Ex Parte LaRue

Board of Patent Appeals and Interferences

Jun 11, 2009

10767978 (B.P.A.I. Jun. 11, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte ALBERT D. LARUE
____________

Appeal 2009-003260
Application 10/767,978
Technology Center 3700
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Decided1: June 11, 2009
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Before DONALD E. ADAMS, LORA M. GREEN, and
MELANIE L. McCOLLUM, Administrative Patent Judges.

ADAMS, Administrative Patent Judge.

DECISION ON APPEAL
This appeal under 35 U.S.C. § 134 involves claims 1-5, 7, 8, 11, and
32-37, the only claims pending in this application. We have jurisdiction
under 35 U.S.C. § 6(b).

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, begins to run from the decided date
shown on this page of the decision. The time period does not run from the
Mail Date (paper delivery) or Notification Date (electronic delivery).

Appeal 2009-003260
Application 10/767,978

STATEMENT OF THE CASE
The claims are directed to an over fire port arrangement for a fossil
fuel fired furnace or boiler. Claim 1 is illustrative:
1. An over fire port arrangement for a fossil fuel fired furnace or
boiler, comprising:
front and rear walls and a pair of sidewalls forming enclosure;
vertically spaced bottom, second and third level burners through at
least one of the front and rear walls generating bottom, second and third
flame paths, respectively, in the furnace enclosure when burning fossil fuel;
and
and over fire air port arrangement configured to efficiently reduce fuel
NOx formation during combustion in the furnace enclosure, the over fire air
port arrangement including
at least one bottom over fire air port through at least one sidewall
appropriately sized and positioned to transversely and directly inject over
fire air into the bottom flame path to provide sufficient residence time and
mixing of the over fire air in the bottom flame path without interfering with
the other flame paths; and
at least one middle over fire air port through at least one sidewall,
spaced vertically above and horizontally offset from the at least one bottom
over fire air port and appropriately sized and positioned to transversely inject
over fire air into at least one of the second and third level flame paths to
provide sufficient residence time and mixing of the over fire air in the at
least one of the second and third level flame paths without interfering with
the other flame paths.

The Examiner relies on the following evidence:
Kramer et al. US 5,809,913 Sep. 22, 1998

The rejections presented by the Examiner are as follows:
1. Claims 1, 3-5, 7, 8, and 11 stand rejected under 35 U.S.C. § 102(b) as
being anticipated by Kramer.
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Application 10/767,978

2. Claims 2 and 32-37 stand rejected under 35 U.S.C § 103(a) as
unpatentable over Kramer.
We reverse.

Anticipation:
ISSUE

Has Appellant demonstrated that the Examiner erred in finding that
Kramer teaches an over fire air port arrangement for a fossil fuel fired
furnace or boiler comprising at least one bottom over fire air port that is
appropriately sized and positioned to transversely and directly inject over
fire air into the bottom flame path?

FINDINGS OF FACT
FF 1. Kramer teaches a coal-fired utility boiler (Kramer, col. 1, ll. 5-6).
For clarity we reproduce Kramer’s Figures 5 and 6 below:

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Application 10/767,978

“FIG. 5 is an elevational view of an electric utility boiler, showing the
placement of the side wall slots of [Kramer’s] . . . invention” (Kramer, col.
3, ll. 32-34). “FIG. 6 is a perspective view of an electric utility boiler,
showing the placement of boundary air ports and the side wall slots of the
present invention” (Kramer, col. 3, ll. 35-38).
FF 2. Kramer teaches a boiler 10 including a front wall 11, a rear wall 12,
a first side wall 13, a second side wall 14, and a floor 15 (Kramer, col. 6, ll.
37-39).
FF 3. Kramer teaches that “[a] plurality of burners 16 are included in the
front wall 11 and/or rear wall 12” (Kramer, col. 6, ll. 42-43).
FF 4. Kramer teaches that
The side wall slots 18 are positioned in one or more of the side
walls 13 and 14. The side wall slots are positioned [s]o that the
side wall air introduced therethrough will catch the updraft
from the burners and push the side wall air up against the side
walls. In one preferred embodiment the side wall slots 18 are
arranged in one or more horizontal rows at or near the elevation
of the lowermost burner. In another preferred embodiment the
side wall slots 19 are arranged in one or more arcs, with the
lowermost side wall slot (preferably near the end of the arc) at
or near the elevation of the lowermost burner.

(Kramer, col. 6, ll. 48-58.)

FF 5. Kramer teaches that the side wall
slots are positioned to diminish both the area and the severity of
the reducing conditions. The slots are therefore designed and
positioned so that the side wall air is pushed back and up
against the wall. Air that penetrates will not protect the wall,
and if it mixes in under the burners it will defeat the low NOx
staging. Accordingly, the side wall slots of [Kramer’s]
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Application 10/767,978

invention are sized and positioned to avoid mixing in under the
burners.

(Kramer, col. 5, ll. 52-60.)
FF 6. Kramer teaches that since the side wall air “is introduced with low
momentum, it tends to stay near the walls and protect more of the walls”
(Kramer, col. 5, ll. 44-45). Kramer teaches that this air is “propelled upward
by the updraft from the burners, and thereby . . . provide[s] a curtain of air to
protect the side walls from corrosion” (Kramer, col. 3, ll. 7-9).
FF 7. Kramer teaches that “[o]verfire air ports 17 may also be included”
(Kramer, col. 6, ll. 45-46).
FF 8. The Examiner finds that Kramer teaches at least one bottom over fire
air port 18 that is positioned for directly injecting combustion air
transversely over the bottom burner port 16 and at least one middle over fire
air port 18 positioned for injecting combustion air transversely over at least
one of the second flame path 16 (Ans. 3).

PRINCIPLES OF LAW
Because the hallmark of anticipation is prior invention, the
prior art reference – in order to anticipate under 35 U.S.C. §
102 – must not only disclose all elements of the claim within
the four corners of the document, but must also disclose those
elements “arranged as in the claim.” Connell v. Sears, Roebuck
& Co., 722 F.2d 1542, 1548 (Fed.Cir.1983).
Net MoneyIN, Inc. v. VeriSign, Inc., 545 F.3d 1359, 1369 (Fed. Cir. 2008).

ANALYSIS
The claims are drawn to an over fire port arrangement for a fossil fuel
fired furnace or boiler. The Examiner finds that Appellant’s claims “merely
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Application 10/767,978

call[ ] for a boilder with four walls with vertically spaced combustion air
ports at three levels” (Ans. 7). We disagree. Appellant’s claimed over fire
port arrangement comprising, inter alia, at least one bottom over fire air port
that is appropriately sized and positioned to transversely and directly inject
over fire air into the bottom flame path to provide sufficient residence time
and mixing of the over fire air in the bottom flame path without interfering
with the other flame paths (Claim 12).
The Examiner, finds that Appellant’s
claimed purposes and functions regarding “sufficient residence
time and mixing of the over fire air in the bottom flame path
without interfering with the other flame paths” and “sufficient
residence time and mixing of the over fire air in the at least one
of the second and third level flame path without interfering with
the other flame paths” are . . . clearly shown and can be
accomplished by [the] Kramer patent.

(Ans. 7.) In this regard, rather than direct our attention to a specific
disclosure in Kramer that supports the Examiner’s position, the Examiner
simply asserts that Kramer’s port 18 is “appropriately sized and positioned
to transversely inject over fire air into at least one of the second (at 20) and
third (at 16) level flame paths to provide sufficient residence time and
mixing of the over fire air in the at least one of the second and third level
flame paths without interfering with the other flame paths” (Ans. 8).
In contrast, Appellant contends that “[t]he Examiner has not
established prima facie that Kramer et al. teaches an over fire air port
arrangement through at least one sidewall designed to transversely and

2 Claims 3-5, 7, 8, and 11 depend directly or indirectly from claim 1.
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Application 10/767,978

directly inject over fire air into the bottom flame path of the bottom burner”
(App. Br. 15). We find that Appellant has the better argument.
Appellant’s over fire air port is positioned to transversely and directly
inject over fire air into the bottom flame path of the bottom burner (Claim 1,
emphasis added). In contrast, Kramer’s side wall slots are “sized and
positioned to avoid mixing [air] in under the burners” (FF 5). Thus,
notwithstanding the Examiner’s unsupported assertion to the contrary (Ans.
7 and 9); there appears to be a structural difference between Appellant’s
claims and the Kramer patent.

CONCLUSION OF LAW
The Examiner failed to establish a prima facie case that Kramer
teaches at least one bottom over fire air port that is appropriately sized and
positioned to transversely and directly inject over fire air into the bottom
flame path.
The rejection of claims 1, 3-5, 7, 8, and 11 under 35 U.S.C. § 102(b)
as being anticipated by Kramer is reversed.

Obviousness:
ISSUE
Has Appellant demonstrated that the Examiner erred in concluding
that Kramer makes obvious an over fire air port arrangement for a fossil fuel
fired furnace or boiler comprising at least one bottom over fire air port that
is appropriately sized and positioned to transversely and directly inject over
fire air into the bottom flame path?

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Application 10/767,978

PRINCIPLES OF LAW
“In proceedings before the Patent and Trademark Office, the
Examiner bears the burden of establishing a prima facie case of obviousness
based upon the prior art.” In re Fritch, 972 F.2d 1260, 1265 (Fed. Cir. 1992).
Obviousness requires a suggestion of all the elements in a claim (CFMT,
Inc. v. Yieldup Int’l Corp., 349 F.3d 1333, 1342 (Fed. Cir. 2003)) and “a
reason that would have prompted a person of ordinary skill in the relevant
field to combine the elements in the way the claimed new invention does.”
KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007).

ANALYSIS
Independent claims 1 and 32 are drawn to an over fire air port
arrangement for a fossil fuel fired furnace or boiler comprising, inter alia, at
least one bottom over fire air port that is appropriately sized and positioned
to transversely inject over fire air into the bottom flame path to provide
sufficient residence time and mixing of the over fire air in the bottom flame
path without interfering with the other flame paths (Claims 1 and 32).
Claims 3-5, 7, 8, 11, and 37 depend directly or indirectly from claim 1.
Claims 33-36 depend directly or indirectly from claim 32.
The Examiner asserts that the structure of Kramer’s boiler is the same
as Appellant’s and therefore Kramer’s boiler is capable of performing the
function and achieving the same results as Appellant’s (Ans. 4). For the
reasons set forth above, we disagree.
As discussed above Kramer fails to teach an over fire air port
arrangement as set forth in Appellant’s claimed invention and the Examiner
has failed to explain why it would have been prima facie obvious to a person
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of ordinary skill in the art to modify Kramer to arrive at Appellant’s claimed
invention. In setting forth a rejection under 35 U.S.C. § 103, it is important
to identify “a reason that would have prompted a person of ordinary skill in
the relevant field to combine the elements in the way the claimed new
invention does.” KSR, 550 U.S. at 418.

CONCLUSION OF LAW
The Examiner failed to establish a prima facie case that Kramer
makes obvious an over fire air port arrangement for a fossil fuel fired
furnace or boiler comprising at least one bottom over fire air port that is
appropriately sized and positioned to transversely and directly inject over
fire air into the bottom flame path.
The rejection of claims 2 and 32-37 under 35 U.S.C § 103(a) as
unpatentable over Kramer is reversed.

REVERSED

Ssc:
BABCOCK & WILCOX POWER GENERATION GROUP, INC.
PATENT DEPARTMENT
20 SOUTH VAN BUREN AVENUE
BARBERTON, OH 44203
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