Ex Parte Coustry et al

Patent Trial and Appeal Board

Apr 11, 2016

13147722 (P.T.A.B. Apr. 11, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/147,722 09/12/2011
73673 7590 04/13/2016
Solvay America, Inc,
c/o Intellectual Assets Management
3737 Buffalo Speedway Ste. 800
Houston, TX 77098-3701
FIRST NAMED INVENTOR
Francis Coustry
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.
s 2009/03 5606
EXAMINER
NASSIRI MOTLAGH, ANITA
ART UNIT PAPER NUMBER
1734
NOTIFICATION DATE DELIVERY MODE
04/13/2016 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):
sandra. andress@solvay.com
iamnafta@solvay.com
s taci.harris@sol vay. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte FRANCIS COUSTRY, PERRINE DA VOINE,
CLAUDE CRIADO, and THOI-DAI CHAU
Appeal2014-009740
Application 13/147,722
Technology Center 1700
Before LINDA M. GAUDETTE, JACQUELINE WRIGHT BONILLA, and
JENNIFER R. GUPTA, Administrative Patent Judges.
GUPTA, Administrative Patent Judge.
DECISION ON APPEAL
Appeal2014-009740
Application 13/147,722
Appellants appeal, 1 under 35 U.S.C. § 134, from the Examiner's
decision2 finally rejecting claims 1-14 and 16-22. We have jurisdiction
under 35 U.S.C. § 6(b). We affirm-in-part.
The claims are directed to a process for producing gas from trona ore.
Claim 1, reproduced below, is illustrative of the claims on appeal.
1. A process for producing a gas from trona ore, said process
comprising the steps of:
a) crushing the trona ore;
b) introducing crushed trona in a calcining device;
c) calcining the crushed trona in the calcining device;
d) collecting the calcined trona from the calcining device; and
e) collecting the gas generated by the trona ore calcination from
the calcining device in order to constitute the produced gas,
wherein said produced gas has a carbon dioxide concentration of
more than 25 volume percents expressed on dry gas, and a
quantity of volatile organic compounds of less than 700 mg per
kilogram of generated carbon dioxide;
wherein said calcining device compnses a rotary drum with
indirect heating.
1 Appellants identify the real party in interest as Solvay, S.A. Appeal Brief
filed April 8, 2014 ("App. Br."), 5.
2 Final Office Action mailed July 8, 2013 ("Final").
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Application 13/147,722
Appellants request review of the following rejections:
1. Claims 1, 4, 5, 6, 9, 12, 14, 16-18, 21, and 22 under 35 U.S.C.
§ 103(a) as being unpatentable over Denham Jr. et al. ("Denham")
(US 6,479,025 B2, issued November 12, 2002); 3
2. Claim 11under35 U.S.C. § 103(a) as being unpatentable over
Denham in view of Braman et al. ("Braman") (US 2003/0049192
Al, published March 13, 2003);
3. Claim 13 under 35 U.S.C. § 103(a) as being unpatentable over
Denham in view of Lazaro et al., Analysis of co generation in the
present energy framework, 87 Fuel Processing Technology 163,
163-168 (2006) ("Lazaro");
4. Claims 2 and 3 under 35 U.S.C. § 103(a) as being unpatentable
over Denham in view of Pruszko et al. ("Pruszko") (US 6,173,840
Bl, issued January 16, 2001);
5. Claims 7, 8, and 19 under 35 U.S.C. § 103(a) as being
unpatentable over Denham in view of Liborius (US 5,325,606,
issued July 5, 1994); and
6. Claims 10 and 20 under 35 U.S.C. § 103(a) as being unpatentable
over Denham in view of Walker (US 4,748,010, issued May 31,
1988).
3 This rejection was properly designated as a new ground of rejection in the
Examiner's Answer because the Examiner modified the evidentiary
reference relied upon to address the limitation in claim 1 that the gas
produced from the calcining process "has a carbon dioxide concentration of
more than 25 volume percents carbon dioxide on dry gas." See Ans. 3--4.
Appellants acknowledged the new ground of rejection and requested that the
appeal be maintained by filing a Reply Brief. Reply Brief filed September 8,
2014 ("Reply Br."), 1-2.
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Appeal2014-009740
Application 13/147,722
App. Br. 11-12.
First Ground of Rejection - Unpatentable over Denham
Appellants argue forpatentability of claims 1, 4, 6, 12, 14, 16-18, 21,
and 22, subject to the first ground of rejection, as a group. App. Br. 17-33.
We choose independent claim 1 as representative of this group, and
claims 4, 6, 12, 14, 16-18, 21, and 22, stand or fall with claim 1. Appellants
present additional arguments for patentability of dependent claims 5 and 9.
Id. at 33-38. We address these arguments below under separate
subheadings.
Claims 1, 4, 6, 12, 14, 16--18, 21, and 22
The Examiner finds Denham teaches the process for producing a gas
from trona ore as in claim 1 except: (1) using a rotary drum with indirect
heating as the calcining device; (2) generating a gas by calcination
(produced gas) having a quantity of volatile organic compounds of less than
700 mg per kilogram of generated carbon dioxide; and (3) generating a gas
by calcination (produced gas) having a carbon dioxide concentration of more
than 25 volume percent expressed on dry gas. Final 2--4.
"a rotary drum with indirect heating"
The Examiner finds that Denham teaches a calcining process using a
fluidized bed with indirect heating. Examiner's Answer mailed July 7, 2014
("Ans."), 5. The Examiner finds that Denham discloses that both a fluidized
bed and rotary drum are standard devices for calcination (see Denham 1 :27-
28). Final 2-3. The Examiner determines "it would have been obvious for
one of ordinary skill in the art, at the time the invention was made ... to use
a rotary drum with indirect heating [instead of a fluidized bed] in
[Denham]," given Denham's teaching that any type of calciner that creates a
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Appeal2014-009740
Application 13/147,722
dynamic motion of particles can be used (Denham 5:38--40) and that a rotary
drum, like a fluidized bed, is a standard calcination device. Id. at 3.
Appellants argue that "the Examiner has not properly explained why
the artisan would have been motivated to substitute the fluidized bed of
Denham with a rotary drum with a reasonable expectation of success in
achieving the produced gas with the characteristics recited in [] Claim 1."
App. Br. 22. The Examiner's finding of equivalence is supported by
Denham (Final 2-3; Ans. 4--5), and Appellants' unsupported attorney
argument is not persuasive in showing error in the Examiner's finding (see,
e.g., Reply 5 (wherein Appellants argue, without citation to evidentiary
support, that the modes of operation of a fluidized bed and rotary drum are
different).
Appellants also argue "the issues highlighted by Denham [] would
lead the artisan away from using a rotary drum calciner." App. Br. 22. We
do not find this argument to be convincing because, although Denham
describes a disadvantage in using open flame (i.e., direct heat) rotary
calciners (Denham 1:39--41), Appellants have not pointed to any disclosure
in Denham which would have led the artisan away from using a rotary drum
with indirect heating.
''produced gas ha[ving] a carbon dioxide concentration of more than
25 volume percent[] expressed on dry gas"
The Examiner finds Denham teaches calcining three moles of trona
produces five moles of water and one mole of carbon dioxide (Denham
9:25-28), and when expressed on dry gas, the carbon dioxide concentration
in Denham would be more than 25 volume percent. Ans. 3.
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Application 13/147,722
According to Appellants, the overall produced gas collected from
Denham's calcining device is not limited to the carbon dioxide and water
vapor generated from trona ore calcination, but includes the fluidizing gas
entering the device, a part of which may be recycled gas. Reply Br. 4.
Appellants argue "the Examiner fails to take into account the dilution by the
flow of the fluidizing gas." Id. Appellants' argument is not supported by
Denham' s disclosure.
Denham discloses that the amount of time and energy required to
conduct a calcination process in a fluidized bed can be reduced by using a
method that creates dynamic motion. Denham 5:31-38. According to
Denham, "[a]ny method of creating a dynamic motion of the particles can
be used such as stirring, shaking and agitating. In one particular
embodiment, the particles are placed on top of the bed plate 26 and are
fluidized by ajluidizing gas." Id. at 5:38--42 (emphasis added); see also id.
at 10: 17-19 (stating that a "portion of the calcining gas may be recycled back
to the inlet of the calcining vessel and utilized for heating and fluidizing
additional material for calcining" (emphasis added)). Based on the above
disclosure, it is clear that Denham discloses the use of a fluidizing gas as an
option, but not as a requirement of the described calcination process.
Appellants have not rebutted adequately the Examiner's prima facie showing
that at least one process described in Denham, including one that does not
involve fluidizing gas, produces gas having the recited carbon dioxide
concentration percent. See Final 3.
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Application 13/147,722
a produced gas having "a quantity of volatile organic compounds of
less than 700 mg per kilogram of generated carbon dioxide"
The Examiner finds Denham teaches that "lower calcining
temperatures result in fewer volatile organic compounds (Denham, Col. 3
lines 38--41)." Final 4; see also Ans. 6. The Examiner finds "[o]ne of
ordinary skill in the art, at the time the invention was made, would have
been motivated to [vary the calcining temperature in Denham' s process] in
order to lower the particulate emissions from the calcination of trona ore."
Final 4. The Examiner further finds that because Denham teaches calcining
at temperatures of lower than 250 °C (Denham 3:9-13), which "overlaps"
the calcining temperature range used in Appellants' claimed process (see
claim 4 reciting calcining below 200 °C), generation ofVOC's of less than
700 mg/kg C02 would necessarily result. Id.; Ans. 6.
Appellants acknowledge that "Denham may teach that VOC
generation, in absolute term, may be reduced by a low calcination
temperature, but argue "the relative amount of voe per amount of
generated C02 ... was not recognized in Denham to be a result-effective
variable for operating an indirect-heating calciner." Reply Br. 7-8.
Thus, Appellants contend one of ordinary skill in the art would "not [be J
guided or incited by Denham to operate an indirect-heating rotary drum
calciner ... [to] achiev[ e] the specific range of weight ratios [recited in
claim 1]." Id. at 8.
Appellants' Specification states that, in a preferred embodiment,
indirect heating is carried out with a hot fluid at a temperature less than or
equal to 260 °C. Spec. 7:25-26. Therefore, the Specification supports the
Examiner's finding that 700 mg of volatile organic compounds or less per
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Application 13/147,722
kilogram of generated carbon dioxide would necessarily result at a
temperature of 250 °C or less, which is the same temperature range taught
by Denham (Denham 3:9-13, teaching calcining at temperatures of lower
than 250 °C). Ans. 6.
Claim 5
Claim 5 depends from independent claim 1 and requires that calcining
(step ( c)) is carried out in the presence of an ambient gas containing water
vapor at a concentration of at least 50 volume percent. See App. Br. 47
(Claims Appendix).
The Examiner finds Denham teaches the concentration of water vapor
in the gas stream generated during the calcining process is about 80% (based
on 5 moles of water to 1 mole of C02), which is sufficient to meet the water
vapor concentration of "at least 50 volume percent" recited in claim 5.
Final 4--5.
Appellants argue that the Examiner's estimation that Denham
discloses the concentration of water vapor in the gas stream is 80% fails to
take into account the fact that water vapor concentration will be reduced by
recycling gas. See App. Br. 33-34 (arguing the Examiner's water vapor
calculation "would [] only [be] correct for solely new gas formation from
calcination of trona [and] ... does not include the dilution by the flow of
the fluidizing gas in Denham's bed which likely includes a recycling gas
which has a reduced amount of water due to the condensation step that
Denham performs on the calciner gas."). As discussed above, Denham
discloses the use of a fluidizing gas as an option, not as a requirement of the
calcination process (Denham 5:38--42, 10: 17-19). Appellants have not
rebutted adequately the Examiner's prima facie showing that at least one
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Application 13/147,722
process described in Denham, including one that does not involve fluidizing
gas, produces a gas stream with the recited water vapor concentration.
Claim 9
Claim 9 depends from independent claim 1 and requires that the
indirect heating is provided by steam tubes placed in the rotary drum, the
steam tubes defining a steam tubes section of the rotary drum, and the
crushed trona ore is introduced inside the steam tubes section. App. Br. 47-
48 (Claims Appendix).
Appellants argue that none of the figures in Denham illustrate an
introduction of crushed trona inside the steam tubes section and "Fig. 6
shows that the introduction of crushed trona (via feed inlet 50) is in a first
chamber wherein the heating coils define a section less important in surface
than the chamber surface." App. Br. 36. We not find Appellants' argument
to be persuasive. Appellants' position is based on an interpretation of the
claim language "steam tubes section" as requiring a section in which the
tubes are located at a particular distance from the wall of the rotary drum.
See App. Br. 36. Appellants' interpretation is not supported by the
Specification, which requires only that the steam tubes section contain steam
tubes. Spec. 8:7-8. Appellants have not explained why the steam tubes
section should be limited to any of the specifically described preferred
embodiments (Spec. 8: 1---6). Nor have Appellants shown that the Examiner
erred in finding that because the section in Denham into which trona is
introduced contains steam tubes, it meets the limitation of a steam tubes
section as claimed (Ans. 8-9).
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Application 13/147,722
In sum, for the reasons expressed in the Answer and above, the
Examiner's decision to reject claims 1, 4---6, 9, 12, 14, 16-18, 21, and 22 is
affirmed.
Remaining Grounds of Rejection- Unpatentable over Denham in view of
either Braman, Lazaro, Pruszko, Liborius, or Walker
Claims 2, 3, 7, 8, 10, 11, 13, 19, and 20 depend directly (claims 3, 7,
8, 11, and 20) or indirectly (claims 2, 10, 13, and 19) from independent
claim 1. Appellants argue that Braman, Lazaro, Pruszko, Liborius, and
Walker fail to cure the alleged deficiencies in the rejection of claim 1. See
App. Br. 39--44; see also Reply Br. 9-10. This argument is not persuasive
of error in the Examiner's rejections because, for the reasons discussed
above, we are not persuaded of any deficiencies in the Examiner's rejection
of claim 1.
Thus, for the reasons expressed in the Answer and above, we affirm
the rejections of claims 2, 3, 7, 8, 10, 11, 13, and 20.
Regarding claim 19, the Examiner finds Denham does not explicitly
teach the claimed delivery method and relies on Liborius for this limitation.
Final 12. The Examiner finds Liborius "suggests the use of a rotating screw
to deliver the crushed trona" (Liborius Fig. 1) and teaches "the control of
temperature ... through the use of heating elements with steam" (i.e., double
shield heated with a hot fluid) (Liborius 2:25-28). Id. at 13. The Examiner
concludes it would have been obvious for one of ordinary skill in the art, at
the time the invention was made, to use the rotating screw and heating
system of Liborius to deliver the crushed trona ore to Denham's calciner "to
precisely control the temperature of the crushed trona and dry a desired
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quantity of particulate wet sodium bicarbonate (trona) in a desired unit of
time." Id.
Appellants argue one of ordinary skill in the art would not have
combined the teachings of Denham and Liborius because Liborius is
directed to a process for calcining a wet cake of sodium bicarbonate, not
crushed trona ore as in Denham. See App. Br. 42--43.
On the record before us, the Examiner did not address Appellants'
argument in this regard, and, based on Appellants' argument, we are not
persuaded that the Examiner has shown unpatentability of claim 19 by a
preponderance of the evidence. See MPEP § 1207.02(A)(2) (The
examiner's answer should include a statement of whether the examiner
disagrees with each of the arguments in the brief with respect to the issues
presented and an explanation of the reasons for disagreement with any such
argument.). Accordingly, we reverse the rejection of claim 19.
DECISION
For the above reasons, the Examiner's decision to reject 1-14, 16-18,
and 20-22 is affirmed.
The Examiner's decision to reject claim 19 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).
AFFIRMED-IN-PART
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