Ex Parte Donaldson et alDownload PDFPatent Trial and Appeal BoardJul 31, 201511589822 (P.T.A.B. Jul. 31, 2015) 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. 11/589,822 10/31/2006 George E. Donaldson 08350.6528-00000 5996 58982 7590 08/03/2015 CATERPILLAR/FINNEGAN, HENDERSON, L.L.P. 901 New York Avenue, NW WASHINGTON, DC 20001-4413 EXAMINER TRAN, BINH Q ART UNIT PAPER NUMBER 3748 MAIL DATE DELIVERY MODE 08/03/2015 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte GEORGE E. DONALDSON and JAMES J. DRISCOLL ___________ Appeal 2013-008205 Application 11/589,822 Technology Center 3700 ____________ Before MICHAEL L. HOELTER, ANNETTE R. REIMERS, and THOMAS F. SMEGAL, Administrative Patent Judges. REIMERS, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE George E. Donaldson and James J. Driscoll (Appellants) appeal under 35 U.S.C. § 134(a) from the Examiner’s decision to reject: (1) under 35 U.S.C. § 102(b) claims 10–14 as anticipated by Liang (US 6,363,771 B1; iss. Apr. 2, 2002); and (2) under 35 U.S.C. § 103(a) claims 1–6, 8, 9, and 15–21 as unpatentable over Hirata (JP 2005-071007; pub. Mar. 14, 2005)1 1 The Examiner and Appellants rely on the US Patent Publication of Hirata (US 2007/0266703 A1; pub. Nov. 22, 2007) as a translation for the Japanese Patent. See Ans. 5–6 (mailed Aug. 31, 2010); Appeal Br. 9 (filed Mar. 8, 2010). All references to Hirata in the subject appeal refer to the US Patent Publication. Appeal 2013-008205 Application 11/589,822 2 and Liang. Claim 7 has been canceled. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. CLAIMED SUBJECT MATTER2 The claimed subject matter relates to “a system that implements a conservation mode of engine operation in response to low levels of a reductant supply.” Spec. para. 1; Fig. 1. Claims 1, 10, and 15 are independent. Claim 1 is illustrative of the claimed subject matter and recites: 1. A control system for an engine having a supply of fuel and a supply of reductant, the control system comprising: a first sensor associated with the supply of fuel to generate a signal indicative of a quantity of fuel remaining; a second sensor associated with the supply of reductant to generate a signal indicative of a quantity of the reductant remaining; and a controller in communication with the first and second sensors, the controller configured to alter operation of the engine based on input from the second sensor to ensure3 that the remaining fuel is consumed before consumption of the remaining reductant. 2 Appellants submitted Amendments to the Claims in the Response after Final Action. See Response after Final Act. 1–2 (filed Oct. 21, 2009); see also Supp. Appeal Br. 3, 5 (filed Apr. 20, 2010). In the Advisory Action, the Examiner indicated that the proposed claim amendments “will not be entered.” Advisory Act. 1 (mailed June 19, 2013). Accordingly, the claims before us for review are the claims subject to the Final Office action mailed July 22, 2009, from which Appellants take the subject appeal. These claims were included in the Response to Non-Final Action filed March 30, 2009. 3 It appears the only difference between independent claims 1, 10, and 15 filed March 30, 2009 and those filed October 21, 2009 is that “to ensure” is Appeal 2013-008205 Application 11/589,822 3 ANALYSIS Anticipation by Liang Claims 10–14 Independent claim 10 calls for a control system for a power unit having a supply of reductant, the control system including a “controller configured to alter operation of the power unit based on the supply rate of the reductant to ensure that a desired consumption rate of the reductant does not exceed the supply rate of the reductant.” The Examiner finds that Liang discloses the system called for in claim 1 including the above noted limitation. Ans. 10 (citing Liang, col. 4, ll. 55–59). Appellants contend that: [T]he control module (42) [of Liang] is not disclosed as being configured to alter operation of a power unit based on a supply rate, or to alter operation of a power unit such that a desired consumption rate of reductant does not exceed the supply rate of reductant. Instead, Liang discloses only that the control module (42) derates an engine when a level in the urea storage tank (12) falls below a necessary amount of urea. Appeal Br. 11 (emphasis omitted). Appellants’ argument is persuasive. Liang describes that: “If, for some reason, the operator is not able to refill the tank 12, the control module 42 would be capable of de-rating the compression ignition engine to a safe minimum level until the tank 12 is filled.” Liang, col. 4, ll. 55–59; see also Ans. 10; Appeal Br. 11; Reply Br. 1–2. We agree with Appellants that this portion of Liang fails to “teach or even suggest that [de-rating] the engine has any [effect] on a desired consumption rate of reductant, much less that replaced with “such.” Appeal 2013-008205 Application 11/589,822 4 the [de-rating] of the engine results in the desired consumption rate not exceeding a supply rate.” Reply Br. 2; see also Appeal Br. 11. Moreover, the Examiner does not articulate sufficient technical reasoning to establish a reasonable basis for belief that de-rating of the engine (power unit) of Liang necessarily results in the desired consumption rate of the reductant not exceeding a supply rate of the reductant. See Ans. 5, 10. Based on the foregoing reasons, the Examiner fails to establish by a preponderance of the evidence that Liang anticipates the system of independent claim 10. Accordingly, we do not sustain the Examiner’s rejection of independent claim 10 and its dependent claims 11–14 as anticipated by Liang. Obviousness over Hirata and Liang Claims 1–6, 8, 9, and 15–21 Independent claim 1 calls for a control system for an engine having a supply of fuel and a supply of reductant, the control system including a “controller configured to alter operation of the engine . . . to ensure that the remaining fuel is consumed before consumption of the remaining reductant.” The Examiner finds that Hirata discloses most of the limitations of the system called for in claim 1 including the above noted limitation. Ans. 11 (citing Hirata, para. 45).4 Appellants contend that: [T]he control module (32) of Hirata is not disclosed as being configured to alter operation of 4 The Examiner relies on Liang for disclosing a controller “configured to alter operation of [an] engine based on input from [a] second sensor to generate a signal indicative of a quantity of the reductant remaining.” See Ans. 6–7. Appeal 2013-008205 Application 11/589,822 5 an engine at all, much less such that remaining fuel is consumed before consumption of remaining reductant. Instead, the control module (32) is disclosed as only generating an abnormality judgment output for the warning unit (46). Appeal Br. 13; see also id. at 12. Appellants further contend that: Steps 13 and 14 describe the control unit (32) of Hirata waiting to make the abnormality judgment until an amount of consumed fuel from a starting point Lf1 to an ending point Lf2 reaches a preset predetermined fuel consumption Lf. Once this amount of fuel has been consumed, the control unit (32) is then allowed to compare the amount of reductant injected during the corresponding time period to the amount of consumed fuel Lf. If the amount of injected reductant is not within a predetermined range of an expected value, the injection of reductant is judged to be abnormal. Reply Br. 3. Appellants’ arguments are persuasive. Hirata describes that: In step 13, it is judged whether or not the fuel consumption ΔLf calculated from a change in the liquid level (Lf1-Lf0) in the fuel tank becomes equal to or greater than a preset predetermined fuel consumption Lf, and the measurement operation of the liquid level of the fuel tank in step 12 is repetitively executed until ΔLf becomes equal to or greater than Lf (ΔLf≥Lf). When ΔLf≥Lf, it is determined that AU has reached the predetermined fuel consumption, and control proceeds to step 14. Hirata, para. 45, Fig. 3; see also Ans. 11; Appeal Br. 12–13; Reply Br. 2–3. We agree with Appellants that control unit (32) of Hirata “never affects fuel consumption in any way, but merely continues to measure the fuel consumption until the preset predetermined fuel consumption Lf has Appeal 2013-008205 Application 11/589,822 6 been reached before triggering the abnormality judging.” Reply Br. 3. As such, we further agree with Appellants that Hirata fails to disclose a “controller configured to alter operation of the engine . . . to ensure that the remaining fuel is consumed before consumption of the remaining reductant,” as recited in claim 1. See Appeal Br. 13; Reply Br. 3. Based on the foregoing reasons, the Examiner fails to establish by a preponderance of the evidence that the combined teachings of Hirata and Liang render obvious the system of independent claim 1. Independent claim 15 is directed to a method of treating exhaust including the step of altering the combustion of fuel “to ensure that the remaining fuel is consumed before the remaining reductant,” and thus the Examiner’s findings with respect to Hirata and Liang are deficient for claim 15 as well. See Ans. 5–7, 11. Accordingly, we do not sustain the Examiner’s rejection of independent claims 1 and 15 and their respective dependent claims 2–6, 8, 9, and 16–21 as unpatentable over Hirata and Liang. DECISION We REVERSE the decision of the Examiner to reject claims 1–6 and 8–21. REVERSED mls Copy with citationCopy as parenthetical citation