Ex Parte Haugen

Board of Patent Appeals and Interferences

Sep 15, 2009

11174391 (B.P.A.I. Sep. 15, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte DAVID JAMES HAUGEN
____________

Appeal 2009-001573
Application 11/174,391
Technology Center 3700
____________

Decided: September 15, 2009
____________

Before LINDA E. HORNER, STEVEN D.A. McCARTHY, and
MICHAEL W. O'NEILL, Administrative Patent Judges.

HORNER, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
David James Haugen (Appellant) seeks our review under 35 U.S.C.
§ 134 of the Examiner’s decision rejecting claims 1-4, 13, 14, 19, 20, 23, 24,
27-29, 32, and 33. Claims 5-12, 15-18, 21, 22, 25, 26, 30, and 31 are
withdrawn. We have jurisdiction under 35 U.S.C. § 6(b) (2002).

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SUMMARY OF DECISION
We AFFIRM-IN-PART.

THE INVENTION
The Appellant’s claimed invention is a multi-stage turbocharging
system for an internal combustion engine. Spec. 1:10-11. Claim 1,
reproduced below, is representative of the subject matter on appeal.
1. An internal combustion engine system,
comprising:
an internal combustion engine, producing
pressurized exhaust gas with a first exhaust energy
level;
an exhaust manifold coupled to said internal
combustion engine, for directing flow of the
pressurized exhaust gas toward an exhaust line;
a first, higher pressure stage turbine, coupled
to the exhaust line, having an inlet and an outlet
fluidly coupled with the exhaust line, for extraction
of work from the pressurized exhaust gas, and
passing on the pressurized exhaust gas through its
outlet at a second, lower exhaust energy level;
at least one lower pressure stage turbine,
having at least one inlet fluidly coupled to the
outlet of the first turbine, for further extraction of
work from the pressurized exhaust gas with the
second, lower exhaust energy level;
a bypass means for bypassing a portion of
the flow of the pressurized exhaust gas with the
first exhaust energy level around the first turbine,
from upstream of the first turbine to at least one
inlet of at least one lower pressure stage turbine;
and
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nozzle means positioned to receive the
bypassed flow of exhaust gas while still
substantially near the first exhaust energy level,
and for converting a portion of the exhaust energy
in the bypassed flow of exhaust gas to kinetic
energy, in the form of acceleration of the bypassed
exhaust gas flow, said nozzle means placed
sufficiently nearby turbine wheel blades of at least
one lower pressure stage turbine for conversion of
the kinetic energy to mechanical work in the lower
pressure stage turbine before substantial
dissipation of said bypassed exhaust gas flow
acceleration.

THE EVIDENCE
The Examiner relies upon the following evidence:
Kanesaka US 4,930,315 Jun. 5, 1990
Sumser US 6,378,305 B1 Apr. 30, 2002
Gladden US 6,422,014 B1 Jul. 23, 2002
Hiemesch EP 1275832 A2 Jan. 15, 2003
Vogiatzis US 6,948,907 B2 Sep. 27, 2005
Weiss DE 195 14 572 A1 Oct. 24, 1996

THE REJECTIONS
The Appellant seeks our review of the following decisions by the
Examiner:
1. Rejection of claims 14 and 32 under 35 U.S.C. § 102(b) as anticipated
by Weiss.
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2. Rejection of claims 1-4, 19, 20, 27-29, and 33 under 35 U.S.C.
§ 103(a) as unpatentable over Weiss, and either Hiemesch, Sumser, or
Vogiatzis.
3. Rejection of claim 13 under 35 U.S.C. § 103(a) as unpatentable over
Weiss, Hiemesch, and Kaneska.
4. Rejection of claims 23 and 24 under 35 U.S.C. § 103(a) as
unpatentable over Weiss, Gladden, and either Hiemesch, Sumser, or
Vogiatzis.

ISSUES
The Examiner found that Weiss anticipates claims 14 and 32 based in
part on the finding that valve 12 of the reversing device 13 of Weiss
increases the velocity of the exhaust gas flow by creating a reduced cross-
sectional flow area when pivoting 90 degrees from the two-stage position to
the one-stage position. Ans. 4, 13-15. The Appellant contends that Weiss
does not disclose utilizing converted kinetic energy to impart increased
momentum to a low pressure turbocharger. App. Br. 9-101; Reply Br. 4.
The issue before us is:
Has the Appellant shown the Examiner erred in finding that valve 12
of Weiss increases the velocity of the exhaust gas flow such that the system
of Weiss utilizes converted kinetic energy to impart increased momentum to
a low pressure turbocharger?

1 The abbreviation App. Br. refers to the Appeal Brief filed on August 14,
2007, not the Response to Notification of Non-Compliant Appeal Brief filed
on October 9, 2007 (which add only a corrected Status of Claims section,
and a Summary of Claimed Subject Matter section).
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The Examiner’s conclusion of obviousness for claims 1-4, 13, and 27-
29 is based in part on the underlying finding of fact that Weiss discloses
bypassing a portion of the exhaust gas flow at a first energy level around the
first turbine to a nozzle means while the exhaust gas is still substantially near
the first energy level. Ans. 5. More specifically, the Examiner found that
Weiss discloses nozzle means (reversing device 13) positioned to receive
exhaust gas (from port 21) that is still substantially near the first energy
level. Ans. 5.
The Appellant argues that Weiss does not disclose a nozzle means
positioned to receive the bypassed flow of exhaust gas while the bypassed
exhaust gas is still substantially near the first energy level. App. Br. 7-9;
Reply Br. 3-4.
The issue before us is:
Has the Appellant shown the Examiner erred in finding that Weiss
discloses a nozzle means positioned to receive the bypassed flow of exhaust
gas while the bypassed exhaust gas is still substantially near the first energy
level?
The Examiner’s conclusion of obviousness for claim 33 is based in
part on the finding that Weiss discloses a nozzle means, valve 12 of the
reversing device 13, that accelerates the exhaust gas, and is positioned so
that the exhaust gas reaches the lower pressure stage turbine before
substantial dissipation of that acceleration. Ans. 5-6.
The Appellant argues that claim 33 requires the nozzle that accelerates
the exhaust gas flow must be located in the bypass channel, and Weiss’s
nozzle is not. App. Br. 9; Reply Br. 5.

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The issue before us is:
Has the Appellant shown the Examiner erred in finding that Weiss
discloses a nozzle that accelerates the exhaust gas flow located in the bypass
channel?
The Examiner’s conclusion of obviousness for claims 19, 20, 23 and
24 is based in part on the finding that Weiss discloses means for bypassing
exhaust flow without expansion of the bypassed exhaust flow before
delivery to the inlet of the second turbine, to preserve the bypassed exhaust
gas energy. Ans. 4-6, 7-9.
The Appellant argues that “Weiss does not show a means for
bypassing exhaust flow without expansion of the bypassed exhaust flow
before delivery to the inlet of the second turbine, to preserve the bypassed
exhaust gas energy.” App. Br. 11. More specifically, the Appellant argues
that in Weiss’s device the exhaust would expand (and lose energy): at
intervening valves 12 and 17, upon mixing with flow from connector 21, and
in the area of 22b and exhaust line 14. App. Br. 11; Reply Br. 5; Declaration
of David Haugen 2:¶3
The issue before us is:
Has the Appellant shown the Examiner erred in finding that Weiss
discloses means for bypassing exhaust flow without expansion of the
bypassed exhaust flow before delivery to the inlet of the second turbine, to
preserve the bypassed exhaust gas energy?

FINDINGS OF FACT
We find that the following enumerated facts are supported by at least
a preponderance of the evidence. Ethicon, Inc. v. Quigg, 849 F.2d 1422,
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1427 (Fed. Cir. 1988) (explaining the general evidentiary standard for
proceedings before the Office).
1. Weiss discloses a supercharged internal combustion engine
capable of single-stage or two-stage operation, comprised of: an
internal combustion engine 1, a high pressure stage 4, and a low
pressure stage 5. The high pressure stage is comprised of high
pressure turbine 6 that drives high pressure compressor 7. The low
pressure stage 5 is comprised of a low pressure turbine 8 that
drives low pressure compressor 9. Weiss, 2:1-2; 4:5-10; fig. 1.2
2. Two-stage operation occurs in the range of 40 to 50 percent of the
nominal revolutions per minute (rpm) of the internal combustion
engine 1. Exhaust gas exits the internal combustion engine 1
through exhaust branch 2, and enters reversing device 13 through
port 20a, where the horizontal position 25 of butterfly valve 12
directs the exhaust gas through port 20b to exhaust gas branch 3
and on to the high pressure turbine 6. From the high pressure
turbine 6, the exhaust gas returns to reversing device 13 at
connector 21, where butterfly valve 12 directs the flow to ports
22a, 22b. From this point, the exhaust gas passes through exhaust
gas lines 14 and 15, to the low pressure turbine 8. Weiss, 4:14-21;
6:10-22; figs. 1, 2.
3. Two-stage operation includes permitting a portion of the exhaust
gas to go from internal combustion engine 1 to the low pressure
turbine 8 without passing through the high pressure turbine 6.

2 Our citations to Weiss refer to the Official USPTO Translation of Weiss
(PTO 06-0558), translated by FLS, Inc., and dated November 2006.
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Relief valve 17 remains closed until the internal combustion
engine 1 reaches 40 percent of the nominal rpm (start of two-stage
operation), then opens, permitting a portion of exhaust gas from
exhaust gas branch 2 to pass through bypass line 16 to connector
23 of the reversing device 13. Reversing device 13 has butterfly
valve 12 in horizontal position 25, so that ports 22a and 22b are
open to each other, permitting exhaust gas from the high pressure
turbine 6 entering at connector 21 to mix with exhaust gas entering
from exhaust branch 2 at connector 23. The mixed exhaust gas
then exits reversing device 13 via ports 22a and 22b to exhaust gas
lines 14 and 15, and on to the low pressure turbine 8. Weiss, 5:11-
24; 6:10-22; figs 1, 2.
4. Single-stage operation occurs in the range of 50 to 60 percent of
the nominal rpm of internal combustion engine 1. At the start of
single-stage operation, relief valve 17 closes, and valve 12 pivots
90 degrees from the two-stage horizontal position 25 to a vertical
position. In this configuration, exhaust gas exits the internal
combustion engine 1 through dual exhaust branches 2 and 3, and
enters reversing device 13 at ports 20a and 20b, where valve 12
directs the exhaust gas through ports 22a and 22b to exhaust gas
lines 14 and 15, and on to the low pressure turbine 8. During
single-stage operation, the high pressure turbine 6 is completely
bypassed so that all the exhaust gas enthalpy is available to the low
pressure turbine 8. Weiss, 4:25 to 5:6, 5:22-23; 6:23-26; figs. 1, 2.
5. Weiss does not describe valve 12 as creating an increase or
decrease of the velocity of the exhaust gas during the pivoting
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movement from horizontal position 25 (two-stage operation) to the
vertical position (single-stage operation). Weiss, 6:23-26; passim;
figs. 1, 2.
6. Weiss does not disclose the period of time necessary for valve 12
to move from horizontal position 25 (two-stage operation) to the
vertical position (single-stage operation). Weiss, passim.
7. Weiss does not expressly disclose that relief valve 17, port 22b, or
exhaust gas line 14 either reduce or expand the cross-sectional
flow area. Weiss does not expressly disclose that relief valve 17,
port 22b, or exhaust gas line 14 create an increase or decrease in
the velocity of the exhaust gas. Weiss, passim.

PRINCIPLES OF LAW
“A claim is anticipated only if each and every element as set forth in
the claim is found, either expressly or inherently described, in a single prior
art reference.” Verdegaal Bros., Inc. v. Union Oil Co. of Cal., 814 F.2d 628,
631 (Fed. Cir. 1987).
“Section 103 forbids issuance of a patent when ‘the differences
between the subject matter sought to be patented and the prior art are such
that the subject matter as a whole would have been obvious at the time the
invention was made to a person having ordinary skill in the art to which said
subject matter pertains.’” KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 406
(2007). The question of obviousness is resolved on the basis of underlying
factual determinations including (1) the scope and content of the prior art,
(2) any differences between the claimed subject matter and the prior art,
(3) the level of skill in the art, and (4) where in evidence, so-called
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secondary considerations. Graham v. John Deere Co., 383 U.S. 1, 17-18
(1966). See also KSR, 550 U.S. at 407 (“While the sequence of these
questions might be reordered in any particular case, the [Graham] factors
continue to define the inquiry that controls.”)

ANALYSIS
Rejection of claims 14 and 32 under 35 U.S.C. § 102(b) as anticipated by
Weiss
Independent claim 14 and its dependent claim 32 contain the
limitation of “converting a portion of the exhaust energy of the bypassed
pressurized exhaust gas flow to kinetic energy…and utilizing the converted
kinetic energy in the bypassed exhaust gas flow to impart an increased
momentum to turbine blades of the turbine in the low pressure
turbocharger.” The Appellant’s Specification describes converting a portion
of the exhaust gas energy to kinetic energy by passing the exhaust gas
through a reduced cross-sectional area flow path (e.g. a nozzle), increasing
the velocity of the exhaust gas. Spec. 8:21-9:9. We construe claims 14 and
32 to require increasing the velocity of the exhaust gas to impart greater
momentum to the low pressure turbocharger.
Weiss does not support the Examiner’s finding that valve 12 of Weiss
increases the velocity of the exhaust gas flow by creating a reduced cross-
sectional flow area when pivoting 90 degrees from the two-stage position to
the one-stage position. Ans. 4, 13-15. Weiss discloses a supercharged
internal combustion engine capable of single-stage and two-stage operation
(Fact 1). Weiss discloses that valve 12 has a first horizontal position to
direct exhaust gas flow in two-stage operation, and a second vertical position
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to direct exhaust gas flow during single-stage operation (Facts 2-4). Even if
valve 12 creates a reduced cross-sectional area flow path while transitioning
from the first to the second position, that momentary reduced cross-sectional
area flow path does not necessitate the conclusion that valve 12 increases the
velocity of the exhaust gas. Weiss does not expressly disclose that valve 12
increases the velocity of the exhaust gas (Fact 5). As such, the Examiner’s
finding that a momentary reduced cross-sectional area flow path created as
the valve 12 passes from a first position to a second position results in
imparting increased momentum to the low pressure turbocharger is based on
speculation and is not supported by a preponderance of the evidence.
The Appellant has demonstrated the Examiner erred in the rejection of
claims 14 and 32.

Rejection of claims 1-4, 27-29, and 33 under 35 U.S.C. § 103(a) as
unpatentable over Weiss and either Hiemesch, Sumser, or Vogiatzis
Claims 1-4 and 27-29
Independent claims 1 and 27 each contain the requirement that a
portion of the exhaust gas at a first energy level bypasses the first turbine
and reaches a means for converting the exhaust gas energy to kinetic energy
(e.g. a nozzle), while the bypassed exhaust gas is still substantially near the
first energy level. The Appellant’s Specification defines the exhaust gas
leaving the combustion chamber as at a first energy level, and exhaust gas
that passes through a turbine as being expanded to a second, lower energy
level. Spec. 7:4-6; 8:1-3.
We agree with the Appellant that the Examiner incorrectly found that
Weiss discloses bypassing a portion of the exhaust gas at a first energy level
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around the first turbine to a nozzle means while the exhaust gas is still
substantially near the first energy level. App. Br. 7-9; Reply Br. 3-4. Weiss
discloses that during two-stage operation, exhaust gas passes through high
pressure turbine 6 and enters reversing device 13 at connector 21, where
butterfly valve 12 directs the flow to ports 22a and 22b (Fact 2). Contrary to
the Examiner’s finding (Ans. 5), the exhaust gas entering port 21 has
expanded through high pressure turbine 6 to a second, lower energy level,
and is no longer at the first energy level required by claims 1 and 27.
Based on this, the Appellant has shown the Examiner erred in the
rejection of claims 1 and 27. Further, the rejection of claims 2-4, 28, and 29
are also in error by virtue of their dependency from claims 1 and 27.
Claim 33
As the Appellant correctly points out, claim 33 requires the nozzle
that accelerates the exhaust gas flow to be “located in the bypass channel.”
App. Br. 9; Reply Br. 5. As we concluded in the analysis of claim 14, supra,
valve 12 of Weiss does not accelerate the exhaust gas flow. Thus, the
Examiner’s finding that valve 12 is a nozzle that accelerates exhaust gas
flow located in the bypass channel is incorrect. Ans. 5-6. The Appellant has
shown the Examiner erred in the rejection of claim 33.

Rejection of claim 13 under 35 U.S.C. § 103(a) as unpatentable over Weiss,
Hiemesch, and Kaneska
The Examiner’s conclusion of obviousness for claim 13 relies on the
erroneous finding of fact that Weiss discloses a bypass of exhaust gas that
enters reversing device 13 at port 21 while still at a first energy level. Ans.
6-7. As we concluded in the analysis of claim 1 supra, Weiss discloses that
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the exhaust gas entering port 21 has expanded through high pressure turbine
6 to a second, lower energy level, and is no longer at the claimed first energy
level. Further, the Examiner does not propose a modification that would
remedy this deficiency in Weiss. Ans. 6-7. As such, the Appellant has
demonstrated the Examiner erred in the rejection of claim 13.

Rejection of claims 19 and 20 under 35 U.S.C. § 103(a) as unpatentable
over Weiss and either Hiemesch, Sumser, or Vogiatzis and rejection of
claims 23 and 24 under 35 U.S.C. § 103(a) as unpatentable over Weiss,
Gladden, and either Hiemesch, Sumser, or Vogiatzis
Independent claim 19 and its dependent claim 20, and independent
claim 23 and its dependent claim 24 contain the limitation of means for
bypassing exhaust flow around the high pressure turbine to an inlet of the
second low pressure turbine without expansion of the bypassed exhaust flow
before delivery to the inlet of the second low pressure turbine, to preserve
the bypassed exhaust gas energy.
The Appellant’s assertion that relief valve 17, valve 12, port 22b,
exhaust line 14, and connector 21 would cause the exhaust gas to expand
and lose energy prior to reaching the inlet of the second low pressure turbine
is not supported by Weiss. App. Br. 11; Reply Br. 5, Haugen Decl. 2:¶3.
During single-stage operation, relief valve 17 is closed, and there is no flow
from connector 21 because the high pressure turbine is completely bypassed
(Fact 4). Given this, relief valve 17 and connector 21 could not cause
expansion of the exhaust gas. Exhaust gas does flow through the other
portions of the device that the Appellant alleges cause expansion (port 22b,
valve 12, and exhaust line 14). During single-stage operation, exhaust gas
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passes from exhaust gas branch 3 through port 20b, and is directed by valve
12 (in position 25) to port 22b, through exhaust gas line 14, and to the low
pressure turbine (Fact 4). Weiss does not expressly disclose that valve 12,
port 22b, or exhaust line 14 have an increased cross-sectional flow area, or
otherwise cause expansion of exhaust gas (Facts 5, 7). Further, directly
contrary to the Appellant’s assertion, Weiss expressly discloses that in this
process “all exhaust gas enthalpy is available to the low pressure turbine”
(Fact 4). The Appeal Brief, the Reply Brief, and the Declaration all fail to
address this disclosure by Weiss (App. Br. 10-11; Reply Br. 5; Haugen Decl.
2:¶3). Thus, we find that Weiss discloses bypassing exhaust flow to the inlet
of the low pressure turbine without expansion, and with the exhaust gas
energy preserved. The Appellant has failed to demonstrate the Examiner
erred in the rejections of claims 19, 20, 23, and 24.

CONCLUSIONS
The Appellant has shown the Examiner erred in finding that valve 12
of Weiss increases the velocity of the exhaust gas flow such that the system
of Weiss utilizes converted kinetic energy to impart increased momentum to
a low pressure turbocharger.
The Appellant has shown the Examiner erred in finding that Weiss
discloses a nozzle means positioned to receive the bypassed flow of exhaust
gas while the bypassed exhaust gas is still substantially near the first energy
level.
The Appellant has shown the Examiner erred in finding that Weiss
discloses a nozzle located in the bypass channel that accelerates the exhaust
gas flow.
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The Appellant has failed to show the Examiner erred in finding that
Weiss discloses means for bypassing exhaust flow without expansion of the
bypassed exhaust flow before delivery to the inlet of the second turbine, to
preserve the bypassed exhaust gas energy.

DECISION
We REVERSE the Examiner’s decision to reject claims 14 and 32
under 35 U.S.C. § 102(b).
We REVERSE the Examiner's decision to reject claims 1-4, 13, 27-
29, and 33 under 35 U.S.C. § 103(a).
We AFFIRM the Examiner's decision to reject claims 19, 20, 23 and
24 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. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv) (2007).

AFFIRMED-IN-PART

mls

DAVID READ
NATIONAL VEHICLE AND FUEL EMISSIONS LABORATORY
2565 PLYMOUTH ROAD
ANN ARBOR, MI 48105