Frederick P. Mussari et al.

Patent Trials and Appeals Board

Jan 27, 2020

13643663 - (D) (P.T.A.B. Jan. 27, 2020)

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.
13/643,663 12/03/2012 Frederick P. Mussari B2096-7007US 1066
37462 7590 01/27/2020
LANDO & ANASTASI, LLP
ONE MAIN STREET, SUITE 1100
CAMBRIDGE, MA 02142
EXAMINER
STELLING, LUCAS A
ART UNIT PAPER NUMBER
1773
NOTIFICATION DATE DELIVERY MODE
01/27/2020 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):
CKent@LALaw.com
docketing@LALaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte FREDERICK P. MUSSARI and AARON ZAHN
____________

Appeal 2019-002122
Application 13/643,663
Technology Center 1700
____________

Before JAMES A. WORTH, MICHELLE N. ANKENBRAND, and
MERRELL C. CASHION JR., Administrative Patent Judges.

CASHION, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
rejection2 of claims 10, 11, and 16–23, which constitute all the claims
pending in this application. Claims 1–9 and 12–15 have been withdrawn.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies the real party in interest as BCR
Environmental Corporation. Appeal Br. 3.
2 According to the prosecution record, both Appellant and the Examiner
agree that the appeal is taken from the Non-Final Action dated November
11, 2016. See Examiner’s Communication dated July 31, 2017; Ans. 3;
Appeal Br. 5.
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Application 13/643,663

2
We have jurisdiction under 35 U.S.C. § 6.
We REVERSE.
The invention is generally directed to a method for treating a waste
stream comprising biosolids. Spec. ¶ 3. Claim 10 is illustrative of the
subject matter on appeal and is reproduced below:
10. A method for treating a waste stream comprising
biosolids so as to achieve a SOUR of 1.5 mg 0 2/g/hr or less
and an ORP of at least +300 mV in the waste stream, the waste
stream being provided at varying flow rates and solids
concentrations, the method comprising:
adjusting a suspended solids content as a percent of the
total volume of the waste stream to five (5) weight percent or
less;
generating chlorine dioxide in an on-site generator; and
delivering the chlorine dioxide to a conduit comprising a
treatment zone through which the waste stream flows so as to
achieve a dose rate between 25 and 200 parts per million of the
waste stream in the treatment zone and complete dispersal of
chlorine dioxide in the waste stream within 30 seconds of
delivery to the conduit to provide a treated biosolids sample.
Appellant (see generally Appeal Br.) requests review of the following
rejections from the Examiner’s Non-Final Action dated November 1, 2016:3
I. Claims 10, 11, 16, and 18–23 rejected under 35 U.S.C. §103(a)
as unpatentable over Reimers (US 2005/0279706 A1, published December
22, 2005), Schmitz (US 2005/0244328 A1, published November 3, 2005),
Teran (US 2007/0090030 A1, published April 26, 2007), and Rozich
(US 6,783,679 B1, issued August 31, 2004).
II. Claim 17 rejected under 35 U.S.C. §103(a) as unpatentable over
Reimers, Schmitz, Teran, Rozich, and Mullerheim (US 5,837,142, issued
November 17, 1998).

3 The Examiner withdrew the rejection under 35 U.S.C. § 112, second
paragraph. Ans. 11.
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Application 13/643,663

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OPINION
After review of the respective positions that Appellant provides in the
Appeal Brief and the Examiner provides in the Non-Final Action and the
Answer, we REVERSE the Examiner’s prior art rejections of claims 10, 11,
and 16–23 for the reasons the Appellant presents. We add the following for
emphasis.
Claim 104
We refer to the Examiner’s Non-Final Action for a complete
statement of the rejection of claim 10. Non-Final Act. 4–8.
Briefly, the Examiner finds that Reimers5 teaches a method for
treating a waste stream comprising biosolids by delivering chlorine dioxide
to a conduit comprising a treatment zone through which said waste stream
flows. Non-Final Act. 5; Reimers ¶¶ 22, 77. The Examiner finds that
Reimers’s Table 9 shows that adding the chlorine dioxide at time zero within
a reactor zone results in desired Oxygen Reduction Potential (ORP) levels of
between 330 and 600 mV. Non-Final Act. 6–7; Reimers ¶¶ 27, 72 (Table 9),
75. The Examiner determines that, although Reimers does not disclose
completely dispersing the chlorine dioxide within 30 seconds, it would have
been obvious to one skilled in the art to disperse Reimers’s chlorine dioxide
with the biosolids within the claimed time period (i.e., immediately) while
mixing to reach the desired ORP at zero minutes. Non-Final Act. 5, 7.

4 We limit our discussion to independent claim 10.
5 Appellant’s arguments focus on the primary reference to Reimers. See
generally Appeal Br. Appellant does not dispute the Examiner’s specific
findings with respect to the additional secondary references. Id.
Accordingly, we limit our discussion to Reimers in addressing Appellant’s
arguments.
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Application 13/643,663

4
Appellant argues that Reimers’s Table 9 fails to suggest the disputed
limitation because Reimers does not associate complete dispersal of chlorine
dioxide in the waste stream with any particular ORP value. Appeal Br. 7.
Instead, Appellant contends that “there is nothing in Reimers that indicates
that the ORP of the sludge samples at time zero was anything other than the
initial ORP of the sludge prior to contact with the oxidant.” Id. Appellant
also contends that “Reimers discloses mixing oxidants and biosolids ‘for
approximately 30 to 120 minutes in a batch reactor vessel where
pathogenic organisms are inactivated,’” a time period that is “60 to 240
times the 30 seconds presently recited.” App. Br. 8; Reimers ¶ 27.
Appellant asserts that “[r]eplacing the 30 to 120 minute batch mixing
process of Reimers with a process including achieving ‘complete dispersal
of chlorine dioxide in the waste stream within 30 seconds of delivery’”
would negate Reimers’s purpose and intent and contradict the prescribed
process. Appeal Br. 8. In other words, Appellant contends that the
Examiner is relying on impermissible hindsight to arrive at the claimed
invention from Reimers’s disclosure.
We agree with Appellant that there is reversible error in the
Examiner’s determination of obviousness.
The Examiner bears the initial burden of presenting a prima facie case
of obviousness. In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992).
“[R]ejections on obviousness grounds cannot be sustained by mere
conclusory statements; instead, there must be 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), quoted with
approval in KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007). The
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Application 13/643,663

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fact finder must be aware “of the distortion caused by hindsight bias and
must be cautious of arguments reliant upon ex post reasoning.” KSR, 550
U.S. at 421 (citing Graham v. John Deere Co., 383 U.S. 1, 36 (1966)
(warning against a “temptation to read into the prior art the teachings of the
invention in issue”)).
The premise of the Examiner’s rejection is that the data in Reimers’s
Table 9 would have led one skilled in the art to a process of treating a waste
stream by completely dispersing chlorine dioxide in the waste stream within
30 seconds of delivery to a conduit to provide a treated biosolids sample, as
claimed, because the data demonstrate that the ORP in a closed system is
brought to the desired level of ORP within a time of zero minutes, i.e.,
immediately. Non-Final Act. 7. The Examiner, however, does not direct us
to any portions of Reimers that support the Examiner’s premise. In fact,
Reimers merely states that “[t]ables 5 to 9 show the ORP level verses
chlorinate mixed oxidants in open system and closed system.” Reimers ¶
68. As Appellant argues, there is no disclosure associating the Table 9 data
with complete dispersal of chlorine dioxide in the waste stream. Appeal Br.
7.
Further, as Appellant also argues, Reimers discloses a time period for
dispersing the oxidant (chlorine dioxide) within the waste stream that is
substantially longer than the claimed “within 30 seconds of delivery.” See
Appeal Br. 8 (citing Reimers ¶ 27). The Examiner has not provided an
adequate technical explanation with the requisite rational underpinning of
why or how one skilled in the art, absent impermissible hindsight, would
have arrived at the claimed dispersal time period from Reimers’s disclosure.
Thus, the Examiner has not made a prima facie case of obviousness.
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Application 13/643,663

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Accordingly, we reverse the Examiner’s prior art rejections of claims
10, 11, and 16–23 under 35 U.S.C. § 103(a) for the reasons the Examiner
presents and the reasons we give above.

CONCLUSION
In summary:

Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
10, 11, 16,
18–23
103(a) Reimers, Schmitz,
Teran, Rozich
10, 11, 16,
18–23
17 103 (a) Reimers, Schmitz,
Teran, Rozich,
Mullerheim
17
Overall
Outcome
10, 11,
16–23

REVERSED