Ex Parte Voss et alDownload PDFPatent Trial and Appeal BoardAug 28, 201410858656 (P.T.A.B. Aug. 28, 2014) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte KENNETH E. VOSS, STANLEY ROTH, JOSEPH C. DETTLING, GARY W. RICE, YIU KWAN LUI, and MAHMOUD YASSINE __________ Appeal 2013-005571 Application 10/858,6561 Technology Center 1700 ____________ Before BRADLEY R. GARRIS, PETER F. KRATZ, and MICHAEL P. COLAIANNI, Administrative Patent Judges. COLAIANNI, Administrative Patent Judge. DECISION ON APPEAL Appellants appeal under 35 U.S.C. § 134 the final rejection of claims 1, 4–9, 11–20, 22–30, 32–37, 41, and 42. We have jurisdiction over the appeal pursuant to 35 U.S.C. § 6(b). 1 This application was the subject of a previous appeal (Appeal No. 2010- 003395). Appeal 2013-0005571 Application 10/858,656 2 We AFFIRM. Appellants’ invention is directed to an apparatus comprising a catalytic element in communication with a catalyzed filter element (Spec. 1: 6–7). Claim 1 is illustrative: 1. An apparatus comprising: a diesel engine having an exhaust outlet in communication with an exhaust pipe along an exhaust conduit; a catalyzed soot filter for burning off carbonaceous particulates in the exhaust conduit in communication with the exhaust outlet, the catalyzed soot filter comprising a first catalyst comprising a first catalyst composition which comprises: a first platinum group metal; and a first cerium component; and a second catalyst in communication with the first catalyst, at least a portion of the second catalyst located at a separate location along the exhaust conduit selected from the group consisting of between the engine exhaust outlet and the first catalyst, and between the first catalyst and the exhaust pipe, the second catalyst comprising a second catalyst composition which comprises: a second cerium component. Appellants appeal the following rejections: 1. Claims 1, 4–9, 11–18, 20, 30, 36, and 37 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Nishizawa (US 5,108,716, patented Apr. 28, 1992) in view of Torres (US 4,082,514, patented Apr. 4, 1978) and Leyrer et al. (US 5,643,542, patented July 1, 1997). 2. Claims 22–29, 32–35, and 41 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Nishizawa in view of Torres, Leyrer and further in view of Schmelz (US 5,833,932, patented Nov. 10, 1998). Appeal 2013-0005571 Application 10/858,656 3 3. Claims 19 and 42 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Nishizawa in view of Torres and Leyrer and further in view of Koermer et al. (US 6,548,446 B1, patented Apr. 15, 2003). Appellants’ arguments focus on sole independent claim 1 only (App. Br. 6–12). Accordingly, the rejection of the dependent claims under rejections (1), (2), and (3) will stand or fall with our analysis of the rejection of claim 1. ISSUE Did the Examiner reversibly err in concluding that the combined teachings of Nishizawa, Torres, and Leyrer would have suggested the subject matter of claim 1 that includes a catalyzed soot filter in the exhaust conduit in communication with the exhaust outlet of a diesel engine? We decide this issue in the negative. FINDINGS OF FACT AND ANALYSES Appellants argue that Nishizawa discloses a three-way catalyst that at the time Appellants’ claimed invention was made would have been understood to be used solely with a stoichiometric gasoline engine, not a diesel engine (App. Br. 9–11). Appellants contend that Leyrer discloses problems with using three-way catalysts with diesel engines (i.e., lean burn engines) because the three-way catalysts can react with the nitrogen oxides in the exhaust to form NO2 which is detrimental to the environment (App. Br. 9). Appellants contend that since neither Nishizawa nor Torres teaches a diesel engine, no prima facie case of obviousness exists (App. Br. 10). Appellants contend that the Declarations of Dr. Robert Farrauto dated July Appeal 2013-0005571 Application 10/858,656 4 16, 2008, and February 24, 2012 (hereinafter Farrauto Declaration 1 and Farrauto Declaration 2, respectively) establish that Nishizawa’s three-way catalyst would have been used in a gasoline engine, not a diesel engine, because of the problems associated with three-way catalysts and diesel engines (App. Br. 10–11). Appellants contend that the Examiner has not meaningfully considered Farrauto Declarations 1 and 2 (App. Br. 11–12). Appellants’ arguments regarding Nishizawa, Torres, and Leyrer are not persuasive because they improperly attack the references individually instead of addressing the Examiner’s stated rejection based upon the combined teachings of the prior art and what the teachings would have suggested to one of ordinary skill in the art. In re Keller, 642 F.2d 413, 425 (CCPA 1981). The Examiner finds that Nishizawa teaches the catalyst structure, but fails to teach a catalyzed soot filter2 with a wall flow structure for trapping soot or explicitly a diesel engine filter (Ans. 3–4). The Examiner finds that Nishizawa’s disclosure of an internal combustion engine includes both diesel and gasoline engines as taught by the Encyclopedia Britannica (Ans. 4). The Examiner finds that Torres discloses placing a catalyzed soot filter in the exhaust pipe of a diesel engine to convert polluting gases into non-polluting gases (Ans. 4). The Examiner further finds that Leyrer discloses a wall flow structure for a catalyst support for use in both gasoline or diesel engines (Ans. 4). The Examiner further finds that Leyrer discloses using a three-way catalytic converter in a lean-burn 2 We construed “catalyzed soot filter” in the previous appeal as “a filter material structure that is capable of physically trapping or filtering dry solid carbonaceous particles and having within the filter an oxidation catalyst material such as cerium and platinum to generate heat via oxidation (exothermic reaction) and burn off the trapped carbonaceous particles” (Appeal No. 2010-003395 Decision, 4). Appeal 2013-0005571 Application 10/858,656 5 gasoline engine or a diesel engine (Ans. 10). The Examiner finds that Leyrer discloses an improvement over conventional three-way catalysts that permit the catalysts to purify the exhaust and reduce nitrogen oxides, hydrocarbons, and oxygen containing organic compounds by using a gas permeable inert support coated with an active catalytic component that includes a platinum group metal and a base metal compound that includes cerium (Ans. 10). The Examiner finds that Leyrer discloses the same catalytic materials used in Nishizawa’s three-way catalyst, which Appellants do not dispute (Reply Br. generally). The Examiner concludes that it would have been obvious to replace the honeycomb substrate of Nishizawa with that of Leyrer (i.e., to have the honeycomb in Nishizawa comprise a gas permeable inert support) in order to allow for additional reduction of nitrogen oxides, amounts of hydrocarbons, oxygen containing organic compounds, carbon monoxide and to permit filtering of the soot from the diesel exhaust (Ans. 11). Indeed, Leyrer discloses problems with known exhaust gas purification processes (e.g., three-way catalysts) that enable only the hydrocarbons and carbon monoxide contained in the exhaust of lean burn engines (e.g., diesel engines) to be converted into harmless compounds while the nitrogen oxides may be partially converted into nitrogen dioxide, which is detrimental to the environment (col. 1, ll. 50–62). Leyrer discloses that the object of the patented invention is to provide a process which enables the purification of exhaust gas from lean-burn gasoline engines and from diesel engines to be improved by permitting the reduction of nitrogen oxides (col. 2, ll. 34–37). Leyrer discloses that an “essential factor” in the process is the use of aluminum silicate, which is formed into an aqueous Appeal 2013-0005571 Application 10/858,656 6 dispersion and applied to the inert support (col. 2, ll. 60–65, col. 4, ll. 55– 61). The Examiner’s rejection is based upon modifying Nishizawa’s catalyst to have Leyrer’s wall flow structure and gas permeable inert support to permit the reduction of nitrogen oxides in diesel exhaust gases as taught by Leyrer. As noted by the Examiner and not contested by Appellants, both Nishizawa and Leyrer use the same catalysts. Therefore, the combined teachings of the prior art would have suggested modifying Nishizawa’s three-way catalyst with Leyrer’s three-way catalytic structure in order to permit the effective removal of nitrogen oxides from diesel exhaust. Whether or not Nishizawa teaches a three-way catalyst for a gasoline engine is not dispositive of the propriety of the Examiner’s rejection of claim 1 because it is the combined teachings of Leyrer and Nishizawa that would have suggested modifying conventional three-way catalysts to make them suitable for use in diesel engines. Contrary to Appellants’ argument that the Examiner has not considered meaningfully the Farrauto Declarations 1 and 2, we find that the Examiner has fully considered the opinion evidence contained in the Farrauto Declarations 1 and 2. As the Examiner finds, the Farrauto Declarations fail to provide sufficient factual evidence to support the opinion evidence contained therein (Ans. 12). Appellants cite to US Patent 7,141,226 in the Reply Brief as an attempt to establish that one of ordinary skill in the art would have understood that Nishizawa is directed to stoichiometric gasoline engines, not diesel engines. Appellants have not directed us to where US Patent 7,141,226 is made of record in the application. Appellants’ citation to this Appeal 2013-0005571 Application 10/858,656 7 new evidence in the Reply Brief violates our rule 37 C.F.R. § 41.41(b)(1) (2013). Accordingly, we shall not consider such evidence. Ex parte Borden, 93 USPQ2d 1473, 1474–75 (BPAI 2010) (informative). On this record, we affirm the Examiner’s § 103 rejections. DECISION The Examiner’s decision 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)(1). ORDER AFFIRMED cdc Copy with citationCopy as parenthetical citation