Ex Parte Johansson

Board of Patent Appeals and Interferences

Mar 30, 2011

11228475 (B.P.A.I. Mar. 30, 2011)

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.
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Application 11/228,475

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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,
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Application 11/228,475

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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
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Application 11/228,475

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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

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