Ex Parte Brancuzsky et al

Patent Trial and Appeal Board

Mar 29, 2018

12812467 (P.T.A.B. Mar. 29, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/812,467 10/18/2010
23908 7590 04/02/2018
RENNER OTTO BOISSELLE & SKLAR, LLP
1621 EUCLID AVENUE
NINETEENTH FLOOR
CLEVELAND, OH 44115
FIRST NAMED INVENTOR
Zdenek Brancuzsky
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
BARDP0168US 7759
EXAMINER
YUEN, JESSICA JIPING
ART UNIT PAPER NUMBER
3743
NOTIFICATION DATE DELIVERY MODE
04/02/2018 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):
ipdocket@rennerotto.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ZDENEK BRANCUZSKY, GUNTER HENSEL,
KAREL NAPRA VNIK, and WOLFGANG SEIFERT
Appeal2017-006538
Application 12/812,467
Technology Center 3700
Before MICHELLE R. OSINSKI, ANNETTE R. REIMERS, and
PAUL J. KORNICZKY, Administrative Patent Judges.
KORNICZKY, Administrative Patent Judge.
DECISION ON APPEAL
Appeal2017-006538
Application 12/812,467
STATEMENT OF THE CASE
Appellants Zdenek Brancuzsky et al. 1 appeal under 35 U.S.C.
§ 134(a) from the Examiner's decision, as set forth in the Final Office
Action dated March 28, 2016 ("Final Act."), rejecting claims 1-31. We
have jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM-IN-PART.
THE CLAIMED SUBJECT MATTER
The claims are directed to a method for continuously drying bulk
goods, in particular wood fibers and/or wood chips. Claims 1 and 14 are the
independent claims on appeal. Claim 1, reproduced below with disputed
limitations italicized for emphasis, is illustrative of the claimed subject
matter:
1. A method for continuously drying bulk goods in a dryer,
which is supplied with bulk goods and through which a vapor gas
mixture passes in a drying circuit, the method comprising:
indirectly heating the vapor gas mixture via at least one
heat exchanger by a burner exhaust gas, wherein the drying
vapors are guided and heated up in the at least one heat
exchanger; and
branching off, upstream, downstream and/ or within the at
least one heat exchanger, at least a partial flow of the drying
vapors to be conducted into the burner, wherein the partial flow
to the burner is driven by at least one regulable partial vapor fan,
which is regulated via the pollution level of the burner exhaust
gases and according to the oxygen content in the exhaust gas of
the burner and via a maximum inert gas content in the drying
circuit.
Appellants identify Douglas Technical Limited as the real party in
interest. Appeal Brief, dated August 29, 2016 ("Appeal Br."), at 2.
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REFERENCES
In rejecting the claims on appeal, the Examiner relied upon the
following prior art:
Peczeli
Farrar
Natter
Kunz
Sarkin en
Texas Rendering
Cerea
Kunz'006
Kang
us 3,576,384
us 4,979,447
us 5,161,488
us 5,271,162
US 6,238,207 Bl
GB 1,564,743
WO 2004/079282 Al
EP 0714006 Al
KR 2001073 869 A
REJECTIONS
The Examiner made the following rejections:
Apr. 27, 1971
Dec. 25, 1990
Nov. 10, 1992
Dec. 21, 1993
May 29, 2001
Apr. 10, 1980
Sept. 16, 2004
May 29, 1996
Aug. 3, 2001
1. Claims 22 and 28 stand rejected under 35 U.S.C. § 112, first
paragraph, as failing to comply with the enablement requirement.
2. Claims 1, 2, 6, 7, 9, 14, 15, 18, 19, 21, 27, and 30 stand rejected
under 35 U.S.C. § 103(a) as being unpatentable over Kunz, Natter, and
Cerea.
3. Claims 3-5, 16, 17, 26, and 29 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Kunz, Natter, Cerea, and Farrar.
4. Claims 8 and 20 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Kunz, Natter, Cerea, and Texas Refining.
5. Claims 10 and 22 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Kunz, Natter, Cerea, and Kunz '006.
6. Claims 11, 12, 23, and 24 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Kunz, Natter, Sarkinen, and Peczeli.
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7. Claims 13, 25, and 31 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Kang, Kunz, Natter, and Cerea.
Appellants seek our review of these rejections.
DISCUSSION
Rejection 1: Claims 22 and 28 as
as Failing to Meet the Enablement Requirement
The test for enablement is whether Appellants' disclosure is sufficient
for one of ordinary skill in the art to make and use the invention without
undue experimentation. In re Wands, 858 F.2d 731, 787 (Fed. Cir. 1988).
The rejection fails to discuss the disclosure in terms of undue
experimentation or address any Wands factors. The Examiner did not
articulate sufficient findings or analysis to show that a person of ordinary
skill in the art would have been unable to make and use the claimed
invention without undue experimentation. As such, the Examiner has not
met the initial burden to establish a reasonable basis to question the
enablement. In re Wright, 999 F.2d 1557, 1561---62 (Fed. Cir. 1993) (when
rejecting a claim for lack of enablement, the USPTO bears the initial burden
of setting forth a reasonable explanation as to why the scope of the claim is
not adequately enabled by the description provided in the Specification).
Specific comments regarding claims 22 and 28 are discussed below.
Claim 22
Claim 22, which depends from claim 21, recites "an additional heat
exchanger is provided for a preheating of the additional exhaust gases before
the same are supplied to the burner."
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Application 12/812,467
The Examiner asserts that claim 22 is not supported by the
Specification because "the additional exhaust gases are gases from the
burner which already passed through the heat exchanger 4." Answer, dated
January 12, 2017 ("Ans."), at 4.
In response, Appellants explain that the additional exhaust gases are
in addition to the exhaust gases of the burner; that is, the "additional"
exhaust gases are the exhaust gases from an air press 16 and/or sawing
arrangement 17 shown in Figure 2 of the Specification. Reply Brief, dated
March 13, 2017 ("Reply Br."), at2-3 (citing Spec. 14:17-22, Fig. 2). In
light of the disclosure in the Specification and Appellants' explanation, the
rejection of claim 22 is not sustained.
Claim 28
Claim 12, which depends from claim 11, recites "the inner and/ or the
outer nozzle ring has (have) an entering angle between approximately 0 and
approximately 60 degrees." Claim 28, which depends from claim 12, recites
"the angle is adjustable depending on the type of fuel used."
The Examiner states that the Specification does not support claim 28
and "[i]t is unclear how to adjust the angle of the inner and/or the outer
nozzle ring depending on the fuel used." Final Act. 4. In light of
Appellants' Rule 132 Affidavits and the Specification which states that
different fuels (e.g., natural gas or oil) may be used, and the angle of the
nozzle rings are pre-adjusted for the "respective fuels," we believe the
Specification describes claim 28. See, e.g., Spec. 6:8-10, 8:3---6. Thus, the
rejection of claim 28 is not sustained.
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Rejections 2-7: Claims 1-27 and 29-31
Independent Claims 1 and 14
The Examiner finds that Kunz discloses all of the limitations in both
independent claims 1 and 14, except a partial vapor fan which "is regulated
[1] via the pollution level of the burner exhaust gases and [2] according to
the oxygen content in the exhaust gas of the burner and [3] via a maximum
inert gas content in the drying circuit." Final Act. 5---6. With respect to the
missing claim limitations, the Examiner finds that Natter discloses "a
concept of regulating the vapor fan 40 (by controller 71) via the pollution
level of the burner exhaust gases (measured by exhaust gas sensor 76),
according to the oxygen content in the exhaust gas of the burner." Id. at 6
(citing Natter 6:7-14). The Examiner explains that Natter's "pollution level
of the burner exhaust gases are carbon monoxides." Id. The Examiner
further finds that "Cerea discloses that the vapor fan 7 is regulated via
maximum inert gas content in the drying circuit." Id. (citing Cerea, Fig. 1,
2:1-18; 6:25-31).
The Examiner reasons that it would have been obvious to one having
ordinary skill in the art ( 1) "to modify the method of Kunz et al. to include a
step and an arrangement of regulating vapor fan via the pollution level of the
burner exhaust gases, [and] according to the oxygen content in the exhaust
gas of the burner as taught by Natter in order to improve the operation of the
burner" and (2) "to further modify the method of Kunz et al to regulate
vapor fan via a maximum inert gas content in the drying circuit as taught by
Cerea in order to neutralize the system and prevent explosion hazard." Id.
Appellants assert that the Examiner's rejection is erroneous for
several reasons. First, Appellants argue that Kunz does not disclose
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"regulating a vapor fan" as recited in claims 1 and 14. Appeal Br. 14.
However, Appellants are attacking the teachings of Kunz individually.
Nonobviousness cannot be established by attacking the references
individually when the rejection is predicated upon a combination of prior art
disclosures. In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986).
Here, the Examiner finds that Natter, not Kunz, discloses regulating a vapor
fan. Final Act. 3. Appellants do not address the rejection as articulated by
the Examiner, and, thus, do not identify error by the Examiner.
Second, Appellants argue that Natter "does not disclose regulating a
vapor fan [1] via the pollution level of the burner gases and [2] according to
the oxygen content in the exhaust gases." Appeal Br. 14 (emphasis added).
According to Appellants, "Natter identifies these two control options as
alternatives." Id. (citing Natter 6:7-14). Natter states that a controllable
fan 40 is controlled by sensors 69, 70 and a proportional controller 71. See,
e.g., Natter 4:57---65. Natter also states:
The two limitations of controller 71 may also be controlled,
instead of by temperature sensor 72, by means of an exhaust gas
sensor 76 in flue gas channel 45. Exhaust gas sensor 76 may
measure, for example, the 02 content or the CO content of the
exhaust gases and ensure by way of the limitation in controller
71 that a minimum 02 content will always be maintained and a
CO content limit value will not be exceeded.
Natter 6:7-14 (emphasis added). We do not read this portion of Natter as
narrowly as Appellants. Natter states the controller 71 maintains both
control options - a "minimum 02 content" (i.e., oxygen content) and "a CO
content limit value will not be exceeded" (i.e., pollution level). Contrary to
Appellants' argument, Natter does not identify these two control
requirements as options or alternatives. The fact that Natter's sensor 76
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measures the 0 2 content or the CO content of the exhaust gases to maintain
both of the control requirements is irrelevant to claims 1 and 14, which are
not directed to measuring oxygen content and pollution level. Appellants do
not identify error in the Examiner's finding that Natter discloses regulating a
fan "[ 1] via the pollution level of the burner exhaust gases and [2] according
to the oxygen content in the exhaust gases."
Third, Appellants argue that Cerea "does not disclose regulating a
vapor fan via the maximum inert gas content in the drying circuit." Appeal
Br. 14. According to Appellants, "Cerea merely discusses diverting steam."
Id. at 14--15 (citing Cerea, 2:1-18, 6:25-31).
In response to Appellants' argument, the Examiner explains that
Cerea and the Specification regulate the inert gas in the same way. Ans. 7-
8. According to the Examiner, the Specification discloses that the vapor fan
is regulated via the inert gas content by measuring oxygen content and/or
water content in the drying circuit (e.g., the drying vapors) and by
maximizing the inert gas content in the drying circuit. Id. at 7 (citing Spec.,
pages 5, 7). Similarly, "Cerea discloses that the vapor fan 7 is regulated to
ensure that steam (i.e. water content) is kept at a constant value ensuring
th[ at] substantially no oxygen is present or that the material cannot be
ignited by continuous drawing downstream of an amount of steam
corresponding to the amount of steam generated within the drier." Id. (citing
Cerea i-fi-17-11, 49).
In response to the Examiner's explanation, Appellants summarily
assert that the "fan in Cerea, like the fan in Kunz, is not regulated at all" and
"Cerea discloses diverting steam downstream of the fan 7 by actuation of a
valve 12." Reply Br. 5 (citingCerea2:1-18, 6:25-31).
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Appellants' conclusory arguments are not persuasive. Cerea discloses
that fan 7, not valve 12, draws steam into duct 6, and then the steam is
diverted into duct 8/heat exchanger 9 and duct 11/valve 12. See, e.g., Cerea
6:21-28. Appellants' arguments do not persuasively explain why the
Examiner is incorrect in stating that both Cerea and the Specification control
the maximum inert gas content (i.e., steam) in the drying circuit in a similar
manner. In addition, the Examiner finds that Natter, not Cerea, discloses
regulating a vapor fan. Merck, 800 F.2d at 1097 (Nonobviousness cannot be
established by attacking the references individually when the rejection is
predicated upon a combination of prior art disclosures.); Final Act. 6.
Appellants do not address the Examiner's explanation or the rejection as
articulated by the Examiner, and, thus, does not identify error in the
Examiner's findings and reasoning.
Fourth, Appellants argue that "there is no indication in Cerea that the
teaching is applicable to or combinable with the devices of either Kunz or
Natter." Appeal Br. 15. Appellant's' argument that Cerea does not disclose
a motivation to combine with Kunz or Natter is unpersuasive. Contrary to
Appellants' argument, an express teaching or motivation in the references is
not required. KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007).
Instead, the Examiner need only articulate a reason to combine the
references with some rational underpinning to support the legal conclusion
of obviousness. Id. Here, the Examiner reasons that it would have been
obvious to one having ordinary skill in the art (1) "to modify the method of
Kunz et al. to include a step and an arrangement of regulating vapor fan via
the pollution level of the burner exhaust gases, [and] according to the
oxygen content in the exhaust gas of the burner as taught by Natter in order
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to improve the operation of the burner" and (2) "to further modify the
method of Kunz et al to regulate vapor fan via a maximum inert gas content
in the drying circuit as taught by Cerea in order to neutralize the system and
prevent explosion hazard." Final Act. 6. Appellants do not address the
Examiner's articulated reasoning for combining Kunz, Natter, and Cerea,
and, thus, do not identify error by the Examiner.
For the reasons discussed above, the rejection of independent claims 1
and 14 is sustained.
Dependent Claims 2-13, 15-27, and 29-31 ~
Claims 2-13, 15-27, and 29-31 depend from claims 1 or 14. In
response to the Examiner's rejections of these dependent claims, Appellants
state "[ n ]one of the prior art cited in the rejection of these dependent claims,
either alone or in combination, teaches or suggests the arrangement of
claims 1and14 .... Additionally, the rejection of claims 2-13 and 15-31,
all of which ultimately depend either from claim 1 or claim 14, should be
reversed for at least the same reasons." Appeal Br. 16.
Appellants essentially argue that the additional art cited in the
rejections of the dependent claims (Farrar, Texas Rendering, Kunz '006,
Sarkinen, Peczeli, Kang) fail to cure the deficiencies in the combination of
Kunz, Natter, and Cerea. We have found no such deficiencies. Thus, the
rejections of claims 2-13, 15-27, and29-31 are sustained.
2 Claim 28 is not rejected under 35 U.S.C. § 103.
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DECISION
For the above reasons, the rejection of claims 22 and 28 under 35
U.S.C. § 112, first paragraph, is REVERSED.
The rejections of claims 1-27 and 29-31 under 35 U.S.C. § 103(a) are
AFFIRMED.
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).
AFFIRMED-IN-PART
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