Ex Parte Sexton et al

Patent Trial and Appeal Board

Nov 20, 2012

11541339 (P.T.A.B. Nov. 20, 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.
11/541,339 09/29/2006 Jeff Sexton 06040/6720AUS 2435
20879 7590 11/21/2012
EMCH, SCHAFFER, SCHAUB & PORCELLO CO
P O BOX 916
ONE SEAGATE SUITE 1980
TOLEDO, OH 43697
EXAMINER
SINGH, PREM C
ART UNIT PAPER NUMBER
1771
MAIL DATE DELIVERY MODE
11/21/2012 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 JEFF SEXTON and BRIAN K. WILT
____________

Appeal 2012-001003
Application 11/541,339
Technology Center 1700
____________

Before EDWARD C. KIMLIN, CHARLES F. WARREN, and
MARK NAGUMO, Administrative Patent Judges.

KIMLIN, Administrative Patent Judge.

DECISION ON APPEAL

This is an appeal from the final rejection of claims 1, 3-13, and 15-23.
We have jurisdiction under 35 U.S.C. § 6(b). Claim 1 is illustrative:
1. A process for controlling on line FCC effluent exhibiting asorption
[sic, absorption] in the near infrared (NIR) region comprising:
a) measuring absorbances of the effluent using an NIR spectrometer
measuring absorbances at wavelengths within the range of about 780-4000
nm, and outputting an emitted signal indicative of said absorbance;
b) subjecting the NIR spectrometer signal to a mathematical treatment
of the emitted signal;
c) processing the emitted signal or the mathematical treatment using a
defined model to determine the chemical or physical properties of the
effluent and outputting a processed signal; and
Appeal 2012-001003
Application 11/541,339

2
d) controlling on-line in response to the processed signal, at least one
parameter of an FCC process generating the effluent; wherein the step of
controlling on-line allows for real time optimization processing;
e) using NIR measuring on line to control reacton [sic, reaction]
mixing sampling (RMS) on line; and
utilizing Advance Process Control (APC) technology to maximize
FCC operation against constraints.

The Examiner relies upon the following reference as evidence of
obviousness:
Descales et al. (Descales) 6,070,128 May 30, 2000
Appellants’ claimed invention is directed to a process for controlling
on line FCC effluent by using an NIR spectrometer to measure the
absorbances of the effluent. The process also uses Advance Process Control
(APC) technology to maximize the operation.
Appealed claims 1, 3-13, and 15-23 stand rejected under 35 U.S.C.
103(a) as being unpatentable over Descales.
Appellants state in an Appendix to the Brief that “[n]o decision has
been rendered by a court or the Board in any proceedings in related appeals
and interferences.” However, the Board rendered a decision in the prior
appeal in this application (Appeal No. 2010-000097), that is closely related
to the present appeal. In that decision, dated October 13, 2010, the Board
affirmed the Examiner’s § 103 rejection of claims closely related to the
present claims over the same Descales reference. The only difference
between claim 1 on appeal and claim 1 in the prior case is Appellants have
now added the language “utilizing Advance Process Control (APC)
technology to maximize FCC operation against constraints.”
Appeal 2012-001003
Application 11/541,339

3
Appellants have not presented separate arguments for any particular
claim on appeal. Accordingly, all the appealed claims stand or fall together.
We have thoroughly reviewed each of Appellants’ arguments for
patentability. However, we are in complete agreement with the Examiner
that the claimed subject matter would have been obvious to one of ordinary
skill in the art within the meaning of § 103 in view of the applied prior art.
Accordingly, we will sustain the Examiner’s rejection for the reasons set
forth in the Answer and those articulated in the prior decision.
Appellants do not dispute any of the factual findings of the Examiner
relating to the Descales reference. Appellants also have not refuted the
Examiner’s finding that Descales’ process for controlling on line catalytic
cracking effluent employs process control technology to maximize the
process. It is Appellants’ singular argument that Descales does not utilize
the claimed Advance Process Control (APC) technology to maximize the
operation. However, Appellants have not defined APC technology in any
way which distinguishes it over the process control disclosed by Descales.
We also note that Appellants’ Specification discloses that
“[c]onventional practice is limited to use of APC where typically only 1
variable an [sic, can] be manipulated to push the unit against constraints”
(page 9, last paragraph). Appellants, however, have not defined an APC or
required the use of an APC in the claimed process in a way that
distinguishes it over the acknowledged, conventional APC. For instance,
claim 1 on appeal does not recite the manipulation of more than one
variable. Nor have Appellants explained why any distinction of their APC
Appeal 2012-001003
Application 11/541,339

4
over that of the prior art would have been nonobvious to one of ordinary
skill in the art.
As a final point, we note that Appellants base no argument upon
objective evidence of nonobviousness, such as unexpected results.
In conclusion, based on the foregoing, the Examiner’s decision
rejecting the appealed claims is affirmed.
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)(iv).
AFFIRMED

cam