Ex Parte Docquier et al

Patent Trial and Appeal Board

Apr 29, 2016

13061418 (P.T.A.B. Apr. 29, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/061,418 02/28/2011
40582 7590
American Air Liquide, Inc.
Intellectual Property Dept.
9811 Katy Freeway
Suite 100
Houston, TX 77024
05/03/2016
FIRST NAMED INVENTOR
Nicolas Docquier
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.
Serie 7852 5773
EXAMINER
YANG,JIE
ART UNIT PAPER NUMBER
1733
NOTIFICATION DATE DELIVERY MODE
05/03/2016 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):
IP-USOffice@airliquide.com
Neva.Dare-c@airliquide.com
J us tin.Murray@airliquide.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte NICOLAS DOCQUIER, ROBERT KALCEVIC,
MAGNUS MORTBERG, and REMI PIERRE TSIA VA
Appeal2014-009924
Application 13/061,418
Technology Center 1700
Before PETER F. KRATZ, JAMES C. HOUSEL, and MONTE T. SQUIRE,
Administrative Patent Judges.
KRATZ, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on an appeal under 35 U.S.C. § 134(a) from the
Examiner's final rejection of claims 16-29. We have jurisdiction pursuant
to 35 U.S.C. § 6(b ).
Appellants' claimed invention is directed to a combustion method
using a burner assembly having at least one oxidant passageway wherein the
ratio between first and second oxidants supplied to the at least one oxygen
passageway is varied.
Claim 16 is illustrative and reproduced below:
16. A method of generating combustion by means of a
burner assembly comprising a refractory block, a fuel supply
system and an oxidant supply system, the refractory block
Appeal2014-009924
Application 13/061,418
defining along a first plane at least one fuel passageway
extending from a fuel inlet port to a fuel outlet port, and
substantially along a second plane at least one oxidant
passageway extending from an oxidant inlet port to an oxidant
outlet port, said first and second planes intersecting along a line
that is beyond said outlet ports, said oxidant supply system
comprises an inner oxidant supply means having an inlet
connected to a source of a first oxidant and an outer oxidant
supply means which at least partially surrounds the inner
oxidant supply means and which has an inlet connected to a
source of a second oxidant, said inner and outer oxidant supply
means extending at least partially into the at least one oxidant
passageway and said oxidant supply system being configured to
supply to the outlet port of said at least one oxidant passageway
either just one of said first and second oxidants or a
combination of both,
the method including:
(a) selectively supplying the inner oxidant supply means
of an oxidant passageway of a refractory block with a first
oxidant, said first oxidant containing at least 70% vol. of
oxygen;
(b) selectively supplying the concentric outer oxidant
supply means of the same oxidant passageway with a second
oxidant, said second oxidant preferably containing less than
25% vol. oxygen;
( c) varying the ratio between said first and second
oxidants being supplied to the at least one oxidant passageway,
said step of varying the ratio comprising:
supplying only the first oxidant to the at least one oxidant
passageway,
supplying only the second oxidant to the at least one
oxidant passageway, and
supplying a combination of the first oxidant to the inner
oxidant supply means and of the second oxidant to the
concentric outer oxidant supply means; and
( d) directing said oxidant or oxidants towards a fuel for
combustion therewith downstream of the burner assembly.
App. Br. 10-11 (Claims Appendix).
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Appeal2014-009924
Application 13/061,418
The Examiner maintains the following grounds of rejection:
Claims 16-29 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Joshi (US 6,783,357 B2, issued August 31, 2004).
After a careful review of the opposing positions articulated by
Appellants and the Examiner and the evidence of obviousness adduced by
the Examiner, we determine that the Appellants' arguments are insufficient
to identify reversible error in the Examiner's obviousness rejection. In re
Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011).
Accordingly, we affirm the stated obviousness rejection for
substantially the fact findings set forth by the Examiner in the Examiner's
Answer and in the Final Office Action. We offer the following for
emphasis.
Appellants focus on the claim 16 requirement for "varying the ratio
between the first and second oxidants" of step ( c) in arguing against the
Examiner's obviousness rejection and Appellants do not dispute the
Examiner's determination that Joshi teaches or suggests a combustion
generation method that otherwise corresponds to the requirements of
Appellants' claim 16 method (App. Br. 5-9; Reply Br. 2-9). In this regard,
Appellants argue the rejected claims together as a group and do not present
separate arguments for any of the rejected dependent claims (App. Br. 5-9).
Accordingly, we select claim 16 as the representative claim on which we
focus in deciding this appeal.
Appellants argue that Joshi furnishes insufficient evidence to support
the Examiner's determination that it would have been obvious for one of
ordinary skill in the art to vary/switch the relative amounts (ratio) of
preheated oxidant (HO) and ambient oxidant (AO) supply to the combustion
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Appeal2014-009924
Application 13/061,418
burner of Joshi such that only HO oxidant is being supplied, and such that
only AO oxidant is being supplied, and such that both HO and AO are being
supplied in relative (ratio) amounts in a manner corresponding to step C of
claim 16 (App. Br. 6-8; Reply Br. 2, 4, 8). 1 In this regard, Appellants argue
that ambient oxidant (AO) is always injected in Joshi, Joshi does not teach a
ratio control for the AO and HO oxidants, and there is no Table 1 (I) in Joshi
as pointed to by the Examiner (App. Br. 6-8; Reply Br. 2, 4, 8).
Contrary to Appellants' argument, however, Table I is present in Joshi
(col. 17, 11. 1-29).2 Moreover, Table I teaches or suggests that the relative
amounts of preheated oxidant and ambient oxidant supplied to the
combustion burner of Joshi can be varied such that 100 percent preheated
oxidant, and a mixture of preheated oxidant and ambient oxidant, and 100
percent ambient oxidant (cold operation) can be supplied to the combustion
burner. Moreover, Joshi expressly teaches that "[t]he burner is able to
switch from hot oxidant and fuel service to ambient oxidant and fuel service
very easily" (col. 20, 11. 27-29). Consequently, Appellants' argument
suggesting that the teachings of Joshi furnishes insufficient factual evidence
1 There is no substantive dispute that Joshi teaches amounts of oxygen that
can be present in the HO and AO oxidants that overlap the amounts of
oxygen required for the first oxidant and the second oxidant of claim 16
(Joshi, col. 6, 11. 13-27).
2 It has not escaped our attention that American Air Liquide, Inc. is a named
assignee of Joshi and American Air Liquide, Inc., Intellectual Property Dept.
is listed as part of the correspondence address used for the Examiner's
Answer mailed in this Application. Moreover, Remi P. Tsiava (Grigny,
France) is included as a named co-inventor of Joshi and apparently the same
person, Remi Pierre Tsiava of Saint-Germain-Lee-Corbell, France, is a
named co-inventor of the subject Application.
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Application 13/061,418
to support the Examiner's obviousness contention as to the claimed subject
matter lacks merit.
We concur with Appellants that the Examiner errs in citing to
irrelevant case law, such as In re First National city Bank, 168 USPQ 180
(TT AB) 1970, involving an appeal from the refusal of an Examiner of
Trademarks to register a particular trademark. In this regard, the Examiner's
refusal to correct this obvious mistake and the Examiner's continuing
citation to this trademark case law concerning an appeal from a refusal to
register as being relevant to the present appeal from the obviousness
rejection maintained by the Examiner in this Patent Application represents
manifest error (Ans. 10; see Reply Br. 6). In any event, the relevant facts
concerning the argued limitation overwhelmingly support the Examiner's
obviousness determination; consequently, we deem the Examiner's case law
misapplication errors to amount to harmless error with respect to this
particular appeal.
Thus, Appellants' arguments are not persuasive of reversible error in
the Examiner's obviousness rejection.
CONCLUSION
The Examiner's decision to reject the appealed claims as obvious over
Joshi 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
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