Ex Parte Cameron et al

Board of Patent Appeals and Interferences

Jan 12, 2012

10517906 (B.P.A.I. Jan. 12, 2012)

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.
10/517,906 11/07/2005 Andrew Miller Cameron M02B129 6895
20411 7590 01/12/2012
The BOC Group, Inc.
575 MOUNTAIN AVENUE
MURRAY HILL, NJ 07974-2082
EXAMINER
YANG, JIE
ART UNIT PAPER NUMBER
1733
MAIL DATE DELIVERY MODE
01/12/2012 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte ANDREW MILLER CAMERON and
CHRISTIAN JUAN FELDERMANN
____________

Appeal 2010-009820
Application 10/517,906
Technology Center 1700
____________

Before BRADLEY R. GARRIS, CHUNG K. PAK, and
TERRY J. OWENS, Administrative Patent Judges.

GARRIS, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2010-009820
Application 10/517,906

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Appellants appeal under 35 U.S.C. § 134 from the Examiner's
decision rejecting claims 1-21. We have jurisdiction under 35 U.S.C. § 6.
We AFFIRM-IN-PART.

Appellants claim a method of refining a ferroalloy comprising
blowing a gas which contains molecular oxygen into a melt of the ferroalloy,
introducing a metallurgically acceptable particulate material (e.g., an oxide
of chromium) which is "capable of providing a cooling effect" from above
into the melt in a first supersonic gas jet which travels to the melt shrouded
by a second supersonic gas jet (claim 1). The claimed method includes an
embodiment wherein the metallurgically acceptable particulate material is an
oxide of manganese (claim 8). The claimed method also includes an
embodiment wherein the second supersonic gas jet is formed of burning
gases (claim 14).
Representative claims 1, 8, and 14 read as follows:
1. A method of refining a ferroalloy, comprising blowing
a gas selected from molecular oxygen and a gas mixture
including molecular oxygen into a melt of the ferroalloy and
exothermically reacting the molecular oxygen with carbon in
the melt; introducing a metallurgically acceptable particulate
material, capable of providing a cooling effect, from above into
the melt in a first supersonic gas jet which travels to the melt
shrouded by a second supersonic gas jet; and forming velocities
of the first and the second supersonic gas jets for controlling
migration of said particulate material between said first and
second supersonic gas jets, the velocity of the second
supersonic gas jet being from 10% less to 10% greater than the
velocity of the first supersonic gas jet.
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Application 10/517,906

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8. A method according to claim 1, wherein the ferroalloy
is ferromanganese and the metallurgically acceptable particulate
material is an oxide of manganese.
14. A method according to claim 1, wherein the second
supersonic gas jet is formed of burning gases.
The references listed below are relied upon by the Examiner as
evidence of obviousness:
Schlichting 5,366,537 Nov. 22, 1994
Anderson et al. 6,241,510 B1 June 5, 2001
Edlinger 6,409,793 B1 June 25, 2002
Fritz 6,558,614 B1 May 6, 2003
The Examiner rejects claims 1-7, 9-14, and 19-21 under 35 U.S.C.
§ 103(a) as unpatentable over Schlichting in view of Edlinger and
correspondingly rejects claims 15-18 as unpatentable over these references
and further in view of Fritz. In the Answer, the Examiner newly rejects
claim 8 under 35 U.S.C. § 103(a) as unpatentable over Schlichting in view
of Edlinger and further in view of Anderson.

The Rejection based on Schlichting and Edlinger

Concerning independent claim 1, we share the Examiner's conclusion
that it would have been obvious to provide the coal-containing supersonic
gas jet of Schlichting's method with chromium oxide-containing dust in
order to obtain a high-grade ferrochromium alloy as taught by Edlinger
(Ans. para. bridging 4-5). Further, we agree with the Examiner's
determination that the chromium oxide in the so-modified method of
Appeal 2010-009820
Application 10/517,906

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Schlichting would be inherently "capable of providing a cooling effect" as
recited in claim 1 (id.).
Appellants argue that the above combination would not have been
obvious because the non-combustible chromium-containing dust of Edlinger
would inhibit the combustion desired by Schlichting and would render
Schlichting's method unsatisfactory for its intended purpose (App. Br. 11).
This argument is unpersuasive because it is unsupported by evidence.
Appellants have offered no evidence at all that adding chromium oxide-
containing dust to Schlichting's coal-containing gas jet would inhibit
combustion and render the method of Schlichting unsatisfactory.
Furthermore, Appellants' argument is undermined by Edlinger's express
teaching that it is advantageous to add coal to the chromium-containing jet
in order to maintain the necessary slag treatment temperature (col. 4, ll. 39-
40). That is, this teaching of Edlinger evinces that the combination of coal
and chromium oxide in a gas jet would not inhibit combustion and render
Schlichting's method unsatisfactory.
Appellants also argue that the Examiner's inherency position is
improper because no factual basis exists for believing that chromium oxide
would necessarily be capable of providing a cooling effect or for believing
that a person of ordinary skill in the art would recognize this capability
(App. Br. 12).
As correctly pointed out by the Examiner, the basis for considering
Edlinger's chromium oxide as inherently "capable of providing a cooling
effect" (claim 1) is the undisputed fact that Appellants disclose and claim
chromium oxide as possessing this capability (Ans. para. bridging 4-5; see
also Spec. 4-5 and claim 4). As for Appellants' argument relating to
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Application 10/517,906

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recognition of this inherent capability by a person of ordinary skill in the art,
such recognition is not required. See Schering Corp. v. Geneva Pharm.,
Inc., 339 F.3d 1373, 1377 (Fed. Cir. 2003).
Appellants argue that the Examiner has failed to establish a prima
facie case of obviousness for claims 9 and 10 which require that the
metallurgically acceptable particulate material is in fine particulate form
(claim 9) having a mean particle size of 1 mm or less (claim 10) (App. Br.
14).
This argument lacks convincing merit. The Examiner finds that the
chromium oxide-containing dust of Edlinger is disclosed as having "particle
sizes of below 4mm, preferably 0.5-2mm, which overlaps the particle size of
1 mm or less as recited in the instant claim [i.e., claim 10 which depends
from claim 9]" (Ans. 6; see also Edlinger col. 2, ll. 18-21). This finding has
not been disputed by Appellants in the record before us. Based on the
Examiner's undisputed finding, a prima facie case of obviousness has been
established for claims 9 and 10.
Finally, Appellants argue that the Examiner has failed to identify any
teaching or suggestion in the applied references of the claim 14 limitation
"wherein the second supersonic gas jet is formed of burning gases" (App.
Br. 15; Reply Br. 5-6).
For the reasons detailed by Appellants in the above referenced pages
of the Appeal Brief and the Reply Brief, this argument is persuasive. The
Schlichting disclosures cited by the Examiner for establishing the
unpatentability of claim 14 (Ans. 6, 12) contain no teaching or suggestion of
the limitation under consideration.
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Application 10/517,906

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The remaining claims in this rejection have not been separately argued
by Appellants (App. Br. 9-15).
In light of the foregoing, the § 103 rejection based on Schlichting and
Edlinger is affirmed as to claims 1-7, 9-13, and 19-21 but is reversed as to
claim 14.

The New Rejection based on Schlichting, Edlinger, and Anderson

The Examiner relies on Anderson to establish a prima facie case of
obviousness for claim 8 (Ans. para. bridging 7-8).
In response to this new rejection, Appellants filed a Reply Brief in
which they argue that the Examiner fails to identify any teaching or
suggestion in Anderson of the claim 8 limitation "wherein . . . the
metallurgically acceptable particulate material is an oxide of manganese"
(Reply Br. 6-7).
Appellants' argument is correct. The Anderson disclosures cited by
the Examiner (Ans. para. bridging 7-8) contain no such teaching or
suggestion. Moreover, this argument against the new rejection of claim 8
has not been rebutted by the Examiner (i.e., no Supplemental Answer has
been filed).
These circumstances compel us to reverse the Examiner's § 103
rejection of claim 8.

Appeal 2010-009820
Application 10/517,906

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The Rejection based on Schlichting, Edlinger, and Fritz

Appellants have directed no additional, separate arguments against
this rejection (App. Br. 15-16). As a consequence, we affirm this § 103
rejection of dependent claims 15-18 for the reasons given in affirming the
rejection of parent independent claim 1.

Conclusion

In summary, we affirm the rejections of claims 1-7, 9-13, and 15-21
but reverse the rejections of claims 8 and 14.

The decision of the Examiner is affirmed-in-part.

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-IN-PART
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