Ex Parte Meier et al

Board of Patent Appeals and Interferences

Mar 29, 2012

10284706 (B.P.A.I. Mar. 29, 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.
10/284,706 10/31/2002 Paul F. Meier 34041US (KDK) 9905
23589 7590 03/29/2012
Hovey Williams LLP
10801 Mastin Blvd., Suite 1000
Overland Park, KS 66210
EXAMINER
LEUNG, JENNIFER A
ART UNIT PAPER NUMBER
1774
MAIL DATE DELIVERY MODE
03/29/2012 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 PAUL F. MEIER, DOUGLAS W. HAUSLER,
JAN W. WELLS, and MAX W. THOMPSON
____________

Appeal 2010-003030
Application 10/284,706
Technology Center 1700
____________

Before ROMULO H. DELMENDO, BEVERLY A. FRANKLIN, and
GRACE KARAFFA OBERMANN, Administrative Patent Judges.

OBERMANN, Administrative Patent Judge.

DECISION ON APPEAL

This is an appeal under 35 U.S.C. § 134 (2002) involving claims 1-12
and 22-37 to an apparatus for removing sulfur from hydrocarbon-containing
fluid streams. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
THE INVENTION
Claims 1 and 22 are the only independent claims at issue. Claim 22,
reproduced below, is representative of the subject matter on appeal:
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22. A fluidized bed regenerator for contacting an upwardly
flowing gaseous oxygen-containing regeneration stream
with solid sorbent particulates, said fluidized bed
regenerator comprising:

an elongated upright vessel defining a lower regeneration
zone within which said sorbent particulates are substantially
fluidized by said oxygen-containing regeneration stream and an
upper disengagement zone within which said sorbent
particulates are substantially disengaged from said oxygen-
containing regeneration stream, wherein said lower
regeneration zone has a substantially smaller diameter than said
upper disengagement zone; and

a series of vertically spaced contact-enhancing members
generally horizontally disposed in said regeneration zone,
wherein each of said contact-enhancing members includes a
plurality of laterally spaced elongated baffles, wherein all of
said baffles within each contact-enhancing member extend
substantially parallel to one another, wherein said elongated
baffles of adjacent ones of said contact-enhancing members
extend transverse to one another at a cross-hatch angle in the
range of from 60 degrees to' about 120 degrees.

THE REJECTIONS
The Examiner relied on the following as evidence of unpatentability:
Pfieffer US 5,462,717 Oct. 31, 1995
Walker US 2,931,711 Apr. 5, 1960
Hemminger US 2,762,752 Sep. 11, 1956
Howard US 2,740,750 Apr. 3, 1956
Luckenbach US 3,850,582 Nov. 26, 1974
Johanson US 3,197,288 Jul. 27, 1965

1. Claims 22-25 and 34 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Pfeiffer in view of Walker.
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2. Claims 26-31 and 35 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Pfeiffer in view of Walker, and further in view of
Howard.
3. Claims 1-4, 10, 22-25, and 34 stand rejected under 35 U.S.C. § 103(a)
as unpatentable over Hemminger in view of Pfeiffer and Walker.
4. Claims 5-9, 26-31, and 35-37 stand rejected under 35 U.S.C. § 103(a)
as unpatentable over Hemminger in view of Pfeiffer and Walker, and
further in view of Howard.
5. Claims 11 and 12 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Hemminger in view of Pfeiffer and Walker, and
further in view of Luckenbach.
6. Claims 32 and 33 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Hemminger in view of Pfeiffer and Walker, and
further in view of Johanson.

FINDINGS OF FACT
We rely on and adopt the Examiner’s factual findings stated in the
Supplemental Examiner’s Answer filed August 28, 2009 (“Ans.”).
Additional findings of fact may appear in the Analysis below. Our decision
will also make reference to the Appellants’ Amended Appeal Brief filed
May 29, 2009 (“App. Br.”) and the Appellants’ Supplemental Reply Brief
filed October 10, 2009 (“Reply Br.”).
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ANALYSIS

We focus our analysis on three references – Pfeiffer, Walker, and
Hemminger – because these are the only references involved in the issues
raised by the Appellants. (App. Br. 16-33). Our analysis regarding these
references, therefore, determines the outcome of each rejection on appeal.
The Examiner did not err in concluding that claims 22-37 are
unpatentable over Pfeiffer in view of Walker.

Although claims 22-37 were subject to multiple grounds of rejection,
the Appellants rely on the same arguments against each of these grounds
and, in effect, argue claims 22-37 as a group (App. Br. 16). We select claim
22 (see supra) as the representative claim. Claims 23-37 stand or fall with
claim 22. 37 C.F.R. § 41.37(c)(1)(vii).
Claim 22 relates to a fluidized bed regenerator that includes a series of
vertically spaced contact-enhancing members. Claim 22 specifies a cross-
hatch angle of adjacent vertically spaced contact-enhancing members (Ans.
4; see Pfeiffer Spec. Col. 6, ll. 10-27). Pfeiffer discloses every limitation of
claim 22, including a fluidized bed regenerator that includes a series of
vertically spaced contact-enhancing members, except for the limitation that
requires a cross-hatch angle of adjacent members. Walker discloses the
requisite cross-hatch angle of adjacent contact-enhancing members, but
Walker’s members are used in a reactor rather than a regenerator (Ans. 4;
see Walker Spec. Col. 3, ll. 10-17 and Figure 4). The rejection of claim 22
depends on the Examiner’s finding that an ordinary artisan would have been
motivated to substitute the cross-hatch configured contact-enhancing
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members of Walker for those of Pfeiffer. We conclude that the Examiner’s
articulated reasoning on this point is supported by a rational underpinning.
See KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007).
The main dispute in this appeal centers on whether an ordinary artisan
would have been motivated to substitute contact-enhancing members used in
a reactor (as in Walker) for those used in a regenerator (as in Pfeiffer). The
members in Pfeiffer divide the regenerator into a plurality of zones for the
purpose of minimizing solids backmixing within the fluidized bed (Ans. 21).
The members in Walker control gas distribution in a reactor for the purpose
of minimizing large gas bubbles and channeling gas through unfluidized
portions of the catalyst bed (Ans. 21-23). The Examiner viewed these
differing purposes as a consequence of “the environment in which the
members are to be ultimately disposed” (Ans. 23). The Examiner found that
an ordinary artisan would have expected Walker’s members “to be
structurally capable of reducing solids backmixing, when substituted for the
contact-enhancing members of Pfeiffer, because the reduction in solids
backmixing is, predictably, a function of the percent cross-sectional area
being occluded by the contact-enhancing members” (Ans. 23 citing Pfeiffer
Spec. Col. 6, l. 65-Col. 7, l. 37 and Figure 3).
On that basis, the Examiner found that in both references “the
intended use of each of the members is basically the same – namely, the
intended use of the members is to occlude a portion of the cross-sectional
area of each of the vessels” (Ans. 23). The Examiner relied on Pfeiffer’s
clear teaching that any arrangement of suitable members will work in its
regenerator (Ans. 25 citing Pfeiffer Spec. Col. 6, ll. 21-23). There is
agreement that Pfeiffer and Walker both disclose contact-enhancing
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members made of tubes (Ans. 22, Reply Br. 6 and footnote 10). The thrust
of Appellants’ argument is that the Examiner erred in finding that the
members of Walker and Pfeiffer share a common function (App. Br. 19).
The Appellants insist that the contact-enhancing members of Walker
(which affect gas dispersion in a reactor) and those of Pfeiffer (which affect
solids backmixing in a regenerator) are “neither structurally nor functionally
equivalent,” therefore, an ordinary artisan would not have been motivated to
combine the teachings of these references (App. Br. 5-10). The Appellants
contend that substituting the members of Walker for those in Pfeiffer would
“require different structural configurations” (App. Br. 6; see App. Br. 16-20;
see also App. Br. 21-22 (suggesting that the proposed substitution makes
Pfeiffer “unsatisfactory for its intended purpose, or changes its principal of
operation”) (emphasis omitted)). The Appellants devote the bulk of its
briefing to restatements of this general conclusion, but raise only one
concrete example of a potential structural difference between the members
of Walker and Pfeiffer which, if Walker’s members are substituted for those
of Pfeiffer, would render the regenerator of Pfeiffer unsuitable for its
intended purpose (Reply Br. 7, 10).
In that one example, the Appellants simply highlight Pfeiffer’s
teaching that contact-enhancing members “having less open area (i.e., more
occluded area) are more effective for reducing the rate of solids backmixing”
(Reply Br. 7). Specifically, Pfeiffer teaches that “configurations with low
percent occlusions (i.e., less than 15 percent) do not produce the desired
level of backmixing reduction, while [member] configurations having a high
degree of occlusion (i.e., above 85 percent) do not allow particles to pass
downwardly through regeneration vessel 12” (Reply Br. 10 citing Pfeiffer
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Col. 8, ll. 42-49 and Walker Col. 1, ll. 51-55). The Appellants, however,
stop short of presenting any evidence that would teach or suggest that
Walker’s members fall outside the range of preferred occlusion percentages
stated in Pfeiffer. Critically absent here is any persuasive argument or
evidence that Walker’s members are configured in a way that makes them
unsuitable for use in the regenerator of Pfeiffer.
On this record, we are not persuaded that any meaningful functional
or structural differences make the members of Walker unsuitable for
occluding a portion of the regenerator of Pfeiffer. The Examiner found, and
we agree, that Pfeiffer broadly teaches that “any desired number and
arrangement of suitable [members] may be employed in a given case” (Ans.
25, quoting Col. 6, ll. 21-23). In light of this clear teaching, the Examiner
reasonably determined that “the specific arrangement of contact-enhancing
members as shown in Pfeiffer is not critical, so long as the members are
structurally capable of occluding a given cross-sectional area of the
regenerator vessel” (Ans. 25, emphasis in original).
The record fully supports the Examiner’s conclusion that “[i]t would
have been obvious for one of ordinary skill in the art at the time the
invention was made to substitute the contact enhancing members as taught
by Walker for the contact enhancing members in the apparatus of Pfeiffer,
on the basis of suitability for the intended use, because the claimed
configuration of contact enhancing members is conventional in the art, as
evidenced by Walker, and the substitution of known equivalent structures
involves only ordinary skill in the art” (Ans. 4-5, citing In re Fout, 675 F.2d
297, 301 (CCPA 1982); In re Susi, 440 F.2d 442, 445 (CCPA 1971); In re
Siebentritt, 372 F.2d 566, 568 (CCPA 1967); In re Ruff, 256 F.2d 590, 596
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(CCPA 1958)). We thus affirm the rejection of claims 22-37 as obvious
under Section 103(a).

The Examiner did not err in concluding that claims 1-12 and 22-37
are unpatentable over Hemminger in view of Pfeiffer and Walker.

The Appellants argue claims 1-12 and 22-37 as a group (App. Br. 22-
23). We select claim 1 as the representative claim, and claims 2-12 and 22-
37 stand or fall with claim 1. 37 C.F.R. § 41.37(c)(1)(vii).
Claim 1 relates to a reactor and a reducer in combination with a
fluidized bed regenerator that includes a series of cross-hatch configured
vertically spaced contact-enhancing members. Hemminger discloses a
reactor and a reducer in combination with a regenerator, but does not
disclose the use of any contact-enhancing members in the regenerator (App.
Br. 23, Ans. 10).1
The Examiner determined that, in view of Pfeiffer, it would have been
obvious to modify the regenerator of Hemminger to include contact-
enhancing members (Ans. 11-12). On this point, the Appellants contend that
Hemminger teaches away from the modification because it discloses
contact-enhancing members in its reducer but not in its regenerator (App. Br.
24-25). The Examiner found, and we agree, that the only logical conclusion
that may be drawn from this teaching is that Hemminger appreciated the

1 The Appellants also state that Hemminger is silent regarding or does not
include the feature of “a lower regeneration zone” having “a substantially
smaller diameter than said upper disengagement zone” as specified in claim
1 (App. Br. 23). The Appellants have provided no argument on this issue,
and we consider it waived. Cf. In re Lovin, 652 F.3d 1349, 1356-57 (Fed.
Cir. 2011).
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advantages of employing contact-enhancing members in a reducer. The
teaching falls short of suggesting, however, that Hemminger was aware of
the advantages of using members in a regenerator, but the Examiner also
determined that Hemminger does not state that the members should not be
used in a regenerator (Ans. 26-27). The Examiner, therefore, reasonably
determined that, at the time of Appellants’ invention, Pfeiffer would have
informed an ordinary artisan of the advantages of using contact-enhancing
members in a regenerator, and a desire to attain those known advantages
provided the requisite motivation to modify Hemminger’s regenerator to
include such members (Ans. 25-26).
The Examiner further determined that it would have been obvious to
substitute the cross-hatch configured members of Walker in the modified
apparatus of Hemminger (Ans. 12). The Appellants repeat their arguments
regarding perceived structural and functional differences in the operation of
a reactor (as in Walker) and the operation of a regenerator (as in Pfeiffer and
Hemminger) (App. Br. 23-31). The analysis we provided above in
consideration of Pfeiffer and Walker apply with equal force here. For the
same reasons, we are not persuaded that any meaningful structural or
functional differences render the members of Walker unsuitable for
occluding a portion of the modified regenerator of Hemminger.
No persuasive argument or evidence to the contrary having been made
by the Appellant, we affirm the rejection of claims 1-12 and 22-37 as
obvious under Section 103(a).
CONCLUSION
The rejection of claims 1-12 and 22-37 under Section 103(a) is
AFFIRMED.
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No time for taking any action connected with this appeal may be
extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED

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