Ex Parte LI et alDownload PDFPatent Trial and Appeal BoardSep 19, 201713434029 (P.T.A.B. Sep. 19, 2017) Copy Citation United States Patent and Trademark Office 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. 13/434,029 03/29/2012 Hongtao LI 310213-8 US 3344 226 7590 General Electric Company Global Patent Operation 175 Addison Road P.O. Box 500 WINDSOR, CT 06095 09/21/2017 EXAMINER MEADE, LORNE EDWARD ART UNIT PAPER NUMBER 3741 NOTIFICATION DATE DELIVERY MODE 09/21/2017 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): gpo.mail@ge.com Janey.Bruno@ge.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte HONGTAO LI, HOLGER GERHARD NAGEL, CELINE MAHIEUX, and FRANCOIS DROUX Appeal 2016-001460 Application 13/434,029 Technology Center 3700 Before: CHARLES N. GREENHUT, JILL D. HILL, and BRENT M. DOUGAL, Administrative Patent Judges. GREENHUT, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. § 134 from a rejection of claims 1— 3, 6—11 and 14—18. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. Appeal 2016-001460 Application 13/434,029 CLAIMED SUBJECT MATTER The claims are directed to a power plant for CO2 capture. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1 A power plant comprising: a power part; a C02 power part; a flue gas system for mixing flue gas flow paths of the power part and the C02 power part into a mixed flue gas mass flow path; and a C02 capture system for removing C02 from mixed flue gas, wherein the power part is a fossil fuel fired steam power plant or a gas turbine based power plant, and wherein the C02 power part is a fossil fuel fired steam power plant or a gas turbine based power plant for providing at least thermal and electrical power to capture C02 from the mixed flue gas mass flow path; wherein at least one of the power part and the C02 power part includes a gas turbine based power plant configured for flue gas recirculation of flue gases of that gas turbine into an inlet gas path of that gas turbine. REJECTIONS In the Final Action, the Examiner rejected claims 8, 9, 10, and 16 under 35U.S.C. § 112, second paragraph, as indefinite. The Examiner rejected, under 35U.S.C. § 112, first paragraph, claims 9 and 10 as failing to comply with the enablement requirement and claim 18 as failing to comply with the written description requirement. In the Advisory Action, the Examiner withdrew the rejection of claims 9, 10, and 18 under § 112, first paragraph and the rejection of claims 9 and 10 under § 112, second paragraph. No correspondence subsequent to the Final Action from either the Appellants or the Examiner mentions the rejection of claims 8 and 16 2 Appeal 2016-001460 Application 13/434,029 under § 112, second paragraph set forth the in the Final Action. The status of this rejection is therefore unclear. As it is not appealed, we summarily sustain it to the extent it has not been withdrawn. See e.g. In re Berger, 279 F.3d 975 (Fed. Cir. 2002) (in which the Board affirmed an uncontested rejection of claims under 35 U.S.C. § 112, second paragraph, and on appeal the Federal Circuit affirmed the Board’s decision and found that the appellant had waived his right to contest the indefmiteness rejection by not presenting arguments as to error in the rejection on appeal to the Board). See also, Hyatt v. Dudas, 551 F.3d 1307, 1314 (Fed. Cir. 2008) (“the applicant can waive appeal of a ground of rejection”). Claims 1,3, and 6—8 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Hegerland (WO 2007/081214 Al; published July 19, 2007), as evidenced by1 Henry (US 3,607,034; issued Sept. 21, 1971) in view of Kataoka (US 6,256,976 Bl; issued July 10, 2001). Final Act. 10. Claims 14 and 15 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Hegerland, as evidenced by Henry, in view of Gorin (US 4,008,310; issued Feb. 15, 1977), Hustad (US 2009/0317315 Al; published Dec. 24, 2009) and Kataoka. Final Act. 27. Claims 14 and 15 are also 1 Although this is a rejection under § 103(a) as opposed to § 102, we understand the “as evidenced by” language to refer to a reference that is cited in one of the capacities contemplated by MPEP § 2131.01, i.e., to explain the meaning of, or show inherency of, something in the primary reference. Here, Henry is relied upon by the Examiner to demonstrate that the fossil fuel fired power plants suggested by Hegerland as implementation targets for Hegerland’s system (Final Act. 11 citing Hegerland p. 11,11. 24— 28) refer to those plants known to use the fossil fuels to generate steam. Final Act. 12. This would seem implicit in Hegerland (see p. 12,11. 4—6) but this fact is, in any case, undisputed by Appellants. 3 Appeal 2016-001460 Application 13/434,029 rejected under 35 U.S.C. § 103(a) as being unpatentable over Kataoka, Hustad, Hegerland, and Gorin. Final Act. 44. Appellants concisely list the remaining rejections of the dependent claims on pages 16—17 of the Appeal Brief and argue these rejections based only on dependency. These rejections are not repeated here for the sake of brevity. OPINION Appellants combine the arguments for both rejections of claims 14 and 15 and raise essentially the same issues as raised with regard to independent claims 1 and 8. Where functional language of apparatus claims 1 and 8 is at issue, the corresponding manipulative steps of method claim 14 would be construed more narrowly, to require actual performance of the steps as opposed to structure simply configured for performing the recited functions of the apparatus claim. This is a distinction without a difference in this case because, for the reasons discussed below, we are in agreement with the Examiner that the prior-art relied upon discloses the narrower actual performance. Accordingly, we address the issues raised with respect claims 1, 8 and 14 together. Appellants’ first argument pertains to what Appellants characterize as the “independent operation” of the “power part” recited in the independent claims. App. Br. 7—8, 14. Appellants argue that Hegerland’s second turbine 27 cannot operate unless the first turbine 4 is operating. App. Br. 7. First, as the Examiner correctly points out (Ans. 12—13), this argument does not focus on the actual language of the claims and does not appear to be commensurate in scope therewith. Second, as also pointed out by the Examiner (Ans. 16—17 (reproducing and emphasizing Hegerland, p. 4,11. 4 Appeal 2016-001460 Application 13/434,029 33—37 and p. 5 11. 26—35)) this argument does not appear to be based on a technically accurate understanding of Hegerland. Figure 1 ofHegerland (annotated by the Examiner at Final Act. 15) may not illustrate control valves at various junctions but is it clear from the associated description that such structures are, or may be, present to, for example, allow the secondary turbine 27 to intake gases other than flue gasses from the main turbine 3. See Hegerland, p. 11,11. 29-38 (partially reproduced with emphasis added at Ans. 20). Thus, we see no reason to conclude that dependence is the only mode of turbine operation contemplated by Hegerland. Appellants next argue Hegerland lacks a mixed flue gas flow path. App. Br. 8, 14. This argument is undeveloped and does not address the Examiner’s express, and seemingly accurate, finding of a mixed flow gas path at the lower left (as viewed in Figure 1) input to Hegerland’s CO2 absorbing column 9 (see Ans. 18 annotating Hegerland Figure 1; also reproduced at App. Br. 10). Appellants’ next argument concerning “recirculation” is two-fold. First Appellants argue that Hegerland lacks recirculation. App. Br. 8—11. Second, Appellants argue it would not have been feasible to incorporate recirculation into Hegerland. App. Br. 11—12 (citing Bolland2, GE3, and 2 O. Bolland, et al., New Concepts For Natural Gas Fired Power Plants Which Simplify The Recovery Of Carbon Dioxide, Energy Convers. Mgmt Vol. 33, No. 5-8, pp. 467-475 (1992). 3 Roointon Pavri, et al., Gas Turbine Emissions and Control, GER-4211, GE Power Systems (2001) 5 Appeal 2016-001460 Application 13/434,029 Ochrymiuk4); App. Br. 15—16. The first portion of this argument is moot. The Examiner correctly explained how Hegerland’s system operates (Ans. 19—20, reproducing and emphasizing Hegerland p. 6,11. 9—16 and p. 11,11. 29-36 and annotating Figure 1) regardless of the particular nomenclature the Examiner chose to use to categorize the act of feeding the primary turbine flue gas to the secondary turbine input and whether that categorization was consistent with the terminology typically employed by one skilled in the art. Although it is conceivable that one might consider Hegerland to include a form of recirculation because the primary flue gas is circulated again into the secondary turbine, the particular nomenclature used by the Examiner to describe Hegerland’s system is unimportant in this case because the Examiner correctly recognized that Hegerland lacked the particular form of recirculation recited in the independent claims, i.e., “recirculation of flue gases of that turbine into an inlet gas path of that turbine.” For this, the Examiner cited Kataoka, which undisputedly describes an arrangement satisfying the relevant language of the claims. Appellants’ second position regarding the undesirability of a recirculation path in Hegerland stems in part from the misinterpretation of Hegerland as necessarily requiring sequential turbine operation, as addressed above. Appellants’ reasoning relying on Bolland, GE, and Ochrymiuk is also flawed. First, Appellants theorize the Examiner’s proposed combination must be implemented by recirculating flue gasses from Hegerland’s secondary turbine after that turbine was already fueled with flue 4 Tomasz Ochrymiuk, et al., Flameless Oxidation At The GT26 Gas Turbine: Numerical Study Via Full Chemistry, Task Quarterly 5 No 2, 239- 246 (2001). 6 Appeal 2016-001460 Application 13/434,029 gasses from the primary turbine. However, “it is well-established that a determination of obviousness based on teachings from multiple references does not require an actual, physical substitution of elements.” In re Mouttet, 686 F. 3d 1322, 1332 (Fed. Cir. 2012). Further, the claims do not require recirculation from any specific power part or require recirculation from a power part that also intakes flue gases, making Table 1 of Ochrymiuk of little significance. Second, there is insufficient evidence to demonstrate that Table 1 of Ochrymiuk actually reflects an accurate exhaust oxygen concentration (10%) of either of Hegerland’s turbines. Third, although Bolland (p. 5,11. 6) states “a typical gas turbine combustor normally should have a combustion air oxygen concentration of minimum 16—18%,” nothing in Bolland indicates recirculation cannot be employed where a flue gas oxygen concentration is below that. Introducing additional oxygen to achieve the desired intake concentration is not precluded by the claims and is expressly contemplated by Hegerland (p. 11,11. 29-38). For these reasons, we disagree that one skilled in the art would have had difficulty incorporating Kataoka’s recirculation arrangement into Hegerland. Although there may be some mechanical and financial challenges associated with the proposed modification to Hegerland’s system (App. Br. 12), the fact that judgment and mechanical skill may be required to arrive at a particular combination does not necessarily mean that particular combination constitutes a nonobvious invention. Graham v. John Deere Co. of Kansas City, 383 US 1, 10—12 (discussing Hotchkiss v. Greenwood, 11 How. 248 (1851)). Further, “[t]hat a given combination would not be made by businessmen for economic reasons does not mean that persons skilled in the art would not make the combination because of some technological 7 Appeal 2016-001460 Application 13/434,029 incompatibility. Only the latter fact would be relevant.” See In re Farrenkopf, 713 F.2d 714, 718 (Fed. Cir. 1983). Our reviewing court has recognized that a given course of action often has simultaneous advantages and disadvantages, and this does not necessarily obviate any or all reasons to combine teachings. See Winner Int'l Royalty Corp. v. Wang, 202 F.3d 1340, 1349 n. 8 (Fed. Cir. 2000). Mere disclosure of alternative arrangements, without more, “does not constitute a teaching away from any of these alternatives because such disclosure does not criticize, discredit, or otherwise discourage the solution claimed....” In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004). DECISION The Examiner’s rejections are affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(l)(iv). AFFIRMED 8 Copy with citationCopy as parenthetical citation