Ex Parte Dickson et al

Board of Patent Appeals and Interferences

Mar 6, 2008

09905698 (B.P.A.I. Mar. 6, 2008)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte RICHARD R. DICKSON and RUSSELL R. GRAZE, JR.
____________________

Appeal 2007-3442
Application 09/905,698
Technology Center 2800
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Decided: March 6, 2008
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Before JOSEPH F. RUGGIERO, ANITA PELLMAN GROSS,
and KEVIN F. TURNER, Administrative Patent Judges.

TURNER, Administrative Patent Judge.

DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134 from a final rejection of
claims 1, 2, and 9-13. We have jurisdiction under 35 U.S.C. § 6(b).

STATEMENT OF CASE
Appellants disclose a system for measuring particulate matter in an
exhaust gas stream of an internal combustion engine. (Specification [01]).
The system includes a transient dilution airflow control arrangement that has
variable and constant mass flow streams connected in parallel.
(Specification [19] and [20]).
Appeal 2007-3442
Application 09/905,698

Claims 1-13 are pending in the application, where claims 1, 2, and 9-
13 have been rejected over prior art and claims 3-8 have been indicated as
containing allowable subject matter.
Independent claim 1, which is deemed to be representative, reads as
follows:
1. A transient dilution air control arrangement for controlling a
dilution air supply to an inlet of a partial flow dilution tunnel of
a gas sampling system, the partial flow dilution tunnel being
connected to an exhaust gas stream of an internal combustion
engine, the gas sampling system having a first mass flow
controller operatively connected to an inlet of the transient
dilution air control arrangement, a second mass flow controller
connected to an outlet end of the partial flow dilution tunnel
and a filter interposed the second mass flow controller and the
outlet end of the partial flow dilution tunnel, said transient
dilution air control arrangement comprising:

a constant mass flow stream;

a variable mass flow stream; and

wherein said variable mass flow stream is connected with said
constant mass flow stream prior to the inlet of the partial flow
dilution tunnel.

The Examiner relies on the following prior art references to show
unpatentability:
Kaufman US 3,699,814 Oct. 24, 1972
Kono US 4,067,300 Jan. 10, 1978
Hendren US 2003/0136177 A1 Jul. 24, 2003
The Examiner rejected, under 35 U.S.C. § 103(a),
claims 1 and 9 as unpatentable over Hendren,
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claim 2 as unpatentable over Hendren and Kaufman, and
claims 10-13 as unpatentable over Hendren and Kono.
While Appellants have indicated the appeal of the rejections of claims
1, 2, and 9-13, arguments have only been directed against the rejection of
independent claim 1, where the patentability of claims 2 and 9-13 is argued
solely based on the dependence of those claims on claim 1. We take claim 1
to be representative of the argued claims. See 37 C.F.R. § 41.37(c)(1)(vii).
Rather than repeat the arguments of Appellants or the Examiner, we
make reference to the Brief and the Answer for their respective details.
Only those arguments actually made by Appellants have been considered in
this decision. Arguments that Appellants did not make in the Brief have not
been considered and are deemed to be waived. See 37 C.F.R.
§ 41.37(c)(1)(vii).
We reverse.

ISSUES
1) Have Appellants shown that the Examiner erred in finding claim 1
obvious over Hendren?

FINDINGS OF FACT
1. The application details a transient dilution air control arrangement
for controlling a dilution air supply to an inlet of a partial flow dilution
tunnel of a gas sampling system. The partial flow dilution tunnel is
connected to an exhaust gas stream of an internal combustion engine and the
gas sampling system has a first mass flow controller operatively connected
to an inlet of the transient dilution air control arrangement. A second mass
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Application 09/905,698

flow controller is connected to an outlet end of the partial flow dilution
tunnel, with a filter interposed between the second mass flow controller and
the outlet end of the partial flow dilution tunnel. The arrangement includes a
constant mass flow stream and a variable mass flow stream, where the
variable and constant mass flow streams are connected prior to the inlet of
the partial flow dilution tunnel. (Specification [14]-[16]; [19]-[20] and [25]-
[26]; Figs. 1-3, elements 38, 40, 44, 68, 70, 110, 112, and 114).
2. Hendren discloses a self-contained sampling system for measuring
engine exhaust emissions, including a mini-dilution tunnel. The mini-
dilution tunnel combines vehicle exhaust with ambient air at a constant flow
rate. The dilution air provided to the tunnel is controlled through a
proportional solenoid valve connected to a fixed flow rate pump which
draws in ambient air to be transferred through to the tunnel. The dilution air
volume flow rate is controlled by the proportional solenoid valve that is
connected to the system control computer and updated every second. The
diluted exhaust is measured through probes that draw gasses from the mini-
dilution tunnel through mass flow controllers and pumps. (Abstract;
Paragraphs [0010] and [0047]-[0049]; Fig. 2, elements 17, 20, 28, 29, 34,
36, 42, 50, 70, 72, 74, 80, 82, and 84).
3. The rejection of claims 1 and 9 stipulates that a constant mass flow
stream exits from the fixed rate pump, in Hendren, and connects to a
variable flow stream derived via a variably controlled solenoid valve, both
before the inlet of the mini-dilution tunnel. (Answer 3-4).
4. Kaufman discloses an apparatus for sampling gaseous exhaust
emissions on a constant flow basis. The system includes a venturi that acts
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Application 09/905,698

to meter the flow of the gaseous mixture and maintains a constant flow rate.
(Abstract; col. 6, ll. 36-47).
5. Kono is directed to a rotary piston engine. The reference details the
measurement of pressure fluctuations at a peripheral intake port of the
engine. (Abstract, col. 4, ll. 46-58).

PRINCIPLES OF LAW
The Examiner bears the initial burden of presenting a prima facie case
of obviousness. In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992). If that
burden is met, then the burden shifts to the Appellants to overcome the
prima facie case with argument and/or evidence. See Id.
The Examiner’s articulated reasoning in the rejection must possess a
rational underpinning to support the legal conclusion of obviousness. In re
Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006). The analysis need not seek out
precise teachings directed to the specific subject matter of the claim but can
take into account the inferences and the creative steps that a person of
ordinary skill in the art would employ. KSR Int’l Co. v. Teleflex Inc., 127
S.Ct. 1727, 1741 (2007).
When the specification states the meaning that a term in the claim is
intended to have, the claim is examined using that meaning, in order to
achieve a complete exploration of the applicant's invention and its relation to
the prior art. In re Zletz, 893 F.2d 319, 321-22 (Fed. Cir. 1989). The
definiteness inquiry focuses on whether those skilled in the art would
understand the scope of the claim when the claim is read in light of the rest
of the specification. Orthokinetics, Inc. v. Safety Travel Chairs, Inc., 806
F.2d 1565, 1576 (Fed. Cir. 1986).
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ANALYSIS
Appellants argue that Hendren teaches that a single stream of dilution
air is created by the fixed flow rate pump, with the quantity of dilution air
supplied to the mini-diffusion tunnel being controlled by the proportional
solenoid valve, and that no variable mass flow stream is disclosed. (Br. 4-5).
The Examiner’s response is to find that Appellants’ interpretation is “clearly
contradictory to the teaching by Hendren” and is merely speculation without
evidentiary support. (Answer 7). However, we do not find Appellants’
discussion to be contrary to the disclosure of Hendren. Hendren makes clear
that the dilution air volume flow rate is controlled by the proportional
solenoid valve, but that is not the same as the creation of a variable mass
flow stream. While it is evident that the solenoid valve changes the flow
rate, we find no teaching or suggestion in Hendren that a variable mass flow
stream is created through the solenoid valve.
Additionally, as discussed in Appellants’ Specification and in
Hendren, (Findings of Fact 1 and 2), the function of a mass flow controller is
to provide a constant mass flow of the constituent gases. The rejection of
claim 1 envisions that the proportional solenoid valve is replaced by a mass
flow controller “as it performs the function of controlling the flow rate of the
flow.” (Answer 4). Thus, it would seem that the replacement mass flow
controller would also not provide a variable mass flow stream, as recited in
claim 1. While it is true that a mass flow controller is clearly programmable
and settable, that does not mean that a mass flow controller would routinely
create a variable mass flow stream. We find that the Examiner has not
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shown that all of the elements of claim 1 have been taught or suggested by
Hendren.
In addition, according to the recitations in claim 1, the gas sampling
system has a first mass flow controller which is not part of the transient
dilution air control arrangement. The rejection makes clear that the
Examiner interprets the system controller and the laminar flow element,
disclosed in Hendren, to constitute the transient dilution air control
arrangement, which also has to include the flows from the pump and the
proportional solenoid valve to be consistent with the claim language. Under
the Examiner’s reading of claim 1 onto Hendren, the proportional solenoid
valve would be both a part of the transient dilution air control arrangement,
i.e. supplying the variable mass flow stream, and external to the transient
dilution air control arrangement, where the rejection suggests that the
proportional solenoid valve could have been replaced by a mass flow
controller. As such, the rejection of claim 1 posits that a replacement for the
proportional solenoid value would satisfy both claim elements, when it is
clear it cannot. For this additional reason, we find the rejection of claim 1 as
being obvious over Hendren to have been made in error.
We further note that nothing in the disclosures of Kaufman and Kono
cures this deficiency in the rejection of claim 1. As such, we find clear error
in the rejections of claims 1, 2, and 9-13.

CONCLUSION OF LAW
We find that the Examiner erred in rejecting claims 1, 2, and 9-13
under 35 U.S.C. § 103 based on Hendren, Kaufman and Kono.

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Application 09/905,698

DECISION
The rejections of claims 1, 2, and 9-13 are reversed.

REVERSED

tdl

CATERPILLAR INC.
INTELLECTUAL PROPERTY DEPT.
AB 6490
100 N.E. ADAMS STREET
PEORIA, IL 61629-6490
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