Ex Parte JohanssonDownload PDFBoard of Patent Appeals and InterferencesMar 30, 201111228475 (B.P.A.I. Mar. 30, 2011) 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. 11/228,475 09/19/2005 Maria Kristina Johansson 13877/26601 7894 26646 7590 03/30/2011 KENYON & KENYON LLP ONE BROADWAY NEW YORK, NY 10004 EXAMINER NGUYEN, NGOC YEN M ART UNIT PAPER NUMBER 1734 MAIL DATE DELIVERY MODE 03/30/2011 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 BOARD OF PATENT APPEALS AND INTERFERENCES ____________ Ex parte MARIA KRISTINA JOHANSSON ____________ Appeal 2010-003822 Application 11/228,475 Technology Center 1700 ____________ Before JEFFREY T. SMITH, BEVERLY A. FRANKLIN, and LINDA M. GAUDETTE, Administrative Patent Judges. SMITH, Administrative Patent Judge. DECISION ON APPEAL Appeal 2010-003822 Application 11/228,475 2 STATEMENT OF THE CASE This is an appeal under 35 U.S.C. § 134 from a final rejection of claims 1-10, all of the pending claims. We have jurisdiction under 35 U.S.C. § 6. 1 Appellant’s invention relates to a process for the continuous production of chlorine dioxide under non-crystallizing conditions. Claim 1 is illustrative: 1. A process for the continuous production of chlorine dioxide under noncrystallising conditions in at least two reaction vessels comprising the steps of feeding to a first reaction vessel alkali metal chlorate, a mineral acid and hydrogen peroxide to form an acidic reaction medium maintained in said first reaction vessel; reacting alkali metal chlorate, hydrogen peroxide and mineral acid in said reaction medium to form chlorine dioxide and alkali metal salt of the mineral acid; withdrawing chlorine dioxide from said reaction medium in said first reaction vessel as a gas; withdrawing depleted reaction medium comprising mineral acid, alkali metal chlorate and alkali metal salt of the mineral acid from said first reaction vessel and feeding it to a second reaction vessel; feeding hydrogen peroxide to the reaction medium in said second reaction vessel and maintaining said reaction medium therein at a concentration of alkali metal chlorate from about 9 to about 75 mmoles/liter; 1 In rendering this decision, we have considered the Appellant’s arguments presented in the Appeal Brief dated July 1, 2009. The Reply Brief dated December 07, 2009, has been filed with new evidence and therefore is in violation of 37 CFR § 41.41. An Oral Hearing for this Appeal was held on February 10, 2011. Appeal 2010-003822 Application 11/228,475 3 reacting alkali metal chlorate, hydrogen peroxide and mineral acid in said reaction medium to form chlorine dioxide and alkali metal salt of the mineral acid; withdrawing chlorine dioxide from said reaction medium in said second reaction vessel as a gas; and withdrawing depleted reaction medium comprising mineral acid and alkali metal salt of the mineral acid from said second reaction vessel. (paragraphing added). Appellant seeks review of the following rejections of claims 1-10:2 I. Claims 1-9 stand rejected under 35 U.S.C. § 102(b) as unpatentable over Sokol, U.S. Patent 5,380,517, issued January 10, 1995. II. Claims 1-10 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Sokol optionally combined with Charles, U.S. Patent Application 2003/0007899 A1, published January 9, 2003, or the Admitted Prior Art (APA), Specification 1. The principle issue presented for review is: Did the Examiner err in determining that Sokol describes or would have suggested a process for the continuous production of chlorine dioxide under non-crystallizing conditions wherein the concentration of alkali metal chlorate in the second reactor is maintained from about 9 to about 75 mmoles/litre? We answer this question in the negative, therefore we affirm. Appellant argues that Sokol does not disclose maintaining the concentration of alkali metal chlorate from about 9 to about 75 mmoles/litre 2 Appellant has not presented separate arguments for all of the rejected claims. Rather, Appellant’s arguments are principally directed to independent claim 1. Any claim not separately argued will stand or fall with its respective independent claim. See 37 C.F.R. § 41.37(c)(1)(vii) (2010). Appeal 2010-003822 Application 11/228,475 4 in the second reaction vessel as required by the subject matter of claim 1. (App. Br. 5). Appellant argues that maintaining the chlorate concentration is dependent upon several parameters such as the chlorate concentration transferred from the first reaction vessel, the feed rate of the hydrogen peroxide to the second reaction vessel, the rate of reaction in the second reaction vessel, and the volume ratio between the first and second reaction vessels. (Id.). Appellant further argues her disclosure of a continuous reaction to maintain under steady-state condition does not necessarily indicate that the chlorate concentration in Sokol’s second reactor is the same as the claimed invention because of the above argued parameters. (App. Br. 5). Appellant asserts that the example in the Specification exhibits that a continuous steady-state reaction as claimed can be maintained at a higher chlorate concentration. (App. Br. 5-6). We affirm the stated rejections for the reasons presented by the Examiner and add the following. The Examiner found that Sokol describes a two reactor process for the continuous production of chlorine dioxide under non-crystallizing conditions wherein the reaction conditions described for the first reaction vessel are the same as or substantially similar to reaction conditions required by the present invention. (Ans. 3-8). The Examiner determined that that the chlorate concentration in the second reaction vessel of Sokol would inherently be the same as the claimed invention because of the similarity in the reaction conditions of Sokol and the present invention. (Ans. 8). Further, the Examiner properly determined that a person of ordinary skill in the art would have been capable of optimizing the reaction conditions in the second reaction vessel. Therefore, Appeal 2010-003822 Application 11/228,475 5 we also affirm the § 103 rejection for the reasons expressed by the Examiner. (Ans. 8-9). Appellant has not disputed that the reaction conditions described by Sokol for the first reaction vessel are the same as the present invention. Accordingly, we determine that the Examiner has met the initial burden of establishing a prima facie case of unpatentability. Therefore, the burden has been shifted to Appellant to show that the reaction conditions in the second reaction vessel claimed differs substantially from the second reaction vessel of Sokol. Cf. In re Spada, 911 F.2d 705, 708 (Fed. Cir. 1990); and In re Best, 562 F.2d 1252, 1255 (CCPA 1977). Appellant has not directed us to persuasive evidence that the reaction conditions in the second reaction vessel of Sokol differ substantially from the claimed invention. In particular, Appellant’s arguments (App. Br. 5) regarding the reaction conditions are generalizations and are not specific to Sokol so as to establish that the concentration alkali metal chlorate in the second reactor is different from the present invention. Moreover, a person of ordinary skill in the art would have recognized the process conditions that would require adjustment to raise the concentration of alkali metal chlorate in the second reaction vessel to a level within the range specified by the claimed invention. Appellant relies upon the examples from the present Specification as evidence to establish that the reaction conditions in Sokol are different from the claimed invention. This evidence is insufficient to establish that the chlorate concentration in Sokol’s second reactor is different from the claimed invention. Appellant has not established why the comparative example is representative of Sokol or why this evidence establishes that the Appeal 2010-003822 Application 11/228,475 6 alkali metal chlorate concentration is different from the present invention. Moreover, Appellant has not established that maintaining the concentration of alkali metal chlorate in the second reactor would have been undesirable and/or unexpected to a person of ordinary skill in the art. For the foregoing reasons and those presented in the Answer, the rejections of claims 1-9 under § 102 and claims 1-10 under § 103(a) are affirmed. ORDER The rejection of claims 1-9 under 35 U.S.C. § 102(b) as unpatentable over Sokol is affirmed. The rejection of claims 1-10 rejected under 35 U.S.C. § 103(a) as unpatentable over Sokol optionally combined with Charles or the APA 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)(1). AFFIRMED bar Copy with citationCopy as parenthetical citation