Ex Parte Le Bot et alDownload PDFPatent Trial and Appeal BoardApr 23, 201310555745 (P.T.A.B. Apr. 23, 2013) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte PATRICK LE BOT, OLIVIER DE CAYEUX, and FREDERIC JUDAS ____________________ Appeal 2011-001283 Application 10/555,745 Technology Center 3700 ____________________ Before: JENNIFER D. BAHR, BENJAMIN D. M. WOOD, and MICHELLE R. OSINSKI, Administrative Patent Judges. WOOD, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-001283 Application 10/555,745 2 STATEMENT OF CASE Appellants appeal under 35 U.S.C. § 134 from a rejection of claims 19-37. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. THE INVENTION The claims are directed to a method and system for the production of pressurized air gas by cryogenic distillation of air. Sole independent claim 19, reproduced below, is illustrative of the claimed subject matter: 19. A method which may be used for separating air by cryogenic distillation in a system of columns, said method comprising: a) providing a system of columns comprising a double column or a triple column, wherein said column operating at the highest pressure is operating at a pressure called medium pressure; b) raising air to a high pressure, wherein said high pressure is at least about 5 to about 10 bar greater than said medium pressure; wherein said high pressure air comprising a first portion and a second portion, wherein said second portion is at least part of the portion of said high pressure air that is remaining after said first portion is removed; c) withdrawing said first portion of said air from an exchange line, wherein: 1) said first portion comprises between about 10% to about 50% of the flow of said high pressure air; and 2) said first portion is withdrawn at a temperature within 5 deg. C of the (pseudo) liquid vaporization temperature; d) boosting, with a cold booster, said first portion to at least said high pressure, wherein: Appeal 2011-001283 Application 10/555,745 3 1) said cold booster is in fluid connection with a drive device; and 2) said drive device comprises at least one member selected from the group consisting of: i) an expansion turbine; ii) an electric motor; and iii) a combination expansion turbine and electric motor; e) sending said boosted first portion back into said exchange line; f) sending at least one liquefied portion from a cold end of said exchange line to at least one column of said system; g) expanding said second portion of said high pressure air in a Claude turbine, and sending said expanded second portion to a medium pressure column; and h) withdrawing at least one liquid stream from said column system. REFERENCE Grenier US 5,596,8851 Jan. 28, 1997 REJECTIONS Claims 20-26 stand rejected under 35 U.S.C. § 112 first paragraph as failing to comply with the written-description requirement. Ans. 3. Claims 19-37 stand rejected under 35 U.S.C. § 112 second paragraph as indefinite. Ans. 3-4. Claims 19-37 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Grenier. Ans. 5. 1 Both the Appeal Brief (Br. 12) and the Answer (Ans. 2) mistakenly cite Grenier as US 5,595,885. Appeal 2011-001283 Application 10/555,745 4 ANALYSIS Claims 20-26 – Written Description Appellants do not present any argument pertaining to the rejection of claims 20-26 as failing the written-description requirement. We therefore summarily sustain this rejection. See MPEP § 1205.02, 8th ed., Rev. 8, July 2010 (“if a ground of rejection stated by the examiner is not addressed in the appellant’s brief, that ground of rejection will be summarily sustained by the Board.”). Claims 19-37 – Indefiniteness Appellants do not present any argument pertaining to the rejection of claims 19-37 as indefinite. As above, we summarily sustain this rejection. Claims 19-37 – Obviousness – Grenier Sole independent claim 19, step b), requires that incoming high pressure air be separated into a “first portion” and a “second portion,” wherein “said second portion is at least part of the portion of said high pressure air that is remaining after said first portion is removed.” Br. 17 (Claims Appx.). Step g) requires “expanding said second portion of said high pressure air in a Claude turbine and sending said expanded second portion to a medium pressure column.” Referring to Grenier figure 3, the Examiner found that the compressed air discharged from compressor 42 is separated into a first portion sent through line 64 and a second portion sent through line 74. Ans. 5. The Examiner acknowledged, however, that “a portion of the second portion” enters turbine 75, as some of the second portion is diverted to expansion valve 76. Ans. 13-14. Appellants argue that Grenier does not satisfy step g) of claim 19 because not all of the second portion enters the Claude turbine. Br. 15. We Appeal 2011-001283 Application 10/555,745 5 agree. Step g) requires that “said second portion” be expanded in a Claude turbine, which reasonably means that all of it be sent to the Claude turbine, not just a portion of it. See Norgren v. Int’l Trade Comm’n, 699 F.3d 1317, 1323 (Fed. Cir. 2012) (claim drawn to a “four-sided, generally rectangular clamp” requires that “the clamp as a whole, and not merely portions of it, must be four-sided and generally rectangular”). Because not all of the air in line 74, which the Examiner specifically identified as the second portion, enters the Claude turbine, the Examiner’s rejection of claim 19 as obvious over Grenier is not sustained.2 Because claims 20-37 depend from claim 19, the rejection of those claims as obvious over Grenier is not sustained as well. DECISION For the above reasons, we summarily affirm the Examiner’s rejection of claims 20-26 as failing the written description requirement and the Examiner’s rejection of claims 19-37 as indefinite. The Examiner’s rejection of claims 19-37 as obvious over Grenier is reversed. 2 It seems evident that Grenier does perform step g) if the portion of air that enters turbine 75 is deemed the “second portion” rather than all of the air in line 74. It is not necessary to deem the entire portion of air in line 74 to be the second portion. The claim itself contemplates the possibility that, after the first portion is removed, there may be at least one additional split when it recites “wherein said second portion is at least part of the portion of said high pressure air that is remaining after said first portion is removed.” However, because we have already summarily affirmed the rejection of all of the pending claims as indefinite, we decline to enter a new ground of rejection based on this interpretation of Grenier. See MPEP § 1205.02, 8th ed., Rev. 8, July 2010 (“Since the exercise of authority under 37 C.F.R. § 41.50(b) is discretionary, no inference should be drawn from a failure to exercise that discretion.”) Appeal 2011-001283 Application 10/555,745 6 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)(iv). AFFIRMED Klh Copy with citationCopy as parenthetical citation