Ex Parte Gundrum

Patent Trial and Appeal Board

Aug 29, 2017

13191244 (P.T.A.B. Aug. 29, 2017)

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.
13/191,244 07/26/2011 Timothy Joseph Gundrum PCCR136396 3721
26389 7590 08/31/2017
rTTRTSTRNSFN OTONNOR TOHNSON KTNDNFNN PT T C EXAMINER
1201 THIRD AVENUE FRANCE, MICKEY H
SUITE 3600
SEATTLE, WA 98101-3029 ART UNIT PAPER NUMBER
3748
NOTIFICATION DATE DELIVERY MODE
08/31/2017 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):
efiling @ cojk. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte TIMOTHY JOSEPH GUNDRUM
Appeal 2015-007620
Application n/191,2441
Technology Center 3700
Before JOHN C. KERINS, STEFAN STAICOVICI, and
ARTHUR M. PESLAK, Administrative Patent Judges.
STAICOVICI, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Timothy Joseph Gundrum (“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 REVERSE.
1 According to Appellant, PACCAR Inc. is the real party in interest. Appeal
Br. 4 (filed Jan. 9, 2015).
Appeal 2015-007620
Application 13/191,244
INVENTION
Appellant’s invention relates to an “on-vehicle systems and methods
for mixing an NOx reductant solution . . . from a concentrated source of
NOx reductant and water.” Spec. 3,11. 9—11.
Claims 1 and 16 are independent. Claim 1 is illustrative of the
claimed invention and reads as follows:
1. A diesel-powered vehicle exhaust fluid (DEF)
generating system, the system comprising:
(a) a diesel exhaust fluid (DEF) mixing subsystem
comprising a first tank, a second tank, and a nitrogen-oxides
(NOx) reductant dispenser configured to controllably provide
concentrated NOx reductant to the first tank and the second
tank;
(b) a water source configured to provide water to the
first tank, until the first tank is filled to a first fill volume, and
then to the second tank; and
(c) a dosing subsystem in fluid communication with
the DEF mixing subsystem, wherein the dosing subsystem is
configured to receive DEF from the first tank, until the first
tank is empty, and then to receive DEF from the second tank,
wherein the DEF mixing subsystem, the water source,
and the dosing subsystem are onboard the diesel-powered
vehicle.
REJECTIONS
The following rejections are before us for review:2
I. The Examiner rejected claims 1,3,4, 6, 7, 10, and 12—20 under
35 U.S.C. § 103(a) as being unpatentable over Ohashi (US
2 The rejection of claim 21 under 35 U.S.C. § 112, second paragraph, as
being indefinite, has been withdrawn by the Examiner. See Adv. Act. 2
(transmitted Sept. 19, 2014); see also Final Act. 3 (transmitted July 11,
2014).
2
Appeal 2015-007620
Application 13/191,244
2010/0031640 Al, published Feb. 11, 2010) and Orlando (US
5,502,685, issued Mar. 26, 1996).
II. The Examiner rejected claims 2 and 5 under 35 U.S.C. § 103(a)
as being unpatentable over Ohashi, Orlando, and Goerigk (US
2002/0023433 Al, published Feb. 28, 2002).
III. The Examiner rejected claims 8 and 9 under 35 U.S.C.
§ 103(a) as being unpatentable over Ohashi, Orlando, and Levin
(US 2009/0272440 Al, published Nov. 5, 2009).
IV. The Examiner rejected claim 11 under 35 U.S.C. § 103(a) as
being unpatentable over Ohashi, Orlando, and Jagtoyen (US
2002/0148221 Al, published Oct. 17, 2002).
V. The Examiner rejected claim 21 under 35 U.S.C. § 103(a) as
being unpatentable over Ohashi, Orlando, and Park (Today’s
Trucking, Road Test 2010, https://www.todaystrucking
.com/road-test-2010 (last visited Aug. 17, 2017)) or in the
alternative over Park, Ohashi, and Orlando.
ANALYSIS
Rejection I
The Examiner finds that Ohashi discloses a diesel powered vehicle
exhaust fluid (DEF) generating system including, inter alia, a water tank 21,
a concentrated NOx reductant dispenser tank 22, an aqueous urea generation
tank 23 (first DEF mixing tank), and a feed valve 17 (DEF dosing
subsystem). Final Act. 4 (citing Ohashi, paras. 11, 12, Fig. 1). However, the
Examiner finds that Ohashi fails to disclose a second DEF mixing tank, a
water source configured for sequential filling of the two tanks, and a dosing
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Appeal 2015-007620
Application 13/191,244
subsystem configured for sequential delivery of the DEF (diesel exhaust
fluid). Id. at 4—5.
Nonetheless, the Examiner further finds that Ohashi discloses a
control routine where, if the amount of DEF stored in tank 23 is not less than
a predetermined amount, the control routine determines whether the ignition
switch is OFF and if it is turned OFF it will direct the system to generate
DEF. Final Act. 5 (citing Ohashi, para. 21); see also Ohashi, Fig. 2. The
Examiner notes that Ohashi specifically explains that because a sufficient
time is needed to “evenly” mix water and concentrated NOx reductant in
order to generate a homogenous mixture of DEF, such mixing time is
available when the ignition switch is turned OFF. Final Act. 5—6 (citing
Ohashi, para. 22). As such, the Examiner determines that Ohashi implicitly
discloses that “a sufficient mixing time is not provided [when] leaving the
ignition [switch ON].” Id. at 6. Therefore, according to the Examiner,
although Ohashi discloses that water and concentrated NOx reductant are
added to tank 23 to generate DEF when the amount of DEF stored in tank 23
is less than a predetermined amount (see id. at 5—6 (citing Ohashi, paras. 19,
20, Fig. 2)), “Ohashi fails to teach adequate mixing of the DEF mixture
when the DEF stored [in tank 23] falls below a predetermined allowable
level and the ignition [switch] is [ON].” Id. at 6; see also id. at 7.
Based on Ohashi’s disclosure, as discussed above, the Examiner then
takes the position that in order to control the concentration of Ohashi’s DEF
mixture when the ignition switch is ON, a person of ordinary skill in the art
would look to the disclosure of Orlando. Id. at 8. The Examiner finds that
Orlando discloses an agricultural chemical generating system onboard a
vehicle including a chemical tank 24, a water source 10 configured to
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Appeal 2015-007620
Application 13/191,244
provide water to a first mixing tank 14 until it is filled and then to a second
mixing tank 16, and a dispensing unit 26, 28 configured to receive a
chemical mixture from first mixing tank 14 until it is empty and then from
second mixing tank 16. Id. (citing Orlando, col. 2,1. 48—col. 4,1.45, Fig. 1).
According to the Examiner, Orlando’s two-tank, in tandem design “solves
the problem in Ohashi’s teachings regarding the concentration of the DEF
when the ignition [switch] of the vehicle is [ON].” Id. at 9. Thus, the
Examiner reasons that
it would have been obvious to one having ordinary skill in the
art, at the time of the invention, to modify Ohashi with a second
tank ... a water source configured to provide water to the first
tank, until the first tank is filled to a first fill volume, and then
to the second tank; and a dosing subsystem in fluid
communication with the DEF mixing subsystem, wherein the
dosing subsystem is configured to receive DEF from the first
tank, until the first tank is empty, and then to receive DEF from
the second tank; as taught by Orlando, in order to provide an
adequate mixing time for the DEF mixture when the ignition of
the vehicle is [ON].
Id. at 9-10 (emphasis added).
Appellant argues that the Examiner erred in “reading a requirement
for a sufficiently long mixing time when the ignition switch is turned [OFF]
as [also] a requirement for a sufficiently long mixing time when the stored
amount Q of aqueous urea is less than a predetermined allowable level Qo.”
Reply Br. 2 (filed Aug. 18, 2015). According to Appellant, the Examiner’s
reasoning to modify Ohashi with Orlando “to achieve adequate mixing of
diesel exhaust fluid generated onboard a vehicle when the ignition [switch]
is [ON]” is inadequate and based on impermissible hindsight because Ohashi
already discloses that adequate mixing occurs as aqueous urea having a
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Appeal 2015-007620
Application 13/191,244
predetermined constant concentration is fed from tank 23 to feed valve 17.
Appeal Br. 12, 15 (citing Ohashi, paras. 20, 28), 24—25. Appellant further
contends that Orlando fails to disclose any “advantages related to mixing
time or controlling the concentration of diesel exhaust fluid over a single
tank mixer” because Orlando’s nozzle mixer is different from Ohashi’s
single tank mixer and Orlando states that a two tank mixer is preferable
because “it can reduce the amount of agricultural chemicals to be disposed if
the chemicals are mixed improperly or are not needed.” Id. at 19—22. Thus,
Appellant concludes that “[o]ne of ordinary skill in the art would not be
motivated to look beyond Ohashi to solve a problem already solved by
Ohashi.” Id. at 15.
We do not agree with the Examiner’s interpretation of Ohashi’s
control routine as shown in Ohashi’s Figure 2. In contrast to the Examiner’s
interpretation, which relies on whether the ignition switch is either turned
ON or OFF, we read Ohashi’s control routine to also depend on whether the
stored amount Q of aqueous urea in tank 23 is less than a predetermined
allowable level Q0. Specifically, if at step 62 the stored amount Q of
aqueous urea in tank 23 is less than a predetermined allowable level Q0
(QQ0), then Ohashi’s
control routine asks at step 63 whether the ignition switch is OFF. See id. at
Fig. 2. So, if the stored amount Q of aqueous urea in tank 23 is not less than
a predetermined allowable level Q0 (Q>Q0) and the ignition switch is turned
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Appeal 2015-007620
Application 13/191,244
OFF, then Ohashi’s control routine instructs at step 64 to open flow valves
24, 25 and generate aqueous urea having a predetermined constant
concentration, which is then fed to feed valve 17. See id. at paras. 17, 21,
23. However, if the stored amount Q of aqueous urea in tank 23 is not less
than a predetermined allowable level Q0 (Q>Q0) and the ignition switch is
not turned OFF (turned ON), then Ohashi’s control routine stops and
aqueous urea is not generated. See id. at Fig. 2.
As such, Ohashi’s control routine is not based only on whether the
ignition switch is turned ON or OFF, but rather also on the determination of
whether the stored amount Q of aqueous urea in tank 23 is less than a
predetermined allowable level Q0. In other words, whether the ignition
switch is turned ON or OFF is relevant to Ohashi’s control routine only
when the stored amount Q of aqueous urea in tank 23 is not less than a
predetermined allowable level Q0, that is, when Q>Q0. In such a case, if the
ignition switch is turned OFF then adequate mixing time is provided to
generate homogeneous aqueous urea (see Ohashi, para. 22), and if it is
turned ON, then aqueous urea is not generated. However, the Examiner fails
to note that if the stored amount Q of aqueous urea in tank 23 is less than a
predetermined allowable level Q0 (Q