Ex Parte Suchak

Patent Trial and Appeal BoardDec 30, 2016

13590424 (P.T.A.B. Dec. 30, 2016)

UNITED STATES PATENT AND TRADEMARK OFFICE 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. 13/590,424 08/21/2012 Naresh J. Suchak P11A039 9209 20411 7590 12/30/2016 The Linde Group 200 Somerset Corporate Blvd. Suite 7000 Bridgewater, NJ 08807 EXAMINER NASSIRI MOTLAGH, ANITA ART UNIT PAPER NUMBER 1734 MAIL DATE DELIVERY MODE 12/30/2016 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 NARESH J. SUCHAK ____________________ Appeal 2015-006584 Application 13/590,424 Technology Center 1700 ____________________ Before ROMULO H. DELMENDO, JULIA HEANEY, and JENNIFER R. GUPTA, Administrative Patent Judges. GUPTA, Administrative Patent Judge. DECISION ON APPEAL1 Appellant2 appeals under 35 U.S.C. § 134(a) from the Examiner’s decision finally rejecting claims 1, 4–6, 8, 9, 12–14, 16–18, 27, 28, and 30– 35. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. The subject matter on appeal relates to methods for improving nitric acid production processes by lowering nitrogen oxide emissions from tail gas streams. Spec. ¶ 2. Claim 1, reproduced below with key disputed 1 In this decision, we refer to the Final Office Action mailed July 7, 2014 (“Final Act.”), the Appeal Brief filed January 30, 2015 (“Br.”), and the Examiner’s Answer mailed June 16, 2015 (“Ans.”). 2 Appellant identifies the real party in interest as Linde AG. Br. 3. Appeal 2015-006584 Application 13/590,424 2 limitations highlighted in italicized text, is illustrative of the claims on appeal. 1. A method for lowering nitrogen oxides emissions from a tail gas stream of a nitric acid production process wherein nitric acid is recovered from a multistage absorber column comprising adding ozone to the final absorption stages of said absorber column, wherein the ozone contacts the nitrogen oxides in the gas phase. Br. 31 (Claims Appendix). DISCUSSION Claims 1, 4–6, 8, 9, 12–14, 16–18, and 27–35 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Gubanc et al. (US 5,151,258, issued Sept. 29, 1992) in view of Suchak et al., Simulation and Optimization of NOx Absorption System in Nitric Acid Manufacture, 40 AMERICAN INSTITUTE OF CHEMICAL ENGINEERS 944–956 (1994).3 Upon consideration of the evidence on this appeal record and each of Appellant’s contentions, we find that the preponderance of evidence supports the Examiner’s conclusion that the subject matter of Appellant’s claims is unpatentable over the applied prior art. We sustain the Examiner’s 3 Although the statement of the rejection of claims 27–35 in the Final Action (Final Act. 13) relies on Suchak in view of Gubanc in combination with Johnson et al. (US 2007/0154372 A1, published July 5, 2007), the body of the rejection only relies on Suchak and Gubanc. Thus, we treat the Examiner’s inclusion of Johnson in the statement of the rejection to be harmless error. The error was corrected by the Examiner in the statement of the rejection of claims 27–35 on page 2 of the Answer. The rejection of claims 1, 4–6, 8, 9, 12–14, and 16–18 under 35 U.S.C. § 112, first and second paragraphs, on pages 3–4 of the Final Office Action were withdrawn in the Examiner’s Answer. Ans. 3. Appeal 2015-006584 Application 13/590,424 3 § 103 rejection essentially for the reasons set out by the Examiner in the Final Action, and the Examiner’s Answer. We add the following. The Examiner finds that Gubanc teaches a method for reducing nitrogen (NOx) emissions through the addition of hydrogen peroxide in the aqueous liquid of an absorber column. Final Act. 4, citing Gubanc Abstract. The Examiner finds that Gubanc teaches that hydrogen peroxide contacts the nitrogen oxides in the gas phase. Final Act 5, citing Gubanc 2:45–49. The Examiner finds that Gubanc teaches that compounds other than hydrogen peroxide, such as ozone, can be used as the chemical agent in the absorber column. Final Act. 4–5, citing Gubanc 3:27–30. Although the Examiner acknowledges that Gubanc does not explicitly teach the chemical agent (hydrogen peroxide or ozone) is added to the final stages of the absorber column, the Examiner finds that Gubanc teaches “the use of chemical treatment agents in absorber columns to accommodate for peak evolution of NOx” and “[i]t is desirable to add chemical agents only as needed, typically just prior to increases in NOx emissions.” Final Act. 5, citing Gubanc 1:29–32; Gubanc 1:38–40. The Examiner determines, based on Gubanc’s teachings, that it would have been obvious to add ozone to the final absorption stages “to minimize the amount of ozone used and only use an amount needed for removal of residual NOx not removed by the aqueous liquor (i.e., water alone).” Final Act. 5. The Examiner also acknowledges that Gubanc does not explicitly teach that the effluent is a tail gas stream of a nitric acid production where nitric acid is recovered from a multistage absorber column. Final Act. 6. The Examiner, however, finds that Suchak teaches the use of an absorption Appeal 2015-006584 Application 13/590,424 4 column for the manufacture of nitric acid wherein NOx gas is absorbed in water. Final Act. 6, citing Suchak Abstract and 944 (Introduction). The Examiner also finds that Suchak teaches using a multistage absorber column in its process to increase nitrogen oxide removal and obtain a desired concentration of nitric acid. Final Act. 6, citing Suchak 945 (item (3)). The Examiner determines, and Appellant does not dispute, that it would have been obvious to one of ordinary skill in the art, at the time the invention was made, to use Suchak’s multistage absorber column for the production of nitric acid and contact nitrogen oxides in the gas phase with ozone in the final absorption stages of the absorption column, as taught by Gubanc, because both Suchak’s absorber for nitric acid production and Gubanc’s absorber both use water to remove nitrogen oxides from a gaseous stream. Final Act. 6. Appellant presents three principal arguments in response to the Examiner’s rejections of claims 1, 4–6, 8, 9, 12–14, 16–18, and 27–35. We address each in turn. First, Appellant argues that it would not have been obvious to one of ordinary skill in the art, based on the teachings of Gubanc, to add ozone to the final absorption stages of the absorber column, as in claims 1 and 9 (see Br. 21). The Examiner reasonably finds that Gubanc would have motivated one of ordinary skill in the art to add the ozone to the final absorption stages of the absorption column to minimize the amount of ozone used and to remove nitrogen oxide not removed by water alone. Final Act. 5, citing Gubanc 1:29–32, 1:38–40, and 3:64–66; see also Ans. 5–6. Appellant’s conclusory statement that the Examiner’s proposed modification would not Appeal 2015-006584 Application 13/590,424 5 have been obvious fails to address the Examiner’s specific findings and conclusions concerning Gubanc. Accordingly, it fails to persuade us of reversible error in the Examiner’s rejection. Next, Appellant argues that Gubanc and Suchak teach adding ozone to the aqueous liquor in the aqueous phase, not contacting nitrogen oxides in the gas phase as in claims 1, 9, and 27 (see Br. 21–22, and 27). During prosecution, an applicant’s claims are given their broadest reasonable scope consistent with the specification. In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). The words used in a claim must be read in light of the specification, as it would have been interpreted by one of ordinary skill in the art at the time of the invention. Id. For the reasons given in the Answer, we agree with the Examiner that claims 1 and 9, when given their broadest reasonable interpretation consistent with the Specification, only require that “nitrogen oxides in the gas phase are contacted with the ozone,” either in a gaseous or aqueous phase. See Ans. 4. This interpretation is supported by paragraphs 31 and 49–50 of the Specification, which teach that the process gas stream that contains nitrogen oxides is introduced into the absorber column at the bottom and rises upward to contact the aqueous stream of process water that is introduced and flows downward from the top of the column where ozone is introduced, and paragraph 53 of the Specification, which teaches that ozone can be introduced into either the vapor space or aqueous medium. As the Examiner points out, Gubanc teaches the nitrogen oxides are in the gas phase when contacted with the aqueous liquor containing ozone. Final Act. 4–5, citing Gubanc 2:45–49 (teaching the aqueous liquor flowing down the absorber column and contacting a rising gaseous effluent Appeal 2015-006584 Application 13/590,424 6 containing NOx) and 3:27–30 (teaching that ozone rather than hydrogen peroxide can be added to the aqueous liquor in the absorber column). Thus, Appellant’s argument fails to identify reversible error in the Examiner’s rejection. Finally, Appellant argues that neither Gubanc nor Suchak teaches the nitrogen oxides are converted into their pentavalent state forming N2O5 (see Br. 22). This argument is not persuasive of reversible error in the Examiner’s rejection because it is not commensurate in scope with the claims. See In re Self, 671 F.2d 1344, 1348 (CCPA 1982) (stating that limitations not appearing in the claims cannot be relied upon for patentability). DECISION For the above reasons, the Examiner’s rejections of claims 1, 4–6, 8, 9, 12–14, 16–18, and 27–35 are 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). AFFIRMED