Ex Parte Lelie

Patent Trial and Appeal Board

Feb 26, 2018

12570900 (P.T.A.B. Feb. 26, 2018)

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.
12/570,900 09/30/2009 Thomas LELIE NHL-HOL-261B 1036
432 7590 02/28/2018
NILS H. LJUNGMAN & ASSOCIATES
P. O. BOX 130
GREENSBURG, PA 15601-0130
EXAMINER
TECCO, ANDREW M
ART UNIT PAPER NUMBER
3721
NOTIFICATION DATE DELIVERY MODE
02/28/2018 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):
nhla@earthlink.net
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte THOMAS LELIE
Appeal 2016-001009
Application 12/570,900
Technology Center 3700
Before STEVEN D.A. McCARTHY, MICHAEL L. HOELTER and
BRETT C. MARTIN, Administrative Patent Judges.
McCARTHY, Administrative Patent Judge.
DECISION ON APPEAL
1 STATEMENT OF THE CASE
2 The Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
3 decision finally rejecting claims 121-29 and 131-37.2 We have jurisdiction
4 under 35 U.S.C. § 6(b).
5 We do not sustain the rejections under pre-AIA 35 U.S.C. § 103(a) of
6 claims 121, 122, 128, 129, 131, 132 and 137 as being unpatentable over
7 ------------------------------------
1 The Appellant identifies the real party in interest as KHS GmbH of
Dortmund, Federal Republic of Germany.
2 The Final Office Action from which this appeal is taken, mailed June
26, 2014 (“Final Act.”), incorporates by reference the rejections as set forth
in the Non-Final Office Action, mailed December 19, 2013. {See Final Act.
2^1).
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Neagle (WO 02/36436 Al, publ. May 10, 2002), Lannutti (US 4,746,287,
issued May 24, 1988) and Long (US 5,645,043, issued July 8, 1997) (Office
Action, mailed Dec. 19, 2013 (“Non-Final Act.”), at 3 & 4); of claims 123—
25, 133 and 134 as being unpatentable over Neagle, Lannutti, Long and
Mitchell (US 3,717,939, issued Feb. 27, 1973) (Non-Final Act. 12); of
claims 126 and 135 as being unpatentable over Neagle, Lannutti, Long,
Mitchell and Durst (US 6,257,868 Bl, issued July 10, 2001) (Non-Final Act.
14) ; of claim 127 as being unpatentable over Neagle, Lannutti, Long and
Higgins (US 3,897,671, issued Aug. 5, 1975) (Non-Final Act. 15); and of
claim 136 as being unpatentable over Neagle, Lannutti, Long, Mitchell,
Durst and Higgins (Non-Final Act. 16).
We do sustain the alternative rejections under pre-AIA 35 U.S.C.
§ 103(a) of claims 121, 122, 128, 129, 131, 132 and 137 as being
unpatentable over Neagle, Lannutti and Fleming (US 4,643,667, issued Feb.
17, 1987) (Non-Final Act. 3 & 4); of claims 123-25, 133 and 134 as being
unpatentable over Neagle, Lannutti, Fleming and Mitchell (Non-Final Act.
12); of claims 126 and 135 as being unpatentable over Neagle, Lannutti,
Fleming, Mitchell and Durst (Non-Final Act. 14); of claim 127 as being
unpatentable over Neagle, Lannutti, Fleming and Higgins (Non-Final Act.
15) ; and of claim 136 as being unpatentable over Neagle, Lannutti, Fleming,
Mitchell, Durst and Higgins (Non-Final Act. 16).
ISSUES
The Appellant presents the same arguments for the patentability of
both independent claim 121 and independent claim 131. The Appellant
argues the patentability of each dependent claim based on ultimate
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dependency from claims 121 and 131. (See App. Br. 27). This appeal turns
on two issues:
First, does Neagle, or Lannutti, or Long, describe providing a porous
burner “configured to bum a fuel mixture in an internal combustion space in
said porous burner without generating an open flame outside of said porous
burner,” as recited in independent claims 121 and 131?
Second, does Fleming describe providing the recited porous burner
“configured to bum a fuel mixture in an internal combustion space in said
porous burner without generating an open flame outside of said porous
burner?”
THE CLAIMED SUBJECT MATTER
The appealed claims are directed to shrinking tunnels for shrinking
polymeric shrink film over products as packaging. For example, a shrinking
tunnel may be used to shrink film over a group of individual product
packages to bind the individual packages together into a single multi-product
package. (See Spec. 2,11. 28-30). In accordance with one method, the
individual packages are collected; wrapped in polymer film; and subjected to
a flow of hot air or gas to shrink the film over the packages. (See Spec. 2,11.
30-38).
At least some conventional devices used open-flame combustion of a
gaseous or liquid fuel to heat the air or gas applied to the shrink film
wrapped over the packages. (See Spec. 2,1. 42 - 3,1. 46). Problems with
the use of open-flame combustion to heat the air or gas included the risk that
the flowing air or gas might extinguish or “blow-out” the open flame,
allowing uncombusted and potentially explosive gases to flow directly into
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the shrinking tunnel. (See Spec. 5,11. 94-99). The Appellant addresses this
problem by providing a porous burner to heat the air or gas. The Appellant
teaches, in the Specification, that, in a porous burner, “the fuel is combusted
with no open flame in a homogeneous, stable volumetric combustion process
(glowing foam) within the porous body, and consequently there is no danger
of an open flame blowing out.” (Spec. 4,11. 73-82).
Claims 121 and 131 are independent. Claim 121 is illustrative:
121. A shrink-wrapping arrangement comprising:
a tunnel configured to receive packages or packaging units
wrapped in shrink film;
a heater configured to heat a flow of gas;
said heater comprising a porous burner, which porous
burner is configured to bum a fuel mixture in an internal
combustion space in said porous burner without generating an
open flame outside of said porous burner; and
said porous burner is disposed directly in the path of the
flow of gas such that the flow of gas contacts said porous burner
and mixes with combustion gases exiting said porous burner to
form a shrink-wrapping gas mixture used to heat and shrink a
shrink film onto packages or packaging units in said tunnel.
CLAIM INTERPRETATION
Both claim 121 and claim 131 recite a porous burner “configured to
bum a fuel mixture in an internal combustion space in said porous burner
without generating an open flame outside of said porous burner.” The
Appellant has not formally defined any of the terms in this limitation in the
Specification. Nevertheless, we agree with the Appellant that the plain
meaning of this language limits the recited burner such that “[cjombustion
of the fuel. . . occurs within the porous body and not on the surface thereof.”
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(Appeal Brief, dated April 24, 2015 (“App. Br.”), at 5). In addition, we
agree with the Appellant that exhaust gases from the combustion would mix
with the air or gas used to heat and shrink the heat shrinkable wrapping.
(See id.) Apart from the plain meaning of the claim language, this
interpretation is consistent with the passage at page 4, line 73 through page
6, line 112 of the Specification. Indeed, it is the fact that combustion occurs
within the porous body that enables the porous body to address the risk of
“blow-out” or extinction of the flame by the air or gas flow. (See Spec. 5,1.
94-6,1. 112).
The Appellant suggests that the recitation, “configured to bum a fuel
mixture in an internal combustion space in said porous burner without
generating an open flame outside of said porous burner,” excludes porous
burners in which the fuel mixture bums in the pores as opposed to burning in
an internal combustion space independent of the pores. (See App. Br. 13).
Nothing in the claim language or the teachings of the Specification suggests
that a broader reading would be unreasonable. The Specification merely
teaches that combustion in a porous burner takes place “within the porous
body” (see, e.g., Spec. 4,11. 73-82). Likewise, combustion occurring within
the pores of a porous body would be shielded from the flow of shrink gas
across the burner, so as to reduce the risk of “blow-out” in the manner
described in the Specification. (Cf. Spec. 5,1. 94 - 6,1. 112 (describing how
the porous body of a porous burner can reduce the risk of “blow-out” by
shielding the combustion from the flow of shrink gas)).
The passage at page 12, lines 232^14, of the Specification (quoted at
App. Br. 5) teaches a combustion chamber or reactor 26 “formed by one or
several porous bodies with a plurality of passages or channels,” that is,
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pores. The passage does not describe the combustion chamber as an internal
combustion space that is within the porous body where combustion might
occur outside the pores. Hence, interpreting the recitation of a porous burner
“configured to bum a fuel mixture in an internal combustion space in said
porous burner without generating an open flame outside of said porous
burner,” to encompass porous burners in which combustion occurs in the
pores is both reasonable; and consistent with the claim language and
Specification.
FINDINGS OF FACT
The record supports the following findings of fact (“FF”) by a
preponderance of the evidence.
Neagle
1. Neagle describes a shrink tunnel 100. As depicted in Figures 4
and 5 A, the shrink tunnel 100 receives packages 192 in the form of multi­
packs wrapped in heat shrinkable film. (See Neagle 16,11. 1-10; & 19,1. 21
-20,1. 3).
2. Neagle teaches using heated air to heat and shrink the film over
the packages 192. Neagle teaches heating the air by causing the air to move
through ducts 112,126,156 across heating elements 110,124,154. (See
Neagle 16,11. 12-14 & 18-21; 17,1. 21 - 18,1. 2; & Figs. 4 & 5A; see also
Non-Final Act. 4). Neagle does not appear to describe the heating elements
110,124,154 further.
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Lannutti
3. Lannutti describes a radiant fiber matrix burner 10 positioned in
a fire tube boiler combustion chamber 12. (Lannutti, col. 2,11. 7-11; see
also Non-Final Act. 4 & 5). The burner 10 includes a wall structure
comprising a matrix of ceramic fibers carried on a tubular metal screen 16.
(Lannutti, col. 2,11. 19-22 & 30-34; & Fig. 1).
4. Lannutti teaches that conventional fiber matrix burners
“produce[d] radiant heat by flameless combustion at temperatures on the
order of 1,000° C. The burners operate[d] with relatively low NO*
emissions, high thermal efficiency, [and] no risk of flashback.” (Lannutti,
col. 1,11. 14-20).
5. Although Lannutti describes the burner 10 as “radiant,”
Lannutti teaches that:
Pre-mixed air and fuel, for example natural gas, is pumped under
pressure through inlet 16 and disperses outwardly through the
pores of the matrix. The mixture is ignited on the outer surface
of the burner wall and flamelessly combusts at a temperature on
the order of 1,000°C. along a shallow combustion zone.
(Lannutti, col. 2,11. 23-29).
6. The Examiner finds that Lannutti teaches a porous burner
“configured to bum a fuel mixture in an internal combustion space in said
porous burner without generating an open flame outside of said porous
burner.” The Examiner cites only the passage quoted immediately above as
support for this finding. (See Non-Final Act. 4 & 5; Examiner’s Answer,
mailed August 21, 2015 (“Ans.”), at 4). We do not adopt this finding.
Lannutti’s statement that the mixture “flamelessly combusts at a temperature
on the order of 1,000°C. along a shallow combustion zone” does not imply
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that the shallow combustion zone is within the matrix of ceramic fibers or
that the mixture bums within the matrix. Instead, Lannutti’s teaching that
the mixture “is pumped under pressure through inlet 16 and disperses
outwardly through the pores of the matrix” suggests that the mixture exits
the matrix before the mixture ignites and combusts. Lannutti’s statement
that the “mixture is ignited on the outer surface of the burner wall” implies
combustion outside the fiber matrix. At any rate, the Examiner has not
proven by a preponderance of the evidence that the fuel mixture bums in an
internal combustion space in the burner.
Fleming
7. Fleming describes a non-catalytic, porous phase combustor
including a multilayer porous plate 15 retained in a housing means 10. (See
Fleming, col. 4,11. 33-38 & Fig.) The porous plate 15 includes a first layer
16 comprising material having a low inherent thermal conductivity and a
second layer 17 comprising material having a high inherent thermal
conductivity. (See Fleming, col. 4,1. 67 - col. 5,1. 3). During operation, a
combustible mixture enters the housing means 10 and flows into the porous
plate 15. (See Fleming, col. 4,11. 52-56). The combustible mixture preheats
as it flows through the first layer 16; and ignites in the second layer 17. (See
Fleming, col. 6,11. 7-12).
8. Fleming teaches that the radiating surface 20 of the porous plate
15 directly converts heat energy conducted to the surface into radiant (that
is, infrared) energy. (Fleming, col. 5,11. 47-50). Fleming also teaches that
“radiant heat is not ordinarily affected by air currents.” (Fleming, col. 1,11.
38 & 39).
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9. Fleming teaches that:
Porous refractory infrared burners can be operated in at least two
modes. The conventional mode of operation is herein referred to
as the preheat mode, and it is characterized by the fact that
combustion takes place just above the porous surface, and the
radiating surface is thus heated by hot gases above the surface.
... A second mode of operation is herein referred to as the
reactor mode, wherein substantially all combustion occurs within
the pores of a porous plate, while any unreacted fuel reacts
directly on or above the radiating surface of the plate. The
radiating surface thus received heat energy by convection from
within the plate and conduction from both inside and outside the
radiating surface.
(Fleming, col. 2,1. 63 - col. 3,1. 9). Fleming teaches that the burner 10 is
designed for use in the reactor mode. (See Fleming, col. 3,11. 9 & 10).
10. Fleming teaches that “[substantially all combustible mixture is
burned within combustion zone 19 in high thermal conductivity layer 17 and
any unreacted fuel reacts directly on or above radiating surface 20.”
(Fleming, col. 6,11. 12-16). Based on this passage, we adopt the Examiner’s
finding that Fleming teaches a porous burner “configured to bum a fuel
mixture in an internal combustion space in said porous burner.” (See Non-
Final Act. 6; Ans. 4 & 5). In addition, we agree that the Examiner has a
sound basis for belief that Fleming teaches a porous burner in which the fuel
mixture bums “without generating an open flame outside of said porous
burner.” {See Non-Final Act. 6). Fleming’s statement that “any unreacted
fuel reacts directly on or above radiating surface 20” does not imply the
generation of an open flame outside the porous plate 15. Because the
Examiner expressly states the belief that Fleming teaches a porous burner in
which the fuel mixture bums “without generating an open flame outside of
said porous burner,” and cites column 6, lines 12-16, of Fleming as support,
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in a Non-Final Office Action, such that the Appellant had notice and an
opportunity to respond; and since the Appellant has not rebutted this belief,
we adopt the belief as correct.
Long
11. Long describes a radiant heater mountable on a refillable LPG
tank. (See Long, col. 2,11. 27-34). The heater includes a burner assembly
32 and a reflector 33. (See Long, col. 4,11. 20-22). The burner assembly 32
includes a burner tube 50 that slidably mounts the reflector 33. (Long, col.
6.11. 65-67 & Fig. 4). The burner assembly 32 also includes a burner pan 61
mounted near an outlet end of the burner tube 50; a generally convex burner
pan screen 68 attached to the rim of the burner pan; and a burner head 73
including a convex screen 75 mounted at the outlet end of the burner tube in
the space enclosed by the burner pan and the burner pan screen. (Long, col.
5.11. 4-7, 10, 11 & 30-35; id., Fig. 4). A fuel/air mixture supplied through
the burner tube 50 bums in the space enclosed by the burner pan 61 and the
burner pan screen 68, outside the space enclosed by the burner tube and the
burner head 73. (See Long, col. 7,1. 65 - col. 8,1. 4).
12. Long does not teach a porous burner in the sense of a burner in
which combustion takes place in a porous matrix or plate.
ANALYSIS
First Issue
Neither Neagle, nor Lannutti, nor Long, describes providing a porous
burner “configured to bum a fuel mixture in an internal combustion space in
said porous burner without generating an open flame outside of said porous
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burner,” as recited in independent claims 121 and 131. (See FF 2, 6 & 12).
The Examiner has not articulated a persuasive reason having adequate
factual underpinnings to explain why it would have been obvious to modify
Neagle’s shrink tunnel to include such a burner. Lannutti’s teaching that
conventional fiber matrix burners produced little NOv emissions or
combustion noise, and had relatively low risks of flashback (see Non-Final
Act. 5; see also FF 4) does not imply a reason to substitute a fiber matrix
burner that, unlike Lannutti’s, burned a fuel mixture in an internal
combustion space in the porous burner (see FF 6). We do not sustain the
rejection under § 103(a) of claims 121, 122, 128, 129, 131, 132 and 137 as
being unpatentable over Neagle, Lannutti and Long; of claims 123-25, 133
and 134 as being unpatentable over Neagle, Lannutti, Long and Mitchell; of
claims 126 and 135 as being unpatentable over Neagle, Lannutti, Long,
Mitchell and Durst; of claim 127 as being unpatentable over Neagle,
Lannutti, Long and Higgins; or of claim 136 as being unpatentable over
Neagle, Lannutti, Long, Mitchell, Durst and Higgins.
Second Issue
Contrary to the Appellant’s argument at pages 11-13 of the Appeal
Brief, Fleming describes providing a porous burner “configured to bum a
fuel mixture in an internal combustion space in said porous burner without
generating an open flame outside of said porous burner.” (See FF 10). The
Appellant’s argument on page 13 of the Appeal Brief is not persuasive,
because, as discussed earlier, the term “internal combustion space in said
porous burner” is sufficiently broad to reasonably encompass combustion in
the pores of the porous body. One of ordinary skill in the art would have
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had reason to substitute a porous burner such as that described by Fleming
for one or more of the heaters 110,124,154 described by Neagle based on
Lannutti’s teaching that conventional radiant fiber matrix burners produced
reduced levels of pollutants such as NOv; and also had lower risks of
flashback. (See Non-Final Act. 6; FF 4).
Therefore, we sustain the alternative rejections under § 103(a) of
claims 121, 122, 128, 129, 131, 132 and 137 as being unpatentable over
Neagle, Lannutti and Fleming; of claims 123-25, 133 and 134 as being
unpatentable over Neagle, Lannutti, Fleming and Mitchell; of claims 126
and 135 as being unpatentable over Neagle, Lannutti, Fleming, Mitchell and
Durst; of claim 127 as being unpatentable over Neagle, Lannutti, Fleming
and Higgins; and of claim 136 as being unpatentable over Neagle, Lannutti,
Fleming, Mitchell, Durst and Higgins.
DECISION
We AFFIRM the Examiner’s decision rejecting claims 121-29 and
131-37.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a).
AFFIRMED
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