Ex Parte Frazier et al

Patent Trial and Appeal BoardAug 11, 2014

11655268 (P.T.A.B. Aug. 11, 2014)

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. 11/655,268 01/19/2007 Tim Frazier 740270-002990 8032 116387 7590 08/11/2014 Foley & Lardner LLP 3000 K Street NW Suite 500 Washington, DC 20007 EXAMINER BOGUE, JESSE SAMUEL ART UNIT PAPER NUMBER 3748 MAIL DATE DELIVERY MODE 08/11/2014 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 TIM FRAZIER, ERIC ANDREWS, and KEN FEDERLE ____________ Appeal 2012-006156 Application 11/655,268 Technology Center 3700 ____________ Before STEFAN STAICOVICI, PHILLIP J. KAUFFMAN, and JILL D. HILL, Administrative Patent Judges. STAICOVICI, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Tim Frazier et al. (Appellants) appeal under 35 U.S.C. § 134 from the Examiner’s decision rejecting under 35 U.S.C. § 102(a) claims 1–5 as anticipated by Ito (US 2005/0124459 A1, publ. June 9, 2005). We have jurisdiction over this appeal under 35 U.S.C. § 6(b). INVENTION Appellants’ invention relates to a method and system for the “reduction of pollutants from emissions released by automotive engines.” Spec. 1, ¶ 1. Appeal 2012-006156 Application 11/655,268 3 Independent claims 1 and 41 are representative of the claimed invention and read as follows: 1. A system for optimizing exhaust emissions from a combustion engine, the system comprising: a combustion engine producing engine exhaust emissions; at least one exhaust after-treatment device adapted to convert the engine exhaust emissions to converted exhaust emissions; and an optimizer adapted to adjust at least one operating parameter according to at least one cost/response function based on cost of consumption of fuel and cost of consumption of a reducing agent used for the exhaust after-treatment device, wherein at least one of the engine and the at least one after-treatment device responds to adjustment of the at least one operating parameter, and the at least one cost/response function provides a cost for a response to adjustment of the at least one operating parameter. 4. A method for optimizing exhaust emissions from a combustion engine, the method comprising: determining, from at least one transfer function, a response from at least one of a combustion engine and at least one after-treatment device to adjustment of at least one operating parameter; determining at least one cost/response function for each of the combustion engine and the at least one exhaust after- treatment device based on cost of consumption of fuel and cost of consumption of a reducing agent used for the exhaust after- treatment device, wherein the at least one cost/response function provides a cost for the response to adjustment of the at least one operating parameter; and 1 We note that dependent claim 5, which depends from independent method claim 4, is drawn to a “system.” Appeal 2012-006156 Application 11/655,268 4 adjusting the at least one operating parameter according to the at least one cost/response function. SUMMARY OF DECISION We REVERSE. ANALYSIS Appellants argue that the “cost or price of fuel or reducing agent does not appear to be mentioned anywhere in the Ito publication.” App. Br. 5. Thus, according to Appellants, because Ito “does not consider the cost of fuel and reducing agent, it does not optimize exhaust emissions based on costs of consuming fuel and reducing agent.” Id. at 6. In response, the Examiner takes the position that because Ito’s control system and method adjusts engine parameters to minimize overall fuel consumption, Ito “is inherently minimizing the cost” by “minimizing the total fuel used.” Ans. 6–7 (citing Ito, paras. 14–16). Although we appreciate the Examiner’s position that Ito’s control system and method minimizes fuel costs by minimizing overall fuel consumption, nonetheless, we agree with Appellants that, “Ito does not describe actual costs.” Reply Br. 4. While the Examiner correctly points out that Ito’s control system and method adjusts engine parameters to minimize overall fuel consumption, and thus minimize fuel cost, this in no way demonstrates that Ito’s system and method adjusts engine parameters according to a function based on fuel and reducing agent consumption costs. Thus, in contrast to Ito where fuel costs result from the adjustment of engine parameters, in Appellants’ claims 1 and 4, fuel costs determine the adjustment of engine parameters. Moreover, the cost/response function of independent claims 1 and 4 is based on both “cost of consumption of fuel Appeal 2012-006156 Application 11/655,268 5 and cost of consumption of a reducing agent.” See App. Br. 8, Claims App. As such, we agree with Appellants that Ito fails to teach, “adjustment according to a cost/response function based on cost of consumption of fuel and cost of consumption of reducing agent,” as called for by independent claims 1 and 4. App. Br. 6. For the foregoing reasons, we do no sustain the rejection of claims 1–5 under 35 U.S.C. § 102(a) as anticipated by Ito. SUMMARY The Examiner’s decision to reject claims 1-5 is reversed. REVERSED llw