Ex Parte Lindau

Board of Patent Appeals and Interferences

Mar 28, 2012

11728058 (B.P.A.I. Mar. 28, 2012)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
11/728,058 03/23/2007 Leif A. V. Lindau W05/032-0 9315
78523 7590 03/28/2012
WIGGIN AND DANA LLP
ONE CENTURY TOWER
P.O. BOX 1832
NEW HAVEN, CT 06508-1832
EXAMINER
VANOY, TIMOTHY C
ART UNIT PAPER NUMBER
1734
MAIL DATE DELIVERY MODE
03/28/2012 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte LEIF A. V. LINDAU
____________

Appeal 2011-002072
Application 11/728,058
Technology Center 1700
____________

Before JEFFREY T. SMITH, MARK NAGUMO, and
KAREN M. HASTINGS, Administrative Patent Judges.

SMITH, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2011-002072
Application 11/728,058

2
STATEMENT OF THE CASE
This is an appeal under 35 U.S.C. § 134 from a final rejection of
claims 1-3, 5-10, 12-17, and 19. We have jurisdiction under 35 U.S.C. § 6.
Appellant’s invention is directed “to a process and system for
removing sulfur trioxide present in a flue gas stream, or reducing an amount
of sulfur trioxide present therein.” (Spec. 1). Claims 1 is illustrative of the
subject matter on appeal and is reproduced below:
1. A process for reducing an amount of sulfur
trioxide present in a flue gas stream, the process comprising:
processing an alkaline material to comprise a percentage
of particles, based on a mass of alkaline material injected into a
flue gas stream, that is a size less than a collection cut size of a
wet flue gas desulfurization system, wherein said percentage of
particles corresponds to an amount of particles that is equal to
or less than an allowable particulate emission from said wet
flue gas desulfurization system and is between .1 % and 50%
by mass of said alkaline material introduced to said flue gas
stream; and
introducing said processed alkaline material to said flue
gas stream, wherein said processed alkaline material is
introduced upstream of said wet flue gas desulfurization
system, thereby reducing the amount of sulfur trioxide present
in said flue gas stream.
Appellant, App. Br. 8, requests review of the following rejection from
the Examiner’s final office action:
Claims 1-3, 5-10, 12-17, and 19 stand rejected under 35 U.S.C.
§ 102(b) as anticipated by Johnson, U.S. 6,143,263 issued November 7,
2000.
Appeal 2011-002072
Application 11/728,058

3
OPINION
The dispositive issue on appeal for this rejection is: Did the Examiner
err in determining that Johnson describes the Appellant’s process for
reducing an amount of sulfur trioxide present in a flue gas stream as required
by the subject matter of claim 1? 1
After thorough review of the respective positions provided by
Appellant and the Examiner, we answer this question in the negative and
AFFIRM.
The Examiner found that Johnson discloses an apparatus and process
for removing an amount of sulfur trioxide present in a flue gas stream.
According to Johnson, col 1, ll. 6-14:
The present invention relates, in general, to the removal
of particulates and other contaminants from flue gas produced
by the burning of a fossil fuel and, in particular, to a new and
useful method and system which simultaneously removes sulfur
trioxide (SO3) from the flue gas by injecting dry sorbent
downstream of a particulate collection device, capturing reacted
and unreacted dry sorbent in a wet scrubber, and removing
sulfur dioxide (SO2) in the wet scrubber.
The Examiner further found that Johnson discloses the wet scrubbers
remove sorbent particles that have a size larger than 1 to 2 microns, and
cannot effectively remove sorbent particles that are of a size less than 2
microns. (Ans. 4; Johnson, col. 6, ll. 32-42). The Examiner found that this
disclosure of the sorbent as having the inability of removing particles having
a size of less than 2 microns would meet the claim limitation “percentage of

1 Appellant has not presented separate arguments for the claims on appeal.
The dispositive issue is the same for all of the independent claims 1, 8 and
15. We limit our discussion to independent claim 1.
Appeal 2011-002072
Application 11/728,058

4
particles corresponds to an amount of particles that is equal to or less than an
allowable particulate emission from said wet flue gas desulfurization system
and is between .1 % and 50% by mass of said alkaline material introduced to
said flue gas stream.” (Ans. 4).
Appellant argues that Johnson teaches away from the claimed subject
matter. (App. Br. 9-10). Appellant argues that Johnson discloses capturing
reacted and unreacted dry sorbent (having a size larger than 1-2 microns) in
a wet scrubber and removing both the reacted and unreacted dry sorbent
from flue gas. Appellant argues that “[d]ry sorbent less than a size larger
than 1-2 microns are removed by mechanical separation due to the fact that
the wet scrubber cannot remove it.” (Id. at 10).
Appellant’s argument is not persuasive of a patentable distinction
between the claimed invention and the invention of Johnson. Appellant’s
argument that Johnson teaches away from the claimed invention is not
persuasive because “a reference is no less anticipatory if, after disclosing the
invention, the reference then disparages it. Thus, the question whether a
reference ‘teaches away’ from the invention is inapplicable to an
anticipation analysis.” Celeritas Techs., Ltd. v. Rockwell Int'l Corp., 150
F.3d 1354, 1361 (Fed. Cir. 1998).
We are also not persuaded by Appellant’s argument that Johnson
removes particles smaller than 1-2 microns by mechanical separation
because Appellant has failed to point to a disclosure in Johnson that supports
this argument. We also agree with the Examiner’s reasoning (Ans. 4) that
the claim limitation that the percentage of particles that corresponds to an
amount of particles that is less that allowable particulate emission from the
wet desulfurization system is between 0.1 and 50 percent by mass of the
Appeal 2011-002072
Application 11/728,058

5
alkaline material injected introduced into the flue gas is not distinct from the
10% or more particles that is less than 2 microns disclosed by Johnson to be
present in the dry sorbant. Appellant has not directed us to adequate
evidence to persuade us otherwise.
Accordingly, for the foregoing reasons and those presented by the
Examiner, we sustain the rejection of claims 1-3, 5-10, 12-17, and 19 under
35 U.S.C. § 102(b) as anticipated by Johnson.
ORDER
The rejection of claims 1-3, 5-10, 12-17, and 19 under 35 U.S.C.
§ 102(b) as anticipated by Johnson is affirmed.
TIME PERIOD
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1).

AFFIRMED
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