Ex Parte Yezerets et al

Patent Trial and Appeal Board

Sep 29, 2016

13551723 (P.T.A.B. Sep. 29, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/551,723 07/18/2012
54620 7590 10/03/2016
CUMMINS INC
TAFT, STETTINIUS & HOLLISTER LLP
ONE INDIANA SQUARE
SUITE 3500
INDIANAPOLIS, IN 46204-2023
FIRST NAMED INVENTOR
Aleksey Y ezerets
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.
CEC0-772 7648
EXAMINER
NASSIRI MOTLAGH, ANITA
ART UNIT PAPER NUMBER
1734
NOTIFICATION DATE DELIVERY MODE
10/03/2016 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):
taft-ip-docket@taftlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ALEKSEY YEZERETS, Z. GERALD LIU,
KRISHNA KAMASAMUDRAM, and
NEAL W. CURRIER
Appeal2015-004220
Application 13/551,723
Technology Center 1700
Before ADRIENE LEPIANE HANLON, CATHERINE Q. TIMM, and
JAMES C. HOUSEL, Administrative Patent Judges.
PER CURIAM.
DECISION ON APPEAL 1
Appellants2 filed an appeal under 35 U.S.C. § 134 from the
Examiner's decision rejecting claims 1-3, 10, 11, 13, 22, and 24 under 35
U.S.C. § 103(a) as being unpatentable over Kumar3 in view ofNohl4 and
1 Our decision refers to Appellants' Specification filed July 18, 2012 (Spec.),
Appellants' Appeal Brief filed September 9, 2014 (Appeal Br.), the
Examiner's Answer delivered December 18, 2014 (Ans.), and Appellants'
Reply Brief filed February 18, 2015 (Reply Br.).
2 Appellants identify the real party in interest as Cummins Inc. Appeal
Br. 2.
3 Kumar et al., US 2010/0236224 Al, published September 23, 2010
("Kumar").
4 Nohl, US 2010/0192546 Al, published August 5, 2010 ("Nohl").
Appeal2015-004220
Application 13/551,723
Laermann,5 and rejecting claims 8, 9, 14, and 15 under 35 U.S.C. § 103(a) as
being unpatentable over Kumar, N ohl, and Laermann, further in view of
Chapman.6 We have jurisdiction under 35 U.S.C. § 6(b ).
We REVERSE.
STATEMENT OF THE CASE
The subject matter on appeal relates to systems for reducing
secondary emissions from an internal combustion engine (see, e.g., claims 1
and 10). Figure 1 of Appellants' disclosure is reproduced below.
100~
FIG. 1
Figure 1 depicts an after-treatment engine exhaust system
5 Laermann et al., US 2011/0061367 Al, published March 17, 2011
("Laermann").
6 Chapman, US 2011/0138789 Al, published June 16, 2011 ("Chapman").
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Appeal2015-004220
Application 13/551,723
Appellants disclose a system 1007 including an engine 110 that
outputs exhaust to an exhaust flow path 120. Spec. i-f 11. The exhaust is
processed by an after-treatment system 115, which includes an oxidation
catalyst 122, a diesel particulate filter 124, an optional hydrocarbon injector
195, a reductant injector 140, a selective catalytic reduction (SCR) catalyst
130, and a secondary emission reduction device 160 to capture catalyst or
filter substrate pieces when the oxidation catalyst 122, diesel particulate
filter 124, or SCR catalyst 130 fails or deteriorates. Id. at i-fi-111-14 and 16-
18.
Appellants further disclose systems for determining the failure of the
diesel particulate filter. Figure 2B of Appellants' disclosure is reproduced
below.
FIG. 28
Figure 2B depicts a subsystem of an exhaust aftertreatment system
7 Throughout this Opinion, for clarity, we present labels to elements in
figures in bold font, regardless of their presentation in the original document.
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Appeal2015-004220
Application 13/551,723
The aftertreatment system can further include a differential pressure
sensor 170 to detect a pressure drop across the secondary emission reduction
device 160 and another differential pressure sensor 175 to detect a pressure
drop across the diesel particulate filter 124. Id. at i-f 23. A controller may be
in communication with the differential pressure sensors 170, 175 to
determine whether the diesel particulate filter 124 has failed, such as when
the pressure drop detected by differential pressure sensor 175 falls below a
predetermined threshold and the pressure drop detected by differential
pressure sensor 170 increases to more than a predetermined threshold. Id. at
i-fi-125, 26, and 33.
Independent claim 1 is illustrative and is reproduced below from the
Claims Appendix of the Appeal Brief. The limitations at issue are italicized.
1. A system for reducing secondary emissions from an
internal combustion engine, comprising:
a diesel particulate filter in fluid communication with an
exhaust flowpath from the internal combustion engine;
an SCR catalyst in fluid communication with the exhaust
flowpath downstream from the diesel particulate filter;
a secondary emission reduction device including a filter in
fluid communication with the exhaust flowpath downstream
from the SCR catalyst, wherein the filter is in a temperature
region of the exhaust flowpath that is lower than that of the SCR
catalyst to permit condensation of volatized of catalytic material
from the SCR catalyst on the filter, wherein the secondary
emission reduction device includes an ammonia oxidation
catalyst to catalyze ammonia slip from the SCR catalyst;
a first differential pressure sensor operable to determine a
pressure drop of exhaust gas in the exhaust flowpath across the
secondary emission reduction device;
a second differential pressure sensor operable to determine
a pressure drop of exhaust gas in the exhaust flowpath across the
diesel particulate filter; and
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Appeal2015-004220
Application 13/551,723
a controller operatively connected to the first differential
pressure sensor and to the second differential pressure sensor,
wherein the controller is configured to determine a failure
condition of the diesel particulate filter from the pressure drop
across the diesel particulate filter falling below a first
predetermined threshold in conjunction with the pressure drop
across the secondary emission reduction device exceeding a
second predetermined threshold and provide an onboard
diagnostic command corresponding to the failure of the diesel
particulate filter.
ANALYSIS
The dispositive issue on appeal is whether Appellants have shown a
reversible error in the Examiner's finding that the combination of Kumar,
Nohl, and Laermann suggests a controller "configured to determine a failure
condition of the diesel particulate filter from the pressure drop across the
diesel particulate filter falling below a first predetermined threshold in
conjunction with the pressure drop across the secondary emission reduction
device exceeding a second predetermined threshold," as recited in claim 1
(emphasis added).
Appellants contend N ohl and Laermann, when combined, do not
suggest a controller "configured to determine a failure condition of the diesel
particulate filter from the pressure drop across the diesel particulate filter
falling below a first predetermined threshold in conjunction with the
pressure drop across the secondary emission reduction device exceeding a
second predetermined threshold," as recited in claim 1. Appeal Br. 13-14.
Appellants argue N ohl discloses using a pressure differential to determine
whether an exhaust intake has failed, not using a pressure differential to
determine whether the particulate filter has failed. Id. at 14--15. Appellants
assert Laermann discloses the use of pressure differential across a
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Appeal2015-004220
Application 13/551,723
monitoring diesel particulate filter to indicate failure of a main diesel
particulate filter but does not disclose this determination is made in
conjunction with a determination of whether a pressure drop across the main
diesel particulate filter indicates its failure. Id. at 15. In view of the above,
Appellants contend the Examiner's rejection over Kumar, Nohl, and
Laermann is based upon impermissible hindsight. Reply Br. 7.
Any judgment on obviousness is in a sense necessarily a
reconstruction based upon hindsight reasoning, but so long as it
takes into account only knowledge which was within the level
of ordinary skill at the time the claimed invention was made
and does not include knowledge gleaned only from applicant's
disclosure, such a reconstruction is proper.
In re McLaughlin, 443 F.2d 1392, 1395 (CCPA 1971). However, a fact
finder must be aware "of the distortion caused by hindsight bias and must be
cautious of arguments reliant upon ex post reasoning." KSR Int'! Co. v.
Teleflex Inc., 550 U.S. 398, 421 (2007) (citing Graham v. John Deere Co.,
383 U.S. 1, 36 (1966) (warning against a "temptation to read into the prior
art the teachings of the invention in issue")).
Here, the Examiner does not rely upon knowledge that was within the
level of ordinary skill at the time the claimed invention was made when the
Examiner finds the combination of Kumar, Nohl, and Laermann suggests a
controller "configured to determine a failure condition of the diesel
particulate filter from the pressure drop across the diesel particulate filter
falling below a first predetermined threshold in conjunction with the
pressure drop across the secondary emission reduction device exceeding a
second predetermined threshold," as recited in claim 1.
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Appeal2015-004220
Application 13/551,723
The Examiner finds Kumar does not disclose using a pressure drop
across a diesel particulate filter and a pressure drop across a secondary
emission reduction device to determine a failure of the diesel particulate
filter. Ans. 5. The Examiner finds "Nohl teaches that the pressure drop
across a filter is low if soot is not trapped," which, when combined with
Kumar and Laermann, suggests "if soot is not trapped in the first particulate
filter (which is a failure of the filter because it's not trapping soot) it results
in a low pressure drop across the filter." Ans. 9.
However, the Examiner's findings are not supported by a
preponderance of the evidence in this record, including the disclosure of
Nohl. Nohl is directed to detecting whether an engine inlet failure has
occurred, such as when an inlet pipe, which delivers exhaust to an emission
abatement assembly housing a particulate filter, becomes disconnected or
develops a hole. Nohl i-fi-16, 18, 43. Such an exhaust inlet failure may be
determined by detecting whether the rate of change in a differential pressure
across a filter is less than a predetermined threshold. Id. at i1 49. Therefore,
the Examiner's findings regarding whether Nohl discloses failure of a diesel
particulate filter via a low pressure differential rely upon ex post facto
reasoning because there is no prior knowledge in the record to support the
findings. As argued by Appellants, Nohl is not directed to determining the
failure of a diesel particulate filter.
Moreover, Laermann discloses detection of a pressure differential
across a monitoring diesel particulate filter to determine whether a main
diesel particulate filter has failed8 but does not disclose using this
determination in conjunction with a pressure differential across the main
8 Laermann i1 9.
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Application 13/551,723
particulate filter to determine whether the main particulate filter has failed,
as recited in claim 1.
As a result, Appellants have demonstrated a reversible error in the
Examiner's finding that the combination of Kumar, Nohl, and Laermann
suggests a controller "configured to determine a failure condition of the
diesel particulate filter from the pressure drop across the diesel particulate
filter falling below a first predetermined threshold in conjunction with the
pressure drop across the secondary emission reduction device exceeding a
second predetermined threshold," as recited in claim 1.
Independent claim 10 recites a system in which a controller is
structured to determine a pressure drop across a diesel particulate filter,
determine a pressure drop across a secondary emission reduction device, and
provide a command indicating failure of the diesel particulate filter when the
pressure drop across the diesel particulate filter is less than a first
predetermined threshold in conjunction with the pressure drop across the
secondary emission reduction device being greater than a second
predetermined threshold. For the same reasons discussed above with regard
to claim 1, the combination of Kumar, Nohl, and Laermann does not support
the Examiner's findings in the rejection of claim 10. Claims 2, 3, 11, 13, 22,
and 24 depend from claims 1 and 10.
For the reasons set forth above, the rejection under§ 103 over Kumar,
N ohl, and Laermann is not supported by the record and is not sustained.
The remaining§ 103 rejection of claims 8, 9, 14, 15 over Kumar,
N ohl, and Laermann and further in view of Chapman suffers from the same
deficiencies as the § 103 rejection of claim 1. Although the remaining § 103
rejection includes Chapman as an additional prior art reference, the
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Application 13/551,723
Examiner does not rely on Chapman to remedy the above-discussed
deficiencies in the combination of Kumar, Nohl, and Laermann. Therefore,
we also do not sustain the Examiner's§ 103 rejection of claims 8, 9, 14, 15
over Kumar, Nohl, Laermann, and Chapman.
DECISION
On the record before us and for the reasons given in Appellants'
Appeal and Reply Briefs, we reverse the Examiner's§ 103 rejections.
REVERSED
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