Ex Parte Graham et al

Patent Trial and Appeal Board

Sep 30, 2016

12209927 (P.T.A.B. Sep. 30, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/209,927 09/12/2008 Robert G. Graham
718 7590 10/04/2016
REED SMITH LLP
P.O. Box488
PITTSBURGH, PA 15230-0488
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.
13-10125-US 5487
EXAMINER
LAUX, DAVID J
ART UNIT PAPER NUMBER
3743
NOTIFICATION DATE DELIVERY MODE
10/04/2016 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):
ptoipinbox@reedsmith.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ROBERT G. GRAHAM, TONY A. KUIPERS,
T. TERRY TOUSEY, JOSEPH C. SNODGRASS,
DAVID E. PROUTY, and BRUCE JOHNSON
Appeal2014-005883
Application 12/209,927 1
Technology Center 3700
Before EDWARD A. BROWN, BRANDON J. WARNER, and
FREDERICK C. LANEY, Administrative Patent Judges.
LANEY, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Robert G. Graham et al. (Appellants) appeal under 35 U.S.C. § 134(a)
from the Examiner's final decision rejecting claims 1-3, 8-14, 16, 17, 19,
and 22-26. 2 We have jurisdiction over this appeal under 35 U.S.C. § 6(b).
SUMMARY OF DECISION
We REVERSE.
1 According to Appellants, the real party in interest is WasteDry, LLC.
Appeal Br. 2 (filed Feb. 2, 2014).
2 Claims 4--7, 15, 18, 20, and 21 have been canceled. See Amendment 2, 4--
5 (filed Dec. 11, 2013).
Appeal2014-005883
Application 12/209,927
INVENTION
Appellants' invention "relates generally to systems and methods for
drying and gasifying substances using the calorific value contained in the
substances and it more specifically relates to systems and methods for
processing wet, pasty, sticky substances, such as municipal wastewater
treatment sewage sludge, into a workable, powdered product." Spec. i-f 1.
Claims 1, 12, and 19 are independent. Claim 1, reproduced below, is
illustrative of the claimed subject matter:
1. A method for processing a sewage sludge composition
compnsmg:
drying a sewage sludge composition into a partially dried
compound;
using a gasifier to apply heat in an oxygen-starved environment
to substantially convert a portion of the partially dried compound
into syngas, wherein carbon-containing materials in the partially
dried compound chemically react to produce the syngas without
burning;
combusting substantially all of the syngas in a low NOx oxidizer
to substantially reduce NOx compounds and produce a hot flue
gas;
directing the hot flue gas to a pathogen destruction furnace;
substantially destroying pathogens and volatile organic
compounds in the flue gas in the pathogen destruction furnace;
substantially removing SOx from the flue gas in the pathogen
destruction furnace by injecting lime into the pathogen
destruction furnace;
using the hot flue gas to heat air; and
using the heated air to dry the sewage sludge composition.
Appeal Br. 32 (Claims App.) (emphasis added).
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Application 12/209,927
REJECTIONS
The following rejections are before us for review:
I. The Examiner rejected claims 1-3, 8-14, 16, 17, 19, and 22-26
under 35 U.S.C. § 112, first paragraph, as failing to comply
with the written description requirement.
II. The Examiner rejected claims 1-3, 8-14, 16, 1 7, 19, and 22-2 6
under 35 U.S.C. § 112, second paragraph, as being indefinite.
III. The Examiner rejected claims 1-3, 9-11, 22, and 24 under 3 5
U.S.C. § 103(a) as unpatentable over Jones (US 4,917,023, iss.
Apr. 17, 1990), Graham (US 2006/0196398 Al, pub. Sept. 7,
2006), Tsangaris (US 2008/0209807 Al, pub. Sept. 4, 2008),
and Henery (US 4,466,361, iss. Aug. 21, 1984).
IV. The Examiner rejected claim 8 under 35 U.S.C. § 103(a) as
unpatentable over Jones, Graham, Tsangaris, Henery, and
Chang (US 6,558,454B1, iss. May 6, 2003).
V. The Examiner rejected claims 12, 16, 17, 23, and 25 under 35
U.S.C. § 103(a) as unpatentable over Jones, Graham, and
Henery.
VI. The Examiner rejected claims 13 and 14 under 35 U.S.C.
§ 103(a) as unpatentable over Jones, Graham, Henery, and
Tsangaris.
VII. The Examiner rejected claims 19 and 26 under 35 U.S.C.
§ 103(a) as unpatentable over Jones, Graham, and Henery.
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Application 12/209,927
ANALYSIS
Re} ections I and II
The Examiner's rejections of claims 1-3, 8-14, 16, 17, 19, and 22-26
under 35 U.S.C. § 112, first and second paragraphs, both tum on the proper
interpretation of the phrase "without burning." The Examiner finds the
written description is deficient because it fails to detail a gasifier in which no
burning occurs. Final Act. 5; Ans. 2-3. Similarly, the Examiner determines
the claims are indefinite because "it is unclear how [the claimed] process can
be done 'without burning."' Final Act. 5---6; Ans. 3--4. Both rejections build
on the Examiner's construction of "without burning" as requiring no burning
to occur during the gasification process or in the gasification reactor. Final
Act. 5---6; Ans. 2-3. Appellants contend that interpretation is unreasonable
and, thus, the determinations flowing therefrom are flawed. Appeal Br. 4--
11; Reply Br. 2-9. For the following reasons, we agree.
Claim 1 is representative of the context in which Appellants use the
phrase "without burning," and reads, in relevant part, as follows:
using a gasifier to apply heat in an oxygen-starved environment
to substantially convert a portion of the partially dried compound
into syngas, wherein carbon-containing materials in the partially
dried compound chemically react to produce the syngas without
burning
Appeal Br. 32 (Claims App.) (emphasis added). Appellants correctly point
out that, in context, the claims use "without burning" to clarify that the
claimed process creates syngas from a portion of the partially dried
compound through a chemical reaction, which converts the portion of the
compound into syngas without burning it. Appeal Br. 5. In other words, the
phrase "without burning" describes the type of chemical reaction occurring
within the gasifier to produce syngas, rather than describing a gasifier in
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Application 12/209,927
which no burning occurs at all. The claims clearly delineate that the process
converts only a portion of the compound within the gasifier into syngas
through a chemical reaction, which implicitly allows for combustion (i.e.,
burning) of other portions of the compound to occur within the gasifier. As
such, the plain meaning of "without burning," when viewed in context, does
not support the Examiner's broad interpretation excluding any burning from
occurring within the gasifier.
Nor is the Specification consistent with the Examiner's interpretation.
"The broadest-construction rubric ... does not give the PTO an unfettered
license to interpret claims to embrace anything remotely related to the
claimed invention." In re Suitco Surface, Inc., 603 F.3d 1255, 1260 (Fed.
Cir. 2010).
Since it would be unreasonable for the PTO to ignore any
interpretive guidance afforded by the applicant's written
description ... the PTO applies to the verbiage of the proposed
claims the broadest reasonable meaning of the words in their
ordinary usage as they would be understood by one of ordinary
skill in the art, taking into account whatever enlightenment by
way of definitions or otherwise that may be afforded by the
written description contained in the applicant's specification.
In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997). The Examiner concedes
the Specification discloses a gasifier that both converts, without burning, a
portion of a dried compound into syngas through a heat-induced chemical
reaction and combusts, i.e., bums, a relatively small portion of the
compound. Ans. 3 (citing Spec. i-f 29). Contrarily, the Examiner offers no
evidence from the Specification supporting a claim interpretation that
excludes any amount of burning of the compound from occurring within the
gasifier, nor do we find any such evidence.
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Application 12/209,927
Because neither the plain meaning of the claim language nor the
Specification supports interpreting "without burning" to broadly exclude any
burning from occurring within the gasifier, the Examiner's interpretation is
unreasonable. Properly construed, in the context of the claims and
Specification, "without burning" limits the claimed gasifier to one that
enables syngas to be created from a portion of the compound using a heat
induced chemical reaction, which does not bum the portion in the
conversion. The Examiner concedes the Specification discloses such a
gasifier. Ans. 3 (citing Spec. i-f 29). Therefore, we do not sustain the
Examiner's rejections of claims 1-3, 8-14, 16, 17, 19, and 22-26 under 35
U.S.C. § 112, first and second paragraphs
Rejections III-VII
After considering all of the evidence and reasoning the Examiner
provides to support Rejections III-VII, we find Appellants' contentions
unpersuasive, expect for one. Rejections III-VII depend, either directly or
indirectly, on the Examiner's determination that the prior art discloses, (1) a
process that directs a hot flue gas from a low NOx oxidizer to a pathogen
destruction furnace (claims 1 and 12), or (2) a system with a pathogen
destruction furnace downstream of a low NOx oxidizer that combusts a
syngas to produce hot flue gas (claim 19). See Appeal Br. 32-34 (Claims
App.). The Examiner relies on Jones, Graham, and Henery to establish these
limitations were known at the time of the invention. Final Act. 6, 7, 9-12.
Appellants contend the prior art fails to disclose, "a method in which the hot
flue gas is produced in the low NOx oxidizer and directed to a pathogen
destruction furnace," as claims 1 and 12 require, or "combusting
substantially all of the syngas in a low NOx oxidizer located upstream of the
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pathogen destruction furnace," as claim 19 requires. Appeal Br. 15, 22-23,
28-29.
For claims 1 and 12, the Examiner finds Jones's description of the
afterburner 30 discloses, "combusting substantially all of the syngas to
produce a hot flue gas." Final Act. 6, 9 (citing Jones 4:23-27). The
Examiner finds that Graham teaches a low NOx oxidizer for combusting
substantially all of the syngas, which the Examiner concludes would have
been obvious to locate upstream of the afterburner 30 of Jones. Id. at 7, 9.
The Examiner identifies Jones's afterburner 30 as also being a pathogen
destruction furnace that receives hot flue gas. Id. (citing Jones 4:23-27).
Additionally, the Examiner identifies Henery's afterburner section 20 as a
pathogen destruction furnace that receives hot flue gas and substantially
removes SOx from the flue gas by using lime. Id. at 7, 9-10.
Similarly, for claim 19, the Examiner identifies Jones' s afterburner 3 0
as being a pathogen destruction furnace, and as disclosing "combusting
substantially all of the syngas to produce heat and flue gas." Id. at 11 (citing
Jones 4:23-27). Graham is similarly relied upon to teach a low NOx
oxidizer for combusting substantially all of the syngas, which the Examiner
concludes would have been obvious to locate upstream of the afterburner 30
of Jones. Id. at 11-12. Henery, however, is relied upon only to teach the
addition of lime to a pathogen destruction furnace to substantially remove
SOx therein. Id. at 12.
The flaw with the Examiner's analysis is that it relies on Jones's
afterburner 30 to disclose two components distinctly claimed- i.e., (1) the
low NOx oxidizer in which combustion of the syngas occurs to produce a hot
flue gas and (2) the pathogen destruction furnace, which receives the hot flue
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Application 12/209,927
gas from the low NOx oxidizer and destroys the pathogens and volatile
organic compounds in the hot flue gas. Claims 1, 12, and 19 list and
describe separately the low NOx oxidizer and pathogen destruction furnace
as independent structures or elements. See Appeal Br. 32-34 (Claims App.).
"Where a claim lists elements separately, the clear implication of the claim
language is that those elements are distinct components of the patented
invention." Becton, Dickinson & Co. v. Tyco Healthcare Group, LP, 616
F.3d 1249, 1254 (Fed. Cir. 2010) (citations and quotations omitted). Here,
there is nothing in claims 1, 12, or 19 to suggest that the low NOx oxidizer
and pathogen destruction furnace are the same structure or element. To the
contrary, the recitation of producing hot flue gas in the low NOx oxidizer
and directing the flue gas to a pathogen destruction furnace (or, having a
system with a pathogen destruction furnace downstream from the low NOx
oxidizer) reinforces the implication that the low NOx oxidizer and pathogen
destruction furnace are distinct components. See Appeal Br. 32-34 (Claims
App.). The Specification likewise describes and illustrates the low NOx
oxidizer and pathogen destruction furnace as distinct components. See, e.g.,
Spec. i1i128, 29, and 31-35; Fig. 1.
Jones's afterburner 30, therefore, cannot simultaneously be the
claimed low NOx oxidizer in which combustion of syngas occurs to produce
hot flue gas and the claimed pathogen destruction furnace, which receives
the hot flue gas from the oxidizer to destroy the pathogens therein. We
agree with the Examiner that Jones's description at column 4, lines 23-27,
supports the Examiner's finding that Jones teaches combusting syngas in an
oxidizer to produce hot flue gas. For example, we note Jones's describes
afterburner 30 "further oxidizes and destroys the off gases and volatiles at
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Application 12/209,927
about 1800° F" (Jones 4:23-24), and Appellants also describe the low NOx
oxidizer "may run at about 1800° F to combust the syngas and produce hot
flue gas (Spec. i-f 31). We disagree, however, that Jones also supports the
Examiner's finding that it discloses a pathogen destruction furnace that is
downstream from the oxidizer or that receives hot flue gas from an oxidizer.
Although Jones teaches the 1800° F operating temperature of the afterburner
30 is sufficient to destroy "volatiles" in the off gases, Jones appears to be
completely silent about removing pathogens in the hot flue gas produced
from destroying the volatiles in the off gases. In addition, Jones says
nothing about directing the hot flue gas from the afterburner 30 to a separate
structure, i.e., a pathogen destruction furnace, to substantially destroy
pathogens and volatiles in the flue gas.
Nor does the Examiner's reliance on Graham or Henery cure the
above deficiencies with Jones. We agree with the Examiner that Graham
evidences it was known to use a low NOx oxidizer to combust syngas and
produce hot flue gas. Graham, however, fails to disclose or suggest having a
separate and distinct pathogen destruction furnace downstream of the Jones
afterburner 30. In fact, according to the Examiner, "the only logical place
for an oxidizer would be the afterburner of Jones." Ans. 5. Appellants
correctly point out Henery is directed to an incinerator that does not produce
syngas using a gasifier or an oxidizer to combust syngas and produce hot
flue gas. Appeal Br. 15-16. The Examiner's reliance on Henery's
afterburner section 20 as a pathogen destruction furnace that receives hot
flue gas from an oxidizer is, therefore, unsubstantiated. Nor does the
Examiner provide a reason with a rationale underpinning explaining why a
skilled artisan would have known, in view of Jones, Graham, and/or Henery,
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to include a separate and distinct pathogen destruction furnace downstream
of Jones's afterburner 30 or to direct the hot flue gas from Jones's
afterburner 30 to a pathogen destruction furnace.
Therefore, because a preponderance of the evidence does not support
the Examiner's determination that Jones, Graham, and/or Henery, alone or in
combination, disclose a method or system in which a hot flue gas is
produced in the low NOx oxidizer and directed to structurally separate a
pathogen destruction furnace, or combusting substantially all of the syngas
in a low NOx oxidizer located upstream of a structurally separate pathogen
destruction furnace, we do not sustain the Examiner's rejection of claims 1,
12, and 19 as unpatentable. The Examiner's rejections of claims 2, 3, 8-11,
13, 14, 16, 17, and 22-26 depend, either directly or indirectly, on Jones,
Graham, and/or Henery, alone or in combination, disclosing each of the
limitations of claims 1, 12, and 19. See Final Act. 7-12. As a result, the
Examiner's rejections of claims 2, 3, 8-11, 13, 14, 16, 17, and 22-26 as
unpatentable are also not sustained.
DECISION
We reverse the Examiner's rejection of claims 1-3, 8-14, 16, 17, 19,
and 22-26 under 35 U.S.C. § 112, first paragraph.
We reverse the Examiner's rejection of claims 1-3, 8-14, 16, 17, 19,
and 22-26 under 35 U.S.C. § 112, second paragraph.
We reverse the Examiner's rejections of claims 1-3, 8-14, 16, 17, 19,
and 22-26 as unpatentable.
REVERSED
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