Ex Parte Mieth et al

Patent Trial and Appeal Board

Nov 20, 2017

13441024 (P.T.A.B. Nov. 20, 2017)

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.
13/441,024 04/06/2012 Rainer Mieth PllC040b 9819
20411 7590 11/20/2017
The Linde Group
200 Somerset Corporate Blvd.
Suite 7000
Bridgewater, NJ 08807
EXAMINER
FRANKLIN, JODI COHEN
ART UNIT PAPER NUMBER
1741
MAIL DATE DELIVERY MODE
11/20/2017 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 PATENT TRIAL AND APPEAL BOARD
Ex parte RAINER MIETH, NEIL SIMPSON, and
RICHARD WILCOX
Appeal 2017-000582
Application 13/441,0241
Technology Center 1700
Before KAREN M. HASTINGS, WESLEY B. DERRICK, and
DEBRA L. DENNETT, Administrative Patent Judges.
DERRICK, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from the Examiner’s
decision finally rejecting under 35 U.S.C. § 103 claims 1-6 and 9-11 over
Richardson2 in view of Petersson.3 We have jurisdiction under 35 U.S.C.
§6.
We AFFIRM.
1 Appellants identify Linde Aktiengesellschaft as the real party in interest.
Br. 3.
2 Richardson, US 2010/0242545 Al, published September 30, 2010.
3 Petersson et al., US 4,911,744, issued March 27, 1990.
Appeal 2017-000582
Application 13/441,024
CLAIMED SUBJECT MATTER
The subject matter of the claims on appeal relates to a method for
melting meltable stock using a furnace of particular configuration.
Specification filed April 6, 2012 (“Spec.”), Abstract. Claim 1, the sole
independent claim, cites elements by number that are depicted in the figures.
Spec. Figs. 1-2, claim 1.
Claim 1 is representative.
1. A method for melting meltable stock in a furnace (10)
having ports (24 A,2 6A) in a front side of the furnace which are
each alternately operable as a burner port (24A) and as an
exhaust gas port (26A), comprising:
supplying a fuel and an oxidizer to the burner port (24A) for
reacting and resulting in combustion gases flowing in a U-
shaped main flow path (27) through the furnace to the exhaust
gas port (26A); and
in relation to the U-shaped main flow path (27),
introducing at least one fuel-rich gas stream (20) into the
furnace downstream from the burner port (24A), and at least
one oxygen containing gas stream (1) into the furnace
downstream from the introducing of the at least one fuel-rich
gas stream (20);
introducing at least one secondary oxygen containing stream (22)
into the furnace downstream from the introducing of the at least
one fuel-rich gas stream (20) and upstream from the introducing
of the at least one oxygen containing gas stream (1);
reversing the burner port (24A) and the exhaust gas port (26A)
such that the burner port (24A) is operating as an exhaust gas
port and the exhaust gas port (26A) is operating as a burner
port;
stopping the introducing at least one secondary oxygen
containing stream (22) into the furnace;
stopping the introducing at least one fuel-rich gas stream (20)
into the furnace;
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Application 13/441,024
stopping the introducing at least one oxygen containing gas
stream (1) into the furnace;
introducing at least another fuel-rich gas stream into the furnace
from a side of the furnace from which the at least one secondary
oxygen containing stream (22) had previously been introduced
and which is now stopped;
introducing at least another secondary oxygen containing
stream into the furnace from a side of the furnace from which
the at least one fuel-rich gas stream (20) had previously been
introduced and which is now stopped;
introducing at least another oxygen containing gas stream into
the furnace from a side of the furnace at which the at least
another secondary oxygen containing stream is introduced; and
reversing the flowing of the U-shaped main flow path in the
furnace.
Appeal Brief filed February 26, 2016 (“Br.”), Claims App’x 14-15.
DISCUSSION4
Appellants proffer arguments on the basis of claim 1. Br. 10-12. All
claims stand or fall, accordingly, with claim 1. 37 C.F.R. § 41.37(c)(l)(iv).
We have reviewed the grounds of rejection set forth by the Examiner,
Appellants’ arguments, and the Examiner’s response. On this record, we are
unpersuaded that the Examiner erred reversibly and we determine that a
preponderance of the evidence supports the Examiner’s conclusion of
obviousness for the reasons expressed by the Examiner in the Final Office
Action and the Examiner’s Answer. We add the following.
4 In this discussion, we refer to the Specification, the Final Office Action
dated September 1, 2015 (“Final Act.”), the Appeal Brief, and the
Examiner’s Answer dated August 16, 2016 (“Ans.”).
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Application 13/441,024
The Examiner relies on Richardson for its disclosure of a method of
melting meltable stock in a furnace of near identical construction to that
depicted in the instant Specification. Compare Richardson Figs. 1-2 with
Spec. Figs. 1-2. In particular, the Examiner relies on Richardson’s disclosed
furnace having two ports (24, 26), which are alternatively operable as a
burner port and an exhaust port. Ans. 2 (citing Richardson || 8-16, Figs. 1-
2), 3 (citing Richardson Figs. 1-2); see also Final Act. 2-3. The Examiner
also relies on Richardson’s disclosed supply of fuel and oxidizer resulting in
combustion gases flowing in a U-shaped main flow direction through the
furnace to the exhaust port and, in relation to a main flow direction, the
introduction of a fuel-rich gas stream and then the introduction of an oxygen
containing gas stream. Ans. 2; Final Act. 3. While operating in a first
direction, as depicted in Figure 1, the fuel-rich gas stream is supplied by
burner 20 and the oxygen containing gas stream is supplied by burner 22;
while operating in the reverse direction, as depicted in Figure 2, the supply
by burners 20 and 22 are reversed. Richardson || 13-15, Figs. 1-2.
The Examiner relies on Petersson for its disclosure of the use of
oxygen lances in furnaces for melting glass. Ans. 3^1 (citing Petersson
col. 2,11. 37-68, col. 4,11. 46^17, col. 5,11. 4-13, 21-27, 34-37, 39^12).
The Examiner finds Petersson to teach, inter alia, that the provided oxygen
flow directs the flow of combustion and assures complete combustion of
fuel. Ans. 3^1 (citing Petersson col. 4,11. 46^47, col. 5,11. 4-13, 21-27, 39-
42); see also Final Act. 3-6. The Examiner determines “it is considered well
within the realm of knowledge of one of ordinary skill in the art through
routine optimization to determine the proper placement of the oxygen lance
within the furnace to enhance combustion.” Final Act. 6. As to the
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Application 13/441,024
particular placement, the Examiner determines one of ordinary skill would
recognize from Petersson’s teaching that the oxygen flow should be in the
direction of flame flow and at the end of the horseshoe shaped flows. Ans.
3—4; see also Final Act. 6 (quoting Petersson col. 5,11. 38^15 (“the direction
of orientation of the lance should be such as to cause oxygen to flow along a
path . . . [and] a flame pattern tends to follow a path of an injected flow of
oxygen”)); Ans. 6 (“One of ordinary skill in the art would recognize . . . the
oxygen lances would be placed at the end of the combustion product flow in
order to combust any remaining fuel.”).
The Examiner concludes that one of ordinary skill in the art, armed
with the cited prior art, at the time of the invention, would have found it
obvious to modify the furnace, and process, of Richardson by adding
provision for oxygen lances to provide a flow of oxygen in the direction of
the horseshoe shaped flow at the end of the horseshoe shaped flows. As to
the control of this additional oxygen flow, it is manifest that the direction of
the horseshoe shaped flow dictates which of the provided oxygen lances is
providing oxygen, i.e., the one that provides oxygen in the correct direction
lying at the end of the horseshoe shaped flow.
Appellants contend that Richardson fails to disclose both “introducing
at least one oxygen containing gas stream (1) into the furnace” and “the
combined multiple ‘reversing’ and ‘stopping’ features” of claim 1. Br. 10;
see also Br. 12.
Maintaining that “the intent and positioning of the [oxygen] lances
100 in Petersson” differ from that called for in claim 1, Appellants contend
that the Examiner has erred as to what Petersson teaches and what would
have resulted from the relied on combination. Br. 10-12. Appellants argue
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that Petersson discloses lances disposed so as to “entrain a flame downward
to the glass surface for more effective local heating and to better impart the
heat of the flame to the glass” and to “direct[] ‘the flow of injected oxygen
somewhat counter to such flows of gases within the combustion zone.’” Br.
10 (citing Petersson col. 4,11. 36-38). Appellants further argue that the
Examiner has conflated local heating with enhanced circulation and that use
of the lance positions of Petersson—positioned near the combustion zone for
heating a molten glass surface—would not have led one of ordinary skill in
the art to position the lances near the ports 24A and 26A or to the enhanced
circulatory effect. Br. 11-12.
Appellants’ arguments are not persuasive of reversible error because
they fail both to properly account for what the cited prior art would have
taught the skilled artisan and to address the rejection as set forth by the
Examiner.
As to the contention that Richardson does not teach “the oxygen
containing gas stream (1),” Appellants’ argument is without persuasive merit
of reversible error because Petersson is relied on for this claim element and
“[n]on-obviousness cannot be established by attacking references
individually where the rejection is based upon the teachings of a
combination of references.” In re Merck & Co., Inc., 800 F.2d 1091, 1097
(Fed. Cir. 1986).
As to the contention that Richardson does not teach “the combined
multiple ‘reversing’ and ‘stopping’ features” of claim 1, we discern no
cogent argument sufficient to address the Examiner’s position grounded on
Richardson’s disclosure as to the operation of its furnace to provide the flow
in a first direction and a reversed, second direction, and reasoning that the
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added oxygen lance at the end of the particular, selected horseshoe shaped
flow would provide oxygen to foster the horseshoe shaped flow and to
ensure complete combustion of fuel. Cf. In reLovin, 652 F.3d 1349, 1357
(Fed. Cir. 2011) (“[W]e hold that the Board reasonably interpreted Rule
41.37 to require more substantive arguments in an appeal brief than a mere
recitation of the claim elements and a naked assertion that the corresponding
elements were not found in the prior art. Because Lovin did not provide
such arguments, the Board did not err in refusing to separately address
claims 2-15, 17-24, and 31-34.”).
Appellants’ contentions and arguments as to Petersson, grounded on
its disclosure of oxygen lances in a particular orientation, are not persuasive
of reversible error because the test for obviousness neither requires that the
features of the secondary reference be bodily incorporated into the structure
of the primary reference, nor that there is an express suggestion in any one
or all of the references for the combination. See In re Keller, 642 F.2d 413,
425 (CCPA 1981) (“The test for obviousness is . . . what the combined
teachings of the references would have suggested to those of ordinary skill
in the art.”). In focusing on a specific application to which the oxygen
lances are used in Petersson, Appellants fail to address the relied on
teachings from Petersson that oxygen lances can be used to direct the flow of
combusting gases and to ensure that combustion is complete. In re
Lamberti, 545 F.2d 747, 750 (CCPA 1976) (A reference’s disclosure is not
limited to its preferred embodiments, but is available for all that it discloses
and suggests to one of ordinary skill in the art.).
Appellants’ argument, relying on Petersson’s purpose of more
effective local heating differing from that in the relied on combination,
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further fails because “the [obviousness] analysis need not seek out precise
teachings directed to the specific subject matter of the challenged claim, for
a court can take account of the inferences and creative steps that a person of
ordinary skill would employ.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398,
418 (2007); see also In re Preda, 401 F.2d 825, 826 (CCPA 1968) (“[I]t is
proper to take into account not only specific teachings of the reference but
also the inferences which one skilled in the art would reasonably be
expected to draw therefrom.”). In particular, Appellants’ argument fails to
address squarely the Examiner’s articulated reasoning grounded on what
Petersson teaches the skilled artisan as to the use of an oxygen lance to
promote the horseshoe shaped flow and ensure complete combustion.
On this record, a preponderance of the evidence supports the
Examiner’s determination of obviousness over the combination of
Richardson and Petersson.
DECISION
The Examiner’s rejection of the claims under 35 U.S.C. § 103(a) is
AFFIRMED.
We decline to reach the Examiner’s provisional rejection of the claims
on the ground of non-statutory obviousness-type double patenting.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
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