Appeal No. 2004-0750 Page 5
Application No. 09/992,223
Kubo disclosure. Of particular interest in this regard is the discussion of the differences
between the two systems provided by the appellants on pages 13-18 of the Brief, which
the examiner has rebutted only by stating that Kubo’s “available NOx storage capacity”
“is recognized in the art as equivalent to the ‘NOx storage capacity filled’ in the pending
application” (emphasis added). In support of this assertion, the examiner merely takes
“Official Notice” that “the selection of any of these known equivalents would be within
the level of ordinary skill in the art,” without presenting evidence to that fact. See
Answer, page 14.
Thus, the examiner’s positions regarding the alleged equivalency of the claimed
system and that of Kubo, and that Kubo would have suggested the claimed system to
one of ordinary skill in the art, are not supported by evidence.
Claim 4 depends from claim 1, and stands rejected as being unpatentable over
Kubo in view of Takeshima, the latter being cited for teaching purging the device when
the calculated level of NOx stored in the device is above a predetermined value. Be
that as it may, Takeshima does not, from our perspective, overcome the deficiencies
pointed out above with regard to the rejection of claim 1. This being the case, the
rejection of claim 4 is not sustained.
We reach the same result with the rejection of claims 12-14 as being
unpatentable over Kubo and Takeshima. The two steps discussed above with regard to
claim 1 also appear in independent claim 12. Since we have found in the foregoing
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