Ex Parte Leininger

Patent Trial and Appeal BoardMar 4, 2016

13560957 (P.T.A.B. Mar. 4, 2016)

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. 13/560,957 07/27/2012 Thomas Frederick Leininger 230498-1 (GETH:0365) 4595 82438 7590 03/04/2016 GE Power & Water Fletcher Yoder PC P.O. Box 692289 Houston, TX 77269-2289 EXAMINER NASSIRI MOTLAGH, ANITA ART UNIT PAPER NUMBER 1734 MAIL DATE DELIVERY MODE 03/04/2016 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 THOMAS FREDERICK LEININGER ____________________ Appeal 2014-007347 Application 13/560,957 Technology Center 1700 ____________________ Before TERRY J. OWENS, ROMULO H. DELMENDO, and BRIAN D. RANGE Administrative Patent Judges. RANGE, Administrative Patent Judge. DECISION ON APPEAL Appeal 2014-007347 Application 13/560,957 2 SUMMARY Appellant appeals under 35 U.S.C. § 134 from a rejection of claims 1‒ 14 and 16‒25. We have jurisdiction. 35 U.S.C. § 6(b). We AFFIRM. STATEMENT OF CASE Claims 1‒14 and 16‒25 are pending on appeal; claim 15 was previously cancelled. App. Br. 2. Appellant1 describes the present invention as relating to “conveying solids, and, more particularly, to conveying solids in the presence of fluids.” Id. The Specification suggests that the invention could be used as part of an integrated gasification combined cycle (“IGCC”) power plant. Spec. ¶ 19. Claims 1, 16, and 21 are the only independent claims. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A system, comprising: a desulfurizer configured to receive a gaseous stream, wherein the desulfurizer comprises a sulfur absorption material configured to absorb a sulfur compound from the gaseous stream to generate a saturated sulfur absorption material and a product stream substantially free of the sulfur compound; a regenerator configured to receive the saturated sulfur absorption material from the desulfurizer, wherein the regenerator is configured to regenerate the saturated sulfur absorption material to generate a regenerated sulfur absorption material and sulfur dioxide; and a solids pressurizing feeder configured to continuously convey the sulfur absorption material, the saturated sulfur absorption material, or the regenerated sulfur absorption material, wherein the solids pressurizing feeder is configured to at least substantially reduce or prevent fluid flow between the desulfurizer and the regenerator. 1 According to the Appellant, the real party in interest is General Electric Company. App. Br. 2. Appeal 2014-007347 Application 13/560,957 3 REFERENCES The Examiner relied upon the prior art below when rejecting the claims on appeal: Newby Campbell et al. (hereinafter “Campbell”) Poshusta et al. (hereinafter “Poshusta”) US 5,540,896 US 5,578,093 US 7,344,686 July 30, 1996 Nov. 26, 1996 Mar. 18, 2008 Hoover et al. (hereinafter “Hoover”) Van der Ploeg US 2008/0116113 A1 US 2009/0178336 A1 May 22, 2008 July 16, 2009 REJECTIONS The Examiner made the following rejections: Rejection 1. The Examiner rejected claims 1‒9, 11, 13, and 16‒25 under 35 U.S.C. § 103 as unpatentable over the combination of Hoover and Van der Ploeg.2 Rejection 2. The Examiner rejected claim 10 under 35 U.S.C. § 103 as unpatentable over the combination of Hoover, Van der Ploeg, and Campbell. Rejection 3. The Examiner rejected claim 12 under 35 U.S.C. § 103 as unpatentable over the combination of Hoover, Van der Ploeg, and Poshusta. Rejection 4. The Examiner rejected claim 14 under 35 U.S.C. § 103 as unpatentable over the combination of Hoover, Van der Ploeg, and Newby. 2 Appellant asks for reversal with respect to claims 1–9, 11, 13, and 15–25 with respect to this first ground, but the inclusion of claim 15 appears to be a typographical error because claim 15 was cancelled. App. Br. 2, 4, 20. Appeal 2014-007347 Application 13/560,957 4 OPINION The Appellant provides one set of arguments for all claims at issue. We therefore limit our discussion to claim 1. App. Br. 8–17. Claims 2–14 and 16–25 stand or fall with that claim. See 37 C.F.R. § 41.37(c)(1)(iv) (2013). Rejection 1. The Examiner’s first rejection is based upon the combination of Hoover and Van der Ploeg. The Examiner explains that Hoover teaches a desulfurizer system including most elements of claim 1. Final Act. 3. Based upon Hoover’s teachings and Examiner’s citations to Hoover, we agree with and adopt the findings of fact provided by the Examiner at page 3, paragraph 2 of the October 2, 2013, Final Rejection. The Examiner admits that Hoover does not explicitly teach that its system is configured to continuously convey solid sulfur absorption material. Id. As the Examiner explains (id. at 3–4), Van der Ploeg teaches a solids pump to continuously supply solids, teaches a solids pressurizing feeder configured to continuously convey solids from a low pressure zone to a high pressure zone. See also Van der Ploeg Abstract, ¶¶ 6, 24–29, claim 1. We agree with these findings of fact. We also find that Van der Ploeg teaches various advantages of its system: (1) eliminating lock hoppers’ disadvantages of disruptions occurring when one tank is taken off line and the venting of pressurizing gas; (2) it uses a gaseous stream to break open compacted solid cake; (3) flow to the reactor can be controlled by varying drive disk speed; (4) compressing of bulk material adds efficiency and reduces energy requirements; and (5) compacting the solids creates a better gas seal between disks. Id. at ¶¶ 5, 10, 25, 38. The Appellant does not dispute that the two references, when combined, result in an apparatus or system including all elements of claim 1; Appeal 2014-007347 Application 13/560,957 5 rather, Appellant argues that the Hoover and Van der Ploeg cannot properly be combined because they “teach away from one another” and because they “teach contrastingly different intended purposes and principles of operation.” App. Br. 8, 13. For the reasons explained below, each of these two arguments is not persuasive. First, with respect to Appellant’s “teaching away” argument, Appellant argues that Hoover discourages use of Van der Ploeg’s apparatus because Hoover extols the advantages of using dense phase gravity flow with batchwise transport. App. Br. 9. Appellant cites Hoover to argue that it teaches reduced particle attrition as compared to continuous desulfurization techniques. Id. at 9–10. In particular, Appellant cites Hoover’s statement that its teachings provide a number of advantages over conventional desulfurization units which continuously circulate fluidizable solid particles between a reactor, regenerator, and reducer. . . . Such dense phase gravity flow transport of the solid particles reduces attrition of the particles and also reduces the need for other more expensive equipment (e.g., pneumatic conveyors) to transport particles. Hoover ¶ 52. We agree with the Examiner that this passage does not teach away from, criticize, or discredit a combination of Hoover and Van der Ploeg. Ans. 4–5. The cited passage does not lead a person of ordinary skill “in a direction divergent from the path that was taken by the applicant.” In re Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994). Rather, the referenced paragraph of Hoover teaches the value of Hoover’s dense phase” transport of solids as compared to “high velocity transport (i.e., dilute phase transport) of the solid particles . . . .” Hoover ¶ 52. Hoover defines dense phase transport as being transport of solids in the presence of a fluid where the fluid’s velocity is less Appeal 2014-007347 Application 13/560,957 6 than that required to fully suspend the solids. Hoover ¶ 41. Van der Ploeg, just like Hoover, teaches dense phase transport (in contrast to “dilute phase transport”). Ans. 5; Van der Ploeg ¶ 41. Thus, a person of ordinary skill in the art would have no reason to expect that the attrition resulting from Van der Ploeg is particularly severe as compared to any attrition of Hoover. Appellant argues that Van der Ploeg’s method of transport is not “dense phase” because “no fluid is being used to transport material with the bulk materials pump 1 of Van der Ploeg” and that Van der Ploeg, therefore, would not be combined with Hoover because of unacceptable attrition. Reply Br. 4–5. We disagree. Van der Ploeg explains that the opening of its apparatus depicted in Figure 6a “is preferably chosen such that at least a so- called dense phase conveying flow regime is maintained . . . .” Van der Ploeg ¶ 47. The flow in Van der Ploeg is a flow of solid material injected with a gaseous stream. Id. at Abstract, ¶¶ 9, 28. Van der Ploeg’s apparatus transports the “solid material and the gaseous stream . . . .” Id. at ¶ 9. Hoover acknowledges that gasses are fluids. Hoover ¶ 28. Based on the teachings of Hoover and Van der Ploeg, we find that a person of ordinary skill in the art would have determined that the transport mechanism of Van der Ploeg would not be likely to result in an unacceptable degree of particle attrition. Cf., e.g., PAR Pharm., Inc. v. TWI Pharms., Inc., 773 F.3d 1186, 1198 (Fed. Cir. 2014). (“The reasonable expectation of success requirement for obviousness does not necessitate an absolute certainty for success.”). Moreover, even if Van der Ploeg could result in some attrition, a person of ordinary skill in the art would nonetheless be motivated to combine Van der Ploeg’s continuous transport apparatus with Hoover’s system because of the many advantages of the Van der Ploeg apparatus explained above. Cf. Medichem, S.A. v. Rolabo, S.L., 437 F.3d Appeal 2014-007347 Application 13/560,957 7 1157, 1165 (Fed. Cir. 2006) (“a given course of action often has simultaneous advantages and disadvantages, and this does not necessarily obviate motivation to combine”). Second, Appellant argues that obviousness cannot be established by the combination of Hoover and Van der Ploeg because they teach “different intended purposes and principles of operation.” App. Br. 13. In particular, Appellant argues that Hoover teaches batchwise transport while Van der Ploeg teaches continuous use of a bulk materials pump. Id. Appellant cites In re Ratti, 270 F.2d 810 (CCPA 1959) to support this argument. The discussion of “principle of operation” in In re Ratti must be considered in the context of the further developments in the law expressed by the Supreme Court in KSR Int'l Co. v. Teleflex, Inc., 550 U.S. 398 (2007). Under KSR, a key inquiry is whether a person of ordinary skill would have fit the teachings of different prior art references together. Id. at 420. Indeed, KSR “directs us to construe the scope of analogous art broadly, stating that ‘familiar items may have obvious uses beyond their primary purposes, and a person of ordinary skill often will be able to fit the teachings of multiple patents together like pieces of a puzzle.’” Wyers v. Master Lock Co., 616 F.3d 1231, 1238 (Fed. Cir. 2010) (quoting KSR, 550 U.S. at 402) (emphasis original). Here, a preponderance of the evidence establishes that a person of ordinary skill in the art would have looked to Van der Ploeg’s teaching of a continuous mass flow pump in order to predictably improve the Hoover’s batch process. Final Act. 3–4; Ans. 6; Van der Ploeg ¶¶ 5, 6, 10, 25, 38. Van der Ploeg expressly teaches that it can improve batch processing. Final Act. 3–4; Ans. 6; Van der Ploeg ¶ 5. Improvement of Hoover by use of the teaching of Van der Ploeg would have been no more than the predictable use Appeal 2014-007347 Application 13/560,957 8 of prior art elements according to their established functions. Final Act. 3– 4; Van der Ploeg Abstract, ¶¶ 5, 10. Thus, we agree with the Examiner’s conclusion that the subject matter of claim 1 would have been obvious to a person of ordinary skill in the art in view of the teachings of Hoover and Van der Ploeg. KSR, 550 U.S. at 417; see also In re Dilnot, 319 F.2d 188, 194 (CCPA 1963) (finding no patentable distinction between continuous operation and batch process) (citations omitted). Appellant also argues that substitution of the bulk materials pump of Van der Ploeg with the lock hopper of Hoover would cause problems such as requiring two pumps or requiring simultaneous handling of different materials. App. Br. 15. The record lacks evidence, however, suggesting that these problems are any greater than the comparable costs and disadvantages of Hoover’s lock hopper. Instead, as explained above, Van der Ploeg teaches many advantages over the lock hopper, and it is these teachings that would have motivated the combination. See also Ans. 7. Accordingly, we affirm the Examiner’s first rejection. Rejections 2–4. Appellant makes no separate argument with respect to the Examiner’s second, third, and fourth rejections. Rather, Appellant relies upon its arguments with respect to claim 1 as discussed above. App. Br. 15–16. Thus, we affirm these rejections. DECISION For the above reasons, the Examiner’s rejection of claims 1‒14 and 16‒25 is affirmed. In particular, we affirm the following: (1) the Examiner’s rejection of claims 1‒9, 11, 13, and 16‒25 under 35 U.S.C. § 103 as unpatentable over the combination of Hoover and Van der Ploeg; Appeal 2014-007347 Application 13/560,957 9 (2) the Examiner’s rejection of claim 10 under 35 U.S.C. § 103 as unpatentable over the combination of Hoover, Van der Ploeg, and Campbell; (3) the Examiner’s rejection of claim 12 under 35 U.S.C. § 103 as unpatentable over the combination of Hoover, Van der Ploeg, and Poshusta; and (4) the Examiner’s rejection claim 14 under 35 U.S.C. § 103 as unpatentable over the combination of Hoover, Van der Ploeg, and Newby. 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