Ex Parte Simpson

Patent Trial and Appeal Board

Aug 5, 2013

11667746 (P.T.A.B. Aug. 5, 2013)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
11/667,746 05/14/2007 Gregory D. Simpson 07095-PCT-PA
(0965.0004)
3314
7590 08/06/2013
HODES, PESSIN & KATZ, P.A.
Department of Intellectual Property
Suite 400
901 Dulaney Valley Road
Towson, MD 21204
EXAMINER
SLIFKA, COLIN W
ART UNIT PAPER NUMBER
1732
MAIL DATE DELIVERY MODE
08/06/2013 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 GREGORY D. SIMPSON1
________________

Appeal 2012-005565
Application 11/667,746
Technology Center 1700
________________

Before MARK NAGUMO, KAREN M. HASTINGS, and
DONNA M. PRAISS, Administrative Patent Judges.

NAGUMO, Administrative Patent Judge.

DECISION ON APPEAL
Gregory D. Simpson (“Simpson”) timely appeals under 35 U.S.C.
§ 134(a) from the final rejection of claims 1-20, which are all of the pending
claims. We have jurisdiction under 35 U.S.C. § 6. We affirm.

1 The real party in interest is listed as the inventor, Gregory D. Simpson,
with ChemCal, Inc. as the exclusive licensee. (Appeal Brief,
filed 24 August 2011 (“Br.”), 32.)
Appeal 2012-005565
Application 11/667,746

2
OPINION
A. Introduction2
The subject matter on appeal relates to an apparatus for making the
disinfecting oxidizing water-treatment agent chlorine dioxide, ClO2, which,
unlike chlorine (Cl2), does not result in the formation of carcinogenic
trihalomethane compounds. In the apparatus, chlorine gas, produced by the
reaction of acid (e.g., HCl) with bleach (NaOCl), is reacted with chlorite
(e.g., NaOCl2) to produce chlorine dioxide. The claimed apparatus draws
the aqueous reagents into a statically mixed chamber via a partial vacuum
created by water flow through an “eductor.” The reagents pass through
fixed flow restrictors and the concentrations of the reagents are adjusted so
appropriate amounts are introduced, taking the parameters of the apparatus
into account. Additional water is provided to carry the chlorine dioxide
solution to the point of use.
Representative Claim 1 reads:
An apparatus for the generation of chlorine dioxide
comprising:
a reaction column assembly having a first end and an
opposite second end,
the first end being connected to an eductor,

2 Application 11/667,746, Apparatus and method of producing chlorine
dioxide, filed 14 May 2007, as the national stage of PCT/US05/42036,
filed 21 November 2005, claiming the benefit of a provisional application
filed 23 November 2004.
Appeal 2012-005565
Application 11/667,746

3
means to provide a constant motive water flow to an
inlet of the eductor thereby creating a vacuum at the
first end of the reaction column assembly,
a first fixed flow restrictor and a second fixed flow
restrictor formed in the second end of the reaction column
assembly,
a mixing chamber in the reaction column assembly
communicating with the first and the second fixed flow
restrictors,
a third fixed flow restrictor communicating with the
mixing chamber,
a static mixer disposed in the mixing chamber,
an outlet fitting formed in the second end of the mixing
chamber,
the outlet fitting being connected to [the] eductor,
a supply of a predetermined concentration of an aqueous
solution of acid connected to the first fixed flow restrictor,
a supply of a predetermined concentration of an aqueous
solution of bleach connected to the second fixed flow
restrictor,
a supply of a predetermined concentration of flow
aqueous solution of chlorite connected to the third fixed
flow restrictor,
with each fixed flow restrictor having a predetermined
orifice diameter in relation to vacuum produced by flow
of motive water to determine the respective volume of
precursor to flow to the mixing chamber,
wherein vacuum produced by flow of motive water
through the educator [sic: eductor] causes the aqueous
solutions of acid and bleach to flow at a respective
predetermined, controlled rate through the first and
second fixed flow restrictors,
Appeal 2012-005565
Application 11/667,746

4
the solutions of bleach and acid reacting in the mixing
chamber to form chlorine,
the chlorine so formed passing into the mixing chamber
and reacting with the aqueous solution of chlorite to
produce chlorine dioxide,
the produced chlorine dioxide being drawn out of the
outlet fitting into the solution and being carried by the
motive water flow to a point of use,
the concentrations of the aqueous solution of acid, bleach
and chlorite being predetermined by the orifice diameter
of the respective first, second and third fixed flow
restrictors.
(Claims App., Br. 18-19; most indentation and paragraphing, and emphasis
added.)
The Examiner maintains the following grounds of rejection:3
A. Claims 1-7 and 9 stand rejected under 35 U.S.C. § 103(a) in
view of the combined teachings of Mason,4 Kelley,5 and
Hoeppel.6
A1. Claim 8 stands rejected under 35 U.S.C. § 103(a) in view of
the combined teachings of Mason, Kelley, and Hoeppel or
Hicks.7

3 Examiner’s Answer mailed 21 December 2011 (“Ans.”).
4 John Y. Mason et al., Chlorine dioxide generator, U.S.
Patent 6,468,479 B1 (2002).
5 Joseph M. Kelley et al., Process of preparing chlorine dioxide and
apparatus therefor, U.S. Patent 5,009,875 (1991).
6 Raymond W. Hoeppel, Apparatus for safely generating and dispensing a
gas, U.S. Patent 4,479,918 (1984).
7 Bruce Hicks, Chlorine dioxide generation apparatus and process, U.S.
Patent 4,247,531 (1981).
Appeal 2012-005565
Application 11/667,746

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B. Claims 10-20 stand rejected under 35 U.S.C. § 103(a) in view
of the combined teachings of Mason and Hoeppel.
B. Findings of Fact
Findings of fact throughout this Opinion are supported by a
preponderance of the evidence of record.
Initially, we find that although Simpson argues the rejection of
claim 10 separately (Br. 15), the basis of the argument is the same as the
argument for the patentability of claim 1. Thus, all claims stand or fall with
claim 1.
Simpson argues that there is no suggestion in the applied prior art to
eliminate the metering valves used in the chlorine dioxide generating
apparatus described by Mason. (Br. 13, 1st full para.) Simpson does not
otherwise substantively dispute the Examiner’s factual findings and
conclusions regarding Mason (describing an apparatus with most of the
features required by claim 1; Ans. 5-7), Kelley (describing a static mixer in a
chlorine dioxide generating apparatus; Ans. 5, last para.), and Hoeppel
(describing a method of mixing reactants in which a liquid reactant is
introduced to a reactor via a capillary restricting the flow, and in which air
flow into the reactor can also be regulated by passing the air through a
tubing having a restricted diameter; Ans., para. bridging 5-6, citing Hoeppel,
col. 3, ll. 30-54.) Simpson’s only comment regarding Hoeppel is that “only
precursor volume and orifice diameter are addressed.” (Br. 16, last para.8)

8 Although Simpson’s arguments here are directed to claim 10, we also
apply them to claim 1.
Appeal 2012-005565
Application 11/667,746

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In this regard, Simpson adds that “Mason et al[.] only teaches a relationship
between precursor volume and orifice diameter.” (Id.)
As the Examiner explains (Ans. 8), a person having ordinary skill in
the art would have understood from Hoeppel that controlled quantities of
liquid reagents can be introduced to a reactor via fixed flow restrictors such
as capillaries. Simpson does not dispute the Examiner’s findings that both
Mason and Kelley describe ClO2 generators in which reagents are
introduced to the reactor using partial vacuums provided by water flow
through an eductor. As for the measured volumes, measured concentrations,
and measured diameters of the fixed flow restrictors emphasized by Simpson
(Br. 12), claim 1 requires no more than that the apparatus generate chlorine
dioxide from the starting materials. That function is provided by both
Mason and Kelley. Thus, it follows that a person having ordinary skill in the
art would have selected restrictions in the diameter of inlets, following
Hoeppel, to provide appropriate amounts of reagents to the mixing chamber
to generate ClO2. Simpson has not directed our attention to any credible
evidence that such selection would have required undue experimentation or
ingenuity beyond the level of the ordinary chemical reactor designer.
The evidence submitted in the Declaration of Mr. Simpson, the
inventor, is merely conclusory as to nonobviousness, as the teachings of
Hoeppel are not addressed.
We conclude that harmful error has not been proven in the rejections
maintained by the Examiner.
Appeal 2012-005565
Application 11/667,746

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C. Order
We affirm the rejection of claims 1-20.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED

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