Ex Parte Daimer

Patent Trial and Appeal Board

Jul 29, 2014

12202957 (P.T.A.B. Jul. 29, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte JOHANN DAIMER
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Appeal 2012-001427
Application 12/202,957
Technology Center 3700
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Before: CHARLES N. GREENHUT, MICHAEL L. HOELTER, and
ANNETTE R. REIMERS, Administrative Patent Judges.

GREENHUT, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF CASE
Appellant appeals under 35 U.S.C. § 134 from a rejection of claims 1–
9 and 17–20. Br. 2. We have jurisdiction under 35 U.S.C. § 6(b).
We reverse.
The claims are directed to a lining for a carbothermic reduction
furnace. Claim 1, reproduced below, is illustrative of the claimed subject
matter:
1. In a carbothermic reduction furnace for a carbothermic
reduction of alumina, a reactor vessel, comprising:
an outer steel shell having an inner wall surface; and
a lining structure disposed on said inner wall surface and
protecting said outer steel shell against attack from molten slag
of alumina inside the reactor vessel, said lining structure having
Appeal 2012-001427
Application 12/202,957

2
a low Fe content of less than 0.1 % by weight and protecting
the molten slag of alumina against iron contamination from said
steel shell, said lining structure additionally configured to be
substantially resistant to CO attack, said lining structure having
a relatively thick base layer of graphite disposed on said inner
wall surface and a relatively thin refractory oxide layer on said
base layer of graphite and in intimate contact therewith, said
refractory oxide layer forming an inner layer of the reactor
vessel to be exposed to the molten slag of alumina.

REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Scott
Kibby
LaBate ‘957
LaBate ‘700
Fishler
Besser
Yanagimoto
US 3,973,076
US 4,216,010
US 4,328,957
US 4,441,700
US 4,871,698
US 6,425,504 B1
US 6,948,548 B2
Aug. 3, 1976
Aug. 5, 1980
May 11, 1982
Apr. 10, 1984
Oct. 3, 1989
July 30, 2002
Sept. 27, 2005
Hardcastle US 2003/0034575 A1 Feb. 20, 2003

REJECTIONS
Claims 1, 7, 17 and 20 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Scott, Kibby and Besser. Ans. 5.
Claims 2–4 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Scott, Kibby, Besser and Hardcastle or Yanagimoto. Ans.
6.
Claims 5, 6, 18 and 19 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Scott, Kibby, Besser and Fishler. Ans. 7.
Claim 8 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Scott, Kibby, Besser, Fishler, and LaBate ‘700. Ans. 7-8.
Appeal 2012-001427
Application 12/202,957

3
Claim 9 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Scott, Kibby, Besser, Fishler, LaBate ’700 and LaBate
’957. Ans. 8.

OPINION
Each of the independent claims involved in this appeal requires a
“lining structure having a low Fe content of less than 0.1 % by weight.” The
Examiner reasons that “since the Kibby reference is silent about the presence
or absence of Fe in the lining structure 11, it is interpreted as no Fe or 0% Fe
in the lining structure which is less than 0.1 %.” Ans. 10. “Of course, the
absence of evidence is not the same as evidence of absence.” Porter v.
Secretary of Health and Human Services, 663 F. 3d 1242, 1264 (Fed. Cir.
2011) (O’Malley, J., concurring-in-part, dissenting-in-part)(internal
quotations and citations omitted). The Examiner’s rejections, being
unsupported by a preponderance of the evidence, cannot be sustained. In re
Caveney, 761 F.2d 671, 674, (Fed.Cir.1985) (A preponderance of the
evidence must show nonpatentability before the PTO may reject the claims
of a patent application).

DECISION
The Examiner’s rejections are reversed.

REVERSED

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