Ex Parte Kamper

Patent Trial and Appeal Board

Jan 27, 2015

11749817 (P.T.A.B. Jan. 27, 2015)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte FRIEDHELM KAMPER
____________

Appeal 2013-000852
Application 11/749,817
Technology Center 3700
____________

Before LINDA E. HORNER, MICHAEL L. HOELTER, and
ERIC C. JESCHKE, Administrative Patent Judges.

JESCHKE, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
This is a decision on appeal, under 35 U.S.C. § 134(a), from a final
rejection of claims 1–14. Appeal Br. 2. We have jurisdiction under 35
U.S.C. § 6(b).
We REVERSE.

CLAIMED SUBJECT MATTER
The disclosed subject matter relates “to processes for the selective
separation of chlorine . . . .” Spec. ¶ 11. Independent claim 1, reproduced
below with certain relevant language in italics, is illustrative of the claims on
appeal:
Appeal 2013-000852
Application 11/749,817

2
1. A process comprising:
(a) providing a gas comprising chlorine,
oxygen, and carbon dioxide, wherein the gas is a
product of a hydrogen chloride oxidation process;
(b) feeding the gas to a distillation
column having a head, a bottom, a rectifying
section and a stripping section, wherein the gas is
fed to the distillation column at an introduction
point between the rectifying section and the
stripping section;
(c) distilling the gas in the column at a
pressure of 8 to 30 bar and at a column head
temperature of -10°C to -60°C, to form liquid
chlorine and a head mixture comprising carbon
dioxide and oxygen;
(d) removing the liquid chlorine from the
distillation column at the bottom of the column;
and
(e) removing a first portion of the head
mixture from the head of the distillation column,
and refluxing a second portion of the head mixture
in the column.

EVIDENCE RELIED ON BY THE EXAMINER
Alkemade US 3,233,978 Feb. 8, 1966
Foster US 4,394,367 July 19, 1983
Watzenberger US 5,788,743 Aug. 4, 1998

REJECTIONS ON APPEAL
Claims 1–12 and 14 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Foster and Watzenberger. Ans. 4–9; Final Act. 2–8
(mailed June 30, 2011).
Appeal 2013-000852
Application 11/749,817

3
Claim 13 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Foster, Watzenberger, and Alkemade. Ans. 9–11; Final Act. 8–9.

ANALYSIS
The rejection of claims 1–12 and 14 under 35 U.S.C. § 103(a)
A. Appellant’s Positions
Appellant asserts that the Examiner has failed to make a prima facie
case regarding claim 1, arguing that the prior art does not “teach ‘a
distillation column having a head, a bottom, a rectifying section, and a
stripping section’ . . . .” Appeal Br. 3. Appellant argues that the Examiner
erred by finding that components 54, 68, and 58 from Foster satisfy the
“distillation column” limitation because Foster does not teach that these
three components are “arranged in a column.” Id. at 3–4. Appellant adds
that Foster uses the term “distillation column” to refer to other components
but not to refer to the components identified by the Examiner. Id. at 4.
B. The Examiner’s Positions
In response, the Examiner clarifies that “the Examiner views (54),
(68) and the separators in (58) of Foster as one distillation column
structure.” Ans. 11. The Examiner states that “[e]ven if Foster does not use
‘distillation column’ as a descriptor, it does not preclude that structure from
being interpreted as a distillation column, even if the figures do not show it
in a ‘column’ per se.” Id. at 12. According to the Examiner, “[t]he phrase
‘distillation column’ has acquired a term [sic meaning] known to one having
ordinary skill in the art and the collective components (54, 68, and 58) make
up a ‘distillation column.[’]” Id. at 12–13.

Appeal 2013-000852
Application 11/749,817

4
C. Discussion
The Examiner’s interpretation of “distillation column” as
encompassing the three separate components of Foster—second absorption
zone 54, condensation zone 58, and first stripping zone 68—is unreasonably
broad. The Examiner has not identified any teaching in Foster or any other
evidence indicating that a person of ordinary skill in the art at the time of the
invention would identify any of the three components from Foster, alone or
together, as a “distillation column.”
Our conclusion on this issue is supported by the fact that Foster uses
the term “distillation column” to refer to structures other than those
identified by the Examiner. See In re Cortright, 165 F.3d 1353, 1358 (Fed.
Cir. 1999) (“Prior art references may be ‘indicative of what all those skilled
in the art generally believe a certain term means . . . [and] can often help to
demonstrate how a disputed term is used by those skilled in the art.’ . . .
Accordingly, the PTO’s interpretation of claim terms should not be so broad
that it conflicts with the meaning given to identical terms in other patents
from analogous art.”) (quoting Vitronics Corp. v. Conceptronic, Inc., 90
F.3d 1576, 1584 (Fed. Cir. 1996)).
Specifically, Foster discloses that “distillation zone 94 may comprise
one or more columns, but preferably is a single column having more than 2
theoretical plates of separation efficiency.” Foster, col. 4, ll. 64–67; see also
id. at col. 6, ll. 28–34 (discussing exemplary conditions in the “distillation
column”). Foster does not contain similar statements regarding the three
components identified by the Examiner. Moreover, the Examiner has not
sought to demonstrate that Foster uses the term “distillation column” in a
manner inconsistent with the manner of one of ordinary skill in the art at the
Appeal 2013-000852
Application 11/749,817

5
time of the invention. We find the usage of that term in Foster more
persuasive than the Examiner’s unsupported statement that “‘distillation
column’ has acquired a term [sic meaning] known to one having ordinary
skill in the art and the collective components (54, 68, and 58) make up a
‘distillation column.[’]” Ans. 12–13.
Further, we do not agree with the Examiner’s assertion that Appellant
“appears to admit in the instant specification on pages 15–16, that these
terms are interchangeable . . . .” Ans. 12 (citing Spec. ¶¶ 64, 66). The only
reference to “distillation column” in the passages cited identifies that term as
one example of a “separating and evaporating unit.” See Spec. ¶ 64 (“To
avoid the loss of hydrogen chloride, the condensate leaving the second heat
exchanger is fed into a separating and evaporating unit. This can be a
distillation column, for example, in which the hydrogen chloride is driven
off from the condensate and returned to the second heat exchanger.”)
(emphasis added). This statement does not show that any “separating and
evaporating unit” is a “distillation column.”
For the reasons set forth above, we find that the Examiner has failed
to demonstrate that Foster discloses the “distillation column” limitation
recited in claim 1.
Claims 2–12 and 14 depend, either directly or indirectly, from claim
1. For the reasons set forth above with regard to claim 1, we therefore
reverse the rejections of claims 2–12 and 14.
Appeal 2013-000852
Application 11/749,817

6
The rejection of claim 13 under 35 U.S.C. § 103(a)
Claim 13 depends indirectly from claim 1. The Examiner does not
rely on Alkemade to make up the deficiency discussed above in the
combination of Foster and Watzenberger. For the reasons set forth above
with regard to claim 1, we therefore reverse the rejection of claim 13.

CONCLUSION
For the reasons set forth above, we REVERSE the Examiner’s
rejections of claims 1–14 under 35 U.S.C. § 103(a).

REVERSED

hh