Ex Parte Paterson et alDownload PDFPatent Trial and Appeal BoardOct 30, 201812497219 (P.T.A.B. Oct. 30, 2018) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 12/497,219 07/02/2009 53609 7590 11/01/2018 REINHART BOERNER VAN DEUREN P.C. 2215 PERRYGREEN WAY ROCKFORD, IL 61107 FIRST NAMED INVENTOR Clark Paterson 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. 506907 6021 EXAMINER LAURENZI, MARK A ART UNIT PAPER NUMBER 3748 NOTIFICATION DATE DELIVERY MODE 11/01/2018 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): RockMail@reinhartlaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte CLARK PATERSON, ED VAN DYNE, MARK R. WOOLSTON, and GREGORY A. MOLENAAR Appeal2018-000629 Application 12/497 ,219 1 Technology Center 3700 Before LINDA E. HORNER, BRETT C. MARTIN, and RICHARD H. MARSCHALL, Administrative Patent Judges. HORNER, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants seek our review under 35 U.S.C. § 134(a) of the Examiner's rejections of claims 2-12 and 14-26 under 35 U.S.C. § 103(a). Non-Final Office Action (August 31, 2016) ("Non-Final Act."). We have jurisdiction under 35 U.S.C. § 6(b). 1 Appellants identify Woodward, Inc. as the real party in interest. Appeal Brief (January 23, 2017) ("Appeal Br."), at 2. Appeal2018-000629 Application 12/497 ,219 The Examiner rejected the claims as unpatentable over two combinations of prior art. Appellants contest the first ground of rejection arguing that the Examiner erred in certain findings as to the scope and content of the prior art and provided insufficient reasoning for the proposed combination. Appellants contest the second ground of rejection arguing that the Examiner failed to provide sufficient evidence to support the prior art combination. We agree with the Examiner's findings about the disclosures of the prior art, and we find that the Examiner supported the proposed modifications of the prior art with adequate evidence and reasoning. Thus, we AFFIRM. CLAIMED SUBJECT MATTER The claimed subject matter relates to "a system and method for determining soot and ash accumulation in a [ diesel particulate filter]." Specification (July 2, 2009) ("Spec."), ,r 1. Claims 2, 5, 9, 12, 14, 16, 19, and 20 are the independent claims. Claims 2 and 5 illustrate the subject matter on appeal and are reproduced below with the disputed claim language shown in italics for emphasis. 2. A method of detecting conditions of a diesel particulate filter (DPF) used in an exhaust system of a diesel engine, the exhaust system including a heat addition device for initiating a regeneration of the DPF, the heat addition device being controlled by a controller programmed with a regeneration algorithm that determines when to initiate the regeneration process, at least one sensor is coupled to the controller for monitoring input characteristics of exhaust entering the DPF including at least one temperature sensor for monitoring an input temperature of the exhaust entering the DPF and at least one sensor for monitoring an output temperature of the exhaust exiting the DPF, the method comprising the steps of: 2 Appeal2018-000629 Application 12/497 ,219 determining an estimated thermal exit temperature profile of the exhaust exiting the DPF based at least in part on the input characteristics of the exhaust entering the DPF; measuring the output temperature of the exhaust exiting the DPF to determine an actual thermal exit temperature profile of exhaust exiting the DPF; comparing the estimated thermal exit temperature profile to the actual thermal exit temperature profile to determine a difference therebetween; determining the condition of the DPF by analyzing the difference; initiating a regeneration of the DPF; and wherein the step of analyzing comprises the steps of: integrating the difference between the estimated thermal exit temperature profile and the actual thermal exit temperature profile to determine an amount of soot burned during regeneration; and adjusting an initiation of a subsequent regeneration based on the amount of soot burned during the regeneration relative to a predicted amount of soot burned during the regeneration. 5. A method of detecting conditions of a diesel particulate filter (DPF) used in an exhaust system of a diesel engine, the exhaust system including a heat addition device for initiating a regeneration of the DPF, the heat addition device being controlled by a controller programmed with a regeneration algorithm that determines when to initiate the regeneration process, at least one sensor is coupled to the controller for monitoring input characteristics of exhaust entering the DPF including at least one temperature sensor for monitoring an input temperature of the exhaust entering the DPF and at least one sensor for monitoring an output temperature of the exhaust exiting the DPF, the method comprising the steps of: 3 Appeal2018-000629 Application 12/497 ,219 determining estimated thermal exit temperature data of the exhaust exiting the DPF based at least in part on the input characteristics of the exhaust entering the DPF; measuring the output temperature data of the exhaust exiting the DPF to determine actual thermal exit temperature data of exhaust exiting the DPF; comparing the estimated thermal exit temperature data to the actual thermal exit temperature data, and determining a difference therebetween; determining the condition of the DPF by analyzing the difference; initiating an enhanced regeneration of the DPF to establish a baseline clean condition of the DPF; after completion of the enhanced regeneration, applying a heat pulse to the DPF, the heat pulse comprising a temperature increase followed by a temperature decrease; determining the estimated thermal exit temperature data of the exhaust exiting the DPF based at least in part on the input temperature of the exhaust entering the DPF during the heat pulse; measuring the output temperature of the exhaust exiting the DPF during the heat pulse to determine actual thermal exit temperature data of the exhaust exiting the DPF during the heat pulse; comparing the estimated thermal exit temperature data during the heat pulse to the actual thermal exit temperature data during the heat pulse, and determining a calibration difference therebetween; and calibrating the step of determining estimated thermal exit temperature data of exhaust exiting the DPF during a subsequent process based on the calibration difference. Appeal Br. 26-28 (Claims Appendix). 4 Appeal2018-000629 Application 12/497 ,219 Schonauer Singh He EVIDENCE US 6,432,168 B2 US 2008/0034738 Al US 8,443,589 B2 REJECTIONS Aug. 13, 2002 Feb. 14,2008 May 21, 2013 The Non-Final Office Action includes the following rejections2 : 1. Claims 2--4, 7, 8, 14, 15, 17, 18, and 23 are rejected under 35 U.S.C. § I03(a) as unpatentable over Singh and Schonauer. 2. Claims 5, 6, 9-12, 16, 19-22, and 24-26 are rejected under 35 U.S.C. § I03(a) as unpatentable over Singh and He. ANALYSIS Unpatentability over Singh and Schonauer The Examiner found that Singh discloses the method of claim 2 including comparing an estimated temperature rise across a soot filter to an actual temperature rise across the soot filter to determine the amount of soot burned. Non-Final Act. 7-8. The Examiner found that Singh does not explicitly disclose determining an estimated thermal exit temperature profile and an actual thermal exit temperature profile and integrating the difference between these profiles to determine the amount of soot burned during regeneration. Id. at 8-9. The Examiner found Schonauer teaches that integrating a difference between estimated and actual thermal profiles to determine the amount of soot burned is an alternative to Singh's technique. Id. at 9. The Examiner determined that it would have been obvious to one of 2 The Examiner also rejected claims 2-6, 9-11, 14-16, and 19-22 under 35 U.S.C. § 101 as directed to patent ineligible subject matter. Non-Final Act. 5. The Examiner subsequently withdrew this rejection. Examiner's Answer (August 30, 2017), at 2. 5 Appeal2018-000629 Application 12/497 ,219 ordinary skill in the art to use Schonauer's art-recognized equivalent integration technique in place of Singh's technique for determining the amount of soot burned. Id. Appellants present four arguments alleging error in the rejection of the claims subject to the first ground of rejection. 3 First, Appellants argue that Singh teaches away from the integration method disclosed in Schonauer. Appeal Br. 19--21 (citing Singh ,r,r 9, 13). Singh does not teach away. Paragraph 9 of Singh teaches that measuring differential pressure across a diesel particulate filter to estimate the amount of particulate matter accumulated in the filter has drawbacks. Singh ,r 9. Singh explains that the differential pressure technique does not account for certain variables, such as variations in engine operating conditions, and it integrates errors over time and deviates from real soot loading conditions. Id. Singh again discourages the use of differential pressure sensors in applications that spend extended periods at low flows, because the sensors require significant exhaust flow rates to be reliable. Id. ,r 13. Singh prefers instead a mixed sensor and model-based approach, even though the mixed approach degrades over long periods without any direct soot measurements. Id. Singh does not discourage the use of a technique based on temperature differences across a filter during regeneration and using an integration technique to estimate the amount of soot burned during regeneration, as claimed. Thus, we do not 3 Appellants argue the claims subject to the first ground of rejection as a group. Appeal Br. 19-23. We select independent claim 2 as representative of the group. The remaining claims subject to the first ground stand or fall with claim 2. See 37 C.F.R. § 4I.37(c)(l)(iv). 6 Appeal2018-000629 Application 12/497 ,219 find error in the Examiner's proposed modification of Singh with the integration technique of Schonauer. Second, Appellants argue that the Examiner improperly relied on paragraph 7 5 of Singh to teach a temperature measurement, rise, or comparison of the filter temperature. Appeal Br. 21. Appellants also argue that the combination of Singh and Schonauer does not teach determining an estimated thermal exit temperature rise of the exhaust exiting the filter based on characteristics of the exhaust entering the filter or temperature of the fluid entering the filter. Id. In the Non-Final Action, the Examiner found that paragraphs 78 through 79 of Singh disclose comparing an estimated temperature rise across the filter to the actual temperature rise across the filter to determine an amount of soot burned. Non-Final Act. 8. We find no error in this reading of Singh. Singh describes soot verification module 226 observes the temperature rise across soot filter 126 and compares the observed temperature rise to an expected temperature rise. Singh ,r 78. Singh describes estimating the expected temperature rise from the rate of temperature generation within the soot filter, the exhaust flow, and the temperature of the exhaust flow upstream of the soot filter. Id. Thus, we understand Singh's estimated temperature rise across the filter is based, at least in part, on the temperature of the exhaust entering the filter. Singh teaches that soot verification module 226 is important because few opportunities may exist to make direct measurements of soot in soot filter 126. Id. ,r 81. Singh describes that a higher than expected observed temperature rise may indicate more soot on soot filter 126 than estimated, and a lower than expected observed temperature rise may indicate less soot 7 Appeal2018-000629 Application 12/497 ,219 on soot filter 126 than estimated. Id. Singh teaches increasing or decreasing the frequency of regeneration of the filter according to the results from the soot verification module. Id. In sum, Singh teaches analyzing the difference between the actual temperature rise across the filter and the expected temperature rise across the filter to determine the amount of soot burned in the soot filter and adjusting subsequent regeneration accordingly. Thus, the Examiner did not err in the findings as to the scope and content of Singh. Third, Appellants challenge the Examiner's articulated reason for the combination of Singh and Schonauer. Appellants argue that Singh's soot verification module 226 determines the amount of soot burned during regeneration, and, thus, a person having ordinary skill in the art would have had no reason to seek out other teachings to determine this amount. Appeal Br. 22 ( citing Ex parte Rinkevich, Appeal 2007-1317 (BP AI May 29, 2007) ( non-precedential)). The Examiner explained that the claimed integration of the difference between the estimated and actual thermal exit temperature profiles to determine the amount of soot burned during regeneration is not a patentable distinction over the prior art in light of Schonauer' s teaching that the claimed integration technique was a known alternative method to the method disclosed in Singh for determining soot loading. Ans. 3 ( citing Schonauer, col. 6, 11. 46-65). Appellants respond that if the methods in Singh and Schonauer are equivalent, then no motivation or advantage comes from substituting Singh's technique with Schonauer's technique. Reply Brief (October 24, 2017), at 15. We find no error in the Examiner's determination of obviousness based on the simple substitution of Singh's method of determining the 8 Appeal2018-000629 Application 12/497 ,219 amount of soot burned during regeneration for another method of determining the same parameter known in the field, where the combination yields a predictable result. See KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007) ("[W]hen a patent claims a structure already known in the prior art that is altered by the mere substitution of one element for another known in the field, the combination must do more than yield a predictable result."). Fourth, Appellants argue that Schonauer does not teach integrating the difference between the estimated thermal exit temperature profile and the actual thermal exit temperature profile to determine an amount of soot burned during regeneration because Schonauer does not teach using curves 1 and 2 of Figure 5 with an integration function. Appeal Br. 23. The Examiner relies Schonauer's discussion of Figure 5 in columns 6 and 7. Non-Final Act. 9; Ans. 3-4. We find no error in the Examiner's reading of Schonauer. Figure 5 of Schonauer depicts reference curve 1, which illustrates the temperature curve of the molded element without soot loading, and curve 2, which illustrates the temperature progression of the molded element with soot loading. Schonauer, col. 6, 11. 43-53. Schonauer describes, "Due to the combustion of the soot, higher temperatures are reached in curve 2 than in curve 1." Id. at col. 6, 11. 53-55. Schonauer teaches using the difference between the maximum temperatures Tl and T2 of curves 1 and 2, respectively, to calculate the amount of soot on the molded element. Id. at col. 6, 11. 55-57. Schonauer states, "Of course, for an average technician, instead of such a mathematical evaluation of the curves as to their slope, an integral formation or an evaluation over time is also possible." Id. at col. 6, 11. 62-65. We understand this sentence to provide two alternatives to 9 Appeal2018-000629 Application 12/497 ,219 evaluating the slope of the curves, i.e., either "integral formation" or "an evaluation over time." We agree with the Examiner's understanding of this sentence of Schonauer to teach that one having ordinary skill in the art could use the difference between the integrations of curves 1 and 2, in place of the differences between the maximum temperatures of curves 1 and 2 to determine the amount of soot combusted. As the Examiner explained, Schonauer does not describe how to perform an integration of each curve because an average technician would know how to perform this technique. Ans. 4. By contrast, an average technician may not necessarily know what Schonauer means by the second alternative technique, i.e., "an evaluation over time." Thus, Schonauer provides an example of this technique. Schonauer, col. 6, 1. 65 - col. 7, 1. 12 (describing a method that analyzes how long a soot sensor has a temperature T above a temperature Tx and calculates a difference between the time curve 1 is above Tx and the time curve 2 is above Tx to determine the amount of soot combusted). We disagree with Appellants' assertion that this description of an example evaluation over time is the "integral formation" referred to in the prior sentence of Schonauer. In the end, we agree with the Examiner's findings as to the disclosures in Singh and Schonauer, and we find that the Examiner articulated adequate reasoning for the proposed modification of Singh with the teachings of Schonauer for a determination of obviousness. Thus, we sustain the rejection of claims 2--4, 7, 8, 14, 15, 17, 18, and 23 under 35 U.S.C. § 103(a) as unpatentable over Singh and Schonauer. 10 Appeal2018-000629 Application 12/497 ,219 Unpatentability over Singh and He The Examiner found that Singh discloses the method of claim 5 including initiating an enhanced baseline regeneration of the soot filter, but Singh does not explicitly teach applying a heat pulse to the soot filter after completion of the enhanced regeneration. Non-Final Act. 15-16. The Examiner found that He teaches applying a heat pulse to calibrate a diesel oxidation catalyst. Id. at 16-17. The Examiner determined that it would have been obvious to one of ordinary skill in the art to have incorporated He's calibration routine in the method of Singh to provide an effective check and feedback on Singh's soot filter. Id. at 17. Appellants argue that the Examiner has failed to show that one having ordinary skill in the art would have understood He's techniques for verifying proper operation of a diesel oxidation catalyst to be applicable to determining soot loading in Singh's diesel particulate filter during and after regeneration. 4 Appeal Br. 24-25. The Examiner responds that "He is relied upon solely for the teaching that an intrusive test (i.e., in the form of a heat pulse) can be performed to test a thermal response of a temperature- dependent/ catalyzed exhaust gas treatment component" such as Singh's filter. Ans. 4-5. Appellants reply that that the Examiner's proposed modification to Singh based on the teachings of He, as articulated in the Office Action and Answer, are "inconsistent." Reply Br. 16. Appellants do not explain this alleged inconsistency, and we fail to see it. 4 Appellants argue the claims subject to the second ground of rejection as a group. Appeal Br. 24-25. We select independent claim 5 as representative of the group, and the remaining claims subject to the second ground stand or fall with claim 5. See 3 7 C.F .R. § 41.3 7 ( c )( 1 )(iv). 11 Appeal2018-000629 Application 12/497 ,219 Appellants also argue that the Examiner failed to provide adequate evidence to support the position that He's calibrating routine could be used to test the thermal response of a soot filter. Reply Br. 16. We find sufficient evidence in the art to support the Examiner's findings. Singh describes that the soot verification module may be configured "to test the accuracy of a soot loading estimate." Singh ,r 22. Singh explains, "The soot verification module may utilize the current conditions of a soot filter to predict a temperature rise based on soot combustion, and the soot verification module may compare an observed temperature rise to the expected temperature rise to test the soot loading estimate." 5 Id. Singh describes performing "a diagnostic test when the regeneration indicator is active" that includes a soot filter temperature rise check. Id. ,r,r 24, 99, Fig. 7. He discloses a testing system for a diesel oxidation catalyst, which sits upstream of the diesel particulate filter. He, col. 1, 1. 45; Fig. 1. He's testing involves initiating a post-fuel injection process to heat the exhaust gases to the filter by oxidizing fuel in diesel oxidation catalyst and comparing the predicted temperature at the exit of the catalyst with the measured temperature at the exit of the catalyst to verify proper operation of the diesel oxidation catalyst. Id. at col. 3, 11. 43-53, col. 4, 11. 1-24. Thus, He teaches testing the efficiency of a diesel oxidation catalyst through a post-fuel injection process to heat the exhaust gases and then comparing a measured temperature rise of the gases across the catalyst to an expected temperature rise to verify the proper operation of the catalyst. 5 Singh similarly uses an expected temperature rise and an observed temperature rise to test the efficacy of the catalytic component. Id. ,r 21. 12 Appeal2018-000629 Application 12/497 ,219 As discussed above, Singh recognizes that a similar comparison of a measured and expected temperature rise across the soot filter can be used to assess the amount of soot loading in the soot filter. Based on the knowledge in the art about testing of a soot filter using a temperature rise across the soot filter during regeneration, and the knowledge in the art of a post-fuel injection technique for testing the proper operation of other temperature-dependent components of an exhaust gas system using expected and measured temperature rises across these components, it would have been obvious to apply He's testing system to test the proper operation of the soot filter. We find that a person of ordinary skill in the art would recognize that He's technique would improve Singh's diagnostic method in the same way as disclosed in He, and that application of this technique to Singh's system would not have been beyond the skill of a person of ordinary skill in the art. See KSR Int 'l Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007). Thus, we do not find error in the Examiner's determination of obviousness. Appellants also challenge, for the first time in the Reply Brief, the Examiner's finding that He discloses the claimed "heat pulse." Id. The Examiner made this finding in the Non-Final Office Action. Non-Final Act. 16. This argument is not responsive to an argument raised in the Examiner's Answer, and Appellants have not explained why they did not raise this argument earlier. Thus, Appellants have not shown good cause for the Board to consider this new argument presented for the first time in the Reply Brief. See 37 C.F.R. § 4I.41(b)(2). Appellants' argument is untimely, and we will not consider it. 13 Appeal2018-000629 Application 12/497 ,219 DECISION The decision of the Examiner rejecting claims 2-12 and 14-26 is affirmed. 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)(l )(iv). AFFIRMED 14 Copy with citationCopy as parenthetical citation