Ex Parte Ryan et al

Patent Trial and Appeal BoardOct 12, 2016

13094496 (P.T.A.B. Oct. 12, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/094,496 04/26/2011 28395 7590 10/14/2016 BROOKS KUSHMAN P.C./FG1L 1000 TOWN CENTER 22NDFLOOR SOUTHFIELD, MI 48075-1238 FIRST NAMED INVENTOR Patrick Ryan 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. 83192731 1759 EXAMINER AKRAM, IMRAN ART UNIT PAPER NUMBER 1725 NOTIFICATION DATE DELIVERY MODE 10/14/2016 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@brookskushman.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte PATRICK RYAN, JEFFERY WHITE, and MARK WHERRETT Appeal2015-004611 Application 13/094,496 Technology Center 1700 Before JEFFREY T. SMITH, GEORGE C. BEST, and JULIA HEANEY, Administrative Patent Judges. BEST, Administrative Patent Judge. DECISION ON APPEAL The Examiner finally rejected claims 1-31 of Application 13/094,496 under 35 U.S.C. Â§ 103(a) as obvious. Final Act. (May 6, 2014). Appellants 1 seek reversal of these rejections pursuant to 35 U.S.C. Â§ 134(a). We have jurisdiction under 35 U.S.C. Â§ 6. For the reasons set forth below, we REVERSE. 1 DTE Energy is identified as the real party in interest. Appeal Br. 2. Appeal2015-004611 Application 13/094,496 BACKGROUND The '496 Application describes an apparatus for converting volatile organic compounds (VOC) into energy. Spec. 1. In particular, the apparatus concentrates a dilute hydrocarbon gas into a gaseous or liquid concentrated fuel, which is then reformed and converted into energy through an energy conversion device such as a fuel cell. Id. Claim 1 is representative of the '496 Application's claims and is reproduced below: 1. An energy producing device receiving a dilute gaseous voe stream comprising: a concentrator that concentrates the dilute gaseous voe stream into concentrated voe fuel; a sweep gas injector injecting sweep gas into the concentrator to remove the concentrated voe fuel; a reformer converting said sweep gas and concentrated voe fuel into reformate; and an energy conversion device consuming said reformate to produce energy. Appeal Br. Claims App. 1 (emphasis added). REJECTIONS On appeal, the Examiner maintains the following rejections: 1. Claims 1-18 and 29-31 are rejected under 35 U.S.C. Â§ 103(a) as unpatentable over the combination of Maclean2 and Andersen. 3 Final Act. 3. 2 US 4,687,498, issued August 18, 1987. 3 US 6,235,262 Bl, issued May 22, 2001. 2 Appeal2015-004611 Application 13/094,496 2. Claim 19 is rejected under 35 U.S.C. Â§ 103(a) as unpatentable over the combination of Maclean, Andersen, and Ryan. 4 Final Act. 5. 3. Claim 21 is rejected under 35 U.S.C. Â§ 103(a) as unpatentable over the combination of Maclean, Andersen, and Van Egmond. 5 Final Act. 5. 4. Claims 20 and 22-28 are rejected under 35 U.S.C. Â§ 103(a) as unpatentable over the combination of Maclean, Andersen, and Cohn.6 Final Act. 6. DISCUSSION Appellants argue for reversal of Rejections 1--4 on the basis of claim l's limitations. See Appeal Br. 2--4. We limit our discussion accordingly. Dependent claims 2-31 stand or fall with claim 1. 37 C.F.R. Â§ 41.37(c)(l)(iv). In rejecting claim 1, the Examiner found that Maclean describes a PSA Unit 2 that receives a gaseous stream 1 (column 4, lines 11-14) and adsorbs methane (see claim 2); a purge gas injector for desorbing the methane to form concentrated methane stream 3 (column 5, lines 23-28); and a reformer for reforming the methane stream 3 into reformate (column 4, lines 14-16). Methane is a VOC. Maclean discloses the use of pressure energy of gas to produce power in a turbine (see claim 26) but not that the reformate is sent through the turbine. Andersen-in an invention for the production of hydrogen via reformation- discloses connecting the reformate output line 3 to a gas turbine 4 US 2003/0202914 Al, published October 30, 2003. 5 US 2004/0102669 Al, published May 27, 2004. 6 US 5,852,927, issued December 29, 1998. 3 Appeal2015-004611 Application 13/094,496 20 so as to depressurize the hydrogen and produce electrical power in the turbine (column 2, lines 26-29). Final Act. 3--4. Based upon these findings, the Examiner concluded that "[i]t would have been obvious to one having ordinary skill in the art at the time of invention to provide the reformate stream of Maclean to the turbine of Maclean so as to produce power from the energy of the reformate gas as suggested by Andersen." Id. at 4. Appellants argue that the rejection of claim 1 should be reversed because the Examiner erred by finding that the Andersen's turbine-which produces electricity by depressurizing the reformate through a gas turbine, see Andersen col. 2, 11. 26-29----consumes the reformate as required by claim 1. Appeal Br. 2-3. The Examiner responds: The combination of Maclean and Andersen produces a system with the claimed components. Claim 1 recites "an energy conversion device consuming said refonnate to produce energy." Meanwhile, claim 29 recites that "said energy conversion device is a gas turbine." Andersen, as cited by Appellant, discloses a gas turbine that inputs reformate to produce energy. There is no patentable distinction between claims 1 and 29 and the apparatus of Maclean and Andersen as stated in the rejection: both include an energy conversion device in the form of a gas turbine that is capable of inputting reformate and outputting energy. This can be considered a form of "consumption," though, again, the claims are apparatus claims and not process claims. There are no structural details distinguishing the gas turbine of the instant invention with [sic, from] that of Maclean and Andersen. Answer 5. 4 Appeal2015-004611 Application 13/094,496 Thus, to decide whether this argument has merit, we must determine the proper interpretation of the claim language "an energy conversion device consuming said re formate to produce energy." During prosecution, the PTO gives the language of the proposed claims the broadest reasonable meaning of the words in their ordinary usage as they would be understood by one of ordinary skill in the art, taking into account any definitions or other enlightenment provided by the written description contained in the applicant's specification. In re Morris, 127 F.3d 1048, 1054--55 (Fed. Cir. 1997). We begin by determining what the claim language in question would have meant to a person of ordinary skill in the art at the time of the invention. An ordinary meaning of the term consume is "to do away with completely." See Webster's Ninth New Collegiate Dictionary 282 (1989) (" 1: to do away with completely : DESTROY "). Next, we tum to the '496 Application's Specification to see whether Appellants ascribed a special definition to the term "consume." We conclude that they did not. The Specification uses the verb consume in a single sentence: "By reforming these [waste] gases [produced by various manufacturing, agricultural, contamination remediation and industrial processes], they can be converted into a reformate which is more easily consumed by the ECD [Energy Conversion Device]." Spec. 4. The Specification further describes ECDs that can be used as part of the claimed apparatus: "ECDs include devices that convert chemical energy into electrical or kinetic energy such as combustion engines (internal or external), Stirling cycle engines, gas turbines, or fuel cells." Spec. 1-2 (emphasis 5 Appeal2015-004611 Application 13/094,496 added).7 In view of this discussion, a person of ordinary skill in the art would not have had any reason to believe that Appellants had given the verb "consume" a special definition. Having concluded that the term "consumes" means "to do away with completely" in the context of claim 1, we are constrained to reverse the Examiner's rejection. As the Examiner found, Andersen describes depressurizing the reformate through a gas turbine to produce electricity. As Appellants argue, such a process does not consume the reformate. App. Br. 2-3. Nor does it convert chemical energy into electrical or kinetic energy as discussed in the Specification. In sum, we conclude that the Examiner adopted an unreasonably broad claim interpretation. Furthermore, contrary to the Examiner's assertion (Ans. 5), a gas turbine configured to operate in this manner would have a structural difference from a gas turbine that operates by combustion of the reformate-it would lack the structure and control system needed to start and maintain combustion. A person of ordinary skill in the art would have understood that for safety reasons, portions of a gas turbine engine used to introduce pressurized atmospheric air also would not be present. In view of the foregoing, we reverse. CONCLUSION We reverse first the rejection of claims 1-31 of the '496 Application. REVERSED 7 In this context, a person of ordinary skill in the art would understand the Specification's reference to "gas turbines" to be a reference to gas turbine engines. 6