Ex Parte Rouchy et alDownload PDFPatent Trial and Appeal BoardDec 23, 201612865935 (P.T.A.B. Dec. 23, 2016) Copy Citation 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. 12/865,935 08/06/2010 Patrice Rouchy 364018US41PCT 7557 22850 7590 12/28/2016 OBLON, MCCLELLAND, MAIER & NEUSTADT, L.L.P. 1940 DUKE STREET ALEXANDRIA, VA 22314 EXAMINER KRINKER, YANA B ART UNIT PAPER NUMBER 1747 NOTIFICATION DATE DELIVERY MODE 12/28/2016 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): patentdocket @ oblon. com oblonpat @ oblon. com ahudgens@oblon.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte PATRICE ROUCHY and PAUL NETTER Appeal 2015-008183 Application 12/865,935 Technology Center 1700 Before JEFFREY T. SMITH, KAREN M. HASTINGS, and MICHAEL P. COLAIANNI, Administrative Patent Judges. HASTINGS, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants seek our review under 35 U.S.C. § 134(a) of the Examiner’s decision rejecting claims 17—32 and 34-40. We have jurisdiction over the appeal under 35 U.S.C. § 6(b). We AFFIRM. Appeal 2015-008183 Application 12/865,935 Independent claim 17 reads (emphasis added to highlight disputed limitations): 17. A method of heating a bath of molten glass using a furnace including side walls including transverse burners and fitted with regenerators, the method comprising: supplying at least one transverse burner with oxidant including less than 30 vol % oxygen and with fuel, such that a ratio of an impulse of the oxidant to an impulse of the fuel ranges from 5 to 13; providing an oxidant supply pipe oriented such that a direction of an extension of a crown of the oxidant supply pipe is inclined downward toward a surface of the bath of molten glass; and providing a fuel supply pipe oriented upward so as to converge with the direction of the extension of the crown of the oxidant supply pipe, wherein respective directions imparted to the fuel and oxidant are convergent at a point where the fuel and oxidant leave the fuel supply pipe and the oxidant supply pipe, respectively, and wherein the oxidant is preheated m a regenerator to a temperature m excess of 1200°C. App. Br. 14 (Claims Appendix). The Examiner maintains the following rejections:1 (a) claims 17—22, 26—29, 31, 32 and 34 rejected under 35 U.S.C. 1 The Examiner cites to two references to Mahendra Ladharam Joshi by the second named inventors (Habel (Joshi, US 2006/0057517 Al), O’Connor (Joshi, US 5,251,823)) to distinguish between them in the discussion of the rejections. We continue this nomenclature to be consistent with the Answer and the Briefs. 2 Appeal 2015-008183 Application 12/865,935 § 103(a) as unpatentable over Quirk (US 5,569,312, issued October 29, 1996), Koeder (DE 10 2005 005 735A1, published August 10, 2006 and relying on an English machine translation dated May 4, 2012) and Habel (citing to Joshi, US 2006/0057517 Al, published March 16, 2006), (b) claim 23 rejected under 35 U.S.C. § 103(a) as unpatentable over Quirk, Koeder, Habel and Brown (US 5,560,758, issued October 1, 1996), (c) claims 24 and 25 rejected under 35 U.S.C. § 103(a) as unpatentable over Quirk, Koeder, Habel and Borders (US 2003/0054301 Al, published March 20, 2003), (d) claim 30 rejected under 35 U.S.C. § 103(a) as unpatentable over Quirk, Koeder, Habel and O’Connor (citing to Joshi, US 5,251,823, issued October 12, 1993), and (e) claims 35—40 rejected under 35 U.S.C. § 103(a) as unpatentable over Quirk, Koeder, Habel, Brown and Borders. For Rejection (a), Appellants present arguments for independent claim 17 and dependent claims 21 and 22. See Appeal Brief, generally. Appellants also present separate arguments for claim 23 (Rejection (b)). App. Br. 11. Appellants rely on the arguments presented when discussing claim 17 in addressing the rejection of claims 18—20, 24—32 and 34—38 and 40. (Rejections (a) (c)—(e)). App. Br. 9-12. Appellants further rely on the arguments presented when discussing claim 21 in addressing the rejection of claim 39 (Rejection (e)). App. Br. 11—12. Accordingly, we select claim 17 as representative of the subject matter before us for review on appeal. Claims 18—20, 24—32 and 34—38 and 40 stand or fall with claim 17. Claims argued separately will be addressed separately. 3 Appeal 2015-008183 Application 12/865,935 ANALYSIS Rejections (a), and (c)—(e) We have reviewed each of Appellants’ arguments for patentability. However, we determine that a preponderance of the evidence supports the Examiner’s § 103 rejection of representative independent claim 17 (Rejection (a)). Accordingly, we will sustain all of the Examiner’s rejections for essentially those reasons expressed in the Answer. We add the following for emphasis. Independent claim 17 requires a method of heating a bath of molten glass comprising supplying oxidant and fuel such that a ratio of an impulse of the oxidant to an impulse of the fuel (impulse ratio) ranges from 5 to 13. We refer to the Examiner’s Final Action for a statement of the rejection. Final Act. 2—3. Claim 17 Appellants assert the impulse ratios disclosed in Koeder are not relevant to the impulse ratio of claim 17 because Koeder discloses a burner arrangement in which an oxygen supply pipe 10 is arranged concentrically around a natural gas supply tube 13 (both fluids leaving their respective duct in parallel directions) while the claimed invention recites the oxidant supply pipe and the fuel supply pipe are oriented so that respective directions imparted to the fuel and oxidant converge at some point inside the furnace. App. Br. 8; Reply Br. 1—2; Koeder Figure 1. We are unpersuaded by this argument. As noted by the Examiner, Koeder teaches the impulse ratio of oxidant to fuel results in low thermal NOx and CO emission and does not attribute this result to the particular 4 Appeal 2015-008183 Application 12/865,935 concentric burner arrangement used. Ans. 3; Koeder 110. Appellants direct us to no portion of Koeder that supports Appellants’ assertion that the concentric burner arrangement impacts the disclosed impulse ratio of oxidant to fuel in reducing NOx emissions. Appellants have also not provided an adequate technical explanation why the impulse ratio disclosed by Koeder would have been unsuitable for the burner arrangement of Quirk, particularly since Quirk is also directed to reducing NOx emissions. Ans. 3; Quirk col. 1,11. 7—12. Appellants argue Koeder’s oxygen-fuel burner is a burner that works with pure oxygen while the claimed invention recites the oxidant includes less than 30 vol% oxygen. App. Br. 8. However, the evidence supports the Examiner’s finding that Koeder is not limited to pure oxygen as the oxidant. Ans. 2—3. Appellants have not directed us to any portion of Koeder that teaches or suggest the use of pure oxygen as the only oxidant. Moreover, Quirk teaches as known to use air (less than 30% oxygen) as a source of oxidant in glass making furnaces. Quirk col. 1,11. 14—20. Appellants’ argument that Koeder discloses a preferred impulse ratio of 0.8—1.2 outside the claimed ratio is also unavailing for the reasons presented by the Examiner. App. Br. 9; Ans. 5; Koeder 114. It is well settled that a reference may be relied upon for all that it would have reasonably suggested to one having ordinary skill in the art, including non preferred embodiments. Merck & Co. v. Biocraft Labs., Inc., 874 F.2d 804, 807 (Fed. Cir. 1989) (“all disclosures of the prior art, including unpreferred embodiments, must be considered”) (quoting In re Lamberti, 545 F.2d 747, 750 (CCPA 1976)). As noted by the Examiner, Koeder’s broader range of an impulse ratio of oxidant to fuel of 0.45—10 overlaps the claimed ratio of 5 Appeal 2015-008183 Application 12/865,935 5—13. Final Act. 3; Koeder | 8. Appellants’ argument does not distinguish the claimed invention from the broader teachings of Koeder. Appellant broadly refers to the data presented in Examples 1,3,4 and 6 of the Specification as evidence of unexpected results for the claimed range of impulse ratios. App. Br. 9; Specification 12—14. However, Appellants have the burden of explaining any evidence that supports a finding of unexpected results and merely referring to the Specification is not sufficient. Ex parte Ishizaka, 24 USPQ2d 1621, 1624 (BPAI 1992).2 Appellants argue neither Koeder nor Quirk discloses preheating the oxidant in a regenerator to a temperature in excess of 1200 °C. App. Br. 9; Koeder 124; Quirk col. 9,1. 9. We are also unpersuaded by this argument for the reasons presented by the Examiner. Ans. 4. The Examiner relied upon Habel to establish preheating to temperatures in excess of 1200 °C as known. Final Act. 3; Habel 12. Appellants’ argument does not address the rejection as presented by the Examiner. 2 Nevertheless, the data relied upon from the Examples in the Specification are not commensurate in scope with the claims. Appellants Examples 2 and 5 tests impulse ratios at the lower end of the claimed range. Spec. 13—14. Appellants do not explain why these limited examples are representative of the entire scope of the claimed range of impulse ratios. 6 Appeal 2015-008183 Application 12/865,935 Claims 21, 22 and 39 Claims 21, 22 and 39 are directed to the angular placement of the oxidant and fuel supply pipes in a wall of a furnace. The Examiner found Quirk shows that the crown of the oxidant supply pipe is angled in a downward direction and that the fuel supply pipe is directly under the oxidant supply pipe angled in an upward direction. Final Act. 4; Ans. 5—6; Quirk Figure 1, col. 5,11. 15—35, col. 7 11. 6—19. While Appellants argue Quirk does not disclose the specific claimed ranges of angular placement, we agree with the Examiner’s determination that, absent a showing of criticality for the claimed angular placement ranges, one skilled in the art would have been capable of determining the appropriate placement of the oxidant and fuel supply pipes so as to have their inlets across the surface of the melting glass to transfer heat to the glass in the melting and refining chamber. Ans. 5—6; Quirk col. 5,11. 27—34. Accordingly, we affirm the Examiner’s prior art rejections of claims 17—22, 24—32 and 34^40 under 35 U.S.C. § 103(a) (Rejections (a) and (c)- (e)) for the reasons presented by the Examiner and given above. Rejection (b) Dependent claim 23 requires that the ratio of an oxidant inlet cross section to a fuel inlet cross section of the at least one transverse burner ranges from 20 to 2.105. The Examiner relied on the additional reference to Brown as teaching the cross-sectional area of the fuel and oxygen orifices in a furnace are results effective variables. Final Act. 6; Brown col. 5,11. 20-25. 7 Appeal 2015-008183 Application 12/865,935 We have considered Appellants’ argument that Brown does not teach the ratio of an oxidant inlet cross section to a fuel inlet cross section as a result effective variable and are unpersuaded by it for the reasons presented by the Examiner. App. Br. 11; Ans. 6—7. Moreover, as noted by the Examiner, Appellants have not provided any objective evidence of criticality for this ratio. Ans. 7. Accordingly, we affirm the Examiner’s prior art rejection of claim 23 under 35 U.S.C. § 103(a) (Rejection (b)) for the reasons presented by the Examiner and given above. ORDER The Examiner’s prior art rejections of claims 17—32 and 34-40 are affirmed. TIME PERIOD No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1). AFFIRMED 8 Copy with citationCopy as parenthetical citation