Ex Parte Hendrickson

Board of Patent Appeals and Interferences

Nov 13, 2008

10854345 (B.P.A.I. Nov. 13, 2008)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
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Ex parte GREGORY G. HENDRICKSON
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Appeal 2008-5084
Application 10/854,345
Technology Center 1700
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Decided: November 13, 2008
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Before TERRY J. OWENS, CATHERINE Q. TIMM, and
MICHAEL P. COLAIANNI, Administrative Patent Judges.

OWENS, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
The Appellant appeals from a rejection of claims 1-4, 6-11, 16-40, 42-
45 and 47-54, which are all of the pending claims. We have jurisdiction
over this appeal under 35 U.S.C. § 6(b).

Appeal 2008-5084
Application 10/854,345

The Invention
The Appellant claims methods for increasing the production rate of a
gas phase fluidized bed reactor by use of an alternate inert fluid that is
noncondensable under reactor conditions. Claims 1 and 39 are illustrative:
1. A method of operating a gas phase fluidized bed polymerization
reactor to produce a polymer product comprising:

increasing a production rate of the same polymer product by
modifying a composition of a recycle gas stream to the
polymerization reactor to increase a heat capacity of the recycle
gas stream while holding a condensate content of one or more
inlet streams to the polymerization reactor at a value of less
than or equal to about 17.4 weight percent, wherein modifying
the recycle gas composition comprises adding an alternate inert
fluid to the recycle gas and wherein the alternate inert fluid is
noncondensable under reactor conditions. [ ]1

39. A method of operating a gas phase fluidized bed polymerization
reactor to produce a polymer product comprising:

increasing a production rate of the same polymer product by
replacing all or a portion of nitrogen fed into the reactor with an
alternate inert fluid having a higher molecular weight and
higher heat capacity than nitrogen while holding a condensate
content of one or more inlet streams to the reactor at a value of
less than or equal to about 17.4 weight percent, wherein the
alternate inert fluid is noncondensable under reactor conditions.

1 The Appellant’s disclosed alternate inert fluids are ethane, propane and
isobutane (Spec. ¶¶ 0008). The Appellant discloses that propane and
isobutane, but not ethane, are condensable under reactor conditions
(Spec. ¶ 0048), and that “methane does not offer an advantage over nitrogen,
even though it has a higher heat capacity, because its molecular weight is
lower than that of nitrogen” (¶ 0054). Thus, the only disclosed alternate
inert fluid that meets the requirements of the Appellant’s claims is ethane.
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Appeal 2008-5084
Application 10/854,345

The Rejection
Claims 1-4, 6-11, 16-40, 42-45 and 47-54 stand rejected under
35 U.S.C. § 112, first paragraph, written description requirement.
OPINION
We reverse the Examiner’s rejection.
Issue
Has the Appellant shown reversible error in the Examiner’s
determination that the Appellant’s original disclosure fails to provide
adequate written descriptive support for the claimed invention?
Analysis
A specification complies with the 35 U.S.C. § 112, first paragraph,
written description requirement if it conveys with reasonable clarity to those
skilled in the art that, as of the filing date sought, the inventor was in
possession of the invention. See Vas-Cath Inc. v. Mahurkar, 935 F.2d 1555,
1563-64 (Fed. Cir. 1991); In re Kaslow, 707 F.2d 1366, 1375 (Fed. Cir.
1983); In re Edwards, 568 F.2d 1349, 1351-52 (CCPA 1978); In re
Wertheim, 541 F.2d 257, 262 (CCPA 1976).
The Appellant’s claims require use of an alternate inert fluid,
noncondensable under reactor conditions, to increase the production rate of
the same polymer. The Appellant discloses that substitution of the alternate
inert fluid for all or part of the conventional nitrogen increases the
production capacity of the polymerization reactor because the alternate inert
fluid has a higher molecular weight and heat capacity than nitrogen and,
therefore, increases the rate of heat removal from the exothermic
polymerization reaction (Spec. ¶¶ 0005, 0008, 0039). The requirement that
the polymer product whose production rate is increased is the “same”
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Appeal 2008-5084
Application 10/854,345

polymer product was added to the claims by amendment (filed Feb. 2, 2007,
p. 2).
The Examiner argues that “there seems to be no support for the newly
added ‘same’ feature” (Ans. 4, 5).
The Appellant points out disclosures in the Appellant’s Specification
which appear to indicate that the same polymer product is produced when
the alternate inert fluid is used, i.e., disclosures that 1) reactor conditions and
ethylene concentration are held constant (¶ 0052), 2) “the amount of
polymer that can be produced in a fluidized bed reactor of a given size in a
specified time period is directly related to the amount of heat that can be
withdrawn from the fluidized bed” (¶ 0005), 3) “[t]he higher heat capacity
and higher molecular weight of the alternate inert fluid increases the
polymerization rate of heat removal, which allows increased production
capacity of the polymerization reactor” (¶ 0008), and 4) “increasing the rate
of heat removal from the polymerization reactor 10 likewise increases the
production rate of polyolefin product from the polymerization reactor 10”
(¶ 0039) (App. Br. 14-16). Also, the Appellant’s Specification discloses
increasing the production rate by various degrees “as compared to the same
process that did not replace any nitrogen in the recycle stream” (¶ 40). The
Examiner has not explained, in view of those disclosures, why the
Appellant’s Specification fails to show that the Appellant was in possession
of a method wherein, when the alternate inert fluid is used to increase heat
removal, the same polymer product is produced. See Vas-Cath, 935 F.2d at
1563-64; Kaslow, 707 F.2d at 1375; Edwards, 568 F.2d at 1351-52;
Wertheim, 541 F.2d at 262.
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Appeal 2008-5084
Application 10/854,345

The Examiner argues that “any changes in polymerization conditions
will cause a change in polymer produced, unless appellants’ [sic]
specification indicate[s] that a change would not alter the polymer being
produced” (Ans. 7).
The Appellant merely uses an alternate inert fluid to increase heat
removal (Spec. ¶ 0039). Because the fluid is inert, it necessarily is
nonreactive. The Examiner has not provided evidence or technical
reasoning which shows that the use of an alternate inert fluid to increase heat
removal would cause a different polymer to be produced.
Conclusion of Law
The Appellant has shown reversible error in the Examiner’s
determination that the Appellant’s original disclosure fails to provide
adequate written descriptive support for the claimed invention.
DECISION/ORDER
The rejection of claims 1-4, 6-11, 16-40, 42-45 and 47-54 under
35 U.S.C. § 112, first paragraph, written description requirement, is
reversed.
It is ordered that the Examiner’s decision is reversed.

REVERSED

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