8 RIVERS CAPITAL, LLC

Patent Trials and Appeals Board

Jan 27, 2022

2022000993 (P.T.A.B. Jan. 27, 2022)

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. 16/825,892 03/20/2020 Yasunori IWAI P62622 1500US.C1 (0853.1) 8661 26158 7590 01/27/2022 WOMBLE BOND DICKINSON (US) LLP ATTN: IP DOCKETING P.O. BOX 7037 ATLANTA, GA 30357-0037 EXAMINER BURKE, THOMAS P ART UNIT PAPER NUMBER 3741 NOTIFICATION DATE DELIVERY MODE 01/27/2022 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): BostonDocket@wbd-us.com IPDocketing@wbd-us.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte YASUNORI IWAI, MASAO ITOH, SHINJU SUZUKI, JEREMY ERON FETVEDT, and RODNEY JOHN ALLAM Appeal 2022-000993 Application 16/825,892 Technology Center 3700 Before BENJAMIN D. M. WOOD, BRANDON J. WARNER, and LISA M. GUIJT, Administrative Patent Judges. WOOD, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 12-27. Claims 1-11 have been canceled. Appeal Br. 15 (Claims App.). We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 “Appellant” refers to the applicant as defined in 37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as 8 Rivers Capital, LLC. Appeal Br. 1. Appeal 2022-000993 Application 16/825,892 2 CLAIMED SUBJECT MATTER The claims are directed to a process for operating a gas turbine facility. Claims 12 and 24 are independent. Claim 24, reproduced below, is illustrative of the claimed subject matter: 24. A process for operation of a power generation plant, the process comprising: providing a fuel stream, an oxidant stream, and a carbon dioxide stream to a combustor wherein fuel from the fuel stream is combusted with oxygen from the oxidant stream in presence of the carbon dioxide to form a combustion exhaust gas; rotating a turbine with the combustion exhaust gas to generate power and provide a turbine exhaust stream; cooling the turbine exhaust stream in a heat exchanger to form a cooled turbine exhaust stream; removing water from the cooled turbine exhaust stream to form the carbon dioxide stream; compressing the carbon dioxide stream; and recycling at least a portion of the carbon dioxide stream that has been compressed to the combustor by passage through the heat exchanger; wherein the oxidant stream is split before being provided to the combustor so that a first portion of the oxidant stream passes through the heat exchanger and so that a second portion of the oxidant stream by-passes the heat exchanger and is recombined with the first portion of the oxidant stream downstream from the heat exchanger and upstream from the combustor. Appeal 2022-000993 Application 16/825,892 3 REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Golomb US 5,724,805 Mar. 10, 1998 Dewis US 8,499,874 B2 Aug. 6, 2013 Mittricker US 2011/0300493 A1 Dec. 8, 2011 Palmer US 2012/0067056 A1 Mar. 22, 2012 REJECTIONS Claims Rejected 35 U.C.S. § References 12-27 Non-Statutory Double Patenting U.S. Appl. 16/825,888 (the ’888 Appl.), Dewis, and one or more of Palmer, Mittricker, and Golomb 24 103 Palmer, Dewis 12-22, 25-27 103 Palmer, Dewis, Mittricker 23 103 Palmer, Dewis, Mittricker, Golomb OPINION Claims 12-27-Double Patenting-The ’888 Application, Dewis, and one or more of Palmer, Mittricker, and Golomb The Examiner provisionally rejects claims 12-27 on the ground of obvious-type double patenting over various claims of the ’888 Application, Dewis, and one or more of Palmer, Mittricker, and Golomb. Final Act. 5- 16. Appellant does not address these rejections. See generally Appeal Br. Accordingly, Appellant has waived any argument of error, and these rejections are summarily affirmed. See Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential) (“If an appellant fails to present arguments on a particular issue-or, more broadly, on a particular rejection-the Board Appeal 2022-000993 Application 16/825,892 4 will not, as a general matter, unilaterally review those uncontested aspects of the rejection”); Manual of Patent Examining Procedure § 1205.02 (9th ed., Rev. 10, June 2020) (“If a ground of rejection stated by the examiner is not addressed in the appellant’s brief, appellant has waived any challenge to that ground of rejection and the Board may summarily sustain it, unless the examiner subsequently withdrew the rejection in the examiner’s answer.”). Claim 24-§ 103-Palmer and Dewis The Examiner finds that Palmer teaches a process for operation of a power generation plant substantially as recited in claim 24, except that Palmer does not teach “wherein the oxidant stream is split before being provided to the combustor so that a first portion of the oxidant stream passes through the heat exchanger and so that a second portion of the oxidant stream by-passes the heat exchanger and is recombined with the first portion of the oxidant stream downstream from the heat exchanger and upstream of the combustor.” Final Act. 17-18 (citing Palmer Fig. 2). The Examiner therefore relies on Dewis to teach the missing limitation. Id. at 18. Dewis teaches a gas turbine power plant used to propel motor vehicles such as delivery vans, buses, and trucks. Dewis 2:12-17, 9:65-10:11. In Dewis’ system, compressed air/oxidant is preheated in a recuperator (heat exchanger) and sent to a combustor where it is mixed with fuel and burned to produce a combustion stream that drives a turbine, which provides power to the vehicle’s drive train. Id. at 8:24-34. Dewis’ system also includes a regenerative-braking feature in which application of the brakes generates electricity that resistively heats a thermal storage module. Id. at 1:58-62, 9:7-22. The thermal storage module is situated between the recuperator and the combustor so the heated oxidant stream exiting the recuperator passes Appeal 2022-000993 Application 16/825,892 5 through the thermal storage module to be further heated. Id. at 9:24-33, Fig. 2. By adding thermal energy to the oxidant stream, the regenerative braking system/thermal energy module reduces the amount of fuel required to be sent to the combustor. Id. at 9:61-64. Dewis also teaches splitting the compressed air stream into a first portion that passes through the recuperator and a second portion that by- passes the recuperator, as follows: [D]uring extended periods of regenerative braking (such as for example, a long [descent]), a simple by-pass duct 211 controlled by a solenoid valve 220 may be activated to introduce cool air over the resistor elements [of the thermal storage module]. This recuperator bypass allows for increased power dissipation from the thermal storage module by rapidly dropping combustor inlet temp. Id. at 10:36-43. The Examiner determines that it would have been obvious to one of ordinary skill in the art to have modified Palmer to split the oxidant stream as taught by Dewis “in order to control the combustion inlet temperature.” Final Act. 18 (citing Dewis 10:33-44). Appellant responds that the purpose of Dewis’ by-pass duct is to cool Dewis’ thermal storage module, which “allows for increased power dissipation from the thermal storage module 212 by rapidly dropping combustor inlet temperature.” Appeal Br. 6. Appellant asserts that one of ordinary skill in the art would not have incorporated Dewis’ by-pass duct into Palmer’s system because (1) “Palmer does not utilize a thermal storage module and thus would not receive the benefit of the by-pass oxidant supply pipe and valve of Dewis”; and (2) Palmer expressly teaches raising the temperature of the oxidant stream to a high temperature before it enters the Appeal 2022-000993 Application 16/825,892 6 combustor, and Dewis’ oxidant by-pass would cause the combustor inlet temperature to rapidly drop. Id. at 7. In the Answer, the Examiner responds that Palmer does not teach “that the compressed air stream is heated to a temperature as high as possible prior to being sent to the combustor.” Ans. 5. The Examiner asserts that, on the contrary, Palmer teaches advantages in lowering the temperature of the air stream entering the combustor, such as to “reduce the production of NOx,” and “to reduce the temperature of the combustion stream 27 exiting the combustor 3 to a temperature that is at or below the maximum inlet temperature of the first turbine 5.” Id. (quoting Palmer ¶ 46 (emphasis omitted). Id.2 Although Appellant is correct that Palmer’s system does not use a thermal storage device, that alone is not enough to show error in the Examiner’s rejection. “[F]amiliar items have obvious uses beyond their primary purpose,” and one of ordinary skill in the art may be presumed to “implement a predictable variation of the prior art.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 420 (2007). Palmer’s system may not use a thermal storage device, but Palmer teaches two other reasons why it may be advantageous to reduce the temperature of the oxidant entering the combustor: (1) to reduce the production of NOx during combustion; and (2) to ensure that the temperature of the combustion stream does not exceed the maximum inlet temperature of the turbine. Palmer ¶ 46. Dewis teaches that adding a bypass duct to allow a portion of the oxidant to bypass the recuperator is an effective way to reduce the temperature of the oxidant 2 Appellant did not file a Reply Brief to counter this explanation. Appeal 2022-000993 Application 16/825,892 7 entering the combustor. Dewis 10:36-43. Therefore, the Examiner’s determination that one of ordinary skill in the art would have reason to add Dewis’ by-pass duct to Palmer’s system is supported by a rational underpinning. KSR, 550 U.S. at 418. Accordingly, we sustain the Examiner’s rejection of claim 24 as unpatentable over Palmer and Dewis. Claims 12-22 and 25-27-§ 103-Palmer, Dewis, and Mittricker Appellant argues claims 12-27 as a group. Appeal Br. 10-13. We select claim 12 as representative of the group, and decide the appeal of this rejection on the basis of claim 12 alone. 37 C.F.R. § 41.37(c)(1)(iv). Claim 12 contains essentially the same limitations as claim 24- including the requirement that the oxidant stream be split between a first portion going through the heat exchanger and a second portion by-passing the heat exchanger-and additionally recites: (1) for each of the fuel stream, carbon dioxide stream, first portion of the oxidant stream, and second portion of the oxidant stream: (a) a supply pipe, (b) a flow rate detecting unit configured to output a flow rate signal to a controller, and (c) a flow regulating valve; and (2) regulating, with a controller, an opening of one or more of the flow regulating valves based on one or more of the flow rate signals. Appeal Br. 15-16. The Examiner relies on the combination of Palmer and Dewis to teach the limitations of claim 12 that are also found in claim 24. Final Act. 18-20. The Examiner relies on Mittricker to teach the supply pipes, flow rate detecting units, and flow regulating valves for each of the fuel stream, carbon dioxide stream, and oxidant stream; and regulating, with the controller, an opening of one or more of the regulating valves, based on calculations performed by the controller, using one or more of the flow rate signals. Id. at 20-21 (citing Mittricker ¶¶ 33-34, Figs. 1A- Appeal 2022-000993 Application 16/825,892 8 3). The Examiner determines that it would have been obvious to modify the Palmer/Dewis combination with the teachings of Mittricker “in order to obtain substantially stoichiometric combustion.” Id. at 21 (citing Mittricker ¶ 2). The Examiner acknowledges that “Mittricker does not explicitly teach a by-pass oxidant flow rate detecting unit configured to output a by-pass oxidant flow rate signal to the controller,” but finds that Mittricker does teach “that various flow controllers or valves may be connected to the central controller and also connected to flow and/or composition sensors that provide data input.” Id. at 22-23 (citing Mittricker ¶ 34). The Examiner therefore determines that it would have been obvious to one of ordinary skill in the art to modify the Palmer/Dewis/Mittricker combination “to include the concept of connecting flow sensors to each of the valves in the gas turbine system, as taught by Mittricker, in order to verify changes in the flow rates of the respective streams controlled by the flow controllers.” Id. at 22 (citing Mittricker ¶ 34). Appellant asserts that the combination of Dewis and Palmer is improper for the same reasons discussed above in connection with claim 24. Appeal Br. 10. For the reasons discussed above, however, Appellant has not persuaded us of Examiner error in this regard. Appellant further argues against the combination with Mittricker. Id. Appellant contends that: Since Palmer requires air for use as the oxidant and states that a key element of its process is the ability to exclude the requirement of an air separation unit or other unit necessary to provide substantially pure air, the person of ordinary skill in the art would not have attempted to incorporate elements from Mittricker since the document teaches a combustion process that requires high purity oxygen. Appeal 2022-000993 Application 16/825,892 9 Id. at 12. As the Examiner points out, however, “the proposed combination is not to replace or substitute Palmer’s air with Mittricker’s oxygen,” but rather “relies on Mittricker’s concept of regulating the various fluids being supplied to the combustor by utilizing valves, flow rate detectors, and a controller.” Ans. 7. Appellant’s argument is essentially based on the bodily incorporation of Mittricker with Palmer and Dewis, which is not necessary to support the Examiner’s determination of obviousness. See In re Keller, 642 F.2d 413, 425 (CCPA 1981) (“The test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference . . . [r]ather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art.”); Orthopedic Equip. Co. v. United States, 702 F.2d 1005, 1013 (Fed. Cir. 1983) (“Claims may be obvious in view of a combination of references, even if the features of one reference cannot be substituted physically into the structure of the other reference.”). Therefore, Appellant’s argument is not persuasive of Examiner error. Because we are not persuaded that the Examiner erred in rejecting claim 12 as unpatentable over Palmer, Dewis, and Mittricker, we sustain the Examiner’s rejection of claims 12-22 and 25-27 on this basis. Claim 23-§ 103-Palmer, Dewis, Mittricker, and Golomb Appellant does not separately argue the patentability of claim 23, but relies on its dependency from claim 12 to support its patentability. Appeal Br. 13-14. Because we are not persuaded that the Examiner erred in rejecting claim 12, we sustain the Examiner’s rejection of claim 23 as unpatentable over Palmer, Dewis, Mittricker, and Golomb. Appeal 2022-000993 Application 16/825,892 10 DECISION SUMMARY Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 12-27 Non-Statutory Double Patenting U.S. Appl. 16/825,888, Dewis, and one or more of Palmer, Mittricker, and Golomb 12-27 24 103 Palmer, Dewis 24 12-22, 25- 27 103 Palmer, Dewis, Mittricker 12-22, 25- 27 23 103 Palmer, Dewis, Mittricker, Golomb 23 Overall Outcome 12-27 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