Ex Parte GomezDownload PDFPatent Trial and Appeal BoardDec 6, 201612595956 (P.T.A.B. Dec. 6, 2016) Copy Citation 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. 12/595,956 10/14/2009 Rodolfo Antonio M. Gomez 2753-1-009PCT/US 8239 23565 7590 Klauber & Jackson LLC 25 East Spring Valley Avenue Suite 160 Maywood, NJ 07607 12/07/2016 EXAMINER FRIDAY, STEVEN A ART UNIT PAPER NUMBER 1756 MAIL DATE DELIVERY MODE 12/07/2016 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 RODOLFO ANTONIO M. GOMEZ Appeal 2015-004294 Application 12/595,956 Technology Center 1700 Before TERRY J. OWENS, CHRISTOPHER L. OGDEN, and MICHAEL G. McMANUS, Administrative Patent Judges. OWENS, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE The Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s rejection of claims 1, 4—6, 8, 10-14, and 16—19. We have jurisdiction under 35 U.S.C. § 6(b). The Invention The Appellant claims a process and apparatus for sequestering carbon dioxide. Claims 1 and 10 are illustrative: 1. A process for sequestering carbon dioxide, the process comprising the steps of: a) passing seawater through an unipolar electrolytic cell operating in cathode - cathode mode thereby reducing hydrogen ions in the seawater to hydrogen gas resulting in an excess of hydroxyl ions thereby producing an activated seawater, the Appeal 2015-004294 Application 12/595,956 activated seawater comprising the hydroxyl ions forming hydroxides of metal ions in the seawater, wherein evolution of chlorine in the unipolar electrolytic cell is limited by one or more method selected from the group consisting of selecting a gap between anode and cathode electrodes and solution electrodes; selecting a material coating the solution electrodes; selecting a cell voltage applied; selecting a physical shape of the solution electrodes; and modifying a chemical characteristic of the seawater; b) spraying the activated seawater from the top of a tower into the atmosphere to thereby contact carbon dioxide with the activated seawater thereby forming carbonic acid; and c) reacting the carbonic acid with the hydroxides of metal ions in the activated seawater to form carbonates of the metal ions in the seawater; thereby sequestering the carbon dioxide as a metal carbonate, wherein the unipolar electrolytic cell comprises an anode cell assembly and a cathode cell assembly, the anode cell assembly including an anode electrode and an anode solution electrode and the cathode cell assembly including a cathode electrode and a cathode solution electrode, a power supply that provides a DC pulsed current to the anode cell assembly and to the cathode cell assembly and the cathode electrode connected to the power supply, the cathode solution electrode being connected to the anode electrode and the anode solution electrode being connected to the power supply. 10. An apparatus for sequestering carbon dioxide, the apparatus comprising, a unipolar electrolytic cell operating in cathode - cathode mode, a DC power supply to supply a pulsing power to the unipolar electrolytic cell, a seawater supply to supply seawater to the unipolar electrolytic cell, a pump to transfer seawater from the unipolar electrolytic cell to a contacting arrangement, the contacting arrangement comprising a tower, and a spray device to contact the seawater with carbon dioxide in the contacting arrangement, whereby to sequester carbon dioxide into the seawater. 2 Appeal 2015-004294 Application 12/595,956 Bush Carlson deVries Inoue Stauffer Katsuyoshi Gomez Jones The References US 2,972,393 US 3,894,393 US 4,141,702 US 4,184,931 US 4,925,639 US 2005/0011770 A1 US 2005/0072665 A1 US 2006/0185985 A1 Feb. 21, 1961 July 15, 1975 Feb. 27, 1979 Jan. 22, 1980 May 15, 1990 Jan. 20, 2005 Apr. 7, 2005 Aug. 24, 2006 Gas Absorption Operations, at http://www.separationprocesses.com/Absorption/GA_Chp03-l.htm (2004) (hereinafter SM).1 The Rejections The claims stand rejected under 35 U.S.C. § 103 as follows: claims 1, 4—6, 8 and 19 over Jones in view of Gomez, the Appellant’s admitted prior art (hereinafter AAPA), Inoue, Katsuyoshi, SM and Carlson, claims 10—14, 16 and 17 over Jones in view of Gomez, AAPA, Inoue, Katsuyoshi, Stauffer and SM and claim 18 over Jones in view of Gomez, AAPA, Inoue, Katsuyoshi, Stauffer, SM, deVries and Bush. OPINION We affirm the rejections. Claims 1, 4—6, 8, and 19 The Appellant argues claims 1, 4—6, 8, and 19 as a group (Br. 6—20). We therefore limit our discussion to one claim, i.e., claim 1, which is the sole independent claim among those claims. Claims 4—6, 8, and 19 stand or fall with claim 1. See 37 C.F.R. § 41.37(c)(l)(iv) (2012). The Examiner relies upon Jones flflf 14, 16, 18, 22, 29, 74, 78, 111) 1 The Examiner and the Appellant refer to this reference as “SM” (Ans. 2; Br. 5). For consistency, we likewise do so. 3 Appeal 2015-004294 Application 12/595,956 for disclosures of 1) sequestering carbon dioxide by contacting it in an absorption column with activated water containing metal hydroxides to form metal carbonates and, as a byproduct, chlorine, and 2) brine electrolysis using a diaphragm cell or a membrane cell (Ans. 2, 3, 5, 6). The Examiner relies upon Gomez (Abstract; 124) for a disclosure of unipolar activation of water in anode-cathode mode without a diaphragm or membrane (Ans. 3). The Examiner relies upon AAPA (Spec. 5:17—20; 11:12 — 12:2; Figs. 1, 2) for a disclosure that it was known in the art to operate a unipolar cell in cathode-cathode mode instead of anode-cathode mode and for evidence of a gap between anode and cathode electrodes and their respective solution electrodes (Ans. 2-4, 6). The Examiner relies upon Inoue (col. 1,11. 56—63; col. 3,11. 41^47) for a disclosure of activating water using pulsed electric current to greatly increase the current density, thereby enhancing the generation of hydrogen and oxygen (Ans. 4). The Examiner relies upon Katsuyoshi (Abstract; 120) for a disclosure that seawater is suitable for electrolytic activation (Ans. 5). The Examiner relies upon SM for a disclosure of absorption in a spray tower (Ans. 5). The Examiner relies upon Carlson (Abstract; col. 1,11. 6—13, 31—35; col. 2,11. 25 49; Fig. 1) for a disclosure of spraying air with water from a position over an open large duct which, the Examiner finds, is a disclosure of spraying into the atmosphere (Ans. 5, 6). 4 Appeal 2015-004294 Application 12/595,956 The Appellant asserts that “Inoue does not teach electrolysis of sea water or address the problem of chlorine production when sea water is electrolyzed” (Br. 13). That argument is deficient in that the Appellant is attacking Inoue individually when the rejection is based on a combination of references. See In re Keller, 642 F.2d 413, 426 (CCPA 1981); In re Young, 403 F.2d 754, 757—58 (CCPA 1968). The Examiner relies upon Katsuyoshi for a disclosure of electrolysis of seawater (Ans. 5). The Appellant, in reliance upon the Declaration under 37 C.F.R. § 1.132 of Rodolfo Antonio M. Gomez (H 14—16), asserts that the applied prior art would not have suggested minimizing chlorine production when sea water is electrolyzed or achieving such chlorine production minimization by coating the cathode solution electrode or covering it with plastic mesh (Br. 14). That argument is not well taken because it is directed toward limitations which are not in the claims. See In re Self, 671 F.2d 1344, 1348 (CCPA 1982) (“[Ajppellanf s arguments fail from the outset because . . . they are not based on limitations appearing in the claims.”). Claim 1 recites limiting, not minimizing, chlorine evolution, and does not require that the chlorine evolution is limited by coating the solution electrodes but, rather, encompasses limiting it in other ways including providing a gap between anode and cathode electrodes and solution electrodes. The Appellant, in reliance upon the Gomez Declaration (|| 8, 9, 13), asserts that electrolyzing sea water using a unipolar cell in cathode-cathode mode unexpectedly increases reduction of hydrogen ions to hydrogen gas and minimizes chloride production (Br. 17—19). 5 Appeal 2015-004294 Application 12/595,956 The Appellant does not provide evidence or technical reasoning which shows that one of ordinary skill in the art would not have expected operating in the reduction mode not only the cathode, but also the anode, to increase the reduction of hydrogen ions to hydrogen gas. Gomez’s statement that the increased reduction of hydrogen ions to hydrogen gas “was unexpected because it was not considered or even contemplated in any of the prior art including Gomez, U.S. Patent Publication 2005/0072665” (Decl. 113) does not establish that it would have been unexpected by one of ordinary skill in the art. The AAPA unipolar cell in cathode-cathode mode has a gap between the anode and cathode electrodes and their respective solution electrodes (Appellant’s Fig. 2) which, like the gap recited in the Appellant’s claim 1, appears to limit chlorine evolution. The Appellant asserts that Gomez’s statement that “I did not know how the cells would perform with sea water” (Decl. 111) is evidence of unexpected results (Br. 18). The Appellant does not provide evidence that not knowing what a test result will be establishes that one of ordinary skill in the art, given the result, would have considered it to be unexpected. The Appellant asserts that the claimed process solves a long felt need for capturing carbon dioxide which already has been emitted into the atmosphere (Br. 19, 20). The Appellant does not provide evidence of a long felt need to remove carbon dioxide which already has spread throughout the atmosphere. The Appellant, in reliance upon the Gomez Declaration (| 17), asserts that Carlson does not teach or suggest spraying water out from the top of a tower (Br. 20). 6 Appeal 2015-004294 Application 12/595,956 The Appellant does not address the Examiner’s finding that “the SM reference teaches that the spray device in spray towers performs the function of spraying from the top of a tower” (Ans. 18). Claims 10—14 and 16—18 The Appellant argues claims 10-14 and 16—18 as a group (Br. 20-36). Although claim 18 is addressed under a separate heading, the Appellant does not provide a substantive argument as to the separate patentability of that claim (Br. 35—36). We therefore limit our discussion to one claim, i.e., claim 10, which is the sole independent claim among claims 10—14 and 16— 18. Claims 11—14 and 16—18 stand or fall with that claim. See 37 C.F.R. § 41.37(c)(l)(iv) (2012). Most of the Appellant’s assertions regarding claim 10 are the same as those set forth with respect to claim 1 (Br. 25—35) and are unpersuasive for the reasons given above regarding that claim. The Appellant asserts that the limited evolution of chlorine recited in process claim 1 is an inherent characteristic of the apparatus claimed in claim 10 (Br. 27). An inherent characteristic must be inevitable, and not merely a possibility or probability. See In re Oelrich, 666 F.2d 578, 581 (CCPA 1981). The Appellant does not establish that the claim 10 apparatus inevitably limits chlorine evolution as recited in claim 1. The Appellant asserts that to establish unexpected results, the Appellant need not compare the efficiency of the claimed apparatus to that of the prior art (Br. 29—30). Establishing unexpected results requires providing a side-by-side comparison of the claimed invention with the closest prior art which is 7 Appeal 2015-004294 Application 12/595,956 commensurate in scope with the claims, and showing that the result would have been unexpected by one of ordinary skill in the art. See In re Baxter Travenol Labs., 952 F.2d 388, 392 (Fed. Cir. 1991); In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984); In re Grasselli, 713 F.2d 731, 743 (Fed. Cir. 1983); In re Clemens, 622 F.2d 1029, 1035 (CCPA 1980); In re Freeman, 474 F.2d 1318, 1324 (CCPA 1973); In re Klosak, 455 F.2d 1077, 1080 (CCPA 1972). The Appellant has not done so. For the above reasons we are not persuaded of reversible error in the rejections. DECISION/ORDER The rejections under 35 U.S.C. § 103 of claims 1, 4—6, 8, and 19 over Jones in view of Gomez, AAPA, Inoue, Katsuyoshi, SM and Carlson, claims 10-14, 16, and 17 over Jones in view of Gomez, AAPA, Inoue, Katsuyoshi, Stauffer and SM and claim 18 over Jones in view of Gomez, AAPA, Inoue, Katsuyoshi, Stauffer, SM, deVries and Bush are affirmed. It is ordered that the Examiner’s decision is 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). AFFIRMED 8 Copy with citationCopy as parenthetical citation