Ex Parte Carnahan et al

Patent Trial and Appeal Board

May 24, 2016

13425656 (P.T.A.B. May. 24, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/425,656 03/21/2012
73325 7590 05/26/2016
Matthew G. McKinney
Allen, Dyer, Doppelt, Milbrath & Gilchrist, P.A.
255 South Orange A venue
Suite 1401
Orlando, FL 32801
FIRST NAMED INVENTOR
Robert P. Carnahan
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
0121803 8542
EXAMINER
KEYWORTH, PETER
ART UNIT PAPER NUMBER
1777
NOTIFICATION DATE DELIVERY MODE
05/26/2016 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):
mmckinney@addmg.com
creganoa@addmg.com
skemraj@addmg.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ROBERT P. CARNAHAN,
CHRISTOPHER C. TUBBS, and NIDAL SAMAD 1
Appeal2016-004045
Application 13/425,656
Technology Center 1700
Before: CATHERINE Q. TIMM, MICHAEL P. COLAIANNI, and
BRIAND. RANGE, Administrative Patent Judges.
TIMM, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from the rejection of claims
10, 11, 13-16, 18, and 19. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.2
1 Appellants identify the real party in interest as Farm Pilot Project
Coordination, Inc. Appeal Br.2.
2 In our opinion below, we refer to the Specification filed March 21, 2012
(Spec.), Final Office Action mailed February 26, 2015 (Final), the Appeal
Appeal2016-004045
Application 13/425,656
CLAIMED SUBJECT MATTER
The claims are directed to a method of treating wastewater. Claim 10
is illustrative:
10. A method of treatment of wastewater, the
method comprising:
receiving wastewater for treatment;
removing solids of about 40 microns and larger
from the wastewater;
adjusting a pH of the wastewater until at least 90
percent of alkalinity of the wastewater is in the form of a
bicarbonate ion and the pH is between about 6.3 and
10.3, wherein the bicarbonate ion is a predominate
carbonate species;
adding a coagulant of ferric sulfate to the
wastewater at the rate between about 0.5 to 5.0 milliliters
of ferric ion to liter of wastewater;
transferring the resultant wastewater to a separator
to form coagulated solids of nitrogen compounds,
phosphorus compounds, suspended solids, and any
combination thereof; and
producing carbon dioxide to buoy up the
coagulated solids in the separator by reacting the ferric
sulfate with the wastewater.
Claims Appendix, Appeal Br. 13-14.
The Examiner rejects the claims as follows:
A. Claims 10, 11, 13-16, 18, and 19 under 35 U.S.C. § 112 i-f 1 as
failing to comply with the enablement requirement;
Brief filed September 8, 2015 (Appeal Br.), and the Examiner's Answer
mailed December 18, 2015 (Ans.).
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Application 13/425,656
B. Claims 10, 11, 13-16, and 18 under 35 U.S.C. § 103(a) as obvious
over McAninch3 in view of Stone,4 Barbaro,5 and Pollack; 6 and
C. Claim 19 under 35 U.S.C. § 103(a) as obvious over McAninch,
Stone, Barbaro, and Pollack and further in view of Burke. 7
OPINION
A. Enablement
The Examiner rejects claims 10, 11, 13-16, 18, and 19 under 35
U.S.C. § 112 i-f 1 as failing to comply with the enablement requirement. The
language at issue is found in claim 10 and reads: "adding a coagulant of
ferric sulfate to the wastewater at the rate between about 0.5 to 5.0 milliliters
of ferric ion to liter of wastewater." Claim 10 (emphasis added). According
to the Examiner, one of ordinary skill in the art would not know the amount
of ferric ions to add because the ml/l units pertain to a volumetric
concentration, a concentration measure not used in the prior art for ions.
Final 3.
Appellants contend that the ordinary artisan need only perform a
simple calculation to determine the amount of a particular coagulant needed
to obtain the claimed dosage of the ferric ion. Appeal Br. 4-5. According to
Appellants:
3 McAninch et al., US 4,744,903 issued May 17, 1988; hereinafter
"McAninch".
4 Stone US 5,948,269 issued Sept. 7, 1999.
5 Barbaro et al., US 2010/0193416 published Aug. 5, 2010; hereinafter
"Barbaro".
6 Pollock US 2008/0251439 Al published Oct. 16, 2008.
7 Burke US 5,670,047 issued Sept. 23, 1997.
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Application 13/425,656
One of ordinary skill in the art is aware that ferric sulfate is
typically provided in liquid form. The concentration of the
ferric sulfate solution that is commercially available can vary,
as well as the soluble ferric iron in the solution as it depends on
the selected source. However, the concentration of the ferric
sulfate and ferric ion will be indicated on the container from the
supplier.
Appeal Br. 4--5. Appellants provide a product data sheet from
CHEMTRADE as evidence to support their argument. Appeal Br., Appendix
B.
First, it is not clear that the product data sheet reflects what was
known in the prior art at the time of the invention. The data sheet states that
it was revised on September 3, 2014, a date after the filing date of the
current application. However, the Examiner did not fault the product data
sheet for this reason, and there can be no real dispute that ferric sulfate
solution was known in the art before Appellants' filing date. See, e.g.,
Stone, col. 5, 11. 33--44 (discussing the addition of an aqueous solution of
iron salt such as ferric sulfate to a wastewater stream).
In any case, the product data sheet lists the properties for Liquid
Ferric Sulfate, 50%" containing 10% soluble ferric iron (Fe+3). Although
Appellants appear to assume that 10% means 10 milliliters of ferric iron ions
per 100 milliliters of liquid ferric sulfate (Appeal Br. 5.), there is no
evidence of this. CHEMTRADE does not identify the units for the
percentage, and Appellants have not provided any evidence of how those of
ordinary skill in the art would understand the units. Without evidence of the
customarily used units for ion percentage in such solutions, we cannot say
that determining dosage is as straightforward as Appellants contend. Ferric
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Application 13/425,656
ions are ionic molecules, and as such, would be normally measured in terms
of mass, weight or moles rather than volume.
Appellants have not identified a reversible error in the Examiner's
conclusion of lack of enablement.
B. Obviousness
The Examiner rejects claims 10, 11, 13-16, and 18 under 35
U.S.C. § 103(a) as obvious over McAninch in view of Stone, Barbaro, and
Pollack and further adds Burke to reject claim 19.
We agree with Appellants that the combination of references relied
upon the by the Examiner fails to suggest producing carbon dioxide to buoy
up the coagulated solids in the separator by reacting the ferric sulfate with
the wastewater. Appeal Br. 6-9. In the wastewater treatment process of
Appellants, the buoying effect occurs due to the pH adjustment, which
results in the presence of bicarbonate ions in the wastewater. The resulting
bicarbonate ions in the wastewater react with the ferric sulfate to create
carbon dioxide in sufficient quantity to "float" the coagulated solids. Spec.
iTiT 17-19.
McAninch desires to separate inedible fat and solid waste from
wastewater of a meat packing and rendering facility. McAninch, col. 1, 11.
10-13. As is conventional, the inedible fat and tallow rise to the surface of
the wastewater, and are removed by skimming, while the solids settle to the
bottom, and are removed by pumping or augering. McAninch, col. 1, 11. 14--
48; col. 2, 11. 5-9. The skimmed fat is cooked and sold as inedible tallow.
McAninch, col. 2, 11. 10-16. McAninch adds a pH control composition and
a flocculent (e.g., aluminum sulfate) to improve the quality of the fat
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Application 13/425,656
skimmed off the top of the wastewater as well as improve the quality of the
water removed from the sludge. McAninch, col. 2, 11. 42-56 and col. 2, 1.
64---col. 3, 1. 37.
As recognized by the Examiner, McAninch does not suggest the use
of ferric sulfate as the coagulant, the use of bicarbonate ion, or the
production of carbon dioxide to buoy up the coagulated solids. Final 4. The
Examiner turns to Stone for a teaching of adjusting the alkalinity of the
wastewater using calcium bicarbonate and adding a ferric sulfate to remove
or suppress malodorous compounds. The Examiner turns to Pollock8 for
evidence that the reaction of various coagulants, such as alum and iron salts,
with bicarbonates releases carbon dioxide thus floating the sludge/solids.
Final 5. The Examiner concludes that it would have been obvious to one of
ordinary skill in the art to use the specific iron salt coagulant claimed (ferric
sulfate) in order to float solids that would dewater exceptionally well.
Final 6.
The problem is that McAninch desires to allow the solids to settle to
form a sludge that can be removed separately from the floating inedible fat.
Thus, we agree with Appellants that the ordinary artisan would not have had
a reason to adjust the pH of McAninch' s wastewater until at least 90 percent
8 The Examiner also cites Matsumoto, US 2002/0000413 Al, published Jan.
3, 2002 i-f 48 and Marikovsky et al., US 4,765,914, issued Aug. 23, 1988,
col. 5, 11. 12-31 to support a finding that the reaction between similar
coagulants and wastewater was known in the art. The portions of these
references cited by the Examiner discuss a reaction between aluminum
sulfate and bicarbonate in water. These references do not desire to buoy up
the solids, but rather seek to allow them to sink. Marikovsky discloses that
the carbon dioxide bubbles are attracted to the floes as the bubbles rise thus
increasing the buoyancy of the floes, but Marikovsky mixes the solution to
free the carbon dioxide before adding the solution to the wastewater.
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Application 13/425,656
of the alkalinity was in the form of a bicarbonate ion, and add ferric sulfate
because the ordinary artisan would not have wanted to form carbon dioxide
gas that would buoy up the coagulated solids. Appeal Br. 6-9. McAninch
would not want the solids to contaminate the floating inedible fat.
Pollack teaches a wastewater treatment process in a vertical shaft
bioreactor. Pollack ,-r 2. Pollack believes that, at temperatures below 60°C,
ammonium bicarbonate forms due to a high level of carbon dioxide and
ammonia in contact and under pressure for long periods of time. Pollack
i-f 60. According to Pollack, ammonium bicarbonate is very important in the
efficiency of the solid-liquid separation ( dewatering) step of the process.
Pollack ,-r 159. When the final product, processed below 60°C, is acidified
with, for instance, ferrous sulphate, 9 ammonium sulphate forms and carbon
dioxide (C02) is released, thus floating the sludge. Pollack i-f 161. Pollack
states that the floated sludge product dewaters exceptionally well. Id.
Although Pollack suggests producing carbon dioxide to buoy up
solids by reacting an iron sulfate (iron(II) sulfate rather than iron(III)sulfate)
with bicarbonate ions within a wastewater stream, the Examiner has not
relied upon Pollack in a manner that supports the specific conclusion of
obviousness articulated in the rejection. The Examiner relies upon Pollack
to support a conclusion that it would have been obvious to use the specific
iron salt coagulant claimed (ferric sulfate) in order to float solids that would
dewater exceptionally well in the process of McAninch. Final 5---6.
Although Pollack teaches floating the solids, McAninch desires to settle the
solids. The Examiner does not adequately explain why one of ordinary skill
9 Iron(II) sulfate (FeSQ4), a different iron sulfate than ferric sulfate, which is
iron(III) sulfate of formula Fe2(SQ4)3.
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Application 13/425,656
in the art would seek to float the solids of McAninch. Moreover, the fact
that McAninch wishes to settle the solids and float the inedible fats is
contrary to floating the solids. The Examiner has not applied the evidence in
a manner that establishes obviousness.
The Examiner applies Burke to reject claim 19, but the Examiner's
application of Burke does not remedy the deficiencies discussed above.
DECISION
We sustain the Examiner's rejection of claims 10, 11, 13-16, 18, and
19 under 35 U.S.C. §112 i-f 1, but do not sustain either of the Examiner's
rejections under 35 U.S.C. § 103(a). Because all of the claims remain under
rejection, the decision of the Examiner is affirmed.
TIME PERIOD FOR RESPONSE
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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