Ex Parte Lesieur

Board of Patent Appeals and Interferences

Mar 21, 2003

09368455 (B.P.A.I. Mar. 21, 2003)

The opinion in support of the decision being entered today was not written
for publication and is not binding precedent of the Board.
Paper No. 12
UNITED STATES PATENT AND TRADEMARK OFFICE
__________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________
Ex parte RODGER R. LESIEUR
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Appeal No. 2001-2488
Application No. 09/368,455
__________
ON BRIEF
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Before WALTZ, DELMENDO, and JEFFREY T. SMITH, Administrative
Patent Judges.
WALTZ, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on an appeal from the primary examiner’s
final rejection of claims 1 through 14, which are the only claims
pending in this application. We have jurisdiction pursuant to 35
U.S.C. § 134.
According to appellant, the invention is directed to a
hydrocarbon fuel gas steam reformer assemblage which includes
adjacent pairs of burner gas passages and process gas and steam
passages, where heat transfer from the burner gases to the
Appeal No. 2001-2488
Application No. 09/368,455
process gas stream is gradually modulated by providing a varying
heat transfer fin density population in the burner gas passages
(Brief, page 2). A copy of illustrative independent claim 1 is
attached as an Appendix to this decision.
The examiner relies upon the following references as
evidence of obviousness:
Parker 4,049,051 Sept. 20, 1977
Lesieur 5,733,347 Mar. 31, 1998
The claims on appeal stand rejected under 35 U.S.C. § 103(a)
as unpatentable over Lesieur in view of Parker (Answer, page 3).
We reverse the examiner’s rejection essentially for the reasons
stated in the Brief (page 10), Reply Brief (pages 1-2), and those
reasons set forth below.
OPINION
The examiner finds that Lesieur discloses a similar reformer
assemblage to that recited in claim 1 on appeal, the only
difference being that this reference fails to disclose heat
transfer fins present in a “population density gradient” with
different heat transfer amounts in different sections of the
burner passage (Answer, page 3). The examiner finds that Parker
discloses an assemblage with heat transfer fins present in a
population density gradient from the gas passage inlet to the gas
passage outlet with different amounts of heat transfer for
Appeal No. 2001-2488
Application No. 09/368,455
different sections of the gas passage wall (Answer, paragraph
bridging pages 3-4). From these findings, the examiner concludes
that it would have been obvious to one having ordinary skill in
this art to arrange the heat transfer fins in the burner passage
of Lesieur in a population density gradient, where the heat
transfer fins in different sections of the passage provide
different heat transfers to the wall of the passage, as taught by
Parker for the advantage of providing an assemblage with improved
thermal fatigue life and to eliminate cracking and splitting
(Answer, paragraph bridging pages 4-5). We disagree for reasons
stated below.
Appellant’s argument that must be answered before
consideration of the examiner’s obviousness analysis is that the
references are “non-analogous” (Brief, page 9). Whether a prior
art reference is “analogous” is a question of fact. See In re
Clay, 966 F.2d 656, 658, 23 USPQ2d 1058, 1060 (Fed. Cir. 1992).
The determination that a reference is from non-analogous art is
two-fold. First we must determine if the reference is within the
field of the inventor’s endeavor. If the reference is not within
the field of the inventor’s endeavor, we determine whether the
reference is reasonably pertinent to the particular problems with
which the inventor was involved. See In re GPAC Inc., 57 F.3d
1573, 1577, 35 USPQ2d 1116, 1120 (Fed. Cir. 1995); In re Wood,
Appeal No. 2001-2488
Application No. 09/368,455
599 F.2d 1032, 1036, 202 USPQ 171, 174 (CCPA 1979).
There is no dispute here that Parker is not within the same
field of endeavor as the fuel gas reforming of appellant (and
Lesieur). See the Brief, page 9, and the Answer, page 7.
However, we agree with the examiner that Parker is “reasonably
pertinent” to the particular problem with which appellant is
involved, namely heat transfer between adjacent walls or passages
so that excessive heat does not damage the walls (specification,
page 2, ll. 19-25, describing the “over heating problem”;
specification, page 4, ll. 19-21, describing an object as
providing a “longer useful life due to temperature control of
burner gas passage walls”; and specification, page 6, ll. 24-26,
describing the prior art problem of high burner gas passage wall
temperatures which shorten the useful life of the reformer). As
correctly found by the examiner (Answer, page 5), Parker
discloses a solution to the problem of high temperature gradients
in core areas of counterflow heat exchangers, which problem can
cause thermal fatigue cracking and splitting (col. 1, ll. 8-40).
For the foregoing reasons and those stated in the Answer, we
determine that Parker is reasonably pertinent to the problem with
which appellant is involved and thus is analogous art.
Therefore we proceed and consider the examiner’s obviousness
analysis. When determining the patentability of a claimed
Appeal No. 2001-2488
Application No. 09/368,455
invention which combines two known elements, “the question is
whether there is something in the prior art as a whole to suggest
the desirability, and thus the obviousness, of making the
combination. [Citations omitted].” Lindemann Maschinenfabrik
GMBH v. American Hoist & Derrick Co., 730 F.2d 1452, 1462, 221
USPQ 481, 488 (Fed. Cir. 1984). Evidence of a suggestion,
teaching or motivation to combine may flow from the references
themselves, the knowledge of one of ordinary skill in the art, or
from the nature of the problem to be solved. See Pro-Mold & Tool
Co. v. Great Lakes Plastics, Inc., 75 F.3d 1568, 1573, 37 USPQ2d
1626, 1630 (Fed. Cir. 1996).
As correctly argued by appellant (Brief, page 10; Reply
Brief, pages 1-2), Lesieur fails to disclose or suggest any
problem with high temperature gradients. In contrast, Lesieur
teaches that his invention “can be operated at lower service
temperatures” than the currently available prior art assemblages
(col. 1, ll. 57-58; see also col. 4, ll. 20-23). Furthermore, as
also correctly argued by appellant (Brief, page 10), Parker fails
to identify the gas turbine operating temperatures at which
thermal stress, fatigue, cracking and splitting occur.
The examiner reiterates that the motivation for the proposed
combination of references can be found in Parker at col. 1, ll.
33-40, where this reference teaches arrangement of the heat
Appeal No. 2001-2488
Application No. 09/368,455
transfer fins to result in an assemblage with improved thermal
fatigue life with the elimination of cracking and splitting
(Answer, page 8). The examiner takes the additional position
that one of ordinary skill in the art “would recognize the
potential of thermal fatigue in any counter-current heat
exchanger, as such fatigue is inherent in said counter-current
heat exchangers.” Id., emphasis added. However, the examiner
has not provided any evidentiary support on this record for this
additional position. See In re Lee, 277 F.3d 1338, 1343, 61
USPQ2d 1430, 1434 (Fed. Cir. 2002)(“This factual question of
motivation is material to patentability, and could not be
resolved on subjective belief and unknown authority.”).
Furthermore, the examiner has not explained how it would have
been determined that the assemblage of Lesieur had problems with
thermal fatigue when Parker fails to disclose or suggest any
operating temperatures which would produce thermal fatigue, even
in gas turbine assemblages.
For the foregoing reasons, we determine that the examiner
has not established a convincing reason or motivation to combine
the references as proposed. Accordingly, we determine that prima
facie obviousness has not been established by the reference
evidence and the examiner’s rejection under 35 U.S.C. § 103(a)
cannot be sustained.
Appeal No. 2001-2488
Application No. 09/368,455
The decision of the examiner is reversed.
REVERSED
)
Thomas A. Waltz )
Administrative Patent Judge)
)
)
) BOARD OF PATENT
Romulo H. Delmendo )
Administrative Patent Judge) APPEALS AND
) INTERFERENCES
)
)
Jeffrey T. Smith )
Administrative Patent Judge)
TAW/eld
Appeal No. 2001-2488
Application No. 09/368,455
William W. Jones
6 Junieper Lane
Madison, CT 06443
Appeal No. 2001-2488
Application No. 09/368,455
APPENDIX
1. A hydrocarbon fuel gas steam reformer assemblage comprising:
a) at least one process gas passage, said process gas passage
having an inlet end and an outlet end, said process gas passage
being operable to direct a stream of a fuel gas and steam mixture
through said assemblage in a first direction;
b) at least one burner gas passage disposed in heat transfer
relationship with said process gas passage, said burner gas
passage having an inlet end and an outlet end, and said burner
gas passage being operable to direct a stream of a burner gas
through said assemblage in a second direction which is counter to
said first direction;
and
c) a plurality of heat transfer fins disposed in said burner gas
passage, said heat transfer fins being present in a population
density gradient from said burner gas passage inlet end to said
burner gas passage outlet end, said fin population density
gradient providing minimal heat transfer to walls of said burner
gas passage in an inlet section of said burner gas passage; and
said fin population density gradient providing increased heat
transfer to said walls of said burner gas passage in an
intermediate section of said burner gas passage; and said fin
population density gradient providing still greater heat transfer
to said walls of said burner gas passage in an outlet section of
said burner gas passage.