Ex Parte Cameron et al

Patent Trial and Appeal Board

Aug 24, 2017

13096161 (P.T.A.B. Aug. 24, 2017)

UNITED STATES PATENT AND TRADEMARK OFFICE
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
13/096,161 04/28/2011 Andrew M. Cameron P11A009 3995
20411 7590 08/24/2017
The Linde Group
200 Somerset Corporate Blvd.
Suite 7000
Bridgewater, NJ 08807
EXAMINER
MCALLISTER, STEVEN B
ART UNIT PAPER NUMBER
3749
MAIL DATE DELIVERY MODE
08/24/2017 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte ANDREW M. CAMERON and
ANDREW P. RICHARDSON

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Appeal 2016-000157
Application 13/096,161
Technology Center 3700
____________________

Before: JOHN C. KERINS, LEE L. STEPINA, and SEAN P. O’HANLON,
Administrative Patent Judges.

STEPINA, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from the Examiner’s
decision to reject claims 1–6 and 8–19. We have jurisdiction under 35
U.S.C. § 6(b).
We AFFIRM-IN-PART.

Appeal 2016-000157
Application 13/096,161

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CLAIMED SUBJECT MATTER
The claims are directed to an apparatus and method for heating a blast
furnace stove. Claim 1, reproduced below, is illustrative of the claimed
subject matter:
1. A method for heating a blast furnace stove, comprising;

combusting fuel in a combustion chamber in the stove,

providing combustion gases from the combustion chamber to
heat refractory material in the stove,

recirculating exhausted combustion gases into the combustion
chamber,

enriching the combustion chamber with oxygen, the enriching
comprising delivering a balance of total oxygen required in an
amount sufficient for maintaining combustion in the combustion
chamber with at least one oxy-fuel burner in communication with
the combustion chamber without damaging the refractory
material in the stove.
Br. 21 (Claims App.).

REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Kelmar US 3,460,934 Aug. 12, 1969
Gray US 3,547,624 Dec. 15, 1970
Edwardsen US 4,444,555 Apr. 24, 1984
Streicher US 6,813,902 B2 Nov. 9, 2004
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Hendershot US 2010/0077968 A1 Apr. 1, 2010
Farmayan US 2010/0252776 A1 Oct. 7, 2010

REJECTIONS
(I) Claim 18 is rejected under 35 U.S.C. § 112, second paragraph, as
indefinite.
(II) Claims 1–5, 8–10, 12, 13, and 15–18 are rejected under 35 U.S.C.
§ 103(a) as unpatentable over Kelmar and Gray.
(III) Claim 6 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Kelmar, Gray, and Edwardsen.
(IV) Claim 11 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Kelmar, Gray, and Farmayan.
(V) Claim 14 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Kelmar, Gray, and Streicher.
(VI) Claim 19 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Kelmar, Gray, and Hendershot.

OPINION
Rejection (I)
The Examiner determines that claim 18 is indefinite because the
phrase “recycling the combustion gases for maintaining flame temperature in
the combustion chamber at a level which is equal to or less than” is not
followed by a clear indication of what is being referenced. Final Act. 2–3.
In this regard, the Examiner poses the inquiry, “flame temperature in the
combustion chamber ‘is equal or less than’ what?” Id.
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Appellants state that the phrase “equal to or less than” “could be re-
written as --not less than--” and indicate willingness to accept such an
amendment. Br. 10. These comments do not address the Examiner’s
rejection, which is not concerned with the meaning of the phrase “equal to or
less than” itself. Rather, the Examiner’s concern relates to what would
normally follow such an expression, as is made clear by the Examiner’s
above-noted inquiry.
Appellants next argue that the remainder of claim 18 answers the
Examiner’s “equal to or less than what?” inquiry. Br. 10. Appellants
contend that claim 18 could be read as:
“recycling the combustion gases for maintaining flame
temperature in the combustion chamber at a level which is equal
to or less than (or “not greater than”) [i] the flame temperature
and [ii] the thermal energy throughput time unit, respectively”;
and [“]recycling the combustion gases for maintaining a thermal
energy transfer at the refractory material at a level which is equal
to or greater than (or “not less than”) [iii] the flame temperature
and [iv] the thermal energy throughput per time unit
respectively.”
Br. 10–11 (emphasis added). Thus, Appellants’ proposed construction of
claim 18 relates flame temperature to items (i) and (ii) and relates thermal
energy transfer to items (iii) and (iv). It is unclear how flame temperature
may be “not greater than” item (ii), i.e., thermal energy. The same issue
occurs when requiring thermal energy transfer to be not less than (iii), i.e.,
flame temperature. Consequently, Appellants’ proposed construction of
claim 18 is unclear. Further, we agree with the Examiner that claim 18 does
not clearly answer the question, “equal to or less than what?” Accordingly,
we sustain the Examiner’s rejection of claim 18 as indefinite.
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Rejection (II)
In two related cases (U.S. Serial No. 13/510,108; U.S. Serial No.
13/031,941), claims with scope similar to that of claim 1 were rejected as
unpatentable over different references than those applied here. See Br. 4;
Appeal No. 2015-007941; Appeal No. 2015-006932.
The Examiner relies on Kelmar to teach, among other things, a
method of heating a blast furnace stove, including combustion fuel in a
combustion chamber in a stove, and providing combustion gases from the
combustion chamber to heat refractory material in the stove. Final Act. 4
(citing Kelmar, Fig. 1; col. 10, ll. 15–35). The Examiner also finds that
combustion occurs in the stove of Kelmar without damaging the refractory
material. Id. However, the Examiner finds that Kelmar fails to teach “a
method for heating a blast furnace stove comprising enriching the
combustion chamber with oxygen by delivering a balance of total oxygen
required in an amount sufficient for maintaining combustion in the
combustion chamber with at least one oxy-fuel burner in communication
with the combustion chamber,” and the Examiner relies on the teachings of
Gray to remedy this deficiency. Id. at 4–5 (citing Gray, Figs. 1, 2, 4; col. 6,
ll. 27–70).
Appellants argue that Kelmar’s structure relates to a process different
than the one for which a blast furnace stove is used, and, therefore, the
Examiner errs in relying on Kelmar to teach the use of a blast furnace stove
as required by claim 1. Br. 12–13. In other words, Appellants contend that
claim 1 requires certain processes used with a blast furnace stove and that a
blast furnace does not qualify as a blast furnace stove.
In response, the Examiner states:
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a “blast furnace” is not taught anywhere in claim 1 or dependent
claims 2–6, 8–19. Thus, [the] Examiner asserts that the
Appellant’s [sic] argument with regard to a “blast furnace” [is]
not commensurate with the scope of the claim language. Further,
[the] Examiner notes that a “blast furnace” is mentioned in
Appellant’s [sic] Speciation, but the claim limitations do not
teach a “blast furnace”, thus a recitation of the intended use of
the claimed invention must result in a structural difference
between the claimed invention and the prior art in order to
patentably distinguish the claimed invention from the prior art.
Ans. 11. Thus, the Examiner finds that the blast furnace disclosed by
Kelmar meets the requirements of the stove recited in method claim 1.
Appellants’ argument rests on the scope of broadest reasonable
interpretation of the method recited in claim 1; particularly, in relation to the
term “the stove.” The preamble of claim 1 recites, “[a] method for heating a
blast furnace stove.” Br. 21 (Claims App.). “The effect preamble language
should be given can be resolved only on review of the entirety of the patent
to gain an understanding of what the inventors actually invented and
intended to encompass by the claim.” Corning Glass Works v. Sumitomo
Elec. U.S.A., Inc., 868 F.2d 1251, 1257 (Fed. Cir. 1989). The body of claim
1 repeatedly refers to “the stove,” antecedent basis for which is provided by
only by the preamble. Br. 21 (Claims App.). Paragraph 1 of the
Specification states, “[t]he present invention relates to a method for heating
a blast furnace stove for use with a blast furnace.” (Emphasis added.)
Paragraph 2 of the Specification explains the purpose of the stove, stating,
“[t]he combustion air supplied to a blast furnace is typically preheated using
a stove, comprising refractory material which is heated using a burner.” The
Specification also states, “the blast furnace and its ancillary equipment, such
as stoves, are the largest energy consumers in an integrated iron and steel
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works.” Spec. ¶ 7. Paragraphs 12, 22, 25, 30, and 47 of the Specification
similarly distinguish between a blast furnace stove and a blast furnace, and
describe how the stove is used to assist in the use of the blast furnace. In
light of the Specification, we determine that the “blast furnace stove” recited
in the preamble of claim 1 limits the broadest reasonable interpretation of
the method recited in claim 1 to use with blast furnace stoves. Further, in
light of the Specification, we determine that the broadest reasonable
interpretation of a “blast furnace stove” in claim 1 is not met by a blast
furnace itself. Accordingly, we agree with Appellants’ argument that the
blast furnace disclosed in Kelmar does not satisfy the requirement in claim 1
relating to the use of a blast furnace stove.
Appellants also assert error with the Examiner’s finding that Kelmar’s
ore, coke, and limestone correspond to “refractory material” as recited in
claim 1. Br. 13; see also Final Act. 4. The Examiner defines “refractory
material” as “material that is resistant to heat and retains its strength at high
temperatures.” Ans. 10. Even considering Kelmar’s ore, coke, and
limestone to be refractory material, as determined by the Examiner, Kelmar
discloses that these materials are liquefied and reduced to slag. See, e.g.,
Kelmar col. 10, ll. 15–35. These materials, therefore, are not resistant to
heat and, furthermore, are damaged by the combustion in the combustion
chamber. Accordingly, we agree with Appellants that Kelmar’s ore, coke,
and limestone do not correspond to the recited refractory material.
Therefore, for the foregoing reasons, we do not sustain the Examiner’s
rejection of claim 1 and claims 2–5, 8–10, 12, 13, and 15–18 depending
therefrom, as unpatentable over Kelmar and Gray.
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Application 13/096,161

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Rejections (III)–(VI)
The Examiner does not rely on any of the remaining references in any
way that remedies the deficiencies discussed above regarding the rejection
of claim 1. See Final Act. 15–19. Accordingly, we do not sustain
Rejections (III–VI).
DECISION
(I) We affirm the Examiner’s rejection of claim 18 as indefinite.
(II) We reverse the Examiner’s rejection of claims 1–5, 8–10, 12, 13,
and 15–18 as unpatentable over Kelmar and Gray.
(III) We reverse the Examiner’s rejection of claim 6 as unpatentable
over Kelmar, Gray, and Edwardsen.
(IV) We reverse the Examiner’s rejection of claim 11 as unpatentable
over Kelmar, Gray, and Farmayan.
(V) We reverse the Examiner’s rejection of claim 14 as unpatentable
over Kelmar, Gray, and Streicher.
(VI) We reverse the Examiner’s rejection of claim 19 as unpatentable
over Kelmar, Gray, and Hendershot.

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)(1)(iv).

AFFIRMED-IN-PART