Ex Parte Akama et al

Patent Trial and Appeal Board

Oct 14, 2016

12671056 (P.T.A.B. Oct. 14, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/671,056 01/28/2010 Hiroshi Akama
22428 7590 10/18/2016
Foley & Lardner LLP
3000 K STREET N.W.
SUITE 600
WASHINGTON, DC 20007-5109
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
040302-0852 7596
EXAMINER
AYALA DELGADO, ANTHONY
ART UNIT PAPER NUMBER
3748
NOTIFICATION DATE DELIVERY MODE
10/18/2016 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):
ipdocketing@foley.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte HIROSHI AKAMA and HITOSHI ONODERA
Appeal2014-004505
Application 12/671,056
Technology Center 3700
Before JENNIFER D. BAHR, CHARLES N. GREENHUT, and
ERIC C. JESCHKE, Administrative Patent Judges.
JESCHKE, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Hiroshi Akama and Hitoshi Onodera ("Appellants") seek review
under 35 U.S.C. § 134(a) of the Examiner's decision, as set forth in the Final
Office Action dated November 19, 2012 ("Final Act."), rejecting claims 1-
17. 1 The record includes a transcript of the oral hearing held on September
22, 2016 ("Tr."). We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 Appellants identify Nissan Motor Co., Ltd. as the real party in
interest. Appeal Br. 2.
Appeal2014-004505
Application 12/671,056
BACKGROUND
The disclosed subject matter "relates to an exhaust gas purifying
system capable of effectively purifying an exhaust gas discharged from an
internal combustion engine during lean bum operation." Spec. iJ 1. Claims
1, 14, 16, and 17 are independent. Claim 1 is reproduced below:
1. An exhaust gas purifying system for an
internal combustion engine, the system comprising:
a NOx trapping agent which adsorbs nitrogen
oxide when an excess air ratio of exhaust gas is
more than 1, and releases nitrogen oxide when the
excess air ratio is 1 or less;
a NOx purifying catalyst which reduces
nitrogen oxide to nitrogen; and
a CPU comprising instructions such that the
CPU:
controls oxygen concentration in the
exhaust gas, and
when the excess air ratio of the exhaust
gas is 1 or less, controls the oxygen
concentration of the exhaust gas at an inlet of
the NOx purifying catalyst between 0.8 and
1.5 % by volume to enhance a partially-
oxidized reaction of hydrocarbons in the
exhaust gas, so that the NOx purifying
catalyst reduces nitrogen oxide released from
the NOx trapping agent.
REJECTIONS
1. Claims 1, 7-9, and 13-16 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Nagaoka (US 7, 114,328 B2, issued Oct. 3.
2006), Duvinage (US 2007/0028601 Al, published Feb. 8, 2007), and
Thompson (US 3,637,344, issued Jan. 25, 1971).
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2. Claims 2, 3, and 12 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Nagaoka, Duvinage, Kitahara (US 2003/0126857 Al,
published July 10, 2003), Thompson, and Maaseidvaag (US 6,167,696 Bl,
issued Jan. 2, 2001).
3. Claims 4 and 5 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Nagaoka, Duvinage, Kitahara, Thompson, Maaseidvaag,
and Kondo (US 5,664,049, issued Sept. 2, 1997).
4. Claim 6 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Nagaoka, Duvinage, Thompson, and Kitahara.
5. Claims 10 and 11 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Nagaoka, Duvinage, Kitahara, Thompson, Maaseidvaag,
Hirota (US 6,367,246 Bl, issued Apr. 9, 2002), and Sumida (US
2003/0134743 Al, published July 17, 2003).
6. Claim 17 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Nagaoka, Duvinage, Kitahara, and Thompson.
DISCUSSION
Rejection I -The rejection of claims 1, 7-9,
and 13-16 under 35 U.S.C. § 103(a)
Appellants argue the patentability of the three independent claims in
this Rejection-claims 1, 14, and 16-as a group and do not provide
separate arguments for any dependent claims. Appeal Br. 8-11. We select
independent claim 1 as representative, with the remaining claims standing or
falling with claim 1. See 37 C.F.R. § 41.37 (c)(l)(iv) (2012).
Claim 1 recites, among other limitations, a central processing unit
that, "when the excess air ratio of the exhaust gas is 1 or less, controls the
oxygen concentration of the exhaust gas at an inlet of the NOx purifying
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catalyst between 0.8 and 1.5 % by volume to enhance a partially-oxidized
reaction of hydrocarbons in the exhaust gas, so that the NOx purifying
catalyst reduces nitrogen oxide released from the NOx trapping agent."
Appeal Br. 15 (Claims App.) (the "limitation at issue"). The Examiner
relied on Nagaoka in view of Duvinage for many of the aspects recited in
claim 1, but stated that:
N agaoka shows the excess air ratio of the exhaust gas is 1 or less
(rich conditions); except the oxygen concentration of the exhaust
gas at an inlet of the NOx purifying catalyst between 0.8 and 1.5
% by volume, so that the NOx purifying catalyst reduces nitrogen
oxide released from the NOx trapping agent. However
Thompson shows that engine when in rich condition, will
produce an exhaust gas contain very small amounts of free
oxygen, which amounts of oxygen will normally be less than 1
percent volume basis, e.g. 0.8 percent volume 0[2], and certainly
less than about 2.0 volume percent of 0[2], see [Thompson] col.
2 lines 49-61.
Final Act. 5-6.
Appellants generally argue that N agaoka and Thompson fail to
disclose the limitation at issue. Appeal Br. 8 (adding emphasis to "controls
the oxygen concentration of the exhaust gas at an inlet of the NOx purifying
catalyst between 0.8 and 1.5 % by volume"). First, Appellants argue that
"regeneration control operation means C50 [in Nagaoka] makes the NOx
occluding substance 30 discharge NOx by generating an exhaust gas with!£!..
excess air factor 1being0.8 to 0.95 and almost zero ofoxvgen
concentration at the catalyst inlet and at the same time, reduces and purifies
the released NOx to restore the NOx absorbing capacity, and regenerates the
catalyst." Id. at 9 (citing Nagaoka, col. 5, lines 19-27). Appellants contend
that "Nagaoka merely discloses that in rich condition the oxvgen
concentration is zero, or at best near zero, and the discharged N02 is
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reduced to N2 by HC and CO in the exhaust gas." Id. According to
Appellants, "Nagaoka does not disclose controlling the oxygen
concentration of the exhaust gas at an inlet of the NOx purifying catalyst
between 0. 8 and 1. 5 % by volume when the excess air ratio of the exhaust
gas is 1 or less." Id. at9-10.
As an initial matter, and as noted by the Examiner, column 5, lines
19-27 ofNagaoka discloses an oxygen concentration at the catalyst inlet that
is "'almost zero[,]' which is a value 'not zero."' Ans. 4. Further, we are not
apprised of error based on Appellants' argument because nonobviousness
cannot be established by attacking references individually when the rejection
is based on a combination of prior art. See In re Merck & Co., 800 F.2d
1091, 1097 (Fed. Cir. 1986). Here, the Examiner does not rely on Nagaoka
to satisfy the recited range of "O. 8 to 1.5% by volume" of oxygen
concentration at the catalyst inlet. See Final Act. 5 ("Nagaoka shows the
excess air ratio of the exhaust gas is 1 or less (rich conditions); except the
oxygen concentration of the exhaust gas at an inlet of the NOx purifying
catalyst between 0.8 and 1.5 % by volume"); Ans. 4 ("Nagaoka discloses a
rich state which is oxygen concentration is almost zero, Nagaoka does not
disclose the specific value the oxygen concentration at the inlet of a catalyst
when exhaust is controlled at a rich state.").
Second, Appellants argue that "Thompson does not cure the
deficiencies ofNagaoka." Appeal Br. 10. According to Appellants,
"Thompson merely discloses that when the exhaust gases of an internal
combustion engine are contacted with a ruthenium-iridium catalyst in the
rich condition where the amount of oxygen is less than about 2.0 volume
percent, the nitrogen oxide is reduced effectively" and, thus, "Thompson
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does not disclose a CPU comprising instructions controlling an oxygen
concentration of the exhaust gas at an inlet of the NOx purifying catalyst."
Id. Appellants also contend that, "because Thompson does not disclose a
CPU comprising instructions controlling an oxygen concentration of the
exhaust gas at an inlet of the NOx purifying catalyst, Thompson does not
suggest what a desired oxygen concentration amount should be at an inlet of
the NOx purifying catalyst." Id. Appellants further argue that "Thompson
makes no suggestion of what the oxygen concentration of the exhaust gas at
an inlet of the NOx purifying catalyst for the Nagaoka system, which does
not have a ruthenium-iridium catalyst as does Thompson, should be
controlled to be when the excess air ratio of the exhaust gas is 1 or less" and
that "Thompson, which discloses a different catalyst material therefore
operates under an entirely different chemistry than N agaoka, and oxygen
concentration of Thompson would not readily transfer to Nagaoka." Id.
We are not apprised of error based on this set of arguments.
Thompson is not relied on to address the requirement for structure that
"controls oxygen concentration in the exhaust gas" and that, "when the
excess air ratio of the exhaust gas is 1 or less, controls the oxygen
concentration of the exhaust gas at an inlet of the NOx purifying catalyst."
Appeal Br. 15 (Claims App.). Thompson is also not relied on as teaching
that the disclosed oxygen concentration at the catalyst inlet is "desired." Id.
at 10. Instead, based on a finding that both Nagaoka and Thompson describe
"rich" combustion conditions, the Examiner relies on Thompson as evidence
of the understanding of an ordinary artisan as to the oxygen concentration at
the catalyst inlet at issue in Nagaoka. See Final Act. 5-6; Ans. 4-5; see also
In re Baxter Travenol Labs., 952 F.2d 388, 390 (Fed. Cir. 1991) (addressing,
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in an anticipation analysis, the use of additional evidence to assess "whether
one skilled in the art would reasonably understand or infer" that a reference
teaches or discloses all the elements of the claimed invention); In re Sutton,
497 F. App'x 29, 36 (Fed. Cir. Nov. 20, 2012) (nonprecedential) (discussing
the use of two "teaching references to highlight the knowledge a person of
ordinary skill in the art would have had regarding plastics and dyes when
reading" another reference).
Specifically, the Examiner states that although "Nagaoka discloses a
rich state which is oxygen concentration is almost zero" but "does not
disclose the specific value the oxygen concentration at the inlet of a catalyst
when exhaust is controlled at a rich state," "Thompson discloses the specific
value of oxygen concentration during a rich state." Ans. 4. The Examiner
then quotes passages from column 2, lines 49-61 of Thompson, stating:
Thompson discloses that a rich mixture produced by an engine
will normally have around 0.8 or certainly less than 2.0 percent
by volume of 0[2]. Nagaoka discloses "almost zero" oxygen
concentration when rich condition is presented, and Thompson
discloses when engine is operated under rich mixture the oxygen
concentration is almost zero as well. A person having ordinary
skill in the art at the time the invention was made would have
recognized that oxygen concentration of Nagaoka, would be
within a value ofless than 2.0 per volume, since engine operating
in rich mixture would produce a less than 2. 0 per volume of 0 [ 2],
as taught by Thompson.
Ans. 4-5; see Final Act. 5-6 (stating that "Nagaoka shows the excess air
ratio of the exhaust gas is 1 or less (rich conditions)" and "Thompson shows
that engine when in rich condition, will produce an exhaust gas contain very
small amounts of free oxygen, which amounts of oxygen will normally be
less than 1 percent volume basis, e.g. 0.8 percent volume 0[2], and certainly
less than about 2.0 volume percent of 0[2], see col. 2 lines 49-61").
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In response, Appellants argue that "the engine operation condition of
Thompson is normally under rich condition" (citing Thompson, col. 2, 11.
49-61) and that "Nagaoka discloses in FIG. 5 that the exhaust gas purifying
system alternates among the normal lean bum operation by the normal
control operation means C 10, the regeneration control operation by the
regeneration control operation means C50, and the sulfur purge control
operation by the sulfur purge control operation means C40," and, thus,
because "the engine operation conditions of Thompson and Nagaoka are
different from each other," "the rich condition (in particular the oxygen
concentration in the rich condition) of Thompson does not necessarily
correspond to the rich condition ofNagaoka." Reply Br. 3. The issue here
is the oxygen concentration at the catalyst inlet disclosed in Nagaoka (col. 5,
11. 19-27) when operating in the manner relied on by the Examiner-i.e.,
during regeneration control operation, in which (as acknowledged by
Appellants (Reply Br. 3)), regeneration control operation means C50
generat[ es] an exhaust gas with an excess air factor A is 0. 8 to
0.95 and almost zero of oxygen concentration at the catalyst inlet
and at the same time, reduces and purifies the released NOx to
restore the NOx absorbing capacity, and regenerates the catalyst.
Nagaoka, col. 5, 11. 19-27 (cited at Ans. 4). That the system in Nagaoka can
also perform other operations-i.e., other than regeneration control
operation-does not apprise us of error in the Examiner's position above.
In the Reply Brief, Appellants also argue that the "claimed invention
purposely controls the oxygen concentration" and that "Nagaoka and
Thompson, by contrast, fail to disclose or suggest that the CPU controls the
oxygen concentration of the exhaust gas by purposely introducing by control
a small amount of oxygen." Reply Br. 4. As described in the passage
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quoted above (and relied on by the Examiner), Nagaoka discloses a
"regeneration control operation means CSO" capable of "generating an
exhaust gas with an excess air factor A is 0.8 to 0.95 and almost zero of
oxygen concentration at the catalyst inlet." Nagaoka, col. 5, 11. 22-24.
Appellants have not shown why N agaoka, when considered in light of
Thompson, does not satisfy the limitations at issue.
We tum now to the argument that Thompson "discloses a different
catalyst material" and "therefore operates under an entirely different
chemistry than Nagaoka" such that the "oxygen concentration of Thompson
would not readily transfer to Nagaoka." Appeal Br. 10. Although
Thompson does disclose that the relied-upon passage relates to a system
using a ruthenium-iridium catalyst (see col. 2, 1. 45), Appellants have not
shown that this feature undermines the factual findings or reasoning relied
on to support the conclusion of obviousness. For example, Appellants do
not identify the catalyst material in Nagaoka and, moreover, have not shown
why the identity of the downstream catalyst would influence the oxygen
concentration at the catalyst inlet when in rich combustion settings (i.e., the
aspect for which Thompson is relied on (see Final Act. 6; Ans. 4-5)).
Third, Appellants contend that "the claimed invention of claim 1 with
the controlled oxygen concentration '0.8 and 1.5% by volume' shows
surprising and unexpected results on the NOx and HC purification rates as
shown in FI Gs. 13 and 14" of the Specification. Appeal Br. 11. Appellants
contend that "N agaoka and Thompson do not suggest such unexpected
results." Id. In the Reply Brief, Appellants reference pages in the Bosch
Automotive Handbook and contend that, "as shown in Figure 1 a, large
amounts of HC (hydrocarbons) and NOx (nitrogen oxides) are contained in
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the untreated exhaust gas under rich condition." Reply Br. 4. Appellants
also argue that Figure 1 b of the Handbook shows that hydrocarbons and
carbon monoxide "are not efficiently purified under rich conditions." Id. at
5. According to Appellants, "[a]s shown in FI Gs. 13 and 14 of the
[Specification], when the excess air ratio (A.) in the exhaust gas is 1 or less,
i.e. at rich condition, and the oxygen concentration is controlled ranging
from 0.8 to 1.5% by volume, both nitrogen oxide and hydrocarbons are
efficiently purified." Id.
We are not apprised of error based on these arguments. "[W]hen
unexpected results are used as evidence of nonobviousness, the results must
be shown to be unexpected compared with the closest prior art." Baxter
Travenol, 952 F.2d at 392. Here, Appellants do not compare the purification
rates shown in Figures 13 and 14 of the Specification to similar data for any
system, including the closest prior art. Moreover, Appellants do not provide
objective evidence to support the assertion that Nagaoka and Thompson "do
not suggest such unexpected results." Appeal Br. 11; see also In re De
Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984) ("It is well settled that
unexpected results must be established by factual evidence.").
As to the Bosch Automotive Handbook, Appellants have not shown
why Figures 1 a and 1 b demonstrate that the results in Figures 13 and 14 of
the Specification are "unexpected." For example, Appellants have not
demonstrated either (1) the relevance of the information in the identified
figures of the Bosch Automotive Handbook (which have no units on their
vertical axes) to the information shown in Figures 13 and 14 of the
Specification or (2) that the information in the identified figures of the
Bosch Automotive Handbook represent the closest prior art.
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For the reasons set forth above, we sustain the rejection of
independent claim 1 as unpatentable over the combined teachings relied
upon by the Examiner. Claims 7-9 and 13-16 fall with claim 1.
Rejections 2-5 -The rejections of claims 2-6 and
10--12 under 35 U.S.C. § 103(a)
Appellants do not separately argue claims 2-6 and 10-12 (Appeal Br.
11-13), which depend from claim 1. Thus, for the reasons discussed above,
we sustain the rejection of claims 2-6 and 10-12.
Rejection 6- The rejection of claim 17 under 35 U.S.C. § 103(a)
Appellants argue that "[i]ndependent claim 17 has features
corresponding to those discussed above with respect to claim 1, and is
patentable for analogous reasons over Nagaoka, Duvinage and Thompson."
Appeal Br. 14. Because Appellants have not apprised us of error in the
rejection of claim 1, we sustain the rejection of claim 17.
We tum now to one additional issue regarding claim 17. In the Office
Action, the Examiner interpreted "oxygen concentration controller" in claim
17 under 35 U.S.C. § 112, sixth paragraph. See Final Act. 2. Appellants set
forth various arguments why that claim language should not be interpreted
under 35 U.S.C. § 112, sixth paragraph. See Appeal Br. 8; Reply Br. 2. The
Examiner maintains the position from the Office Action. See Ans. 2-3.
We need not address this additional issue because Appellants
acknowledge that a decision on this issue would not affect the outcome with
regard to the prior art rejection on appeal. See Tr. 8, 1. 8 - 9, 1. 9. Indeed,
Appellants do not set forth arguments regarding the claim language at issue,
but, rather, as noted above, argue the patentability of claim 17 based only on
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"features corresponding to those discussed above with respect to claim l ."
Appeal Br. 14. We decline to provide an advisory opinion on this issue.
DECISION
We AFFIRM the decision to reject claims 1-17 under 35 U.S.C.
§ 103(a).
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § l .136(a)(l )(iv).
AFFIRMED
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