Appeal No. 2004-0750 Page 4
Application No. 09/992,223
equivalent to the difference between 1 and a percentage NOx storage capacity filled
defined by the pending application . . and thus is just a mirror image of Figure 2 in the
pending application” (Answer, page 4). The appellant argues that this is not the case,
and points out that as explained on pages 9-11 of the specification, the claimed system
provides a number of advantages over systems such as that disclosed by Kubo, in
particular, that it requires only one efficiency curve to be created, whereas Kubo’s
requires multiple curves.
For the reasons expressed in the appellants’ Brief and Reply Brief and
summarized below, it is our view that Kubo fails to establish a prima facie case of
obviousness with regard to the subject matter recited in claim 1, and therefore the
rejection of claims 1-3 and 5-11 cannot be sustained.
The examiner has admitted that Kubo does not disclose or teach either of the
steps recited in the appellants’ claim 1 but determines the point at which the
aftertreatment device needs to be purged, that is, when the level of NOx reaches the
maximum desired value, by a different method. Even if one were to assume, arguendo,
that the Kubo system is the equivalent of the claimed system, as the examiner
contends, the fact remains that it is different than the claimed system, and the examiner
has not adduced evidence which supports a conclusion that one of ordinary skill in the
art would have found it obvious to practice the method recited in claim 1 in view of the
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