Ex Parte SUGIYAMA et alDownload PDFPatent Trial and Appeal BoardMay 23, 201814515647 (P.T.A.B. May. 23, 2018) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 14/515,647 10/16/2014 23373 7590 05/25/2018 SUGHRUE MION, PLLC 2100 PENNSYLVANIA A VENUE, N.W. SUITE 800 WASHINGTON, DC 20037 FIRST NAMED INVENTOR Takeshi SUGIYAMA 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. Q214476 5238 EXAMINER TANKERSLEY, BLAKE A ART UNIT PAPER NUMBER 2854 NOTIFICATION DATE DELIVERY MODE 05/25/2018 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): PPROCESSING@SUGHRUE.COM sughrue@sughrue.com USPTO@sughrue.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte TAKESHI SUGIYAMA, MASA YUKI MOTOMURA, TOSHIY A MATSUOKA, and KEISUKE TASHIMA 1 Appeal2017-008443 Application 14/515,647 Technology Center 2800 Before BRADLEY R. GARRIS, LILAN REN, and JANE E. INGLESE, Administrative Patent Judges. GARRIS, Administrative Patent Judge. DECISION ON APPEAL Pursuant to 35 U.S.C. § 134, Appellant appeals from the Examiner's rejections under 35 U.S.C. § 103 of sole independent claim 1 as unpatentable over Sugiyama et al. (US 2012/0234172 Al, published Sept. 20, 2012) (hereinafter "Sugiyama") in view of Sakuma et al. (US 2010/0000404 A 1, published Jan. 7, 2010) (hereinafter "Sakuma") and Wagenhuber et al. (US 2012/0290177 Al, published Nov. 15, 2012) (hereinafter "Wagenhuber") 1 Appellant is the applicant, NGK SPARK PLUG CP., LTD which is identified as the real party in interest (App. Br. 2). Appeal2017-008443 Application 14/515,647 and of remaining dependent claims 3-8 as unpatentable over these references alone or in combination with an additional prior art reference. We have jurisdiction under 35 U.S.C. § 6. We AFFIRM. Appellant claims a system for measuring the amount of particulates in exhaust gas comprising a particulate sensor 100, a sensor drive section 300, and a vehicle control section 420, wherein the sensor drive section is programmed to (i) obtain at least one of 3 operating condition parameters, (ii) determine whether the parameters fall within ranges set in advance, (iii) measure the amount of particulates and report the amount to the vehicle control section when the parameters fall within the ranges, and (iv), when the parameters do not fall within the ranges, either measure the amount but not report or measure the amount and report (independent claim 1, Figs. l(a), 7(B)) but the reported amount is invalidated (see dependent claim 7, Fig. 7(B), Spec. if 63). A copy of representative claim 1, taken from the Claims Appendix of the Appeal Brief, appears below. 1. A particulate measurement system which comprises a particulate sensor having an ion generation section for generating ions by corona discharge, an electrification chamber for electrifying at least a portion of particulates contained in exhaust gas discharged from an internal combustion engine of a vehicle using the ions, and a trapping section for trapping at least a portion of the ions not used for electrification of the particulates, the particulate measurement system measuring an amount of particulates contained in the gas based on a difference between an amount of ions generated by the ion generation section and an amount of ions trapped in the trapping section, wherein the particulate measurement system comprises a sensor drive section for driving and controlling the particulate sensor to 2 Appeal2017-008443 Application 14/515,647 thereby determine the amount of particulates, and a vehicle control section for controlling the vehicle, and wherein the sensor drive section is programed to (i) obtain from the vehicle control section values of at least one or a plurality of three operating condition parameters selected from the group consisting of speed of the vehicle, rotational speed of the internal combustion engine and torque of the internal combustion engme, (ii) determine, based on the obtained parameter values, whether or not the one or plurality of operating condition parameters fall within respective ranges set in advance, (iii) measure the amount of particulates and report the measured amount of particulates to the vehicle control section when the one or plurality of operating condition parameters fall within the respective ranges set in advance, and (iv) either measure the amount of particulates but not report the measured amount of particulates to the vehicle control section when the one or plurality of operating condition parameters do not fall within the respective ranges set in advance, or measure the amount of particulates and report the measured amount of particulates to the vehicle control section when the one or plurality of operating condition parameters do not fall within the respective ranges set in advance. Appellant presents arguments specifically directed to independent claim 1 only (App. Br. 7-25). Therefore, dependent claims 3-8 will stand or fall with claim 1. We sustain the§ 103 rejections of claims 1 and 3-8 based on the Examiner's well stated findings of fact, conclusions of law, and rebuttals to arguments in the Final Office Action and the Answer. The following comments are added for emphasis. In rejecting claim 1, the Examiner concludes that it would have been obvious to modify the particulate measurement system of Sugiyama so as to measure and report the amount of particulates only when operating condition 3 Appeal2017-008443 Application 14/515,647 parameters fall within pre-set ranges as taught by Sakuma in order to avoid incorrect control based on erroneous amount-data (Final Action 2-5), and Appellant does not argue otherwise (see generally App. Br.). The Examiner finds that, although the so-modified system of Sugiyama does not include the claim 1 clause (iv) feature of either measuring but not reporting or measuring and reporting the amount when the parameters do not fall within the pre-set ranges, this feature would have been suggested by Wagenhuber (Final Action 5). Specifically, the Examiner finds that paragraph 19 of Wagenhuber discloses stopping the detection of signals (i.e., wherein the signals are not measured) or stopping the analysis of signals (i.e., wherein the signals are either not reported or are reported but ignored) and thereby evinces that (1) not measuring and (2) measuring but not analyzing are equivalents (id.). 2 The Examiner concludes that, in view of Wagenhuber, it would have been obvious to modify the Sugiyama/Sakuma system so as to either measure but not report or measure and report but then ignore the measured amount of particulates when parameters do not fall within pre-set ranges in order to avoid incorrect control based on erroneous amount-data (id.). Alternatively, the Examiner concludes that such a modification of the Sugiyama/Sakuma system would have been obvious based on an obvious-to- 2 In the Answer, the Examiner points out that "Appellant[] never disagree[ s] [with the finding] that Wagenhuber shows equivalence between the respective invalidation processes (see Appeal Brief, last paragraph on page 19, only argues that the equivalence is not relevant and does not argue against the equivalence)" (Ans. 5, see also id. at 9). In the Reply Brief, Appellant does not dispute the Examiner's point but rather merely indicates that "Appellant [never] admitted that Wagenhuber shows equivalence between the respective invalidation processes" (Reply Br. 9). 4 Appeal2017-008443 Application 14/515,647 try theory and common sense (id. at 6-7). In particular, the Examiner finds that, when parameters do not fall within appropriate ranges, there are only 3 ways to avoid incorrect control based on erroneous amount-data: 1) not measure the amount, 2) measure but not report the measured amount, or 3) measure and report but ignore the measured amount (id. at 6). The Examiner determines that ordinary skill and common sense would have led an artisan to try such a limited number of solutions in anticipation of successfully avoiding incorrect control based on erroneous amount-data (id. at 6-7). Appellant argues that the Examiner's proposed modification of the Sugiyama/Sakuma system based on the teachings of Wagenhuber "is completely adverse to the invention of Sakuma ... [and] would change the principle of operation of Sugiyama in view of Sakuma" (App. Br. 12). Appellant's argument is grounded on the proposition that measuring the amount of particulates when parameters are not within pre-set ranges is contrary to Sakuma's preference of measuring the amount only when parameters are within pre-set ranges (Sakuma i-f 123 ("it is preferable to cause a corona discharge when the engine speed, torque, and the like ... have satisfied given conditions")). However, we agree with the Examiner that a person of ordinary skill in this art is also a person of ordinary creativity, not an automaton, and therefore would perceive Sakuma as implying or suggesting the need to perform any invalidation process effective for avoiding use of erroneous amount-data (Ans. 6). The Examiner correctly explains that, viewed from this perspective, the proposed modification based on Wagenhuber would not be adverse to the invention of Sakuma and would not change the principle of operation of Sugiyama in view of Sakuma (id. at 6-7). 5 Appeal2017-008443 Application 14/515,647 Appellant argues that Wagenhuber is non-analogous art because it is directed to opening a vehicle door automatically rather than operating an internal combustion engine (App. Br. 14--15). We fully share the Examiner's determination that Wagenhuber is reasonably pertinent to the subject inventors' problem of finding alternative invalidation processes for avoiding the use of erroneous amount-data (Ans. 7-9). In reply, Appellant states that "Wagenhuber has nothing to [do] with particulate measurement or the operating condition of an internal combustion engine system" and that Wagenhuber teaches ignoring signals whereas "there is nothing to ignore in the system of Sugiyama/Sakuma" (Reply Br. 11-12). However, these statements are not relevant to, and concomitantly do not show error in, the Examiner's determination that Wagenhuber is reasonably pertinent to the inventors' problem. Concerning the Examiner's alternative obvious-to-try rationale, Appellant argues that no prior art reference supports the Examiner's finding that there are only 3 ways to avoid using erroneous amount-data when operating parameters are not within their pre-set ranges (App. Br. 21 ). Appellant's argument is not convincing for the reasons detailed by the Examiner (Ans. 9-12). We emphasize that, contrary to this argument, the Sakuma and Wagenhuber references support the Examiner's finding. Moreover, we emphasize that the Examiner persuasively explains why the finding also is supported by common sense (id. at 10-12) including the point that erroneous data is commonly ignored (e.g., "ignoring a clock or watch that is not working" (id. at 11)). Significantly, the Examiner's explanation regarding common sense is not challenged by Appellant in the Reply Brief with any reasonable specificity (see Reply Br. 12 wherein Appellant states 6 Appeal2017-008443 Application 14/515,647 without meaningful embellishment that "[t]he Examiner's obvious to try argument lack[ s] merit"). For the reasons given by the Examiner and emphasized above, Appellant fails to show reversible error in the § 103 rejections under review in this appeal. The decision of the Examiner 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)(l)(iv). AFFIRMED 7 Copy with citationCopy as parenthetical citation