Ex Parte Koehler et alDownload PDFPatent Trial and Appeal BoardDec 22, 201614239265 (P.T.A.B. Dec. 22, 2016) 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. 14/239,265 02/18/2014 Hartmut Koehler 814411 7693 95683 7590 12/27/2016 Leydig, Voit & Mayer, Ltd. (Frankfurt office) Two Prudential Plaza, Suite 4900 180 North Stetson Avenue Chicago, IL 60601-6731 EXAMINER KASTLER, SCOTT R ART UNIT PAPER NUMBER 1733 NOTIFICATION DATE DELIVERY MODE 12/27/2016 ELECTRONIC 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. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address(es): chgpatent @ ley dig. com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte HARTMUT KOEHLER and TIMOTHEUS SCHMEDDERS Appeal 2015-006027 Application 14/239,265 Technology Center 1700 Before CHUNG K. PAK, N. WHITNEY WILSON, and JULIA HEANEY, Administrative Patent Judges. HEANEY, Administrative Patent Judge. DECISION ON APPEAL Appellants1 appeal under 35 U.S.C. § 134(a) from the Examiner’s decision finally rejecting claims 11—20 of Application 14/239,265 as unpatentable over Linney.2 We have jurisdiction under 35 U.S.C. § 6(b). We affirm. 1 Appellants identify the real party in interest as Outotec Oyj. App. Br. 1. 2 Linney, US 3,288,449, issued Nov. 29, 1966 (hereinafter “Linney”). Appeal 2015-006027 Application 14/239,265 BACKGROUND The subject matter on appeal relates to an apparatus for thermal treatment of lump or agglomerated material, such as iron pellets. App. Br. 2; Spec. 1. Claim 11 is illustrative and reproduced below with the disputed limitation in italics: 11. An apparatus for the thermal treatment of lump or agglomerated material in a firing machine, the apparatus comprising: a travelling grate configured to convey the material through the firing machine; a firing chamber having a ceiling and side walls and being configured to generate temperatures required for the thermal treatment, the ceiling having a plurality of openings and the side walls having a plurality of burners that are directed obliquely upwards; a cooling zone configured to pass cooling gases through the thermally treated material so as to heat the cooling gases; and a recuperation tube configured to recirculate the heated cooling gases to the firing chamber through the openings in the ceiling. DISCUSSION Appellants argue the claims as a group and do not present separate argument for dependent claims. App. Br. 3—6. We choose claim 11 as representative; all other claims stand or fall with claim 11. We have considered each of Appellants’ arguments for patentability. We are not persuaded, however, that Appellants identify reversible error in the rejection under § 103(a). Accordingly, we affirm the rejection for the reasons expressed in the Final Rejection, the Answer, and below. 2 Appeal 2015-006027 Application 14/239,265 Linney discloses an apparatus for heat treating ore pellets. Linney 1:19—24. Linney’s burners 40 are mounted in the sidewalls of its firing chamber 39, above the pellet bed, and direct their flames horizontally into the chamber 39 so that “there occurs no direct impingement of the flames 73 from the burners 40 onto the pellet bed P.” Linney 6:16—20; 8:3—11. The Examiner finds that Linney’s burners operate in substantially the same manner as the burners recited in claim 11 (Final Act. 2—3), and that Linney does not restrict its burners’ orientation except for teaching that direct flame impingement on the bed should be avoided. Ans. 3^4. The Examiner thus determines that a person of ordinary skill in the art would have been motivated to shift the orientation of Linney’s burners from a horizontal direction to any other equally useful orientation, including obliquely upward. Id. The Examiner further determines, and Appellants do not dispute, that the broadest reasonable interpretation of “obliquely upwards” as recited in claim 11 encompasses any upward angle from the horizontal “including an insignificant one, such as 1 degree upward.” Id. Appellants argue that the Examiner has not established a prima facie case of obviousness because Linney does not suggest any orientation of the burners other than horizontal would be desirable, and “actually teaches away from changing the orientation of the burners by emphasizing that the burners should direct their flames horizontally at a level well above the pellet bed in order to prevent direct impingement of the flame on the pellet bed.” App. Br. 5—6, citing Linney 6:16—20; 8:3—11. Appellants’ argument is not persuasive of reversible error because nothing in Linney discourages investigation into pointing the burners obliquely upwards. See In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004) (prior art does not teach away from claimed subject matter merely by disclosing a different solution to a similar 3 Appeal 2015-006027 Application 14/239,265 problem unless the prior art also criticizes, discredits, or otherwise discourages the solution claimed). Further, we find persuasive the Examiner’s reasoning that Linney would seem to prefer a slight upward orientation in order to ensure its desired result of avoiding direct flame impingement on the pellet below. Ans. 4. Appellants further argue that the claimed “obliquely upwards” orientation provides substantial new and improved results. App. Br. 6. Appellants rely on the Specification’s description of results including fast and complete combustion, better energy distribution, and lower flame temperature spread and better control. Id., citing Spec. H 15, 31. Appellants’ Specification is not sufficient evidence of unexpected results because it does not provide any comparative data of various burner orientations that attributes the improved results to the claimed burner orientation, nor is the data commensurate in scope with claim 11, which includes a much broader angle of orientation than the angle range of 20-60 degrees discussed in the Specification. In re Grasselli, 713 F.2d 731, 743 (Fed. Cir. 1983); see also In re Peterson, 315 F.3d 1325, 1329-31 (Fed. Cir. 2003) (holding that evidence of unexpected results constituting several data points within claimed range of “about 1 to 3 percent” was not commensurate in scope). SUMMARY We affirm the rejection of claims 11—20. 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 4 Copy with citationCopy as parenthetical citation