LAWRENCE LIVERMORE NATIONAL SECURITY, LLC et al.

Patent Trials and Appeals BoardDec 2, 2020

2019006960 (P.T.A.B. Dec. 2, 2020)

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. 13/666,781 11/01/2012 Roger D. Aines IL-12470 4022 24981 7590 12/02/2020 Lawrence Livermore National Security, LLC LAWRENCE LIVERMORE NATIONAL LABORATORY PO BOX 808, L-703 LIVERMORE, CA 94551-0808 EXAMINER MCCULLOUGH, ERIC J. ART UNIT PAPER NUMBER 1773 NOTIFICATION DATE DELIVERY MODE 12/02/2020 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): llnldocket@llnl.gov PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte ROGER D. AINES, WILLIAM L. BOURCIER, ERIC B. DUOSS, CHRISTOPHER M. SPADACCINI, JOSHUAH K. STOLAROFF, JENNIFER A. LEWIS, ELIZABETH M. GLOGOWSKI, and JOHN J. VERICELLA Appeal 2019-006960 Application 13/666,781 Technology Center 1700 ____________ Before MICHAEL P. COLAIANNI, N. WHITNEY WILSON, and MICHAEL G. McMANUS, Administrative Patent Judges. COLAIANNI, Administrative Patent Judge. DECISION ON APPEAL Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 5, 13, and 14. 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. Appellant identifies the real party in interest as Lawrence Livermore National Security, LLC and the United States Department of Energy. Appeal Br. 2. Appeal 2019-006960 Application 13/666,781 2 Appellant’s invention is directed to an apparatus and a method for metals recovery from water using an ion exchange media having a polymer- encapsulated liquid ion exchange media (Spec. ¶ 4; Claim 5, 13). Claim 5 is representative of the subject matter on appeal: 5. An apparatus for metals recovery from water containing metals to be recovered wherein the water contains ions and the metals, comprising: a column that contains the water to be treated, a column interior in said column, a column entrance in said column, said column entrance adapted to receive the water containing metals to be recovered, a column end in said column, and a multiplicity of microcapsules filling said interior of said column from said column entrance to said column end, each of said microcapsules having capsule body for encapsulating ion exchange chemicals wherein said capsule body has a diameter of between two hundred micrometers and five hundred micrometers, each of said microcapsule having a capsule interior, a capsule surface layer on each of said microcapsule wherein said surface layer is made of polystyrene, polyethylene, or polypropylene that is permeable to ions but not water and wherein said capsule surface layer surrounds said capsule interior, liquid ion exchange chemicals in each of said microcapsules wherein said liquid ion exchange chemicals are encapsulated in said capsule interior within said capsule surface layer wherein said liquid ion exchange chemicals provide a free liquid inside said microcapsules that allows free advection and makes overall kinetics much faster and wherein said liquid ion exchange chemicals capture the metals, wherein said liquid ion exchange chemicals become loaded with the ions and the metals from the water producing loaded microcapsules is said interior of said column thereby providing metals recovery from the water containing metals, Appeal 2019-006960 Application 13/666,781 3 a microcapsule making means for making said microcapsules, an outer tube, an injection tube within said outer tube, and a droplet forming nozzles within said outer tube wherein said microcapsules are made by said microcapsule making means for making said microcapsules and wherein said liquid ion exchange chemicals that capture the metals flow through said droplet forming nozzles with said polystyrene, polyethylene, or polypropylene flowing around said droplet forming nozzle to make said microcapsules. Appellant appeals the following rejection: Claims 5, 13, and 14 are rejected under 35 U.S.C. § 103 as unpatentable over Scher (US 4,500,494 issued February 19, 1985) in view of Finch (Industrial Microencapsulation: Polymers for Microcapsule Walls, Encapsulation and Controlled Release, 1–12, ), Pilon (US 2006/0071357 A1, published April 6, 2006), Natwig (US 4,012,482 issued March 15, 1977) and Lomasney (US 5,405,509 issued April 11, 1995). Appellant bases the argument on subject matter common to claims 5 and 13 only (Appeal Br. 14–35). Because the arguments for each of these claims is the same or substantially similar, we select claim 5 as representative for this appeal. 37 C.F.R. §41.37(c) (iv). FINDINGS OF FACT & ANALYSIS The Examiner’s findings and conclusions regarding the § 103 rejection of claim 5 over the combined teachings of Scher, Finch, Pilon, Natwig, and Lomasney are located on pages 5 to 10 of the Final Office Action. Appeal 2019-006960 Application 13/666,781 4 Appellant argues the Examiner’s rejection does not establish where the art teaches or suggests the following claim limitations: (1) a multiplicity of microcapsules filling said interior of said column from said column entrance to said column end, (2) a capsule surface layer on each of said microcapsules wherein said surface layer is made of polystyrene, polyethylene, or polypropylene that is permeable to ions but not water, and (3) a microcapsule making means for making said microcapsules including an injection tube within said outer tube (Appeal Br. 14–21). We find that the preponderance of the evidence of record favors the Examiner’s obviousness conclusion. Appellant’s argument that Scher fails to teach the microcapsules fill the interior of the column from entrance to end is based upon the alleged meaning of “filling” in light of the Specification (Appeal Br. 15–16). Appellant contends that Figures 5A, 5B, 5C, and 5D show that the device is filled and therefore describe the claim term filling (Appeal Br. 16). Appellant argues that “filling” means there is no space separating the microcapsules in the interior of the column (Appeal Br. 16). Appellant argues that, unlike the presently disclosed invention, Scher uses inert support material, such as diatomaceous earth, alumina, or silica gel, to combine with the microcapsules (Appeal Br. 16). Appellant contends that the presence of the inert support material prevents Scher’s microcapsules from filling the column from the column entrance to the column end (Appeal Br. 16–17). Appellant’s Figure 5A to 5D does not limit the meaning of the term “filling” to requiring that the column is filled completely and only with microcapsules. Rather, the claim uses the open ended claim language “comprising” which does not exclude other materials being present with the Appeal 2019-006960 Application 13/666,781 5 microcapsules filling the column. Contrary to Appellant’s argument that Figure 5 shows no space between the microcapsules, paragraph 44 states that there is unfilled space between the beads (i.e., microcapsules). The Examiner reasonably finds that fill means “more broadly that the microcapsules occupy the volume of the column from entrance to end, it does not mean they occupy all of the space or that they alone fill the column.” (Ans. 12–13). We agree with the Examiner and are unpersuaded by Appellant’s argument. Regarding the capsule surface layer on each of said microcapsules wherein the surface layer is made of polystyrene, polyethylene, or polypropylene that is permeable to ions but not water, Appellant argues that Scher does not teach a surface layer of the microcapsule made of polystyrene, polyethylene or polypropylene that is permeable to ions but not water wherein the surface layer surrounds the interior of the capsule with liquid ion exchange chemicals in each of the microcapsules (Appeal Br. 18). Appellant’s argument fails to address the Examiner’s rejection, which is based upon the combined teachings of Scher, Finch, Natwig, Pilon, and Lomasney. Specifically, the Examiner relies on Scher in combination with Finch to teach a microcapsule made of polystyrene (Final Act. 7). The Examiner finds that the microcapsule suggested by the combination of Scher and Finch would have been expected to have the same permeability to ions but not water as the claimed composition because the composition is the same (Final Act. 8). The Examiner further finds that Scher uses the microcapsule to extract metal from water without releasing the chelating agent or resulting metal chelate from the microcapsule (Final Act. 8). The Examiner concludes that it would have been obvious to have the shell Appeal 2019-006960 Application 13/666,781 6 material permeable to ions but not water so that water could not enter the capsules and dissolve the chelating agent, or the resulting metal chelate (Final Act. 8). Appellant’s assertion that Scher does not teach the capsule properties and features fails to show reversible error in the Examiner’s findings or conclusions regarding the combined teachings of Scher, Finch, Natwig, Pilon, and Lomasney. Regarding Appellant’s argument that Scher does not teach a nozzle to make the microcapsules (Appeal Br. 19). Appellant contends that Scher and Pilon fail to teach a droplet forming nozzle with said outer tube (Appeal Br. 21). Contrary to Appellant’s argument, the Examiner finds that Pilon teaches in Figure 4 that an outer tube 106 surrounds an inner injection tube 102 which constitutes a microcapsule making means with a droplet forming nozzle within the outer tube (Final Act. 8). Appellant’s argument does not explain why the Examiner reversibly errs in this finding. Pilon’s Figure 4 shows that the atomization nozzle 100 includes an inner duct 102 that carries core material 104 and an outer duct 106 that carries the shell material 108 that surrounds the core (Pilon, ¶¶ 72, 73). Appellant does not explain how the claimed nozzle differs from the one recited in Pilon. Appellant argues that the Examiner’s reasons to combine are not valid (Appeal Br. 28). Appellant argues that the Examiner’s reasons for finding that Scher teaches a multiplicity of microcapsules filling the interior of the column from the entrance to end is based upon an inaccurate description of Scher (Appeal Br. 28). Appellant argues that Scher does not teach filling the column with microcapsules (Appeal Br. 28). Appellant provides similar arguments regarding the reasons not being valid because the Examiner’s Appeal 2019-006960 Application 13/666,781 7 findings regarding Pilon and Scher are based on an inaccurate description of the references (Appeal Br. 29). The Examiner provides reasons for each of the modifications proposed (Final Act. 5–10). Appellant’s assertion that the reasons are not valid fails to specifically address the Examiner’s findings supporting those conclusions. To the extent that Appellant alleges that the Examiner’s findings with regard to Scher and Pilon are inaccurate, we determine that the Examiner’s findings and conclusions are supported by the teachings of the references and are applied correctly to a properly construed claim as noted above in the decision. Appellant provides arguments regarding the “surface layer” and cites to pages 5–7, 9 of the Answer (Reply Br. 7, 9). The portion cited to by the Appellant is a copy of the Examiner’s final rejection that was pasted into the Answer. In other words, Appellant’s arguments are not timely because there is no reason why these arguments could not have been presented earlier. The arguments are based on the findings and conclusions raised by the Examiner in the Final Office Action. We will not consider untimely arguments in the Reply Brief. 37 C.F.R. § 41.41(b)(2). On this record, we affirm the Examiner’s § 103 rejection of claims 5, 13, and 14 over Scher, Finch, Pilon, Natwig, and Lomasney. Appeal 2019-006960 Application 13/666,781 8 CONCLUSION In summary: Claims Rejected Basis Prior Art Affirmed Reversed 5, 13, 14 § 103 Scher, Finch, Pilon, Natwig, Lomasney 5, 13, 14 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