Ex Parte Augenstein

Patent Trial and Appeal BoardMar 19, 2014

11975234 (P.T.A.B. Mar. 19, 2014)

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. 11/975,234 10/18/2007 Don C. Augenstein 0124-001-CON 1168 66981 7590 03/20/2014 HUGH MCTAVISH MCTAVISH PATENT FIRM 7460 Pinehurst Road Pine Springs, MN 55115 EXAMINER BEISNER, WILLIAM H ART UNIT PAPER NUMBER 1775 MAIL DATE DELIVERY MODE 03/20/2014 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 Don C. Augenstein1 ________________ Appeal 2012-010024 Application 11/975,234 Technology Center 1700 ________________ Before BRADLEY R. GARRIS, ADRIENE LEPIANE HANLON, and MARK NAGUMO, Administrative Patent Judges. NAGUMO, Administrative Patent Judge. DECISION ON APPEAL Don C. Augenstein (“Augenstein”) timely appeals under 35 U.S.C. § 134(a) from the Final Rejection2 of claims 1-21, which are all of the pending claims. We have jurisdiction. 35 U.S.C. § 6. We affirm-in-part. 1 The real party in interest is listed as the Institute for Environmental Management. (Brief, filed 17 November 2011 (“Br.”), 4.) 2 Office action mailed 2 August 2011 (“Final Rejection”; cited as “FR”). Appeal 2012-010024 Application 11/975,234 2 OPINION A. Introduction3 The subject matter on appeal relates to the conversion to nitrogen gas of nitrogen oxides in the waste gas stream of combusted landfill gases. The 234 Specification explains that solid waste landfills generate combustible gas (Spec. 2 [05]), which, when combusted in internal combustion engines, e.g., to generate electric power, produces nitrogen oxides (N2O, NO, NO2) in large quantities (id. at 1 [03]). These gases are subject to pollution controls, and as a result, according to testimony of record,4 the generation of power from landfill gas has not been permitted in some states due to the absence of an effective way to remove them from the combustion product gases. The claimed invention is said to solve this problem by passing the exhaust gases through a large biofilter—a landfill or waste dump (id. at 6 [25])—under conditions that ensure that microorganisms in the biofilter reduce the nitrogen oxides to molecular nitrogen, N2, “or other innocuously bound nitrogen as might be fixed in protein or other compounds.” (Id. at 6 [26].) The specification teaches that a “landfill or waste dump has the advantage of enormous size relative to any equipment that must ordinarily 3 Application 11/975,234, Landfill biofiltration system and methods for removal of gas-phase pollutants and contaminants, filed 18 October 2007, as a continuation of 10/138,617, filed 3 May 2002, now abandoned. The specification is referred to as the “234 Specification,” and is cited as “Spec.” 4 Declaration of Susan Thornloe and Declaration of Gary R. Hater, filed during prosecution and presented in the Evidence Appendix to the Brief. Appeal 2012-010024 Application 11/975,234 3 be constructed.” (Id. at 5 [20].) The size is said to provide a large surface area for the biological remediation action, and very long residence times compared to those available for other bioremediation equipment. (Id.) In particular, the specification teaches that landfills can provide a biofilter mass of 1000 tons or more.5 (Id. at 6 [25].) Claim 1 is representative and reads: A method for removing biodegradable gaseous pollutants from contaminated gases, the method comprising: permeating said contaminated gases into a 1000 ton or more tonnage landfill waste mass, wherein said gaseous pollutants comprise nitrogen oxides, including one or more of nitrous oxide (N2O), nitric oxide (NO) and nitrogen dioxide (NO2); and maintaining said waste mass such that microorganisms present in said waste mass biodegrade said gaseous pollutants to substantially reduce said nitrogen oxides to N2; 5 We offer the following examples to orient the reader to the approximate minimum size of the landfill biofilter required by the claims. Waste mass in a landfill is said to be compacted to a typical density of 1300 lbs per cubic yard, while waste mass for an aerobic landfill bioreactors is compacted to a lower density to permit satisfactory air and water flow through the mass. (Hudgins, col. 3, ll. 63-67; full citation infra at 4 n.11.) A mass of 1000 tons having a density of 1300 lb/yd3 has a volume of about 1500 yd3 (1000 × 2000/1300 ≈ 1500). Placed on an [American] National Basketball Association or National Collegiate Athletic Association basketball court, (94 ft × 50 ft, or about 31 yd × 17 yd), 1000 tons of landfill would cover the court to a depth of about 2.8 yd (8.5 ft), a foot and a half below the rims of the goals (31 × 17 × 2.8 = 1500, to two significant figures). Or it would fill an Olympic-sized pool (50 m × 25 m ≈ 55 yd × 27 yd) to a depth of about 1 yd. These volumes are underestimates because a less dense landfill mass would fill a larger volume. Appeal 2012-010024 Application 11/975,234 4 wherein the contaminated gases are exhaust gases from combustion of landfill gas. (Claims App., Br. 19; some indentation and paragraphing added.) The Examiner maintains the following grounds of rejection:6 A. Claims 1, 2, 8, 12-14, 16, 17, 20, and 21 stand rejected under 35 U.S.C. § 103(a) in view of the combined teachings of Hansson,7 Novy,8 Apel,9 Kneer,10 Hudgins,11 and Northrup.12 A1. Claims 3 and 15 stand rejected under 35 U.S.C. § 103(a) in view of the combined teachings of Hansson, Novy, Apel, Kneer, Hudgins, Northrup, and Pomeroy.13 A2. Claim 4 stands rejected under 35 U.S.C. § 103(a) in view of the combined teachings of Hansson, Novy, Apel, Kneer, Hudgins, Northrup, and Breckenridge.14 A3. Claims 5, 18, and 19 stand rejected under 35 U.S.C. § 103(a) in view of the combined teachings of Hansson, Novy, Apel, Kneer, Hudgins, Northrup, and Hater.15 6 Examiner’s Answer mailed 28 March 2011 (“Ans.”). 7 Hans-Erik Hansson, An arrangement and a method of utilizing landfill gases, WO 98/07974 (1998). 8 Vladimir A. Novy, Emission control system, U.S. Patent 4,825,843 (1989). 9 William A. Apel, Biofilter for removal of nitrogen oxides from contaminated gases under aerobic conditions, U.S. Patent 5,795,751 (1998). 10 Franz X. Kneer, U.S. Patent 5,066,392 (1991). 11 Mark P. Hudgins et al., Aerobic landfill bioreactor, U.S. Patent 6,024,513 (2000). 12 Paul S. Northrup, U.S. Patent 5,463,165 (1995). 13 Richard D. Pomeroy, U.S. Patent 2,793,096 (1957). 14 Leon Breckenridge, U.S. Patent 6,117,672 (2000). 15 Gary R. Hater et al., U.S. Patent 6,283,676 B1 (2001). Appeal 2012-010024 Application 11/975,234 5 A4. Claims 6 and 7 stand rejected under 35 U.S.C. § 103(a) in view of the combined teachings of Hansson, Novy, Apel, Kneer, Hudgins, Northrup, and Poulsen.16 A5. Claims 9-11 stand rejected under 35 U.S.C. § 103(a) in view of the combined teachings of Hansson, Novy, Apel, Kneer, Hudgins, Northrup, and Bonnin.17 B. Discussion Findings of fact throughout this Opinion are supported by a preponderance of the evidence of record. Initially, we find that Augenstein primarily presents substantive arguments for the separate patentability of independent claims 1 and 17. Rejection A5 of claims 9 and 10 is separately argued. Claims subject to Rejections A1, A2, and A4, and A5 (as applied to claim 11), are stated expressly to stand or fall with claim 1. (Br. 14-16.) The “separate argument” against Rejection A3 of claims 5, 18, and 19 amounts to little more than a recitation of the claims and a denial that the additional reference, Hater, remedies the deficiencies of the other references. Neither of these arguments rises to a substantive separate argument. Claims 2-8, 11-16, and 18-21 stand or fall with the respective independent claims. 37 C.F.R. § 41.37(c)(1)(vii) (2011). Briefly, the Examiner finds that Hansson teaches that landfill gas (“LFG”) may be burned in an internal combustion engine, and that Novy 16 Poulsen et al., WO 94/09885 (1994). 17 Christophe Bonnin et al., Method for purifying and biodeodorizing gas effluents, U.S. Patent 5,858,768 (1999). Appeal 2012-010024 Application 11/975,234 6 teaches that the exhaust gases include nitrogen oxides. (FR 2, last two paras., to 3, 1st para.) The Examiner finds further that Apel teaches the removal of nitrogen oxides from gas streams by passing the gases through a waste mass in which microorganisms degrade the nitrogen oxides to molecular nitrogen.18 (Id. at 3, 2d para.) The Examiner holds that it would have been obvious to pass exhaust gases from the combustion of LFG for power generation through a waste mass to biologically degrade the nitrogen oxides, but finds that these references do not teach or suggest the 1000 ton landfill waste mass required by the claims. (Id. at 3, last two paras.) The Examiner finds that Hudgins teaches a method of degrading landfill waste by aerobic biodegradation, in which air is injected through pipes and the landfill acts as a large bioreactor.19 (FR 4, 1st para.) The Examiner concludes that it would have been obvious to inject the exhaust gases into the landfill bioreactor taught by Hudgins “for the known and expected result of employing a bioreactor for treating biodegradable waste as a biofiltration device as is suggested by the secondary references of record.” (FR 4, 3d para.) Augenstein urges that Apel (and Kneer), the only references teaching degradation of gaseous pollutants, teach or suggest that there would be problems with scaling the process to a landfill-sized mass. In particular, Augenstein points out that Apel teaches that a smaller biofilter (3 × 12 inches) worked better than a larger biofilter (3 × 36 inches), and that 18 Kneer is at best cumulative with Apel. 19 Northrop is at best cumulative with Hudgins. Appeal 2012-010024 Application 11/975,234 7 Kneer discloses that engineering problems become much more serious as the volume of organic waste mass increases. Both references, Augenstein urges, teach against the use of a landfill-size biofilter (Br., para. bridging 9-10), and do not provide a reasonable expectation of success (id. at 10, 1st full para.) Moreover, in Augenstein’s view, Apel’s teachings are limited to organic composts such as wood and grass trimmings (reported to be “functional”), whereas a landfill may contain little or no compost. (Id. at 3d para.) Augenstein urges further that Apel’s teachings of heating the compost pile and adding glucose to increase the efficiency, as well as adding buffer, would not likely be feasible or economical treatments for a landfill. (Id.) Augenstein’s arguments are not persuasive of harmful error in the rejections. Some difficulty on scale-up is generally expected: the critical issue is whether those difficulties would have been beyond the level of ordinary skill in the art. Augenstein does not direct our attention to credible evidence that overcoming the highlighted difficulties would have required undue experimentation or some breakthrough beyond the ingenuity of the ordinary designers of landfills or bioremediation methods. In this regard, we find that the 234 Specification does not indicate that any procedures are required to inoculate the landfill with specialized microorganisms, or that special conditions, apart from the introduction of nitrogen oxides, are required to enable the nitrogen oxide eating “bugs” to flourish. Rather, as in Apel (and Kneer), the approach seems to be, feed them and provide a moist environment that is neither too hot nor too cold, and the appropriate bugs will thrive. In this regard, Augenstein has not come forward with evidence, nor has Augenstein explained why Apel’s preference for wood or plant Appeal 2012-010024 Application 11/975,234 8 materials as a substrate for the bioreactor would have dissuaded the routineer from using a landfill bioreactor such as the one described by Hudgins. Hudgins teaches that even pre-existing landfill masses can be aerated. Augenstein has not directed our attention to evidence of record that changing the gas to one containing nitrogen oxides would change the permeation of the gas through the landfill mass. Apel’s unexplained observation that shorter biofilters were more efficient than longer biofilters does little if anything to indicate that biodegradation of the nitrogen oxides on a larger scale would have been expected to fail. Kneer appears to be primarily concerned with scaling up processes that occur in vessels that are moved about, emptied, and refilled. (Kneer, col. 4, ll. 1-21.) Augenstein has not explained how these concerns relate to the teachings of Hudgins and Apel. Independent claim 17 requires that the oxygen consumption in the landfill be monitored, and that water (“an aqueous amendment”) be added at a dosage of 50 to 120 ml “per gram atomic weight[20] of oxygen consumed in the landfill.” Claims 12 and 13, which depend from claim 1, add similar limitations. Augenstein argues that none of the references teaches or suggests that “the amount of water that should be provided is linked to the amount of oxygen consumed in biodegradation reactions in the landfill” because water evaporates due to the heat released by the reactions, and must be replaced. (Br. 11, ll. 5-9.) Augenstein acknowledges that Hudgins teaches maintaining optimal temperature and moisture, as well as controlling the addition of air and leachate, and monitoring off-gas concentrations. 20 I.e., per mole. Appeal 2012-010024 Application 11/975,234 9 (Id. at ll. 10-14.) Augenstein, however, argues that “[m]easuring off-gas concentration is not the same thing as measuring oxygen consumption. Thus, Hudgins does not disclose measuring oxygen consumption at all.” (Id. at ll. 15-16.) Augenstein concludes that the Examiner failed to establish a prima facie case of obviousness. (Id. at ll. 17-19.) We do not find these arguments persuasive of harmful error. Hudgins, which is cited in the 234 Specification as an example of a landfill bioreactor (Spec. 4 [13], last sentence), teaches that oxygen (air injection) and water (leachate recirculation) must be balanced “to achieve optimum moisture content and temperatures.” (Hudgins, col. 5, ll. 22-25.) In Hudgins’s words, “[i]f temperatures of the waste mass begin to increase, leachate application should be increased. If temperatures decrease, oxygen levels should be increased by increasing air flow. Additionally, if oxygen levels begin to decline, air flow should be increased to maintain the rate of oxygen consumption.” (Id. at ll. 26-32; emphasis added.) Moreover, Hudgins advises, “[i]ncrease[d] air flow can cause the cooling of the waste mass and require the proper balance be determined in the field.” (Id. at ll. 32-34.) In light of Hudgins’s teachings coupled with Apel’s teachings that the level of moisture is important for the operation of the biofilter21 (Apel, col. 5, ll. 46-48; acknowledged by Augenstein (Br. 8, 3d para., discussing Apel)), we do not find credible Augenstein’s arguments 21 Indeed, Apel teaches expressly that “adequate hydration of the filter medium is important for removing high levels of NOx from polluted gas streams, probably because the denitrifying bacteria need water for growth and metabolism.” (Apel, col. 6, ll. 64-67.) We doubt that this would have been news to the person having ordinary skill in the art. Appeal 2012-010024 Application 11/975,234 10 that persons having ordinary skill in the art would not have understood the connection between the provision of oxygen, nitrogen oxides, water, and nutrients to the nitrogen-oxide consuming microorganism and the products of their metabolism, namely nitrogen, water, and heat. As noted supra, Hudgins teaches that the rate of oxygen consumption is an important parameter that must be maintained. Hudgins teaches further that “[w]aste mass moisture content, temperature and off-gas concentrations (volatile organic compounds, carbon dioxide, oxygen, and methane) are measured using vapor points and temperature probes that are installed directly into the waste.” (Hudgins, col. 6, ll. 21-26; emphasis added.) Although Augenstein is correct that measuring oxygen in off-gas is not the same thing as measuring oxygen consumption, given Hudgins’s express concern with maintaining oxygen consumption, we are not persuaded that measuring the oxygen consumption would have been non-obvious to the routineer. Augenstein argues that objective indicia of nonobviousness, in particular, long-felt need, are supported by the declarations filed by Ms. Susan Thornloe (Environmental Protection Agency), and Gary Hater (Waste Management, Inc.). The Examiner declined to give this evidence significant weight. (FR 12-13; Ans. 15-16.) We are not persuaded of harmful error in this conclusion. Secondary considerations involve fact-issues that are to be weighed against evidence supporting obviousness. They relate to evidence that “might be utilized to give light to the circumstances surrounding the origin of the subject matter sought to be patented. As indicia of obviousness Appeal 2012-010024 Application 11/975,234 11 or nonobviousness, these inquiries may have relevancy.” Graham v. John Deere Co. of Kansas City, 383 U.S. 1, 17-18 (1966). The 234 Specification provides no working examples of the invention. There is no data—no probative evidence—relevant to how well the claimed process works in practice. The declarations are similarly devoid of operational data. The declarants do not say they have witnessed tests or reviewed reports of tests of the claimed invention. On these facts, we find no merit in Augenstein’s argument based on secondary considerations. We affirm the rejections of claims 1-8 and 11-21. Finally, Augenstein urges that the Examiner erred in rejecting claims 9 and 10. These claims depend from claim 1, and require measurements of gas contaminant concentrations “relative to known inert gas or inert gas tracer inputs.” (Claims App., Br. 20.) Augenstein urges that this feature is neither taught nor suggested by Bonnin or any of the other prior art applied against these claims. (Br. 17.) The Examiner holds that “[t]he manner in which the specific measurements are determined would have been merely an obvious matter [of] design choice based on considerations such as the specific contaminants to be detected and/or the size of the managed waste material system.” (FR 10, ll. 1-3.) The difficulty with this rejection is the absence of evidence regarding the existence in the prior art of the particular measurement recited in the claims, and of the further “controlled by means of relying on localization” Appeal 2012-010024 Application 11/975,234 12 recited in claim 9. To the extent the Examiner may have been relying implicitly on “Official Notice,” Augenstein’s objection to the absence of evidence placed the burden of coming forward with evidence on the Examiner. This evidentiary burden has not been carried. We reverse the rejection of claims 9 and 10. C. ORDER We affirm the rejection of claims 1-8 and 11-21. We reverse the rejection of claims 9 and 10. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). AFFIRMED-IN-PART cdc