Ex Parte Londos

Patent Trial and Appeal BoardMar 17, 2014

11915439 (P.T.A.B. Mar. 17, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte STEPHANE LONDOS ____________ Appeal 2012-003966 Application 11/915,439 Technology Center 3700 ____________ Before: WILLIAM A. CAPP, BART A. GERSTENBLITH and BEVERLY M. BUNTING, Administrative Patent Judges. CAPP, Administrative Patent Judge. DECISION ON APPEAL Appeal 2012-003966 Application 11/915,439 - 2 - STATEMENT OF THE CASE Appellant seeks our review under 35 U.S.C. § 134 of the final rejection of claims 11-16 and 18-22. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. THE INVENTION Appellant’s invention relates to engine exhaust systems. Spec. 1. Claim 11, reproduced below, is illustrative of the subject matter on appeal. 11. An exhaust line for a heat engine, comprising, between an exhaust inlet and an exhaust outlet: a nitrogen oxide trap which is fitted on a filtering portion; between the nitrogen oxide trap and the exhaust inlet, a branching portion which is capable of branching exhaust gases away from the nitrogen oxide trap; switching means for the exhaust gases in order to cause them to flow through the filtering portion or the branching portion; a three-way catalyser which is arranged between the inlet and an upstream portion of the filtering portion and an upstream portion of the branching portion; and means for controlling the switching means, said control means comprise means for acquiring an outlet temperature of the exhaust gases from the engine, the switching means being capable of generally branching the gases off towards the branching portion when the temperature of the gases is greater than 600°C, the control means further comprise: - means for determining when the engine is operating with a rich mixture; - means for determining whether a temperature measured by the outlet temperature acquisition means is greater than 600°C; - means for commanding the switching means to branch the gases off towards the branching portion as soon as both of the Appeal 2012-003966 Application 11/915,439 - 3 - following two conditions are met: 1) when the engine operates with a rich mixture and 2) when the temperature measured by the outlet temperature acquisition means is greater than 600°C; and - means for commanding the switching means to maintain the flow of the gases through the filtering portion when the engine is not operating with rich mixture or when the temperature measured by the outlet temperature acquisition means is less than 600°C. THE REJECTIONS The Examiner relies upon the following as evidence in support of the rejections: The following rejections are before us for review: 1. Claims 11, 16, 18-20 and 22 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Takeshima. 2. Claims 12-14 and 21 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Takeshima and Hirota. 3. Claim 15 is rejected under 35 U.S.C. § 103(a) as being unpatentable over Takeshima and Yamazaki. OPINION Unpatentability over Takeshima Appellant argues claims 11, 16, 18-20 and 22 as a group and does not otherwise separately argue the rejections of claims 12-15 and 21. App. Br. 14-19. We select claim 11 as representative, and all pending claims stand or fall with claim 11. See 37 C.F.R. § 41.37(c)(1) (vii) (2011). Takeshima Yamazaki Hirota US 5,473,890 US 6,182,445 B1 US 6,192,675 B1 Dec. 12, 1995 Feb. 6, 2001 Feb. 27, 2001 Appeal 2012-003966 Application 11/915,439 - 4 - The Examiner finds that Takeshima discloses all of the elements of claim 11 except for a predetermined temperature of 600o C. Ans. 5-6. The Examiner considers the claimed temperature parameter to be a result effective variable. Ans. 8. The Examiner concludes that it would have been obvious to a person of ordinary skill in the art at the time of the invention to provide a gas temperature of 600o C as such would involve optimizing a result effective variable that only requires routine skill. Ans. 6 (citing In re Boesch, 617 F.2d 272 (CCPA 1980)). Appellant traverses the Examiner’s rejection by first arguing that the Examiner has not shown that 600o C is an optimized value for the result effective variable of when SOx from the SOx absorbent should be released. App. Br. 14. The Examiner responds by stating that the SOx releasing temperature is recognized in the art as a result effective variable. Ans. 8 (citing Takeshima, col. 21, ll. 22-25). The Examiner further states that it is well known in the art that a typical SOx releasing temperature is approximately 600o C. Ans. 8. The Examiner concludes that it would have been obvious to a person of ordinary skill in the art at the time of the invention to have provided the temperature range for SOx releasing from the SOx absorbent based on the specific type of SOx absorbent. Ans. 8 (citing In re Aller, 220 F.2d 454 (CCPA 1955)). Appellant does not challenge the Examiner’s finding with respect to SOx release temperatures being well known in the art. Accordingly, we accept the Examiner’s statement regarding SOx release temperatures being well known as an established fact. See In re Chevenard, 139 F.2d 709, 713 (CCPA 1943) (nothing in the record that contradicted the examiner’s Appeal 2012-003966 Application 11/915,439 - 5 - holding and no demand by appellant for the examiner to produce authority for his statement). Furthermore, we agree with the Examiner that the general conditions of the claim regarding exhaust gas temperature affecting a NOx trap by-pass, are disclosed in the prior art. See Takeshima, col. 21, l. 3 – col. 22, l. 58. We further agree with the Examiner that Takeshima discloses that exhaust gas temperature is a result effective variable. Id.; see also In re Applied Materials, Inc., 692 F.3d 1289, 1297 (Fed. Cir. 2012) (A recognition in the prior art that a property is affected by a variable is sufficient to find the variable result-effective). Thus, we agree with the Examiner that Aller applies to the temperature limitation in Appellant’s claims. Applied Materials, 692 F.3d at 1295 (quoting Aller, 220 F.2d at 456 (“Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation”)). We, therefore, find that the Examiner has established, by a preponderance of the evidence, that SOx release temperature is a result effective variable that could have been optimized to 600o C through the exercise of ordinary skill. Next, Appellant argues that Takeshima’s exhaust line has a different purpose than the claimed invention. App. Br. 15-17. Appellant contends that Takeshima only addresses the problem of preventing SOx released from the SOx trap from being reabsorbed in the NOx trap. Reply Br. 2.1 Appellant contends that Takeshima is not controlled in the same manner as 1 Standing alone, this argument is not persuasive as it is not necessary for the prior art to serve the same purpose as that disclosed in Appellant’s Specification in order to support the conclusion that the claimed subject matter would have been obvious. See In re Linter, 458 F.2d 1013, 1016 (CCPA 1972). Appeal 2012-003966 Application 11/915,439 - 6 - recited in the claims. App. Br. 15-17. Consequently, Appellant contends that Takeshima does not satisfy the claim limitation directed to branching the gases “as soon as both of the following two conditions are met: 1) when the engine operates with a rich mixture and 2) when the temperature measured by the outlet temperature acquisition means is greater than 600o C.” App. Br. 19, Clms. App’x., Claim 11. In response, the Examiner states that Takeshima discloses that the by- pass is controlled in the same manner as in Appellant’s application. Ans. 9. In particular, the Examiner states that the by-pass is opened as soon as the NOx trap must be thermally protected from high temperature exhaust gas. Ans. 9. Takeshima discloses that when a lean air-fuel mixture is burned, the switch valve 27 is held at the by-pass closed position. See Col. 22, ll. 31-33. However, when the air-fuel mixture fed into the combustion chamber is switched from lean to rich, the by-pass switch 27 is moved to the by-pass open position. Takeshima, col. 22, ll. 38-49. Taking the foregoing into consideration, together with our finding that exhaust gas temperature is a result effective variable capable of routine optimization, we believe the Examiner’s findings of fact are supported by a preponderance of the evidence and that the Examiner’s legal conclusion of unpatentability is well-founded. Accordingly, we sustain the Examiner’s unpatentability rejection of claims 11-16 and 18-22. Appeal 2012-003966 Application 11/915,439 - 7 - DECISION The decision of the Examiner to reject claims 11-16 and 18-22 is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED tkl