Ex Parte Carrea

Board of Patent Appeals and Interferences

Jul 22, 2009

10814167 (B.P.A.I. Jul. 22, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte ELISABETTA CARREA
____________________

Appeal 2009-002259
Application 10/814,167
Technology Center 3700
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Decided:1 July 23, 2009
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Before WILLIAM F. PATE III, STEVEN D.A. McCARTHY
and KEN B. BARRETT, Administrative Patent Judges.

McCARTHY, Administrative Patent Judge.

DECISION ON APPEAL

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304 (2008), begins to run from the
Decided Date shown on this page of the decision. The time period does not
run from the Mail Date (paper delivery) or the Notification Date (electronic
delivery).

Appeal 2009-002259
Application 10/814,167

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STATEMENT OF THE CASE 1
The Appellant appeals under 35 U.S.C. § 134 (2002) from the 2
Examiner’s decision finally rejecting claims 1, 2, 4-10, 22-25 and 28 under 3
35 U.S.C. § 103(a) (2002) as being unpatentable over Golomb (US 4
5,724,805, issued Mar. 10, 1998) and Wunning (US 5,154,599, issued Oct. 5
13, 1992); finally rejecting claims 3, 12-14, 16, 20, 21 and 25 under § 103(a) 6
as being unpatentable over Golomb, Wunning and Yoshimoto (JP 10-89614 7
A1, publ. Apr. 10, 1998); finally rejecting claims 11 and 15 under § 103(a) 8
as being unpatentable over Golomb, Wunning and Griffin (US 6,947,098 9
B2, issued Dec. 24, 2002); finally rejecting claims 17-19 under § 103(a) as 10
being unpatentable over Golomb, Wunning, Griffin and Benson (US 11
5,636,977, issued Jun. 10, 1997); and finally rejecting claims 26 and 27. We 12
have jurisdiction under 35 U.S.C. § 6(b) (2002). 13
We AFFIRM the Examiner’s decision rejecting claims 1-25 and 28. 14
Although the Examiner and the Appellant agree that claims 26 and 27 stand 15
rejected (See Final Office Action, Dec. 8, 2006 at 1; Br. 3), the Examiner has 16
not articulated any reason for rejecting these claims. We summarily 17
REVERSE the Examiner’s decision rejecting claims 26 and 27. 18
Claim 1 is the sole independent claim on appeal: 19
20
1 A combustion process comprising: 21
forming a substantially nitrogen-free gas 22
mixture from oxidant, fuel, and inert gas; and 23
combusting said gas mixture in a burner, 24
wherein combusting comprises flameless 25
combustion. 26
27
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ISSUES 1
The Appellant argues independent claim 1 and dependent claim 12 2
separately. Claims 2, 4-10, 22-24 and 28 stand or fall with claim 1 for 3
purposes of the rejection of those claims under § 103(a) as being 4
unpatentable over Golomb and Wunning. Claims 3, 12-14, 16, 20, 21 and 5
25 stand or fall with claim 12 for purposes of the rejection of those claims 6
under § 103(a) as being unpatentable over Golomb, Wunning and 7
Yoshimoto. (Br. 5). Since claim 25 depends from claim 12, we do not 8
sustain the Examiner’s rejection of claim 25 under § 103(a) as being 9
unpatentable over Golomb and Wunning alone. 10
The Examiner finds that Golomb discloses forming a substantially 11
nitrogen-free gas mixture from substantially pure oxygen, an oxidant; fuel; 12
and carbon dioxide, an inert gas. (See Ans. 4). The Examiner concludes 13
that the method of claim 1 would have been obvious since Wunning would 14
have suggested combusting the gas mixture using flameless combustion so 15
as to lower nitrogen oxide [“NOx”] values and reduce noise in the burner 16
(Ans. 14). The Appellant contends that Golomb and Wunning would not 17
have provided one of ordinary skill in the art reason to use flameless 18
combustion to lower NOx since Golomb’s fuel mixture is nitrogen-free even 19
before combustion. (Br. 15). 20
The Examiner concludes that the installation of claim 12 would have 21
been obvious since Yoshimito would have suggested bringing the oxygen 22
and fuel together in the burner to form a gas mixture having a temperature 23
above the self-ignition temperature of the gas mixture so as to ignite without 24
need for a pilot burner. (Ans. 17). The Appellant, based on the drawing 25
figures of Yoshimoto, appears to contend that Yoshimoto does not disclose 26
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heat transfer between the hot combustion gases and the combustion air 1
sufficient to bring the fuel and air to a temperature above the self-ignition 2
temperature. (Br. 16). 3
The Appellant relies solely on the contentions directed against the 4
rejections of claims 1 and 12 in support of the patentability of claims 11 and 5
15 over Golomb, Wunning and Griffin and of claims 17-19 over Golomb, 6
Wunning, Griffin and Benson. 7
This appeal turns on two issues: 8
Has the Appellant shown that the Examiner failed to 9
articulate reasoning with some rational underpinning sufficient 10
to support the conclusion that Golomb and Wunning would 11
have provided one of ordinary skill in the art reason to use 12
flameless combustion to oxidize a nitrogen-free mixture of 13
substantially pure oxygen, fuel and carbon dioxide? 14
Has the Appellant shown that the Examiner failed to 15
articulate reasoning with some rational underpinning sufficient 16
to support the conclusion that Golomb, Wunning and 17
Yoshimoto would have provided one of ordinary skill in the art 18
reason to include bringing oxygen and fuel together in a burner 19
to form a gas mixture having a temperature above the self-20
ignition temperature of the gas mixture prior to oxidizing the 21
oxygen and fuel by flameless combustion? 22
23
FINDINGS OF FACT 24
The record supports the following findings of fact (“FF”) by a 25
preponderance of the evidence. 26
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1. Golomb discloses a natural gas-fired power plant comprising an 1
air separation/CO2 capture [“AS/CC”] unit and a gas turbine including a 2
combustor. (Golomb, col. 5, ll. 35-45). 3
2. Golomb’s AS/CC separates air into liquid oxygen, gaseous 4
nitrogen and argon. The liquid oxygen is evaporated in the process of 5
condensing carbon dioxide produced in the combustor. (Id.) 6
3. Golomb describes mixing the oxygen with exhaust gas, that is, 7
carbon dioxide, and supplying the mixture to the combustor. (Golomb, col. 8
7, ll. 53-56). The oxygen and carbon dioxide mix with natural gas fuel in 9
the combustor prior to combustion. (Golomb, col. 9, l. 66 – col. 10, l. 3). 10
4. Golomb also describes supplying the oxygen directly to the 11
combustor. (Golomb, col. 7, ll. 56-58). The oxygen mixes with natural gas 12
fuel in the combustor prior to mixing with diluting carbon dioxide. 13
5. Golomb describes gradually introducing diluting carbon 14
dioxide along the combustor to oxidize any carbon monoxide entrained in 15
the carbon dioxide as fully as possible. (Golomb, col. 9, ll. 60-61 and col. 16
10, ll. 8-14). 17
6. Wunning describes combusting a mixture of exhaust gas, 18
combustion air and fuel by means of substantially flameless, pulse-free 19
oxidation. (Wunning, col. 2, ll. 36-50). 20
7. Wunning discloses that, to set the flameless oxidation of the 21
fuel in motion, an adequate quantity of exhaust gas for admixing with the 22
combustion air must be available and the mixture of combustion air and 23
exhaust gas must be at least at ignition temperature. (Wunning, col. 4, ll. 1-24
5; see also id., col. 6, ll. 55-61). 25
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8. Wunning discloses that one advantage of oxidizing the fuel by 1
flameless combustion is the relatively low temperature of oxidation leads to 2
low nitrogen oxide formation. (Wunning, col. 2, ll. 18-20 and col. 2, l. 62 – 3
col. 3, l. 3). 4
9. Wunning discloses that another advantage of oxidizing the fuel 5
by flameless combustion is a drastic reduction in the noise level in the 6
combustion chamber due to the suppression of pressure fluctuations in the 7
flame. (Wunning, col. 3, ll. 3-9). 8
10. Yoshimoto describes a radian tube burner including a pair of 9
alternately-activated burners. (Yoshimoto 22, ¶ 0023). Yoshimoto’s radian 10
tube burner includes rows of heat accumulating bodies positioned near each 11
of the burners. (Yoshimioto 15-16, ¶ 0016). The heat accumulating bodies 12
accumulate heat from the exhaust gases generated in the radian tube burner. 13
The heat accumulating bodies use the accumulated heat to preheat the 14
combustion air and the fuel. (Id.; Yoshimoto 36, ¶ 0036). 15
11. Yoshimoto discloses that preheating the combustion air above 16
the natural ignition temperature of the fuel obviates the need for a pilot 17
burner. (Yoshimoto 36-37, ¶ 0036). 18
19
PRINCIPLES OF LAW 20
The Appellant has not identified any objective evidence in the record 21
which might have tended to prove secondary indicia of nonobviousness. 22
(See Br. 24). Therefore, the Appellant’s burden on appeal is to show that the 23
Examiner has produced insufficient evidence of prima facie obviousness. In 24
re Kahn, 441 F.3d 977, 985-86 (Fed. Cir. 2006)(emphasis omitted). 25
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ANALYSIS 1
The Appellant has not met this burden with respect to the rejection of 2
representative claim 1. The Appellant does not dispute that Golomb 3
describes forming a substantially nitrogen-free gas mixture from oxidant, 4
namely, substantially pure oxygen; a fuel, namely, natural gas; and inert gas, 5
namely, carbon dioxide. (See Br. 9; see also FF 2-5). Neither does the 6
Appellant dispute that Wunning describes benefits of flamelessly 7
combusting a gas mixture including combustion air, fuel and carbon dioxide 8
in a burner. (See Br. 10; see also FF 6, 8 and 9). The Examiner concludes 9
that the teachings of Golomb and Wunning would have provided one of 10
ordinary skill in the art reason to form the substantially nitrogen-free gas 11
mixture of substantially pure oxygen, natural gas and carbon dioxide 12
described by Golomb and then combust the gas mixture flamelessly in a 13
burner. 14
The Examiner articulates two such reasons for the combination: First, 15
the Examiner concludes that one of ordinary skill in the art would have 16
recognized from the teachings of Wunning that the use of flameless 17
combustion would have lowered the nitrogen oxide level produced by the 18
combustion. Second, the Examiner concludes that that one of ordinary skill 19
in the art would have recognized from the teachings of Wunning that the use 20
of flameless combustion would have lowered the noise level produced by the 21
combustion. (Ans. 14). The Appellant attacks the first reason as lacking 22
rational underpinning in the teachings of Golomb and Wunning (Br. 15) but 23
fails to provide any explanation as to why the second reason might lack such 24
rational underpinning. Since the Examiner has articulated reasoning with 25
some rational underpinning (see, e.g., FF 9) in support of the legal 26
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conclusion of obviousness, the Examiner’s rejections of representative claim 1
1 and of the claims grouped with claim 1 stand. See Kahn, 441 F.3d at 988. 2
Neither has the Appellant met the burden with respect to the rejection 3
of representative claim 12. Golomb discloses bringing oxygen and fuel 4
together in the burner first to form a gas mixture. (FF 4 and 5). The 5
Appellant does not dispute that Wunning discloses preheating the oxidant, 6
namely, the combustion air, above the self-ignition temperature of the gas 7
mixture. (See Br. 10). In fact, Wunning suggests that preheating the 8
combustion air so as to raise the temperature of the mixture above the self-9
ignition temperature promotes setting flameless combustion in motion. (See 10
FF 7). These teachings and suggestions themselves would have provided 11
one of ordinary skill in the art reason to provide an installation useful for 12
carrying out the method of representative claim 1 including a mixture 13
forming device configured and arranged to bring oxygen and fuel together in 14
a burner to form a gas mixture having a temperature above the self-ignition 15
temperature of the gas mixture. 16
The Examiner finds that Yoshimoto discloses preheating combustion 17
air or fuel above the self-ignition temperature of a combustion gas mixture 18
in order to promote the ignition of the combustion gas mixture without a 19
pilot burner. (See Ans. 16-17; see also FF 10 and 11). Yoshimoto describes 20
preheating the combustion air or gas using heat from the exhaust gas through 21
the medium of heat accumulating bodies (FF 10), even assuming for 22
purposes of this appeal only the absence of substantial heat transfer through 23
direct contact between the combustion gas mixture and the exhaust gas. As 24
the Examiner concludes (see Ans. 6), this disclosure, together with 25
Wunning’s suggestion that preheating the combustion air so as to raise the 26
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temperature of the mixture above the self-ignition temperature promotes 1
setting flameless combustion in motion, would have provided one of 2
ordinary skill in the art reason to provide an installation useful for carrying 3
out the method of representative claim 1 including a mixture forming device 4
configured and arranged to bring oxygen and fuel together in a burner to 5
form a gas mixture having a temperature above the self-ignition temperature 6
of the gas mixture. Since the Examiner has articulated reasoning with some 7
rational underpinning in support of the legal conclusion of obviousness, the 8
Examiner’s rejection of representative claim 12 and of the claims grouped 9
with claim 12 stand. 10
11
CONCLUSIONS 12
The Appellant has not shown that the Examiner failed to articulate 13
reasoning with some rational underpinning sufficient to support the 14
conclusion that Golomb and Wunning would have provided one of ordinary 15
skill in the art reason to use flameless combustion to oxidize a nitrogen-free 16
mixture of substantially pure oxygen, fuel and carbon dioxide. Therefore, 17
the Appellant has not shown that the Examiner erred in rejecting claims 1, 2, 18
4-10, 22-24 and 28 under § 103(a) as being unpatentable over Golomb and 19
Wunning. 20
The Appellant has not shown that the Examiner failed to articulate 21
reasoning with some rational underpinning sufficient to support the 22
conclusion that Golomb, Wunning and Fujii would have provided one of 23
ordinary skill in the art reason to include bringing oxygen and fuel together 24
in a burner to form a gas mixture having a temperature above the self-25
ignition temperature of the gas mixture prior to oxidizing the oxygen and 26
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fuel by flameless combustion. Therefore, the Appellant has not shown that 1
the Examiner erred in rejecting claims 3, 12-14, 16, 20, 21 and 25 under 2
§ 103(a) as being unpatentable over Golomb, Wunning and Yoshimoto. 3
The Appellant relies solely on the contentions directed against the 4
rejections of claims 1 and 12 in support of the patentability of claims 11 and 5
15 over Golomb, Wunning and Griffin and of claims 17-19 over Golomb, 6
Wunning, Griffin and Benson. Therefore, the Appellant has not shown that 7
the Examiner erred in rejecting claims 11 and 15 under § 103(a) as being 8
unpatentable over Golomb, Wunning and Griffin or in rejecting claims 17-9
19 under § 103(a) as being unpatentable over Golomb, Wunning, Griffin and 10
Benson. 11
12
DECISION 13
We AFFIRM the Examiner’s decision rejecting claims 1-25 and 28. 14
We REVERSE the Examiner’s decision rejecting claims 26 and 27. 15
No time period for taking any subsequent action in connection with 16
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. 17
§ 1.136(a)(1)(iv) (2007). 18
19
AFFIRMED-IN-PART 20
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