Daniel Smith

Patent Trials and Appeals Board

Mar 4, 2021

2020002025 (P.T.A.B. Mar. 4, 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.
15/593,054 05/11/2017 Daniel P. Smith 17-6426 6074
106968 7590 03/04/2021
William M. Hobby, III
157 East New England Avenue, #375
Winter Park, FL 32789
EXAMINER
PRINCE JR, FREDDIE GARY
ART UNIT PAPER NUMBER
1778
MAIL DATE DELIVERY MODE
03/04/2021 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 DANIEL P. SMITH
Appeal 2020-002025
Application 15/593,054
Technology Center 1700
Before TERRY J. OWENS, JAMES C. HOUSEL, and
MICHELLE N. ANKENBRAND, Administrative Patent Judges.
HOUSEL, 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, 4–10, and 13–20. 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 the Inventor, Daniel P. Smith, as the
real party in interest. Appeal Brief (“Appeal Br.”) filed August 6, 2019, 1.
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Application 15/593,054

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CLAIMED SUBJECT MATTER
The invention relates to a process and apparatus for the removal of
nitrogen from wastewater using anammox bacteria. Specification (“Spec.”)
filed May 11, 2017, ¶ 1.
Independent process claim 1 and apparatus claim 10, reproduced
below from the Claims Appendix to the Appeal Brief, are illustrative of the
claimed subject matter:
1. A process for removing nitrogen from wastewater
comprising:
selecting an anaerobic vault chamber for the collection of
wastewater therein, said chamber having a wastewater inlet and
a wastewater outlet;
attaching a plurality of hollow membrane oxygen
permeation tubes in said tank;2
adding a granular media supporting anammox bacteria to
said chamber surrounding said permeation tubes;
passing wastewater into said tank surrounding said
granular media and permeation tubes; and
feeding oxygen into said plurality of permeation tubes
and through the membrane walls of said permeation tubes to
cause a limited aerobic nitritation of wastewater adjacent each
of said tube walls to support nitritation of a portion of
wastewater ammonium to nitrite followed by an anammox

2 We note that Appellant refers to “said tank” in the attaching step and the
passing step, which has no antecedent earlier in the claim. Upon further
prosecution, the Examiner and Appellant should address this issue by
consistently using either “chamber” or “tank” in the claims. We discern no
patentable distinction between these two terms within the context of this
application.
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conversion of the produced nitrite and a wastewater ammonium
to N2 gas in said anaerobic chamber.
10. An apparatus for removing nitrogen from wastewater
comprising:
a wastewater collection vault having an anaerobic vault
chamber having a wastewater inlet and a wastewater outlet, said
vault chamber being charged with ammonia oxidizing bacteria·
and with anammox bacteria;
a plurality of hollow porous membrane oxygen
permeation tubes mounted in said anaerobic vault chamber,
each said hollow oxygen permeation tube being coupled to a
source of oxygen for the transmission of oxygen thereinto for
bleeding oxygen through the permeation walls thereof; and
granular media at least partially filling said vault
chamber surrounding said plurality of hollow oxygen
permeation tubes mounted therein;
whereby wastewater in said anaerobic vault chamber
converts ammonium to nitrite and ammonium and nitrite are
converted to nitrogen gas in said vault chamber when oxygen is
fed into said plurality of permeation tubes and bled through the
walls thereof.
REFERENCES
The Examiner relies on the following prior art:
Name Reference Date
Takeishi US 5,006,251 Apr. 9, 1991
Wanielista US 8,002,984 B1 Aug. 23, 2011
Guiot US 2007/0218540 A1 Sept. 20, 2007
Takeda US 2011/0253625 A1 Oct. 20, 2011
Montalvo Martinez US 2014/0353246 A1 Dec. 4, 2014
Smith US 2015/0239761 A1 Aug. 27, 2015
KR437 KR 100432437 B1 May 22, 2004
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Application 15/593,054

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Name Reference Date
Okajima et al. (“Nanri”)3 WO 2015/072400 A1 May 21, 2015

REJECTIONS
The Examiner maintains, and Appellant requests our review of, the
following rejections under 35 U.S.C. § 103:4
1. Claims 1, 10, 19, and 20 as unpatentable over Takeda in
view of Nanri (Ans. 3–4, 7–9);
2. Claims 4 and 13 as unpatentable over Takeda in view of
Nanri, and further in view of KR437 (Ans. 4–5, 9);
3. Claims 5 and 14 as unpatentable over Takeda in view of
Nanri, and further in view of Montalvo Martinez (Ans. 5,
10);
4. Claims 6 and 15 as unpatentable over Takeda in view of
Nanri, and further in view of Smith (Ans. 5–6, 10);
5. Claims 7 and 16 as unpatentable over Takeda in view of
Nanri, and further in view of Takeishi (Ans. 6, 11);
6. Claims 8 and 17 as unpatentable over Takeda in view of
Nanri, and further in view of Guiot (Ans. 6–7, 11–12); and
7. Claims 9 and 18 as unpatentable over Takeda in view of
Nanri, and further in view of Wanielista (Ans. 7, 12).

3 The Examiner relies, without objection, on a European Patent
Office/Google® machine-generated translation of this reference. For
consistency, we adopt the Examiner’s identification of this reference using
the last name of the second-named inventor, Nanri, rather than the last name
of first-named inventor, Okajima.
4 Although the Examiner rejects the process claims separately from the
apparatus claims, the process and apparatus claims are substantively the
same. Therefore, we combine these rejections for administrative
convenience.
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Application 15/593,054

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OPINION
We review the appealed rejections for error based upon the issues
Appellant identifies, and in light of the arguments and evidence produced
thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential)
(cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011)
(“[I]t has long been the Board’s practice to require an applicant to identify
the alleged error in the examiner’s rejections.”)). After considering the
argued claims and each of Appellant’s arguments, we are not persuaded of
reversible error in the Examiner’s obviousness rejections. Therefore, we
affirm the stated rejections for substantially the fact findings, reasoning, and
conclusions set forth in the Examiner’s Answer, which we adopt as our own.
We offer the following for emphasis only.
For purposes of this appeal, to the extent that the claims on appeal are
separately argued, we will address them separately consistent with 37 C.F.R.
§ 41.37(c)(1)(iv) (2019).
Rejection 1: Obviousness over Takeda and Nanri
The Examiner finds that Takeda discloses a process and apparatus as
set forth in claims 1 and 10, except for a plurality of hollow membrane
oxygen permeation tubes and feeding oxygen through the membrane walls
of the tubes. Examiner’s Answer (“Ans.”) dated October 11, 2019, 3–4, 8.
The Examiner finds that Nanri discloses a process and apparatus comprising
a chamber including a plurality of hollow membrane oxygen permeation
tubes and feeding oxygen through the membrane walls of the tubes for
aeration of the chamber in multiple zones. Id. at 4, 8. The Examiner
concludes that it would have been obvious to modify Takeda’s process and
apparatus to include a plurality of hollow membrane oxygen permeation
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tubes for feed oxygen through the membrane walls of the tubes in order to
aerate Takeda’s chamber in multiple zones. Id.
Appellant argues that Takeda treats raw water in an aerobic reaction
tank having a draft tube aerator to feed oxygen into the aerobic tank,
wherein a plurality of granular supports are provided in the tank, the
supports having a two layer bacterial coating, the inner layer including an
anaerobic ammonia oxidizing bacteria and the outer layer including an
aerobic nitrite nitrifying bacteria. Appeal Br. 4, 10. Therefore, Appellant
contends that Takeda’s process requires an aerobic tank with a granular
media supporting an aerobic bacteria, rather than an anaerobic tank with a
granular media supporting an anaerobic bacteria. Id.
Appellant further contends that nothing in the prior art suggests
placing a plurality of hollow permeation air tubes having permeable
membrane walls in an aerobic chamber filled with granular media
supporting anammox (anaerobic) bacteria for bleeding small amounts of
oxygen into the chamber. Id. at 5. Appellant asserts that it is only by placing
multiple hollow permeation tubes in such a chamber “which bleeds the
oxygen only in and directly adjacent the walls of the tubes that prevents
destruction of the anaerobic action in the chamber.” Id. In this regard,
Appellant contends that placing Nanri’s air diffusion pipes in an anaerobic
tank “would instantly convert the tank into an aerobic tank, would not work
and would kill any anaerobic process.” Id. at 6–7, 10–11. Appellant urges
that nothing in the prior art suggests placing plural air tubes in an anaerobic
chamber to support both aerobic and anaerobic treatment of wastewater with
anammox bacteria. Id. at 6–7.
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Appellant’s arguments are not persuasive of reversible error in the
Examiner’s obvious rejection based on Takeda and Nanri. Initially, we note,
as did the Examiner (Ans. 13), that Appellant’s argument extends to
limitations not recited in the claims. See In re Van Geuns, 988 F.2d 1181,
1184 (Fed. Cir. 1993) (rejecting appellant’s nonobviousness argument as
based on limitation not recited in claim); In re Self, 671 F.2d 1344, 1348
(CCPA 1982) (“Many of appellant’s arguments fail from the outset because,
as the solicitor has pointed out, they are not based on limitations appearing
in the claims.”). In particular, claims 1 and 10 do not recite bleeding small
amounts of oxygen only in and directly adjacent the walls of the tubes to
prevent destruction of the anaerobic action in the chamber.
Further, though Appellant recites that the chamber is anaerobic,
feeding oxygen into the tank via the permeation tubes means that the
chamber is also, at least in part, aerobic. As the Examiner finds, and
Appellant does not dispute, Takeda’s chamber or tank provides both aerobic
and anaerobic action via the aerobic and anaerobic bacteria. Ans. 12, 14.
Thus, we agree with the Examiner that Takeda’s chamber or tank is, at least
in part, anaerobic. Appellant’s claims do not exclude providing the granular
media with an outer layer of aerobic bacteria, or feeding oxygen into the
chamber or tank to support nitritation of a portion of the wastewater
ammonium to nitrite followed by an anammox conversion of the produced
nitrite and a wastewater ammonium to N2 gas in the chamber or tank.
In addition, Appellant does not address or otherwise identify clear
error in the Examiner’s reasoning why one of ordinary skill in the art would
have substituted Nanri’s hollow membrane permeation tubes with Takeda’s
draft aeration tube, i.e., to aerate the chamber or tank in multiple zones. See
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Ans. 4, 13 (“aerate the chamber in multiple zones to more uniformly
oxygenate the exterior of the granular media”). Although Appellant contends
that Nanri’s tubes “would instantly convert the tank into an aerobic tank,
would not work and would kill any anaerobic process,” we disagree. As the
Examiner finds, Nanri’s tubes would not alter Takeda’s aerobic and
anaerobic process because such tubes would perform the same function as
Takeda’s draft aeration tube.
Accordingly, we sustain the Examiner’s obviousness rejection of
claims 1, 10, 19, and 20 over the combination of Takeda and Nanri.
Rejection 2: Obviousness over Takeda, Nanri, and KR437
Claims 4 and 13 depend from claims 1 and 10, respectively, and
further require that the granular media includes a zeolite with ionic exchange
properties. The Examiner acknowledges that Takeda fails to disclose this
limitation, but finds that KR437 discloses a granular media including a
zeolite with ionic exchange properties in the treatment of nitrogen-
containing wastewater at low cost and great efficiency. Ans. 4–5, 9.
Appellant argues that this combination is no more than hindsight
because the present invention has nothing to do with a sequencing batch
biofilm reactor. Appeal Br. 8, 12.
This argument is not persuasive of reversible error, however, because
Appellant fails to explain any significance to the difference between
KR437’s reactor, Takeda’s process and apparatus, and Appellant’s claimed
invention. Indeed, KR437’s granular media is used for a similar purpose, as
a microorganism support media, in a similar field of endeavor, wastewater
treatment, as Appellant’s claimed invention. In re Bigio, 381 F.3d 1320,
1325 (Fed. Cir. 2004) (a reference is analogous if it is either from the same
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field of endeavor or is reasonably pertinent to the particular problem with
which the inventor is concerned). As such, we neither find the KR437 is
somehow non-analogous prior art nor that the combination enlists
impermissible hindsight.
Accordingly, we sustain the Examiner’s obviousness rejection of
claims 4 and 13 over the combination of Takeda, Nanri, and KR437.
Rejection 3: Obviousness over Takeda, Nanri, and Montalvo Martinez
Claims 5 and 14 depend from claims 1 and 10, respectively, and
further require that the granular media includes clinoptilolite. The Examiner
acknowledges that Takeda fails to disclose this limitation, but finds that
Montalvo Martinez discloses a granular media including clinoptilolite to
facilitate anaerobic degradation of organic matter in wastewater. Ans. 4–5,
9.
Appellant asserts that, in contrast to the present invention which uses
an anaerobic tank, Montalvo Martinez’s process takes place in an aerobic
digester. Appeal Br. 8, 12. As such, Appellant appears to contend that
Montalvo Martinez is non-analogous prior art and reliance thereon entails
impermissible hindsight. Id. at 8–9.
This argument is not persuasive of reversible error, however, because
Appellant fails to explain any significance to the difference between aerobic
and anaerobic processes when considering the granular support material.
Indeed, Montalvo Martinez’s granular media is used for a similar purpose, as
a microorganism support media, in a similar field of endeavor, wastewater
treatment, as Appellant’s claimed invention. Bigio, 381 F.3d at 1325. As
such, we neither find the Montalvo Martinez is somehow non-analogous
prior art nor that the combination enlists impermissible hindsight.
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Accordingly, we sustain the Examiner’s obviousness rejection of
claims 5 and 14 over the combination of Takeda, Nanri, and Montalvo
Martinez.
Rejection 4: Obviousness over Takeda, Nanri, and Smith
Claims 6 and 15 depend from claims 1 and 10, respectively, and
further require that the granular media includes chabazite. The Examiner
acknowledges that Takeda fails to disclose this limitation, but finds that
Smith discloses a granular media including chabazite to perform ion
exchange. Ans. 5–6, 10.
Appellant merely asserts that Smith fails to suggest a combination of
chabazite in a process in a single tank anammox conversion process. Appeal
Br. 9, 13.
This assertion is not persuasive of reversible error because Appellant
fails to address the basis of the rejection, which relies on Smith’s teaching of
a material suitable for a granular media, whereas Takeda and Nanri are
relied on for teaching a single tank anammox conversion process.
Accordingly, we sustain the Examiner’s obviousness rejection of
claims 5 and 15 over the combination of Takeda, Nanri, and Smith.
Rejection 5: Obviousness over Takeda, Nanri, and Takeishi
Claims 7 and 16 depend from claims 1 and 10, respectively, and
further require that the granular media includes expanded shale. The
Examiner acknowledges that Takeda fails to disclose this limitation, but
finds that Takeishi discloses a granular media including expanded shale to
facilitate the treatment of organics in wastewater. Ans. 6, 11.
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Appellant merely asserts that Takeishi fails to suggest a combination
of expanded shale in a single tank anammox conversion process. Appeal Br.
9, 13.
This assertion is not persuasive of reversible error because Appellant
fails to address the basis of the rejection, which relies on Takeishi’s teaching
of a material suitable for a granular media, whereas Takeda and Nanri are
relied on for teaching a single tank anammox conversion process.
Accordingly, we sustain the Examiner’s obviousness rejection of
claims 7 and 16 over the combination of Takeda, Nanri, and Takeishi.
Rejection 6: Obviousness over Takeda, Nanri, and Guiot
Claims 8 and 17 depend from claims 1 and 10, respectively, and
further require that the granular media includes expanded clay. The
Examiner acknowledges that Takeda fails to disclose this limitation, but
finds that Guiot discloses a granular media including expanded clay to
provide a high surface area support for the treatment of wastewater. Ans. 6–
7, 11–12.
Appellant argues that this combination is no more than hindsight
because the present invention has nothing to do with bioelectroytic
methanogenic coupling for bioremediation of ground water. Appeal Br. 9,
13. Therefore, Appellant contends that this rejection employs impermissible
hindsight. Id. at 10, 13.
This argument is not persuasive of reversible error because Appellant
fails to explain any significance to the difference between Guiot’s process
and apparatus, Takeda’s process and apparatus, and Appellant’s claimed
invention. Indeed, Guiot’s granular media is used for a similar purpose, as a
microorganism support media, in a similar field of endeavor, wastewater
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treatment, as Appellant’s claimed invention. Bigio, 381 F.3d at 1325. As
such, we neither find that Guiot is somehow non-analogous prior art nor that
the combination enlists impermissible hindsight.
Accordingly, we sustain the Examiner’s obviousness rejection of
claims 8 and 17 over the combination of Takeda, Nanri, and Guiot.
Rejection 7: Obviousness over Takeda, Nanri, and Wanielista
Claims 9 and 18 depend from claims 1 and 10, respectively, and
further require that the granular media includes mixtures of zeolites,
expanded clay, and expanded shale. The Examiner acknowledges that
Takeda fails to disclose this limitation, but finds that Wanielista discloses a
granular media including mixtures of zeolites, expanded clay, and expanded
shale to remove selected contaminants from wastewater. Ans. 7, 12.
Appellant merely asserts that Wanielista fails to suggest a
combination of a granular media including mixtures of zeolites, expanded
clay, and expanded shale in a single tank anammox conversion process.
Appeal Br. 10, 14.
This assertion is not persuasive of reversible error because Appellant
fails to address the basis of the rejection, which relies on Wanielista’s
teaching of a material suitable for a granular media, whereas Takeda and
Nanri are relied on for teaching a single tank anammox conversion process.
Accordingly, we sustain the Examiner’s obviousness rejection of
claims 9 and 148 over the combination of Takeda, Nanri, and Wanielista.
CONCLUSION
Upon consideration of the record and for the reasons set forth above
and in the Examiner’s Answer, the Examiner’s decision to reject claims 1,
4–10, and 13–20 under 35 U.S.C. § 103 is affirmed.
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DECISION SUMMARY
In summary:
Claim(s)
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1, 10, 19, 20 103 Takeda, Nanri 1, 10, 19, 20
4, 13 103 Takeda, Nanri,
KR235
4, 13
5, 14 103 Takeda, Nanri,
Martinez
5, 14
6, 15 103 Takeda, Nanri,
Smith
6, 15
7, 16 103 Takeda, Nanri,
Takeishi
7, 16
8, 17 103 Takeda, Nanri,
Guiot
8, 17
9, 18 103 Takeda, Nanri,
Wanielista
9, 18
Overall
Outcome
1, 4–10, 13–
20

TIME PERIOD FOR RESPONSE
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)(1)(iv).
AFFIRMED