Ex Parte CLODIC et al

Patent Trial and Appeal Board

Sep 12, 2018

13964627 (P.T.A.B. Sep. 12, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/964,627 08/12/2013 Denis CLODIC
40582 7590 09/14/2018
American Air Liquide, Inc.
Intellectual Property Department
9811 Katy Freeway
Suite 100
Houston, TX 77024
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.
SERIE 7021 US/CNT 7805
EXAMINER
CRENSHAW, HENRY T
ART UNIT PAPER NUMBER
3744
NOTIFICATION DATE DELIVERY MODE
09/14/2018 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):
IP-USOffice@airliquide.com
Neva.Dare-c@airliquide.com
J us tin.Murray@airliquide.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DENIS CLOD IC, F ABRICE DELCORSO,
JEAN-PIERRE TRANIER, and GOLO ZICK
Appeal2017-011665
Application 13/964,627
Technology Center 3700
Before JOHN C. KERINS, EDWARD A. BROWN, and
ANNETTE R. REIMERS, Administrative Patent Judges.
KERINS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Denis Clodic et al. (Appellants) 1 appeal under 35 U.S.C. § 134(a)
from the Examiner's final decision rejecting claims 50-65. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 According to the Appeal Brief, "Denis Clodic, Fabrice Delcorso,
Jean-Pierre Tranier, Golo Zick, and L' Air Liquide Societe Anynyme Pour
L'Etude Et L'Exploitation Des Procedes Georges Claude (Assignee)" are the
real parties in interest. Br. 4.
Appeal2017-011665
Application 13/964,627
THE INVENTION
Appellants' invention relates to thermal insulation of equipment, in
particular cryogenic equipment, by the use of several insulation
technologies. Spec. p. 1, 11. 11-14.
Claims 50, 63, and 65 are independent. Claim 50 is illustrative of the
claimed invention and reads as follows:
50. A cryogenic distillation apparatus comprising:
a structure comprising a ceiling, a floor and a plurality of
side walls, wherein the structure is a cold box having a
parallelepipedal shape;
at least one item of equipment disposed within the
structure, the at least one item of equipment selected from the
group consisting of a phase separator, a column, a heat
exchanger, a pump, a turbine, and combinations thereof, wherein
each item of equipment has a side periphery, and the side
periphery is made up of a first portion and a second portion, the
first portion being the portion of the side periphery that is located
at a distance from an outer surface of the closest side wall below
a given threshold, the second portion being the remaining portion
of the side periphery;
a main insulation contained in the space between the
equipment and the structure, wherein said main insulation
comprises a perlite insulation; and
a secondary insulation having a lower thermal
conductivity than the main insulation, wherein said secondary
insulation comprises at least one vacuum insulation panel,
wherein the secondary insulation is installed such that the
secondary insulation is configured to reduce the thermal flux
experienced by the first portion of the side periphery of the at
least one item of equipment attributable to the outside
atmosphere,
wherein the secondary insulation is selectively installed
such that there is an absence of the secondary insulation between
the second portion of the side periphery of the at least one piece
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Application 13/964,627
of equipment and a point of reference, wherein the point of
reference is selected from the group consisting of ( 1) the point
on the outer surface of the structure located closest to the second
portion of the side periphery of the at least one piece of
equipment if the secondary insulation is disposed within the
structure and (2) a location at a first distance away from the point
of the structure located closest to the second portion of the side
periphery of the at least one piece of equipment if the secondary
insulation is attached to the outer surface of the structure,
wherein the first distance is the width of the secondary insulation,
wherein the at least one item of equipment contains, in
operation, at least one fluid at a cryogenic temperature.
THE REJECTIONS
The Examiner has rejected:
(i) claims 50-65 on the ground of non-statutory obviousness-type
double patenting as being unpatentable over claims 1-19 of Clodic (US
8,528,362 B2, issued Sept. 10, 2013) and Smith (US 5,850,830, issued Dec.
22, 1998);
(ii) claim 50 under 35 U.S.C. § 112(b ), or pre-AIA § 112(b ), second
paragraph, as being indefinite;
(iii) claims 50-53, 55, 56, 58, and 63---65 2 under 35 U.S.C. § I03(a) as
being unpatentable over Rampp (US 2003/0110796 Al, published June 19,
2003), Bucher (US 2004/0031794 Al, published Feb. 19, 2004), Nowobilski
(US 4,726,974, issued Feb. 23, 1988), Applicants' Admitted Prior Art (Spec.
p. 10, para. 3), and Smith;
2 Claims 58 and 63-65 are omitted in the heading. Final Act. 3. However,
claims 58 and 63---65 are discussed in the body of the rejection. Id. at 8-15.
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(iv) claims 54, 60, and 61 under 35 U.S.C. § I03(a) as being
unpatentable over Rampp, Bucher, Nowobilski, Applicants' Admitted Prior
Art, Smith, and Morimoto (US 2002/0168496 Al, published Nov. 14, 2002);
(v) claim 57 under 35 U.S.C. § I03(a) as being unpatentable over
Rampp, Bucher, Nowobilski, Applicants' Admitted Prior Art, Smith, and
Sattelberg (US 4,461,399, issued July 24, 1984);
(vi) claim 59 under 35 U.S.C. § I03(a) as being unpatentable over
Rampp, Bucher, Nowobilski, Applicants' Admitted Prior Art, Smith, and
Vancauwenberghe (US 6,378,331 Bl, issued Apr. 30, 2002); and
(vii) claim 62 under 35 U.S.C. § I03(a) as being unpatentable over
Rampp, Bucher, Nowobilski, Applicants' Admitted Prior Art, Smith,
Paivanas (US 3,133,422, issued May 19, 1964), and Watanabe (US
5,376,424, issued Dec. 27, 1994).
ANALYSIS
Claims 50---65--0bviousness-Type Double Patenting
Claims 50-65 are rejected on the ground of non-statutory
obviousness-type double patenting. Final Act. 2; see also Non-Final Act.
20-26. Appellants do not present arguments directed to the rejection, and
have thus waived any such arguments. Accordingly, the rejection is
summarily sustained.
Claim 50--Indefiniteness
The Examiner finds that the limitation "the first distance is the width
of the insulation" is unclear because the width could be the insulation's
thickness or length along the surface of the equipment. Final Act. 2-3.
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Appellants do not present arguments directed to the rejection, and have thus
waived any such arguments. Accordingly, the rejection is summarily
sustained.
Claims 50---53, 55, 56, 58, and 63-65--0bviousness--
Ramp/Bucher/Nowobilski/Applicants 'Admitted Prior Art/Smith
The Examiner cites to Rampp as disclosing a cryogenic distillation
apparatus comprising cold box structure 101, at least one item of equipment
(low pressure column 107) disposed within the structure, and a main
insulation contained in the space between the equipment and the structure,
wherein the main insulation comprises a perlite insulation, and wherein the
at least one item of equipment contains, in operation, at least one fluid at a
cryogenic temperature. Final Act. 3--4 ( citing Rampp, Abstract; para. 28;
Figs. 1-2). The Examiner relies on Bucher as disclosing insulation
comprising a vacuum insulation material (layer 5) and a rock wool material
(layer 4). Id. at 4 ( citing Bucher, para. 34; Fig. 1 ). The Examiner concludes
that "[ w ]hen applied to Rampp, the walls of the cold box will have the
vacuum insulation material and the rock wool will be in the space between
the wall and the equipment." Id. at 4--5. In other words, the Examiner
concludes that it would have been obvious to modify the cryogenic
distillation apparatus of Rampp to substitute insulation having vacuum and
rock wool layers for the perlite insulation used in Rampp.
The Examiner finds that Nowobilski discloses that vacuum insulation
can be used in cold boxes in lieu of bulk form perlite and rock wool, and that
those two latter materials are essentially interchangeable. Id. at 5 ( citing
Nowobilski col. 1, 11. 5-12). The Examiner further points out that the
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Specification cites to Nowobilski as an example of a vacuum insulator
having a lower thermal conductivity than perlite. Id.; see also Spec. p. 10,
11. 14--16.
In light of the above findings, the Examiner concludes that
[i]t would have been obvious to one of ordinary skill in the art,
at the time of the invention, to modify Rampp, in view of Bucher,
Nowobilski and the APA, to provide an additional layer of
insulation so as to further reduce the heat transfer between the
cold box and the environment.
Final Act. 5. The Examiner further posits that
in all cold boxes, a primary issue is how to keep the inside of the
box cold by minimizing heat transfer into the box. Given the
myriad of possibilities for the design of a cold box, the manner
in which its operated, and the possibility that it[ s] functions may
be changed, for example, by changing the liquids handled by the
box to colder liquids, or rearranging components in the box, etc.,
the office maintains that situations can arise where the operators
will desire to retrofit a cold box with supplemental insulation,
and will use the basic physics of heat transfer as a guide in where
to install it.
Ans. 4.
Appellants argue, inter alia, that the above-quoted reasons to combine
the teachings of the references lack rational underpinnings. Br. 19-20. In
support, Appellants point out that the Examiner admits that Nowobilski
discloses vacuum panels as a substitute for bulk insulation (id. at 19), and
that Bucher does not tie the use of two types of insulation to optimize
insulation and structural integrity in a cold box to any teaching of providing
supplemental insulation only in key areas (id. at 20-21 ). As such,
Appellants contend that the Examiner relies on hindsight because the
proposed modification to provide an additional insulation layer to the
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Rampp structure as modified by Bucher can only be found in the
Specification. Id. at 23-24.
Even if it were obvious to replace the bulk perlite insulation of Rampp
with the dual-layer insulation of Bucher, a conclusion which Appellants do
not strenuously argue against, Appellants note that this substitution, as
articulated by the Examiner, would result in that insulation being positioned
throughout the cold box. Br. 19. As further indicated by Appellants, the
Examiner acknowledges that Nowobilski teaches use of vacuum panels as a
substitute for bulk insulation, so its teachings do not go any further toward
rendering obvious the claimed subject matter than does the Examiner's
modification of Rampp in view of Bucher, in terms of employing a
secondary insulation at a selective position or positions. Id. The Examiner
relies on Smith as teaching a possible positioning of secondary insulation
(Final Act. 6), but, as noted by Appellants, Smith is not directed to
attempting to retard heat transfer between two points. Br. 22.
The Examiner responds, stating that,
the motivations for making the combination of references is as
stated in the rejection. Namely, to add extra insulation to reduce
the loss of heat, but only in areas where it will be most effective
in order to save material costs. Excessive heat transfer and
excessive costs are not unknown problems.
Ans. 5.
Notwithstanding, the Examiner has not shown, through the teachings
of Rampp, Bucher, and Nowobilski, that persons of ordinary skill in the art
recognized a problem with insulating equipment in a cold box such that
taking measures to remedy uneven heat transfer therein, much less doing so
with selective positioning of secondary insulation, should be considered.
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The Examiner's discussion of the possibility of rearranging components in a
cold box, or retrofitting the cold box, as giving rise to a need or desire to
include supplemental insulation, and to position it using the "basic physics
of heat transfer," also appears to be a product of hindsight, particularly as the
Examiner points to no evidence of this concern as being within the
knowledge of those of ordinary skill in the art. Ans. 4.
On the whole, we do not find that the Examiner's position as to why it
would have been obvious, in view of the teachings of Rampp, Bucher,
Nowobilski, Applicant's Admitted Prior Art, and Smith, to provide the
claimed secondary insulation at the claimed positions within a cold box
structure to be well-founded in the knowledge of those of ordinary skill in
the art. Without persuasive articulated rationale based on rational
underpinnings for modifying the cryogenic distillation apparatus of Rampp
to have such secondary insulation, as proposed, we agree with Appellants
that the rejection appears to be the result of impermissible hindsight
analysis. See Br. 23-24; see also In re Kahn, 441 F.3d 977, 988 (Fed. Cir.
2006).
The rejection of independent claims 50, 63, and 65, and of claims 51-
53, 55, 56, 58, and 64 depending therefrom, is not sustained.
Claims 54, 60, and 61--0bviousness--Ramp/Bucher/Nowobilski/Applicants'
Admitted Prior Art/Smith/Morimoto
Claim 57--0bviousness--Ramp/Bucher/Nowobilski/Applicants 'Admitted
Prior Art/Smith/Sattelberg
Claim 59--0bviousness--Ramp/Bucher/Nowobilski/Applicants 'Admitted
Prior Art/Smith/Vancauwenberghe
Claim 62--0bviousness--Ramp/Bucher/Nowobilski/Applicants 'Admitted
Prior Art/Smith/Paivanas/Watanabe
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The Examiner does not rely on Morimoto, Sattelberg,
Vancauwenberghe, Paivanas, or Watanabe in any manner that would remedy
the above-noted deficiency in the rejection of claims 50, 63, and 65, from
which claims 54, 57, and 59---62 depend. Final Act. 16-20. For the same
reasons discussed supra, we do not sustain the obviousness rejections of
claims 54, 57, and 59---62.
DECISION
The rejection of claims 50-65 on the ground of non-statutory
obviousness-type double patenting is affirmed.
The rejection of claim 50 under 35 U.S.C. § 112, second paragraph is
affirmed.
The rejections of claim 50-65 under 35 U.S.C. § 103(a) are reversed.
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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