Ex Parte Stanton

Patent Trial and Appeal Board

Sep 27, 2017

13143701 (P.T.A.B. Sep. 27, 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.
13/143,701 07/07/2011 Gareth David Stanton 1193-021US01/M06B189 8179
28863 7590 09/29/2017
SHUMAKER & SIEFFERT, P. A.
1625 RADIO DRIVE
SUITE 100
WOODBURY, MN 55125
EXAMINER
BECTON, MARTHA M
ART UNIT PAPER NUMBER
3749
NOTIFICATION DATE DELIVERY MODE
09/29/2017 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):
pairdocketing @ ssiplaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte GARETH DAVID STANTON
Appeal 2016-008580
Application 13/143,701
Technology Center 3700
Before JENNIFER D. BAHR, MICHELLE R. OSINSKI, and
BRANDON J. WARNER, Administrative Patent Judges.
BAHR, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Gareth David Stanton (Appellant)1 appeals under 35 U.S.C. § 134
from the Examiner’s decision rejecting claims 1 and 3—18. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 The Appeal Brief identifies Edwards Limited, which is a subsidiary of
Atlas Copco Inc., as the real part in interest. Appeal Br. 3.
Appeal 2016-008580
Application 13/143,701
THE CLAIMED SUBJECT MATTER
Claim 1, reproduced below, is illustrative of the claimed subject
matter.
1. A pilot for igniting a combustible fluid stream, the pilot
comprising:
an inlet for receiving a fuel gas into the pilot;
means for igniting the fuel gas; and
a generally annular conduit for conveying fuel gas from
the inlet, wherein the generally annular conduit comprises a
continuous circumferential channel connected to a continuous
circumferential aperture that is open along a radially inner
annular extent of the generally annular conduit to direct the fuel
gas radially inward from the generally annular conduit such that,
when the fuel gas is ignited, an annular pilot flame is generated
radially inwardly of the generally annular conduit.
REJECTIONS
I. Claims 1—3 and 5—8 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Akiko2 (JP 2001-082723 A, pub. Mar, 30,
2001) and Valjean (US 1,639,202, iss. Aug. 16, 1927).
II. Claim 4 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Akiko, Valjean, and Sujata (US 7,273,366
Bl, iss. Sept. 25, 2007).
III. Claims 9-18 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Akiko, Valjean, and Bartz (EP 0694735 Al,
pub. Jan. 31, 1996).3
2 References to the text of Akiko are to the machine translation entered into
the record with the Information Disclosure Statement dated April 17, 2014.
3 Although the Examiner inadvertently omitted claim 18 from the statement
of the rejection (Final Act. 9), the Examiner discusses claim 18 in the
detailed explanation of the rejection {id. at 14—15).
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DISCUSSION
Rejection I
Claims 1, 3, and 5—7:
Appellant argues for patentability of claims 1,3, and 5—7 together as a
group. Appeal Br. 5—9; Reply Br. 2—7. We select claim 1 as representative,
with claims 3 and 5—7 standing or falling therewith. See 37 C.F.R.
§41.37(c)(l)(iv).
The Examiner finds that Akiko discloses a pilot including, inter alia,
“a generally annular conduit for conveying fuel gas from the inlet,” and
“wherein the generally annular conduit is open along ... a radially inner
annular extent.” Final Act. 3 (citing Akiko 114, Figs. 1, 3). The Examiner
acknowledges that “Akiko fails to expressly disclose wherein the generally
annular conduit comprises a continuous circumferential channel connected
to a continuous circumferential aperture that is open along ... a radially
inner annular extent of the generally annular conduit.” Id. at 3^4 (emphasis
omitted). However, the Examiner finds:
Valjean teaches a generally annular conduit that comprises a
continuous circumferential channel connected to a continuous
circumferential aperture (see Valjean FIG 1: element 19 is the
continuous circumferential aperture connected to the continuous
circumferential channel formed by elements 21 and 21; see also
pg 2 lines 60 — 65 and lines 76 — 86) that is open along ... a
radially inner annular extent of the generally annular conduit (see
Valjean element 19 of FIG 1 and pg 2 lines 60 — 65).
Id. at 4 (emphasis omitted). The Examiner determines that it would have
been obvious “to simply substitute [a] continuous circumferential aperture as
taught by Valjean for the jet nozzles disclosed by Akiko to yield predictable
results.” Id. According to the Examiner, “a continuous circumferential
aperture provides for uniformity of operation around the whole
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circumference of the annular conduit.” Id. (citing Valjean, p. 2,11. 84—86);
see also Ans. 16 (explaining that a person of ordinary skill in the art would
“modify the fuel gas jet nozzles 51 of Akiko in view of the air gap 19 of
Valjean so as to promote uniformity of operation around the whole length of
the gap”).
Appellant argues that modifying Akiko’s pilot burner 6 based on
Valjean’s air gap 19 would not result in a pilot having “a generally annular
conduit for conveying fuel gas from the inlet.” Appeal Br. 6. In particular,
Appellant asserts that “Valjean does not describe that fuel is introduced
through air gap 19,” but, instead “describes that air enters through air gap
19.” Id. (emphasis omitted). This argument against Valjean is not
persuasive because it attacks the reference individually, rather than the
combined teachings of the cited references as presented in the rejection.
Nonobviousness cannot be established by attacking the references
individually when the rejection is predicated upon a combination of prior art
disclosures. See In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir.
1986) (citing In re Keller, 642 F.2d 413, 425 (CCPA 1981). As discussed
above, the Examiner relies on Akiko for disclosing a conduit for conveying
fuel gas (i.e., fuel gas nozzles 51) and on Valjean for teaching a conduit in
the form of a continuous circumferential aperture (i.e., air gap 19) for
conveying gas (i.e., air). See Final Act. 3 4; Ans. 16.
Appellant argues one of ordinary skill in the art “would have had no
apparent reason to modify the fuel gas jet nozzles 51 of Akiko in view of the
air gap 19 of Valjean” (Appeal Br. 7), and “reliance on Valjean’s description
of the uniformity of operation resulting from the structure of the air gap 19
as supporting a modification of the air gap 19 of Valjean to introduce fuel
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instead of air is in error” (Reply Br. 4). We do not find this argument
persuasive. To the extent that Appellant appears to insist upon an explicit
motivation in Valjean to establish obviousness, the Supreme Court has stated
that a rigid insistence on an explicit teaching, suggestion, or motivation is
incompatible with its precedent concerning obviousness. KSR Int 7 Co. v.
Teleflex Inc., 550 U.S. 398, 419 (2007). The Court noted that an
obviousness analysis “need not seek out precise teachings directed to the
specific subject matter of the challenged claim, for [an examiner] can take
account of the inferences and creative steps that a person of ordinary skill in
the art would employ.” Id. at 418. Instead, the relevant inquiry is whether
the Examiner has set forth “some articulated reasoning with some rational
underpinning to support the legal conclusion of obviousness.” In re Kahn,
441 F.3d 977, 988 (Fed. Cir. 2006), cited with approval in KSR, 550 U.S. at
418.
Here, the Examiner articulates adequate reasoning based on rational
underpinnings as to why it would have been obvious to substitute the
continuous circumferential gap of Valjean for the fuel gas nozzles of Akiko.
In particular, the Examiner explains that Valjean’s disclosure of air gap 19
as promoting uniformity of operation
translates equally well whether fuel is being supplied via an
annular conduit in proximity of oxidant, oxidant is being
supplied via an annular conduit in proximity to fuel, or both
because the element being supplied through the continuous
circumferential channel connected to a continuous
circumferential aperture is necessary to support combustion.
Ans. 16 (emphasis omitted). In this regard, Appellant does not persuasively
refute the Examiner’s reasoning articulated in support of the conclusion of
obviousness. We agree with the Examiner that the proposed modification of
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Akiko’s burner amounts to nothing more than the simple substitution of one
gas-supplying structure in a burner (Valjcan’s continuous circumferential air
gap 19) for another gas-supplying structure in a burner (Akiko’s fuel gas
nozzles 51), or the mere application of a known technique to a piece of prior
art ready for the improvement. See KSR, 550 U.S. at 417 (“if a technique
has been used to improve one device, and a person of ordinary skill in the art
would recognize that it would improve similar devices in the same way,
using the technique is obvious unless its actual application is beyond his or
her skill”); id. at 416 (“when [an application] claims a structure already
known in the prior art that is altered by the mere substitution of one element
for another known in the field, the combination must do more than yield a
predictable result”). Although we acknowledge Appellant’s observation that
Valjean does not explicitly disclose delivering fuel gas through air gap 19
{see Appeal Br. 6), Appellant does not assert, much less present any
evidence or technical reasoning to show, that modifying Akiko’s burner to
use a continuous circumferential gap for delivering the fuel gas would have
been beyond the technical grasp of a person having ordinary skill in the art.
“A person of ordinary skill is also a person of ordinary creativity, not an
automaton.” KSR, 550 IJ.S. at 421.
Appellant argues that “modifying the fuel gas jet nozzles 51 of Akiko
in view of the Valjean air gap 19 . . . would change a principle of operation
of the Akiko device.” Appeal Br. 7. In particular, Appellant asserts that
Akiko’s nozzles 52 are aimed radially inward to form a planar flame (id.),
whereas “Valjean describes that the use of the air entry gap 19 results in a
flame that is oriented vertically, and as such, using the air entry gap 19 in the
Akiko burner 5 would change a principle of operation of Akiko” {id. at 8).
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Appellant asserts that the proposed modification “would also impermissibly
change Akiko’s principle of operation by affecting the efficient mixing of air
or oxygen with fuel gas, and by affect[ing] the avoidance of backfiring, both
of which Akiko expressly describes as resulting from the use of fuel and air
jet nozzles.” Reply Br. 5 (emphasis omitted). According to Appellant, “a
person of ordinary skill would not replace a complex component of a system
with a simpler component if the simpler component did not support or allow
the original principle of operation of the system.” Id. at 7. These arguments
are not convincing.
We find no evidence in the record before us that Akiko’s burner
would no longer operate satisfactorily if fuel gas nozzles 51 were replaced
with a continuous circumferential gap as proposed by the Examiner.
Regardless of the particular shape of the aperture through which Akiko’s
fuel gas passes (i.e., individual nozzles or a continuous gap), the aperture
would appear to serve the same purpose, using the same principles of
operation. In other words, a continuous gap would continue to provide
Akiko’s fuel gas for combustion. Given that Valjean’s air gap 19 facilitates
delivery of one type of gas for combustion (i.e., air), we fail to see why such
a gap would be unable to provide another type of gas for combustion (i.e,,
fuel gas) in Akiko’s burner.
Moreover, as discussed above, the Examiner’s proposed modification
involves replacing only Akiko’s fuel gas nozzles 51 with the continuous gap
of Valjean. See Ans. 16. Modifying Akiko to replace gas nozzles 51 with a
continuous gap would still leave combustion-supporting gas nozzles 52. See
Akiko 114 (disclosing fuel gas jet nozzles 51 and combustion-supporting
gas jet nozzles 52). In this regard, Appellant offers no evidence or
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persuasive technical reasoning to show that Akiko’s combustion-supporting
gas nozzles 52 (i.e., providing air for combustion) would be unable to
achieve efficient mixing of the air, and combustion as intended in Akiko,
with the fuel gas supplied through the continuous circumferential gap.
Appellant further argues that the additional reasons articulated by the
Examiner for the proposed modification “are speculative and not supported
by the evidence of record.” Appeal Br. 8—9 (citing Final Act. 16). In
particular, Appellant asserts that one of ordinary skill in the art “would not
understand preventing clogging to be a motivation for modifying the Akiko
fuel gas jet nozzles 51 in view of the Valjean air entry gap 19, because the
primary reference Akiko describes a nozzle washing system for preventing
clogging.” Id. at 9 (citing Akiko ^flf 28, 30). This argument does not
persuade us of Examiner error. As discussed above, the Examiner provides
articulated reasoning with rational underpinnings to support the proposed
modification of Akiko based on the teachings of Valjean. Namely, the
proposed modification of Akiko to replace fuel gas nozzles 51 with a
continuous circumferential gap amounts to nothing more than the simple
substitution of one known element (i.e., one type of aperture for delivering a
gas for combustion) for another (i.e., another type of aperture for delivering
a gas for combustion) or the mere application of a known technique to a
piece of prior art ready for the improvement. See KSR, 550 U.S. at 417
(noting that such modifications are obvious where they do no more than
yield a predictable result). In this regard, Appellant does not explain why
the proposed modification of Akiko would yield anything other than the
predictable result of a burner in which fuel gas is provided by a continuous
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circumferential gap (i.e., in place of nozzles 51) and combustion-supporting
gas (i.e., air) is supplied by nozzles 52.
For the above reasons, Appellant does not apprise us of error in the
Examiner’s determination that the subject matter of claim 1 would have been
obvious. Accordingly, we sustain the rejection of claim 1, and of claims 3
and 5—7 falling therewith, under 35 U.S.C. § 103(a) as unpatentable over
Akiko and Valjean.
Claim 8:
Independent claim 8 is directed to a burner comprising “a combustion
region in which a fuel gas can be burnt for combusting the fluid stream” and
“a pilot for igniting the fluid stream.” Appeal Br. 14 (Claims App.). In
particular, the pilot element of claim 8 includes all of the structural
limitations recited in claim 1. Compare id., with id. at 13. In rejecting claim
8, the Examiner finds that Akiko discloses “a combustion region (see Akiko
paragraph [00013] ‘combustion chamber 3’ and see FIG 1) in which a fuel
gas can be burnt for combusting the fluid stream (see Akiko paragraph
[0013] ‘nozzle 4 for introducing gas to be processed’).” Final Act. 6. The
Examiner also finds that Akiko discloses “a pilot (see Akiko paragraph
[0001] ‘burner 5’ and see FIGs 1 and 3) for igniting the fluid stream (see
Akiko paragraph [0015] ‘since the gas to be processed certainly passes the
flame by forming such a planar flame, combustion and/or pyrolysis can be
performed reliably’).” Id. To address the particular structural features of the
“pilot,” the Examiner relies on the same findings and reasoning discussed
above with respect to independent claim 1. See id. at 6—8 (the Examiner
determining that it would have been obvious to modify Akiko’s main burner
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5 to replace fuel gas nozzles 51 with Valjean’s air gap 19 as a simple
substitution of one known element for another yielding predictable results).
In contesting the rejection of independent claim 8, Appellant initially
relies on the arguments set forth with respect to independent claim 1. See
Appeal Br. 9 (asserting that “[cjlaim 8 is patentable at least for reasons
substantially similar to those discussed above with reference to independent
claim 1”). For the same reasons discussed above that Appellant’s arguments
do not apprise us of error in the rejection of claim 1, these arguments
likewise do not apprise us of error in the rejection of claim 8.
Additionally, Appellant argues that the Examiner “has not established
that the main burner 5 of Akiko can reasonably be characterized as a pilot,
because Akiko describes a separate pilot burner 6.” Id. at 10. In particular,
Appellant asserts that “Akiko describes that the pilot burner 6 is attached to
the center of a lid of the combustion cylinder 3, and that the pilot flame of
the pilot burner 6 lights the gas spouted from the fuel gas and oxidizing gas
jet nozzles 51 and 52.” Id. Appellant adds that “claim 8 recites a burner
comprising a pilot,” and “[njowhere does Akiko describe or suggest a burner
that includes burner 5 as a pilot.” Reply Br. 8. We are not persuaded by this
argument, which appears to be based solely on the descriptive labels Akiko
uses for each burner element. In this regard, although Akiko indeed
describes element 5 as a “main burner,” and element 6 as a “pilot burner,”
we agree with the Examiner that “there are no limitations in claim 8 that
provide structure that differentiate[s] a ‘pilot’ from any other burner.” Ans.
17. In other words, for the reasons discussed above with respect to claim 1,
we are not persuaded of error in the Examiner’s determination that the
combination of Akiko and Valjean renders obvious a pilot as recited in claim
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8. The only additional structure recited in claim 8 is a “combustion region.”
Appeal Br. 14 (Claims App.). In this regard, Appellant does not contest the
Examiner’s finding that Akiko discloses such a combustion region, which is
supported by a preponderance of the evidence. See Final Act. 6; see also
Akiko 113 (disclosing a “combustion chamber 3” in which “a main burner 5
. . . forms flame for combustion and/or pyrolysis of gas to be processed
within the combustion chamber 3”).
For the above reasons, Appellant does not apprise us of error in the
Examiner’s determination that the subject matter of claim 8 would have been
obvious. Accordingly, we sustain the rejection of claim 8 under 35 U.S.C.
§ 103(a) as unpatentable over Akiko and Valjean.
Rejections II and III
In contesting the rejections of claims 4 and 9—18, Appellant relies on
the arguments asserted against Rejection I, and contends that Sujata and
Bartz do not make up for the asserted deficiencies in the combination of
Akiko and Valjean. Appeal Br. 10—12. For the reasons discussed above,
these arguments fail to apprise us of error in Rejection I, and, thus, likewise,
fail to apprise us of error in Rejections II and III. Accordingly, we sustain
the rejections of claims 4 and 9-18 under 35 U.S.C. § 103(a).
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DECISION
The Examiner’s decision rejecting claims 1 and 3—18 is 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
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