 U.S.C. § 102(b) as being anticipated by Gomulka is affirmed as to claims 1- 8 and 11-19 and reversed as to claims 20 and 21. The Examiner's decision to reject claims 9 and 10 under 35 U.S.C. § 103(a) as being unpatentable over Gomulka and AAPA is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv). AFFIRMED-IN-PART 9 Copy with citationCopy as parenthetical citation