Ex Parte Stefanick et al

Patent Trial and Appeal Board

Jul 27, 2015

12314006 (P.T.A.B. Jul. 27, 2015)

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.
12/314,006 12/02/2008 Matthew Owen Stefanick 08350.0112-00000 9035
58982 7590 07/28/2015
CATERPILLAR/FINNEGAN, HENDERSON, L.L.P.
901 New York Avenue, NW
WASHINGTON, DC 20001-4413
EXAMINER
BOGUE, JESSE SAMUEL
ART UNIT PAPER NUMBER
3748
MAIL DATE DELIVERY MODE
07/28/2015 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 PATENT TRIAL AND APPEAL BOARD
____________

Ex parte MATTHEW OWEN STEFANICK, BRETT BAILEY,
CHRISTOPHER JOSEPH RYNDERS JR., and
CLIFFORD EUGENE COTTON III
____________

Appeal 2013-004051
Application 12/314,006
Technology Center 3700
____________

Before ANTON W. FETTING, CYNTHIA L. MURPHY, and
SCOTT C. MOORE, Administrative Patent Judges.

MURPHY, Administrative Patent Judge.

DECISION ON APPEAL

The Appellants1 appeal under 35 U.S.C. § 134 from the Examiner’s
rejections of claims 1–5, 8, 12–15, 17, 18, 20, 25, and 26.2 We have
jurisdiction over this appeal under 35 U.S.C. § 6(b).

We REVERSE.

1 “Caterpillar Inc. is the real party in interest.” (Appeal Br. 3.)
2 Claims 6, 7, 9, 10, 16, and 19 have been cancelled. (Appeal Br. 5.)
Claims 11 and 21–24 are indicated as allowable. (Final Act. 8.)
Appeal 2013-004051
Application 12/314,006

2
STATEMENT OF THE CASE
The Appellants’ invention relates to “a power system having an
additive injector” that provides “a controlled supply of additive to the flow
of exhaust.” (Spec. ¶ 1.)
Illustrative Claim3
1. A power system, comprising:
a power source that creates a flow of exhaust;
a particulate collection device configured to collect
particulate matter from the flow of exhaust; and
an additive injector located downstream of the power
source, the additive injector configured to provide an additive to
the flow of exhaust, the additive being a metal-based catalyst
configured to lower a combustion temperature of the particulate
matter collected in the particulate collection device; and
a control system configured to control a quantity of the
additive provided to the exhaust based on an amount of
particulate matter collected in the particulate collection device
and a temperature of the exhaust.
References
Virk US 4,322,387 Mar. 30, 1982
Driscoll US 2008/0098727 A1 May 1, 2008
Rejections
The Examiner rejects claims 1–5, 8, 13–15, 17, 18, 20, 25, and 26
under 35 U.S.C. § 102(a/e) as anticipated by Driscoll. (Final Act. 2.)
The Examiner rejects claim 12 under 35 U.S.C. § 103(a) as being
unpatentable over Driscoll and Virk. (Id. at 7.)

3 This illustrative claim is quoted from the Claims Appendix contained on
pages 16–20 of the Appeal Brief (hereinafter “Claims App.”).
Appeal 2013-004051
Application 12/314,006

3
ANALYSIS
Independent claims 1, 8, 15, and 20 are on appeal, with the rest of the
claims on appeal (i.e., claims 2–4, 12–14, 17, 18, 25, and 26) depending
therefrom. (Claims App.) These claims require the control and/or supply of
an additive to be “based on” an exhaust temperature and “an amount of
particulate matter collected in the particulate collection device.” (Id.) The
Examiner determines that Driscoll discloses a controller 44 that controls the
injection (i.e., supply) of an additive “based on” these factors. (See Final
Act. 3.)
In this regard, the Examiner cites to a paragraph in Driscoll (see Final
Act. 3) disclosing that, “[i]n one embodiment, controller 44 sends an
injection signal in response to a determination that the exhaust temperature
has been continually insufficient for regeneration over a particular time
interval.” (Driscoll ¶ 31, emphasis added.) The Examiner finds that one of
ordinary skill in the art would understand that Driscoll’s “particular time
interval” is indicative of “a fill amount of particulate predicted to be
captured by the filter.” (Final Act. 3.) According to the Examiner, the
“particular time interval” in Driscoll “is made to represent the time period
where an undesirable accumulation of soot will have occurred.” (Answer 4.)
The Appellants argue Driscoll does not disclose that its “particular
time interval” is “related to the amount of particulate matter collected in the
filter as alleged by the Examiner.” (Appeal Br. 12–13.) We are persuaded
by this argument because the Examiner does not point, with particularity, to
disclosure in Driscoll leading one of ordinary skill in the art to understand
that Driscoll’s “particular time interval” is correlated exclusively with filter-
particulate collection rather than other regeneration concerns or conditions.
Appeal 2013-004051
Application 12/314,006

4
Thus, we agree with the Appellants that the Examiner does not establish a
prima facie case of anticipation. (Appeal Br. 10.)
Moreover, even adopting the Examiner’s findings arguendo, they are
inadequate to establish that Driscoll’s additive injection is “based on” an
exhaust temperature and “an amount of particulate matter collected” in
filter 36. The Examiner’s findings establish, at most, that Driscoll’s additive
injection is “based on” an exhaust temperature and a “particular time
interval,” which presumes or predicts that “an amount of particulate matter”
has collected in filter 36. The Examiner does not show, sufficiently, that
Driscoll otherwise evaluates that “an amount of particulate matter” has
indeed collected in filter 36 during this “particular time interval.”
The Examiner’s further findings and determinations with respect to
the dependent claims and other prior art (Virk) do not compensate for this
shortcoming in Driscoll.
Thus, we do not sustain the Examiner’s rejections of 1–5, 8, 12–15,
17, 18, 20, 25, and 26.

DECISION
We REVERSE the Examiner’s rejections of claims 1–5, 8, 12–15, 17,
18, 20, 25, and 26.

REVERSED

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