Ex Parte Cameron et al

Patent Trial and Appeal Board

Aug 16, 2017

13510108 (P.T.A.B. Aug. 16, 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.
13/510,108 08/20/2012 Andrew Cameron P09C159 2211
20411 7590 08/16/2017
The Linde Group
200 Somerset Corporate Blvd.
Suite 7000
Bridgewater, NJ 08807
EXAMINER
LIN, KO-WEI
ART UNIT PAPER NUMBER
3749
MAIL DATE DELIVERY MODE
08/16/2017 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 ANDREW CAMERON, TOMAS EKMAN,
and MATS GARTZ
____________________

Appeal 2015-007941
Application 13/510,108
Technology Center 3700
____________________

Before: JOHN C. KERINS, LEE L. STEPINA, and SEAN P. O’HANLON,
Administrative Patent Judges.

STEPINA, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from a rejection of claims
1–15. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.

Appeal 2015-007941
Application 13/510,108
2
CLAIMED SUBJECT MATTER
The claims are directed to a method for heating a blast furnace stove
for use with a blast furnace. Spec. ¶ 1. Claim 1, reproduced below, is
illustrative of the claimed subject matter:
1. A method for heating a blast furnace stove including a
combustion chamber having a combustion zone therein,
comprising:

combusting a fuel with a lower heating value (LHV) of not more
than 9 MJ/Nm3 in the combustion zone of the blast furnace stove,

causing combustion gases to flow through and be exhausted from
refractory material in the stove for heating said refractory
material,

supplying and adding an oxidant comprising an oxygen content
of at least 85% into the combustion chamber for recirculating the
combustion gases including said oxidant into the combustion
zone,

diluting a mixture of the fuel and the oxidant with the
recirculated combustion gases, and

flamelessly combusting said mixture in the combustion zone.
Appeal Br. 21 (Claims App.).
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Edwardsen
Joshi
Streicher
US 4,444,555
US 6,398,547 B1
US 6,813,902 B2
Apr. 24, 1984
June 4, 2002
Nov. 9, 2004
Adendorff US 2009/0120338 A1 May 14, 2009
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Application 13/510,108
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Ambrogio Milani and Joachim Wünning, “What is Flameless Combustion?”
IFRF Online Combustion Handbook, COMBUSTION FILE 171, Apr. 15,
2002, herein “Milani”
REJECTIONS
(I) Claims 1 and 8–15 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Edwardsen, Adendorff, and Milani.
(II) Claim 2 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Edwardsen, Adendorff, Milani, and Joshi.
(III) Claims 3–7 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Edwardsen, Adendorff, Milani, Joshi, and Streicher.

OPINION
Rejection (I)
Appellants make arguments for claims 1 and 8–15 as a group. Appeal
Br. 9, 18. We select claim 1 as representative, and claims 8–15 stand or fall
with claim 1. See 37 C.F.R. § 41.37(c)(1)(iv).
Appellants argue that Adendorff is used with aluminum furnaces, not
blast furnace stoves, and, therefore, “Adendorff does not disclose ‘heating a
blast furnace stove’ as called for in claim 1.” Appeal Br. 11; see also Reply
Br. 10.
This argument is unavailing because, as the Examiner points out (Ans.
8; see also Non-Final Act. 2–3), the rejection of claim 1 relies on Edwardsen
for the blast furnace stove. Thus, Appellants’ argument on this point does
not address the combination of references set forth in the rejection of claim
1.
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Appellants next assert that, “[c]ontrary to the Examiner’s position,
Adendorff does not teach to dilute the fuel-oxidant mixture for providing
‘flameless combustion’ ([0053], generating a long, soft and visible burner
flame).” Appeal Br. 11 (italicized emphasis added). Based on this and the
disclosure in paragraphs 33 and 35 of Adendorff, Appellants contend, “the
Examiner has erred by mischaracterizing the disclosure in Adendorff.” Id.
We agree with the Examiner’s response that the rejection of claim 1
relies on Milani, not Adendorff, to teach “flameless combustion.” Ans. 8;
see also Non-Final Act. 3. We also agree with the Examiner’s statement that
claim 1 “does not state the limitation ‘combusting the fuel with an oxidant
comprising at least 85% oxygen for recirculating the combustion gases into
the combustion zone and diluting a mixture of the fuel and the oxidant
therein sufficiently for providing flameless combustion’.” Ans. 8. Rather,
as the Examiner correctly points out, claim 1 requires “diluting a mixture of
the fuel and the oxidant with the recirculated combustion gases, and
flamelessly combusting said mixture in the combustion zone.” Id. (quoting
claim 1). Thus, the fact that Adendorff does not disclose flameless
combustion or diluting the combustible mixture to allow for such
combustion presents no problem in terms of the Examiner’s proposed
combination of references in the rejection of claim 1. Nor does Appellants’
reply reiterating the same argument from the Appeal Brief on this point
apprise us of Examiner error. See Reply Br. 11.
Appellants next argue,
if one of ordinary skill in the art were to modify Edwardsen by
incorporating Adendorff's combustion gas recirculation, . . . such
person would also withdraw the combustion gases from the
combustion zone of the stove, i.e. from Edwardsen passageway
2 in FIG. 2, and recirculate to the fuel gas inlet port 12 or to the
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combustion air inlet port 13. However, such a method would be
counter to and teach opposite of the purpose of a stove [as
disclosed by Edwardsen].
Appeal Br. 12.
We do not agree with Appellants’ argument on this point because the
rejection of claim 1 relies on Edwardsen to teach “causing combustion gases
to flow through and be exhausted from heat refractory material . . . in the
stove for heating said refractory material.” Non-Final Act. 2 (citing
Edwardsen, 4:62–68). Appellants do not present any persuasive evidence or
technical argument supporting a conclusion that any modification of
Edwardsen, based on Adendorff, to include recirculation as proposed by the
Examiner, would need to be performed in such a way as to withdraw
combustion gas from the combustion zone without passing it through
Edwardsen’s refractory material. In this regard, Appellants do not explain
why the Examiner’s rationale for modifying Edwardsen to incorporate
Adendorff’s combustion gas recirculation and oxygen feed, “in order to
reduce NOx byproduct,” is incompatible with the arrangement already
provided by Edwardsen, specifically, the arrangement in Edwardsen in
which combustion gas passes through the refractory material.
Appellants next refer to the stand-by (“bottled”) phase in Edwardsen
and argue that “it would be counterproductive to introduce oxygen into the
Edwardsen stove, and to do so would be teaching directly opposite to that
which is disclosed in Edwardsen.” Appeal Br. 12–13; see also Edwardsen,
3:53–68, 6:43–54. The Examiner responds that the proposed modification to
Edwardsen to include recirculation is not made to the phase of operation in
Edwardsen that is sensitive to the presence of oxygen (the bottled phase),
rather, the modification is to the heating process of Edwardsen. Ans. 9.
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Appellants do not explain persuasively how the intent in Edwardsen to
avoid oxygen, in the bottled phase, would apply to a heating phase. Indeed,
in the heating phase, Edwardsen intends for combustion to occur within
stoves A, B, and C, respectively, which requires the presence of oxygen.
See Edwardsen, 6:21–42. Accordingly, Appellants’ argument on this point
does not address the Examiner’s rejection of claim 1.
Appellants also argue that Edwardsen intends to reduce the aggressive
acidic substances in the furnace atmosphere which cause stress corrosion
cracking. Appeal Br. 14. Appellants contend that, in light of this intention
in Edwardsen, if the teachings of Edwardsen and Adendorff were combined,
a person of ordinary skill in the art would have used the arrangements
depicted in Figures 2 or 3 of Adendorff rather than the arrangement depicted
in Figure 1, as proposed by the Examiner. Appeal Br. 14.
This argument is unavailing because the rejection of claim 1 refers to
Figure 1 of Adendorff (Non-Final Act. 3), and Appellants’ assertions, at
best, point to other arrangements taught by Adendorff as providing even
more of an advantage to Edwardsen than the arrangement taught in Figure 1
of Adendorff. Thus, Appellants’ contention on this point does not apprise us
of Examiner error.
Appellants next contend that Adendorff derives certain advantages
from the heating of soot particles, and the presence of soot particles in the
system taught by Edwardsen would be detrimental. Appeal Br. 14–15
(citing Adendorff ¶¶ 13, 29).
We agree with the Examiner that the burner system of Edwardsen
would not need to be changed in a way that would cause detrimental soot
production. See Ans. 10. Other than to point out that Adendorff benefits, in
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certain circumstances, from the presence of soot, Appellants do not explain
why the Examiner’s proposed combination would cause increased soot
production in Edwardsen. The modification to Edwardsen proposed by the
Examiner incorporates adding an oxidant and recirculating combustion gases
as disclosed by Adendorff, not also increasing soot production. In other
words, Appellants’ arguments merely rely on the bodily incorporation of the
structure in Adendorff and do not address the specific combination of
references set forth in the rejection of claim 1.
Appellants also argue that “[o]ne simply does not take one design
feature or implement a process step from one furnace and automatically
incorporate it into a different type of furnace or stove,” and Appellants assert
that, “[i]f one of ordinary skill in the art wanted to improve the operation of
a blast furnace stove, one has to make sure that convection is the dominant
heat transfer mechanism. Therefore, one would not have considered
Adendorff, which only discloses how to improve radiative heat transfer.”
Appeal Br. 15–16.
In response to this argument, the Examiner notes that the rejection of
claim 1 does not rely upon the bodily incorporation of the structure of
Adendorff with that of Edwardsen. Ans. 10. We agree. Appellants’
argument on this point does not address the Examiner’s rationale for
combining the relied upon teachings of Adendorff with the structure of
Edwardsen, namely, for the benefit of reducing NOx byproduct. To the
extent Appellants’ argument on this point is meant to imply that Edwardsen
and Adendorff are from such different technologies that a person of ordinary
skill in the art would never combine their teachings, we disagree. In this
regard, Adendorff is directed to “a process and an apparatus for low-NOx
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combustion using fuel and oxidizing agent and/or furnace off-gases and/or
carbon dioxide and/or steam” (Adendorff ¶ 1) and Edwardsen discloses
various aspects of a blast furnace stove (see Edwardsen, 4:30–37). Further,
both references are in the field of Appellants’ endeavor.
Appellants also assert that NOx reduction is not addressed by the
present claims nor the justification for the claimed invention. Reply Br. 9.
In this regard, Appellants state, “for [the] purposes of Appellant’s claims, it
is irrelevant whether ‘modifying Edwardsen with Adendorff and Milani
would help reduc[e] NOx product in the combustion process’, as proposed
by the Examiner.” Id. (quoting Ans. 8); see also id. at 10 (stating, “[i]t
therefore respectfully is submitted that nowhere in the application as
originally filed is there express disclosure about, concern for, or the
importance of, reducing NOx formation for the presently claimed invention.
NOx reduction may occur, but it is not the premise for the claimed subject
matter.”).
This argument does not apprise us of Examiner error because it
incorrectly assumes that the Examiner’s reasoning for the proposed
modification must be based on solving the same problem solved by
Appellants’ invention. It is not necessary for the Examiner’s proposed
combination to be based on achieving the same goal as the claimed
invention. Rather, what is required is “some articulated reasoning with some
rational underpinning to support the legal conclusion of obviousness.” KSR
Int’l. Co. v. Teleflex, Inc., 550 U.S. 398, 418 (2007) (quoting In re Kahn,
441 F.3d 977, 988 (Fed. Cir. 2006). Appellants do not argue persuasively
that the reasoning articulated by the Examiner is inadequate.
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Appellants also assert, that “Edwardsen also does not disclose the use
of recycled flue gas to concentrate CO2. Therefore . . . this further
disqualifies Edwardsen to be relevant for use as a reference against claims 1
and 8–15.” Reply Br. 10. We disagree with Appellants’ assertion because,
as discussed above, Edwardsen is in the same field as Appellants’ invention.
We have considered all of Appellants’ arguments for the patentability
of claim 1, but find them unavailing. Thus, we sustain the Examiner’s
rejection of claims 1 and 8–15 as unpatentable over Edwardsen, Adendorff,
and Milani.
Rejection (II)
Claim 2 recites, in part, “the recirculating the combustion gases is
from a location inside the combustion chamber, but outside an area of
the combustion chamber occupied by the combustion zone.” Appeal Br. 21
(Claims App.) (emphasis added). The Examiner finds that Adendorff
discloses this feature and provides an explanation of this finding via an
annotated copy of Figure 1 of Adendorff (Ans. 11–12), which we reproduce
below.

Appeal 2015-007941
Application 13/510,108
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Figure 1 of Adendorff “diagrammatically depicts a furnace installation
with combustion apparatus” (Adendorff ¶ 43; see also id. ¶ 46), and the
Examiner’s annotations identify an area inside of a port located slightly
above the end of reference line number 3 (which refers to a pipeline) as “[a]
location inside the combustion chamber not occupied by combustion zone”
and an area identified by reference number 17 as the area occupied by the
combustion zone (Ans. 12).
Appellants argue “there is no disclosure in modified Edwardsen or
that of Joshi of ‘recirculating the combustion gases from a location inside
the combustion chamber, but outside an area of the combustion chamber
occupied by the combustion zone’ as called for in claim 2.” Appeal Br. 18–
19. Discussing the Examiner’s annotated copy of Figure 1 of Adendorff,
Appellants contend that the space identified by the Examiner is within the
wall of the refractory lining of the combustion chamber rather than inside
the combustion chamber itself. Reply Br. 11–12.
We agree with Appellants on this point. Appellants’ Specification
describes the “combustion chamber” with reference numbers 101
(paragraphs 26–28) and 301 (paragraphs 40, 43, 48), each of which refers to
an open area bounded by walls. Appellants’ Specification does not
characterize the interior of the wall of the chamber as being inside the
chamber. Thus, the Examiner’s interpretation of “a location inside the
combustion chamber” is inconsistent with Appellants’ Specification. The
Examiner’s overly broad construction of claim 1 led to the unsupported
finding that Adendorff discloses recirculating the combustion gases from a
location inside the combustion chamber, but outside an area of the
combustion chamber occupied by the combustion zone. Accordingly, we do
Appeal 2015-007941
Application 13/510,108
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not sustain the Examiner’s rejection of claim 2 as unpatentable over
Edwardsen, Adendorff, Milani, and Joshi.1
Rejection (III)
Appellants rely on the arguments discussed above regarding claim 1
in support of the patentability of claims 3–7. Appeal Br. 19. As discussed
above, we find these arguments to be unpersuasive. Appellants additionally
contend that the Examiner cited too many references in Rejection (III).
Reply Br. 13. This argument is unpersuasive inasmuch as it does not
address the Examiner’s findings of fact and application of legal principles.
Appellants cite no authority, from case law or statute, in support of the
contention that the Examiner cited too many references in Rejection (III) or
even that an upper limit on the number of references used in a rejection
exists. Indeed, our reviewing court takes the contrary view. See In re
Gorman, 933 F.2d 982, 986 (Fed. Cir. 1991) (stating, “[t]he criterion . . . is
not the number of references, but what they would have meant to a person of
ordinary skill in the field of the invention.”). Accordingly, we sustain the
Examiner’s rejection of claim 7. However, as claims 3–6 each depend,
directly or indirectly, from claim 2, and the Examiner does not rely on
Streicher in any way that remedies the deficiency in Rejection (II) discussed
above, we do not sustain the Examiner’s rejection of claims 3–6 as
unpatentable over Edwardsen, Adendorff, Milani, Joshi, and Streicher.

1 In related Appeal No. 2015-006932 (Serial No. 13/031,941), the scope of
claim 2 is similar to the scope of claim 2 in the present case. However, the
argument upon which we base the reversal of claim 2 here was not presented
in Appeal No. 2015-006932.
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DECISION
The Examiner’s decision to reject claims 1–15 is affirmed as to claims
1 and 7–15 and reversed as to claims 2–6.
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-IN-PART