Ex Parte Kanzaki et al

Patent Trial and Appeal Board

Jul 25, 2017

13634128 (P.T.A.B. Jul. 25, 2017)

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.
13/634,128 09/11/2012 Syuji Kanzaki 66917-2 9338
35161 7590 07/25/2017
DTrKTNSON WRIGHT PT T C EXAMINER
1825 Eye St., NW HEINCER, LIAM J
Suite 900
WASHINGTON, DC 20006 ART UNIT PAPER NUMBER
1767
MAIL DATE DELIVERY MODE
07/25/2017 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 PATENT TRIAL AND APPEAL BOARD
Ex parte SYUJI KANZAKI, SUMIO OKUDA,
KUNIHIKO ISHIZAKI, and SATOSHI MATSUMOTO
Appeal 2017-000113
Application 13/634,128
Technology Center 1700
Before CHUNG K. PAK, PETER F. KRATZ, and
JANE E. INGLESE, Administrative Patent Judges.
INGLESE, Administrative Patent Judge.
DECISION ON APPEAL
Appellants1 request our review under 35 U.S.C. § 134(a) of a non-
final rejection of claims 1, 3, 9, 10, 14, and 18—20. We have jurisdiction
under 35 U.S.C. § 6(b).
We AFFIRM and enter a NEW GROUND OF REJECTION pursuant
to 37 C.F.R. § 41.50(b).
1 Appellants identify the real party in interest as Nippon Shokubai Co., Ltd.
Appeal Brief filed March 10, 2016 (“App. Br.”), 1.
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Application 13/634,128
STATEMENT OF THE CASE
Appellants claim a process for producing a water-absorbing resin.
App. Br. 2-3.
Independent claim 1 illustrates the subject matter on appeal and is
reproduced below:
1. A process for producing a water-absorbing resin
comprising a plurality of joined continuous steps; a
polymerization step of polymerizing an aqueous unsaturated
monomer solution, a drying step of drying a particulated water-
containing gel-like crosslinked polymer obtained in a finely
crushing step during the polymerization or after the
polymerization, a pulverizing step after the drying, a
classification step after the drying, and a surface treatment
step for the water-absorbing resin powder after the
classification step, wherein
with some of the above steps kept running continuously,
the other steps are interrupted, and subsequently all the steps
are restarted,
the interruption of the steps are at least one selected from
the group of an interruption at the time of periodic maintenance
and a temporal trouble,
the continuously running steps before the interrupted
steps are kept running by storing the water-absorbing resin to
be charged to the interrupted steps by installing a storage step
for temporarily storing the water-absorbing resin,
an un-filled hopper or a hopper with a low filling ratio
for temporarily storing the water-absorbing resin is installed
between the drying step and either the pulverizing step or the
classification step after the drying to temporarily store the
water-absorbing resin after the drying at the time of
interrupting the pulverizing step or the steps after the
classification step,
the filling ratio of the un-filled hopper or the hopper with
a low filling ratio is 0 to 50%,
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the interrupted steps are restarted after countermeasures
for the periodic maintenance and the temporal trouble are made,
and
the restarted time of all the steps after the other steps are
interrupted is from 0.5 hour to 100 days.
App. Br. 18—19 (Claims Appendix) (emphasis added).
Appellants request review of the following rejections set forth in the
Non-Final Office Action entered September 28, 2015 (“Non-Final Act.”),
which the Examiner maintains in the Answer entered July 27, 2016 (“Ans.”)
I. Claims 1, 3, 9, 10, and 14 under 35 U.S.C. § 103(a) as
unpatentable overNogi et al. (WO 2009/113672 Al, published September
17, 2009)2 in view of Chong et al., Model-Based Control of Multi-Unit
Systems under Partial Shutdown Conditions, 2009 American Control
Conference 160; and
II. Claims 18—20 under 35 U.S.C. § 103(a) as unpatentable over
Nogi in view of Chong.
DISCUSSION
Upon consideration of the evidence relied upon in this appeal and
each of Appellants’ contentions3, we affirm the Examiner’s rejections of
2 Appellants do not contest the Examiner’s reliance on the patent issuing
from the U.S. national stage of the PCT application (U.S. US 8,148,485 B2,
issued April 3, 2012), and citations in this Decision refer to the U.S. patent.
3 We do not consider any new argument raised in Appellants’ Reply Brief
(filed September 26, 2016) that could have been raised in their Appeal brief.
Ex parte Borden, 93 USPQ2d 1473, 1474 (BPAI 2010) (Informative)
(explaining that under the previous rules, which are similar to the current
rules, “the reply brief [is not] an opportunity to make arguments that could
have been made in the principal brief on appeal to rebut the Examiner’s
rejections, but were not.”); Optivus Technology, Inc. v. Ion Beam
Applications S.A., 469 F.3d 978, 989 (Fed. Cir. 2006) (argument raised for
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claims 1,3,9, 10, 14, and 18—20 under 35 U.S.C. § 103(a), but we designate
our affirmance of these rejections as including new grounds of rejection
because certain of our reasons for affirmance differ materially from those
expressed by the Examiner. In reLeithem, 661 F.3d 1316, 1319 (Fed. Cir.
2011) (“Mere reliance on the same statutory basis and the same prior art
references, alone, is insufficient to avoid making a new ground of rejection
where the Board relies on new facts and rationales not previously raised to
the applicant by the examiner.”). In addition, because independent claims 1
and 18 lack the clarity required under 35 U.S.C. § 112, second paragraph,
we enter a new ground of rejection against these claims and their dependent
claims.
New Ground of Rejection Under 35 U.S.C. $ 112, Second Paragraph
Claims 1, 3, 9, 10, 14, and 18—20 are rejected under 35 U.S.C. § 112,
second paragraph, for failing to particularly point out and distinctly claim
the subject matter that Appellants regard as their invention.
In determining compliance with 35 U.S.C. § 112, second paragraph,
we must determine whether the claims set out and circumscribe a particular
area with a reasonable degree of precision and particularity. In re Moore,
439 F.2d 1232, 1235 (CCPA 1971). The definiteness of claim language
must be analyzed “in light of the teachings of the prior art and of the
particular application disclosure as it would be interpreted by one possessing
the ordinary level of skill in the pertinent art.” Id.
Claim 1 recites, inter alia, that “a hopper ... is installed between the
the first time in the reply brief that could have been raised in the opening
brief is waived).
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drying step and either the pulverizing step or the classification step ... to
temporarily store the water-absorbing resin ... at the time of interrupting the
pulverizing step or the steps after the classification step.” Claim 18 similarly
recites, inter alia, that “a hopper ... is installed between the classification
step and the surface treatment step ... to temporarily store the water­
absorbing resin ... at the time of interrupting the steps after the surface
treatment step.”
According to Appellants, “at the time of interrupting” recited in
claims 1 and 18 refers to when a hopper is installed. App. Br. 5. However,
“at the time of interrupting” could also refer to when the water-absorbing
resin is temporarily stored, and if this were the case, claims 1 and 18 would
not require a hopper to be installed at the time when steps are interrupted.
Although Appellants’ Specification discusses the limitations at issue, the
disclosure in the Specification simply repeats the claim language. Spec.
190. We therefore find no disclosure in Appellants’ Specification that
clarifies whether the language at issue in claims 1 and 18 would be
understood by one of ordinary skill in the art to require a hopper to be
installed at the time when steps are interrupted, or whether the language only
requires the water-absorbing resin to be temporarily stored at that time,
which could occur by use of a previously installed hopper.
In addition, claims 1 and 18 also recite that “with some of the above
steps kept running continuously, the other steps are interrupted, and
subsequently all the steps are restarted.” However, the recitation that “all
the steps are restarted” is contrary to the earlier recitation that some steps run
continuously. In other words, the continuously running steps could not be
“restarted” because they are already running.
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Therefore, claims 1 and 18 lack the requisite clarity necessary to meet
the requirements of 35 U.S.C. § 112, second paragraph. We accordingly
enter a new ground of rejection against claims 1,3,9, 10, 14, and 18—20
under 35 U.S.C. § 112, second paragraph.
Rejections under 35 U.S.C. $ 103(a)
Claims 1 and 18
Although the Examiner includes claims 1 and 18 in separate grounds
of rejection, Appellants argue these claims together. App. Br. 4—15.
Therefore, we select claim 1 as representative, and decide the appeal as to
claims 1 and 18 based on claim 1 alone. 37 C.F.R. § 41.37(c)(l)(iv).
As discussed above, it is unclear whether claim 1 requires a hopper to
be installed at the time when steps are interrupted, or only requires water­
absorbing resin to be temporarily stored at this time. However, the applied
prior art reasonably would have suggested both courses of action, as
discussed more fully below. Therefore, although we consider claim 1 to be
indefinite, we nevertheless address the merits of the rejections under
§ 103(a) in the interest of avoiding any piecemeal appeal. See Ex parte
Saceman, 27 USPQ2d 1472, 1474 (Bd. Pat. App. & Int. 1993); Ex parte
Ionescu, 222 USPQ 537, 540 (Bd. Pat. App. & Int. 1984).
Nogi discloses a method for continuously producing a water­
absorbing resin that comprises polymerizing an acrylic acid aqueous solution
to obtain a water-containing gel; drying the water-containing gel to obtain a
dried substance; pulverizing and classifying the dried substance to obtain a
powder substance; and surface crosslinking the powder substance. Nogi col.
3,11. 23—30. Nogi discloses utilizing a hopper to temporarily store and
transfer dried material during this production process (col. 6,1. 65—col. 7,1.
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12), and Nogi discloses that the hopper may be installed at any time between
the drying step and the pulverization or classification step (col. 10,11. 1—6).
As the Examiner correctly finds, Nogi does not explicitly disclose
interrupting the water-absorbing resin production process at a time of
periodic maintenance or temporal trouble. Non-Final Act. 3.
However, Chong discloses producing an end-product in a chemical
plant by transporting raw materials through numerous processing units.
Chong 160. Chong discloses temporarily shutting down select process units
for maintenance or equipment failure, which Chong refers to as “partial
shutdown.” Id. Chong discloses that the unaffected process units can
continue to operate by using buffer tanks to temporarily hold material
discharged from these units. Id. at 160—161. Chong discloses that the buffer
tanks are dynamic units, and discloses that the level of material in the buffer
tanks “may be manipulated in order to keep the plant operational when any
unit in any given department is shut down.” Id. at 160. Chong further
discloses restoring the buffer tanks following a shutdown “to their original
levels ... so that the system is at a state where it is prepared to
accommodate subsequent shutdowns.” Id. at 162. Chong also discloses
that, in addition to allowing unaffected processing units to continue to
operate during a partial shutdown, “judiciously placed buffer capacities in a
plant also help[] to mitigate the propagation of process variations along a
production line.” Id. at 160.
The Examiner finds that one of ordinary skill in the art at the time of
Appellants’ invention would have been led to use Nogi’s hoppers as buffer
tanks as disclosed in Chong to allow Nogi’s process to continue during a
partial shutdown due to maintenance or equipment failure. Non-Final Act.
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3.
Appellants argue that Nogi discloses permanently-fixed hoppers used
to provide constant and controlled flow between continuous process steps.
App. Br. 6. Appellants argue that Chong similarly discloses permanently-
fixed buffer tanks that are used as part of normal operation and are not
installed in select locations when certain process steps are interrupted. Id. at
8, 12. Appellants argue that neither Nogi nor Chong disclose or suggest
installing a hopper between drying and pulverizing or classifying steps
during the interruption of a downstream process for temporal trouble or
maintenance, while continuing to run the remaining process steps. Id. at 9—
10.
However, Nogi explicitly discloses that a hopper may be installed at
any time between a drying step and a pulverization or classification step to
temporarily store material when continuously producing a water-absorbing
resin, as indicated supra, regardless of whether Nogi and Chong also
disclose permanently-fixed hoppers and buffer tanks. Moreover, Chong
discloses that “judiciously placed” buffer tanks (e.g., hoppers) for
temporarily storing or holding material allow unaffected processing units in
a chemical plant to continue to operate during shutdown of select units for
maintenance or equipment failure, as also indicated supra. Accordingly, the
collective teachings of Nogi and Chong would have suggested to the
ordinarily skilled artisan that a hopper could be installed between the drying
and pulverizing or classifying steps of Nogi’s process at the time of
interruption of a downstream step in order to temporarily store or hold
material and allow unaffected process steps to continue, as recited in claim
1. Therefore, Appellants’ arguments are unpersuasive of reversible error.
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Appellants argue that Chong discloses a Kraft paper pulping process
for removing lignin from wood fibers, and does not teach or suggest that
buffer tanks would be suitable for use during interruption of a process for
producing a water-absorbing resin. App. Br. 10, 12. Appellants further
contend that Chong teaches that interruption of a production process can
cause the resulting product to be “off-specification.” Id. Appellants argue
that it would therefore not have been obvious to one of ordinary skill in the
art to modify Nogi’s process in view of Chong’s disclosures. Id.
However, the Kraft paper pulping process disclosed in Chong is an
exemplary process used to illustrate the broader concepts set forth in the
reference of shutting down select process units in a chemical plant while
continuing to operate the remaining, unaffected process units by using buffer
tanks to temporarily hold material discharged from the operational
processing units. See generally Chong. By focusing only on the Kraft paper
pulping process, Appellants’ arguments impermissibly ignore Chong’s
broader disclosures. In re Fracalossi, 691 F.2d 792, 9974 n.l (CCPA 1982)
(explaining that a prior art disclosure is not limited to its examples).
In addition, Chong’s disclosure that an end-product produced during a
shutdown period may be off-specification would have suggested that the
end-product would not necessarily be off-specification, and could actually
meet specifications. Chong 160. In re Boe, 355 F.2d 961, 965 (CCPA
1966) (explaining that all of the disclosures in a prior art reference, including
non-preferred embodiments, “must be evaluated for what they fairly teach
one of ordinary skill in the art.”). Furthermore, as discussed above, Chong
discloses that, in addition to advantageously allowing unaffected processing
units to continue to operate during a partial shutdown, “judiciously placed
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buffer capacities in a plant also help[] to mitigate the propagation of process
variations along a production line.” Id. Accordingly, Chong’s disclosures
as a whole reasonably would have suggested that utilizing Nogi’s hoppers as
buffering tanks would mitigate process variations, and would
advantageously allow unaffected process steps to continue during
interruption of select steps of Nogi’s process, which would have led one of
ordinary skill in the art to modify Nogi’s process in view of Chong’s
disclosures. Therefore, Appellants’ arguments are unpersuasive of
reversible error.
Appellants also argue that modifying Nogi’s continuous process
according to the disclosures of Chong to interrupt a step, and then rapidly
discharging the contents of a buffer tank following shutdown as taught in
Chong, would be contrary to the controlled, continuous nature of Nogi’s
process. App. Br. 12—14. Appellants further assert that, based on Nogi’s
teachings, interrupting a process step would lower the quality of the water­
absorbing resin produced. Id. at 6.
However, one of ordinary skill in the art reasonably would have
understood at the time of Appellants’ invention that the equipment used to
perform Nogi’s continuous process would require periodic maintenance, and
could also fail. Therefore, the ordinarily skilled artisan would have
understood that although all of Nogi’s equipment might not need to be shut
down at the same time, at least some of the production units would require
maintenance, repair, or replacement at some point in time. Accordingly,
although Nogi’s process is continuous, one of ordinary skill in the art would
have understood that not all of Nogi’s process units would operate
continuously at all times, and Chong’s disclosure of utilizing buffer tanks to
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permit select process units to be shut down during a continuous process in a
chemical plant would have led one of ordinary skill in the art to utilize
Nogi’s hoppers as buffer tanks to selectively shut down certain process units
when necessary for maintenance or repair while allowing other units to
operate continuously, as recited in claim 1.
The rapid discharge of buffer tank contents following shutdown
disclosed in Chong was conducted as part of a particular case study to make
up for lost production due to the shutdown. Chong 164. Appellants do not
direct us to any disclosure in Chong indicating that such a rapid discharge
would be required, and thus would be necessary following partial shutdown
of Nogi’s process. In addition, Appellants do not direct us to any disclosure
in Nogi indicating that interrupting a process step as suggested by Chong
would lower the quality of water-absorbing resin produced in Nogi’s
process. Appellants’ unsupported arguments to that effect cannot take the
place of evidence. In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984); In
re Payne, 606 F.2d 303, 315 (CCPA 1979); see also In re Greenfield, 571
F.2d 1185, 1189 (CCPA 1978); In re Pearson, 494 F.2d 1399, 1405 (CCPA
1974). Accordingly, Appellants’ arguments are unpersuasive of reversible
error.
Appellants further argue that neither Nogi nor Chong disclose the
filling ratio recited in claim 1 at the time of interruption of a particular
process step. App. Br. 7, 11. Appellants contend that the hopper and buffer
tanks of Nogi and Chong are “already partially filled” during normal
operation, and are “quickly filled to 90% by the continuous steps upstream
of the interrupted steps if the process is run continuously.” Id. at 14.
Appellants further argue that Chong does not disclose or suggest the effect
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of a filling ratio of 0% to 50% during a shutdown period. Id. at 12.
Appellants contend that one of ordinary skill in the art therefore would not
have had an expectation of success in using Nogi and Chong’s hopper and
buffer tanks at a filling ratio of 0% to 50% for temporarily storing water­
absorbing resin power when a process step is interrupted as recited in claim
1. Id. at 14.
However, contrary to Appellants’ arguments, as discussed above,
Chong explicitly discloses restoring buffer tanks following a shutdown “to
their original levels ... so that the system is at a state where it is prepared to
accommodate subsequent shutdowns.” Chong 162. In addition, Chong’s
disclosure that the level of material in the buffer tanks “may be manipulated
in order to keep the plant operational when any unit in any given department
is shut down” establishes that the level of material in the buffer tanks—or
the filling ratio—is a result-effective variable. Id. at 160. In re Applied
Materials, Inc., 692 F.3d 1289, 1297 (Fed. Cir. 2012) (“A recognition in the
prior art that a property [or a result] is affected by the variable is sufficient to
find the variable result-effective.”) Accordingly, an ordinarily skilled artisan
seeking to use Nogi’s hopper as a buffering tank as suggested by Chong
would have had sufficient skill to determine the optimum level of material to
include in the hopper at the time of interrupting a particular process step,
such as the filling ratio recited in claim 1, through nothing more than routine
experimentation. In re Boesch, 617 F.2d 272, 276 (CCPA 1980)
(“[DJiscovery of an optimum value of a result effective variable in a known
process is ordinarily within the skill of the art.”); In re Aller, 220 F.2d 454,
456 (CCPA 1955) (“[W]here the general conditions of a claim are disclosed
in the prior art, it is not inventive to discover the optimum or workable
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ranges by routine experimentation.”). Appellants’ arguments are therefore
unpersuasive of reversible error.
Appellants further argue that Example 1 of their Specification
demonstrates that controlling the filling ratio at 50% or lower during
interruption of a process step reduces or inhibits undesirable coloring of the
water-absorbing resin, which would have been unexpected to one of
ordinary skill in the art. App. Br. 11.
However, Appellants do not demonstrate that the process of claim 1
imparts results that would have been unexpected by one of ordinary skill in
the art at the time of Appellants’ invention relative to the closest prior art. In
re Klosak, 455 F.2d 1077, 1080 (CCPA 1972) (“the burden of showing
unexpected results rests on he who asserts them”); In re Baxter Travenol
Labs., 952 F.2d 388, 392 (Fed. Cir. 1991) (“[W]hen unexpected results are
used as evidence of nonobviousness, the results must be shown to be
unexpected compared with the closest prior art.”).
Example 1 describes a single production process in which a
classification step was interrupted, and Example 1 describes the use of a
hopper having a filling ratio of 0% at the time of interruption. Spec. ]Hf 117—
124. Example 1 does not provide a comparison between the process of
claim 1 and the closest prior art—Nogi—and Appellants do not direct us to
any such showing. App. Br. 11. In addition, Appellants do not explain why
the limited showing in Example 1 directed to a single process is reasonably
commensurate with the full scope of claim 1, which is not limited to the use
of a hopper having a filling ratio of 0%, and is not limited to interruption of
only a classification step. Id. \ In re Harris, 409 F.3d 1339, 1344 (Fed. Cir.
2005) (“Even assuming that the results were unexpected, Harris needed to
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show results covering the scope of the claimed range. Alternatively Harris
needed to narrow the claims.”); In re Greenfield, 571 F.2d 1185, 1189
(CCPA 1978) (“Establishing that one (or a small number of) species gives
unexpected results is inadequate proof, for ‘it is the view of this court that
objective evidence of non-obviousness must be commensurate in scope with
the claims which the evidence is offered to support.’” (quotingIn re Tiffin,
448 F.2d 791, 792 (CCPA 1971))).
Therefore, on balance, the evidence of obviousness on this record
outweighs the proffered evidence of non-obviousness. We accordingly
sustain the Examiner’s rejection of claims 1 and 18 under 35 U.S.C.
§ 103(a).
Claim 3
Appellants separately address claim 3, but in so doing, provide
essentially the same arguments that they provide for claim 1. App. Br. 15.
Because we are unpersuaded of reversible error in the Examiner’s rejection
of claim 1 as discussed above, Appellants’ position as to claim 3 is therefore
also without merit. Accordingly, we sustain the rejection of claim 3 under
35 U.S.C. § 103(a).
Claims 9, 10, 14, 19, and 20
Although Appellants separately address each of claims 9, 10, 14, 19,
and 20, Appellants’ statements do not constitute substantive arguments as to
the separate patentability of these claims because Appellants merely assert
without further explanation that Nogi and Chong would not have suggested
the claimed subject matter. App. Br. 16. In re Lovin, 652 F.3d 1349, 1357
(Fed. Cir. 2011) (“[T]he Board reasonably interpreted Rule 41.37 to require
more substantive arguments in an appeal brief than a mere recitation of the
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claim elements and a naked assertion that the corresponding elements were
not found in the prior art. Because Lovin did not provide such arguments,
the Board did not err in refusing to separately address claims 2—15, 17—24,
and 31—34.”). We accordingly sustain the rejection of claims 9, 10, 14, 19,
and 20 under 35 U.S.C. § 103(a).
DECISION
We affirm the Examiner’s rejections of claims 1,3,9, 10, 14, and 18—
20 under 35 U.S.C. § 103(a), but designate our affirmance as including new
grounds of rejection. We also enter a new ground of rejection against claims
1, 3, 9, 10, 14, and 18—20 under 35 U.S.C. § 112, second paragraph.
This decision contains a new ground of rejection pursuant to 37
C.F.R. § 41.50(b). Section 41.50(b) provides that “[a] new ground of
rejection pursuant to this paragraph shall not be considered final for judicial
review.” Section 41.50(b) also provides:
When the Board enters such a non-final decision, the appellant, within
two months from the date of the decision, must exercise one of the
following two options with respect to the new ground of rejection to
avoid termination of the appeal as to the rejected claims:
(1) Reopen prosecution. Submit an appropriate amendment of
the claims so rejected or new Evidence relating to the claims so
rejected, or both, and have the matter reconsidered by the examiner, in
which event the prosecution will be remanded to the examiner. The
new ground of rejection is binding upon the examiner unless an
amendment or new Evidence not previously of Record is made which,
in the opinion of the examiner, overcomes the new ground of rejection
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designated in the decision. Should the examiner reject the claims,
appellant may again appeal to the Board pursuant to this subpart.
(2) Request rehearing. Request that the proceeding be reheard
under § 41.52 by the Board upon the same Record. The request for
rehearing must address any new ground of rejection and state with
particularity the points believed to have been misapprehended or
overlooked in entering the new ground of rejection and also state all
other grounds upon which rehearing is sought.
Further guidance on responding to a new ground of rejection can be
found in the Manual of Patent Examining Procedure § 1214.01.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED; NEW GROUND OF REJECTION
PURSUANT TO 37 C.F.R, $ 41.50(b)
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