Ex Parte Bruck

Board of Patent Appeals and Interferences

Apr 27, 2011

10912302 (B.P.A.I. Apr. 27, 2011)

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.
10/912,302 08/04/2004 Rolf Bruck E-80111 D 1850
24131 7590 04/28/2011
LERNER GREENBERG STEMER LLP
P O BOX 2480
HOLLYWOOD, FL 33022-2480
EXAMINER
NGUYEN, TU MINH
ART UNIT PAPER NUMBER
3748
MAIL DATE DELIVERY MODE
04/28/2011 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte ROLF BRUCK
__________

Appeal 2011-003148
Application 10/912,302
Technology Center 3700
__________

Before TONI R. SCHEINER, DEMETRA J. MILLS, and ERIC GRIMES,
Administrative Patent Judges.

GRIMES, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims to an engine
exhaust system, which the Examiner has rejected as obvious. We have
jurisdiction under 35 U.S.C. § 6(b). We affirm-in-part.
STATEMENT OF THE CASE
Claims 1, 2, 4, 8, 14-17, 19, and 20 are on appeal. With the exception
of claim 4, the claims have not been argued separately and therefore stand or
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fall together. 37 C.F.R. § 41.37(c)(1)(vii). Claims 1 and 4 are representative
and read as follows:
1. An exhaust system for purifying exhaust gas flowing from an
internal combustion engine through the exhaust system in a flow direction,
the exhaust system comprising, successively in the flow direction:
a catalytic converter for converting carbon monoxides and
hydrocarbons contained in the exhaust gas, an oxidation catalytic converter
disposed downstream of said catalytic convertor in the flow direction, said
oxidation catalytic convertor for converting nitrogen monoxide contained in
the exhaust gas, and a particulate trap disposed downstream of said
oxidation catalytic converter in the flow direction, said particulate trap for
collecting particulates contained in the exhaust gas, said particulate trap
having freely accessible passages and diverter devices disposed in said
passages.

4. The exhaust system according to claim 1, which further comprises
a turbocharger, said catalytic converter disposed upstream of said
turbocharger, and said oxidation catalytic converter disposed downstream of
said turbocharger, in the flow direction.
Issue
The Examiner has rejected claims 1, 2, 4, 8, 14-17, and 19 under 35
U.S.C. § 103(a) as obvious in view of Phillips1 and Retallick2 (Answer 3, 5).
The Examiner has also rejected claim 20 under 35 U.S.C. § 103(a) as
obvious in view of Phillips, Retallick, and Fedor3 (Answer 6). Because
Appellant relies on the same argument with respect to both rejections
(Appeal Br. 14), we will consider them together.
The Examiner finds that Phillips discloses an exhaust system
comprising, in the correct order, a catalytic converter, an oxidation catalytic

1 Phillips et al., WO 00/34632, June 15, 2000
2 Retallick, U.S. 4,597,262, July 1, 1986
3 Fedor et al., U.S. 3,978,193, Aug. 31, 1976
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converter, and a particulate trap (Answer 4), and that Retallick discloses a
particulate trap with freely accessible passages and diverter devices disposed
in them (id.). The Examiner concludes that it would have been obvious to
use Retallick’s particulate trap in Phillips’ system “since the use thereof
would have improved an efficiency to remove harmful particulate matter in
an exhaust gas stream (see lines 58-61 of column 2)” (id. at 5).
Appellant contends that Phillips discloses “a ceramic wall flow filter
with closed channels to achieve the conversion” of hydrocarbon particles
(Appeal Br. 7) and a fail-safe bypass to solve the problem of blocking the
wall flow filter (id.). Appellant argues that “[t]here is no motivation for a
person of ordinary skill in the art to modify the construction of the wall flow
filter with closed channels of Phillips with another one having different
characteristics” (id. at 9) and that Retallick does not disclose a particulate
trap with freely accessible passages and diverter devices in the passages (id.
at 10).
The issue presented is: Does the evidence of record support the
Examiner’s conclusion that it would have been obvious to modify Phillips’
exhaust system to include a particulate trap having the characteristics recited
in claim 1?
Findings of Fact
1. Phillips discloses an engine exhaust system comprising, in order in
the flow direction, bed 20, bed 22, and bed 24 (Phillips 7: 11-26 and Fig. 1).
2. Phillips’ bed 20 is a “catalyst primarily for oxidation of HC
[hydrocarbons] and CO” (id. at 7: 18). Phillips’ bed 20 is therefore a
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“catalytic converter for converting carbon monoxides and hydrocarbons
contained in the exhaust gas,” as recited in claim 1.
3. Phillips’ bed 22 is a “catalyst primarily for oxidation of NO to
NO2” (id. at 7: 24-25). Phillips’ bed 22 is therefore an “oxidation catalytic
converter for converting nitrogen monoxide contained in the exhaust gas,” as
recited in claim 1.
4. Phillips’ bed 24 is a “soot filter . . . where soot is trapped and
oxidised” (id. at 7: 25-26). Phillips also refers to the soot filter as “a trap
(24) for particulates” (id. at abstract).
5. Phillips discloses that “[e]ach bed in the system is in the form of a
ceramic honeycomb” (id. at 7: 33).
6. Retallick discloses a “catalytic converter . . . compris[ing] a stack
of metal strips that are spaced apart by indentations. . . . The particulates are
trapped in the cleft formed when an indentation presses against the adjacent
strip.” (Retallick, col. 2, ll. 8-20.)
7. Retallick discloses that “the accumulated particulates are
distributed throughout the converter so that the pressure drop does not build
up rapidly” (id. at col. 2, ll. 59-61).
8. Retallick discloses that “[t]his is an essential feature of the
invention, a feature that does not exist in the ceramic honeycomb particle
trap” (id. at col. 4, ll. 5-7).
Analysis
Phillips discloses an engine exhaust system comprising the three
components recited in claim 1, in the recited order, but does not disclose a
particulate trap having freely accessible passages and diverter devices in
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those passages. Retallick discloses a particulate trap having freely
accessible passages (the spaces between adjacent metal strips) and diverter
devices (indentations) in those passages. Retallick also discloses that its
particulate trap has the advantage, compared to the ceramic honeycomb
disclosed by Phillips, that particulates are distributed throughout the device
so that the pressure drop does not build up rapidly. We agree with the
Examiner that these disclosures would have made it obvious to a person of
ordinary skill in the art to use Retallick’s particulate trap in Phillips’ exhaust
system.
Appellant argues that Phillips teaches away from the particulate trap
recited in claim 1 “because Phillips explicitly discloses a closed wall flow
filter along with providing a bypass to allow the exhaust gas to pass the filter
in situations when the filter is blocked” (Appeal Br. 8).
This argument is not persuasive. Phillips discloses that the “soot filter
may be any capable of collecting the soot without causing excessive back-
pressure. . . . It may be a ceramic wall flow filter, a ceramic foam filter,
ceramic fibre filter, sintered metal or wire mesh filter of any suitable type.”
(Phillips 5: 1-7.) Phillips therefore does not limit its system to one that
includes a wall flow filter and does not teach away from using Retallick’s
particulate trap.
Appellant also argues that Retallick does not disclose a particulate
trap having the characteristics recited in claim 1 (Appeal Br. 10), but the
Examiner has provided a reasoned explanation (Answer 4) of why claim 1
reads on the device disclosed by Retallick and Appellant has provided no
basis for concluding that the Examiner’s reasoning is in error.
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With respect to claim 4, the Examiner stated that “[i]t is well known
to those of ordinary skill in the art” that the catalytic converter is disposed
upstream of a turbocharger and the particulate trap and oxidation catalytic
converter are disposed downstream of a turbocharger (Office Action mailed
Nov. 10, 2009, page 4). The Examiner also stated that “[s]ince applicant
fails to challenge the examiner’s official notice on such obviousness, it is
therefore assumed that applicant has acquiesced with the examiner on the
rejection” (id.).
Appellant, however, did challenge the Examiner’s official notice,
stating:
It is not well known to a person of ordinary skill in the art that
disposition of the catalytic converter and the particulate trap
relative to the turbocharger is as alleged by the Examiner.
Specifically, providing catalysts upstream of the turbocharger
has the result that higher temperatures occur and that the
components of the exhaust gas are not (fully) mixed with each
other and show concentration maximums (increasing the risk of
blocking/blinding).
(Response filed Feb. 10, 2010, page 13.) Appellant makes the same
argument in the Appeal Brief (page 12).
In the Answer, the Examiner did not address this argument or provide
any evidence to support the finding based on official notice (see Answer 5,
7-8). When an examiner relies on official notice and the applicant
challenges the examiner’s finding by “point[ing] out the supposed errors in
the examiner’s action, which would include stating why the noticed fact is
not considered to be common knowledge or well-known in the art,” the
examiner must provide evidence to support the challenged finding. MPEP
§ 2144.03(C). Since Appellant has challenged the Examiner’s finding that
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the arrangement recited in claim 4 is well-known, and the Examiner has not
provided evidence to support that finding, the Examiner has not established
that claim 4 would have been obvious to a person of ordinary skill in the art.
Conclusion of Law
The evidence of record supports the Examiner’s conclusion that it
would have been obvious to modify Phillips’ exhaust system to include a
particulate trap having the characteristics recited in claim 1. However, the
Examiner has not provided adequate evidence to support the rejection of
claim 4.
SUMMARY
We affirm the rejections on appeal as applied to claims 1, 2, 8, 14-17,
19, and 20, but reverse the rejection of claim 4.
TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).

AFFIRMED-IN-PART

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