Ex parte VAN DIJK et al.

Board of Patent Appeals and Interferences

Aug 24, 1998

08065438 (B.P.A.I. Aug. 24, 1998)

Application for patent filed May 24, 1993. According to1
the appellants, the application is a division of Application
No. 07/762,505, filed September 19, 1991, now Patent
No. 5,245,110.
THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered
today (1) was not written for publication in a law
journal and (2) is not binding precedent of the
Board.
Paper No. 17
UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________
Ex parte CHRISTIAAN P. VAN DIJK and LOWELL D. FRALEY
____________
Appeal No. 95-3500
Application No. 08/065,4381
____________
ON BRIEF
____________
Before RONALD SMITH, CAROFF and METZ, Administrative Patent
Judges.
CAROFF, Administrative Patent Judge.
DECISION ON APPEAL
This decision on appeal relates to the final rejection of
claims 1-10, 16 and 20-27, all the claims remaining in the
involved application.
Appeal No. 95-3500
Application No. 08/065,438
2
The claims on appeal relate to a method for preparing an
oxygen-enriched gas stream using a gas turbine system.
Appellants acknowledge on page 8 of their brief that the
claims stand or fall together for the purposes of this appeal.
Accordingly, we will limit our consideration to representative
claim 1 which reads as follows:
1. A method for preparing a gas stream containing
nitrogen which contains greater than 21 mole % oxygen using a
gas turbine comprising an air compressor unit and an energy
production unit comprising a combustor unit and a first
expander mechanically linked to the air compression unit by a
shaft carrying a thrust bearing, comprising the steps of:
(a) compressing air in a compressor unit of a gas
turbine;
(b) contacting at least a portion of such compressed air
with a means which is preferential for the separation of O2
from said compressed air to produce one gas stream which is
enriched in O relative to nitrogen and a second gas stream2
which is depleted in O relative to nitrogen;2
(c) passing said oxygen depleted gas stream to the
combustor unit of said turbine;
(d) recovering said O enriched gas stream in an amount2
which exceeds the capacity of the thrust bearing; and
(e) maintaining a mass flow within the energy production
unit in an amount which is within the capacity of the thrust
bearing by adding a non-combustible fluid to said energy
production unit.
All of the claims on appeal stand solely rejected under
Appeal No. 95-3500
Application No. 08/065,438
3
35 U.S.C. § 112, second paragraph, for indefiniteness
regarding the term “mass flow” as employed in step (e) of the
claims.
After having considered the entire record in light of the
respective positions advanced by appellants and the examiner,
we agree with appellants that the claims are sufficiently
definite to comply with the second paragraph of 35 U.S.C. §
112. Accordingly, we shall reverse the rejection at issue.
We entirely agree with appellants that, on their face,
the claims clearly define which of the recited fluids is fed
to the energy production unit, namely the oxygen - depleted
gas stream and the non-combustible fluid. Moreover, as amply
demonstrated by appellants, the instant specification is
replete with references to “mass flow” within the energy
production unit and adequately discusses the significance of
each fluid input and output stream. In this regard, pages 27,
29-30, 33-34, 37-38,
42 and 56 are particularly pertinent. The claims cannot be
read in a vacuum but, rather, must be read in light of the
instant specification as it would be interpreted by a person
possessing the ordinary level of skill in the pertinent art.
Appeal No. 95-3500
Application No. 08/065,438
4
See In re Johnson, 558 F.2d 1008, 1016, 194 USPQ 187, 194
(CCPA 1977);
In re Moore, 439 F.2d 1232, 1235, 169 USPQ 236, 238 (CCPA
1971).
Appeal No. 95-3500
Application No. 08/065,438
5
The decision of the examiner is reversed.
REVERSED

RONALD H. SMITH )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
MARC L. CAROFF ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
ANDREW H. METZ )
Administrative Patent Judge )
Appeal No. 95-3500
Application No. 08/065,438
6
Charles M. Cox
PRAVEL, HEWITT, KIMBALL and KRIEGER
1177 West Loop South, 10th Floor
Houston, TX 77027-9095
Appeal No. 95-3500
Application No. 08/065,438
7
MLC/jrg
JENINE GILLIS
Appeal No. 95-3500
Serial No. 08/065,438
Judge CAROFF
Judge RONALD SMITH
Judge METZ
Received: 13 Aug 98

Typed: 13&18 Aug 98
Revision: 19 Aug 98
DECISION: REVERSED

Send Reference(s): Yes No
or Translation(s)
Panel Change: Yes No
3-Person Conf. Yes No
Heard: Yes No
Remanded: Yes No
Index Sheet-2901 Rejection(s):
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