Ex Parte Marx et al

Patent Trial and Appeal Board

Sep 24, 2013

11441660 (P.T.A.B. Sep. 24, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte PETER D. MARX, ROBERT W. PICKERING, and
CHARLES E. TRIPPEL
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Appeal 2011-009750
Application 11/441,660
Technology Center 3700
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Before CHARLES N. GREENHUT, PATRICK R. SCANLON, and
BARRY L. GROSSMAN, Administrative Patent Judges.

GROSSMAN, Administrative Patent Judge.

DECISION ON APPEAL
Appeal 2011-009750
Application 11/441,660

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STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from the Examiner’s
decision finally rejecting claims 1, 3, 5-15 and 18-20. We have jurisdiction
over the appeal under 35 U.S.C. § 6(b).
We reverse the decision of the Examiner.

CLAIMED SUBJECT MATTER
The claimed subject matter relates generally to an ultra low NOx
burner replacement system used to replace an existing burner of a
combustion boiler. Spec., para. [003]. Claim 1, directed to a replacement
burner system, is the sole independent claim and is representative of the
subject matter on appeal, and recites:
1. A replacement burner system which facilitates
reduction in an amount of nitrous oxide produced during
combustion of a fuel, the replacement burner system
capable of providing five concentric and distinct flow
paths for fuel and combustion air, comprising:
a fuel supply duct having an inlet and an outlet and
a bend located between the inlet and the outlet;
a fuel deflector located within the fuel supply duct,
between the bend and the outlet, to facilitate redistribution
of a flow of the fuel;
a coal nozzle located within the fuel supply duct
between the fuel deflector and the outlet, and a position of
the coal nozzle being adjustable along a length of the fuel
supply duct, wherein the coal nozzle comprises an
innermost central zone which induces a swirling flow
pattern of the fuel as the fuel flows therethrough and a
radially outermost peripheral zone which facilitates supply
of the fuel in a substantially linear flow pattern in an outer
fuel zone concentric with and surrounding the central
zone;
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an exterior surface of the fuel supply duct
supporting an air swirling device, and the air swirling
device occupying between about 65% to about 75% of the
transverse cross sectional flow area, located between an
exterior surface of the fuel supply duct and the inwardly
facing surface of a venturi register, after the replacement
burner system is accommodated within a windbox of a
combustion boiler;
wherein the air swirling device is located between
an exterior surface of the fuel supply duct and the
inwardly facing surface of the venturi register, and
comprises
a first radially innermost combustion air zone,
concentric with and surrounding the exterior surface of the
fuel supply duct to supply air with a substantially linear
flow pattern; and
an intermediate combustion air zone, concentric
with and surrounding the first radially innermost
combustion air zone to supply air substantially in a
swirling flow pattern, and
a radially outermost combustion air zone to supply
air in a linear flow pattern zone concentric with and
surrounding the intermediate combustion air zone.

REFERENCES
The Examiner relied on one or more of the following references to
reject all the claims.
Daman U.S. 3,260,227 Jul. 12, 1966
Smith U.S. 4,241,673 Dec. 30, 1980
Monro U.S. 5,131,334 Jul. 21, 1992
Kiyama U.S. 6,152,051 Nov. 28, 2000
Tsumura U.S. 6,237,510 B1 May 29, 2001
Nordyne Burner Replacement Instructions publ. Nov. 1998
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Application 11/441,660

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REJECTIONS
The following rejections are before us for review:
1. Claims 1, 3, 5-7, 10-13, 15, 18, and 191 rejected under 35 U.S.C.
§ 103(a) based on Tsumura, Monro, and Kiyama;
2. Claims 8 and 9 rejected under 35 U.S.C. § 103(a) based on and
Tsumura, Monro, Kiyama, and Daman;
3. Claim 14 rejected under 35 U.S.C. § 103(a) based on Tsumura,
Monro, Kiyama, and Smith; and
4. Claim 20 rejected under 35 U.S.C. § 103(a) based on Tsumura,
Monro, Kiyama, and Nordyne Burner Replacement Instructions.

ANALYSIS
In relevant part to the issues in this appeal, claim 1 calls for five
concentric and distinct flow paths for fuel and air. As claimed, these five
paths result from a coal nozzle with two concentric and distinct zones for the
fuel and an air swirling device with three concentric and distinct flow paths
for the air, thus resulting in five concentric and distinct flow paths. This
claimed structure is illustrated in Figure 6 of the Specification and described
in paragraph [047] of the Specification.
Appellants argue that the cited and applied prior art “teaches away”
from the claimed invention (App. Br. 4); that the Examiner’s conclusion on
patentability is a “speculative assertion” based on “hindsight” (id. at 5); that
the cited and applied prior art, if combined as proposed by the Examiner

1 Appellants and the Examiner refer to claim 4 in listing the rejected claims
on appeal, but this claim has been cancelled. Ans. 2, (“Status of Claims”);
see also, App. Br. 15 (“Claims Appendix”).
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would “change important aspects of each reference” (id. at 7); that the prior
art does not disclose or suggest the claimed invention (id. at 9); and that the
Examiner’s articulated reasoning is in “error” (id.).
Examiner found that Tsumura did not disclose the specific structure of
the “coal nozzle” recited in the claims, but that Kiyama did disclose a coal
nozzle with two flow zones. Ans. 4-5. The Examiner then stated the
following conclusion:
It would have been obvious for one skilled in the art at the
time of invention to combine the nozzle of '510 as
combined with ‘334 with the nozzle of ‘494 because such a
combination would have produced the added benefit of
delayed mixing of the secondary air with the products of
combustion, which creates distinct fuel-rich/fuel lean
zones that reduce the formation of nitrous oxides.
Ans. 5 (emphasis added).

This conclusion makes little sense in the context of the issues and
references relied on by the Examiner, since the “‘334” [Monro] patent was
not cited, discussed or applied for its nozzle, and there is no “‘494” patent
cited or applied against the claims on appeal. This same conclusion was
stated in the Final Rejection from which Appellants appeal. F. Rej., p. 4.
Thus, this rejection, as stated by the Examiner, cannot be sustained.
Assuming the Examiner intended to refer to the Tsumura and Kiyama
patents, which were cited and discussed in the Answer for their burner
system and nozzle structures, neither patent alone or in combination suggests
the coal nozzle called for in claim 1.
The Examiner cited Kiyama for disclosing a coal nozzle with and an
innermost zone 53 with a swirling flow path and an outermost peripheral
zone 54 with a linear flow path, wherein zone 54 is concentric with and
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surrounding the innermost zone 53. Ans. 5. However, as shown in Figure
11 of Kiyama and as described in the Kiyama specification, swirl producing
device 53 is placed upstream of the guide 51 in nozzle 10 and flow
rectifying plates 54 are downstream from the swirl producing device 53.
Kiyama, col. 4, ll. 17-28. Thus, since element 54 is downstream from
element 53, element 54 is not concentric with and does not surround element
53, nor is there any evidence that element 54 creates “an outer fuel zone
concentric with and surrounding” a zone created by element 53, as called for
by claim 1.
Accordingly, since the preponderance of evidence does not support
the Examiner’s rejection, we cannot sustain the rejection of independent
claim 1 and dependent claims 3, 5-7, 10-13, 15, 18, and 19.
The additional references cited in Rejections 2, 3, and 4 do not
compensate for the deficiencies in Tsumura, Kiyama, and Monro applied
against claim 1. Accordingly, we do not sustain the rejection of claims 8, 9,
14, and 20.

DECISION
Upon consideration of the record as a whole in light of Appellants’
contentions and the preponderance of relevant evidence, we reverse the
Examiner’s decision rejecting claims 1, 3, 5-15 and 18-20 under 35 U.S.C.
§ 103.

REVERSED

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