UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES. Ex parte GEORGE LIN

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1 UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES Ex parte GEORGE LIN Appeal Technology Center 3700 Decided: 1 June 18, 2009 Before WILLIAM F. PATE, III, LINDA E. HORNER, and STEFAN STAICOVICI, Administrative Patent Judges. HORNER, Administrative Patent Judge. DECISION ON APPEAL 1 The two-month time period for filing an appeal or commencing a civil action, as recited in 37 C.F.R , begins to run from the decided date shown on this page of the decision. The time period does not run from the Mail Date (paper delivery) or Notification Date (electronic delivery).

2 STATEMENT OF THE CASE George Lin (Appellant) seeks our review under 35 U.S.C. 134 of the Examiner s decision rejecting claims We have jurisdiction under 35 U.S.C. 6(b) (2002). We REVERSE. SUMMARY OF DECISION THE INVENTION The Appellant s claimed invention is an exhaust treatment device monitoring system configured to determine a condition of the exhaust treatment device based on temperature information. Spec. 1, para. 01. Claim 1, reproduced below, is representative of the subject matter on appeal. 1. An exhaust system, comprising: an exhaust path configured to direct an exhaust stream away from an engine; an exhaust treatment device in the exhaust path and configured to act on one or more substances in the exhaust stream; at least one temperature sensing device configured to determine a temperature profile of a surface area of a working material of the exhaust treatment device by determining the temperatures of various portions of the surface area of the working material; and a controller configured to generate a temperature map which shows the determined temperature profile of the surface area of the working material of the exhaust treatment device and to determine deviations from an expected temperature map. 2

3 THE EVIDENCE The Examiner relies upon the following evidence: Hardy US 4,835,963 Jun. 6, 1989 Maus US 5,307,626 May 3, 1994 Saito US 5,421,719 Jun. 6, 1995 THE REJECTIONS The Appellant seeks our review of the following rejections: 1. The Examiner rejected claims 1, 4-8, 10-12, 15-21, 23-25, 28, 29, and 31 under 35 U.S.C. 102(b) as anticipated by Maus. 2. The Examiner rejected claims 2, 3, 13, 14, 26, and 27 under 35 U.S.C. 103(a) as unpatentable over Maus and Saito. 3. The Examiner rejected claims 9, 22, and 30 under 35 U.S.C. 103(a) as unpatentable over Maus and Hardy. ISSUE In each of the rejections, the Examiner relies on Maus as disclosing a controller configured to generate a temperature map which shows the determined temperature profile of the surface area of the working material of the exhaust treatment device and to determine deviations from an expected temperature map. Ans. 3-4 (citing Maus, Figure 1; col. 3, ll ; col. 4, ll ). The Appellant argues that Maus fails to disclose a controller configured to determine deviations from an expected temperature map. App. Br

4 The issue presented by this appeal is: Has the Appellant shown the Examiner erred in finding that Maus discloses a controller configured to determine deviations from an expected temperature map? FINDINGS OF FACT We find that the following enumerated facts are supported by at least a preponderance of the evidence. Ethicon, Inc. v. Quigg, 849 F.2d 1422, 1427 (Fed. Cir. 1988) (explaining the general evidentiary standard for proceedings before the Office). 1. The Appellant s Specification does not provide a definition of the phrase expected temperature map or any of the terms comprising that phrase, as used in the claims. Spec., passim. 2. The word expect is commonly understood to mean to look for as likely to occur or appear. Webster s New Universal Unabridged Dictionary, Deluxe Second Ed. (1983). 3. The Appellant s Specification describes that one embodiment of an expected temperature map is a temperature map that is predetermined and stored in memory and used for comparison to the actual temperature map, with deviations possibly indicative of abnormal operating conditions due to malfunction or failure of the exhaust treatment device. Spec. 9, para. 38; see also Spec. 14, para. 54 to Spec. 15, para. 56 (describing usefulness of temperature maps for detecting failures). 4

5 4. The Appellant s Specification describes the claimed invention as configured to determine the condition of the exhaust treatment device based on temperature information. Spec. 1, para Maus discloses that prior art methods deviated from optimal engine performance and consumption control as a safety measure to protect the catalytic converter against excess temperature. Maus, col. 2, ll Maus discloses an object of the invention is to use the current temperature of the catalytic converter for engine control, so that deviations from optimum control are minimized as needed to protect the catalytic converter from predetermined critical temperatures. Maus, col. 1, ll If Maus s device detects a critical temperature in the catalytic converter 8, the engine control 2 can modify engine operation to prevent further temperature increase in the catalytic converter. Maus, col. 3, l. 66 to col. 4, l Maus discloses a method and an apparatus for controlling an internal combustion engine through use of an engine control 2 and/or an electronic monitoring apparatus 10, based on the current temperature of a down-stream catalytic converter. Maus, col. 1, ll ; col. 6, ll The temperature of the catalytic converter is provided by two temperature sensors TF1, TF2 (preferably disposed in the vicinity of the two end surfaces of the catalytic converter 8), that are connected by measurement lines 13, 14 to electronic monitoring apparatus 10. Maus, col. 3, ll ; col. 6, ll. 7-12; Fig. 1. 5

6 7. The electronic monitoring apparatus 10 processes the measured temperature values to ascertain a temperature distribution 2, the mean and/or maximum temperature, the functional capability, the operating state, and the life expectancy of the catalytic converter. Maus, col. 3, ll ; col. 6, ll Maus discloses use of the actual temperature to provide advantages in the cold starting phase of the catalytic converter. Maus, col. 2, ll Maus discloses by monitoring the actual temperature of the catalytic converter, the cold starting phase can be terminated when operating temperature is reached, avoiding the prior art engine control program s disadvantages of possibly terminating the cold start phase too early or too late. Maus, col. 2, ll Maus discloses use of the catalytic converter temperature information over time to diagnosis and respond to engine malfunctions in order to prevent damage to the catalytic converter. Maus, col. 4, ll For example, in the event of a misfiring cylinder, an emergency operation program can briefly and individually stop fuel delivery to individual cylinders, the resulting effect on temperature in the catalytic converter will identify which cylinder is misfiring, and fuel can be discontinued to the misfiring cylinder. Maus, col. 4, ll Maus does not disclose the engine control 2 or electronic monitoring apparatus 10 compares the actual temperature to an 2 We are intentionally not deciding if Maus s temperature distribution is the claimed temperature map because we reverse for other reasons. 6

7 expected temperature under normal operating conditions for the catalytic converter. Maus, passim. 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). Section 103 forbids issuance of a patent when the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 406 (2007). The question of obviousness is resolved on the basis of underlying factual determinations including (1) the scope and content of the prior art, (2) any differences between the claimed subject matter and the prior art, (3) the level of skill in the art, and (4) where in evidence, so-called secondary considerations. Graham v. John Deere Co., 383 U.S. 1, (1966). See also KSR, 550 U.S. at 407 ( While the sequence of these questions might be reordered in any particular case, the [Graham] factors continue to define the inquiry that controls. ) 7

8 ANALYSIS Rejection of claims 1, 4-8, 10-12, 15-21, 23-25, 28, 29, and 31 under 35 U.S.C. 102(b) as anticipated by Maus Claim Construction Claim 1 contains the limitation that the controller must be configured to generate a temperature map that shows the temperature profile of the surface area of the working material of the exhaust treatment device and to determine deviations from an expected temperature map. Appellant s Specification does not define the phrase expected temperature map, and the common understanding of the word expect is to look for as likely to occur or appear (Fact 1, 2). The use of the phrase in the context of the Specification is that the expected temperature is used for comparison to the actual temperature so that deviations between the two values help to identify malfunctions in the exhaust treatment device (Fact 3). In this context, the expected temperature map is what is looked for to occur when the catalytic converter is operating under normal operating conditions, and serves as the baseline for comparison to the actual temperature map. This interpretation is consistent with the object of the claimed device, namely to determine the condition of the exhaust treatment device (Fact 4). Giving claim 1 the broadest reasonable interpretation consistent with the Specification, a person of ordinary skill in the art would understand the claim to require the controller to compare the actual temperature map during certain operating conditions to a predicted temperature map under normal operating conditions for the catalytic converter. Using this claim construction, we now compare claim 1 to the reference. 8

9 Maus Maus discloses a controller (engine control 2 and/or electronic monitoring apparatus 10) for an internal combustion engine that uses the current temperature of the catalytic converter to minimize programmed deviations from optimum engine control designed to prevent excess catalytic converter temperature (increasing the periods of optimum control), while still protecting the catalytic converter from excess temperature (Facts 5, 6). Maus discloses that the controller has several capabilities. First, the controller can collect data from temperature sensors at each end of the catalytic converter surface to ascertain a temperature distribution, mean value and/or maximum value, and the controller calculates the catalytic converter s functional capability, conversion rate, and life expectancy (Fact 7). None of these capabilities involve an expected temperature. Second, the controller can compare actual temperature to a temperature limit such as a critical temperature or a starting temperature (Facts 5, 8). However, a temperature limit is not an expected temperature under normal operating conditions for the catalytic converter, as claimed. Finally, Maus also discloses that the controller can diagnose and respond to engine malfunctions by tracking changes to temperature over time (Fact 9). This capability is not disclosed as including a comparison of the actual temperature to a predicted temperature (Fact 10). Maus does not disclose a controller configured to compare an actual temperature to an expected temperature as recited in claim 1. We reverse the Examiner s decision to rejection claim 1 and its dependent claims 4-8, 10, and 11. Claims 12 and 25 each contain the same limitation related to the 9

10 controller, for this reason we also reverse the Examiner s decision rejecting claims 12 and 25, and their dependent claims 15-21, 23, 24, 28, 29, and 31. Rejection of claims 2, 3, 13, 14, 26, and 27 under 35 U.S.C. 103(a) as unpatentable over Maus and Saito The Examiner relies on Saito in the rejection of claims 2, 3, 13, 14, 26, and 27 to teach the use of an infrared temperature sensor, and does not allege that the teachings of Saito cure the deficiencies noted in the analysis of the first rejection, supra. Ans. 5. Therefore the rejection of claims 2, 3, 13, 14, 26, and 27 as being unpatentable over Maus and Saito also cannot be sustained. Rejection of claims 9, 22, and 30 under 35 U.S.C. 103(a) as unpatentable over Maus and Hardy Examiner relies on Hardy in the rejection of claims 9, 22, and 30 to teach the use of a particulate trap, and does not allege that the teachings of Hardy cure the deficiencies noted in the analysis of the first rejection, supra. Ans. 6. Therefore the rejection of claims 9, 22, and 30 as being unpatentable over Maus and Hardy also cannot be sustained. CONCLUSION The Appellant has shown the Examiner erred in finding that Maus discloses a controller configured to determine deviations from an expected temperature map. 10

11 DECISION We reverse the Examiner's decision to reject claims REVERSED Vsh CATERPILLAR/FINNEGAN, HENDERSON, L.L.P. 901 NEW YORK AVENUE, NW WASHINGTON DC