Ex Parte Dinu et al

Patent Trial and Appeal Board

Apr 15, 2016

12494434 (P.T.A.B. Apr. 15, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/494,434 0613012009
94288 7590 04/19/2016
GENERAL ELECTRIC COMPANY
GLOBAL RESEARCH
ONE RESEARCH CIRCLE
BLDG. Kl-3A59
NISKAYUNA, NY 12309
FIRST NAMED INVENTOR
Constantin Dinu
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.
239050-1 1141
EXAMINER
HANDAL, KAITY V
ART UNIT PAPER NUMBER
1725
NOTIFICATION DATE DELIVERY MODE
04/19/2016 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):
haeckl@ge.com
gpo.mail@ge.com
Lori.e.rooney@ge.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE
THE PATENT TRIAL AND APPEAL BOARD
Ex parte CONSTANTIN DINU, 1
Judeth Brannon Corry, James Michael Storey,
Denise Marie Rico, and Richard L. Zhao
Appeal2014-008508
Application 12/494,434
Technology Center 1700
Before TERRY J. OWENS, MARK NAGUMO, and BRIAND. RANGE,
Administrative Patent Judges.
NAGUMO, Administrative Patent Judge.
DECISION ON APPEAL
Constantin Dinu, Judeth Brannon Corry, James Michael Storey,
Denise Marie Rico, and Richard L. Zhao ("Dinu") timely appeal
1 The real party in interest is identified as General Electric Company.
(Appeal Brief, filed 10 February 2014 ("Br."), 3.)
Appeal2014-008508
Application 12/494,434
under 35 U.S.C. § 134(a) from the Final Rejection2 of claims 13, 14, 16, 20,
28, and 29. 3 We have jurisdiction. 35 U.S.C. § 6. We affirm.
OPINION
A. Introduction4
The subject matter on appeal relates to a cooling chamber for a
gasifier. The '434 Specification explains that in a normal coal gasification
process, a carbonaceous fuel such as coal is burned in a combustion chamber
at a relatively hot temperature and high pressure. (Spec. 1 [0003].) The
effluent ( syngas and ash particles) is discharged through the bottom of the
combustion chamber into a cooling chamber that typically contains water.
(Id.) The solids can be collected and discharged as a slag slurry.
(Id. at 1 [0004].) The discharged gases may have entrained a substantial
amount of the liquid coolant, and it is said to be desirable to remove
substantially the entrained liquid to avoid downstream operational problems.
(Id. at 2 [0004].)
The inventors seek patent protection relating to a gasifier in which a
finned liquid separator is disposed proximate to an exit path of the cooling
chamber and configured to remove entrained liquid content from the cooled
syngas. (Id. at [0007].)
2 Office action mailed 11 September 2013 ("Final Rejection"; cited as
"FR").
3 Remaining copending claims 15 and 17-19 have been withdrawn from
consideration by the Examiner (FR 1, § 5a) and are not before us.
4 Application 12/494,434, Cooling chamber assembly for a gasifier,
filed 30 June 2009. We refer to the "'434 Specification," which we cite as
"Spec."
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Application 12/494,434
Claim 13 is representative of the dispositive issues and reads:
A gasifier [10][5J comprising:
a combustion chamber [14] in which a combustible
material is burned to produce a syngas,
a cooling chamber [16] having a liquid coolant [32]
disposed downstream of the combustion chamber,
a dip tube [38] coupling the combustion chamber [14] to
the cooling chamber [16] and configured to direct syngas
from the combustion chamber to the cooling chamber to
contact the liquid coolant and produce a cooled syngas;
a draft tube [ 46] disposed surrounding the dip tube [38]
and defining an annular passage [50] there between;
a finned liquid separator [ 54]
disposed proximate to an exit path [52] of the cooling
chamber [16] and
configured to remove entrained liquid content from the
cooled syngas directed through the annular passage to
the exit path;
wherein the finned liquid separator [54] comprises
a dej?ector [56] coupled to the dip tube and
comprising one or more rows [86, 88],
each row comprising a plurality of fins [86, 88]
spaced apart from each other along a circuniferential
direction of the respective row.
(Claims App., Br. 12; some indentation, paragraphing, emphasis, and
bracketed matter added.)
An embodiment of the claimed gasifier is illustrated in Figures 1
and 13, reproduced on the following page.
5 Throughout this Opinion, for clarity, labels to elements are presented in
bold font, regardless of their presentation in the original document.
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Application 12/494,434
{Figures 1 (left) and 13 (right) are reproduced below}
22
24·.,,r------l ____________ J'. ___________________ _
26
...--···84
{Fig. l: gasifier 10 Fig. 13: separator 84 \vith fins 86, 88 on deflector 90}
Gasifier 10 includes outer shell 12, which houses upper combustion
chamber 14 and lower cooling chamber 16. (Spec. 5 [0028].) Fuel from
source 24 and oxygen from source 28 are introduced via burner 20 to
combustion chamber 14. (Id. at 5-6 [0028].) The hot syngas effluent is
directed down dip tube 38 to cooling chamber 16, which contains liquid
coolant 32 (typically water), which is maintained above the level of serrated
lower edge 44 of dip tube 38. (Id. at 6 [0029].) Particulates are discharged
as a slurry in water through port 34. (Id.) Draft tube 46, which is supported
by gasifier shell 12, surrounds dip tube 38 and defines annular passage 50.
(Id. at [0030].) Cooled syngas passes through annular passage 50 towards
exit path 52 of cooling chamber 16. (Id. at [0031].) Liquid separator 54
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Appeal2014-008508
Application 12/494,434
comprising deflector 56 and fins 58 is disposed proximate to exit path 52.
(Id. at 7 [0033].) In the words of the Specification, "as the cooled gas
stream impinges against the deflector 56 and the fins 58, flow velocity of the
syngas is reduced, and the entrained liquid content is removed from the
syngas. The deflector 56 also prevents sloshing of liquid coolant 32 to the
exit path 52 of cooling chamber 16." (Id.)
Figure 13 illustrates liquid separator 84, which includes two sets of
fins, 86 and 88, "disposed along two rows respectively along a circular
direction." (Id. at 10 [0046].)
The Examiner maintains the following grounds of rejection: 6
A. Claims 13, 14, 16, and 28 stand rejected under
35 U.S.C. § 102(b) in view ofMuschelknautz. 7
Al. Claim 20 stands rejected under 35 U.S.C. § 103(a) in view of
the combined teachings of Muschelknautz and Winn. 8
A2. Claim 29 stands rejected under 35 U.S.C. § 103(a) in view of
the combined teachings of Muschelknautz and Meissner. 9
6 Examiner's Answer mailed 21May2014 ("Ans.").
7 Sebastian Muschelknautz, Liquid seal apparatus, U.S. Patent
No. 5,520,714 (1996).
8 Dennis Winn, Pollution abatement apparatus and method, U.S. Patent
No. 5,308,385 (1994).
9 Alan P. Meissner et al., Contact heater/humidifier for fuel cell systems,
U.S. Patent Application Publication 2003/0190413 Al (2003).
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Appeal2014-008508
Application 12/494,434
B. Discussion
Findings of fact throughout this Opinion are supported by a
preponderance of the evidence of record.
Dinu urges that Muschelknautz, Figs. 1 and 2, shown below,
I
'
{Fig. 1: liquid seal apparatus:
12
13
17
15
16
-9
6
/\ /\ I\ /\)=::'
Fig. 2: baffles 14' on collar 13}
and the description of baffle plate 12, collar 13, and baffles 14, disclose
"a top set of baffles 14 that is vertically spaced (or axially spaced) from a
bottom set of baffles 14." (Br. 11, 11. 1-2.) "Further," Dinu urges, "from
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Application 12/494,434
FIGs. 1 and 2, each baffle appears to be a circular V shaped ring that is
continuous (not gapped) and radially spaced from the ring or rings in the
same axial plane." (Id. at 11. 3--4.) Dinu concludes that "the baffles of
Muschelknautz are spaced in radial and axial directions but are not a
plurality of fins space apart from each other along a circumferential direction
of the respective row." (Id. at 11. 4--6.) Dinu "submits that the Examiner
appears to be assuming that the baffles 14 disposed on the inner surface of
the deflector collar 13 are disposed along a circumferential direction."
(Id. at 11. 6-8.)
The Federal Circuit has explained that on appeal, the appellant must
not only show the existence of error, but also that the error was harmful
because it affected the decision below. In re Chapman, 595 F.3d 1330, 1338
(Fed. Cir. 2010), quoting Shinseki v. Sanders, 556 U.S. 396, 409 (2009)
("the burden of showing that an error is harmful normally falls upon the
party attacking the agency's determination."). Here; the dispute concerns
what a person of ordinary skill in the art would have understood
Muschelknautz to teach regarding the structure of the baffles 14 and how the
baffles 14 are mounted on the inner surface of deflector collar 13. What a
reference teaches is a question of fact, 10 as is what a person of ordinary skill
in the art would have understood what a reference teaches. 11 Moreover, the
10 In re Beattie, 974 F.2d 1309, 1311 (Fed. Cir. 1992).
11 In re Alton, 76 F.3d 1168, 1174--75 (Fed. Cir. 1996) ("the declaration is
offering factual evidence in an attempt to explain why one of ordinary skill
in the art would have understood the specification to describe the
modification involving the deletion of the first three amino acids
independently of the modification at position 81. ")
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Application 12/494,434
ultimate question of anticipation is an issue of fact. 12 Fact issues underlying
patentability are decided in appeals to the PT AB by the preponderance of the
evidence. 13
The difficulty with Dinu's argument is the absence of evidence that a
person having ordinary skill would have read the drawings, in light of the
supporting disclosure, as depicting concentric circles of inverted V-shaped
baffles (the structures supporting the baffles from the inner surface of
collar 13 not being shown), rather than as baffles projecting from the inner
surface of the collar. Nor has Dinu directed our attention to any credible
evidence that the Examiner's interpretation is inconsistent with the functions
of the various parts of the disclosed liquid seal apparatus. All we have is
argument; but "[a]ttomey's argument in a brief cannot take the place of
evidence." In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974).
The Examiner finds that the apparatus illustrated in Muscelknautz
Figure l and described at column 3, lines 46-56, and at column 5, lines 21-
51, includes "baffles arranged in a circular row and, as illustrated, are
positioned on an inner circumference/(inner surface) of deflector (12&13}-
which inner circumference/(inner surface) of deflector (13) is similar to
instant inner circumference (11)." (FR 3, 11. 8-11.) Figures 1 and 2,
reproduced supra, are consistent with the Examiner's findings. Moreover,
according to Muschelknautz, "[ t ]he direction of flow of the gas and liquid
stream is changed by approximately 180° by contact with baffle plate 12 and
12 In re NTP, Inc., 654 F.3d 1279, 1297 (Fed. Cir. 2011).
13 In re Epstein, 32 F.3d 1559, 1564 (Fed. Cir. 1994) ("Preponderance of the
evidence is the standard that must be met by the PTO in making rejections.")
(quoting In re Caveney, 761 F.2d 671, 674 (Fed. Cir. 1985).
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Application 12/494,434
deflector collar 13 and causes a liquid film to form which is broken down
into individual streams of liquid by baffles 14 which function as flow
separators." (Muschelknautz, col. 5, 11. 28-33; emphasis added.) It is not
clear how the liquid film formed on baffle plate 12 and deflector collar 13
could be broken down into individual streams by baffles 14 that are not in
direct contact with at least deflector collar 13.
In the Reply 14, Dinu states, with commendable candor, that
"Appellant has inferred that each individual baffle is a complete ring.
However, Appellant recognizes that there is no way to tell for certain
whether the baffles are or are not four complete rings of an upper row of
baffles." (Reply 4, 11. 12-14.) We decline, however, to entertain Dinu's
belated argument that Muschelknautz is too ambiguous to determine which
interpretation is correct, 15 good cause not having been shown that the
argument could not have been raised earlier. 16
We are not insensitive to the possibility that persons of ordinary skill
in the art could read Muschelknautz as disclosing different structures of
baffles attached in different ways to collar 13. But the Examiner's
interpretation is consistent with the description of the structures and
functions described in the text and figures. As our reviewing court has
explained, "[ t ]he Court has also stated, however, that 'the possibility of
14 Reply Brief filed 18 July 2014 ("Reply").
15 Dinu urges, "But, conversely, without a top view and/or more description
in Muschelknautz, there also appears to be no way to know that the baffles
are 'a plurality of fins spaced apart from each other along a circuniferential
direction of the respective row."' (Reply 4, 11. 14--17.)
16 Indeed, Dinu showed no sign in the principal Brief on appeal of any doubt
as to what Muschelknautz discloses.
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Application 12/494,434
drawing two inconsistent conclusions from the evidence does not prevent an
administrative agency's finding from being supported by substantial
evidence."' In re Gartside, 203 F.3d 1305, 1312 (Fed. Cir. 2000) (citing
Consolo v. Federal Maritime Comm 'n, 383 U.S. 607, 619--20 (1966)). On
the present record, the findings made by the Examiner are supported better
by the evidence than the findings proposed by Dinu.
In the present posture of this appeal, we are unable to say that Dinu
has shown harmful error in the Examiner's finding of facts and interpretation
of Muschelknautz.
Dinu presents no other challenges to the rejections.
We are not persuaded of harmful error by a preponderance of the
evidence. Accordingly, the rejections are affirmed.
C. Order
It is ORDERED that the rejection of claims 13, 14, 16, 20, 28, and 29
is affirmed.
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
10