2019003982 (P.T.A.B. Jan. 22, 2021)

Plasma Tech Holdings, LLC

Patent Trials and Appeals BoardJan 22, 2021

2019003982 (P.T.A.B. Jan. 22, 2021)

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. 13/715,915 12/14/2012 James Charles Juranitch RM-JX9 9030 103376 7590 01/22/2021 Dykema Gossett PLLC 4000 Wells Fargo Center 90 South Seventh Street Minneapolis, MN 55402 EXAMINER MERKLING, MATTHEW J ART UNIT PAPER NUMBER 1725 NOTIFICATION DATE DELIVERY MODE 01/22/2021 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): MN-IPmail@dykema.com patents@dykema.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte JAMES CHARLES JURANITCH and RICHARD TARRANT ____________ Appeal 2019-003982 Application 13/715,915 Technology Center 1700 ____________ Before LINDA M. GAUDETTE, JEFFREY B. ROBERTSON, and MERRELL C. CASHION, JR., Administrative Patent Judges. CASHION, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1–6, 8–11, 13–16, and 18–20. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies “Plasma Tech Holdings, LLC” as the real party in interest. Appeal Br. 1. Appeal 2019-003982 Application 13/715,915 2 The invention relates to the generation of a blended fuel using an inductive and plasma based system. Spec. ¶ 6. Claim 1 illustrates the invention (formatting added): 1. A method of producing a fuel, the method comprising the steps of: delivering a feedstock to a gassifier to generate a product syngas, wherein the feedstock comprises at least one of a municipal solid waste and a hazardous waste, wherein air, oxygen-enriched air, or oxygen is added to the gassifier during syngas generation, and wherein the gassifier comprises a metal bath, an inductive heat source, at least one plasma torch to reflect energy off the metal bath, and a small drain configured to remove an inorganic slag from a top portion of the metal bath; and blending the product syngas with natural gas to form a blended syngas fuel. Appeal Br. 20 (Claims Appendix). Independent claims 8 and 13 also recite methods of producing a fuel similar to the method of claim 1 but include additional features. The Examiner maintains the following rejections from the Examiner’s Final Office Action dated April 4, 2018 (Ans. 3): I. Claims 1, 4–6, 8, 11, 13, 16, and 18–20 rejected under pre-AIA 35 U.S.C. § 103(a) as unpatentable over Fulton (US 2007/0181083 A1, published August 9, 2007), Roederer (FR 2555193 A1, published May 24, 1985)2, and Titus (US 5,847,353, issued December 8, 1998). II. Claims 2, 3, 9, 10, 14, and 15 rejected under pre-AIA 35 U.S.C. § 103(a) as unpatentable over Fulton, Roederer, Titus, and Tsangaris (US 2 We rely on an English machine translation of Roederer entered by the Examiner into the record on February 6, 2017. The translation is not paginated. Therefore, for the purposes of this opinion, we enumerate the pages beginning with the cover sheet as page 1. Appeal 2019-003982 Application 13/715,915 3 2008/0209807 A1, published September 4, 2008). Appellant relies on the same line of argument to address all claims under appeal. See generally Appeal Br. Accordingly, we select claim 1 as representative of the subject matter claimed and decide the appeal based on the arguments presented for claim 1. OPINION After review of the respective positions the Appellant provides in the Appeal and Reply Briefs and the Examiner provides in the Final Office Action, we affirm the Examiner’s prior art rejections of claims 1–6, 8–11, 13–16, and 18–20 based essentially on the Examiner’s fact-finding and reasoning. We add the following for emphasis. Independent claim 1 We refer to the Examiner’s Final Office Action for a complete statement of the Examiner’s rejection of claim 1. Final Act. 2–4. In addressing the rejection, both the Examiner and Appellant focus on what should be the broadest reasonable interpretation of the term “hazardous waste” describing a feedstock for the claimed method. Ans. 3–4; Appeal Br. 13–14. But, claim 1 recites “wherein the feedstock comprises at least one of a municipal solid waste and a hazardous waste.” As drafted, the claim is not limited to only hazardous waste as the feedstock. Moreover, even if we were to agree with Appellant that “hazardous waste” is a term of art, such is not sufficient to demonstrate reversible error in the Examiner’s rejection. That is, Fulton teaches hydrogen can be produced by the partial oxidation of various feedstocks through gasification. See Fulton ¶ 43. In addition, Titus discloses the use of municipal and industrial waste for the production of a Appeal 2019-003982 Application 13/715,915 4 useful hydrogen containing gas as an energy source via gasification. Titus col. 2, ll. 64–67, col. 3, ll. 56–65, col. 4, ll. 26–30; col. 12, ll. 3–13. These teachings suggests both of Appellant’s recited feedstocks. See Final Act. 6. Therefore, Appellant’s arguments do not identify reversible error in the Examiner’s determination of obviousness for the reasons we give above. Appellant argues that the Examiner has not explained how one skilled in the art would modify Fulton’s process by substituting Fulton’s gassifier with Roederer’s gassifier because Roederer is limited to using coal in pulverulent state as a feedstock and does not disclose the use of other possible feedstocks such as those recited in claim 1. Appeal Br. 8–9; Roederer Abstr. Thus, Appellant contends that there is no reason to combine the teachings of the cited art to arrive at the claimed invention. Appeal Br. 11. Appellant’s arguments are not persuasive of reversible error in the Examiner’s determination of obviousness. The Examiner finds that Fulton teaches a process of producing a fuel using a gassifier to generate syngas from a feedstock and subsequently blending the generated syngas with natural gas to form a blended fuel. Final Act. 2–3; see Fulton Abstr., ¶¶ 35, 39, 42–43. The Examiner finds that Fulton does not teach using the claimed gassifier. Final Act. 3. The Examiner finds that Roederer teaches a gassifier that meets the limitations recited in claim 1 as a known gassifier for producing a hydrogen containing combustible from feedstock. Final Act. 3; see Roederer Figure 3, Abstr., 6. The Examiner determines that it would have been obvious to one of ordinary skill in the art to modify Fulton’s method of producing a fuel by substituting Fulton’s gassifier with Roederer’s gassifier because both references are Appeal 2019-003982 Application 13/715,915 5 directed to producing hydrogen from feedstock. Final Act. 3. Thus, the Examiner provides a reasonable basis why a person of ordinary skill in the art would have combined the teachings of the cited art to arrive at the claimed invention. In re O’Farrell, 853 F.2d 894, 904 (Fed. Cir. 1988) (“For obviousness under § 103, all that is required is a reasonable expectation of success.”). Appellant’s arguments do not address adequately the Examiner’s reasons for combining the teachings of the cited art. In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986); see also In re Keller, 642 F.2d 413, 425–26 (CCPA 1981) (citations omitted) (“The test [for obviousness] is what the combined teachings of the references would have suggested to those of ordinary skill in the art.”). Appellant’s contention that Roederer’s gassifier is limited to pulvurelent carbon as the feedstock is also unpersuasive because, as we discuss above, Fulton and Titus suggest that gassifiers are capable of handling a diversity of feedstocks, including municipal waste, to generate a hydrogen rich fuel. See Fulton ¶ 43 and Titus col. 2, ll. 64–67, col. 3, ll. 56– 65, col. 4, ll. 26–30; col. 12, ll. 3–13. Given these disclosures, Appellant fails to explain adequately why one of ordinary skill in the art, using no more than ordinary creativity, would not have been capable of modifying Roederer’s gassifier so as to handle other known feedstocks used for the generation of syngas, such as the ones taught by Fulton and Titus. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 421 (2007) (“A person of ordinary skill is also a person of ordinary creativity, not an automaton.”); In re Sovish, 769 F.2d 738, 743 (Fed. Cir. 1985) (presuming skill on the part of one of ordinary skill in the art). Appeal 2019-003982 Application 13/715,915 6 Appellant argues that the combined teachings of the cited art do not suggest a gassifier comprising a small drain configured to remove an inorganic slag from a top portion of the metal bath, as claimed, because Roederer teaches away from draining the slag. Appeal Br. 15. According to Appellant, Roederer discloses that having a drain present to remove slag from the iron bath would directly affect the ability to perform a continuous process. Appeal Br. 15; Roederer 4.3 Appellant’s arguments are not persuasive of reversible error. Roederer teaches the use of a drain 34 to discharge (remove) slag accumulated in a decanter. Roederer 6. Thus, we discern no distinction in the function of both Roederer’s drain and the claimed small drain and Appellant fails to direct us to any distinction. While Appellant contends that Roederer teaches away from removing the slag, the paragraph immediately preceding the portion of Roederer that Appellant relies upon discloses an embodiment that includes removal of the slag when enriched with impurities. Id. at 4. When both paragraphs are read together, Roederer’s embodiment comprising drain 34 appears to be, at best, a less preferred embodiment. It is well settled that a reference may be relied upon for all that it discloses and not merely the preferred embodiments as suggested by Appellant. See Merck & Co. v. Biocraft Labs., Inc., 874 F.2d 804, 807 (Fed. Cir. 1989) (“[A]ll disclosures of the prior art, including unpreferred embodiments, must be considered.”) (quoting In re Lamberti, 545 F.2d 747, 750 (CCPA 1976)); see also In re Fracalossi, 681 F.2d 792, 794 n.1 (CCPA 1982) (explaining that a prior art reference’s disclosure is not limited to its 3 Note that we are using our paginated version of Roederer. Appeal 2019-003982 Application 13/715,915 7 examples). The disclosed examples and preferred embodiments do not constitute a teaching away from a broader disclosure or non-preferred embodiments. In re Susi, 440 F.2d 442, 446 n.3 (CCPA 1971). Appellant has not explained adequately why Roederer’s disclosure of an embodiment comprising a small drain limits or teaches away from Roederer’s broader disclosure. Accordingly, we affirm the Examiner’s prior art rejections of claims 1–6, 8–11, 13–16, and 18–20 for the reasons the Examiner presents and we give above. DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 4–6, 8, 11, 13, 16, 18–20 103(a) Fulton, Roederer, Titus 1, 4–6, 8, 11, 13, 16, 18–20 2, 3, 9, 10, 14, 15 103(a) Fulton, Roederer, Titus, Tsangaris 2, 3, 9, 10, 14, 15 Overall Outcome 1–6, 8–11, 13–16, 18–20 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED