Ex Parte Altfeld et al

Patent Trial and Appeal Board

Jan 31, 2017

12092297 (P.T.A.B. Jan. 31, 2017)

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.
12/092,297 10/10/2008 Jochen Altfeld TKPG-10602/08 1769
25006 7590 02/02/2017
DTNSMORF fr SHOHT T T P
EXAMINER
900 Wilshire Drive STAPLETON, ERIC S
Suite 300
TROY, MI 48084 ART UNIT PAPER NUMBER
3742
NOTIFICATION DATE DELIVERY MODE
02/02/2017 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):
docket@patlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JOCHEN ALTFELD, RALF OSBURG,
TOBIAS KLEGRAF, CHRISTOPH BEYER, MARKUS
MOHR, KARL LAMPE, and SEBASTIAN FRIE
Appeal 2014-008213
Application 12/092,297
Technology Center 3700
Before MICHELLE R. OSINSKI, BEVERLY M. BUNTING, and
GORDON D. KINDER, Administrative Patent Judges.
KINDER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF CASE
Appellants1 appeal under 35 U.S.C. § 134 from a rejection of claims
1, 3, and 6—14. An oral hearing was held on January 17, 2017. We have
jurisdiction under 35 U.S.C. § 6(b).
We affirm-in-part.
1 Appellants identify the real party in interest as Polysius AG, a company
having offices at Graf-Galen-StraPe 17, 59269 Beckum, Germany. Appeal
Br. 1.
Appeal 2014-008213
Application 12/092,297
CLAIMED SUBJECT MATTER
The claims are directed to a plant and method for the production of
cement clinker. Independent claim 1, reproduced below, illustrates the
claimed subject matter:
1. A plant for the production of cement clinker from cement
raw meal, the plant comprising:
- a preheating zone for preheating the cement raw meal,
- a calcining zone for precalcining the preheated cement
raw meal, the calcining zone in fluid communication with the
preheating zone,
- a sintering combustion zone for completely burning the
precalcined cement raw meal to cement clinker, the sintering
combustion zone in fluid communication with the calcining
zone,
- a cooling zone for cooling the hot cement clinker, the
cooling zone in fluid communication with the sintering
combustion zone,
- and at least one additional combustion region for
producing heat for the production of the cement clinker, the at
least one additional combustion region has an intake opening for
the admission of solid fuels, a discharge opening for the removal
of the resulting combustion products, a firing region, at least one
conveyor device for transporting the fuel and means for
supplying oxygen-containing gas, the firing region being in such
a form that the fuel introduced into the firing region forms a fuel
bed and the means for supplying oxygen-containing gas having
an inlet into the firing region and arranged above the fuel bed
such that oxygen-containing gas flows over the fuel bed,
the at least one additional combustion region in the form
of an underfeed furnace and the conveyor device is provided
outside the firing region and is in such a form that it introduces
the fuel into the firing region and thereby moves the fuel bed in
the direction towards the discharge opening.
2
Appeal 2014-008213
Application 12/092,297
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Burton US 1,953,335
Azbe US 3,142,480
Garrett US 4,022,629
Nuesmeyer US 4,922,889
REJECTIONS
The Examiner made the following rejections:
Claim 13 stands rejected under 35U.S.C. § 112, second paragraph, as
being indefinite.
Claims 1,3, and 6—14 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Garrett, Burton and Nuesmeyer.
Claims 1,3, and 6—14 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Azbe, Burton and Nuesmeyer.
OPINION
Claim 13 Rejected as Indefinite.
Claim 13 depends from claim 1 and adds that the additional
combustion chamber “is in the form of a separate combustion chamber.”
Appeal Br. 16 (Claims App.). The Examiner finds this claim indefinite
because it does not define from what the additional combustion chamber is
separate. Final Act. 2. The Examiner’s Answer adds, “[cjlaim 13 omits any
structural relationship or frame of reference for the recitation of the ‘separate
combustion chamber.’” Ans. 3. Appellants urge that by referring to the
Specification one can determine that the combustion region 1 can be
Apr. 3, 1934
July 28, 1964
May 10, 1977
May 8, 1990
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Application 12/092,297
separate from a preheating zone, the calcining zone 19, sintering combustion
zone 20 and cooling zone 21. Appeal Br. 4—5. Accordingly, Appellants
argue, one skilled in the art would know that the additional combustion
region is separate from these other zones. Id.
The response to an indefmiteness rejection by a patent applicant “can
take the form of a modification of the language identified as unclear,
separate definition of the unclear language, or in or in an appropriate case, a
persuasive explanation for the record of why the language at issue is not
actually unclear.” In re Packard, 751 F.3d 1307, 1311 (Fed. Cir. 2014). In
this case, Appellants take the third course, but fail to persuade us that the
language is not actually unclear. For example, the additional combustion
region could be separate from only one of the identified zones, or from two
of the identified zones, but not necessarily from all of the identified zones.
With no clear statement specifying from what the additional combustion
region is separated, we are not persuaded of Examiner error in rejecting
claim 13 as indefinite.
Claims 1, 3, 6—14 Rejected as obvious over Garrett or Abze
in light of Burton and Nuesmeyer.2
Examiner Failed to Identify Particular Parts of References Relied on.
Appellants correctly assert the Examiner has failed to identify the
particular parts of the references relied on. Appeal Br. 8—9. For example,
both the Final Action and the Answer state that the primary references,
Garrett and Azbe, show the four claimed zones and the claimed “at least one
additional combustion region” (Final Act. 3—4, 10; Ans. 3—6 (emphasis
2 Because the rejection based on Garrett and the rejection based on Abze
suffer from the same deficiency, we address both rejections together.
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Application 12/092,297
added)), but at no point are the parts of the references relied on as the
additional combustion region identified in any way. In connection with
Garrett, the Examiner identifies the sole Figure and all of the text (“Fig. 1
and col 1—12”, Final Act. 4) as supporting his findings. The Examiner made
a similar citation to all of Azbe. Final Act. 10. After making findings which
identified no particular parts or passages from the secondary reference,
Burton, the Examiner again cited the entire reference and all 10 figures of
Burton, adding without explanation “including Fig. 1 and 8.” Final Act. 5,
11. The Examiner’s citation to Nuesmeyer is equally broad and
uninformative. Final Act. 7, 11. The Examiner’s Answer adheres to these
findings (Ans. 3), and responds to the Appellants’ arguments by reproducing
the principal references’ Figures and making the same unsupported findings
about “additional regions.” Ans. 4—6.
In establishing a prima facie case of obviousness, “[w]hen a reference
is complex or shows or describes inventions other than that claimed by the
applicant, the particular part relied on must be designated as nearly as
practicable.” 37 C.F.R. § 1.104(c)(2). In this case the Examiner, by
repeatedly citing to entire prior art references, has failed to comply with this
regulation.
Not All Limitations Taught.
The Appellants do not dispute that the primary references to Garrett
and Azbe disclose the four claimed zones, namely, a preheating zone, a
calcining zone, a sintering combustion zone and a cooling zone. Appeal Br.
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Application 12/092,297
9—12, Reply Br. 2. Appellants argue that the additional references relied on,
Burton and Nuesmeyer, do not teach:
at least one additional combustion region . . . having:
(a) an intake opening, a discharge opening, a firing region[,] at
least one conveyor device [,] and a means for supplying oxygen-
containing gas; and
(b) the means for supplying oxygen-containing gas having an
inlet into the firing region and arranged above the fuel bed such
that oxygen-containing gas flows over the fuel bed.
Appeal Br. 7—8; see also Reply Br. 2.
The Examiner finds that Burton teaches the italicized features in
paragraphs (a) and (b) above. Ans. 7.3 For example, the Examiner finds that
the air openings 22 shown in Burton Figure 1 constitute “means for
supplying oxygen-containing gas 9 seen in Fig. 2 of [Appellants’]
application.” Ans. 7. We do not agree with the Examiner. As Appellants
point out, Burton actually discloses that “air from the tuyere openings 22
enters the bed, and with volatile matter and gases passes upwardly through
the incandescent top of the bed.” Burton, p. 2,11. 41^44. Accordingly, in
Burton, the means for supplying oxygen-containing gas, i.e., the tuyere
openings 22, does not have an inlet arranged above the fuel bed so that gas
flows over the fuel bed. Instead, the air from the tuyere openings 22 flows
through the fuel bed.
3 The Examiner also finds that Burton discloses “at least one additional
combustion region for producing heat for the production of the cement
clinker.” Final Act. 5, Ans. 3. We find no mention in Burton of the
manufacture of cement. Burton states that it “relates to improvements and
furnaces, particularly furnaces of the under-feed type, and has special
reference to improvements in automatic means for supplying fuel and air
thereto.” Burton, p. 1,11.1—5.
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The Examiner also finds that Nuesmeyer discloses
at least one additional combustion region for producing heat for
the production of the cement clinker,4 the at least one additional
combustion region has an intake opening for the admission of
solid fuels, a discharge opening for the removal of the resulting
combustion products, a firing region, at least one conveyor
device for transporting the fuel and means for supplying
oxygen-containing gas, the firing region being in such a form
that the fuel introduced into the firing region forms a fuel bed
and the means for supplying oxygen-containing gas having an
inlet into the firing region and arranged above the fuel bed such
that oxygen-containing gas flows over the fuel bed, the at least
one additional combustion region is in the form of an underfeed
furnace and the conveyor device is provided outside the firing
region and is in such a form that it introduces the fuel into the
fire region and thereby moves the fuel bed, in the direction
towards the discharge opening.
Final Act. 7, see also Ans. 9-11. The Answer provides an annotated Figure
5 from Nuesmeyer with a circle that encompasses air openings 56, 59, 62,
and 63 and identifies them all as air inlets above a fuel bed. Ans. 10.
Because the Examiner fails to identify the particular part(s) relied on, we
address each row of air inlets in turn. The lowermost row of these openings
is formed by underfire air holes 56. Underfire air holes 56 allow combustion
air to be injected “approximately horizontally . . . into the burning fuel to
provide primary combustion.” Nuesmeyer 3:59-62. Thus, the Examiner is
incorrect if he asserts that the underfire holes 56 meet the italicized
limitations because they are not “arranged above the fuel bed.” Appeal Br.
4 Nuesmeyer discloses a stove for burning pellets or wood chips for
domestic heating purposes. Nuesmeyer 1:9—12. We find no support for the
Examiner’s finding “at least one additional combustion region for producing
heat for the production of the cement clinker.'1'’ Final Act. 7 (emphasis
added).
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Application 12/092,297
14 (Claims App.). Moving upward, the next row of air holes are crossfire air
holes 59. These holes are located around the periphery of the bum pot 35
and direct air vertically, thereby containing the burning gases over the bum
pot. Nuesmeyer 4:6—10. Again, the Examiner is wrong if he is contending
that the crossfire holes 59 meet the italicized limitations because, given their
vertical orientation, they are not arranged such that air “flows over the fuel
bed.” Appeal Br. 14 (Claims App.). Moving upward, the next row of air
holes are overfire holes 62. These holes
deflect crossfire air towards the center of the area over bum pot
35 [] and [] inject streams of air directly over the periphery 40.
These functions serve to provide additional combustion air to
foster the burning of rising gases and confine the flames to a
region directly over the bum area.
Nuesmeyer 4:34—39. Finally, the top row is formed by overfire holes 63
which “direct a stream of combustion air into the uppermost region of the
flaming gases to complete the combustion process. This secondary
combustion process is a result of the combination of crossfire and overfire
air.” Nuesmeyer 4:39-43. Accordingly, we find that Nuesmeyer discloses
air outlets, namely overfire holes 62 and 63, “arranged above the fuel bed
such that oxygen containing gas flows over the fuel bed,” as recited in claim
1.
In their Reply Brief, Appellants discuss the holes 62 and 63 by
identifying them and merely denying that they meet the italicized claim
limitations. Reply Br. 4. More than a recitation of the claim limitation and
denying its presence in the prior art is required. See 37 C.F.R. § 41.37
(c)(l)(iv); In reLovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011).
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Application 12/092,297
In view of the foregoing, we are not convinced by Appellants’
argument that “the cited prior art fails to show or suggest each and every
element of claim 1.” Appeal Br. 11.
Motivation to Combine.
Appellants also argue that the Examiner failed to provide a sufficient
showing of motivation to combine or modify the references. Appeal. Br.
11—12. The Final Action cites Burton’s suggestion for a furnace in which
combustion is efficient and complete and which is inexpensive and compact,
but never specifies what features or teachings of Burton are to be combined
with corresponding features from the principal reference. Final Act. 9. The
Examiner made the same uninformative conclusion about Azbe combined
with Burton. Final Act. 11.
In response, Appellants point out that the Examiner specifically
mentions only providing a furnace that is efficient and ensures complete
combustion. Appeal Br. 11, citing Final Act. 9. Appellants concede that
Burton and Nuesmeyer teach ways to make efficient furnaces, but argue that
there is no motivation to add an additional combustion region, even an
efficient one, to an existing cement manufacturing plant. Appeal Br. 11.
The Examiner’s Answer alleges it is well-known in the furnace art to
provide additional combustion chambers to assure complete combustion, but
provides no supporting evidence. Ans. 11. As motivation for making the
claimed combination, the Examiner relies on “some teaching, suggestion, or
motivation to do so found in both the references themselves as well as in the
knowledge generally available to one of ordinary skill in the art.” Ans. 11.
As evidence the Examiner cites only Burton’s suggestion that efficiency is
an obvious furnace design goal {id. at 11—12 (citing Burton p. 1,11. 6—13))
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Application 12/092,297
and a teaching from Nuesmeyer that adjusting air pressure and maximizing
efficiency are desirable {id. at 12 (citing Nuesmeyer 7:1—15.)) Finally, the
Examiner adds, without explanation or analysis, that “mere duplication of
the essential working parts (e.g., combustion regions) of a device involves
only routine skill in the art.” Ans. 12 (emphasis omitted).
Our reviewing court has set forth the standard for determining the
sufficiency of an Examiner’s rejection:
[T]he PTO carries its procedural burden of establishing a prima
facie case when its rejection satisfies 35 U.S.C. § 132, in
“notifying] the applicant . . . [by] stating the reasons for [its]
rejection, or objection or requirement, together with such
information and references as may be useful in judging of the
propriety of continuing the prosecution of [the] application.”
That section “is violated when a rejection is so uninformative that
it prevents the applicant from recognizing and seeking to counter
the grounds for rejection.”
In re Jung, 637 F.3d 1356, 1362 (Fed. Cir. 2011) (citations omitted)
(alterations in original). Moreover, the Examiner is required to supply
“some articulated reasoning with some rational underpinning to
support the legal conclusion of obviousness.”
KSRInt’l Co. v. Teleflex, Inc., 550 U.S. 398, 418 (2007) (quoting In re
Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)). As the Federal Circuit recently
reiterated in In re Nuvasive, “the PTAB must articulate a reason why a
PHOSITA [person having ordinary skill in the art] would combine the prior
art references.” In re Nuvasive, No. 2015-1670, slip op. 9. (Dec. 7, 2016).
Here the Examiner’s proffered reasoning for adding an additional
combustion region to an existing cement kiln lack rational underpinning.
The evidence from the Burton and Nuesmeyer references relates to the
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Application 12/092,297
design of furnaces, not to the addition of an additional combustion region to
a cement kiln.
The Examiner’s reliance, without explanation, on a rule that mere
duplication of essential parts is routine, is insufficient. Mere duplication of
parts is an older per se rule of unpatentability that is highly disfavored in
recent case law since it basically eliminates a need for fact specific analysis
of claims and the prior art. See, e.g., In re Ochiai, 71 F.3d 1565, 1572 (Fed.
Cir. 1995). Here, the Examiner has not identified which part of the principal
references is to be duplicated nor why one would do so. Accordingly, we
agree with the Appellants that the Examiner has not provided a prima facie
case of obviousness.
DECISION
For the above reasons, the Examiner’s rejection of claim 13 as
indefinite is sustained. The Examiner’s rejection of claims 1, 3, and 6—14 as
unpatentable under 35 U.S.C. § 103(a) is reversed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv) (2009).
AFFIRMED-IN-PART
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