Jae Kun Lee et al.

Patent Trials and Appeals BoardMay 5, 2021

2020003051 (P.T.A.B. May. 5, 2021)

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. 13/825,089 03/19/2013 Jae Kun Lee 890.0008 6056 76277 7590 05/05/2021 IP LEGAL SERVICES, LLC P.O. Box 651325 Sterling, VA 20165 EXAMINER NASSIRI MOTLAGH, ANITA ART UNIT PAPER NUMBER 1734 NOTIFICATION DATE DELIVERY MODE 05/05/2021 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): email@iplsllc.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte JAE KUN LEE and BUM YONG LEE Appeal 2020-003051 Application 13/825,089 Technology Center 1700 Before BEVERLY A. FRANKLIN, JEFFREY R. SNAY, and SHELDON M. McGEE, Administrative Patent Judges. FRANKLIN, Administrative Patent Judge. DECISION ON APPEAL Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1–3, 9–16, 18, 20, and 22–24. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as Hong-In Chemical Co., LTD. Appeal Br. 3. Appeal 2020-003051 Application 13/825,089 2 CLAIMED SUBJECT MATTER Claim 1 is illustrative of Appellant’s subject matter on appeal and is set forth below: 1. A method for producing high-purity hydrogen chloride, comprising the steps of: purifying crude hydrogen to produce purified hydrogen to a purity of 99.999% or higher by performing a process of removing water and oxygen from the crude hydrogen; purifying crude chlorine to produce purified chlorine to a purity of 99.999% or higher by performing an impurity removing process, wherein the impurity removing process includes removing water and oxygen from the crude chlorine; receiving the purified crude chlorine directly after the crude chlorine purification step and reacting the purified hydrogen with the purified chlorine to synthesize hydrogen chloride, wherein an amount of water in the synthesized hydrogen chloride is less than or equal to 1 ppm; and compressing and cooling the synthesized hydrogen chloride to condense the synthesized hydrogen chloride to a liquid directly after the syntheses of the hydrogen chloride. Appeal 2020-003051 Application 13/825,089 3 REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Cushing US 2,077,310 Apr. 13, 1937 Adams US 3,077,082 Feb. 12, 1963 Rosenberg US 3,260,059 July 12, 1966 Saletan US 4,247,532 Jan. 27, 1981 Hoffman US 5,846,387 Dec. 8, 1998 Zhou US 2004/0038803 A1 Feb. 26, 2004 Doshi US 2007/0269690 A1 Nov. 22, 2007 Bill US 2010/0150809 A1 June 17, 2010 Miyamoto JP 09-100101 Apr. 15, 1997 Filippov RU 2217371 C1 Nov. 27, 2003 Diabon, Hydrogen Chloride Synthesis Plants Process Technology, SGL Group–The Carbon Co. (2008). REJECTIONS 1. Claims 1 and 2 are rejected under pre-AIA 35 U.S.C. § 103(a) as being unpatentable over Filippov in view of Adams, Cushing, Doshi, Hoffman, Zhou, and Bill, as evidenced by Saletan. 2. Claims 3, 9, 11, 13, and 23 are rejected under pre-AIA 35 U.S.C. § 103(a) as being unpatentable over Filippov in view of Adams, Cushing, Doshi, Hoffman, Zhou, Bill, and Diabon, as evidenced by Saletan. 3. Claims 10 and 12 are rejected under pre-AIA 35 U.S.C. § 103(a) as being unpatentable over Filippov in view of Adams, Cushing, Doshi, Hoffman, Zhou, Bill, Diabon, and Miyamoto, as evidenced by Saletan. 4. Claims 14 and 15 are rejected under pre-AIA 35 U.S.C. § 103(a) as being unpatentable over Filippov in view of Adams, Miyamoto, Zhou, Hoffman, and Bill, as evidenced by Saletan. Appeal 2020-003051 Application 13/825,089 4 5. Claim 16 is rejected under pre-AIA 35 U.S.C. § 103(a) as being unpatentable over Filippov in view of Adams, Miyamoto, Zhou, Hoffman, Bill, and Diabon, as evidenced by Saletan. 6. Claim 18 is rejected under pre-AIA 35 U.S.C. § 103(a) as being unpatentable over Filippov in view of Adams, Cushing, Doshi, Hoffman, Zhou, Bill, and Rosenberg, as evidenced by Saletan. 7. Claim 20 is rejected under pre-AIA 35 U.S.C. § 103(a) as being unpatentable over Filippov in view of Adams, Cushing, Doshi, Hoffman, Zhou, Bill, Diabon, and Rosenberg, as evidenced by Saletan. 8. Claim 22 is rejected under pre-AIA 35 U.S.C. § 103(a) as being unpatentable over Filippov in view of Adams, Miyamoto, Zhou, Hoffman, Bill, and Rosenberg, as evidenced by Saletan. 9. Claim 24 is rejected under pre-AIA 35 U.S.C. § 103(a) as being unpatentable over Filippov in view of Adams, Miyamoto, Zhou, Hoffman, Bill, Cushing, and Doshi, as evidenced by Saletan. OPINION We review the appealed rejections for error based upon the issues identified by Appellant and in light of the arguments and evidence produced thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential), cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) (“[I]t has long been the Board’s practice to require an applicant to identify the alleged error in the examiner’s rejections.”). After considering the evidence presented in this Appeal and each of Appellant’s arguments, we are not persuaded that Appellant identifies reversible error. Thus, we affirm the Examiner’s rejections essentially for the reasons expressed in the Final Appeal 2020-003051 Application 13/825,089 5 Office Action and in the Answer. We add the following primarily for emphasis. With no separate arguments proffered (Appeal Br. 19), all claims will stand or fall together with independent claim 1, which we select as representative. 37 C.F.R. § 41.37(c)(1)(iv) (2018). Appellant argues that Filippov does not teach purifying crude hydrogen and chlorine nor does it teach using pure starting reagents. Appeal Br. 12–13. As the Examiner explains on page 6 of the Answer, the rejection does not solely rely upon Filippov for these teachings. Ans. 6. The Examiner explains that although Filippov does not explicitly teach purifying hydrogen and chlorine prior to using them to synthesize hydrogen chloride, Filippov does teach the use of pure starting reagents (hydrogen and chlorine). The Examiner states that thus it would have been obvious to purify reagents prior to using them in Filippov’s process, in order to ensure high purity reagents are being used, and to obtain a pure hydrogen chloride. Id. The Examiner also relies upon Doshi for establishing that the well- known process for generating hydrogen does not produce hydrogen at a high purity, and therefore it would need to be purified. Ans. 6. The Examiner also relies upon Saletan, Zhou, and Cushing for further establishing the need for purifying commonly available sources of reagents in order to produce high purity reagents that can be used as starting materials for the production of high purity hydrogen chloride. Ans. 6–7. Appellant next argues that the proposed modification of Filippov would destroy the advantages of the Filippov’s process. Appeal Br. 13– 14.We are unpersuaded by this line of argument for the reasons expressed by the Examiner on pages 7–9 of the Answer. Therein, the Examiner states that Appeal 2020-003051 Application 13/825,089 6 Appellant has not substantiated how purifying the reagents prior to use in Filippov’s process destroys advantages of the Filippov’s process. We agree and note that absent such supporting evidence, Appellants’ assertions amount to a mere conclusory statement that is entitled to little, if any, probative weight. See, e.g., In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997). Next, Appellant argues that the Examiner’s rationale for using Hoffman is that a semiconductor manufacturing process requires extreme purity levels of chemicals, but that the claims are directed to a method of producing HCl and not to manufacturing semiconductors. Appeal Br. 14. Beginning on page 9 of the Answer, the Examiner responds and states that where and how the claimed HCl may be used is not relevant for the reasons discussed therein. We agree and are thus unpersuaded by this line of argument made by Appellant. Appellant also argues that Hoffman teaches purifying HCl at the semiconductor manufacturing site (not “receiving” purified hydrogen and chlorine to manufacture HCl, and then further purify the HCl). Appeal Br. 15. Appellant argues that Hoffman fails to teach receiving the purified crude chlorine directly after the crude chlorine purification step. Appeal Br. 15– 17. In response, the Examiner explains how Hoffman establishes that in order to maintain extreme purity levels, it is desirable to minimize or eliminate the handling of the chemicals for which extreme purity levels are required. Ans. 10–11. The Examiner states that although Hoffman’s main embodiment is directed to handling of HCl that is used in the manufacturing of semiconductors, this generic teaching of minimizing handling Appeal 2020-003051 Application 13/825,089 7 by preparation of ultrapure chemicals on-site so that they can be piped directly to the points of use is relevant for ultrapure chemicals, whether it is HCl, hydrogen, or chlorine. Ans. 10–11. Based on Hoffman’s teaching, the Examiner concludes that it would have been obvious to have received the purified crude chlorine directly and produce high purity HCl in order to minimize/eliminate unnecessary handling and maintain the purity level of the chlorine being used in manufacturing a high purity chemical (i.e., HCl). Ans. 11. In the Reply Brief, Appellant argues that the Examiner has twisted the teachings of Hoffman for the reasons set forth on pages 9–10. We are unpersuaded by the arguments presented therein and note that the predictable use of known prior art elements or steps performing the same functions they have been known to perform is normally obvious; the combination of familiar elements or steps is likely to be obvious when it does no more than yield predictable results. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007); Ball Aerosol & Specialty Container, Inc. v. Limited Brands, Inc., 555 F.3d 984, 993 (Fed. Cir. 2009) (under the flexible inquiry set forth by the Supreme Court, the PTO must take account of the “inferences and creative steps,” as well as routine steps, that an ordinary artisan would employ). Appellant next argues that Adams does not teach the claim limitation of “compressing and cooling the synthesized hydrogen chloride to condense the hydrogen chloride to a liquid directly after the syntheses of the hydrogen chloride” for the reasons set forth on pages 17–19 of the Appeal Brief. Appellant specifically states that Adams does not indicate that the source HCl had “just been” synthesized. Appellant also similarly states this on page 10 of the Reply Brief. Hence, Appellant views the claim limitation as Appeal 2020-003051 Application 13/825,089 8 placing a time constraint on passage of time from syntheses of the hydrogen chloride to the step of compressing and cooling. In so doing, however, Appellant does not point to evidence in the Specification in support of this specific claim interpretation. We note that terms in the claims must be given their broadest reasonable interpretation including the ordinary meaning unless another meaning is intended by Appellant as established in the written description of their Specification. See, e.g., In re Zletz, 893 F.2d 319, 321– 22 (Fed. Cir. 1989). The meaning of the term “directly after” encompasses lack of additional process steps between synthesis and compressing steps (in addition to the meaning Appellant desires which involves a passage of time). We note that an applicant seeking a narrower construction must either show why the broader construction is unreasonable or amend the claim to expressly state the scope intended. In re Morris, 127 F.3d 1048, 1057 (Fed. Cir. 1997). Because the claims are not limited to a specific passage of time between synthesis and compression, “[m]any of appellant’s arguments fail from the outset because . . . they are not based on limitations appearing in the claims. . . .” In re Self, 671 F.2d 1344, 1348 (CCPA 1982). We are thus unpersuaded by Appellant’s line of argument involving the Adams reference. In view of the above, we affirm Rejection 1. Because Appellant relies upon the same arguments for these rejections (Appeal Br. 19), we also affirm Rejections 2–9 for the same reasons. CONCLUSION We affirm the Examiner’s decision. Appeal 2020-003051 Application 13/825,089 9 DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 2 103(a) Filippov, Adams, Cushing, Doshi, Hoffman, Zhou, Bill, Saletan 1, 2 3, 9, 11, 13, 23 103(a) Filippov, Adams, Cushing, Doshi, Hoffman, Zhou, Bill, Diabon, Saletan 3, 9, 11, 13, 23 10, 12 103(a) Filippov, Adams, Cushing, Doshi, Hoffman, Zhou, Bill, Diabon, Miyamoto, Saletan 10, 12 14, 15 103(a) Filippov, Adams, Miyamoto, Zhou, Hoffman, Bill, Saletan 14, 15 16 103(a) Filippov, Adams, Miyamoto, Zhou, Hoffman, Bill, Diabon, Saletan 16 18 103(a) Filippov, Adams, Cushing, Doshi, Hoffman, Zhou, Bill, Rosenberg, Saletan 18 20 103(a) Filippov, Adams, Cushing, Doshi, Hoffman, Zhou, Bill, Diabon, Rosenberg, Saletan 20 22 103(a) Filippov, Adams, Miyamoto, Zhou, 22 Appeal 2020-003051 Application 13/825,089 10 Hoffman, Bill, Rosenberg, Saletan 24 103(a) Filippov, Adams, Miyamoto, Zhou, Hoffman, Bill, Cushing, Doshi, Saletan 24 Overall Outcome 1–3, 9–16, 18, 20, 22– 24 TIME PERIOD FOR RESPONSE 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). AFFIRMED