Ex Parte MinaDownload PDFPatent Trial and Appeal BoardDec 27, 201612618136 (P.T.A.B. Dec. 27, 2016) Copy Citation 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. 12/618,136 11/13/2009 Theodors Ishaq Mina ATL3-PT044 5999 135838 7590 12/29/2016 Studio Torta (RINGFENCE) c/o BUCHANAN INGERSOLL & ROONEY PC P.O. BOX 1404 EXAMINER GOYAL, ARUN ALEXANDRIA, VA 22313 ART UNIT PAPER NUMBER 3741 NOTIFICATION DATE DELIVERY MODE 12/29/2016 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): ADIPDOCl@BIPC.COM stacy. shaw @ bipc. com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte THEODORS ISHAQ MINA Appeal 2014-009114 Application 12/618,136 Technology Center 3700 Before CHARLES N. GREENHUT, MICHAEL L. HOELTER, and GORDON D. KINDER, Administrative Patent Judges. KINDER, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellant1 appeals under 35 U.S.C. § 134 from a rejection of claims 1—18. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. 1 Appellant states that the real party in interest is Alstom Technology LTD. Appeal Br. 1. Appeal 2014-009114 Application 12/618,136 CLAIMED SUBJECT MATTER The claimed invention relates generally to “low pollution combustion processes, and to combustors with burners that support such combustion processes.” Spec. 1 5. Claims 1, 7, and 18 are independent. Claim 1, reproduced below, illustrates the claimed subject matter: 1. A method for burning fuel with air in a combustion chamber with low production of NOx emissions, comprising the steps of: supplying fuel and air to a burner associated with the combustion chamber, the burner comprising an air supply nozzle and at least one fuel supply nozzle located within the air supply nozzle, the amount of air supplied by the air supply nozzle in use being at least as much as required for stoichiometric combustion of the fuel and all subsequent dilution of the combustion process in the combustion chamber and below 250% of the air requited for complete combustion, wherein a ratio of an axial distance between an exit of the air supply nozzle and an exit of the fuel supply nozzle exit to a diameter of the air supply nozzle is less than 5:4; and combusting the fuel with the air in a flame and a post flame reaction by injecting the fuel and all the air through the burner directly into the combustion chamber in a substantially unmixed state as a fuel stream inside an air stream, wherein the air is immediately available in the proximity of the flame during the combustion process to act as a heat sink and so that the combustion process in the flame is followed by fast dilution and the post-flame reaction continues as a lean-bum reaction, the thickness of the fuel stream being such that the fuel bums in the combustion chamber at or close to the stoichiometric fuel/air ratio as a diffusion flame with a high surface-to-volume ratio. Appeal Br. 23 (Claims App.) 2 Appeal 2014-009114 Application 12/618,136 REFERENCES The prior art relied upon by the Examiner in rejecting the claims on appeal is: Delabroy US 6,688,876 B2 Feb. 10, 2004 Glezer US 2005/0044857 A1 Mar. 3, 2005 Inoue US 6,928,823 B2 Aug. 16, 2005 Mass US 7,249,721B2 July 31, 2007 REJECTIONS The Examiner made the following rejections: Claims 1, 7, 9, 10, and 14-17 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Inoue, Glezer, and Mass. Claims 2—6, 8, 11—13, and 18 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Inoue, Glezer, and Mass. Claims 2, 5, 8, and 13 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Inoue, Glezer, Mass, and Delabroy.2 ANALYSIS Appellant proposes that claims 1—6, 16, and 17 are allowable because the cited references do not suggest “injecting the fuel and all the air through the burner directly into the combustion chamber in a substantially unmixed state as a fuel stream inside an airstream” as required by these claims. Appeal Br. 11—15. In support of this proposition Appellant first argues that Inoue teaches away from the “substantially unmixed” limitation of claims 1—6, 16, and 17. 2 Claim 17 was rejected under 35 U.S.C. § 112 (Final Act. 2). That rejection has been withdrawn. Ans. 2. 3 Appeal 2014-009114 Application 12/618,136 Appeal Br. 11. Appellant quotes from Inoue: “since the arrangement of this embodiment promotes a partial mixture of fuel before the fuel is injected from the end face of an air hole, it can be expected that the fuel and air can be mixed at a much shorter distance.” Id. (quoting Inoue 5:15—18.) “A reference may be said to teach away when a person of ordinary skill, upon reading the reference, would be discouraged from following the path set out in the reference, or would be led in a direction divergent from the path that was taken by the applicant.” In re Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994). Here, Appellant has ignored the sentence immediately following that quoted above in which Inoue says, “Furthermore, by adjusting the length of the air hole passage, it is possible to set the conditions from almost no mixture occurring in the passage to an almost complete premixed condition.”3 Inoue, 5:19-22. Thus, far from teaching away from a “substantially unmixed state as a fuel stream inside an airstream” (claim 1), Inoue teaches that the degree of premixing is variable and adjustable from “almost no” mixing to “almost complete” mixing. This adjustability is clearly demonstrated in Inoue’s Figures 15(c) and 15(d) and in the discussion at column 9, lines 7—24. Moreover, in a passage cited in the Final Action (Final Act. 4) but not addressed by Appellant and discussing the same embodiment that Appellant urged taught premixing, Inoue describes the sequence of events as fuel and air are injected into the combustion chamber: 3 In the combustion art, “premixed” refers to “a flame in which the oxidizer has been mixed with the fuel before it reaches the flame front. This creates a thin flame front as all of the reactants are readily available.” Available at https://en.wikipedia.org/wiki/Premixed_flame (last viewed December 10, 2016). 4 Appeal 2014-009114 Application 12/618,136 As described above, by arranging a coaxial jet in which the airflow envelopes the fuel, the fuel flows into the combustion chamber, mixes with the ambient coaxial air flow to become a premixed air fuel mixture having a proper stoichiometric mixture ratio, and then comes in contact with high-temperature gas and starts to bum. fnoue 5:51—58 (emphasis added), fnoue’s use of “then” shows this to be a description of events in sequence. Accordingly, fnoue not only does not teach away from the subject matter of claim 1, but affirmatively teaches that the coaxial flow of fuel surrounded (“enveloped,” id.) by air mixes after it enters the combustion chamber, in the manner described in claim 1. See also id. at 7:55—60. The portions of Mass and Glezer relied upon by Appellant as teaching away from an air/fuel stream that is substantially unmixed as it enters the combustion chamber are descriptions of the problems perceived in the background art. As discussed above, Inoue teaches low NOx emissions can still be achieved while reducing or minimizing premixing. See, e.g., Inoue at 7:60-63, 9:64—10:21, and Fig 17 at “C”. Thus, considering the combined teachings of all the references, one skilled in the art would not be led away from utilizing an unmixed air/fuel stream for the sake of achieving a desired NOx emission level. See Appeal Br. 11—12. Appellant next argues that there is (1) no suggestion of any unmixed state of a fuel stream inside an airstream and (2) no suggestion of air that acts as a heat sink such that combustion in the flame is followed by fast dilution. Appeal Br. 12. Regarding Appellant’s initial contention, we have already found, in agreement with the Examiner, that fnoue specifically discloses an unmixed state of a fuel stream inside an airstream. Accordingly, we are not persuaded of Examiner error on that point. 5 Appeal 2014-009114 Application 12/618,136 Regarding Appellant’s subsequent air-as-heat-sink argument is addressed below. Appellant’s third argument is that, contrary to the subject matter of claim 1, the prior art teaches that it is necessary to premix fuel and air to facilitate combustion with low nitrogen oxide emissions, citing Inoue 5:15— 21, 8:45—50, 9:30—40, 10:4-2 [sic, 21?]; Mass 2:20-24; Glaser 13. Appeal Br. 13. As discussed above, we agree with the Examiner that Inoue specifically teaches a coaxial fiiel/airstream in which the two are not substantially premixed as they are injected into the combustion chamber. Therefore, we are not persuaded by Appellant’s third argument, i.e., that it is necessary to premix, and as such, we are not persuaded that the Examiner erred in rejecting 1—6, 16, and 17. Appellant’s fourth argument is that claims 1—6, 16, and 17 require “combusting of a fuel with the air in a flame and post-flame reaction such that the air that surrounds and is substantially unmixed with the fuel acts as a heat sink in the thickness of the stream of fuel surrounded by the air is such that the combustion process in the flame is followed by a post-flame reaction that continues to bum as a diffusion flame.” Appeal Br. 14. In support of this argument Appellant asserts Inoue does not suggest any diffusion flame combustion, and Appellant further asserts that Inoue does not have any thickness of the fuel stream that is surrounded by air such that any diffusion flame results from the burners disclosed. “The air and fuel are premixed in [Inoue] such that no such diffusion occurs.” Id. “Moreover, the cited art fails to suggest that an airstream unmixed with a fuel stream surrounds the fuel stream to act as a heat sink.” Id. at 13. 6 Appeal 2014-009114 Application 12/618,136 The Examiner replies that Inoue explicitly teaches a diffusion flame, citing column 4, lines 4—11 and column 5, lines 43—48. Ans. 2. Inoue states that it is possible to ensure combustion stability under certain operating conditions by “causing the fuel to become locally over-concentrated in burning the fuel in the mechanism similar to the diffusion combustion which utilizes oxygen in the ambient air.” Inoue 4:7—11; see also id. 5:43—48. Inoue further describes the injection of gas and air into the combustion chamber by saying that the fuel flows within ambient coaxial airflow into the combustion chamber. Id. 5:52—53. As the Examiner found, Inoue discloses a fuel stream that is surrounded by air, and the result is a diffusion flame (which Inoue also specifically describes). As a consequence of the fuel being enveloped by air, the air is present to act as a heat sink and Appellant does not explain how this is not the case. We have already addressed Appellant’s assertion that Inoue only discloses premixed fuel and air, agreeing with the Examiner that this assertion is not accurate. Accordingly, Appellant’s fourth argument fails to persuade us of Examiner error in rejecting claims 1—6, 16, and 17. For the final argument in connection with claim 1 and in support of the patentability of claims 7 and 18, Appellant argues that Inoue’s Figures 4(a) and 4(b) do not support rejection of the pending claims as asserted by the Examiner. Appeal Br. 14—15. Appellant quotes from Inoue, column 5, lines 15—17, but fails to address the following sentence which, as pointed out above, demonstrates that Inoue affirmatively teaches that “it is possible to set the conditions from almost no mixture occurring in the passage to an almost complete premixed condition” “by adjusting the length of the air hole passage.” Inoue, 5:18—21. Accordingly, for reasons similar to those 7 Appeal 2014-009114 Application 12/618,136 described above, we are not persuaded that the Examiner erred in rejecting claims 1—6, 16, and 17.4 Claim 17. Appellant makes an additional argument in favor of claim 17. Appeal Br. 15. Claim 17 depends from claim 16, which in turn depends from claim 1. Claim 17 requires “[an] air supply nozzle and [a] fuel supply nozzle [that] are shaped such that any substantial turbulence as the air flows through the annular passages is avoided.” Appeal Br. 26 (Claims App.). Appellant asserts no such annular passage is disclosed or suggested in the cited art. Id. The Examiner responds that claim 17 includes no structure to limit turbulence and that the Appellant discloses the same structure as taught by Inoue in Figures 4a and 5a. Ans. 4. In certain circumstances functional language may be used to add limitations to an apparatus claim. See K-2 Corp. v. Salomon S.A., 191 F.3d 1356, 1363 (Fed. Cir. 1999); Wright Med. Tech., Inc. v. Osteonics Corp., 122 F.3d 1440, 1443-44 (Fed. Cir. 1997). In cases in which functional language adds a structural limitation to an apparatus claim, however, it does so because the language describes something about the structure of the apparatus rather than merely listing its intended or preferred uses. Textron Innovations Inc. v. American Eurocopter Corp. (Fed. Cir. 2012) (nonprecedential). Here the desired function (reducing or eliminating turbulence) is not accompanied by any specific structure to accomplish the desired goal, and therefore does not limit the claim. On the contrary, Appellant utilizes the same structure as disclosed by Inoue. Inoue Figure 12 4 Appellant's comments about Figure 17 of Inoue (Appeal Br. 15) are not directed to any particular claim language, and therefore do not apprise us of error. 8 Appeal 2014-009114 Application 12/618,136 shows smooth air flow and limited fuel mixing at the air/fuel boundary, forming “a good coaxial jet flow.” fnoue 7:54—55. Appellant’s discussion of fnoue’s angled air holes 57 (Appeal Br. 16) is not persuasive because the swirling described is not inconsistent with individual jets that are not turbulent even though the cumulative effect of several such jets is a swirling flow in the combustion chamber. In view of the forgoing we are not persuaded the Examiner erred in rejecting claim 17. Claims 3-5. Claims 3—5 depend from claim 1 adding that “the distance from a centerline of the gaseous fuel stream to a boundary between the fuel stream and the air stream is in the range of approximately” (1) 0.5 mm to approximately 5 mm (claim 3); (2) 0.5 mm to approximately 3mm (Claim 4) and (3) 0.2 mm to roughly 0.5mm (claim 5). Appeal Br. 24 (Claims App.). Appellant argues that Inoue suggests there should be no distance between the gaseous fuel stream centerline and an airstream because, according to Appellant, Inoue suggests premixing. Appeal Br. 17; Reply 10-11. We have already found above and are in agreement with the Examiner (Final Act. 6—7; Ans. 4) that Inoue discloses a nozzle where there is no substantial premixing until after the symmetric, coaxial flow exits the air hole 52. See Inoue 7:55-60 and Fig. 12. Appellant’s Reply asserts that Inoue does not say that “mixing only occurs after the fuel passes out of the air opening.” Reply 11. However, to be clear, claim 1 and those dependent from it do not prohibit any mixing in the passage, but rather that the air/fuel 9 Appeal 2014-009114 Application 12/618,136 streams exit the passage “in a substantially unmixed state.” Inoue’s Figure 12 shows that some mixing has begun to take place after the coaxial streams are combined and exit opening 52, but such mixing is limited and instead, the streams are illustrated as being “in a substantially unmixed state” upon such exiting under the broadest reasonable interpretation of that term. Thus, Figure 12 does not undermine the Examiner’s finding. Appellant argues that Delabroy discloses a fuel injector that guarantees atomization prior to its reaching the combustion chamber. Appeal Br. 17. Appellant argues that, “No separation of fuel to any boundary of gas is present in such an atomizer.” Id. Appellant summarizes stating: “No separation of fuel and air exist in the fuel air premixture disclosed by these references for there to be any such boundary as required by claims 3—5.” Reply 11. The Examiner responds that claims 3—5 do not specify where along the length of the centerline of the gaseous fuel flow the distance to the boundary between the fuel stream and the airstream is measured, i.e., inside the hole, at the fuel injection point or at the exit of the hole, and therefore “the distance as claimed was obvious over both fnoue and Delabroy at the time of the invention ... at least [at] one of these [measuring] points.” Ans. 4. The Examiner has the better argument. First, as discussed above, fnoue does indeed show a boundary between fuel and the surrounding air. Second, the Examiner is correct in that Claims 3—5 do not specify where the measurement is to be made, and Appellant is not persuasive that the gaseous fuel flow in both Delabroy and Inoue fail to achieve this distance. 10 Appeal 2014-009114 Application 12/618,136 Accordingly, Appellant has not apprised us of error in the Examiner’s rejection of claims 3—5. Claims 7—15. Appellant argues that claims 7—15 are patentable over the cited art for the same reasons that claim 1 was argued patentable. Appeal Br. 17—19. The Examiner responds that as apparatus claims, claims 7—15 must distinguish from the prior art in terms of structure, citing In re Schreiber, 128 F.3d 1473, 1477-78, (Fed. Cir. 1997); MPEP 2114. Ans. 4. Appellant asserts the cited art teaches that premixing of air and fuel is necessary to provide low production of nitrogen oxides. Appeal Br. 17—18. For the reasons discussed in connection with claim 1, these arguments do not persuade us that the Examiner erred in rejecting claims 7—15. Appellant asserts that the Examiner has given no weight to the functional limitations in claims 7—15. Reply 12—14. “[Ajpparatus claims cover what a device is, not what a device does.'” Hewlett-Packard Co. v. Bausch &Lomb Inc., 909 F.2d 1464, 1468 (Fed. Cir. 1990), and Appellant fails to identify any structure that enables its many asserted functional differences. As discussed above in connection with claim 1, Inoue teaches the claimed methods of operation, the same methods asserted as functional distinctions in claims 7—15, and Appellant fails to persuasively point out any structural differences between Inoue and the claims at issue. Accordingly, we are not persuaded that the Examiner erred in rejecting claims 7—15. Claim 13. Appellant argues that claim 13’s requirement that the “radial height of an exit of the air nozzle be between 20—30 times the exit diameter of the air nozzle” is not suggested by the cited art. Appeal Br. 19-20; Reply 14—16. 11 Appeal 2014-009114 Application 12/618,136 The Examiner answers that the diameter of the air nozzle (D in Figures 15(e) and 15(f)) is a result effective variable as shown by Inoue Figure 17 which therefore “can be optimized through routine experimentation.” Ans. 5. We note particularly Inoue’s Figures 15(e) and 15(f) which show air nozzles of different diameters as well as the discussion of the consequences of adjusting that diameter on NOx emissions. See Inoue 9:26-40. Appellant suggests that Inoue (9:30-37) discloses a disadvantage to a large diameter air nozzle, namely, a longer distance is required for the air and fuel to mix. Appeal Br. 19; Reply 15. Inoue does say that large air nozzle diameters lead to increased NOx, but also that there is a trade off in reduced manufacturing costs. Inoue 9:26-40. Appellant also argues that Inoue does not teach a size differential between the fuel nozzle and the air nozzle. Appeal Br. 19—20. We find that the discussion in Inoue of varying the size of the air nozzle diameter with no mention of alteration of the fuel nozzle (Inoue 9:26-40) suggests varying the ratio between the two, and this would not cause Inoue to fail to function or achieve its improvement, because, as we found above, Inoue teaches that mixing can take place in the combustion chamber. Specifically, Inoue’s Figure 12 shows no substantial mixing even after the coaxial jet of fuel and enveloping air have arrived “at a downstream side of an air outlet.” Inoue 7:56—57. Additionally, as the Examiner points out, Delabroy discloses a fiiel to air nozzle diameter ratio of over 30. See Ans. 5. Finally, Appellant argues that Inoue, modified as suggested by the Examiner, not only would not operate according to Inoue’s principles, but also would not achieve Inoue’s compact mixing advantage, citing Inoue 10:11—21. Appeal Br. 20; Reply 15. This argument is not convincing because Inoue’s advantage is achieved through “one embodiment of the 12 Appeal 2014-009114 Application 12/618,136 present invention” (Inoue 10:12), and Inoue discloses that mixing can occur in the combustion chamber, as discussed above. Thus, Inoue discloses achieving its advantage without substantial premixing of the air and fuel. In view of the foregoing, we are not persuaded that the Examiner erred in rejecting claim 13. Claim 18. Appellant urges claim 18 is independently patentable for reasons similar to those advanced in connection with claims 1 and 7. Appeal Br. 20—21; Reply 16—18. These arguments are not persuasive for the reasons set out above. Appellant makes additional arguments for the separate patentability of claim 18. Id. All of those arguments rely on the premise that Inoue does not teach a burner that supplies a fuel stream surrounded by an airstream in a substantially unmixed condition as it arrives in a combustion chamber. As we have discussed above, Inoue does not support Appellant’s position. For example, Inoue discloses in connection with Figure 1: Although the diameter of the air holes 52 and 57 is small, it is preferable to form the holes in such size that when fuel injected from the fuel nozzles 55 and 56 passes through the air holes 52 and 57, a fuel jet and an [sic] circular flow of the air enveloping the fuel jet can be formed accompanying the ambient air. Inoue 4:60—65 (emphasis added). While Inoue does suggest that some premixing can occur within the air passage upstream of the combustion chamber, Inoue also says this is adjustable. “[B]y adjusting the length of the air hole passage, it is possible to set the conditions from almost no mixture occurring in the passage to an almost complete premixed condition.” Id. 5:18—21. Inoue describes the fuel injection process in detail stating “the fuel flows into the combustion chamber, mixes within the ambient coaxial 13 Appeal 2014-009114 Application 12/618,136 airflow to become a premixed air fuel mixture having a proper stoichiometric mixture ratio, and then comes in contact with a high- temperature gas and starts to bum.” Id. 5:52—57. Thus, the Examiner correctly finds that Inoue teaches a device that has all the same stmctural features as recited in claim 18. Claim 18 describes no stmctural difference from Inoue which inherently provides air to act as a heat sink during the combustion process. Schreiber, 128 F.3d at 1478. Accordingly, we are not persuaded that the Examiner erred in his rejection of claim 18. DECISION For the above reasons, the Examiner’s rejection of claims 1—18 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). See 37 C.F.R. § 1.136(a)(l)(iv). AFFIRMED 14 Copy with citationCopy as parenthetical citation