Plasma Tech Holdings, LLC

Patent Trials and Appeals Board

Jan 22, 2021

2019003982 (P.T.A.B. Jan. 22, 2021)

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.
13/715,915 12/14/2012 James Charles Juranitch RM-JX9 9030
103376 7590 01/22/2021
Dykema Gossett PLLC
4000 Wells Fargo Center
90 South Seventh Street
Minneapolis, MN 55402
EXAMINER
MERKLING, MATTHEW J
ART UNIT PAPER NUMBER
1725
NOTIFICATION DATE DELIVERY MODE
01/22/2021 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):
MN-IPmail@dykema.com
patents@dykema.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte JAMES CHARLES JURANITCH and RICHARD TARRANT
____________

Appeal 2019-003982
Application 13/715,915
Technology Center 1700
____________

Before LINDA M. GAUDETTE, JEFFREY B. ROBERTSON, and
MERRELL C. CASHION, JR., Administrative Patent Judges.

CASHION, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE

Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–6, 8–11, 13–16, and 18–20. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies “Plasma Tech Holdings, LLC” as the
real party in interest. Appeal Br. 1.
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Application 13/715,915

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The invention relates to the generation of a blended fuel using an
inductive and plasma based system. Spec. ¶ 6. Claim 1 illustrates the
invention (formatting added):
1. A method of producing a fuel, the method comprising the
steps of:
delivering a feedstock to a gassifier to generate a product
syngas, wherein the feedstock comprises at least one of a
municipal solid waste and a hazardous waste, wherein air,
oxygen-enriched air, or oxygen is added to the gassifier during
syngas generation, and wherein the gassifier comprises a metal
bath, an inductive heat source, at least one plasma torch to
reflect energy off the metal bath, and a small drain configured
to remove an inorganic slag from a top portion of the metal
bath; and
blending the product syngas with natural gas to form a
blended syngas fuel.
Appeal Br. 20 (Claims Appendix).

Independent claims 8 and 13 also recite methods of producing a fuel
similar to the method of claim 1 but include additional features.
The Examiner maintains the following rejections from the Examiner’s
Final Office Action dated April 4, 2018 (Ans. 3):
I. Claims 1, 4–6, 8, 11, 13, 16, and 18–20 rejected under pre-AIA
35 U.S.C. § 103(a) as unpatentable over Fulton (US 2007/0181083 A1,
published August 9, 2007), Roederer (FR 2555193 A1, published May 24,
1985)2, and Titus (US 5,847,353, issued December 8, 1998).

II. Claims 2, 3, 9, 10, 14, and 15 rejected under pre-AIA 35 U.S.C.
§ 103(a) as unpatentable over Fulton, Roederer, Titus, and Tsangaris (US

2 We rely on an English machine translation of Roederer entered by the
Examiner into the record on February 6, 2017. The translation is not
paginated. Therefore, for the purposes of this opinion, we enumerate the
pages beginning with the cover sheet as page 1.
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Application 13/715,915

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2008/0209807 A1, published September 4, 2008).

Appellant relies on the same line of argument to address all claims
under appeal. See generally Appeal Br. Accordingly, we select claim 1 as
representative of the subject matter claimed and decide the appeal based on
the arguments presented for claim 1.

OPINION
After review of the respective positions the Appellant provides in the
Appeal and Reply Briefs and the Examiner provides in the Final Office
Action, we affirm the Examiner’s prior art rejections of claims 1–6, 8–11,
13–16, and 18–20 based essentially on the Examiner’s fact-finding and
reasoning. We add the following for emphasis.
Independent claim 1
We refer to the Examiner’s Final Office Action for a complete
statement of the Examiner’s rejection of claim 1. Final Act. 2–4.
In addressing the rejection, both the Examiner and Appellant focus on
what should be the broadest reasonable interpretation of the term “hazardous
waste” describing a feedstock for the claimed method. Ans. 3–4; Appeal Br.
13–14. But, claim 1 recites “wherein the feedstock comprises at least one of
a municipal solid waste and a hazardous waste.” As drafted, the claim is not
limited to only hazardous waste as the feedstock. Moreover, even if we
were to agree with Appellant that “hazardous waste” is a term of art, such is
not sufficient to demonstrate reversible error in the Examiner’s rejection.
That is, Fulton teaches hydrogen can be produced by the partial oxidation of
various feedstocks through gasification. See Fulton ¶ 43. In addition, Titus
discloses the use of municipal and industrial waste for the production of a
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Application 13/715,915

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useful hydrogen containing gas as an energy source via gasification. Titus
col. 2, ll. 64–67, col. 3, ll. 56–65, col. 4, ll. 26–30; col. 12, ll. 3–13. These
teachings suggests both of Appellant’s recited feedstocks. See Final Act. 6.
Therefore, Appellant’s arguments do not identify reversible error in the
Examiner’s determination of obviousness for the reasons we give above.
Appellant argues that the Examiner has not explained how one skilled
in the art would modify Fulton’s process by substituting Fulton’s gassifier
with Roederer’s gassifier because Roederer is limited to using coal in
pulverulent state as a feedstock and does not disclose the use of other
possible feedstocks such as those recited in claim 1. Appeal Br. 8–9;
Roederer Abstr. Thus, Appellant contends that there is no reason to
combine the teachings of the cited art to arrive at the claimed invention.
Appeal Br. 11.
Appellant’s arguments are not persuasive of reversible error in the
Examiner’s determination of obviousness.
The Examiner finds that Fulton teaches a process of producing a fuel
using a gassifier to generate syngas from a feedstock and subsequently
blending the generated syngas with natural gas to form a blended fuel. Final
Act. 2–3; see Fulton Abstr., ¶¶ 35, 39, 42–43. The Examiner finds that
Fulton does not teach using the claimed gassifier. Final Act. 3. The
Examiner finds that Roederer teaches a gassifier that meets the limitations
recited in claim 1 as a known gassifier for producing a hydrogen containing
combustible from feedstock. Final Act. 3; see Roederer Figure 3, Abstr., 6.
The Examiner determines that it would have been obvious to one of ordinary
skill in the art to modify Fulton’s method of producing a fuel by substituting
Fulton’s gassifier with Roederer’s gassifier because both references are
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Application 13/715,915

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directed to producing hydrogen from feedstock. Final Act. 3. Thus, the
Examiner provides a reasonable basis why a person of ordinary skill in the
art would have combined the teachings of the cited art to arrive at the
claimed invention. In re O’Farrell, 853 F.2d 894, 904 (Fed. Cir. 1988)
(“For obviousness under § 103, all that is required is a reasonable
expectation of success.”). Appellant’s arguments do not address adequately
the Examiner’s reasons for combining the teachings of the cited art. In re
Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986); see also In re
Keller, 642 F.2d 413, 425–26 (CCPA 1981) (citations omitted) (“The test
[for obviousness] is what the combined teachings of the references would
have suggested to those of ordinary skill in the art.”).
Appellant’s contention that Roederer’s gassifier is limited to
pulvurelent carbon as the feedstock is also unpersuasive because, as we
discuss above, Fulton and Titus suggest that gassifiers are capable of
handling a diversity of feedstocks, including municipal waste, to generate a
hydrogen rich fuel. See Fulton ¶ 43 and Titus col. 2, ll. 64–67, col. 3, ll. 56–
65, col. 4, ll. 26–30; col. 12, ll. 3–13. Given these disclosures, Appellant
fails to explain adequately why one of ordinary skill in the art, using no
more than ordinary creativity, would not have been capable of modifying
Roederer’s gassifier so as to handle other known feedstocks used for the
generation of syngas, such as the ones taught by Fulton and Titus. KSR Int’l
Co. v. Teleflex Inc., 550 U.S. 398, 421 (2007) (“A person of ordinary skill is
also a person of ordinary creativity, not an automaton.”); In re Sovish, 769
F.2d 738, 743 (Fed. Cir. 1985) (presuming skill on the part of one of
ordinary skill in the art).

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Appellant argues that the combined teachings of the cited art do not
suggest a gassifier comprising a small drain configured to remove an
inorganic slag from a top portion of the metal bath, as claimed, because
Roederer teaches away from draining the slag. Appeal Br. 15. According to
Appellant, Roederer discloses that having a drain present to remove slag
from the iron bath would directly affect the ability to perform a continuous
process. Appeal Br. 15; Roederer 4.3
Appellant’s arguments are not persuasive of reversible error.
Roederer teaches the use of a drain 34 to discharge (remove) slag
accumulated in a decanter. Roederer 6. Thus, we discern no distinction in
the function of both Roederer’s drain and the claimed small drain and
Appellant fails to direct us to any distinction. While Appellant contends that
Roederer teaches away from removing the slag, the paragraph immediately
preceding the portion of Roederer that Appellant relies upon discloses an
embodiment that includes removal of the slag when enriched with
impurities. Id. at 4. When both paragraphs are read together, Roederer’s
embodiment comprising drain 34 appears to be, at best, a less preferred
embodiment. It is well settled that a reference may be relied upon for all
that it discloses and not merely the preferred embodiments as suggested by
Appellant. See Merck & Co. v. Biocraft Labs., Inc., 874 F.2d 804, 807 (Fed.
Cir. 1989) (“[A]ll disclosures of the prior art, including unpreferred
embodiments, must be considered.”) (quoting In re Lamberti, 545 F.2d 747,
750 (CCPA 1976)); see also In re Fracalossi, 681 F.2d 792, 794 n.1 (CCPA
1982) (explaining that a prior art reference’s disclosure is not limited to its

3 Note that we are using our paginated version of Roederer.
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examples). The disclosed examples and preferred embodiments do not
constitute a teaching away from a broader disclosure or non-preferred
embodiments. In re Susi, 440 F.2d 442, 446 n.3 (CCPA 1971). Appellant
has not explained adequately why Roederer’s disclosure of an embodiment
comprising a small drain limits or teaches away from Roederer’s broader
disclosure.
Accordingly, we affirm the Examiner’s prior art rejections of claims
1–6, 8–11, 13–16, and 18–20 for the reasons the Examiner presents and we
give above.

DECISION SUMMARY

In summary:

Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1, 4–6, 8,
11, 13, 16,
18–20
103(a) Fulton, Roederer,
Titus
1, 4–6, 8,
11, 13, 16,
18–20

2, 3, 9, 10,
14, 15
103(a) Fulton, Roederer,
Titus, Tsangaris
2, 3, 9, 10,
14, 15

Overall
Outcome
1–6, 8–11,
13–16,
18–20

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED