Ex Parte Coustry et al

Patent Trial and Appeal BoardApr 11, 2016

13147722 (P.T.A.B. Apr. 11, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/147,722 09/12/2011 73673 7590 04/13/2016 Solvay America, Inc, c/o Intellectual Assets Management 3737 Buffalo Speedway Ste. 800 Houston, TX 77098-3701 FIRST NAMED INVENTOR Francis Coustry 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 ATTORNEY DOCKET NO. CONFIRMATION NO. s 2009/03 5606 EXAMINER NASSIRI MOTLAGH, ANITA ART UNIT PAPER NUMBER 1734 NOTIFICATION DATE DELIVERY MODE 04/13/2016 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): sandra. andress@solvay.com iamnafta@solvay.com s taci.harris@sol vay. com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte FRANCIS COUSTRY, PERRINE DA VOINE, CLAUDE CRIADO, and THOI-DAI CHAU Appeal2014-009740 Application 13/147,722 Technology Center 1700 Before LINDA M. GAUDETTE, JACQUELINE WRIGHT BONILLA, and JENNIFER R. GUPTA, Administrative Patent Judges. GUPTA, Administrative Patent Judge. DECISION ON APPEAL Appeal2014-009740 Application 13/147,722 Appellants appeal, 1 under 35 U.S.C. Â§ 134, from the Examiner's decision2 finally rejecting claims 1-14 and 16-22. We have jurisdiction under 35 U.S.C. Â§ 6(b). We affirm-in-part. The claims are directed to a process for producing gas from trona ore. Claim 1, reproduced below, is illustrative of the claims on appeal. 1. A process for producing a gas from trona ore, said process comprising the steps of: a) crushing the trona ore; b) introducing crushed trona in a calcining device; c) calcining the crushed trona in the calcining device; d) collecting the calcined trona from the calcining device; and e) collecting the gas generated by the trona ore calcination from the calcining device in order to constitute the produced gas, wherein said produced gas has a carbon dioxide concentration of more than 25 volume percents expressed on dry gas, and a quantity of volatile organic compounds of less than 700 mg per kilogram of generated carbon dioxide; wherein said calcining device compnses a rotary drum with indirect heating. 1 Appellants identify the real party in interest as Solvay, S.A. Appeal Brief filed April 8, 2014 ("App. Br."), 5. 2 Final Office Action mailed July 8, 2013 ("Final"). 2 Appeal2014-009740 Application 13/147,722 Appellants request review of the following rejections: 1. Claims 1, 4, 5, 6, 9, 12, 14, 16-18, 21, and 22 under 35 U.S.C. Â§ 103(a) as being unpatentable over Denham Jr. et al. ("Denham") (US 6,479,025 B2, issued November 12, 2002); 3 2. Claim 11under35 U.S.C. Â§ 103(a) as being unpatentable over Denham in view of Braman et al. ("Braman") (US 2003/0049192 Al, published March 13, 2003); 3. Claim 13 under 35 U.S.C. Â§ 103(a) as being unpatentable over Denham in view of Lazaro et al., Analysis of co generation in the present energy framework, 87 Fuel Processing Technology 163, 163-168 (2006) ("Lazaro"); 4. Claims 2 and 3 under 35 U.S.C. Â§ 103(a) as being unpatentable over Denham in view of Pruszko et al. ("Pruszko") (US 6,173,840 Bl, issued January 16, 2001); 5. Claims 7, 8, and 19 under 35 U.S.C. Â§ 103(a) as being unpatentable over Denham in view of Liborius (US 5,325,606, issued July 5, 1994); and 6. Claims 10 and 20 under 35 U.S.C. Â§ 103(a) as being unpatentable over Denham in view of Walker (US 4,748,010, issued May 31, 1988). 3 This rejection was properly designated as a new ground of rejection in the Examiner's Answer because the Examiner modified the evidentiary reference relied upon to address the limitation in claim 1 that the gas produced from the calcining process "has a carbon dioxide concentration of more than 25 volume percents carbon dioxide on dry gas." See Ans. 3--4. Appellants acknowledged the new ground of rejection and requested that the appeal be maintained by filing a Reply Brief. Reply Brief filed September 8, 2014 ("Reply Br."), 1-2. 3 Appeal2014-009740 Application 13/147,722 App. Br. 11-12. First Ground of Rejection - Unpatentable over Denham Appellants argue forpatentability of claims 1, 4, 6, 12, 14, 16-18, 21, and 22, subject to the first ground of rejection, as a group. App. Br. 17-33. We choose independent claim 1 as representative of this group, and claims 4, 6, 12, 14, 16-18, 21, and 22, stand or fall with claim 1. Appellants present additional arguments for patentability of dependent claims 5 and 9. Id. at 33-38. We address these arguments below under separate subheadings. Claims 1, 4, 6, 12, 14, 16--18, 21, and 22 The Examiner finds Denham teaches the process for producing a gas from trona ore as in claim 1 except: (1) using a rotary drum with indirect heating as the calcining device; (2) generating a gas by calcination (produced gas) having a quantity of volatile organic compounds of less than 700 mg per kilogram of generated carbon dioxide; and (3) generating a gas by calcination (produced gas) having a carbon dioxide concentration of more than 25 volume percent expressed on dry gas. Final 2--4. "a rotary drum with indirect heating" The Examiner finds that Denham teaches a calcining process using a fluidized bed with indirect heating. Examiner's Answer mailed July 7, 2014 ("Ans."), 5. The Examiner finds that Denham discloses that both a fluidized bed and rotary drum are standard devices for calcination (see Denham 1 :27- 28). Final 2-3. The Examiner determines "it would have been obvious for one of ordinary skill in the art, at the time the invention was made ... to use a rotary drum with indirect heating [instead of a fluidized bed] in [Denham]," given Denham's teaching that any type of calciner that creates a 4 Appeal2014-009740 Application 13/147,722 dynamic motion of particles can be used (Denham 5:38--40) and that a rotary drum, like a fluidized bed, is a standard calcination device. Id. at 3. Appellants argue that "the Examiner has not properly explained why the artisan would have been motivated to substitute the fluidized bed of Denham with a rotary drum with a reasonable expectation of success in achieving the produced gas with the characteristics recited in [] Claim 1." App. Br. 22. The Examiner's finding of equivalence is supported by Denham (Final 2-3; Ans. 4--5), and Appellants' unsupported attorney argument is not persuasive in showing error in the Examiner's finding (see, e.g., Reply 5 (wherein Appellants argue, without citation to evidentiary support, that the modes of operation of a fluidized bed and rotary drum are different). Appellants also argue "the issues highlighted by Denham [] would lead the artisan away from using a rotary drum calciner." App. Br. 22. We do not find this argument to be convincing because, although Denham describes a disadvantage in using open flame (i.e., direct heat) rotary calciners (Denham 1:39--41), Appellants have not pointed to any disclosure in Denham which would have led the artisan away from using a rotary drum with indirect heating. ''produced gas ha[ving] a carbon dioxide concentration of more than 25 volume percent[] expressed on dry gas" The Examiner finds Denham teaches calcining three moles of trona produces five moles of water and one mole of carbon dioxide (Denham 9:25-28), and when expressed on dry gas, the carbon dioxide concentration in Denham would be more than 25 volume percent. Ans. 3. 5 Appeal2014-009740 Application 13/147,722 According to Appellants, the overall produced gas collected from Denham's calcining device is not limited to the carbon dioxide and water vapor generated from trona ore calcination, but includes the fluidizing gas entering the device, a part of which may be recycled gas. Reply Br. 4. Appellants argue "the Examiner fails to take into account the dilution by the flow of the fluidizing gas." Id. Appellants' argument is not supported by Denham' s disclosure. Denham discloses that the amount of time and energy required to conduct a calcination process in a fluidized bed can be reduced by using a method that creates dynamic motion. Denham 5:31-38. According to Denham, "[a]ny method of creating a dynamic motion of the particles can be used such as stirring, shaking and agitating. In one particular embodiment, the particles are placed on top of the bed plate 26 and are fluidized by ajluidizing gas." Id. at 5:38--42 (emphasis added); see also id. at 10: 17-19 (stating that a "portion of the calcining gas may be recycled back to the inlet of the calcining vessel and utilized for heating and fluidizing additional material for calcining" (emphasis added)). Based on the above disclosure, it is clear that Denham discloses the use of a fluidizing gas as an option, but not as a requirement of the described calcination process. Appellants have not rebutted adequately the Examiner's prima facie showing that at least one process described in Denham, including one that does not involve fluidizing gas, produces gas having the recited carbon dioxide concentration percent. See Final 3. 6 Appeal2014-009740 Application 13/147,722 a produced gas having "a quantity of volatile organic compounds of less than 700 mg per kilogram of generated carbon dioxide" The Examiner finds Denham teaches that "lower calcining temperatures result in fewer volatile organic compounds (Denham, Col. 3 lines 38--41)." Final 4; see also Ans. 6. The Examiner finds "[o]ne of ordinary skill in the art, at the time the invention was made, would have been motivated to [vary the calcining temperature in Denham' s process] in order to lower the particulate emissions from the calcination of trona ore." Final 4. The Examiner further finds that because Denham teaches calcining at temperatures of lower than 250 Â°C (Denham 3:9-13), which "overlaps" the calcining temperature range used in Appellants' claimed process (see claim 4 reciting calcining below 200 Â°C), generation ofVOC's of less than 700 mg/kg C02 would necessarily result. Id.; Ans. 6. Appellants acknowledge that "Denham may teach that VOC generation, in absolute term, may be reduced by a low calcination temperature, but argue "the relative amount of voe per amount of generated C02 ... was not recognized in Denham to be a result-effective variable for operating an indirect-heating calciner." Reply Br. 7-8. Thus, Appellants contend one of ordinary skill in the art would "not [be J guided or incited by Denham to operate an indirect-heating rotary drum calciner ... [to] achiev[ e] the specific range of weight ratios [recited in claim 1]." Id. at 8. Appellants' Specification states that, in a preferred embodiment, indirect heating is carried out with a hot fluid at a temperature less than or equal to 260 Â°C. Spec. 7:25-26. Therefore, the Specification supports the Examiner's finding that 700 mg of volatile organic compounds or less per 7 Appeal2014-009740 Application 13/147,722 kilogram of generated carbon dioxide would necessarily result at a temperature of 250 Â°C or less, which is the same temperature range taught by Denham (Denham 3:9-13, teaching calcining at temperatures of lower than 250 Â°C). Ans. 6. Claim 5 Claim 5 depends from independent claim 1 and requires that calcining (step ( c)) is carried out in the presence of an ambient gas containing water vapor at a concentration of at least 50 volume percent. See App. Br. 47 (Claims Appendix). The Examiner finds Denham teaches the concentration of water vapor in the gas stream generated during the calcining process is about 80% (based on 5 moles of water to 1 mole of C02), which is sufficient to meet the water vapor concentration of "at least 50 volume percent" recited in claim 5. Final 4--5. Appellants argue that the Examiner's estimation that Denham discloses the concentration of water vapor in the gas stream is 80% fails to take into account the fact that water vapor concentration will be reduced by recycling gas. See App. Br. 33-34 (arguing the Examiner's water vapor calculation "would [] only [be] correct for solely new gas formation from calcination of trona [and] ... does not include the dilution by the flow of the fluidizing gas in Denham's bed which likely includes a recycling gas which has a reduced amount of water due to the condensation step that Denham performs on the calciner gas."). As discussed above, Denham discloses the use of a fluidizing gas as an option, not as a requirement of the calcination process (Denham 5:38--42, 10: 17-19). Appellants have not rebutted adequately the Examiner's prima facie showing that at least one 8 Appeal2014-009740 Application 13/147,722 process described in Denham, including one that does not involve fluidizing gas, produces a gas stream with the recited water vapor concentration. Claim 9 Claim 9 depends from independent claim 1 and requires that the indirect heating is provided by steam tubes placed in the rotary drum, the steam tubes defining a steam tubes section of the rotary drum, and the crushed trona ore is introduced inside the steam tubes section. App. Br. 47- 48 (Claims Appendix). Appellants argue that none of the figures in Denham illustrate an introduction of crushed trona inside the steam tubes section and "Fig. 6 shows that the introduction of crushed trona (via feed inlet 50) is in a first chamber wherein the heating coils define a section less important in surface than the chamber surface." App. Br. 36. We not find Appellants' argument to be persuasive. Appellants' position is based on an interpretation of the claim language "steam tubes section" as requiring a section in which the tubes are located at a particular distance from the wall of the rotary drum. See App. Br. 36. Appellants' interpretation is not supported by the Specification, which requires only that the steam tubes section contain steam tubes. Spec. 8:7-8. Appellants have not explained why the steam tubes section should be limited to any of the specifically described preferred embodiments (Spec. 8: 1---6). Nor have Appellants shown that the Examiner erred in finding that because the section in Denham into which trona is introduced contains steam tubes, it meets the limitation of a steam tubes section as claimed (Ans. 8-9). 9 Appeal2014-009740 Application 13/147,722 In sum, for the reasons expressed in the Answer and above, the Examiner's decision to reject claims 1, 4---6, 9, 12, 14, 16-18, 21, and 22 is affirmed. Remaining Grounds of Rejection- Unpatentable over Denham in view of either Braman, Lazaro, Pruszko, Liborius, or Walker Claims 2, 3, 7, 8, 10, 11, 13, 19, and 20 depend directly (claims 3, 7, 8, 11, and 20) or indirectly (claims 2, 10, 13, and 19) from independent claim 1. Appellants argue that Braman, Lazaro, Pruszko, Liborius, and Walker fail to cure the alleged deficiencies in the rejection of claim 1. See App. Br. 39--44; see also Reply Br. 9-10. This argument is not persuasive of error in the Examiner's rejections because, for the reasons discussed above, we are not persuaded of any deficiencies in the Examiner's rejection of claim 1. Thus, for the reasons expressed in the Answer and above, we affirm the rejections of claims 2, 3, 7, 8, 10, 11, 13, and 20. Regarding claim 19, the Examiner finds Denham does not explicitly teach the claimed delivery method and relies on Liborius for this limitation. Final 12. The Examiner finds Liborius "suggests the use of a rotating screw to deliver the crushed trona" (Liborius Fig. 1) and teaches "the control of temperature ... through the use of heating elements with steam" (i.e., double shield heated with a hot fluid) (Liborius 2:25-28). Id. at 13. The Examiner concludes it would have been obvious for one of ordinary skill in the art, at the time the invention was made, to use the rotating screw and heating system of Liborius to deliver the crushed trona ore to Denham's calciner "to precisely control the temperature of the crushed trona and dry a desired 10 Appeal2014-009740 Application 13/147,722 quantity of particulate wet sodium bicarbonate (trona) in a desired unit of time." Id. Appellants argue one of ordinary skill in the art would not have combined the teachings of Denham and Liborius because Liborius is directed to a process for calcining a wet cake of sodium bicarbonate, not crushed trona ore as in Denham. See App. Br. 42--43. On the record before us, the Examiner did not address Appellants' argument in this regard, and, based on Appellants' argument, we are not persuaded that the Examiner has shown unpatentability of claim 19 by a preponderance of the evidence. See MPEP Â§ 1207.02(A)(2) (The examiner's answer should include a statement of whether the examiner disagrees with each of the arguments in the brief with respect to the issues presented and an explanation of the reasons for disagreement with any such argument.). Accordingly, we reverse the rejection of claim 19. DECISION For the above reasons, the Examiner's decision to reject 1-14, 16-18, and 20-22 is affirmed. The Examiner's decision to reject claim 19 is reversed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a). AFFIRMED-IN-PART 11