Ex Parte Lueders

Patent Trial and Appeal Board

Aug 23, 2017

12342958 (P.T.A.B. Aug. 23, 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.
12/342,958 12/23/2008 Hartmut LUEDERS BOSC.P8857US/11603933 3618
24972 7590 08/25/2017
NORTON ROSE FULBRIGHT US LLP
1301 Avenue of the Americas
NEW YORK, NY 10019-6022
EXAMINER
TRAN, DIEM T
ART UNIT PAPER NUMBER
3748
NOTIFICATION DATE DELIVERY MODE
08/25/2017 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):
nyipdocket@nortonrosefulbright.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte HARTMUT LUEDERS
Appeal 2016-004824
Application 12/342,958
Technology Center 3700
Before: CHARLES N. GREENHUT, MICHAEL L. HOELTER, and
ANNETTE R. REIMERS, Administrative Patent Judges.
GREENHUT, Administrative Patent Judge.
DECISION ON APPEAL
Appeal 2016-004824
Application 12/342,958
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134 from a rejection of claims
1—3 and 5. Claims 4, 6, and 7 have been canceled. App. Br., claims app’x.1
We have jurisdiction under 35 U.S.C. § 6(b).
We affirm-in-part.
THE CLAIMED SUBJECT MATTER
The claims are directed to a procedure and device for the purification
of exhaust gas. Spec., 1:9—14. Independent claim 1, reproduced below (and
slightly reformatted for clarity), is illustrative of the claimed subject matter:
1. A method of purifying an exhaust gas in an
exhaust gas duct of a combustion engine with an
exhaust gas purification system and a SCR-
catalyzer that is arranged in the exhaust gas
purification system for a selective catalytic
reduction of nitrous gases, wherein at least one
reducing agent for the selective catalytic
reduction of the nitrous gases is added to the
exhaust gas in a direction of flow before the
SCR-catalyzer, the method comprising:
leading the exhaust gas first through a
catalyzer for converting nitrous gases with
hydrocarbons and second through the SCR-
catalyzer, wherein
one or more operating parameters are
adjusted in a first operating phase after starting
the combustion engine, whereby an amount of
oxygen in the exhaust gas is reduced and
hydrocarbons are generated in comparison with
a normal operation of the combustion engine,
and whereby the nitrous gases are more
substantially converted at the catalyzer by
1 The claims appendix is unpaginated.
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Application 12/342,958
converting the nitrous gases with the
hydrocarbons
and wherein
the one or more operating parameters are
adjusted in a subsequent second operating phase
to operate the combustion engine in a normal
operation with a lean fuel-air mixture such that
the concentration of unbumed hydrocarbons is
reduced in comparison to the first operating
phase, whereby the nitrous gases are more
substantially converted at the SCR-catalyzer.
REFERENCE
van Nieuwstadt US 6,973,776 B2 Dec. 13, 2005
REJECTIONS
Claims 1, 2, and 5 stand rejected under 35 U.S.C. § 102(b) as
anticipated by van Nieuwstadt. Final Act. 2.
Claim 3 stands rejected under 35 U.S.C. § 103(a) as unpatentable over
van Nieuwstadt. Id. at 3-A.
ANALYSIS
Claims 1— 3, and 5—Anticipated by or unpatentable over van Nieuwstadt
Claim 1
The Examiner finds that van Nieuwstadt anticipates claim 1. Final
Act. 2—3. In van Nieuwstadt’s system, exhaust gases pass through, in order,
an active lean NOx catalyst (“ALNC”) 13, an oxidation catalyst 14, and a
selective catalytic reduction (“SCR”) catalyst 15. van Nieuwstadt, 2:64—67,
Fig. 2. The ALNC is “placed close to the engine” and therefore “is capable
of quicker warm-up.” Id. at 3:19-21. Once the ALNC warms up—i.e.,
reaches “light-off temperature”—“extra hydrocarbons may be injected to
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Application 12/342,958
create an exotherm” to warm up the downstream oxidation catalyst 14—
which, in turn, warms up the SCR-catalyst—and to improve the ALNC’s
ability to reduce NOx gases. Id. at 3:6—9, 21—24, 31—35, 4:22—26.
The Examiner finds, inter alia, that van Nieuwstadt’s ALNC 13
corresponds to the claimed “catalyzer for converting nitrous gases with
hydrocarbons,”2 and that van Nieuwstadt’s SCR-catalyst 15 corresponds to
the claimed SCR catalyzer. Final Act. 2—3 (citing van Nieuwstadt, 3:9—14,
40-50, 4:22—26, Fig. 2). The Examiner also finds that van Nieuwstadt
discloses the limitation in claim 1 requiring adjusting, in “a first operating
phase,” one or more parameters such that “an amount of oxygen in the
exhaust gas is reduced and hydrocarbons are generated in comparison with a
normal operation of the combustion engine, and whereby the nitrous gases
are more substantially converted at the [hydrocarbon catalyzer].” Id..
Specifically, the Examiner finds that “[s]ince van Nieuwstadt adds a
hydrocarbon fuel into the exhaust gas during a first operating phase after
starting the engine, van Nieuwstadt dilutes the exhaust gas with other
compounds other than oxygen, which will lower the oxygen concentration in
the exhaust gas, and increase a hydrocarbon concentration in the exhaust
gas.” Ans. 3.
Because van Nieuwstadt’s system adds hydrocarbons to the exhaust
gases only after the ALNC reaches light-off temperature, the Examiner
necessarily considers the claimed “a first operating phase” to include the
operating phase after which this occurs See id. But Appellant disputes that
“a first operating phase” can be interpreted in this manner. Instead,
2 For simplicity, we will refer to the claimed “catalyzer for converting
nitrous gases with hydrocarbons” as the “hydrocarbon catalyzer.”
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Application 12/342,958
Appellant argues that “the disclosed first operating phase initiates when the
engine is started wherein the temperature of the exhaust gas is initially low
and before the first catalyzer has been heated.” App. Br. 13. During this
earlier phase, Appellant argues, van Nieuwstadt’s system stores
hydrocarbons rather than adding them to the exhaust gas.3 Id. According to
Appellant, van Nieuwstadt’s system adds hydrocarbons “in an operating
phase subsequent to the first operating phase.” Id. at 14 (emphasis in
original). Thus, apparently, Appellant’s position is that van Nieuwstadt’s
first operating phase ends when the ALNC comes up to temperature.
We disagree with Appellant’s apparent construction of “a first
operating phase” as beginning immediately after engine startup and ending
when the ALNC reaches light-off temperature. First, we note that the
Specification does not expressly define what is meant by “a first operating
phase,” much less define it as Appellant proposes. Second, the term itself
does not require it to be read as limited to an operating phase immediately
after startup. The claim broadly recites “a first operating phase.” As such,
the term can be read to refer to any phase that comes before a subsequent
“second” operating phase.
3 In the Appeal Brief at least, Appellant does not dispute the Examiner’s
finding that van Nieuwstadt’s addition of hydrocarbons into the exhaust gas
satisfies the requirement that oxygen in the exhaust gas is reduced and
hydrocarbons in the exhaust gas are generated. In the Reply Brief, however,
Appellant argues for the first time that even if “a first operating phase”
includes the phase after the hydrocarbon catalyzer comes up to operating
temperature, “such an interpretation would still fail to meet the limitations of
claim 1.” Reply Br. 5. We decline to consider this new argument, however,
as it is not accompanied by a showing of good cause why it could not have
been presented in the Appeal Brief. 37 C.F.R. § 41.41 (b)(2); Ex Parte
Borden, 98 USPQ2d 1473, 1476-77 (BPAI 2010) (informative).
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Application 12/342,958
Third, the Specification does not support Appellant’s interpretation.
Appellant relies on the following excerpt from the Specification to support
its construction:
Directly after the start of the combustion engine 10 the first
catalyzer 22 is heated to an operating temperature of 250°C to
300°C. Because it is arranged close to the exit of the combustion
engine 10, it reaches it comparably fast. The oxvsen amount of
the exhaust gas is reduced in this operating phase, in order to
achieve a sufficient conversion rate of the first catalyzer 22.
Furthermore hydrocarbons are produced by power-operated
measures, which are required for the conversion of nitrous gases
from the combustion engine 10 in the first catalyzer 22.
App. Br. 12 (quoting Spec. 6:14—20 (emphasis added by Appellant)).
Thus, Appellant implies that “this operating phase” in the above
excerpt—which corresponds to the claimed “a first operating phase” because
exhaust-gas oxygen levels are reduced and hydrocarbons are produced—
refers to “[djirectly after the start of the combustion engine.” See App. Br.
13. But it is more likely that “this operating phase” refers to the phase that
begins when “first catalyzer 22” (the hydrocarbon catalyzer; see Spec. 5:30-
32) “is heated to an operating temperature of 250°C to 300°C.” Claim 1
requires the nitrous gases to be more substantially converted in the
hydrocarbon catalyzer during the claimed “a first operating phase,” and
common sense dictates that this is more likely to occur when the
hydrocarbon catalyzer reaches its operating temperature.
For the foregoing reasons, we sustain the Examiner’s rejection of
claim 1 as anticipated by van Nieuwstadt.
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Claims 2 and 3
Claim 2 depends from claim 1 and additionally recites “wherein an
exhaust gas temperature at the [hydrocarbon catalyzer] is raised to at least
250°C.” The Examiner asserts that a typical light-off temperature for a NOx
catalyst is 250°C, so van Nieuwstadt’s teaching of bringing a catalyst to
light-off temperature discloses this limitation. Final Act. 3 (citing van
Nieuwstadt, 3:47—50). Appellant responds that van Nieuwstadt is “entirely
silent as to the temperature of the [hydrocarbon catalyzer] being raised to
any specific temperature, much less 250°C.” App. Br. 14. In the Answer,
the Examiner additionally asserts that “van Nieuwstadt discloses that the
catalyzer (15) for converting nitrous gases with hydrocarbons has an
optimum NOx conversion performance in the range of 200—300°C.” Ans. 4
(citing van Nieuwstadt, 3:51—53).
We are not persuaded that van Nieuwstadt discloses this additional
limitation. We have found no teaching in van Nieuwstadt supporting the
Examiner’s assertion that the hydrocarbon catalyst’s light-off temperature is
250°C. The statement in van Nieuwstadt on which the Examiner relies in
the Answer refers to the SCR catalyst, not the hydrocarbon catalyst. See van
Nieuwstadt, 3:51—53. Therefore, we do not sustain the Examiner’s rejection
of claim 2, or that of claim 3 depending from claim 2.
Claim 5
Claim 5 depends from claim 1 and adds the step of “switching from
the first into the second operating phase when the SCR-catalyzer has reached
a default operating temperature.” App. Br., claims app’x. The Examiner
contends that van Nieuwstadt teaches this additional limitation. Final Act. 3
(citing van Nieuwstadt, 3:51—55). Appellant responds that “van Nieuwstadt
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appears to be entirely silent as to switching from a first operating phase to a
second operating phase when the SCR-catalyzer has reached a default
operating temperature.” App. Br. 14. We agree with Appellant. We are
unable to find any teaching in van Nieuwstadt, including the excerpt relied
upon by the Examiner, that corresponds to this step. Accordingly, we do not
sustain this rejection.
DECISION
For the above reasons, we affirm the Examiner’s rejection of claim 1,
and reverse the Examiner’s rejections of claims 2, 3, and 5.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED-IN-PART
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