11451811 (P.T.A.B. Mar. 5, 2014)

Ex Parte Bauer

Patent Trial and Appeal BoardMar 5, 2014

11451811 (P.T.A.B. Mar. 5, 2014)

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. 11/451,811 06/13/2006 Jon Frederick Bauer 7478 1594 29602 7590 03/05/2014 JOHNS MANVILLE 10100 WEST UTE AVENUE PO BOX 625005 LITTLETON, CO 80162-5005 EXAMINER KEMMERLE III, RUSSELL J ART UNIT PAPER NUMBER 1741 MAIL DATE DELIVERY MODE 03/05/2014 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE _________ BEFORE THE PATENT TRIAL AND APPEAL BOARD __________ Ex parte JON FREDERICK BAUER __________ Appeal 2012-009182 Application 11/451,811 Technology Center 1700 ___________ Before ADRIENE LEPIANE HANLON, HUBERT C. LORIN, and CATHERINE Q. TIMM, Administrative Patent Judges. HANLON, Administrative Patent Judge. DECISION ON APPEAL Appeal 2012-009182 Application 11/451,811 2 A. STATEMENT OF THE CASE The Appellant appeals under 35 U.S.C. § 134 from an Examiner’s decision finally rejecting claims 1, 4-8, 11-18, and 21-23. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. The subject matter on appeal relates to a method for producing a pre- reacted pellet used in the production of continuous filament glass fibers. According to the Appellant: Conventional manufacturing of continuous glass filament involves a continuous, integrated process in which combinations of mineral raw ingredients are blended and fed into large furnaces where they are melted, conditioned, and eventually delivered to multi-hole bushings from which fibers are drawn. Spec. 1, ll. 14-17. The Appellant discloses that: One major problem with current technology is that glass furnaces do not do an efficient job of blending and mixing glass raw ingredients. Current technology thus requires long residence times and consumes significant amounts of energy, both of which substantially increase the cost of producing continuous glass fibers. Further, carbon dioxide and other volatile materials form in the glass furnace from the decomposition of raw ingredients such as limestone and borates. This creates a troublesome foam within the glass furnace that increases the energy requires [sic, required] to form a homogeneous glass melt. Spec. 1, l. 29-2, l. 6. Appeal 2012-009182 Application 11/451,811 3 The Appellant discloses that it would be desirable “to provide a method in which decomposition of limestone occurs outside the glass furnace such that the volatile foam discussed above does not form within the glass furnace.” Spec. 2, ll. 9-11. The Appellant’s invention is directed to a method of producing a pre-reacted pellet wherein unwanted components such as carbonates and water are driven off prior to being fed into the glass furnace and a shorter residence time in the glass furnace is allowed. Spec. 2, ll. 13-22. Claim 7 is representative of the subject matter on appeal and is reproduced below from the Claims Appendix of the Appeal Brief dated February 2, 2012 (“Br.”). The limitation at issue is italicized. 7. A method for preparing a pre-reacted pellet for the production of glass comprising: preparing a mixture of raw materials; forming the mixture of raw materials into pellets; and heating the pellets in a pre-react kiln at a temperature of from 900ºC to about 1250ºC for a period of from about 1 to about 24 hours to remove carbonates from the raw materials. The claims stand rejected as follows: (1) claims 1, 5-8, 11-14, 16-18, 22, and 23 under 35 U.S.C. § 103(a) as unpatentable over Froberg1 in view of Helsen;2 and (2) claims 4, 15, and 21 under 35 U.S.C. § 103(a) as unpatentable over Froberg in view of Helsen and Brzozowski.3 1 US 4,298,369 issued November 3, 1981. 2 US 6,009,724 issued January 4, 2000. 3 US 4,188,228 issued February 12, 1980. Appeal 2012-009182 Application 11/451,811 4 B. ISSUE The dispositive issue on appeal is whether the Examiner reversibly erred in concluding that it would have been obvious to one of ordinary skill in the art to preheat the pellets of Froberg as recited in claim 7 based on the teachings of Helsen. We answer this question in the affirmative. C. DISCUSSION Froberg discloses a glass manufacturing process comprising the steps of combining glass batch ingredients and water into pellets, preheating the pellets, feeding the preheated pellets to a melting furnace, and melting the pellets. Froberg, col. 1, ll. 28-39; Ans. 4.4 The Examiner finds Froberg does not disclose that the pellets are heated at 900ºC-1200ºC for 1-24 hours to remove carbonates as recited in claim 7. Ans. 4. Thus, we presume that the volatile foam described in the Appellant’s Specification forms when Froberg’s pellets are melted in the melting furnace. See Spec. 2, ll. 3-6. In an attempt to demonstrate that a solution to the foaming problem would have been obvious to one of ordinary skill in the art, the Examiner relies on Helsen. The Examiner finds “Helsen discloses a similar method [for] forming prereacted pellets to use for glass forming which includes a calcination step to remove carbonates by heating at 500-1000ºC for 1-24 hours.” Ans. 4-5. The Examiner concludes that it would have been obvious to add the calcination step disclosed in Helsen to the process of Froberg 4 Examiner’s Answer dated February 29, 2012. Appeal 2012-009182 Application 11/451,811 5 “because Helsen disclose[s] that the calcination step reduces the amount of CO2 creat[ed] during the melting of the pellets to form the glass.” Ans. 5. The Appellant argues the processes disclosed in Froberg and Helsen are different and have different objectives. The Appellant argues Helsen does not form glass pellets and heat the pellets as in Froberg. Rather, the Appellant argues Helsen discloses a process for preparing glass wherein the raw materials are converted to freely flowing powder which is fed to a plasma torch. Br. 4. More specifically, the Appellant argues: The heating [in Helsen] is done to decompose carbonates, which facilitates homogenization and the transformation into glass “during the stay (of the powder) in the plasma torch.”. . . Thus, the calcination is for the homogenization of creating a powdered product by means of a plasma torch. This has nothing to do with a process in which a conventional glass melter is used or the energy efficiency of such a glass melter is improved. This has nothing to do with overcoming the problems of undesirable foam formed in a glass melter. Br. 5 (citation omitted). The Appellant’s arguments are supported by the record. See Helsen, col. 5, l. 65-col. 6, l. 4 (calcination facilitates the homogenization and the transformation into glass during the stay in the plasma torch). Nonetheless, the Examiner contends that one of ordinary skill in the art would have expected the advantages disclosed in Helsen (e.g., increased homogeneity and decreased energy demand) to apply to any glass melting process where CO2 may be generated. Ans. 7. Based on the record before us, we find the processes disclosed in Froberg and Helsen to be so different that one of ordinary skill in the art Appeal 2012-009182 Application 11/451,811 6 would not have considered the teachings of Helsen to be useful for solving the problems in Froberg relating to melting pellets in a conventional glass furnace. Thus, we find the Examiner’s conclusion of obviousness to be based on impermissible hindsight.5 See Br. 6 (“It is only with the advantage of the present application that one would use a calcination step in a process to prepare glass raw materials for a process of preparing glass in a glass furnace where pellets are used to form molten glass.”). For this reason, the § 103(a) rejection based on Froberg in view of Helsen will not be sustained. The Examiner does not rely on Brzozowski to cure the deficiencies in Froberg and Helsen discussed above. Therefore, the § 103(a) rejection based on Froberg in view of Helsen and Brzozowski will not be sustained. C. DECISION The decision of the Examiner is reversed. REVERSED cdc 5 “A rejection based on section 103 clearly must rest on a factual basis, and these facts must be interpreted without hindsight reconstruction of the invention from the prior art.” In re Warner, 379 F.2d 1011, 1017 (CCPA 1967).