DOW GLOBAL TECHNOLOGIES LLC

Patent Trials and Appeals Board

Aug 25, 2020

2019004195 (P.T.A.B. Aug. 25, 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.
14/248,585 04/09/2014 James D. Tate 64118A-US-CIP 3022
109 7590 08/25/2020
The Dow Chemical Company
P.O. BOX 1967
2211 H.H. Dow Way
Midland, MI 48674
EXAMINER
LAU, JASON
ART UNIT PAPER NUMBER
3762
NOTIFICATION DATE DELIVERY MODE
08/25/2020 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):
FFUIMPC@dow.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte JAMES D. TATE, GERALD D. FREDERICK,
SYLVESTER IRVING, CHARLES W. LIPP,
ANDY E. WEBER, and CHRIS REED
____________

Appeal 2019-004195
Application 14/248,585
Technology Center 3700
____________

Before STEFAN STAICOVICI, ANNETTE R. REIMERS, and
JEREMY M. PLENZLER, Administrative Patent Judges.

STAICOVICI, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE.
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
decision in the Final Office Action (dated Sept. 27, 2017, hereinafter “Final
Act.”) rejecting claims 1–6. Appellant’s representative presented oral
argument on July 29, 2020. We have jurisdiction over this appeal under 35
U.S.C. § 6(b).

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Dow Global Technologies LLC is identified as the real
party in interest in Appellant’s Appeal Brief (filed Apr. 3, 2018, hereinafter
“Appeal Br.”). Appeal Br. 2.
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SUMMARY OF DECISION
We AFFIRM.

INVENTION
Appellant’s invention relates to “methods for the control of excess air
in cracker furnace burners” for producing olefins. Spec. 1, ll. 4–5.
Claims 1 and 6 are independent. Claim 1, with formatting added, is
illustrative of the claimed invention and reads as follows:
1. A method for control of the air/fuel ratio of burner(s) of a
thermal cracker for producing olefins which comprises a
firebox portion, a bridge wall portion and a convection portion,
comprising the steps of:
(a) directing a wavelength modulated beam of near
infrared light from two tunable diode lasers that are positioned
with a line of sight through combustion gas from burners
located in the firebox portion at a location in the bridge wall
portion where mixing of the combustion gas is uniform, one of
the tunable diode lasers being tuned to a frequency
characteristic of oxygen to establish a signal for oxygen content
of the combustion gas and one being tuned to a frequency
characteristic of carbon monoxide to establish a signal for
carbon monoxide content of the combustion gas, to a pair of
near infrared light detectors to generate two detector signals,
one for each of oxygen and carbon monoxide;
(b) analyzing the detector signals for spectroscopic
absorption at wavelengths characteristic for oxygen and carbon
monoxide to determine their respective concentration in the
combustion gas; and
(c) adjusting the air/fuel ratio of the burners (excess air)
in response to the concentrations of oxygen and carbon
monoxide of step (b), wherein the combustion gas flows
vertically from the firebox portion, through the bridge wall
portion, and through the convection portion, and wherein each
tunable diode laser is positioned in a first wall of the bridge
wall portion and each corresponding near infrared light
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detector is positioned in a second wall of the bridge wall
portion opposite the first wall.

REJECTIONS

I. The Examiner rejects claims 1, 2, and 5 under 35 U.S.C. § 103
as being unpatentable over Reed2 and Sappey.3
II. The Examiner rejects claim 3 under 35 U.S.C. § 103 as being
unpatentable over Reed, Sappey, and Lehmann.4
III. The Examiner rejects claim 4 under 35 U.S.C. § 103 as being
unpatentable over Reed, Sappey, and Von Drasek.5
IV. The Examiner rejects claim 6 under 35 U.S.C. § 103 as being
unpatentable over Reed, Sappey, Lehmann, and Von Drasek.

ANALYSIS
Rejection I
Appellant does not present arguments for the patentability of claims 2
and 5 apart from claim 1. See Appeal Br. 9. Therefore, in accordance with
37 C.F.R. § 41.37(c)(1)(iv), we select claim 1 as the representative claim to
decide the appeal of the rejection of these claims, with claims 2 and 5
standing or falling with claim 1.
The Examiner finds Reed discloses a thermal cracker for producing
olefins including, inter alia, firebox portion 16, bridge wall portion 12, and
convection portion 14. Final Act. 2; see also Reed, Fig. 1. The Examiner

2 Reed et al., US 5,656,150, issued Aug. 12, 1997.
3 Sappey et al., US 7,248,755 B2, issued July 24, 2007.
4 Lehmann et al., US 2003/0109055 A1, published June 12, 2003.
5 Von Drasek et al., US 2002/0031737 A1, published Mar. 14, 2002.
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further finds that Reed fails to disclose performing steps (a) through (c), as
recited in claim 1. Id. Nonetheless, the Examiner finds Sappey discloses a
process for controlling air/fuel ratio of burners including, inter alia, steps (a)
through (c), as recited in claim 1, and concludes that it would have been
obvious for a person of ordinary skill in the art to modify the process of
Reed, according to the process steps of Sappey, in order “to optimally
regulate the temperature inside the furnace (by adjusting the air/fuel ratio of
the burners) to produce the necessary cracking and . . . desired end-
products,” and, also because “emissions can be reduced by optimizing the
air/fuel ratio.” Id. at 2–4 (citing Sappey, col. 1, l. 56–col. 2, l. 15, col. 3, ll.
42–47, col. 8, ll. 52–65, col. 12, ll. 5–31, col. 13, ll. 16–29, Table 1, Figs. 1,
3, 5).
The Examiner further finds that Sappey does not disclose placing
diode-detector pairs “at a location in the bridge wall portion where the
combustion gas is uniform,” but rather “anywhere in the combustion
chamber.” Id. at 3 (citing Sappey, col. 10, ll. 30–33). Thus, the Examiner
contends that Sappey’s “teaching of placing the diode-detector pairs
anywhere in the combustion chamber suggests that the particular location is
not important,” and, thus, a skilled artisan would “want to position the
diode-detector pairs at a location in the bridge wall portion since that is a
location downstream the burners where the combustion gases would gather.”
Id. at 3–4. The Examiner explains that “[i]f the location is more upstream[,]
then the combustion gases may not have time to fully develop.” Id. at 4.
Appellant argues that the Examiner’s rejection is based upon
impermissible hindsight because (1) the Examiner has not set forth a proper
motivation to combine the teachings of Reed and Sappey as “Reed is
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focused on typical operating temperatures of cracking furnaces and not . . .
optimizing the air/fuel ratio within the furnace” (see Appeal Br. 6, 8); (2)
Sappey’s combustion in coal-fired boilers . . . is substantially different from
[combustion in Reed’s] olefin furnace or cracker” (see id. at 7, 8); and (3)
neither Reed nor Sappey discloses positioning the diode laser and detector
pairs in the specific location required by claim 1, namely, the bridge wall
portion (see id. at 7–8).
In regards to Appellant’s first argument, even though Reed is
concerned with the operating temperature within a combustion furnace, and
not with optimizing the air/fuel ratio within the furnace, nonetheless, we
agree with the Examiner that “[a] person having ordinary skill in the art of
combustion would understand that flame/combustion temperatures can be
adjusted by regulating the air and fuel concentrations.” Final Act. 8. Hence,
as an artisan must be presumed to know something about the art apart from
what the references disclose, a skilled artisan in the art of combustion would
understand “to regulate the air/fuel ratio [in Reed, according to the process
of Sappey, in order] to control the temperature inside the combustion space.”
Examiner’s Answer (dated June 6, 2018, hereinafter “Ans.”) 2; see also In re
Jacoby, 309 F.2d 513, 516 (CCPA 1962).
Accordingly, the Examiner is correct that “based on the teachings of
Reed, Sappey, and the knowledge generally available to a person skilled in
the art, it would have been obvious to apply the technique of Sappey to the
cracking furnace of Reed to regulate the air and fuel flow rates based on the
current conditions in the furnace so that an optimal and desired air/fuel ratio
is achieved” in order to control “the furnace temperature . . . in the optimal
range, thereby reducing nitrogen oxide emissions and providing the
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necessary cracking conditions.” Id. at 3.6 Therefore, the Examiner has
articulated adequate reasoning based on a rational underpinning to explain
why a person of ordinary skill in the art would combine the teachings of
Reed and Sappey. See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418
(2007) (stating that “rejections on obviousness grounds cannot be sustained
by mere conclusory statements; instead, there must be some articulated
reasoning with some rational underpinning to support the legal conclusion of
obviousness” (citing In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006))).
Moreover, we note that the references relied upon to reject claims
under 35 U.S.C. § 103(a) are not required to have the same objectives as the
claimed invention. See e.g., Transcript of July 29, 2020 Oral Hearing
(hereinafter “Tr.”) 8. Rather, it is not necessary for the prior art to serve the
same purpose as that disclosed in Appellant’s Specification in order to
support the conclusion that the claimed subject matter would have been
obvious. See KSR, 550 U.S. at 419 (“In determining whether the subject
matter of a patent claim is obvious, neither the particular motivation nor the
avowed purpose of the [Appellant] controls.”); see also In re Linter, 458
F.2d 1013, 1016 (CCPA 1972).
With respect to Appellant’s second argument, we appreciate that
Reed’s combustion process employs radiant heat, whereas Sappey’s
combustion process uses convective heat and generates particulates and a
heterogeneous combustion gas. Appeal Br. 7; see also Reply Brief (filed

6 The Examiner explains that a “lean combustion, i.e., more air and less fuel,
results in higher temperatures . . . [that] produce higher concentrations of
nitrogen oxides. Conversely . . . [a] rich combustion, i.e., more fuel than air,
results in lower temperatures, produces lower nitrogen oxides, but is also
less efficient.” Id.
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Oct. 4, 2018, hereinafter “Reply Br.”) 2. However, although there are some
differences between the combustion processes of Reed and Sappey, “[w]hen
a work is available in one field of endeavor, design incentives and other
market forces can prompt variations of it, either in the same field or a
different one. If a person of ordinary skill can implement a predictable
variation, § 103 likely bars its patentability.” KSR Int’l Co. v. Teleflex Inc.,
550 U.S. 398, 417 (2007). Here, Appellant does not sufficiently explain
why such differences in the combustion processes of Reed and Sappey
would have dissuaded a person of ordinary skill in the art from employing
Sappey’s diode-detector pairs and technique to optimize the air/fuel ratio of
Reed’s burners, and, thus, control the operating temperature inside Reed’s
olefin furnace, as reasoned by the Examiner. See Ans. 3 (“Appellant fails to
discuss how these differences render the method of Sappey unsuitable for
the olefin furnace of Reed.”).
In other words, as Sappey’s diode-detector pairs are employed to
analyze a combustion gas content, Appellant fails to adequately explain why
a skilled artisan would not consider using Sappey’s diode-detector pairs to
analyze Reed’s combustion gas content. Appellant fails to provide a
“nexus” between Sappey’s diode-detector pairs and the differences of the
combustion processes of Reed and Sappey in order to properly explain “how
these differences render the . . . [sensor] system of Sappey unsuitable for a
cracking furnace.” Final Act. 8. Moreover, we note that absolute
predictability that the Examiner’s modification will be successful is not
required, all that is required is a reasonable expectation of success. See In re
O’Farrell, 853 F.2d 894, 903–904 (Fed. Cir. 1988); see also Tr. 11–12.
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Finally, we are not persuaded by Appellant’s third argument because
the Examiner is not relying on the locations illustrated in Sappey’s Figure 3
(see Appeal Br. 8, Reply Br. 2–3), but rather is modifying the process of
Reed and Sappey to position Sappey’s diode-detector pairs in Reed’s bridge
wall portion 12. See Final Act. 4. According to the Examiner, “it would
make logical sense to place the lasers at a point downstream of the
combustion process,” namely, “in bridge 12 or duct 14.” Id. at 8 (emphasis
added).
Selecting one of a plurality of a finite number of identified predictable
solutions might not be the product of innovation but something that occurs
in the ordinary course of using a known device. See, e.g., In re Kubin, 561
F.3d 1351, 1358–61 (Fed. Cir. 2009); see also Tr. 12–14. The Examiner
explains that Sappey discloses placing diode-detector pairs in a downstream
location from the combustion chamber because oxygen and carbon
monoxide gases tend to accumulate in such a location, and, thus, “[a]n
accurate measurement of the accumulated concentration of oxygen and
combustion gases can only be performed at the bridge portion 12 or
convection zone 14 of Reed.” Ans. 4 (citing Sappey, col. 10, ll. 30–33)
(emphasis added). Accordingly, because positioning Sappey’s diode-
detector pairs in Reed’s bridge wall portion 12 is one of a finite number (i.e.,
two) of predictable solutions, a skilled artisan would have had good reason
to pursue the known options within his or her technical grasp, and thus, the
claimed subject matter is “the product not of innovation but of ordinary skill
and common sense.” KSR, 550 U.S. 398 at 421. Therefore, positioning
Sappey’s diode-detector pairs in Reed’s bridge wall portion 12 would have
been obvious to try in light of Sappey’s disclosure of diode-detector pairs
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located downstream of the combustion chamber. Appellant does not
adequately explain why the Examiner’s findings and reasoning are in error.
In conclusion, for the foregoing reasons, we sustain the rejection
under 35 U.S.C. § 103 of independent claim 1 as unpatentable over Reed
and Sappey. Claims 2 and 5 fall with claim 1.

Rejections II–IV
Appellant relies on the same arguments discussed supra for the
remaining rejections. See Appeal Br. 8–9. Therefore, for the same reasons
discussed above, we also sustain the rejections under 35 U.S.C. § 103 of
claim 3 as unpatentable over Reed, Sappey, and Lehmann; of claim 4 as
unpatentable over Reed, Sappey, and Von Drasek; and of claim 6 as
unpatentable over Reed, Sappey, Lehmann, and Von Drasek.

CONCLUSION

Claim(s)
Rejected
35 U.S.C. § Reference(s)/
Basis
Affirmed Reversed
1, 2, 5 103 Reed, Sappey 1, 2, 5
3 103 Reed, Sappey,
Lehmann
3
4 103 Reed, Sappey,
Von Drasek
4
6 103 Reed, Sappey,
Lehmann,
Von Drasek
6
Overall
Outcome
1–6

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Application 14/248,585

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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