11800020 (P.T.A.B. Sep. 24, 2013)

Ex Parte Handler et al

Patent Trial and Appeal BoardSep 24, 2013

11800020 (P.T.A.B. Sep. 24, 2013)

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. 11/800,020 05/03/2007 Torsten Handler 15407.0044US01 8588 23552 7590 09/25/2013 MERCHANT & GOULD PC P.O. BOX 2903 MINNEAPOLIS, MN 55402-0903 EXAMINER BOGUE, JESSE SAMUEL ART UNIT PAPER NUMBER 3748 MAIL DATE DELIVERY MODE 09/25/2013 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 PATENT TRIAL AND APPEAL BOARD ____________ Ex parte TORSTEN HANDLER, MICHAEL KOLITSCH, and TOBIAS PFISTER ____________ Appeal 2011-011466 Application 11/800,020 Technology Center 3700 ____________ Before STEFAN STAICOVICI, GAY ANN SPAHN, and MICHAEL C. ASTORINO, Administrative Patent Judges. ASTORINO, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE The Appellants appeal under 35 U.S.C. § 134 from the Examiner’s decision finally rejecting claims 1-5, 9, 10, and 12. Claims 6-8 and 11 have been cancelled. We have jurisdiction over the appeal under 35 U.S.C. § 6(b). We REVERSE. Appeal 2011-011466 Application 11/800,020 2 CLAIMED SUBJECT MATTER Claims 1, 10, and 12 are the independent claims on appeal. Claim 1, reproduced below, with emphasis added, is illustrative of the subject matter on appeal. 1. A method of diagnosing a particle filter disposed in an exhaust gas area of an internal combustion engine, the method comprising: ascertaining a degree of efficiency of the particle filter by evaluation of an upstream particle flow detected in front of the particle filter in relation to a downstream particle flow detected behind the particle filter upon verification of one of: a downstream particle mass measured behind the particle filter achieving a downstream threshold value; an upstream particle mass measured in front of the particle filter achieving an upstream threshold value; and a measurement period achieving a measurement period threshold value. REJECTIONS The following Examiner’s rejections are before us for review: I. Claims 1, 2, 5, 10, and 12 are rejected under 35 U.S.C. § 102(b) as anticipated by Schӧnauer (US 6,432,168 B2, issued Aug. 13, 2002); II. Claims 3 and 4 are rejected under 35 U.S.C. § 103(a) as unpatentable over Schӧnauer and Koga (US 2006/0042238 A1, issued Mar. 2, 2006); and III. Claim 9 is rejected under 35 U.S.C. § 103(a) as unpatentable over Schӧnauer. Appeal 2011-011466 Application 11/800,020 3 OPINION Rejection I: Claims 1, 2, 5, 10, and 12 rejected as anticipated by Schӧnauer Schӧnauer discloses monitoring the operability of a soot filter arranged in an exhaust gas conduit by use of at least one soot sensor and that “[i]t is advantageous, however, if a first soot sensor is arranged upstream and a second soot sensor is arranged downstream of the soot filter.” Schӧnauer, Abstr., col. 1, ll. 59-63, col. 2, ll. 23-25; see also fig. 6. The Appellants contend that Schӧnauer does not disclose “ascertaining a degree of efficiency of the particle filter by evaluation of an upstream particle flow detected in front of the particle filter in relation to a downstream particle flow detected behind the particle filter,” as recited in claims 1, 10, and 12. App. Br. 10; see App. Br., Clms. App’x. Rather, “Schönauer simply describes the uncorrelated operation of the soot sensor arranged upstream of the soot filter and the soot sensor arranged downstream of the soot filter.” App. Br. 12, Reply Br. 4-5. In response, the Examiner finds that: Sch[ӧ]nauer measures the total amount of soot to pass the upstream sensor to determine how much soot should have accumulated on the filter since the last regeneration period (Col 3, Lines 50-60) to determine if a regeneration occurrence[, i.e., the process of cleaning the soot filter,] is required. Sch[ӧ]nauer then measures the amount of soot that has passed the downstream sensor to determine if there is a leak in the filter (Col 4, Line[s] 16-33). Ans. 8 (emphasis added); see also Ans. 4. The Appellants contend that the Examiner’s finding improperly suggests that the operation of the soot sensor arranged downstream of the soot filter as Appeal 2011-011466 Application 11/800,020 4 described at column 4, lines 16-33 of Schӧnauer is somehow temporally correlated (i.e., by using the term “then”) to that of the operation of the soot sensor arranged upstream of the soot filter described at column 3, lines 50-60 of Schӧnauer. Reply Br. 5. The Appellants’ contention is persuasive because Schӧnauer does not disclose that the functionality of the downstream sensor is related to an upstream sensor measurement or a condition where a predetermined threshold value of the upstream sensor is exceeded, e.g., warning light or acoustic signal; or a cleaning process of the soot filter. See Schӧnauer, col. 3, ll. 50-60, col. 4, ll. 16-45. Although we appreciate that each sensor functions on the basis of determining the amount of combusted soot within prescribed time intervals, this does not mean that the measurements of the upstream and the downstream sensors are made in relation to each other, as the Examiner proposes. See Schӧnauer, col. 3, ll. 10-14. The amount of combusted soot by the upstream sensor is related to a loading of the soot filter, whereas the amount of combusted soot by the downstream sensor is related to filter leakage. Id. at col. 3, ll. 50-60, col. 4, ll. 16-33. Furthermore, although a warning signal is provided when each of the upstream and the downstream sensors reaches its predetermined threshold value, we could not find any portion of Schӧnauer that discloses a relationship between the respective threshold values. Id. at col. 4, ll. 34-45. As such, the Examiner’s finding is speculative and not supported by a preponderance of the evidence. Thus, the rejection of claims 1, 2, 5, 10, and 12 as anticipated by Schӧnauer is not sustained. Appeal 2011-011466 Application 11/800,020 5 Rejection II: Claims 3 and 4 rejected as unpatentable over Schӧnauer and Koga Claims 3 and 4 depend directly and indirectly, respectively, from claim 1. App. Br., Clms. App’x. The Examiner’s rejection of claims 3 and 4 relies on the erroneous finding that Schӧnauer discloses “ascertaining a degree of efficiency of the particle filter” as recited in claim 1. Supra. Further, the Examiner finds Koga’s description at claim 9, ll. 6-9, which states, “calculat[ing] a particulate matter discharge amount per interval of the diesel engine based on a fuel injection amount and a rotation speed of the diesel engine,” corresponds to the added claim limitations of claim 3 and 4. Ans. 6-7. This finding does not remedy the deficiency of the rejection of claim 1, and consequently, the rejection of dependent claims 3 and 4. Thus, the rejection of claims 3 and 4 as unpatentable over Schӧnauer and Koga is not sustained. Rejection III: Claim 9 rejected as unpatentable over Schӧnauer Claim 9 depends directly from claim 1 and recites “wherein the upstream threshold value, the downstream threshold value, or the measurement period threshold value are [sic is] specified as a function of the functional principle of a particle sensor.” App. Br., Clms. App’x. The Examiner finds that Schӧnauer does not disclose this limitation of claim 9 and concludes that: [I]t would have been obvious to one of ordinary skill in the art that sufficient testing as indicated in Sch[ö]nauer (Col 2, Lines 55-31) would have occurred such that the threshold values associated with the particle sensor would have been determined so that the particle sensor operating in Appeal 2011-011466 Application 11/800,020 6 the exhaust system of a vehicle would be as accurate as possible. Ans. 8. The Examiner’s proposed modification of Schӧnauer does not remedy the deficiency of the rejection of claim 1, and consequently, the rejection of dependent claim 9. Thus, the rejection of claim 9 as unpatentable over Schӧnauer is not sustained. DECISION We REVERSE the rejections of claims 1-5, 9, 10, and 12. REVERSED mls