Ex Parte Roozenboom

Board of Patent Appeals and Interferences

Nov 23, 2010

11342630 (B.P.A.I. Nov. 23, 2010)

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.
11/342,630 01/31/2006 Stephan Donald Roozenboom 08350.5699-00000 2490
58982 7590 11/24/2010
CATERPILLAR/FINNEGAN, HENDERSON, L.L.P.
901 New York Avenue, NW
WASHINGTON, DC 20001-4413
EXAMINER
TRAN, BINH Q
ART UNIT PAPER NUMBER
3748
MAIL DATE DELIVERY MODE
11/24/2010 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte STEPHAN DONALD ROOZENBOOM1
____________________

Appeal 2009-007790
Application 11/342,630
Technology Center 3700
____________________

Before ROMULO H. DELMENDO, SCOTT R. BOALICK, and
DANIEL S. SONG, Administrative Patent Judges.

SONG, Administrative Patent Judge.

DECISION ON APPEAL

1 The real party in interest is Caterpillar Inc. (App. Br. 3).
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STATEMENT OF THE CASE
The Appellant appeals under 35 U.S.C. § 134(a) from a Final
Rejection of claims 1-3, 5-12, 14-20, 22-24, 27 and 28.2 We have
jurisdiction under 35 U.S.C. §§ 6(b) and 134(a).
The claimed invention is directed to a method of directing a flow of
exhaust and an aftertreatment system. Representative independent claim 1
reads as follows (App. Br. 35, Claims App'x.):
1. A method of directing flow of exhaust, comprising:
directing a first portion of the flow of exhaust through a
first flow path;
directing a second portion of the flow of exhaust through
a second flow path;
increasing a temperature of at least a portion of the flow
in the first flow path;
sending the flow in the first flow path through a filter;
combining the first and second portions of the flow
downstream of the filter to form a combined flow;
maintaining the combined flow within a predetermined
range of temperatures; and
directing the combined flow to a catalyst.

Independent claim 10 is directed to an aftertreatment system in which
the combined flow of exhaust is maintained within a predetermined range of
temperatures. Independent claim 19 is similar to claim 1, reciting that the
combined flow is maintained within a predetermined range of temperatures

2 The Examiner's rejection of claim 26 appears to have been made in error
and withdrawn in the Examiner's Answer because claim 26 depends from
claim 4, which the Examiner indicated to be allowable if rewritten in
independent form (Final Rejection 7; Ans. 13). Accordingly, while appealed
by the Appellant (App. Br. 5), we do not consider claim 26 in this appeal.
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by controlling an amount of flow directed through the second flow path
when increasing the temperature of the flow in the first flow path.

THE REJECTION

The Examiner rejected claims 1-3, 5-12, 14-20, 22-24, 27 and 28
under 35 U.S.C. § 102(b) over Laroo (US 6,779,339 issued Aug. 24, 2004).

ISSUE
The sole issue raised in the present appeal is whether the Examiner
erred in finding that Laroo discloses an aftertreatement system and method
in which the temperature of a combined flow of exhaust from first and
second flow paths is maintained within a predetermined range of
temperatures.
We REVERSE.

FINDINGS OF FACT
The record supports the following findings of fact (FF) by a
preponderance of the evidence.
1. Laroo discloses an apparatus and method for treating an exhaust
containing NOx and SO2. Figure 1 of Laroo is reproduced
below:
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Figure 1 of Laroo reproduced above shows a schematic diagram
of a vehicle on-board exhaust treatment system (Col. 3, ll. 552-
54; FIG. 1). The system includes exhaust flow paths (or "legs")
A, B. Flow path A includes a catalytic diesel particulate filter
(CDPF) 18 and a NOx absorber 22, and flow path B includes a
CDPF 19 and a NOx absorber 23 (col. 4, ll. 7-13; FIG. 1). The
exhaust gas flows exiting from the flow paths A and B are
recombined and passed through a diesel oxidation catalytic
converter 34 (col. 4, ll. 13-16; FIG. 1).
2. Laroo describes that, at all times, a flow path receives a
majority portion of the exhaust flow and operates in the NOx
adsorption mode (col. 4, ll. 43-52). Another flow path receives
a minority portion of the flow and is operated in the denitration
or desulfation mode (col. 5, ll. 7-11).
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3. Laroo describes that the major and minor flow portions are
periodically switched between the flow paths (col. 3, ll. 12-16).
4. In Laroo, in the desulfating flow path, the CDPF is heated to a
first predetermined temperature (col. 5, ll. 15-23), and the NOx
absorber is heated to the desulfating temperature (second
predetermined temperature) (col. 2, ll. 36-42; col. 5, ll. 29-36).
Heat transfer is controlled to maintain the desired desulfating
temperature (col. 2, ll. 44-47).
5. In Laroo, the first predetermined temperature of the CDPFs 18,
19 is measured by temperature sensors 20, 21, respectively, and
the second predetermined temperature of the NOx absorbers 22,
23 is measured by the temperature sensors 16, 17, respectively
(col. 4, ll. 24-26; FIG. 1).
6. In Laroo, a NOx sensor 35 is positioned near to the location at
which the flow paths A, B are recombined (col. 4, l. 20; FIG.
1).
7. In Laroo, the controller 10 controls: operation of the flow
injectors 26, 27; exhaust flow control valves 12, 13; and
exhaust bypass flow control valve 30 (col. 4, ll. 26-31; FIG. 1).

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. v. Union Oil Co. of California, 814 F.2d
628, 631 (Fed. Cir. 1987).
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ANALYSIS
Regarding independent claims 1, 10 and 19, the Examiner contends
that Laroo discloses an aftertreatment system and a method comprising each
and every claimed limitation of these claims. In this regard, the Examiner
contends that Laroo discloses controller 10:
for controlling to increase/maintain a temperature (to a
predetermined temperature; such as a range of 500-750 °C)
of the exhaust flow in the first flow path (A) and second flow
paths (B); and therefore, the combined flow gas is maintaining
[sic] within a predetermined range of temperatures (Steps F
and G); and directing the combined flow to a catalyst/NOx
reducing catalyst (34).

(Ans. 10) (emphasis in original).
Hence, the Examiner's position is that the controller 10 performs the
recited step of maintaining the temperature of the combined flow within a
predetermined range as recited in method claims 1 and 19, and describes the
system of claim 10 (Ans. 4 and 10).
As to claim 1, the Appellant contends that Laroo does not disclose
"combining the first and second portions of the flow … to form a combined
flow [and] maintaining the combined flow within a predetermined range of
temperatures," as claimed (App. Br. 15). The Appellant contends that, in
Laroo's multi-leg structure, one leg receives a majority portion of the flow
and is operated in the adsorption mode, and the other leg receives a minority
portion of the flow and is operated in the denitration mode or desulfation
mode (App. Br. 14). As such, the Appellant contends that: Laroo discloses
determining the temperature of the flow in only one of the legs (i.e., the
desulfating leg); is silent regarding determining a temperature of the
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combined flow from both legs; and does not disclose maintaining the
combined flow within a predetermined range of temperature (App. Br. 15-
16).
Initially, we do not agree with the Appellant's argument that Laroo
determines the temperature of the exhaust flow in only the desulfating leg
because Laroo discloses that for the major portion of the exhaust gas passed
along one of the flow paths for a first period of operation, "temperatures in
the particulate trap and the NOx adsorber are monitored." (Col. 2, 56-63)
(emphasis added). In our view, for these temperatures to be monitored, they
would also need to be determined (FF 4 & 5). Nonetheless, as discussed
infra, we agree with the Appellant that Laroo does not disclose the limitation
reciting "maintaining the combined flow within a predetermined range of
temperatures" (emphasis added) in claim 1.
The temperature range of 500-750°C of Laroo referred to by the
Examiner corresponds to the second predetermined temperature to which the
NOx adsorber is heated in the desulfating leg in Laroo (col. 5, ll. 35-36; FF 1
& FF 4). The Examiner's contention that Laroo maintains a predetermined
temperature of the exhaust gas flow in first flow path A and the second flow
path B assumes Laroo simultaneously operates both the first flow path A and
the second flow path B in the desulfating mode and maintains the same
predetermined temperature in both flow paths (Ans. 10). However, the
Examiner has not provided any support for this assumption.
As argued by the Appellant, Laroo discloses operating one of the legs
in the desulfating mode, while the other leg is operated in the adsorption
mode (App. Br 14). In this regard, Laroo discloses that, at all times, one of
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the legs is operating with a major portion of the exhaust flow flowing there
through (FF 2). Laroo also discloses that the major and minor flow portions
are periodically switched between the flow paths (FF 3). The Examiner has
provided no support for the finding that the exhaust gas temperature of the
major portion in the adsorption leg is maintained at the same temperature as
that of the minor portion in the desulfating leg in Laroo.
We also agree that Laroo does not disclose determining a temperature
of the combined flow, much less maintaining the combined flow within a
predetermined range of temperatures. As argued by the Appellant, the NOx
sensor 35 is the only sensor disclosed in Laroo that is positioned near to
where the two flow paths A, B recombine (FF 6, FIG. 1), and it does not
sense the gas temperature (Ans. 15-16). Laroo also does not disclose
somehow indirectly determining the temperature of the combined flow.
The Appellant further contends that the Examiner has not established
that Laroo inherently discloses the limitation reciting "maintaining the
combined flow within a predetermined range of temperatures" in claim 1
(Ans. 16-18). Indeed, the Examiner has provided no basis in fact and/or
technical reasoning for finding that operation of Laroo's apparatus would
necessarily result in this limitation (App. Br. 16-18), and thus has not
established that this limitation is inherent in Laroo. See In re Cruciferous
Sprout Litig., 301 F.3d 1343, 1349 (Fed. Cir. 2002). Therefore, we reverse
the Examiner's anticipation rejection of claim 1, as well as claims 2, 3, 5-9
and 22-24, which depend from claim 1.
Independent claim 10 is directed to an aftertreatment system
comprising, inter alia, "a controller configured to maintain a combined flow
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of exhaust in the combined flow path within a predetermined range of
temperatures." (App. Br. 37, Claims App'x.) (emphasis added). For the
reasons discussed supra, we agree with the Appellant that Laroo does not
disclose that the controller 10 maintains the temperature of the combined
flow within a predetermined range (Ans. 21-24; FF 7; FIG. 1). Thus, we
reverse the anticipation rejection of claim 10, as well as claims 11, 12, 14-18
and 27, which depend from claim 10.
Independent claim 19 recites a method of directing a flow of exhaust
comprising, inter alia, "controlling an amount of flow directed through the
second flow path to maintain the combined flow within a predetermined
range of temperatures when increasing the temperature of the at least a
portion of the flow in the first flow path." (App. Br. 39, Claims App'x.)
(emphasis added). Thus, for the reasons already discussed supra, we also
reverse the Examiner's anticipation rejection of claim 19, as well as claims
20 and 28, which depend from claim 19.

DECISION
The Examiner erred in finding that Laroo discloses an aftertreatement
system and method in which the temperature of a combined flow of exhaust
from first and second flow paths is maintained within a predetermined range.
Hence, the Examiner's rejection of claims 1-3, 5-12, 14-20, 22-24, 27 and 28
under 35 U.S.C. § 102(b) over Laroo is REVERSED.

REVERSED

Appeal 2009-007790
Application 11/342,630

10

ack

CATERPILLAR/FINNEGAN, HENDERSON, L.L.P.
901 New York Avenue, NW
WASHINGTON, DC 20001-4413