Ex Parte Kennie et al

Patent Trial and Appeal Board

Feb 16, 2016

12132685 (P.T.A.B. Feb. 16, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/132,685 06/04/2008
24938 7590 02/18/2016
FCA US LLC
CIMS 483-02-19
800 CHRYSLER DR EAST
AUBURN HILLS, MI 48326-2757
FIRST NAMED INVENTOR
Gerald Lee Kennie
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.
707883US1 8224
EXAMINER
LEON JR, JORGE LUIS
ART UNIT PAPER NUMBER
3748
NOTIFICATION DATE DELIVERY MODE
02/18/2016 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):
chris.davenport@fcagroup.com
michelle.madak@fcagroup.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte GERALD L. KENNIE, KEVIN S. FREEMAN,
and JAMES J. DALEY
Appeal2013-000381
Application 12/132,685 1
Technology Center 3700
Before JENNIFER D. BAHR, LEE L. STEPINA, and
FREDERICK C. LANEY, Administrative Patent Judges.
LANEY, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Gerald L. Kennie et al (Appellants) appeal under 35 U.S.C. § 134(a)
from the Examiner's Final decision rejecting claims 1-10. We have
jurisdiction over this appeal under 35 U.S.C. § 6(b ).
SUMMARY OF DECISION
We REVERSE.
According to Appellant, the real party in interest is Chrysler Group
LLC. Appeal Br. 2 (filed May 8, 2012).
Appeal2013-000381
Application 12/132,685
INVENTION
Appellant's invention relates "generally to anti-pollution treatment of
exhaust gases of internal combustion engines." Spec. 1 i-f 1.
Claims 1 and 10 are independent claims. Claim 1 is representative of
the claimed invention and reads as follows:
1. A method of estimating temperature of a catalyst
associated with a cylinder bank of a multi-displacement internal
combustion engine having multiple cylinder banks associated
with multiple catalysts, comprising:
setting a temperature estimate of the catalysts associated
with the multiple cylinder banks substantially equal to a base
model temperature;
determining deactivation of a cylinder bank of the
multiple cylinder banks;
identifying a catalyst cooldown correction for the catalyst
associated with the deactivated cylinder bank from a catalyst
cooldown model including time elapsed since deactivation of
the cylinder bank; and
applying the catalyst cooldown correction to the
temperature estimate of the catalyst associated \'l1ith the
deactivated cylinder bank to update the temperature estimate of
the catalyst,
wherein determining deactivation of the cylinder bank
includes identifying that the cylinder bank has been deactivated
while a different cylinder bank is still operating in accordance
with multi-displacement operation.
REJECTION2
The Examiner rejected claims 1-10 under 35 U.S.C. § 103(a) as
unpatentable over Glugla (US 2002/0116917 Al, pub. Aug. 29, 2002) and
Cullen (US 5,956,941, iss. Sept. 28, 1999).
2 The rejection of claims 1-9 under 35 U.S.C. § 112, first paragraph, has
been withdrawn. Adv. Act. 1, Ans. 9.
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Application 12/132,685
ANALYSIS
Determining the subject matter of claims 1-10 obvious in this case,
the Examiner marched through each element of the claims identifying the
element Glugla discloses and, when missing from Glugla, identifying the
element Cullen discloses. See Final Act. 3-9. Rather than identifying the
facts and reasons for the combinations within the analysis for each claim, the
Examiner simply provides an omnibus conclusion at the end. In the last
paragraph of the analysis, the Examiner states:
Thus, it would have been obvious to one having ordinary skill
in the art at the time of the invention to have applied the
teaching of Cullen to estimate the temperature of a catalyst
based on temperature models, ambient temperature, and elapsed
time to each bank of the multi-displacement engine with
catalyst warmup correction of Glugla since it would reduce
feedgas emissions and provide more efficient operation of the
engine and/or associated emission control devices as taught by
Glugla (paragraph [009]).
Id. at 9. The Examiner provides little else to further evidence and explain
why a person of ordinary skill in the field would have been prompted to
make those combinations. As such, our consideration of whether the
Examiner's reason for modifying Glagla and Cullen is proper applies
equally to claims 1-10.
Not surprisingly, Appellants challenge the Examiner's analysis as
succumbing to hindsight. Appeal Br. 11. Appellants argue, as evidence of
hindsight, the Examiner's analysis fails to properly identify facts from the
prior art to establish a reason, with a rational underpinning, demonstrating a
person of skill in the art would have made the same selections as the
Examiner from Glugla and Cullen and combine them in the same way the
claimed new invention does. Id. Pointing to the Examiner's omnibus
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Application 12/132,685
reasoning, Appellants identify that it "simply restates the desired advantages
presented by Glugla." Reply Br. 5. Noting "Glugla is designed to achieve
these results on its own," Appellants argue the Examiner fails to explain any
known reason why a skilled artisan would further modify the Glugla
methods and systems to accomplish the same stated results. Id. As a result,
according to the Appellants, a proper rationale to support a finding of
obviousness has not been established. Id.
We are persuaded the Examiner did not establish properly a reason
that would have prompted a person of ordinary skill in the art to combine the
steps of Glugla and Cullen in the way the claimed new invention does.
To reach a non-hindsight driven conclusion as to whether a
person having ordinary skill in the art at the time of the invention
would have viewed the subject matter as a whole to have been
obvious in view of multiple references, the [Examiner] must
provide some rationale, articulation, or reasoned basis to explain
why the conclusion of obviousness is correct.
Irz re Kahn; 441 F.3d 977; 987 (Fed. Cir. 2006). Such requirements are
important to help ensure predictable patentability determinations. Id. Broad
conclusory statements standing alone will not suffice as "evidence" of
knowledge leading to a particular combination. In re Kotzab, 217 F.3d
1365, 1370 (Fed. Cir. 2000).
While we disagree with Appellants that a skilled artisan would not
have combined Cullen with Glugla, we do agree the Examiner's analysis
fails to properly support why Cullen and Glugla would be further modified
by an ordinarily skilled artisan to reach the inventions claimed by
Appellants. We disagree with Appellants that a person of skill would not
combine Glugla and Cullen because Glugla expressly incorporates Cullen,
U.S. Pat. No. 5,956,941, as disclosing a representative example of a method
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Appeal2013-000381
Application 12/132,685
for determining a base model temperature. Glugla if 24 ("A representative
temperature model is described in U.S. Pat. No. 5,956,941, for example.").
Nevertheless, as explained more fully below, that fact also undermines
completely the single sentence omnibus conclusion the Examiner offers to
support the various modifications of Glugla and Cullen, which are necessary
to arrive at the claimed methods.
The claimed inventions are directed to "estimating temperature of a
catalyst associated with a cylinder bank of a multi-displacement internal
combustion engine having multiple cylinder banks associated with multiple
catalysts." Appeal Br. 17, 19 (Claim App. Claims 1, 10). Depending on the
configuration and design of the multi-displacement system ("MDS") the
base model temperature may be used to accurately reflect an estimated
temperature for the catalysts associated with each of the multiple cylinder
banks. Spec. if 21. "For example, in the case of a V8 MDS engine, an equal
amount of cylinders per bank are deactivated to provide overall harmonic
balance between the banks." Id. "If both banks are each in communication
with downstream catalysts and catalytic converters, catalyst temperatures for
both banks remain relatively equal for each bank due to substantially equal
exhaust gas enthalpy." Id. As a result, a base model temperature using a
standard catalyst temperature model can accurately determine the catalyst
temperatures for each catalyst associated with the respective cylinder banks.
Id.
Appellants note a problem occurs, however, with some MDS engines
in which an entire cylinder bank is deactivated, while the other cylinder
banks remain active. For example, "in the case of a V6 MDS engine, one
entire bank is deactivated for harmonic balance and, thus, temperatures of
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Appeal2013-000381
Application 12/132,685
downstream catalysts of the respective banks do not remain relatively equal
due to unequal exhaust gas enthalpy." Id. at i-f 22. The catalyst temperature
for the deactivated bank will ramp down while inactive and, likewise, it will
experience a ramp up in temperature when reactivated. Id. "If the standard
catalysts temperature averaging model [i.e., the base model temperature] is
used to determine the temperatures of the catalysts associated with both
banks while in MDS mode, the model will become inherently flawed due to
an averaging nature of the model." Id.
The claimed solution to the above problem is a method described in
claims 1 and 10. Generally, the solution of those claims is for a method that:
(1) sets a temperature estimate of the catalysts associated with the multiple
cylinder banks equal to a base model temperature; (2) determines which
cylinder bank of the multiple cylinder banks has been deactivated; (3)
identifies a cooldown correction for the catalyst associated with the
deactivated cylinder bank from a cooldown model including time elapsed
since deactivation of the cylinder bank; (4) applies the catalyst cooldown
correction to the temperature estimate of the catalyst associated with the
deactivated cylinder bank to update the temperature estimate of the catalyst. 3
See Appeal Br. 16, 19 (Claim App. Claims 1, 10). Put another way, the
solution is to begin with a presumption that each catalyst associated with a
3 The steps identified here are common between the methods of claims 1 and
10. See Appeal Br. 16, 19 (Claim App. Claims 1, 10). We recognize that
there are additional steps to the method of claim 2-10. However, it is not
necessary for us to address or include those steps. The Examiner's
obviousness conclusion does not make any specific link between the reason
for modifying the references and any particular claim element. Therefore,
our analysis regarding the common steps applies equally to the additional
steps of claims 2-10.
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Application 12/132,685
cylinder bank has a temperature equal to the base model temperature and,
once a deactivated cylinder bank is detected, to make corrections to the
originally estimated value, which will more accurately reflect the conditions
associated with the relevant catalyst. The result is an estimated temperature
for the catalyst associated with each cylinder bank that is more accurate and
representative of the actual temperature throughout operating conditions.
See Spec. i-fi-1 23-24, Fig. 3.
The Examiner concludes that Appellants' solution would have been
an obvious modification of the prior art because of the advantages Glugla
describes as arising from the methods and systems disclosed therein. Final
Act. 9 (citing Glugla i19). Glagla specifically states, "[t]he present invention
controls the engine and/or the sensor heater to maintain a minimum desired
operating temperature to facilitate closed-loop control of the air/fuel ratio
which generally reduces feedgas emissions and provides more efficient
operation of the engine and/or associated emission control devices." Glugla
i1 9. In the Answer, the Examiner explains the various modifications of
Glugla and Cullen would have been obvious "since controlling the engine to
maintain a minimum desired operating temperature reduces feedgas
emissions and provide more efficient operation of the engine and/ or
associated emission control devices." Ans. 13 (citing Glugla i19). We note,
however, Glugla teaches that "closed-loop control of the air/fuel ratio" is
what leads to reducing feedgas emissions and provides more efficient
operation of the engine and/or associated emission control devices.
Maintaining a minimum desired operating temperature is only described as
facilitating the closed-loop control of the air/fuel ratio.
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Application 12/132,685
Regardless, no link, explicit or implicit, between those desired
advantages and the specific modifications of Glugla and Cullen is provided
by the Examiner. The Examiner cites paragraph 24 of Glugla as disclosing
"[ s Jetting a temperature estimate of the catalysts substantially equal to a base
model temperature." Final Act. 3. As we noted above, that paragraph of
Glugla actually discloses Cullen as providing an example of a model for
establishing a base temperature. Glugla i-f 24 ("A representative temperature
model is described in U.S. Pat. No. 5,956,941 [i.e., Cullen], for example.").
A base model temperature is a standard catalysts temperature averaging
model and, as such, it estimates the temperature of a catalyst based on
information associated with the operation of the engine as a whole. Spec.
i-fi-121, 22. Appellants do not dispute "Cullen is related to the operation of an
entire engine" and that the temperature model of Cullen provides a
temperature average for a catalyst associated with the whole engine. Reply
Br. 3, 6. As a result, on this record, there appears to be no dispute that
Cullen discloses a base temperature model, which may be used to define a
temperature estimate for the catalysts associated with the multiple cylinder
banks, as required by the first step in claims 1 and 10.
The question, therefore, becomes why would a person of skill in the
art at the time of the invention further modify the temperature model of
Cullen to include the additional corrections that claims 1 and 10 require for
the catalyst associated with the deactivated/reactivated cylinder bank in an
MDS system. The Examiner does not suggest or identify any evidence that
there were known problems with relying on a base model temperature, such
as the one disclosed by Cullen, to establish the temperature of a catalyst
associated with a deactivated/reactivated cylinder bank in an MDS system,
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Application 12/132,685
as disclosed by the Appellants. To the contrary, if anything, Glugla suggests
it is appropriate to use the Cullen base model temperature, as is, to estimate
the catalyst temperatures in an MDS system. Glugla i-f 24.
The Examiner's naked assertion that controlling the engine to
maintain a minimum desired operating temperature provides a reason to
modify the Cullen temperature model as claimed has no rational basis.
Glugla expressly represents accomplishing the described advantages by
maintaining a minimum operating temperature without actually any
modification to the Cullen temperature model. Moreover, the Examiner
does not articulate why a skilled artisan would have known to modify the
temperature model of Cullen to include the claimed steps to better maintain
a minimum operating temperature. In fact, no evidence has been identified
that the claimed steps do cause a minimum operating temperature to be
maintained. The Examiner does not articulate a link, with supporting facts,
establishing a skilled artisan would recognize the steps of determining the
deactivation/activation of a cylinder bank in an MDS system, identifying
temperature corrections for the catalyst associated cylinder bank, and
applying those corrections to the base model temperature set for that catalyst
as an available option for modifying the Cullen temperature model to
achieve the advantages recited by Glugla. We find the Examiner's
obviousness conclusion is simply a broad conclusory statement, which
standing alone will not suffice as "evidence" of knowledge leading to a
particular combination. In re Kotzab, 217 F.3d at 1370.
Ultimately, we agree with Appellants that Glugla, when viewed in its
entirety, discloses achieving the recited results using the methods and
apparatuses described. Notably, Glugla does not suggest a need to further
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Application 12/132,685
refine the method for estimating the temperatures of each catalyst associated
with the respective cylinder banks in an MDS system and the Examiner has
not articulated a reason with a rational basis to show why a person of
ordinary skill in the art at the time of the invention would have modified the
Glugla design, incorporating the Cullen temperature model, further and in
the manner claimed. Therefore, we do not sustain the Examiner's rejection
of claims 1-10.
SUMMARY
The Examiner's decision to reject claims 1-10 is reversed.
REVERSED
msc
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