Ex Parte Nicoletti et al

Patent Trial and Appeal Board

Nov 16, 2016

12688589 (P.T.A.B. Nov. 16, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/688,589 01115/2010
56885 7590 11/18/2016
Evoqua Water Technologies LLC
U0105
Intellectual Property Department
10 Technology Drive
Lowell, MA 01851
FIRST NAMED INVENTOR
Richard Nicoletti
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.
2009P00712US01 3924
EXAMINER
VISONE, THOMAS J
ART UNIT PAPER NUMBER
1651
NOTIFICATION DATE DELIVERY MODE
11/18/2016 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):
docketing@LALaw.com
CKent@LALaw.com
intellectualproperty@evoqua.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RICHARD NICOLETTI and LEWIS NAYLOR
Appeal 2015-00413 8
Application 12/688,589
Technology Center 1600
Before DONALD E. ADAMS, JEFFREY N. FREDMAN, and
JOHN E. SCHNEIDER, Administrative Patent Judges.
FREDMAN, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal 1 under 35 U.S.C. § 134 involving a method of
sludge biodrying. The Examiner rejected the claims as obvious. We have
jurisdiction under 35 U.S.C. § 6(b). We reverse.
Statement of the Case
Background
"Composting is a biological process of decomposition. Given
adequate time and the proper environmental conditions, microorganisms tum
raw organic matter into stabilized products" (Spec. 1: 16-18).
1 Appellants identify the Real Party in Interest as Evoqua Water
Technologies LLC (see App. Br. 4).
Appeal 2015-00413 8
Application 12/688,589
The Claims
Claims 1, 4, 5, 7-18, 20-30, and 56-58 are on appeal. Claim 1 is
representative and reads as follows (emphasis added):
1. A method of sludge biodrying comprising:
providing a non-cellulosic first material consisting of one of
finished compost, dried noncomposted undigested sewage sludge
having a dry solids content of between about 50% and about 95%,
and a combination thereof;
providing a compostable sludge consisting essentially of
undigested sewage sludge;
forming a mixed sludge consisting essentially of the first
material and the compostable sludge mixed in a ratio of between
about 2: 1 and about 1 :2 by weight when the first material consists
of finished compost and in a ratio of between about 1 : 1 and about
1 :2 by weight when the first material consists of dried non-
composted undigested sewage sludge, the mixed sludge having a
C:N ratio of less than about 15:1 by weight;
introducing the mixed sludge into a composting bay;
aerating the mixed sludge in the composting bay;
providing conditions for the mixed sludge to be maintained
aerobically in the composting bay;
mechanically agitating the mixed sludge in the composting
bay;
biodrying the mixed sludge with heat produced by a
digestive action of microorganisms within the composting bay for
a period of time sufficient to form a compost having a dry solids
content of between about 50% and about 100% and a C:N ratio
less than that of the mixed sludge introduced into the composting
bay;
maintaining pH, temperature, and moisture content of the
mixed sludge within ranges which suppress the formation of
volatile ammonia from ammonium in the mixed sludge throughout
the biodrying of the mixed sludge;
removing the compost from the composting bay; and
recycling a portion of the compost as the finished compost.
Appeal 2015-00413 8
Application 12/688,589
The Issues
A. The Examiner rejected claims 1, 5, 7, 20, and 56-58 under 35 U.S.C.
§ 103(a) as obvious over Jung, 2 Hagen, 3 Krueger, 4 Moss, 5 WSU, 6 and
Parvaresh 7 (Ans. 2---6).
B. The Examiner rejected claim 4 under 35 U.S.C. § 103(a) as obvious
over Jung, Hagen, Krueger, Moss, WSU, Parvaresh and Richard8 (Ans. 6-
7).
C. The Examiner rejected claims 8-14 under 35 U.S.C. § 103(a) as
obvious over Jung, Hagen, Krueger, Moss, WSU, Parvaresh, and
Kajitvichyanukul9 (Ans. 8-9).
2 Jung et al., US 4,255,389, issued l\1ar. 10, 1981 ("Jung").
3 Hagen et al., US 5,387,036, issued Feb. 7, 1995 ("Hagen").
4 Krueger et al., "Where's The Bulk?" Biosolids Composting Without The
Use Of Bulking Materials At The San Angelo Water Utilities' Kickapoo
Composting Facility, 1-17 (2006) ("Krueger").
5 Moss, W., US 2006/0283220 Al, published Dec. 21, 2006 ("Moss").
6 Compost Fundamentals, https://web.archive.org/web/20071104075321/
http://whatcom.wsu.edu/ ag/ compost/fundamentals/ consideration_reclamatio
n.htm, 1-3 (2008) (accessed Apr. 21, 2014) ("WSU").
7 Parvaresh et al., Determination of Carbon/Nitrogen Ratio and Heavy
Metals in Bulking Agents Used for Sewage Composting, 33 Iranian J. Public
Health 20-23 (2004).
8 Richard, T., Municipal Solid Waste Composting: Physical Processing,
http://compost.css.comell.edu/MSWFactSheets/msw.fs I .html, 1---6 (2004)
(accessed May 31, 2012) ("Richard").
9 Kajitvichyanukul et al, Landfilling Engineering and Management, in
Handbook of Environmental Engineering, Volume 7 415--442 (Wang et al.,
Ed.s) (2008) ("Kajitvichyanukul").
Appeal 2015-00413 8
Application 12/688,589
D. The Examiner rejected claim 11 under 35 U.S.C. § 103(a) as obvious
over Jung, Hagen, Krueger, Moss, WSU, Parvaresh, Kajitvichyanukul, and
Le 10 (Ans. 9--11 ).
E. The Examiner rejected claims 15 and 16 under 35 U.S.C. § 103(a) as
obvious over Jung, Hagen, Krueger, Moss, WSU, Parvaresh, Gorby, 11 and
Inoue 12 (Ans. 11-12).
F. The Examiner rejected claim 17 under 35 U.S.C. § 103(a) as obvious
over Jung, Hagen, Krueger, Moss, WSU, Parvaresh, and Lavelle 13 (Ans. 12-
13).
G. The Examiner rejected claim 18 under 35 U.S.C. § 103(a) as obvious
over Jung, Hagen, Krueger, Moss, WSU, Parvaresh, Lavelle, and Bellamy14
(Ans. 13-14).
H. The Examiner rejected claims 21-24 under 35 U.S.C. § 103(a) as
obvious over Jung, Hagen, Krueger, Moss, WSU, Parvaresh, and Cole 15
(Ans. 14--15).
I. The Examiner rejected claim 25 under 35 U.S.C. § 103(a) as obvious
over Jung, Hagen, Krueger, Moss, WSU, Parvaresh, and Waldenville 16 (Ans.
16).
10 Le, S., US 2005/0077236 Al, published Apr. 14, 2005 ("Le").
11 Gorby, H, US 2,947,619, issued Aug. 2, 1969 ("Gorby").
12 Inoue, S., US 5,354,349, issued Oct. 11, 1994 ("Inoue").
13 Lavelle, IV, W., US 5,558,686, issued Sept. 24, 1996 ("Lavelle").
14 Bellamy, W., US 3,462,275, issued Aug. 19, 1969 ("Bellamy").
15 Cole et al., US 5,906,436, issued May 25, 1999 ("Cole").
16 Waldenville, D., US 3,845,939, issued Nov. 5, 1974 ("Waldenville").
Appeal 2015-00413 8
Application 12/688,589
J. The Examiner rejected claims 26-30 under 35 U.S.C. § 103(a) as
obvious over Jung, Hagen, Krueger, Moss, WSU, Parvaresh, and Cruson 17
(Ans. 16-18).
Because the same issues are dispositive for all of these rejections, and
all of the rejections rely upon Jung, Hagen, Krueger, Moss, WSU, and
Parvaresh, we will consider them together.
The Examiner finds that Jung and Hagen teach the required
composting methods (Ans. 2-3) and Krueger teaches the ratio of materials
required by claim 1 (Ans. 4). The Examiner finds:
Parvaresh teaches that the C:N ratio of sludge is normally in the
range of 10: 1to20:1. (Page 21 ). As such, Parvaresh serves as
evidence that a C:N ratio of between about 8: 1 and less than
about 15: 1 by weight would be an inherent property of the
mixed sludge when introduced into the composting bay and
could be readily maintained in the composting bay.
(Ans. 5). The Examiner also finds it obvious to optimize the process
"because WSU, in a similar method, teaches that nitrogen loss, during
aerobic fermentation, can be advantageously suppressed through controlling
C:N ratio, pH, moisture content, aeration, temperature, and/or the form of
nitrogen compounds at the start of the composting materials" (Ans. 6).
Appellants contend the "C:N ratio of the recycled compost in Jung is
not disclosed, and thus there is no teaching that the mixture of sewage
sludge and compost as disclosed in Jung would have any particular C:N
ratio" (App. Br. 9). Appellants also contend the "disclosures of Parvaresh
17 Cruson et al., US 2005/0061044 Al, published Mar. 24, 2005 ("Cruson").
Appeal 2015-00413 8
Application 12/688,589
and WSU which would have lead one of ordinary skill in the art away from
the method of independent claim 1 are not contradicted by any other
reference cited by the Examiner" (App. Br. 10).
The issue with respect to this rejection is: Does the evidence of
record support the Examiner's conclusion that the prior art inherently
teaches or otherwise suggests a biodrying process with "the mixed sludge
having a C:N ratio of less than about 15: 1 by weight" as recited in claim 1?
Findings of Fact
1. Jung teaches "a method which a preliminary mixture is formed
from the material to be composted and sludge compost taken from the rotary
drum" in order "to enable a hygienically pure and spreadable humus
fertilizer to be obtained" (Jung 2: 11-17).
2. Krueger teaches:
Class B anaerobically digested biosolids arrive at the compost
facility \vith a moisture content of approximately 80%.
Research revealed that aerobic composting requires a moisture
content between 50% to 30%. Blending the incoming feedstock
with finished compost was chosen as the method to adjust the
moisture content and also seed the incoming material with the
compost organisms. The facility constructs the windrows using
a ratio of 1 part digested biosolids to 1 to 2 parts finished
compost.
(Krueger 6).
3. Krueger teaches that "four experimental rows were formed.
Each windrow contained a total of approximately 60 cubic yards. The blend
ratios of finished compost to anaerobically digested biosolids were set at 1: 1,
2:1, 3:1and 4:1, respectively" (Krueger 12).
Appeal 2015-00413 8
Application 12/688,589
4. Parvaresh teaches "[ s ]ludge normally has C/N ratios in range of
10 to 20. To offset an imbalance in the C/N ratio, compost amendments
usually are necessary. Typical compost amendments include materials with
high C/N ratio such as 1) sawdust, 2) leaves, 3) wood chips, 4) rice hulls and
5) old compost" (Parvaresh 21, col. 1 ).
5. Parvaresh teaches a "biodegradable carbon-nitrogen (C/N)
weight ratio of 25 to 35 has been found to provide optimal conditions for
compost process. Lower C/N ratio increases the loss of nitrogen by leaching
(e.g. nitrate mobilization) and ammonia volatilization" (Parvaresh 21, col.
1 ).
6. WSU teaches "[ n ]itrogen loss as ammonia in aerobic
composting is affected by the C:N ratio, pH, moisture content, aeration,
temperature, and the form of nitrogen compounds at the start of the
composting materials" (WSU 1 ).
7. WSU teaches
a C:N ratio in the raw compostable material of around 30: 1 is
best for good composting is satisfactory for tying up or binding
nitrogen in biological cell material, preventing its escape. To
avoid nitrogen loss, optimum ratios of C:N range from 26 to as
high as 3 8 depending on conditions. A ratio of available carbon
to available nitrogen of about 30 or more permits minimum loss
of nitrogen.
(WSU 1).
8. Cole teaches:
It is well known in the art that the preferred carbon-to-nitrogen
ratio for composting is about 30 parts carbon for each part
nitrogen by weight (30: 1 ). At lower ratios the excess nitrogen
supplied will be lost in the form of mobile nitrogen compounds,
Appeal 2015-00413 8
Application 12/688,589
such as ammonia gas, and can cause undesirable odors or other
environmental problems.
(Cole 1 :26-31 ).
Principles of Law
"Inherency ... may not be established by probabilities or possibilities.
The mere fact that a certain thing may result from a given set of
circumstances is not sufficient." MEHL/Biophile Int 'l. Corp. v. Milgraum,
192 F.3d 1362, 1365 (Fed. Cir. 1999).
"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).
Analysis
While Jung, Hagen, and Krueger reasonably suggest the limitations of
claim 1 other than the C:N ratio required for the mixed sludge, the Examiner
has not established that the composition of Krueger inherently comprises a
C: N ratio of less than about 15: 1 in mixed sludge nor has the Examiner
provided a reason, consonant with the prior art, for selecting a C:N ratio of
less than about 15: 1 in mixed sludge.
We recognize, but find unpersuasive, the Examiner's finding that
Krueger's mixed sludge "is identical, in preparation and thus composition, to
the mixed sludge of the instant method" (Ans. 18). Claim 1 recited a
combination of undigested sewage sludge with either finished compost or
Appeal 2015-00413 8
Application 12/688,589
dried non-composted undigested sewage sludge in ratios between 2: 1 to 1 :2
by weight where the final C:N ratio is less than about 15:1 by weight.
While Krueger teaches a blend of 1 part digested biosolids to 1 to 2
parts finished compost (FF 2), Krueger does not teach the use of undigested
sewage sludge but rather begins with "Class B anaerobically digested
biosolids" (FF 2). Thus, the evidence does not support the Examiner's
position that Krueger's starting materials are identical to those recited in
claim 1.
Even if Krueger taught the use of undigested sewage sludge, we are
not persuaded by the Examiner's reliance on Parvaresh that the undigested
sewage sludge would inherently demonstrate C:N ratios within the scope of
the claim because Parvaresh teaches that sludge "normally has C/N ratios in
range of 10 to 20" (FF 4). This means that while it may sometimes be the
case that the sludge will fall within the scope of the claim, sometimes the
C:N ratio will be 16 to 20 to 1, not "less than about 15:1" as required by
claim 1, and therefore sludge does not necessarily or inherently have the
required C:N ratio. MEHL, 192 F.3d at 1365. See PAR Pharmaceutical,
Inc. v. TWI Pharmaceuticals, Inc. 773 F.3d 1186, 1195 (Fed Cir. 2014).
("[T]he concept of inherency must be limited when applied to obviousness,
and is present only when the limitation at issue is the 'natural result' of the
combination of prior art elements.")
We also agree with Appellants that the "disclosures of Parvaresh and
WSU which would have lead one of ordinary skill in the art away from the
method of independent claim 1 are not contradicted by any other reference
cited by the Examiner" (App. Br. 10).
Appeal 2015-00413 8
Application 12/688,589
In particular, Parvaresh discourages the use of C:N ratios below 25
because "[l]ower C/N ratio increases the loss of nitrogen by leaching ... and
ammonia volatilization" (FF 5). WSU discourages the use of C:N ratios
below 26 to avoid nitrogen loss (FF 7) and Cole discourages C:N ratios
below 30: 1 because at "lower ratios, the excess nitrogen supplied will be lost
in the form of mobile nitrogen compounds, such as ammonia gas, and can
cause undesirable odors and other environmental problems" (FF 8).
Thus, the only evidence of record, cited by the Examiner, establishes
that C:N ratios below 25: 1 increase nitrogen loss, increase ammonia
volatilization and cause undesirable odors (FF 5, 7, 8). We agree with
Appellants that these teachings would reasonably discourage the ordinary
artisan from selecting a C:N ratio of about 15: 1 or less for sludge processing
as recited in claim 1.
Conclusion of Law
The evidence of record does not support the Examiner's conclusion
that the prior art inherently teaches or otherwise suggests a biodrying
process with "the mixed sludge having a C:N ratio of less than about 15:1 by
weight" as recited in claim 1.
SUMMARY
In summary, we reverse the obviousness rejections.
REVERSED