Ex Parte Thomsen

Patent Trial and Appeal BoardDec 18, 2012

11578197 (P.T.A.B. Dec. 18, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte KENT THOMSEN ____________________ Appeal 2010-005956 Application 11/578,197 Technology Center 3700 ____________________ Before: PHILLIP J. KAUFFMAN, CHARLES N. GREENHUT, and MICHAEL C. ASTORINO, Administrative Patent Judges. KAUFFMAN, Administrative Patent Judge. DECISION ON APPEAL Appeal 2010-005956 Application 11/578,197 2 STATEMENT OF THE CASE Appellant appeals under 35 U.S.C. § 134 from a rejection of claims 9- 29. We have jurisdiction under 35 U.S.C. § 6(b). We affirm-in-part. The Invention Appellant’s claimed invention relates to an apparatus and method for incineration of combustible waste during the manufacture of cement clinker. Spec. 1:3-19. Claims 9, 27, and 28 are the independent claims on appeal, and claim 9, reproduced below, is illustrative of the claimed subject matter: 9. A method for incineration of combustible waste during the manufacture of cement clinker comprising: preheating cement raw meal in a preheater system with or without a calciner; burning the preheated cement raw material to form clinker in a kiln; cooling the clinker in a subsequent clinker cooler; introducing waste to a waste inlet of a compartment in communication with the kiln and supporting the waste on a supporting surface incorporated in the compartment; actively transporting the waste while simultaneously subjecting the waste to incineration through the compartment to an outlet of the compartment, wherein at least a part of the incineration of the waste in the compartment takes place in a sub-stoichiometric atmosphere; venting hot exhaust gases produced in connection with the incineration of the waste to the preheater system for heating the cement raw meal; extracting slag generated during the waste incineration process from the compartment; and introducing exhaust gases from the kiln containing NOx into and through the compartment in counterflow to the waste stream. Appeal 2010-005956 Application 11/578,197 3 Evidence Relied Upon Ogawa Evans Helm US 4,627,877 US 6,210,154 B1 EP 1 200 778 B1 Dec. 9, 1986 Apr. 3, 2001 Mar. 24, 2004 The Rejections The following rejections are before us on appeal: I. Claims 9, 10, 13, 14, 20, 21, 23, 24, and 26 under 35 U.S.C. § 102(b) as anticipated by Evans. II. Claims 27-29 under 35 U.S.C. § 102(b) as anticipated by Helm. III. Claims 11, 12, 15-19, and 22 under 35 U.S.C. § 103(a) as unpatentable over Evans and Helm. IV. Claims 9, 10, 13, 14, 20, 21, and 23-26 under 35 U.S.C. § 103(a) as unpatentable over Ogawa and Evans. V. Claims 11, 12, 15-19, and 22 under 35 U.S.C. § 103(a) as unpatentable over Ogawa, Evans, and Helm. VI. Claims 27-29 under 35 U.S.C. § 103(a) as unpatentable over Evans and Helm. OPINION I. Claims 9, 10, 13, 14, 20, 21, 23, 24, and 26 as anticipated by Evans1 Independent claim 9 is directed to a method for incineration of combustible waste during manufacture of cement clinker. Claim 9 calls for supporting waste on a supporting surface in a compartment, actively transporting that waste through a compartment to the outlet of that 1 Appellant argues these claims as a group, and we select claim 9 as representative. See App. Br. 6-8; Reply Br. 9-12; 37 C.F.R. § 41.37(c)(1)(vii) (2011). Appeal 2010-005956 Application 11/578,197 4 compartment while simultaneously being incinerated, and introducing exhaust gases from the kiln containing NOx through the compartment in counterflow to the waste stream (the path of the waste through the compartment2). Claim 9 does not explicitly state that the waste remain on the supporting surface during transporting of that waste. By contrast, independent claims 27 and 28 each recite “supporting and transporting the waste on a supporting surface.” See Laitram Corp. v. Rexnord, Inc., 939 F.2d 1533, 1538 (Fed. Cir. 1991) (Differences among claims can also be a useful guide in understanding the meaning of particular claim terms); see also In re Morris, 127 F.3d 1048, 1056 (Fed. Cir. 1997) (It is Appellant’s burden to precisely define the invention.). Therefore, claim 9 does not require that the waste be supported on the supporting surface during transportation of that waste. Based upon this claim construction, Appellant’s argument that claim 9 “requires that the waste material be both supported on a ‘supporting surface’ and that the waste be ‘actively transported’ through the compartment while it is on the ‘supporting surface’” is unpersuasive because it is not commensurate in scope with claim 9. See Reply Br. 9-10; see also In re Self, 671 F.2d 1344, 1348 (CCPA 1982) (“[A]ppellant’s arguments fail from the outset because . . . they are not based on limitations appearing in the claims.”). Appellant’s similar assertion that the residue is not actively transported while being supported is likewise flawed. See Reply Br. 11. 2 In light of the disclosure, the claim term “the waste stream” refers to the path through the compartment of the actively transported waste. See Spec. 6:18-20, 10:33-11:3; see also App. Br. 6. Appeal 2010-005956 Application 11/578,197 5 Appellant also argues that Evans’s waste (tyre 76) is stationary (on tyre support 80) during incineration and exhaust gases are introduced in crossflow, rather than being transported and incinerated with exhaust gases introduced in counterflow as claimed. App. Br. 6. Appellant’s argument is unpersuasive because it does not address the rejection as articulated by the Examiner. The Examiner found that Evans discloses actively transporting waste through a compartment to the outlet of that compartment (by portions of tyre 76 falling off tyre support 80 downward through precalciner 24) while being incinerated and while exhaust gases are introduced (up through precalciner 24) in counterflow to that waste stream. Ans. 3, 9-10. Similarly, Appellant argues that Evans’s waste (tyre 76) is incinerated in a static position on the support surface (tyre support 80) and it is only residue that falls from tyre support 80. Reply Br. 10-11. This assertion is incorrect. Portions of tyre 76 can fall from tyre support 80 and are further combusted while falling. Evans, col. 14, ll. 46-62; see also Ans. 9-10. A second reason this assertion is unconvincing is that Evans’s residue is the steel wires in the tires and nothing precludes these wires from corresponding to waste as claimed. See Evans, col. 14, ll. 40-42. Appellant notes that the Examiner’s statement that the waste stream is nothing but the hot gases emitted from the kiln is in error because claim 9 calls for the exhaust gases and waste stream to be different elements. Reply Br. 10. We agree that the Examiner’s statement that the waste stream is the exhaust gases is incorrect. See Ans. 9. However, the Examiner elsewhere correctly recognized the waste stream (movement of waste through the compartment to the outlet of that compartment) and the exhaust gases are separate elements. See Ans. 3. Appeal 2010-005956 Application 11/578,197 6 Consequently, we sustain the rejection of claim 9 as anticipated by Evans, and claims 10, 13, 14, 20, 21, 23, 24, and 26 fall with claim 9. II. Claims 27-29 as anticipated by Helm Independent claim 27 is directed to a method incineration of combustible waste that includes supporting and transporting the waste on a supporting surface of a rotary disk disposed in a compartment and exhaust gases entering the compartment in counterflow “over the waste material on the support surface.” Independent claim 28 is directed to an apparatus, and contains similar limitations. Claim 29 depends from claim 28. In contrast to independent claim 9, claims 27-29 call for the exhaust gases to be introduced in counterflow over the waste material on the support surface. The Examiner found that Helm discloses waste falling (downward) into a compartment having rising exhaust gases that rise in counterflow to the waste. Ans. 4, 11. Waste falling through a compartment is not on a support surface, and thus does not correspond to counterflow of the exhaust gases over the waste material on the support surface as claimed. See App. Br. 8; Reply Br. 1-3. Consequently, we do not sustain the rejection of claims 27-29 as anticipated by Helm. III. Claims 11, 12, 15-19, and 22 over Evans and Helm3 Claim 9 calls for a waste stream from the inlet to the outlet of the compartment. Claim 11 depends from claim 9, and recites “[t]he method 3 Appellant presents a single argument for these claims, and we select claim 11 as representative. Appeal 2010-005956 Application 11/578,197 7 according to claim 9, wherein the waste is transported through the compartment to the outlet along a circular path.” As explained in our analysis of claim 9 as anticipated by Evans, supra, the waste need not be supported on the supporting surface during transportation of that waste. The Examiner found that Evans discloses the claimed subject matter except for the waste being transported along a circular path and introducing cement raw material to the compartment via an inlet in the compartment. Ans. 4-5. The Examiner found that Helm discloses transporting waste through a compartment (9) to the outlet of that compartment along a circular path. Ans. 5. The Examiner concluded that it would have been obvious to modify Evans to include the step of transporting the waste through the compartment to the outlet along a circular path, as disclosed by Helm. Id. We understand this rejection as a modification of Evans as explained in the first rejection based upon Helm. See Ans. 4 (“the method of Evans et al. as above”); see also Ans. 3, 9-10. Therefore, in this proposed combination, the waste stream includes portions of waste (tyre 76 of Evans) falling off the support surface (disc 21 of Helm replacing tyre support 80 of Evans) downward through the compartment (precalciner 24 of Evans) while being incinerated and while exhaust gases are introduced in counterflow to that waste stream (up through precalciner 24). Appellant argues that Evans discloses crossflow and Helm discloses concurrent flow and thus the proposed combination cannot disclose counterflow as claimed. App. Br. 9. However, for the reasons given in the analysis of claim 9, supra, Evans discloses introducing exhaust gases in counterflow to the waste stream as claimed. Appeal 2010-005956 Application 11/578,197 8 Appellant also asserts that Evans has two main teachings: one, that once the waste is introduced into the kiln, it remains in a static position; and, two that the waste is in crossflow to the exhaust gases. Appellant argues that Helm cannot be used to destroy these two main teachings. App. Br. 9. This argument is based upon the characterization that Evans’s waste (tyre 76) is only incinerated while static on the support surface (tyre support 80). However, as explained in the analysis of claim 9, supra, this characterization is inaccurate, and for that reason this argument is unpersuasive. As such, we sustain the rejection of claims 11, 12, 15-19, and 22 as unpatentable over Evans and Helm. IV. Claims 9, 10, 13, 14, 20, 21, and 23-26 over Ogawa and Evans As detailed in the analysis of claim 9 as anticipated by Evans, supra, claim 9 calls for actively transporting waste through a compartment to the outlet of that compartment while being incinerated and while exhaust gases are introduced in counterflow to that waste stream. Claims 10, 13, 14, 20, 21, and 23-26 depend from claim 9. In contrast to the first and third rejections, this rejection does not rely upon Evans for disclosing actively transporting waste through a compartment to the outlet of that compartment while being incinerated and while exhaust gases are introduced in counterflow to that waste stream. Rather, the Examiner found that Ogawa discloses “[t]he countercurrent flow of the exhaust gases and waste material 19 will take place in conduit 106, 107 and extending below inside the calciner 105 and kiln 13,” and that Ogawa discloses actively transporting waste material (combustible material 19) by conveyor 21. Ans. 13. Appeal 2010-005956 Application 11/578,197 9 Ogawa’s conveyor 21 is not located within combustible gas conduit 106, exhaust conduit 107, calcining chamber 105, or heating chamber 13. Ogawa, fig. 6. Therefore, Ogawa does not disclose actively transporting waste (along conveyor 21) through a compartment (gas conduit 106, exhaust conduit 107, calcining chamber 105, or heating chamber 13) to the outlet of that compartment while being incinerated and while exhaust gases are introduced in counterflow to that waste stream. See App. Br. 10-11; Reply Br. 12-15. We further note that the upper end of heat-decomposing chamber 103 is sealed by an air seal gate 23 so that there does not appear to be any exhaust gas flow introduced to conveyor 21. Ogawa, col. 6, ll. 15-18; fig. 6 (depicted as in Figure 1, but not labeled). Because the Examiner’s conclusion of obviousness is based upon an erroneous finding of fact, we do not sustain the rejection of claim 9 and its dependent claims 10, 13, 14, 20, 21, and 23-26 as unpatentable over Ogawa and Evans. V. Claims 11, 12, 15-19, and 22 over Ogawa, Evans, and Helm Claims 11, 12, 15-19, and 22 depend, directly or indirectly, from independent claim 9. Therefore, these claims call for introducing exhaust gases from the kiln containing NOx through the compartment in counterflow to the waste stream (the path of the waste through the compartment) by virtue of their dependence from claim 9. The Examiner found that the combination of Ogawa and Evans utilized for the fourth rejection discloses the claimed subject matter, “except for the waste is transported through the compartment to the outlet along a circular path and the cement raw meal is introduced to the compartment via Appeal 2010-005956 Application 11/578,197 10 an inlet in the compartment.” Ans. 7. The Examiner concluded that it would have been obvious to further modify the Ogawa and Evans combination “to include the steps of transporting the waste through the compartment to the outlet along a circular path and introducing the cement raw meal to the compartment via an inlet in the compartment as taught by Helm.” Id. Helm’s circular waste path is horizontal. See Helm, para. [0028]- [0029]; figs. 2-5. Exhaust gases flow upwards in Ogawa’s compartment (heat-decomposing chamber 103). Ogawa, col. 8, ll. 38-47; fig. 6 (note arrow in conduit 108 depicting exhaust gas flow into the bottom of heat- decomposing chamber 103). Therefore, in the proposed combination, the waste stream would be a horizontal circular path as taught by Helm, in crossflow to the rising exhaust gases introduced into the compartment (Ogawa’s heat-decomposing chamber 103) rather than in counterflow as claimed. See App. Br. 11-12. Consequently, we do not sustain the rejection of claims 11, 12, 15-19, and 22 as unpatentable over Ogawa, Evans, and Helm. VI. Claims 27-29 over Evans and Helm As explained in the analysis of the second rejection, supra, claims 27, 28, and 29 call for supporting and transporting waste on a supporting surface of a rotary disk disposed in a compartment and exhaust gases entering the compartment in counterflow over the waste material on the support surface. Similar to the third rejection, the Examiner concluded that it would have been obvious to modify Evans’s method to transport the waste through the compartment to the outlet along a circular path as taught by Helm. Ans. Appeal 2010-005956 Application 11/578,197 11 7-9. In such a proposed combination, while the waste is transported along a horizontal circular path it is in crossflow, rather than in counterflow as claimed. Further, while the waste is falling it may be in counterflow to the exhaust gases; however, it is not on the support surface. See App. Br. 12-13; Reply Br. 4-8. Consequently, we do not sustain the rejection of claims 27-29 as unpatentable over Evans and Helm. DECISION I. We affirm the Examiner’s decision to reject claims 9, 10, 13, 14, 20, 21, 23, 24, and 26 under 35 U.S.C. § 102(b) as anticipated by Evans. II. We reverse the Examiner’s decision to reject claims 27-29 under 35 U.S.C. § 102(b) as anticipated by Helm. III. We affirm the Examiner’s decision to reject claims 11, 12, 15-19, and 22 under 35 U.S.C. § 103(a) as unpatentable over Evans and Helm. IV. We reverse the Examiner’s decision to reject claims 9, 10, 13, 14, 20, 21, and 23-26 under 35 U.S.C. § 103(a) as unpatentable over Ogawa and Evans. V. We reverse the Examiner’s decision to reject claims 11, 12, 15-19, and 22 under 35 U.S.C. § 103(a) as unpatentable over Ogawa, Evans, and Helm. VI. We reverse the Examiner’s decision to reject claims 27-29 under 35 U.S.C. § 103(a) as unpatentable over Evans and Helm. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(1)(iv). Appeal 2010-005956 Application 11/578,197 12 AFFIRMED-IN-PART hh