12999918 (P.T.A.B. May. 24, 2017)

Ex Parte Amirat et al

Patent Trial and Appeal BoardMay 24, 2017

12999918 (P.T.A.B. May. 24, 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. 12/999,918 12/17/2010 Mohand Amirat 37273 8US99X PCT 8996 22850 7590 05/26/2017 OBLON, MCCLELLAND, MAIER & NEUSTADT, L.L.P. 1940 DUKE STREET ALEXANDRIA, VA 22314 EXAMINER LAU, JASON ART UNIT PAPER NUMBER 3743 NOTIFICATION DATE DELIVERY MODE 05/26/2017 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): patentdocket @ oblon. com oblonpat @ oblon. com tfarrell@oblon.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte MOHAND AMIRAT, JOHAN BEHEN, GABRIEL CONSTANTIN, OLIVIER DOUXCHAMPS, BENOIT GRAND, REMI TSIAVA, and FABRICE WAGEMANS Appeal 2015-003121 Application 12/999,9181 Technology Center 3700 Before STEFAN STAICOVICI, BRANDON J. WARNER, and FREDERICK C. LANEY, Administrative Patent Judges. STAICOVICI, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Mohand Amirat et al. (Appellants) appeal under 35 U.S.C. § 134(a) from the Examiner’s final decision rejecting claims 1—14. Appellants’ representative presented oral arguments on May 16, 2017. We have jurisdiction over this appeal under 35 U.S.C. § 6(b). 1 According to Appellants, AGC Glass Europe is the real party in interest. Appeal Br. 2 (filed Oct. 8, 2014). Appeal 2015-003121 Application 12/999,918 SUMMARY OF DECISION We REVERSE. INVENTION Appellants’ invention relates to “the use of burners operating with oxygen brought to an elevated temperature and fuels in gaseous or liquid state.” Spec. 1,11. 3^4. Claim 1, the sole independent claim, is representative of the claimed invention and reads as follows: 1. A power supply to burners of at least one glass melting furnace operating by oxy-combustion, the power supply comprising: at least one fuel injection unit; at least one supply unit that supplies a first oxygen fraction of hot oxygen at a temperature of 350°C to 650°C; and at least one supply unit that supplies a second oxygen fraction to the fuel injection unit, wherein distribution of the first and second oxygen fractions is carried out in order to develop a staged combustion, the second oxygen fraction is injected concurrently with a fuel, and the second oxygen fraction is introduced essentially without being heated prior to its supply into the fuel injection unit. REJECTIONS The following rejections are before us for review: I. The Examiner rejected claims 1—9 under 35 U.S.C. § 103(a) as being unpatentable over Tsiava et al. (US 2007/0172781 Al, 2 Appeal 2015-003121 Application 12/999,918 pub. July 26, 2007, hereafter “Tsiava”) and Kobayashi et al. (US 6,699,029 B2, iss. Mar. 2, 2004, hereafter “Kobayashi”). II. The Examiner rejected claims 10 and 11 under 35 U.S.C. § 103(a) as being unpatentable over Tsiava, Kobayashi, and Blizard (US 2,697,482, iss. Dec. 21, 1954). III. The Examiner rejected claims 12—14 under 35 U.S.C. § 103(a) as being unpatentable over Tsiava, Kobayashi, and Philippe et al. (US 5,984,667, iss. Nov. 16, 1999, hereafter “Philippe”). ANALYSIS Rejection I The Examiner finds that Tsiava discloses most of the limitations of independent claim 1, but fails to disclose “a first oxygen fraction of hot oxygen at a temperature of 350 deg. C to 650 deg. C.” Final Act. 2—3 (transmitted May 8, 2014). Nonetheless, the Examiner finds that Kobayashi discloses preheating a first oxygen fraction using an air heater, but does not preheat a second oxygen fraction. Id. at 3 (citing Kobayashi, col. 10,11. 37— 41, Fig. 2). The Examiner concludes that “[i]t would have been obvious to one having ordinary skill in the art at the time the invention was made to modify Tsiava where the first oxygen fraction is hot oxygen to provide a more efficient combustion process. This is because energy is not wasted heating up the oxidant.” Id. The Examiner further concludes that, because preheating an oxygen feed is well known, determining the claimed temperature range amounts to discovering an optimum range by routine experimentation and, hence, would have been obvious to a person of 3 Appeal 2015-003121 Application 12/999,918 ordinary skill in the art. Id. (citing In reAller, 220 F.2d 454, 456 (CCPA 1955), In re Antonie, 559 F.2d 618, 619 (CCPA 1977)). Appellants argue that because Tsiava discloses an oxidant that is not heated, and Kobayashi discloses preheating air to 272°C, but not in an oxy- combustion furnace, “[t]he Examiner has failed to show an adequate nexus between Tsiava and Kobayashi that would have provided motivation for a person of ordinary skill in the art to combine these references.” Appeal Br. 8. According to Appellants, “neither Tsiava [n]or Kobayashi disclose[s] or suggests] heated oxygen for oxy-combustion as claimed.” Reply Br. 6 (filed Jan. 20, 2015). Independent claim 1 recites, inter alia, “[a] power supply . . . operating by oxy-combustion . . . [including] at least one supply unit that supplies a first oxygen fraction of hot oxygen at a temperature of 350°C to 650°C.” Appeal Br. 17 (Claims App.). It is well settled that if the claim preamble is “necessary to give life, meaning and vitality” to the claim, then the claim preamble should be construed as if in the balance of the claim. Kropa v. Robie, 187 F.2d 150, 152 (CCPA 1951). In this case, Appellants’ Specification describes “oxy-combustion” as a “mode of combustion using oxygen or gas rich in oxygen (at least 85% oxygen).” Spec. 1,11. 6—7. As such, because “oxy-combustion” requires an oxygen content of at least 85%, there is a nexus between the preamble limitation “operating by oxy- combustion” and the claimed “at least one supply unit that supplies a first oxygen fraction of hot oxygen.” In other words, the preamble limitation “operating by oxy-combustion” limits the “at least one supply unit” to a supply unit that supplies heated oxygen having an oxygen content of at least 4 Appeal 2015-003121 Application 12/999,918 85%. We thus agree with Appellants that the structure of the claimed power supply is “designed to supply gas to the bumer[s] that is at least 85% oxygen.” Reply Br. 5. We appreciate that Kobayashi discloses a secondary supply line for supplying preheated air or oxygen enriched air. See Kobayashi, col. 10,11. 40-41 (“preheated to 522 °F”); col. 11,11. 35—37(“preheatedto 522 °F”); col. 13,11. 8—9 (“enriching the oxygen concentration ... to 22.02%”). However, because Kobayashi’s system supplies preheated air having at most an oxygen content of 22.02%, Kobayashi fails to disclose “at least one supply unit that supplies a first oxygen fraction of hot oxygen,” as called for by claim 1. Appellants are correct in that Kobayashi’s system fails to supply heated oxygen for oxy-combustion, as called for by claim 1, because the oxygen content of Kobayashi’s gas does not have an oxygen content of at least 85%. See Reply Br. 7. Finally, as Tsiava fails to disclose “at least one supply unit that supplies a first oxygen fraction of hot oxygen” (see Final Act. 3), we agree with Appellants that neither Tsiava nor Kobayashi discloses “[a] power supply . . . operating by oxy-combustion. . . [including] at least one supply unit that supplies a first oxygen fraction of hot oxygen.” See Reply Br. 6. In conclusion, for the foregoing reasons, we do not sustain the rejection of independent claim 1, and claims 2—9 depending therefrom, under 35 U.S.C. § 103(a) as unpatentable over Tsiava and Kobayashi. 5 Appeal 2015-003121 Application 12/999,918 Rejections II and III The Examiner’s use of the disclosures of Blizard and Philippe does not remedy the deficiency of the Examiner’s combination of the teachings of Tsiava and Kobayashi discussed supra. See Final Act. 5—6. Therefore, for the same reasons discussed above, we also do not sustain the rejections under 35 U.S.C. § 103(a) of claims 10 and 11 as unpatentable over Tsiava, Kobayashi, and Blizard, and of claims 12—14 as unpatentable over Tsiava, Kobayashi, and Philippe. SUMMARY The Examiner’s decision to reject claims 1—14 is reversed. REVERSED 6