Ex Parte Dean et al

Patent Trial and Appeal Board

Mar 5, 2018

13556709 (P.T.A.B. Mar. 5, 2018)

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.
13/556,709 07/24/2012 Charles Dean P020183-PTUS-RRM 6648
74175 7590
Harness Dickey & Pierce, P.L.C. (GM)
P.O. Box 828
Bloomfield Hills, MI 48303
EXAMINER
MONAHON, BRIAN P
ART UNIT PAPER NUMBER
3747
NOTIFICATION DATE DELIVERY MODE
03/07/2018 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):
gm-inbox@hdp.com
troymailroom @hdp. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CHARLES DEAN, MANUEL ANGEL GONZALEZ DELGADO,
and MICHAEL J. LUCIDO
Appeal 2016-006429
Application 13/556,709
Technology Center 3700
Before WILLIAM A. CAPP, MICHAEL L. WOODS, and
LEE L. STEPINA, Administrative Patent Judges.
CAPP, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants1 seek our review under 35 U.S.C. § 134 of the final
rejection of claims 1—19. We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
1 Appellants identify GM Global Technology Operations LLC as the real-
party-in-interest. Appeal Br. 2.
Appeal 2016-006429
Application 13/556,709
THE INVENTION
Appellants’ invention relates to engine exhaust gas recirculation
(EGR) systems. Spec. 11. Claim 10, reproduced below, is illustrative of
the subject matter on appeal.
10. An engine assembly comprising:
an engine structure defining a combustion chamber and
intake and exhaust ports in communication with the combustion
chamber;
an intake system in communication with the intake port;
an exhaust system including:
an exhaust conduit in communication with the exhaust
port;
a diesel particulate filter located in the exhaust conduit;
and
a backpressure control valve located in the exhaust
conduit downstream of the diesel particulate filter;
an exhaust gas recirculation system selectively providing
internal exhaust gas recirculation; and
a control module in communication with the backpressure
control valve and adapted to estimate a flow restriction through
the diesel particulate filter, adjust the backpressure control
valve position based on the flow restriction and provide a
controlled amount of internal exhaust gas recirculation to the
engine assembly based on the adjusted backpressure control
valve position.
THE REJECTIONS
The Examiner relies upon the following as evidence in support of the
rejections:
Khair US 5,806,308 Sept. 15, 1998
Aoyama US 2003/0106542 A1 June 12, 2003
Hashizume US 2008/0196395 A1 Aug. 21,2008
Foster US 2010/0005782 A1 Jan. 14, 2010
Itoga US 2010/0274463 A1 Oct. 28, 2010
Styles US 7,934,486 B1 May 3, 2011
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Appeal 2016-006429
Application 13/556,709
The following rejections are before us for review:
1. Claims 1, 2, 4, 5, 6, 7, 10, 14, 15, 16, and 17 are rejected under
35 U.S.C. § 103(a) as being unpatentable over Hashizume and Styles.
2. Claim 3 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Hashizume, Styles, and Khair.
3. Claims 8, 9, and 18 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Hashizume, Styles, and Foster.
4. Claims 11 and 12 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Hashizume, Styles, Itoga, and Aoyama.
5. Claim 13 is rejected under 35 U.S.C. § 103(a) as being
unpatentable over Hashizume, Styles, Khair, Itoga, and Aoyama.
6. Claim 19 is rejected under 35 U.S.C. § 103(a) as being
unpatentable over Hashizume, Styles, Foster, Itoga, and Aoyama.
OPINION
Unpatentability of Claims 1, 2, 4, 5, 6, 7, 10, 14, 15, 16, and 17
over Hashizume and Styles
Claim 10
The Examiner finds that Hashizume discloses the invention except
for: (1) an exhaust gas recirculation system selectively providing internal
exhaust gas recirculation; and (2) a control module in communication with a
backpressure control valve that is adapted to: (a) estimate a flow restriction
through a diesel particulate filter, (b) adjust the backpressure control valve
position based on the flow restriction; and (c) provide a controlled amount of
internal exhaust gas recirculation to the engine assembly based on the
adjusted backpressure control valve position. Final Action 8—9. The
Examiner relies on Styles as teaching an exhaust gas recirculation system
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Application 13/556,709
that is adapted to provide a controlled amount of internal exhaust gas
recirculation based on adjusting the backpressure control valve. Id. The
Examiner concludes that it would have been obvious to a person of ordinary
skill in the art at the time the invention was made to modify Hashizume by
Styles to achieve the claimed invention. Id. at 9. According to the
Examiner, a person of ordinary skill in the art would have done this to
increase the internal exhaust gas recirculation rate by increasing the exhaust
pressure in the exhaust manifold. Id. at 10 (citing Styles, col. 6,11. 44-48).
Appellants argue that Hashizume relates to regenerating a diesel
particulate matter filter. Appeal Br. 17—18. Appellants take the position that
Hashizume adjusts a backpressure control valve to regenerate the particulate
filter and maintains a pressure within the particulate filter during the
regeneration process. Id. at 19. Therefore, according to Appellants,
“Hashizume does not disclose adjusting the backpressure control valve
based on a flow restriction through a particulate filter for providing a
controlled amount of internal exhaust gas recirculation, as claimed.” Id.
(emphasis omitted). Appellants argue that Styles fails to teach adjusting a
backpressure control valve based on estimated flow restriction through a
particulate filter. Id. at 20-21 (“Styles does not provide any discussion of a
back pressure control valve at all”).
In response, the Examiner states that Hashizume describes adjusting
an exhaust throttle valve based on the amount of particulate matter within
the diesel particulate filter, which is determined by detecting differential
pressure. Ans. 21 (citing Hashizume 69, 72, 73). The Examiner explains
that Styles teaches that increasing backpressure within the exhaust manifold
reduces the ability of exhaust gases to escape the combustion chamber. Id.
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Application 13/556,709
(citing Styles, col. 6,11. 44-48). Thus, according to the Examiner, Styles
teaches that increasing backpressure adjusts internal EGR. Id. The
Examiner then states that when Hashizume’s backpressure valve adjusts
backpressure, the amount of internal exhaust recirculation is “controlled.”
Id. The Examiner concludes by stating that “[tjhis is obviated in view of
Styles’s teaching.” Id.
“Internal EGR” is a term of art in the field of automotive emissions
control and refers to a situation when either: (1) the valve timing is arranged
so that there is some back-flow into the combustion chamber from the
exhaust; or (2) all exhaust gases are not pushed out of the combustion
chamber on the exhaust stroke.2 The term “Internal EGR” is consistently
used in Styles and in Appellants’ Specification in a manner that is consistent
with this meaning. See Styles, col. 6,11. 42-48; Spec. ^flf 31—34.
Hashizume is directed to an exhaust gas purification system for an
internal combustion engine. Hashizume, Abstract. Hashizume controls the
pressure inside of a particulate filter to facilitate regeneration of the filter.
Id. Tf 75. An Electronic Control Unit (ECU) controls operation of exhaust
throttle 12 in relation to pressure within particulate filter 11. Id. ^flf 69, 75,
76, and 101.
Styles is directed to a method for controlling combustion is a
combustion chamber of turbocharged engine. Styles, Abstract. Styles
teaches that partially closing an exhaust back-pressure valve may increase
the internal EGR rate. Id. col. 6,11. 42-48.
2 Julian Edgar, EGR Comeback, Why And How Exhaust Gas
Recirculation Is Again Big News,
http://www.autospeed.com/cms/A_l 12612/printArticle.html (last accessed
February 20, 2018), first published in 2008.
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Application 13/556,709
Thus, Hashizume teaches monitoring pressure in a diesel particulate
filter and controlling back-pressure with an ECU controlled backpressure
control valve. Styles, in turn, teaches that increasing back-pressure in an
exhaust system can influence internal EGR. The question before us is
whether a person of ordinary skill in the art, armed with the teachings of
Hashizume and Styles, would have found it obvious to achieve the claimed
invention.
The obviousness inquiry requires a determination that a skilled artisan
would have been motivated to combine the teachings of the prior art
references to achieve the claimed invention, and that the skilled artisan
would have had a reasonable expectation of success in doing so. Kinetic
Concepts, Inc. v. Smith & Nephew, Inc., 688 F.3d 1342, 1360 (Fed. Cir.
2012). The presence or absence of a motivation to combine references in an
obviousness determination is a question of fact. See Par Pharm., Inc. v. TWI
Pharm., Inc., 773 F.3d 1186, 1196 (Fed. Cir. 2014). “The reasonable
expectation of success requirement refers to the likelihood of success in
combining references to meet the limitations of the claimed invention.”
Intelligent Bio-Systems, Inc. v. Illumina Cambridge Ltd., 821 F.3d 1359,
1367 (Fed. Cir. 2016). In other words, “one must have a motivation to
combine accompanied by a reasonable expectation of achieving what is
claimed in the patent-at-issue.” Id.
In the instant case, we are not persuaded that the Examiner has
provided sufficient articulated reasoning with a rational underpinning to
explain how and/or why a person of ordinary skill in the art would have been
led to the claimed invention by the cited art. Hashizume uses an ECU to
control back-pressure to regenerate a diesel particulate filter. While the
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back-pressure control valve (12) might have an effect on internal EGR, we
are not persuaded by the Examiner’s rather abbreviated analysis and remarks
that Hashizume’s ECU is capable of controlling the regeneration process in
the diesel particulate filter and, also, simultaneously “controlling” internal
EGR.3 Similarly, we are not persuaded by the Examiner’s analysis that a
person of ordinary skill in the art would have been motivated to sacrifice the
filter regeneration functionality of Hashizume so that back-pressure
controlled by the ECU and valve 12 could be devoted, instead, to controlling
internal EGR.
The Examiner provides insufficient reasoning and rationale to support
the combination of Hashizume and Styles in the manner proposed in the
rejection. Consequently, we do not sustain the Examiner’s unpatentability
rejection of claim 10.
Claim 1
Claim 1 is an independent claim that recites a method substantially in
accordance with the apparatus that is recited in claim 10. The Examiner’s
rejection of claim 1 suffers from the same infirmity that we have identified
above with respect to claim 10. For the same reasons articulated above with
respect to claim 10, we do not sustain the unpatentability rejection of
claim 1.
Claims 2, 4, 5, 6, 7, 14, 15, 16, and 17
These claims depend, directly or indirectly, from either claim 1 or 10.
Claims App. The Examiner’s rejection of these claims suffers from the
3 We do not opine on whether this may, in fact, be possible. For purposes of
this decision, we simply determine that the Examiner has provided
insufficient technical reasoning and analysis to support the conclusion of
obviousness reached in the rejection.
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Application 13/556,709
same infirmity that was identified above with respect to claims 1 and 10.
Thus, for essentially the same reason expressed above in connection with
claims 1 and 10, we do not sustain the rejection of claims 2, 4, 5, 6, 7, 14,
15, 16, and 17.
Unpatentability of Claims 3, 8, 9, 11, 12, 13, 18, and 19
These claims depend, directly or indirectly, from claims 1 or 10 and
are rejected over Hashizume and Styles in combination with various other
references. Claims App.; Final Action 4—21. The Examiner makes no
findings of fact or conclusions of law with respect to these additional
references that cure the deficiencies that we have noted with respect to
claims 1 and 10 above. Consequently, we do not sustain the unpatentability
rejection of claims 3, 8, 9, 11, 12, 13, 18, and 19.
DECISION
The decision of the Examiner to reject claims 1—19 is REVERSED.
REVERSED
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