Ex Parte Hubbard et al

Patent Trial and Appeal Board

Aug 24, 2017

12638633 (P.T.A.B. Aug. 24, 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.
81203577 5406
EXAMINER
HAMAOUI, DAVID E
ART UNIT PAPER NUMBER
3747
MAIL DATE DELIVERY MODE
12/638,633 12/15/2009
36865 7590 08/24/2017
MCCOY RUSSELL LLP
806 S.W. BROADWAY, SUITE 600
PORTLAND, OR 97205
Carolyn Parks Hubbard
08/24/2017 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 CAROLYN PARKS HUBBARD, ROBERT WALTER MCCABE,
EVA THANASIU, DAVID KARL BIDNER, JAMES MICHAEL KERNS,
NIAN XIAO, HELMUT HANS RUHLAND,
MORITZ KLAUS SPRINGER, THOMAS LORENZ,
GEORG LOUVEN, and JEFFREY SCOTT HEPBURN
Appeal 2015-007393
Application 12/63 8,63 31
Technology Center 3700
Before JEFFREY A. STEPHENS, CARL L. SILVERMAN, and
FREDERICK C. LANEY, Administrative Patent Judges.
LANEY, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Carolyn Parks Hubbard et al. (Appellants) appeal under 35 U.S.C.
§ 134(a) from the Examiner’s non-final decision (mailed June 18, 2014,
hereinafter “Non-Final Act.”) rejecting claims 1—7.2 We have jurisdiction
over this appeal under 35 U.S.C. § 6(b). An oral hearing was held on
August 7, 2017.
1 According to Appellants, the real party in interest is Ford Global
Technologies, LLC. Appeal Br. 3 (filed Dec. 22, 2014).
2 Claims 8, 9, 11—14, and 16—19 have been withdrawn. Appeal Br. 23—25
(Claims App.). Claims 10 and 15 have been canceled. Id. at 24—25.
Appeal 2015-007393
Application 12/638,633
We REVERSE.
INVENTION
Appellants’ invention relates to “the field of automotive emission
control systems and methods.” Spec. 1.
Claim 1, reproduced below, is independent and is representative of the
claimed invention.
1. A method for adjusting fuel supplied to a spark ignited
engine, comprising:
providing a first air-fuel mixture that repeatedly cycles
between rich and lean conditions, said first air-fuel mixture
substantially stoichiometric on average over a number of
cylinder cycles while not actively regenerating a particulate filter
during a first operating condition; and
providing a second air-fuel mixture that repeatedly cycles
between rich and lean conditions, said second air-fuel mixture
lean of stoichiometry on average over a number of cylinder
cycles while actively regenerating said particulate filter during a
second operating condition, said second operating condition
different from said first operating condition.
Appeal Br. 21 (Claims App.).
REJECTIONS
I. The Examiner rejected claims 1, 2, and 4 under 35 U.S.C.
§ 103(a) as unpatentable overNajt (US 2010/0139248 Al, pub.
June 10, 2010), Pott (DE 19801815 Al, pub. July 22, 1999),
and Shirakawa (US 6,993,901 B2, iss. Feb. 7, 2006).
II. The Examiner rejected claim 3 under 35 U.S.C. § 103(a) as
unpatentable overNajt, Pott, and Kidokoro (US 2008/0173008
Al, pub. July 24, 2008).
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Application 12/638,633
III. The Examiner rejected claims 4 and 5 under 35 U.S.C. § 103(a)
as unpatentable overNajt, Pott, Pfaeffle (US 8,015,805 B2, iss.
Sept. 13, 2011), and Fujiwara (US 2010/0192543 Al, pub. Aug.
5,2010).
IV. The Examiner rejected claim 6 under 35 U.S.C. § 103(a) as
unpatentable overNajt, Pott, Fujiwara, Cleary (US 8,001,768
B2, iss. Aug. 23, 2011), Williams (US 7,930,880 B2, iss. Apr.
26, 2011), and Wills (US 7,263,825 Bl, iss. Sept. 4, 2007).
V. The Examiner rejected claim 7 under 35 U.S.C. § 103(a) as
unpatentable overNajt, Pott, and Hebbale (US 8,392,091 B2,
iss. Mar. 5, 2013).
ANALYSIS
Rejection I
At the core of Appellants’ argument is that the Examiner has
improperly determined the prior art discloses providing air-fuel mixtures that
repeatedly cycle between rich and lean conditions during first and second
operating conditions of a particulate filter, wherein the first air-fuel mixture
is substantially stoichiometric on average over a number of cylinder cycles
while not actively regenerating and the second air-fuel mixture is lean of
stoichiometry on average over a number of cylinder cycles while actively
regenerating, as claim 1 recites. Appeal Br. 8—14. Appellants argue, “the
determination of the optimum or workable ranges of [the] variables may not
be characterized as routine experimentation in view of the cited references”
because a skilled artisan did not recognize “actively regenerating a
particulate filter should include an air-fuel mixture that repeatedly cycles
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Application 12/638,633
between rich and lean conditions (said air-fuel mixture lean of stoichiometry
on average over a number of cylinder cycles).” Id. at 13.
Although citing paragraph 35 of Najt as disclosing the recited
limitations for the first operating condition and paragraph 33 as disclosing
the recited limitations for the second operating condition, the Examiner finds
“Najt does not describe the fine details of the air fuel ratio movement.”
Non-Final Act. 2—3 (emphasis added). The Examiner nevertheless asserts,
“repeatedly cycling above and below a target air fuel ratio is the
conventional way an engine operates (due to feedback control),” which Pott
discloses. Id. at 3 (citing Pott, Fig. 3). As a result, the Examiner finds it is
“apparent (or at least an obvious mode to implement)” Najt repeatedly
cycles between rich and lean conditions during a first operating condition.
Id. Furthermore, “[sjtill looking at Pott,” the Examiner finds it discloses
“varying degrees of leanness or richness, some of which do not cycle about
stoichiometry (figs 1 and 5, which are very rich/lean) and some which do
(figs 2 and 4, which are only slightly rich/lean).” Id. Shirakawa, the
Examiner further finds, “discloses the same principles as Najt and discloses
that the fuel mode during regeneration is ‘slightly leanId. (citing
Shirakawa, Abstract). Based on this evidence, the Examiner concludes,
[i]t would have been obvious to one having ordinary skill in the
art at the time the invention was made to provide wherein the
second air fuel mixture (the lean one) is only slightly lean, since
it has been held that where the general conditions of a claim are
disclosed in the prior art, discovering the optimum or workable
ranges involves only routine skill in the art.
Id. (citing In re Alien, 220 F.2d 454 (CCPA 1955)).
In filling in the “finer details,” the Examiner erred by failing to
explain why the cycling air-fuel mixture that Pott discloses for regenerating
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Application 12/638,633
NOx storage would have led a skilled artisan to try the same technique to
regenerate a particulate filter, which claim 1 specifically recites.
Additionally, despite recognizing appropriately that Pott discloses a variety
of operating modes (including modes that don’t cycle between rich and
lean), the Examiner does not provide any evidence or technical reasoning to
explain why a skilled artisan would have recognized the compatibility of
Pott’s teachings to particulate filters. We agree with the Examiner that Najt
and Shirakawa establish it was known to use a lean air/fuel mixture ratio,
which may fluctuate above and below the target lean ratio (i.e., the overall
ratio is lean), but this fact alone fails to support a finding that the fluctuation
includes cycling between rich and lean conditions. Moreover, the Examiner
has not persuasively shown any recognition by a skilled artisan that
adjusting the cycles of air/fuel mixture, as opposed to adjusting the target
air/fuel mixture itself, had any direct effect on the operation of a particulate
filter and, thus, was a recognized results-effective variable.
As a result, the Examiner’s obviousness determination of claim 1 in
view of Najt, Pott, and Shirakawa lacks a rational underpinning. Instead, the
Examiner’s rejection simply amounts to a mere identification in the prior art
of each of the elements of claim 1, which is insufficient to defeat the
patentability of the claimed combination as a whole. In re Kahn, 441 F.3d
977, 986 (Fed. Cir. 2006). Therefore, we do not sustain the rejection of
claim 1, and claims 2 and 4, which depend therefrom.
Rejections II—V
In Rejections II—V, which address claims 3—7 depending from claim
1, the Examiner incorporates the errors discussed above (see supra Rejection
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Application 12/638,633
I). See Final Act. 3—6. The Examiner does not rely on any of the
additionally cited references to correct those errors. See id. Therefore, for
the same reasons, we also do not sustain the Examiner’s rejection of claims
3-7.
DECISION
The Examiner’s rejection of claims 1—7 as unpatentable is reversed.
REVERSED
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