Ex Parte Brereton et al

Patent Trial and Appeal Board

Jan 17, 2019

13262151 (P.T.A.B. Jan. 17, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/262,151 09/29/2011
22885 7590 01/22/2019
MCKEE, VOORHEES & SEASE, P.L.C.
801 GRAND A VENUE
SUITE 3200
DES MOINES, IA 50309-2721
FIRST NAMED INVENTOR
Clive Brereton
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.
Pl0039USOO 1047
EXAMINER
LIN,KO-WEI
ART UNIT PAPER NUMBER
3762
NOTIFICATION DATE DELIVERY MODE
01/22/2019 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):
patatty@ipmvs.com
michelle. woods@ipmvs.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CLIVE BRERETON and SERGIO BERRETT A
Appeal2017-008683
Application 13/262, 151
Technology Center 3700
Before: ANNETTE R. REIMERS, ERIC C. JESCHKE, and
BRENT M. DOUGAL, Administrative Patent Judges.
DOUGAL, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from a rejection of claims 1,
3-7, 10, 12-14, 17, 18, 20, 22-33, 35, 38, and 40. We have jurisdiction
under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
Appeal2017-008683
Application 13/262,151
CLAIMED SUBJECT MATTER
The claims are directed to a method and apparatus for vaporizing
liquid chlorine containing nitrogen trichloride, such as in a chlorine
production process. Claim 1 and 28, reproduced below, are the sole
independent claims and are illustrative of the claimed subject matter:
1. A method of vaporizing liquid chlorine containing nitrogen
trichloride in a plug-flow vaporizer oriented non-horizontally
and having an upward flow direction, comprising the steps of:
(a) receiving a stream comprising the liquid chlorine
containing at least 50 ppm nitrogen trichloride into the vaporizer;
(b) introducing a gas into the stream of step (a) upstream
of a boiling zone of the vaporizer at a gas flow rate that induces
a flow regime in the stream of step (a) that minimizes mass
accumulation of the nitrogen trichloride in the boiling zone of the
vaporizer; and
( c) vaporizing the liquid chlorine containing nitrogen
trichloride from step (b) to produce a stream comprising chlorine
gas and nitrogen trichloride gas.
28. An apparatus for vaporizing liquid chlorine containing at
least 50 ppm nitrogen trichloride, comprising:
(a) a plug-flow chlorine vaporizer oriented non-
horizontally and having an upward flow direction;
(b) an inlet for receiving a stream comprising the liquid
chlorine containing at least 50 ppm nitrogen trichloride into the
vaponzer;
( c) a boiling zone in the vaporizer downstream of the inlet
of paragraph (b );
( d) a gas inlet upstream of the boiling zone for introduction
of a gas into the liquid stream.
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Appeal2017-008683
Application 13/262,151
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Hunter
Balko
Kaplin
Okabe
us 2,199,797
us 4,230,673
us 5,437,711
EP 0730902 Al
REJECTIONS 1
May 7, 1940
Oct. 28, 1980
Aug. 1, 1995
Sept. 11, 1996
Claims 1, 3-7, 10, 12-14, 17, 18, 20, and 22-27 are rejected under 35
U.S.C. § 112 second paragraph as being indefinite.
Claims 1, 3, 5-7, 10, 12-14, 23, and 24 are rejected under 35 U.S.C.
§ I03(a) as being unpatentable over Balko and Okabe.
Claim 4 is rejected under 35 U.S.C. § I03(a) as being unpatentable
over Balko, Okabe, and Hunter.
Claims 17, 18, 20, and 22-27 are rejected under 35 U.S.C. § I03(a) as
being unpatentable over Balko, Okabe, and Kaplin.
Claims 28-31 and 38 are rejected under 35 U.S.C. § I03(a) as being
unpatentable over Balko.
Claims 32, 33, 35, and 40 are rejected under 35 U.S.C. § I03(a) as
being unpatentable over Balko and Kaplin.
1 The 35 U.S.C. § 112 rejections of claims 7 and 40 have been withdrawn.
Ans. 10.
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Appeal2017-008683
Application 13/262,151
OPINION
35 USC§ 112- Claim 1
Claim 1 is rejected as indefinite because the Examiner determines that
"[i]t's unclear what amount of accumulation is considered minimized" to
meet the claim limitation "minimizes mass accumulation of the nitrogen
trichloride in the boiling zone of the vaporizer." Non-Final Act. 2. The full
claim element states: "(b) introducing a gas into the stream of step (a)
upstream of a boiling zone of the vaporizer at a gas flow rate that induces a
flow regime in the stream of step (a) that minimizes mass accumulation of
the nitrogen trichloride in the boiling zone of the vaporizer."
Appellants argue that this phrase is not unclear in view of the
teachings of the Specification giving specific flow rates and discussing
"which yields levels of nitrogen trichloride ... are 'safe to handle."' Appeal
Br. 10 (citing Spec. 6:25, 10:4--18). Appellants also argue that one of skill
in the art would have been familiar with "what levels of nitrogen trichloride
in chlorine are 'safe to handle,"' as evidenced by a "publication[] of The
Chlorine Institute." Id. (citing Pamphlet 21, submitted to the Office January
26, 2015).
The Examiner does not address Appellants' evidence, but does state
that the phrase "safe to handle" is not in the claims. Ans. 11-12.
However Appellants' Specification, Pamphlet 21, and the art cited by
the Examiner (see e.g., Balko and Okabe) all teach the desire to "minimize
mass accumulation of the nitrogen trichloride" in order to maintain the
amount of nitrogen trichloride at a safe level, or at a level that is safe to
handle. At the same time, Appellants' evidence and the cited prior art make
clear that the exact point where the amount of nitrogen trichloride present
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Appeal2017-008683
Application 13/262,151
creates a dangerous situation is not known. See e.g., Spec. 1, 11. 17-29, 4, 11.
6-10. Dangerous levels are known and the evidence teaches amounts that
are believed to be safe.
The Examiner further states that "[ w ]ithout clearly providing any
range or value for the amount of mass accumulation of nitrogen trichloride,
one of ordinary skill in the art would not know how much of the mass
accumulation is considered 'minimized' and would not know what gas flow
rate should be used in this method step." Ans. 12.
However, Appellants' Specification provides explicit flow rates, as
noted by Appellants, and yet, unaddressed by the Examiner. See Spec.
10:4--18.
In view of the above, we do not sustain the Examiner's§ 112 rejection
that claim 1 is unclear.
35 US.C. § 103 - Claim 1
The Examiner relies on Balko' s vaporizer 41 and the liquid chlorine
and nitrogen trichloride stream that is fed thereto, in finding that Balko
teaches most of the features of the method of claim 1. Non-Final Act. 3. In
particular, the Examiner finds that Balko' s combining of the chlorine gas
and nitrogen trichloride with liquid chlorine "at the intersection of line 29
and 31," which is "upstream of a boiling zone of the vaporizer," meets most
of the limitations of steps a and b of the claim. Id.
Step (b) of claim 1 requires that a gas be introduced into "a stream
comprising the liquid chlorine containing at least 50 ppm nitrogen
trichloride." However, Balko teaches introducing liquid chlorine into a
stream of chlorine gas with nitrogen trichloride. Balko 4:34--46, Fig. 1.
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Application 13/262,151
This is the opposite of what is required by the claim. See Appeal Br. 7. As
all of the claim elements have not been shown to be in the prior art, a prima
facie case of obviousness has not been set forth.
We further note that the combination "at the intersection of line 29
and 31" occurs around the time of the precooling at 21, during which the
chlorine gas is separated from the nitrogen trichloride, which condenses and
combines with the liquid chlorine. Balko 4:34--46, Fig. 1. This liquid is
then either gravity fed or pumped into the vaporizer 41. Id. at 5:26-44. It is
unclear how the combination at 29 and 31 would "induce[] a flow regime in
the stream of step (a) that minimizes mass accumulation of the nitrogen
trichloride in the boiling zone of the vaporizer," as any flow regime induced
by introducing a gas would be disrupted by gravity feeding or pumping only
the liquid into the vaporizer 41 after processing in the precooler 21.
The Examiner further finds that "Okabe teaches NC13 gas is produced
in a vaporizer" and that "[i]t would have been obvious ... to modify Balko
by adding an additional vaporizer with higher heating capability in order to
effectively vaporize the chlorine and decomposing NCL3." Non-Final Act.
4. However, the Examiner fails to provide a reason why one of skill in the
art would vaporize nitrogen trichloride or why one would modify Balko to
allow vaporizing of nitrogen trichloride.
For all of these reasons, we do not sustain the rejection of claim 1, nor
do we sustain the rejections of the dependent claims, which rely on the
rejection of claim 1.
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Application 13/262,151
35 USC§ 103- Claim 28
The Examiner finds that Balko teaches most features of the apparatus
of claim 28. Non-Final Act. 8. Appellants argue that Balko does not teach
the "introduction of a gas into a liquid stream" similar to claim 1. However,
being that claim 28 is directed to an apparatus, rather than a method, the step
of introducing gas into a liquid stream is not required. Claim 28 merely
requires "a gas inlet" capable of "introduction of a gas into the liquid
stream." Claim 2 8 also requires "an inlet" capable of "receiving a stream
comprising the liquid chlorine containing at least 50 ppm nitrogen
trichloride into the vaporizer."
Although "[a] patent applicant is free to recite features of an apparatus
either structurally or functionally ... , choosing to define an element
functionally ... carries with it a risk." In re Schreiber, 128 F.3d 1473, 1478
(Fed. Cir. 1997). This risk is that Appellants bear the burden to prove that
the prior art does not possess the functional characteristic, once the
Examiner has shown a sound basis for believing the claimed structure to be
the same as the prior art structure. See In re Spada, 911 F.2d 705, 708 (Fed.
Cir. 1990).
In view of the Examiner's findings, we determine that the Examiner
has provided a sound basis for believing that the claimed structure is the
same as that identified by the Examiner in the cited prior art. Appellants do
not show error in this finding by the Examiner. Thus, we are not informed
of error in the rejection of claim 28.
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Appeal2017-008683
Application 13/262,151
DECISION
TheExaminer'srejectionofclaims 1,3-7, 10, 12-14, 17, 18,20,and
22-27 under 35 U.S.C. § 112 is reversed.
The Examiner's rejections of claims 1, 3-7, 10, 12-14, 17, 18, 20, and
22-27 under 35 U.S.C. § 103(a) are reversed.
The Examiner's rejections of claims 28-33, 35, 38, and 40 under 35
U.S.C. § 103(a) are 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). See 37 C.F.R.
§ 1.136(a)(l )(iv).
AFFIRMED-IN-PART
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