11086490 (B.P.A.I. Jan. 29, 2009)

Ex Parte Debras

Board of Patent Appeals and InterferencesJan 29, 2009

11086490 (B.P.A.I. Jan. 29, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE _________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES __________ Ex parte GUY DEBRAS __________ Appeal 2008-6331 Application 11/086,490 Technology Center 1700 ___________ Decided: January 29, 2009 ___________ Before ADRIENE LEPIANE HANLON, PETER F. KRATZ, and MARK NAGUMO, Administrative Patent Judges. HANLON, Administrative Patent Judge. DECISION ON APPEAL A. STATEMENT OF THE CASE This is an appeal under 35 U.S.C. § 134 from an Examiner’s final rejection of claims 13, 14, 17, 18, and 20-23, all of the claims pending in the application. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. Appeal 2008-6331 Application 11/086,490 The following Examiner’s rejection is before us for review: Claims 13, 14, 17, 18, and 20-23 are rejected under 35 U.S.C. § 102(e) as anticipated by Korhonen.1 Final Office Action mailed October 25, 2006, at 3. B. CLAIMED SUBJECT MATTER The claims on appeal are directed to an apparatus for producing polyethylene comprising a main reactor and a preliminary reactor connected to an inlet of the main reactor. Claims 14 and 18 recite that a second main reactor is connected in series with the first main reactor. Claim 13 is representative of the issue on appeal and reads as follows: 13. An apparatus for producing polyethylene, the apparatus comprising a main reactor having an inlet for receiving gaseous olefin monomer and an outlet for outputting polyethylene, and a preliminary reactor connected to a second inlet of the main reactor, the preliminary reactor being arranged to be operable in the gas phase and having at least one respective inlet for receiving a solid catalyst and at least one treatment agent and a respective outlet for releasing waste gases from the preliminary reactor to provide for removal of the waste gases from the preliminary reactor wherein said main reactor is a loop-type reactor. [Emphasis added.] App. Br., Claims Appendix.2 Claim 13 recites that the preliminary reactor has “at least one respective inlet” and “a respective outlet for releasing waste gases from the preliminary reactor.” Likewise, the remaining claims on appeal (claims 14, 17, 18, 20-23) recite that the preliminary reactor has “at least one respective 1 US 6,197,264 B1 issued to Korhonen et al. on March 6, 2001. 2 Revised Appeal Brief dated September 14, 2007. 2 Appeal 2008-6331 Application 11/086,490 inlet” and “a respective outlet for releasing waste gases from the preliminary reactor.”3 C. ISSUE Has the Appellant shown that the Examiner reversibly erred in finding that Korhonen describes a preliminary reactor having “a respective outlet for releasing waste gases from the preliminary reactor” as recited in the claims on appeal? C. PRINCIPLES OF LAW “To anticipate a claim, a prior art reference must disclose every limitation of the claimed invention, either explicitly or inherently.” In re Schreiber, 128 F.3d 1473, 1477 (Fed. Cir. 1997). D. ANALYSIS Referring to an Examiner-modified version of Korhonen Figure 2, reproduced below, and column 7, line 45 to column 9, line 27 of Korhonen, the Examiner found that Korhonen “clearly disclose[s] a polymerization apparatus that is substantially identical to the apparatus as claimed.” Ans. 4.4 3 Claims 21 and 23 further recite that the preliminary reactor has “another outlet connected to a recycle line connected back to said preliminary reactor.” 4 Examiner’s Answer dated January 11, 2008. 3 Appeal 2008-6331 Application 11/086,490 Examiner-modified Korhonen Figure 2 depicts an olefin polymerization apparatus. The Examiner found that prepolymerization reactor 1 corresponds to the claimed preliminary reactor, loop reactor 40 corresponds to the claimed first main reactor, and the gas phase reactor 60 corresponds to the claimed second main reactor. Ans. 4-5. As for the preliminary reactor having “a respective outlet for releasing waste gases from the preliminary reactor” as recited in the claims on appeal, the Examiner found that outlet 51 “can be an effective means for releas[ing] waste gases from the preliminary reactor.” Ans. 5. The Appellant points out that outlet 51 passes out of the main or loop reactor, not the preliminary reactor as recited in the claims on appeal. Reply Br. 2.5 The Appellant argues: It is clear that the Examiner is interpreting the pending claim language so broadly as to include any outlet passing out of any reactor within the system as capable of functioning as an outlet 5 Reply Br. dated March 11, 2008. 4 Appeal 2008-6331 Application 11/086,490 for releasing waste gases. Such an interpretation is a gross misrepresentation of the claim language. Reply Br. 2. The claims on appeal require an outlet from the preliminary reactor for releasing waste gases. The Appellant’s argument that outlet 51 does not pass out of the preliminary or prepolymerization reactor 1, but rather passes out of the main or loop reactor 40, is well-supported by the record. See Korhonen 9:3-12; Korhonen Fig. 2. On the record before us, the Examiner has failed to direct us to any portion of Korhonen that describes a preliminary reactor having an outlet for releasing waste gases from the preliminary reactor as recited in the claims on appeal. For this reason, we are constrained to reverse the rejection under 35 U.S.C. § 102(e) before us. Schreiber, 128 F.3d at 1477. E. DECISION The rejection of claims 13, 14, 17, 18, and 20-23 under 35 U.S.C. § 102(e) as anticipated by Korhonen is reversed. REVERSED 5 Appeal 2008-6331 Application 11/086,490 PL Initial: Sld FINA TECHNOLOGY INC P.O. BOX 674412 HOUSTON, TX 77267-4412 6