Ex Parte Powell et al

Patent Trial and Appeal Board

Dec 28, 2012

11648411 (P.T.A.B. Dec. 28, 2012)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
11/648,411 12/29/2006 Duane J Powell PowellUS24ANP 3812
25287 7590 12/31/2012
GEORGE LAWRENCE BOLLER
SUITE 7
17199 N LAUREL PARK DR
LIVONIA, MI 48152
EXAMINER
NGUYEN, NGOC YEN M
ART UNIT PAPER NUMBER
1734
MAIL DATE DELIVERY MODE
12/31/2012 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 DUANE J. POWELL,
ROBERT B. BEBOW, and BRENT J. HARDMAN
____________

Appeal 2011-010535
Application 11/648,411
Technology Center 1700
____________

Before DEBORAH KATZ, GEORGE C. BEST, and
GRACE KARAFFA OBERMANN, Administrative Patent Judges.

OBERMANN, Administrative Patent Judge.

DECISION ON APPEAL
The named inventors (collectively “Appellant”) appeal under 35
U.S.C. § 134 from the final rejection of claims 2-9 and 10-19 directed to a
method for the continuous manufacture of higher-strength, lower-salt,
aqueous sodium hypochlorite bleach. We have jurisdiction under 35
U.S.C. § 6(b).
We REVERSE.
Appeal 2011-010535
Application 11/648,411

2
STATEMENT OF THE CASE
Claim 10 is illustrative of the subject matter on appeal:
10. A method for the continuous manufacture of higher-strength,
lower-salt, aqueous sodium hypochlorite bleach from lower-strength
aqueous sodium hypochlorite bleach that has some sodium hydroxide and
that is essentially free of sodium chloride (salt) crystals, the method
comprising:

A) in a tank that has a bottom wall and a sidewall extending upward
from the bottom wall to bound an interior of the tank, sustaining a
continuous reaction that produces a slurry of higher-strength bleach and
solid salt crystals by introducing into the tank interior in a generally upward
direction

a solution comprising a mixture of the lower-strength aqueous
sodium hypochlorite bleach that has some sodium hydroxide and is
essentially free of salt crystals, aqueous sodium hydroxide solution
having a concentration by weight within a range from about 45% to
about 51 %, and a recycle solution,

and introducing into the tank interior chlorine in gas and/or
liquid phase that may or may not include inerts,

so that the mixture and chlorine begin to mix with slurry
already in the tank at a level above the bottom wall of the tank;

B) continuously withdrawing slurry from the tank at a level below the
location where the mixture and the chlorine begin to mix with slurry already
in the tank;

C) cooling a first portion of the withdrawn slurry and using the cooled
first portion as the recycle solution;

D) processing a second portion of the withdrawn slurry to separate
substantially all salt crystals from the residual liquid; and

E) recovering the residual liquid as the higher-strength lower-salt,
aqueous sodium hypochlorite bleach.
Appeal 2011-010535
Application 11/648,411

3
THE REJECTIONS
Appellant seeks our review of the following rejections, which we refer
to by number in our analysis:
Rejection 1. Claims 2-7 and 10 stand rejected under 35 U.S.C. § 112,
first paragraph;
Rejection 2. Claims 2-7 and 10-19 stand rejected under 35 U.S.C.
§ 112, second paragraph;
Rejection 3. Claims 11 and 13 stand rejected under 35 U.S.C.
§ 102(b) as anticipated by Dugua (U.S. 4,780,303 issued Oct. 25, 1988);
Rejection 4. Claims 2-7 and 10-19 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Dugua; and
Rejection 5. Claims 2-7 and 10-11 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Verlaeten (U.S. 4,428,918 issued Jan. 31,
1984) in view of Dugua.
ANALYSIS
Rejection One: Lack of Written Description
The Examiner finds that the phrase “generally upward direction” in
claim 10 lacks support in the written description. Ans. 4.1 Appellant
responds that an ordinary artisan “would recognize that the flow entering
through the upright funnel 39 would necessarily be in a ‘generally upward
direction.’” App. Br. 13 (citing Spec. Fig. 1 and 12:8-15). The Examiner
agrees that “‘an upright funnel’ is disclosed,” but proposes a number of
scenarios that, in the Examiner’s view, might result in a flow direction other

1 Our analysis refers to the Examiner’s Answer mailed February 16, 2010
(“Ans.”), the Appeal Brief filed November 29, 2010 (“App. Br.”), and the
Reply Brief filed April 18, 2011 (“Reply Br.”).
Appeal 2011-010535
Application 11/648,411

4
than generally upward. Ans. 12-13. These findings are speculative. It is
unclear to us, and the Examiner does not adequately explain, why the figure
and written description advanced by Appellant fail to support the disputed
claim term. See ibid.
On this record, we reverse Rejection One.
Rejection Two: Indefiniteness of the Term “Slurry”
The Examiner finds unclear the term “slurry” in claim 10 and
questions “how the slurry being ‘produced’ can be present before the
reactants ‘begin to mix.’” Ans. 5. Claim 10 is plainly directed to a
“continuous process at a time after start-up when a slurry of higher-strength
bleach and solid salt crystals is present and new slurry is being continually
produced.” App. Br. 14; see Spec. ¶ [0022] (describing continuous process
after start-up).
On this record, we reverse Rejection Two.
Rejection Three: Anticipation by Dugua
Claims 11 and 12 require, inter alia, a mixture of three components,
namely, lower-strength aqueous sodium hypochlorite bleach, aqueous
sodium hydroxide solution, and recycle solution. See Claim 11(A)(i) and
claim 12 (A)(i) (imposing further limitations on the lower-strength aqueous
sodium hypochlorite bleach and the aqueous sodium hydroxide solution).
The mixture is introduced into a tank along with chlorine “to sustain a
continuous reaction that produces a slurry of higher-strength bleach and
solid salt crystals in the tank interior.” Id. at (A)(ii). The claims further
require “continuously withdrawing slurry from the tank interior at a level
vertically below locations where the mixture and the chlorine are introduced
into the tank interior.” The claims specify that “higher-strength, lower-salt,
Appeal 2011-010535
Application 11/648,411

5
aqueous sodium hypochlorite bleach” is created as a “residual liquid” by
“separating out substantially all salt crystals” from the withdrawn slurry.
Dugua discloses a conduit 44, which removes precipitated sodium
chloride from the reaction chamber. Ans. 6-7 (citing Dugua 3:57-58; 4:29-
35); see Dugua Fig. (depicting conduit 44). Regarding the material removed
via conduit 44, Dugua states “that there is a very small sodium hypochlorite
retention in the sodium chloride after subsequent filtration.” Dugua 4:33-35.
From this disclosure, the Examiner determines that a “filtrate” is recovered
from conduit 44 and it comprises “higher-strength, lower-salt aqueous
sodium hypochlorite bleach.” Ans. 7; see Ans. 17.
Dugua is silent regarding the composition and use of any filtrate
recovered from conduit 44. Dugua 4:29-35. We agree with Appellant that
sodium hypochlorite product solution is recovered elsewhere in Dugua’s
process (via conduit 46) at a location that is well above the locations where
the mixture and chlorine are introduced into the tank. App. Br. 15-16;
Dugua Fig. (depicting chlorine feed 42, caustic feed 43, lower-strength
bleach feed 32, and recycle solution feed at extreme bottom of tank 40) and
3:58-60 (“the sodium hypochlorite product solution is recovered from
conduit 46”). We further agree with Appellant that the proximity of conduit
44 to caustic feed 43 suggests that any filtrate recovered from conduit 44
would contain concentrations of sodium hydroxide higher than those of the
initial “lower-strength aqueous sodium hypochlorite bleach.” App. Br. 15-
16; Dugua Fig. The evidence fails to support the Examiner’s finding that
“filtrate” recovered from conduit 44 comprises “higher-strength, lower-salt
aqueous sodium hypochlorite bleach” as specified in claims 11 and 12.
Ans. 7.
Appeal 2011-010535
Application 11/648,411

6
On this record, we reverse Rejection Three.
Rejection Four: Obviousness over Dugua
The Examiner fails to articulate reasoning with a rational
underpinning to support a conclusion of obviousness. Ans. 7-9; see In re
Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006) (cited approvingly in KSR Int’l
Co., 550 U.S. 398, 418 (2007)). As explained above, Dugua does not
disclose the composition or use of any filtrate recovered from conduit 44,
and the proximity of caustic feed 43 to conduit 44 suggests that any filtrate
recovered would include high concentrations of sodium hydroxide. See
supra; App. Br. 18. Appellant argues, and we agree, that Dugua nowhere
suggests recovering higher-strength, lower-salt aqueous sodium hypochlorite
product from conduit 44. App. Br. 17-18.
On this record, we reverse Rejection Four.
Rejection Five: Obviousness over Verlaeten in view of Dugua
Appellant’s claims require withdrawing slurry from a location “below
the location where the mixture and the chlorine begin to mix with slurry
already in the tank.” Claim 10; see claims 11, 12 (slurry is withdrawn “at a
level vertically below locations where the mixture and the chlorine are
introduced into the tank interior”). By contrast, in Verlaeten’s process,
slurry “is withdrawn from the top of the reaction chamber” well above the
mixing point of the mixture and chlorine. Ans. 11 (mixing point in
Verlaeten is “around the middle part of axial column 2”); Verlaeten Fig.2

2 The Examiner also finds that Verlaeten “does not disclose the use of a
lower strength aqueous sodium hypochlorite” but reasons that, in view of
Dugua, it would have been obvious to modify Verlaeten’s process to do so.
Ans. 12. Appellant does not dispute that finding. App. Br. 22.
Appeal 2011-010535
Application 11/648,411

7
In the Examiner’s view, it would have been obvious to withdraw
Verlaeten’s slurry “from any point as long as such point is within the annular
zone (7).” Id.; see Verlaeten Fig. The Examiner finds that Verlaeten
contains “no requirement that the pipe (6),” which withdraws slurry, “must
be at the top” of the reaction chamber. Ans. 18. The Examiner further finds
that Verlaeten “fairly suggests that the concentration of the suspension in
annular chamber (7) is uniform, thus, the same slurry, with [the] same
sodium hypochlorite strength, would be removed from the annular chamber
(7) regardless of the location of the pipe (6).” Id. (citing Verlaeten 6:38-43)
(disclosing strength of sodium chloride suspended in aqueous solution of
sodium hypochlorite in annular chamber (7)). On that basis, the Examiner
finds that moving the location of pipe (6) (and thus the location of slurry
withdrawal) to a point below the mixing point of the reactants would have
been an obvious modification that would not have altered the operation of
the device. Id. (citing In re Japikse, 181 F.2d 1019 (CCPA 1950)).
Appellant disagrees, arguing that “Verlaeten deliberately strives to
keep the suspension of crystals, and especially larger ones that are desired
for filtering, near the top of zone 7.” App. Br. 21 (emphasis omitted). On
this point, Verlaeten states: “The upward velocity of the gas in the reaction
chamber should be sufficient to ensure upward displacement of the
suspension of crystals in the reaction chamber up to the point where it is
drawn-off from it.” Id. (quoting Verlaeten 3:32-35). In Verlaeten, “the
velocity of the gas is controlled to avoid allowing the largest crystals of
sodium chloride to settle at the bottom of the reaction chamber.” Id. (citing
Verlaeten claim 9) (emphasis omitted); Verlaeten 3:42-46. The Examiner
finds that Verlaeten’s claims “do not require the step of ‘recovering’ the
Appeal 2011-010535
Application 11/648,411

8
concentrated aqueous solution of alkali metal hypochlorite (the location of
pipe (6)), to take place at the upper part of the reaction chamber,” Ans. 19,
yet Verlaeten’s claims in fact specify “continuously recovering the
suspension by drawing off out of the upper part of the reaction chamber.”
Verlaeten claims 1, 11 (independent claims); see App. Br. 22.
The evidence supports Appellant’s view that the location of pipe (6) is
important in Verlaeten’s process and that is why Verlaeten’s claims specify
that slurry is withdrawn from “the upper part of the reaction chamber.”
Verlaeten claims 1, 11 (suspension is drawn off “out of the upper part of the
reaction chamber”) and 3:32-4:8; Reply Br. 8 (“[c]rystal size is important to
filtering and Verlaeten unambiguously teaches withdrawing slurry to be
filtered at the top of zone 7 where the largest crystals are”). The Examiner’s
finding that Verlaeten suggests “no requirement that the pipe (6) must be at
the top” of the chamber is erroneous, Ans. 18, and the Examiner’s reliance
on In re Japikse, supra, is misplaced.
On this record, we reverse Rejection Five.
CONCLUSION
For the above reasons, we reverse the rejections of claims 2-7
and 10-19.
REVERSED

sld