Ex Parte Nau et al

Board of Patent Appeals and Interferences

Oct 28, 2009

10841284 (B.P.A.I. Oct. 28, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte MICHAEL NAU,
ANDREAS KUFFERATH and
TILO LANDENFELD
____________________

Appeal 2009-005865
Application 10/841,284
Technology Center 3700
____________________

Decided: October 28, 2009
____________________

Before: WILLIAM F. PATE, III, STEFAN STAICOVICI and
KEN B. BARRETT, Administrative Patent Judges.

PATE, III, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF CASE
Appellants appeal under 35 U.S.C. § 134 from a rejection of claims
2-7, 9-13 and 16-22. App. Br. 1. We have jurisdiction under 35 U.S.C.
§ 6(b).
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The claims are directed to a method for operating an internal
combustion engine using an electrically operated air compressor. Claim 3,
reproduced below, is illustrative of the claimed subject matter:

3. A method for operating an internal combustion engine using
an electrically operated air compressor in conjunction with the
internal combustion engine, the method comprising:
activating the electrically operated air compressor during
a starting process of the internal combustion engine to heat up
an exhaust-gas after-treatment device,
wherein the activation of the electrically operated air
compressor to heat up the exhaust-gas after-treatment device is
performed exclusively to increase an air mass flow supplied to
the internal combustion engine via an air feed, and wherein a
timing element having a predefined time constant is started
upon start-up of the internal combustion engine, and wherein
the timing element is checked to determine whether a time
period corresponding to the predefined time constant has
elapsed since the start-up of the internal combustion engine,
and wherein the electrically operated air compressor is activated
only if the time period corresponding to the predefined time
constant has elapsed since the start-up of the internal
combustion engine.

The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Baeuerle US 6,729,124 B2 May 4, 2004
Morinaga US 6,898,927 B2 May 31, 2005

Claims 2-7, 9-13 and 16-22 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Baeuerle and Morinaga. Ans. 3.

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ISSUE
Appellants argue claims 3-5 and 9-13 as a group. App. Br. 5-10. We
select claim 3 as the representative claim, and claims 4, 5 and 9-13 stand or
fall with claim 3. 37 C.F.R. § 41.37(c)(1)(vii)(2009). Appellants argue
claims 2, 6, 7 and 16-22 as a group. App. Br. 10-11. We select claim 6 as
the representative claim, and claims 2, 7 and 16-22 stand or fall with claim
6.
Regarding claim 3, Appellants contend that Baeuerle fails to activate
the electrically operated air compressor 20 to heat up an exhaust-gas after
treatment device. App. Br. 6-7; Reply Br. 3-6. Appellants also contend that
Morinaga fails to disclose operating the air compressor only when a
predefined time has elapsed since the start up of the internal combustion
engine. App. Br. 7-9; Reply Br. 6-7. In light of these contentions, we must
determine whether Appellants have established that the Examiner erred in
concluding that the subject matter of claim 3 would have been obvious to
one having ordinary skill in the art.
Regarding claim 6, Appellants contend that the since Morinaga only
takes action in response to the temperature of the catalytic converter,
Morinaga would not teach triggering the compressor as a function of the
heating power necessary for setting a temperature of the exhaust-gas
treatment device. App. Br. 11; Reply Br. 8. In light of this contention, we
must determine whether Appellants have established that the Examiner erred
in concluding that the subject matter of claim 6 would have been obvious to
one having ordinary skill in the art.

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FINDINGS OF FACT
1. The primary problem with which Baeuerle is concerned is torque
weakness during start-to-drive of turbocharged engines. This problem
results from the poor efficiency of the turbocharger during start-to-drive
which causes a weak charge pressure buildup. Col. 1, ll. 13-21.
2. Baeuerle provides an external ignition assist 23, such as a glow plug,
upstream of the turbine 10 of the exhaust-gas turbocharger (9, 10).
Baeuerle also provides an externally actuable ancillary charger 20, such
as an electrical compressor, in the intake manifold 7 of the engine. Col.
3, ll. 44-55.
3. In Baeuerle’s engine, fuel is supplied to a scavenging air-mass flow by
an after-injection. During valve overlapment, the scavenging air-mass
flows through the cylinder as a result of the activation of the compressor
20. The air-fuel mixture is ignited via the additional ignition aid 23 in
the exhaust gas system. This subsequent combustion leads to a
significant increase of the exhaust-gas temperature and therefore to an
increase of the useable enthalpy drop across the turbocharger turbine.
This results in improved efficiency of the turbocharger 9, 10 and
therefore an increase in the charge pressure. Col. 4, ll. 3-39.
4. Baeuerle recognizes that a further advantage of the described procedure
is the fact that the additional ignition aid in combination with secondary
air can be used for a more rapid heating of the catalytic converter to
operating temperatures. Col. 2, ll. 52-55.
5. Baeuerle fails to disclose providing a timing element and operating the
compressor 20 only if the timing element indicates that a predefined
time has elapsed since the start-up of the engine.
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6. In the seventh embodiment of Morinaga, depicted in figures 30-41, a
secondary air control device 60 supplies air to the exhaust pipe 24 to
combine with exhaust-gas components at a predetermined temperature
in order to result in an after burn. Col. 36, ll. 44-55.
7. Morinaga teaches that the after burn in the exhaust pipe 24 speeds an
operation to warm up the catalyst 25. The after burn is carried out by
supplying secondary air (via 60) to the exhaust pipe 24 and by
increasing the temperature of the air inside the exhaust pipe. Col. 37, ll.
25-33.
8. Morinaga teaches that the temperature of the exhaust gas in the exhaust
pipe 24 may be increased by delaying the ignition timing. Col. 37, ll.
33-35; col. 38, ll. 41-44.
9. Morinaga teaches that ignition timing will be delayed in order to
increase the temperature of the exhaust gas only after a predetermined
time of typically one second has lapsed since completion of the start of
the engine (step 701). Startup of the engine is determined to have been
completed when the revolution speed Ne of the engine 11 has exceeded
a criterion value. Col. 37, l. 64 – col. 38, l. 4; fig. 31.
10. Morinaga teaches that secondary air will only be introduced into the
exhaust after start of the engine 11 has been completed (step 721), when
the temperature of the exhaust reaches a predetermined value and when
the temperature of the catalyst is below a predetermined value. Again,
startup of the engine is determined to have been completed when the
revolution speed Ne of the engine 11 has exceeded a predetermined
value. Col. 39, ll. 24-27, 36-50; fig. 33.
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11. Morinaga teaches an electronic control unit (ECU) 30 which adjusts all
control parameters, including, among other things, the ignition-timing-
delaying in order to speed up a warming operation of the catalyst 25.
Col. 47, ll. 27-45. In the case where a first control sets these parameters
and a detected (via 55) temperature T of the catalyst 25 has not reached
a predetermined target temperature Ta, a second control is triggered to
adjust the control parameters, including increasing an ignition timing
delay, in order to increase the amount of heat supplied dissipated by the
exhaust gas. Col. 47, l. 45 - col. 48, l. 2; col. 52, ll. 43-45; figs. 43-44.
Morinaga recognizes that the heating of the catalyst to a predetermined
temperature is dependent upon the amount of heat supplied to the
catalyst, which is, in turn, dependent upon the heat dissipated by the
exhaust gas (equal to the temperature multiplied by the flow rate of the
exhaust gas). Col. 48, ll. 57-62.
12. The Specification provides that:
[t]he electric auxiliary air compressor 5 may be triggered as a
function of a power necessary for setting the predefined
operating temperature of exhaust-gas treatment device 10, 70.
The triggering is carried out or performed in such a way that
engine management 105 triggers electric motor 90 for setting a
higher speed when a greater heating power is necessary, and
engine management 105 triggers electric motor 90 for setting a
lower speed when the required heating power is less. When a
predefined quantity of heat has been delivered to exhaust-gas
treatment device 10, 70, then engine management 105 may also
deactivate the electric auxiliary air compressor again. Engine
management 105 recognizes the delivery of the predefined
quantity of heat to exhaust-gas treatment device 10, 70 from the
fact that, for example, the temperature measured by temperature

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sensor 65 has reached the predefined operating temperature of
exhaust-gas treatment device 10, 70.
Spec. 9:11-26.
PRINCIPLES OF LAW
The examiner bears the initial burden of factually supporting any
prima facie conclusion of obviousness. The key to supporting any prima
facie conclusion of obviousness under 35 U.S.C. § 103 is the clear
articulation of the reason(s) why the claimed invention would have been
obvious. The Court in KSR International Co. v. Teleflex Inc., 550 U.S. 398,
418 (2007) noted that the analysis supporting a rejection under 35 U.S.C.
§ 103 should be made explicit. The Federal Circuit has stated that
“rejections on obviousness grounds cannot be sustained by mere conclusory
statements; instead, there must be some articulated reasoning with some
rational underpinning to support the legal conclusion of obviousness.” In re
Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006), cited with approval in KSR, 550
U.S. at 418.
The combination of familiar elements according to known methods is
likely to be obvious when it does no more than yield predictable results.
KSR, 550 U.S. at 416. A prima facie conclusion of obviousness may be
supported by a showing that the claims are directed to a process, machine,
manufacture, or composition of matter already known in the prior art that is
altered by the mere substitution of one element for another known in the
field, and such modification yields a predictable result. See Id. (citing United
States v. Adams, 383 U.S. 39, 40 (1966)). The Court further stated that:
[I]f a technique has been used to improve one device, and a
person of ordinary skill in the art would recognize that it would
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improve similar devices in the same way, using the technique is
obvious unless its actual application is beyond his or her skill.
KSR, 550 U.S. at 417. When considering obviousness of a combination of
known elements, the operative question is thus “whether the improvement is
more than the predictable use of prior-art elements according to their
established functions.” Id.

ANALYSIS
Baeuerle discloses the structure employed to practice the method of
claims 3 and 6, including an ancillary charger in the form of an electrically
operated air compressor. Fact 2. Baeuerle’s primary goal, however, is to
increase the start-to-drive torque of the engine. Fact 1. Despite this primary
goal, Baeuerle recognizes that the described procedure to increase the charge
pressure by increasing the exhaust gas mass and enthalpy has the additional
benefit of more rapidly heating a catalytic converter to operating
temperatures. Facts 3 and 4. Baeuerle fails to disclose providing a timing
element and operating the compressor only if the timing element indicates
that a predefined time has elapsed since the start-up of the engine. Fact 5.
Morinaga teaches that a catalyst may be more rapidly heated to
operating temperatures by performing an after burn in the engine exhaust
pipe. Fact 7. The after burn is carried out by supplying secondary air to the
exhaust pipe and by increasing the temperature in the exhaust pipe by
delaying the ignition timing. Facts 6 and 8. Morinaga teaches that ignition
timing will be delayed in order to increase the temperature of the exhaust gas
only after a predetermined time of typically one second has lapsed since
completion of the start of the engine. Fact 9. Morinaga also teaches that
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secondary air will only be introduced into the exhaust after start of the
engine 11 has been completed, when the temperature of the exhaust reaches
a predetermined value and when the temperature of the catalyst is below a
predetermined value. Fact 10. Morinaga demonstrates that it was known in
the art to wait a predetermined amount of time after start-up before initiating
steps to more rapidly heat a catalytic converter to operating temperatures.
The subject matter of claim 3 involves no more than the combination
of the known techniques of Baeuerle and Morinaga in order to yield the
predictable result of more rapidly heating an exhaust gas treatment device,
such as a catalytic converter, after a successful startup of the engine, and
would have been obvious to one having ordinary skill in the art.
Appellants argue that it is solely the “additional ignition aid in
combination with secondary air” that Baeuerle recognizes can be used for a
more rapid heating of the catalytic converter to operating temperatures. App.
Br. 6-7, Reply Br. 3-6. We agree with the distinction between the secondary
air and the scavenging air mass and between the additional ignition aid and
the compressor noted by Appellants. However, we disagree with Appellants’
conclusion that it is solely the “additional ignition aid in combination with
secondary air” that Baeuerle recognizes can be used for a more rapid heating
of the catalytic converter to operating temperatures. Baeuerle states that
more rapid heating of the catalytic converter is an advantage of “the
described procedure”—which includes operation of the compressor.
Baeuerle’s compressor works in conjunction with the additional ignition aid
to increase the exhaust gas temperature, and it is the increase in temperature
that is responsible for the added benefit of heating the catalytic converter.
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Facts 2-4. One of ordinary skill in the art would have understood that the
compressor can cooperate with the additional ignition aid and secondary air
to provide a temperature increase to heat the catalytic converter. Thus,
Appellants’ argument that Baeuerle would not have taught activating the
compressor “to heat up an exhaust-gas after-treatment device” is not
persuasive.
Initially, regarding Morinaga, it is noted that Appellants have
withdrawn their argument that modification of Baeuerle with the teachings
of Morinaga would render Baeuerle inoperable for its intended purpose,
because Morinaga’s secondary air pump takes air away from the intake in
contrast to Baeuerle’s compressor which supplies air thereto. App. Br. 7-8;
Reply Br. 6. Baeuerle clearly suggests combination of his device with
devices utilizing secondary air. See Fact 4.
Appellants correctly note that the delay relating to starting the
secondary air pump after ignition relates to the operating speed Ne of the
motor. App. Br. 9; Reply Br. 7; fact 10. However, the secondary air pump is
only operated when the temperature of the exhaust reaches a predetermined
value. Fact 10. The temperature of the exhaust may be elevated by executing
a control to delay ignition timing. Fact 9. Appellants recognize that a one
second delay from startup is a prerequisite for executing the ignition-timing-
delaying control. Reply Br. 7; fact 9. Thus, if the exhaust temperature is
below a certain value, such that it requires heating by the ignition-timing-
delaying control, operation of the secondary air control will be dependent
upon operation of the ignition-timing-delaying control. Contra Reply Br. 7.
In any case, while it may be used in conjunction with the secondary air,
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Morinaga discloses that the ignition-timing-delaying control itself functions
to speed heating the exhaust which in turn heats the catalytic converter. Fact
9. Even though Morinaga uses a mechanism different from Baeuerle’s
compressor and glow plug to achieve this more rapid heating, one of
ordinary skill in the art would have understood that Morinaga’s teaching of
waiting a predetermined amount of time after start-up, before initiating steps
to more rapidly heat a catalytic converter to operating temperatures, would
be applicable to Baeuerle’s compressor and glow plug arrangement as well.
Combining the teachings of references does not mandate combination of
their specific structures. In re Nievelt, 482 F.2d 965, 968 (CCPA 1973).
Nonobviousness cannot be established by attacking the references
individually when the rejection is predicated upon a combination of prior art
disclosures. See In re Merck & Co. Inc., 800 F.2d 1091, 1097 (Fed. Cir.
1986). For these reasons, Appellants have not established that the
combination of Baeuerle and Morinaga would not have rendered obvious
operating the air compressor only when a predefined time has elapsed since
the start up of the internal combustion engine.
Regarding claim 6, Morinaga demonstrates that it is known in the art
to trigger the operation of an exhaust gas heating procedure, such as
delaying the ignition timing, as a function of the heat necessary for heating a
catalyst to a predetermined temperature. Fact 11. Applying Morinaga’s
technique of triggering the operation of an exhaust gas heating procedure to
the compressor of Baeuerle amounts to applying a known technique to a
known device in order to yield the predictable result of supplying adequate
heat to a catalyst in order to heat it to its target temperature and would have
been obvious to one having ordinary skill in the art.
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Appellants note that QQSUM is calculated to diagnose whether
enough heat will be available for heating the catalytic converter to the proper
temperature and that calculation does not directly lead to any action.
Morinaga however recognizes that triggering the operation of an exhaust gas
heating procedure should be performed when insufficient heat has been
provided to the catalytic converter. Fact 11. That Morinaga uses a
temperature sensor to determine that such a change is required does establish
that the change is not a function of the heating power necessary to heat the
catalytic converter. App. Br. 11; Reply Br. 8. Similar to Appellants’
preferred embodiment, Morinaga recognizes that the sensed temperature
directly relates to the necessary heating power. See Facts 11 and 12. Thus,
Appellants have not established that the combination of Baeuerle and
Morinaga would not have rendered obvious triggering the compressor as a
function of the heating power necessary for setting a temperature of the
exhaust-gas treatment device.

CONCLUSION OF LAW
On the record before us, Appellants have not established that the
Examiner erred in concluding that the subject matter of claims 3 and 6
would have been obvious to one having ordinary skill in the art.

DECISION
For the above reasons, the Examiner’s rejection of claims 2-7, 9-13
and 16-22 under 35 U.S.C. § 103(a) as being unpatentable over Baeuerle and
Morinaga is affirmed.
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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

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