Ex Parte Boateng et al

Patent Trial and Appeal Board

Oct 6, 2017

12823319 (P.T.A.B. Oct. 6, 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.
12/823,319 06/25/2010 Akwasi A. Boateng 0136.08 7581
25295 7590 10/19/2017
USDA, ARS, OTT
5601 SUNNYSIDE AVE
RM 4-1159
REETSVIEIE, MD 20705-5131
EXAMINER
BOWERS, NATHAN ANDREW
ART UNIT PAPER NUMBER
1799
NOTIFICATION DATE DELIVERY MODE
10/19/2017 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):
Robin.McCormick@ars.usda.gov
Kelli. Gantt @ ars .u sda. gov
claudia.hedrick@ars.usda.gov
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte AKWASI A. BOATENG and NEIL M. GOLDBERG
Appeal 2017-000623
Application 12/823,3191
Technology Center 1700
Before TERRY J. OWENS, MONTE T. SQUIRE, and
DEBRA L. DENNETT, Administrative Patent Judges.
DENNETT, Administrative Patent Judge.
DECISION ON APPEAL2
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
Final Rejection of claims 15, 21—25, and 27. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.
1 Appellants identify the U.S. Department of Agriculture, Agricultural
Research Service as the real party in interest. Br. 4.
2 In our Opinion, we refer to the Final Action mailed October 16, 2015
(“Final Act.”); the Advisory Action mailed January 29, 2016 (“Adv. Act.”);
the Appeal Brief filed April 11, 2016 (“Br.”); and the Examiner’s Answer
mailed August 11, 2016 (“Ans.”). Appellants did not file a Reply Brief.
Appeal 2017-000623
Application 12/823,319
The claims are directed to bio-fuel injection systems comprising a
fluidized bed bioreactor. Claims 15 and 24, reproduced below with disputed
limitations italicized, are illustrative of the claimed subject matter:
15. A bio-fuel injection system comprising a fluidized bed
bioreactor, the fluidized bed reactor comprising a fluidized bed
material that is at least partially supported by a gas distribution
plate;
the gas distribution plate comprising a plurality of
vertically stacked screens',
wherein at least one of the screens has a dutch weave
design.
24. A bio-fuel injection system comprising a fluidized bed
bioreactor, the fluidized bed reactor comprising a fluidized bed
material that is at least partially supported by a gas distribution
plate;
the gas distribution plate comprising a plurality of
vertically stacked screens',
wherein the distribution plate is configured so that, inside
the periphery of the screens, there are no components or
materials sandwiched between the screens and wire mesh on an
outer periphery of each screen abuts wire mesh on an outer
periphery of an adjacent screen.
Br. 24 (Claims App’x).
REFERENCES
The Examiner relies on the following prior art in rejecting the claims
on appeal:
Huber et al. (“Huber”) US 2009/0227823 A1 Sept. 10, 2009
Belleville Wire Cloth Co., Inc., Wire, Weave & Mesh
Calculations, http://www.bwire.com/resources.html (last visited
April 28, 2015) (“BWC”).
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Application 12/823,319
Dorstener Wire Tech, Plain Dutch Weave Wire Cloth — Twill
Dutch Weave Wire Cloth, http://www.dwt-inc.com/plain-dutch-
twill-dutch-weave-wire-cloth.html (last visited April 28, 2015)
(“DWT”).3
REJECTIONS
The Examiner maintains and Appellants seek review of the rejections
under 35 U.S.C. § 103(a) as follows: (1) claims 24 and 25 over Huber; and
(2) claims 15, 21—23, and 27 over Huber in view of BWC and DWT. Final
Act. 3; Br. 6—7.
OPINION
Rejection of claims 24 and 25
The Examiner rejects claim 24 and its dependent claim 25 over Huber.
Final Act. 3; Adv. Act. 2. Appellants do not separately argue claim 25,
which stands or falls with claim 24. Br. 19.
The Examiner finds that Huber discloses a bio-fuel injection system
comprising a fluidized bed reactor that is at least partially supported by a gas
distribution plate. Final Act. 3. The Examiner further finds that Huber
teaches a gas distribution plate comprising a plurality of stacked screens that
are vertically aligned and have no components or materials sandwiched
between the screens. Id. The Examiner finds that “stacked” means placing
objects vertically on top of each other. Adv. Act. 2 (citing
http://www.merriam-webster.com/dictionary/stack). The Examiner
determines that one of ordinary skill in the art would have considered
3 Appellants do not challenge the websites (BWC and DWT) as prior art.
We note for the record that DWT indicates a copyright date of 2012—2014.
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Application 12/823,319
stacking equally-sized screens vertically on top of each other so that the
outer periphery of each screen abuts the outer peripheries of adjacent
screens. Final Act. 3. The whole of one screen will touch the whole of
another screen stacked on top of the first screen, therefore the wire mesh of
the screens will abut each other at the outer peripheries. Id.
Appellants argue that the claimed invention addresses problems with
most prior art gas distribution plates available at the time of the invention,
specifically identifying gas distribution plates taught by Kuo and by
Boateng. Br. 8—10. However, Appellants’ argument does not negate the
teachings of Huber.
The broadest reasonable interpretation of “stack” in light of the
Specification is “an orderly pile.” See www.merriam-
websters.com/dictionary/stack. Huber’s disclosure regarding a gas
distributor plate, although not extensive, is adequate to teach a plurality of
vertically stacked screens, given this interpretation. In re Am. Acad, of Sci.
Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004) (holding that during
prosecution, an application’s claims are given their broadest reasonable
scope consistent with the specification.). Appellants contend that “stacked
mesh” may mean a single layer mesh, based on evidence submitted of use of
the term in the context of an automobile grills, clothing, and nets. Br. 17.
Appellants’ evidence of use of a term not in the claims, and in contexts well
outside the scope of Huber’s catalyst support is not persuasive of reversible
error by the Examiner.
Appellants also argue that the Examiner improperly assumes that
Huber’s distributor plate is “made only from” steel mesh screens. Br. 13.
Appellants argue that the broadest reasonable meaning of Huber’s disclosure
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Application 12/823,319
is that additional materials could be sandwiched between steel mesh screens,
as in Kuo. Id. at 14.
However, Appellants’ argument is unpersuasive in light of Huber’s
disclosure of a distributor plate “made from a stacked 316 stainless steel
mesh.” Huber 1160. Huber does not disclose any additional materials
sandwiched between the stacked steel mesh. Appellants merely provide
attorney argument that, without more, is inadequate to overcome this
straightforward disclosure. Estee Lauder Inc. v. L’Oreal, S.A., 129 F.3d
588, 595 (Fed. Cir. 1997) (“Counsel’s argument cannot take the place of
evidence lacking in the record.”).
On the record before us, Appellants do not show reversible error by
the Examiner in rejecting claims 24 and 25 as obvious over Huber.
Rejection of claims 15, 21—23, and 27
The Examiner rejects claims 15, 21—23, and 27 as obvious over Huber
in view of the BWC and DWT product information websites. Final Act. 4;
Ans. 8. The Examiner finds that Huber discloses the apparatus claimed,
except that Huber does not teach using a dutch weave design or
combinations of different designs in the stacked screens. Final Act. 4. The
Examiner finds that a variety of weave patterns for wire mesh, including
dutch weave, are well known in the art. Id. at 4; Ans. 8.
Independent claims 15 and 27 require, in addition to a plurality of
vertically stacked screens, that at least one the screens has a dutch weave
design (claim 15) or that at least two of the vertically stacked screens exhibit
different mesh patterns (claim 27). Br. 24 (Claims App’x).
Appellants admit that “dutch weave is well known in the wire cloth art
in general.” Id. at 20. Appellants contend, however, that dutch weave is not
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Application 12/823,319
well known as a screen configuration in a bioreactor gas distribution plate,
and that the Examiner’s cited references do not teach or disclose the
limitation. Id. at 20 and 21; see also id. at 23.
Because Appellants do not dispute the Examiner’s finding that various
weaves, including dutch weave, are well known in the art, we accept the
finding as fact. One of ordinary skill in the art at the time of the invention
would have found it obvious to select a dutch weave or a combination of
weaves of wire mesh well known in the art to use in creating the gas
distributor plate of Huber. See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398,
418 (2007) (“[T]he [obviousness] analysis need not seek out precise
teachings directed to the specific subject matter of the challenged claim, for
a court can take account of the inferences and creative steps that a person of
ordinary skill in the art would employ.”).
Appellants contend that there are no arguments in the Final Action
stating why claims 21—23 are rejected. Br. 21. However, the Examiner
finds that Huber teaches (1) multiple vertically stacked screens, which
includes three screens of claim 21 (Final Act. 3); (2) vertically stacked
screens are connected as a periphery of the screens as required by claim 22
(id.); and (3) vertically stacked screens may exhibit different mesh patterns
as required by claim 23 (id. at 4). Therefore, the Examiner sufficiently
explains the rejection of claims 21—23 as obvious in the Final Action.
Appellants do not show that the Examiner reversibly errs in rejecting
claims 15, 21—23, and 27 as obvious.
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DECISION
For the above reasons, the Examiner’s rejection of claims 15, 21—25,
and 27 is 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)(l)(iv).
AFFIRMED
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