10380386 (B.P.A.I. May. 2, 2008)

Ex Parte Grob et al

Board of Patent Appeals and InterferencesMay 2, 2008

10380386 (B.P.A.I. May. 2, 2008)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ____________ Ex parte GERHARD GROB And HEINZ GRUNING ____________ Appeal 2008-2663 Application 10/380,386 Technology Center 1700 ____________ Decided: May 2, 2008 ____________ Before EDWARD C. KIMLIN, ROMULO H. DELMENDO, and JEFFREY T. SMITH, Administrative Patent Judges. KIMLIN, Administrative Patent Judge. DECISION ON APPEAL This is an appeal from the final rejection of claims 16-25, 27-29, and 35. Claims 30-34 stand withdrawn from consideration as being directed to a non-elected invention. Claim 16 is illustrative: 16. A method for the regeneration of residues containing sulfur in that a droplet stream containing the residue is introduced into a reactor and fed to a reaction zone consisting of hot flue Appeal 2008-2663 Application 10/380,386 gases that are generated through the combustion of a fuel, and heated in said reaction zone so that compounds of the residues containing sulfur are thermally cleaved, characterized in that a droplet stream containing fuel is introduced into the reactor simultaneously with the droplet stream containing the residue, and is fed into a pre-reaction zone that is created by feeding in an oxygen-rich gas stream, whereby the residue in the pre- reaction zone is partially thermally cleaved and subsequently fed into the reaction zone, wherein the residue is atomized using an atomizing burner having a central inner nozzle that feeds in the residue-fuel mixture and that is coaxially surrounded by an inert gas nozzle and by a ring-shaped nozzle that feeds the oxygen-rich gas stream as an oxygen-rich sheathing gas stream, whereby inert gas is fed through the inert gas nozzle. The Examiner relies upon the following references as evidence of obviousness: KnÃ¼ppel 4,062,657 Dec. 13, 1977 Brotzmann 4,827,486 May 2, 1989 Watson 4,853,206 Aug. 1, 1989 Appellants' claimed invention is directed to a method for regenerating residues containing sulfur. The method uses an atomizing burner having a central inner nozzle that feeds a sulfur-containing residue/fuel mixture to a reaction zone. The central inner nozzle is coaxially surrounded by a nozzle for inert gas and a ring-shaped nozzle that feeds an oxygen-rich gas. Hence, the claimed atomizing burner comprises three coaxial nozzles for feeding three separate streams. Appealed claims 16-25, 27-29, and 35 stand rejected under 35 U.S.C. Â§ 103(a) as being unpatentable over Watson in view of Brotzmann and KnÃ¼ppel. 2 Appeal 2008-2663 Application 10/380,386 We have thoroughly reviewed the respective positions advanced by Appellants and the Examiner. In so doing, we agree with the Appellants that the Examiner has failed to establish a prima facie case of obviousness for the claimed subject matter. Accordingly, we will not sustain the Examiner's rejection. Watson, like Appellants, disclosing a process for regenerating residues containing sulfur by employing a burner 4 that has a first inlet 6 for the sulfur-containing residue, an inlet 8 for oxygen, and an inlet 10 for hydrocarbon fuel (see col. 3, ll. 55 et seq.). As recognized by the Examiner, Watson does not disclose an atomizing burner which comprises two coaxial nozzles, let alone the three coaxial nozzles presently claimed. To remedy this deficiency in Watson, the Examiner relies upon the combined teachings of Brotzmann and KnÃ¼ppel.1 The flaw in the Examiner's reasoning is that neither Brotzmann nor KnÃ¼ppel teaches or suggests an atomizing burner comprising a central inner nozzle and two coaxial nozzles surrounding the central nozzle. Brotzmann discloses double tube nozzles wherein oxygen is passed through the central tube and gaseous hydrocarbons and/or inert gas or mixtures thereof are passed through the outer annular tube (col. 4, ll. 24 et seq.). Likewise, KnÃ¼ppel discloses two concentric tubes for introducing oxygen and an inert gas (col. 2, ll. 52-57). Consequently, it can be seen that a combination of the three applied references fails to teach Appellants' atomizing burner having an inner nozzle coaxially surrounded by two separate nozzles. While it 1 We agree with the Examiner that the appealed claims do not require that the nozzle for the inert gas is located between the nozzle for the residue/fuel mixture and the nozzle for the oxygen-rich gas. 3 Appeal 2008-2663 Application 10/380,386 might be argued that one of ordinary skill in the art could modify the double concentric tubes or nozzles of the applied prior art to form three coaxial tubes or nozzles for feeding the three separate streams of Watson, such is not the proper standard for determining obviousness under 35 U.S.C. Â§ 103. The mere fact that the applied prior art could be modified to arrive at the claimed invention would not have made the modification obvious to one of ordinary skill in the art unless the prior art suggested the desirability of the modification. In re Gordon, 733 F.2d 900, 902 (Fed. Cir. 1984). In the present case, absent, at the minimum, a prior art disclosure of an atomizing burner comprising three coaxial nozzles, we must conclude that the Examiner's proposed modification of Watson is more a result of impermissible hindsight based on Appellants' disclosure than the requisite collective teachings of the applied prior art. In conclusion, based on the foregoing, we are constrained to reverse the Examiner's rejection. REVERSED cam CONNOLLY BOVE LODGE & HUTZ P O BOX 2207 WILMINGTON, DE 19899-2207 4