Ex Parte Sell et al

Patent Trial and Appeal Board

Apr 23, 2013

11481746 (P.T.A.B. Apr. 23, 2013)

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.
11/481,746 07/05/2006 Amy Sell 06028/6717AUS 5675
20879 7590 04/23/2013
EMCH, SCHAFFER, SCHAUB & PORCELLO CO
P O BOX 916
ONE SEAGATE SUITE 1980
TOLEDO, OH 43697
EXAMINER
MCCAIG, BRIAN A
ART UNIT PAPER NUMBER
1774
MAIL DATE DELIVERY MODE
04/23/2013 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 AMY SELL, TODD COFFMAN, BERNARD M. SHARKEY,
RUSSELL P. LEWIS, ANDY LESTER, and DOUGLAS W. FOWLER
____________

Appeal 2012-007581
Application 11/481,746
Technology Center 1700
____________

Before BRADLEY R. GARRIS, ADRIENE LEPIANE HANLON, and
MICHAEL P. COLAIANNI, Administrative Patent Judges.

GARRIS, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2012-007581
Application 11/481,746

2
Appellants appeal under 35 U.S.C. § 134 from the Examiner's
decision rejecting claims 1, 3-7, 9-11, and 13-17. We have jurisdiction
under 35 U.S.C. § 6.
We AFFIRM.

Appellants claim a method which comprises blending a minor amount
of biodiesel with a major amount of diesel fuel, agitating the resulting
mixture with a mixer during the blending, and "producing a resulting diesel
fuel composition without shock crystallization wherein the resulting diesel
fuel composition is wax free" (independent claim 1; see also independent
claim 3). Appellants also claim a diesel fuel composition produced by such
a method (dependent claims 11 and 13) as well as an apparatus for blending
a diesel fuel composition (independent claim 14).
Representative claim 1 reads as follows:
1. A method for blending a diesel fuel composition while
retaining or improving diesel engine performance comprising
the steps of:
providing a major amount of diesel fuel at a temperature
of 32°F or less;
blending a minor amount of biodiesel at a temperature
above 32°F with the diesel fuel;
agitating the resulting mixture with a mixer during the
blending; and
producing a resulting diesel fuel composition without
shock crystallization wherein the resulting diesel fuel
composition is wax free.
Appeal 2012-007581
Application 11/481,746

3
Under 35 U.S.C. § 102(e), the Examiner rejects claims 1, 3-7, 11, and
13 as anticipated by Copeland (US 2006/0037237 A1 published Feb. 23,
2006) and rejects claims 4 and 5 as anticipated by Copeland as evidenced by
Knothe (Gerhard Knothe et al., Biodiesel: The Use of Vegetable Oils and
Their Derivatives as Alternative Diesel Fuels (USDA 1994)).
Under 35 U.S.C. § 103(a), the Examiner rejects claims 3, 9, 10, and
14-17 as unpatentable over Copeland in view of Woomer (US 5,203,878
issued Apr. 20, 1993) and McCabe (W.L. MCCABE ET AL., UNIT OPERATIONS
OF CHEMICAL ENGINEERING 257 (McGraw-Hill 5th ed. 1993)).
Appellants separately argue dependent claims 4 and 5 but not the
other dependent claims (Br. 5-13). Accordingly, these other dependent
claims will stand or fall with their parent independent claims.

We sustain the above rejections for the reasons expressed in the
Answer and in our Decision on prior appeal 2010-003153 for this
application. The following comments are added for emphasis.
Appellants reiterate the argument in their prior appeal that Copeland's
in line blender and stirrer would cause shock crystallization (see, e.g., id. at
6-7). In support of this argument, Appellants refer generally to the Lewis
Declaration of record in this appeal (but not in the prior appeal) (id.).
According to Appellants, the Lewis Declaration "shows that Copeland's in
line blender and stirrer would cause shock crystallization" (id.).
Appellants do not identify with meaningful specificity the Declaration
paragraphs which are considered to contain the above showing. Our
independent review of this Declaration reveals nothing which specifically
addresses Copeland's method and explains why the in line blender and stirrer
Appeal 2012-007581
Application 11/481,746

4
used by Copeland would cause shock crystallization. Furthermore and
importantly, neither the Brief nor the Declaration addresses the Examiner's
reliance on the Figure 1 disclosure of Copeland as disclosing a method
which corresponds to the claimed method and which produces a diesel fuel
composition with no observable wax (Ans. para. bridging 4-5, 8 (1st full
para.)). In addition, neither the Brief nor the Declaration addresses the point
made in the prior appeal Decision that Appellants' above argument is
contrary to their Specification disclosure of blending and paddle mixer
techniques which avoid shock crystallization but which are indistinguishable
from the in line blending and stirrer techniques of Copeland (Dec. 4).
Appellants' remaining arguments are persuasively rebutted in the
Answer and the prior appeal Decision. We emphasize that Appellants have
not provided the record of this appeal with any meaningful response to these
rebuttals.

The decision of the Examiner 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)(1).

AFFIRMED
bar