Ex Parte Brooks et al

Patent Trial and Appeal Board

Jun 7, 2017

13533442 (P.T.A.B. Jun. 7, 2017)

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.
13/533,442 06/26/2012 Alexander Nelson BROOKS AVI1036-02US 1012
28327 7590 06/08/2017
Law Office of John A. Griecci
16350 Ventura Blvd.
Suite D, PMB 555
Encino, CA 91436
EXAMINER
COLLADO, CYNTHIA FRANCISCA
ART UNIT PAPER NUMBER
3781
MAIL DATE DELIVERY MODE
06/08/2017 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 ALEXANDER NELSON BROOKS,
BART DEAN HIBBS, and DAVID ROBERT THOMPSON
__________________

Appeal 2017-006319
Application 13/533,442
Technology Center 3700
____________________

Before EDWARD A. BROWN, JAMES P. CALVE, and
SEAN P. O’HANLON, Administrative Patent Judges.

CALVE, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from the Final Rejection of
claims 1–21.1 Appeal Br. 16. We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.

1 Appellants’ Request for Participation in the Patent Cooperation Treaty –
Patent Prosecution Highway Pilot Program in a U.S. Application Where the
USPTO Was the ISA or IPEA, and the Petition to Make Special was granted
on November 9, 2012. See Office of Petitions Decision (mailed Nov. 9,
2012); 37 C.F.R. § 1.102(a).
Appeal 2017-006319
Application 13/533,442

2
CLAIMED SUBJECT MATTER
Claims 1, 8, and 9 are independent. Claim 1 is reproduced below.
1. A storage tank configured to store a cryogenic liquid, the
storage tank being characterized by a gravitational bottom and a
gravitational top, comprising:
a lateral wall that defines and substantially surrounds a
fluid storage space, the lateral wall forming an inner shell
characterized by a direct-lateral-contact surface area that is
configured to be in direct lateral contact with the cryogenic
liquid, wherein the direct-lateral contact surface area of the inner
shell is laterally surrounded by an insulator characterized by a
thermal conductivity that is different near the gravitational top of
the direct-lateral-contact surface area than it is near the
gravitational bottom of the direct-lateral-contact surface area.

REJECTIONS
Claims 1–6, 8, and 16–20 are rejected under 35 U.S.C. § 102(b) as
anticipated by Johnson (US 3,882,809, iss. May 13, 1975).
Claims 7, 9–15, and 21 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Johnson and Bergsten (US 5,386,706, iss. Feb. 7, 1995).
ANALYSIS
Claims 1–6, 8, and 16–20 as anticipated by Johnson
The Examiner found that Johnson discloses a storage tank, as recited
in claims 1 and 8, with an inner shell that has a direct-lateral-contact surface
area surrounded by an insulator with a different thermal conductivity near
the gravitational top than near the gravitational bottom. Final Act. 2. The
Examiner found that Figure 9 shows a single layer of insulation on the lower
shell and a double layer of insulation on the upper shell, and found that the
thermal resistance increases as the insulation thickness increases. Id. at 2–3;
Ans. 2, 7. Figure 9 is reproduced below with the Examiner’s annotations.
Appeal 2017-006319
Application 13/533,442

3

Figure 9 of Johnson (on the left above) shows a tank for transporting
cryogenic liquids in a ship’s hull. Upper portion 70 is insulated by (1) glass
fiber blanket 76 (with spray shield 77 cover) and (2) granular free flowing
insulation 78 (with metal weather cover 79). Johnson, 8:14–24. The lower
portion of the tank is insulated by a single layer of insulation board 73 (with
spray shield 75 cover). Id. at 8:8–14.
Figure 9 of Johnson (on the right above) is annotated to illustrate the
Examiner’s findings that Johnson’s tank has thicker insulation on the top of
the tank, via the double insulation, than the insulation on the tank bottom.
Appellants argue that Johnson fails to disclose any information about
the thermal conductivity of insulation board 73 on the lower portion of the
tank or the thermal conductivity of glass fiber blanket 76 and granular free
flowing insulation 78 on the upper portion of the tank. Appeal Br. 7; Reply
Br. 3. Appellants argue that Johnson fails to disclose anything about the
comparative thermal conductivities of the upper and lower portions of the
storage tank, and the conductivities cannot be derived just because different
materials are used to insulate those portions. Appeal Br. 7; Reply Br. 3.
Appeal 2017-006319
Application 13/533,442

4
The Examiner’s finding that Johnson discloses insulation of different
thermal conductivity near the gravitational top of the direct-lateral-contact
surface area than near the gravitational bottom of that surface area is not
supported by a preponderance of evidence. Johnson does not disclose the
thickness or thermal resistance/conductivity of any of glass fiber blanket 76,
granular insulation 78, or insulation board 73 on the tank shown in Figure 9.
Johnson, 7:54–8:39. Nor has the Examiner identified any such disclosure in
Johnson regarding these materials. Final Act. 2–4; Ans. 7.
Even if Figure 9 could be relied on to show the relative thicknesses of
the upper and lower layers of insulation, Johnson discloses different types of
insulation at the top and bottom of the storage tank. Appeal Br. 7; Reply Br.
3. Lower portion 71 of the tank is surrounded by insulation board 73; upper
portion 70 of the tank is surrounded by resilient glass fiber blanket 76 and
granular free flowing insulation 78. Johnson, 8:8–24. The Examiner has not
established with evidence that the upper insulation layer necessarily has a
different thermal resistance/conductivity than the lower insulation layer just
because the upper insulation comprises two layers and the lower insulation
comprises a single layer. See In re Robertson, 169 F.3d 743, 745 (Fed. Cir.
1999) (inherency may not be established by probabilities or possibilities; the
mere fact that a certain thing may result from a given set of circumstances is
not sufficient). We note that Figure 8 of Johnson discloses a storage tank
with the same insulators (glass fiber blanket 61 and granular insulation 63)
over the upper and lower portions of the tank, and a second layer of
insulation 66 around the lower portion 65 of the tank. Johnson, 7:9–34. The
Examiner has not made any findings as to this embodiment, however.
Thus, we do not sustain the rejection of claims 1–6, 8, and 16–20.
Appeal 2017-006319
Application 13/533,442

5
Claims 7, 9–15, and 21 as unpatentable over Johnson and Bergsten
The Examiner relied on Johnson to teach a storage tank with different
thermal conductivities at the gravitational top and bottom. Final Act. 7. The
Examiner found that Bergsten teaches an aerogel insulation with different
densities near the gravitational top and bottom, as recited in claim 9. Id. at
8. The Examiner determined it would have been obvious to provide such
aerogel insulation in Johnson to reduce system weight and cost, and to keep
a low heat leak rate. Id. (citing Bergsten, 4:15–35); Ans. 8 (same).
We agree with Appellants that Bergsten does not teach a storage tank
with different densities of aerogel layers at the gravitational top and bottom,
as recited in independent claim 9. Appeal Br. 11, 14. Bergsten disposes the
same two different density layers 20, 22 around the entire storage container
10 to include the gravitational top and the gravitational bottom of container
10. Bergsten, 4:4–35, Figs. 1–3. Bergsten forms an inner lower density
aerogel layer 20 with larger pores and lower thermal conductivity next to the
colder tank wall (first lamina 12) and cryogenic fluid 1. Bergsten places an
outer higher density aerogel layer 22 around inner layer 20 and next to outer
wall (second lamina 16) where the temperatures are warmer. Id. at 4:14–35,
Figs. 1–3. Thus, we do not sustain the rejection of claim 9 or its dependent
claims 10–15. Nor do we sustain the rejection of claim 7, which depends
from claim 1 and recites different aerogel densities, or claim 21, which
depends from claim 8 and recites different aerogel densities.
DECISION
We reverse the rejections of claims 1–21.

REVERSED