Ex Parte Limaye et alDownload PDFPatent Trial and Appeal BoardMay 25, 201812674634 (P.T.A.B. May. 25, 2018) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 12/674,634 06/30/2011 20350 7590 05/30/2018 KILPATRICK TOWNSEND & STOCKTONLLP Mailstop: IP Docketing - 22 1100 Peachtree Street Suite 2800 Atlanta, GA 30309 Santosh Y. Limaye 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 ATTORNEY DOCKET NO. CONFIRMATION NO. 95060-000300US-862860 8031 EXAMINER SEIFU, LESSANEWORK T ART UNIT PAPER NUMBER 1774 NOTIFICATION DATE DELIVERY MODE 05/30/2018 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): ipefiling@kilpatricktownsend.com KTSDocketing2@kilpatrick.foundationip.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte SANTOSH Y. LIMAYE, STUART ROBERTSON, DONALD KOENIG, and WESLEY JUNG Appeal2017-000472 Application 12/674,634 Technology Center 1700 Before MICHAEL P. COLAIANNI, CHRISTOPHER L. OGDEN, and MICHAEL G. McMANUS, Administrative Patent Judges. OGDEN, Administrative Patent Judge. DECISION ON APPEAL Appellants 1 appeal under 35 U.S.C. § 134(a) from the Examiner's final decision rejecting claims 1, 2, 18, 19, 21, 24, 26, 27, 33, 36, 43, and 45-50 in the above-identified application. We have authority pursuant to 35 U.S.C. § 6(b). Upon consideration of the written record on appeal,2 and arguments presented during an oral hearing on May 16, 2018, we affirm. 1 According to Appellants, the real party in interest is Phyre Technologies, Inc. Appeal Brief 3, Feb. 19, 2016 [hereinafter Br.]. 2 The appeal record includes the following: Final Office Action, Mar. 20, 2015 [hereinafter Final Action]; Br.; Examiner's Answer, Aug. 10, 2016 [hereinafter Answer]. Appellants did not file a reply brief. Appeal2017-000472 Application 12/674,634 BACKGROUND Appellants' invention "relates to systems and methods for the catalytic removal of reactive components from vapor phase fluid prior to introduction thereof into fuel containing vessels, specifically oxygen and/or fuel vapors, thereby reducing the potential for fire and explosion in such vessels." Spec. ,r 1. 3 Representative of the invention is claim 1, which reads as follows: 1. A system for reducing the concentration of one or more reactive component(s) in a vapor phase fluid prior to contacting thereof with fuel, wherein said system reduces the concentration of reactive component(s) in said vapor phase fluid below the concentration at which auto-ignition may occur when said vapor phase fluid is contacted with fuel, said system consisting essentially of a fuel container, a fluid treating zone consisting essentially of at least one inlet, at least one outlet, and a reaction zone, wherein said reaction zone provides conditions suitable to deactivate said one or more reactive component( s) when contacted therewith, an external source of fuel vapor, and a flame arrestor, wherein only the outlet of said fluid treating zone is in fluid communication with the fuel, such that the inlet( s) of said fluid treating zone has/have no communication with the fuel. Br. 16 ( emphasis of key phrases added). 3 International Application No. PCT/USOS/73729 (filed Aug. 20, 2008, published Feb. 26, 2009 as WO 2009/026374 Al) [hereinafter Spec.]. 2 Appeal2017-000472 Application 12/674,634 Claims 43, 45, and 47 are also independent. See id. at 17-19. The Examiner rejects claims 1, 2, 18, 19, 21, 24, 27, 33, 36, 43, 45, 46, and 48-50 under 35 U.S.C. § 102(e) as being anticipated by Limaye. 4 Final Action 2-9. The Examiner also cites Limaye in rejecting claim 47 under 35 U.S.C. § 103(a). Id. at 9-10. The Examiner rejects claims 1, 2, 21, 24, 27, 33, 36, 43, and 45-50 under 35 U.S.C. § 103(a) as being unpatentable over Johnson5 in view of Walker. 6 Final Action 10-17. The Examiner rejects dependent claim 26 on the same ground, further in view ofWhidden. 7 Id. at 17-18. Appellants argue the claims as a group with respect to each ground of rejection. See Br. 11-15. Moreover, Appellants offer no distinct arguments regarding claims 47 or 26. See id. at 13-15. 8 Therefore, consistent with 37 C.F.R. § 41.37(c)(l)(iv), we limit our discussion to independent claim 1. Claims 2, 18, 19, 21, 24, 26, 27, 33, 36, 43, and 45-50 fall with claim 1. 4 Limaye et al., US 7,694,916 B2 (issued Apr. 13, 2010). 5 Johnson et al., US 7,905,259 B2 (issued Mar. 15, 2011 ). 6 Walker, US 2,375,834 (issued May 15, 1945). 7 Whidden, US 2,670,873 (issued Mar. 2, 1954). 8 At oral hearing, appellants may only rely on arguments from their briefs, except upon a showing of good cause to present a new argument based on recent decisions of the Board or a federal court. See 3 7 CPR 41.4 7 ( e ). We have not considered any arguments presented at the hearing that did not meet these requirements. 3 Appeal2017-000472 Application 12/674,634 DISCUSSION Rejections based on Limaye Limaye describes systems "for the catalytic removal of reactive components from the vapor phase of fuel storage vessels, specifically oxygen and/or fuel, thereby reducing the potential for fire and explosion in such vessels." Limaye 1: 11-14. These systems "include a reaction zone having an inlet and outlet, wherein the reaction zone provides conditions suitable to deactivate the reactive components." In one embodiment, Limaye states that these systems "may optionally be configured as closed loop systems," meaning that "the vapor having been treated to deactivate the reactive components therein is returned to the fuel storage vessel, rather than being vented." Id. at 3:57---61. The Examiner bases the first rejection on Figure 3 of Lima ye, which we reproduce below: 4 Appeal2017-000472 Application 12/674,634 200 204 ! FI(;URE 3 210 ........ ! I 208 212 216 218 Figure 3 is a schematic flow diagram of a system in which air source 202 mixes with fuel vapor source 206, and the resulting mixture feeds via line 210 into catalyst bed 212. Id. at 8:24--28. Bed 212 "reduces the reactive component content of the fuel vapor/air mixture." Id. at 8:32-33. After leaving catalyst bed 212 via line 214, the reduced reactive mixture optionally passes through filter/condenser 216 prior to its introduction into fuel storage vessel 218. Id. at 8:36-40. Based on Figure 3 and the text of Limaye, the Examiner finds that Limaye discloses all the limitations of claim 1. Final Action 3. Appellants argue that the claimed invention is novel and nonobvious because in contrast to Limaye, the claimed invention "contemplates a flow 5 Appeal2017-000472 Application 12/674,634 through system ( as opposed to a closed loop system wherein vapor is recycled from the container back through the fluid treating zone)." Br. 12; accord id. at 13 (regarding claim 47). According to Appellants, One of the fundamental drawbacks to "traditional" [inert gas generating systems] such as described by Lima ye et al., is that if the fuel is cold, there is no vapor, and therefore, no reaction. The use of an external source of fuel, as contemplated by the present claims, allows the ability to always have warmer fuel, and there- fore fuel vapor, for use in invention inerting methods. Id. at 12; accord id. at 13 (regarding claim 47). According to Appellants, however, "Limaye does not disclose or suggest the use of an external source of fuel, as contemplated by the present claims." Id. at 13. Appellants do not persuade us that the Examiner reversibly erred in the rejections. Limaye discloses a closed loop system, but states that the use of a closed loop is optional. See Limaye at 3 :57---61 ("Invention systems may optionally be configured as closed loop systems."). Moreover, Limaye' s Figure 3 depicts a flow-through system. The figure omits a loop for recycling vapor from the fuel tank back through the fluid treating zone, and it depicts a source of fuel vapor (206) that is external to the fuel container or any loop associated with it. See Lima ye, Fig. 3. When we interpret patent claims, we apply "the broadest reasonable meaning of the words in their ordinary usage as they would be understood by one of ordinary skill in the art, taking into account whatever enlightenment by way of definitions or otherwise that may be afforded by the written description contained in the applicant's specification." In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997). The broadest reasonable interpretation of the term "external source of fuel vapor," in light of the Specification, includes a source of fuel vapor that is external to the recited 6 Appeal2017-000472 Application 12/674,634 fuel container. This is consistent with the Specification, in which reaction zone 3 receives fuel from vessel 5, an auxiliary fuel source. Spec., Figs. 1- 2, ,r,r 56-57; see also id. ,r 40 ("[I]nvention systems further comprise an independent source of reactive material to facilitate deactivation of the reactive components within the reaction zone."). Because Limaye 's Figure 3 discloses "an external source of fuel vapor" (206) as we interpret that term above, Appellants have identified no reversible error in the Examiner's rejections. Thus, we affirm the Examiner's rejections of claims 1, 2, 18, 19, 21, 24, 27, 33, 36, 43, 45, 46, and 47-50 based on Limaye. Rejections based on Johnson and other references Johnson relates to "maintaining inert gas in the ullage space of a fuel tank containing a hydrocarbon fuel such as aviation jet fuel." Johnson 1:6- 8. The Examiner identifies within Johnson every limitation of claim 1 except for the flame arrestor. See Final Action 10-11. However, the Examiner determines that Walker teaches the use of a flame arrestor in a conduit that supplies an inert gas to a fireproof fuel tank system, in order to prevent flames from traveling through the conduit. Id. at 11. The Examiner determines that it would have been obvious to combine Walker's flame arrestor with Johnson's system because "doing so would amount to nothing more than a use of a known device for its intended use in a known environment to accomplish an entirely expected result." Id. at 12. Appellants argue that Johnson does not disclose or suggest the invention, and "while Johnson may contemplate the general goal of the present invention, Johnson accomplishes this goal in a very different way than contemplated by the present claims. In addition, Johnson's use of 7 Appeal2017-000472 Application 12/674,634 multiple components is excluded by the use of the transitional phrase 'consisting essentially of' in the present claims." Br. 14. Appellants further ask, "[I]f the asserted combination of references were actually obvious, why didn't Johnson take advantage of the teachings of Walker, which was published more than 60 years prior to Johnson?" Id. Appellants' arguments are not persuasive of reversible error. Appellants do not point to any specific evidence that either Johnson or Walker are non-analogous to the claimed invention, or that their combination does not result in the claimed invention. See In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974) ("Attorney's argument in a brief cannot take the place of evidence.") Furthermore, we note that although Johnson discloses applications related to aviation fuel tanks, Appellants have not shown that the rejected claims are limited to a non-aviation context, or that Johnson teaches away from use in a non-aviation context. In addition, Appellants fail to persuade us that the claimed inventions would not have been obviousness over Johnson and other references because of the transitional phrase "consisting essentially of." This transitional phrase "occupies a middle ground between closed claims that are written in a 'consisting of' format and fully open claims that are drafted in a 'comprising' format." PPG Industries v. Guardian Industries, 156 F.3d 1351, 1354 (Fed. Cir. 1998). Use of this transitional phrase "limits the scope of a claim to the specified materials or steps and those that do not materially affect the basic and novel characteristic(s) of the claimed invention." In re Herz, 537 F.2d 549, 551-52 (CCPA 1976). However, "absent a clear indication in the specification or claims of what the basic and novel 8 Appeal2017-000472 Application 12/674,634 characteristics actually are, 'consisting essentially of' will be construed as equivalent to 'comprising."' PPG, 156 F.3d at 1355. The Examiner identifies the "gist of the present invention" as "to provide a 'flow through system' as opposed to a closed loop system wherein vapor is recycled from the fuel container back through the fluid treating zone." Answer 17. Accordingly, the Examiner finds that none of the additional components in Johnson materially affect this aspect of the claimed invention. Id. Appellant does not point to evidence rebutting this determination. In particular, Appellants have not shown where there is a clear indication in the specification or claims of what the basic and novel characteristics of the invention are. Nor have Appellants argued in their Brief what elements in Johnson materially affect the basic and novel characteristics of the invention. Regarding Appellants' argument that Walker predates Johnson by over 60 years, we agree with the Examiner (Answer 17-18) that this argument is unpersuasive, absent evidence of failed attempts to solve the problem addressed by the invention. In re Wright, 569 F.2d 1124, 1127 (CCPA 1977) ("The mere age of the references is not persuasive of the unobviousness of the combination of their teachings, absent evidence that, notwithstanding knowledge of the references, the art tried and failed to solve the problem."). For the above reasons, we affirm the Examiner's rejection of claims 1, 2, 21, 24, 27, 33, 36, 43, 45-50 over Johnson and Walker, and the rejection of claim 26 over Johnson, Walker, and Whidden. 9 Appeal2017-000472 Application 12/674,634 CONCLUSION The following table summarizes the decision: 1, 2, 18, 19, 21, 24, 27, 33, 36, 43, 45, 46, 48-50 47 1, 2, 21, 24, 27, 33, 36, 43, 45-50 26 Summary § 102(e) § 103(a) § 103(a) § 103(a) Limaye Lima e Johnson, Walker Johnson, Walker, Whidden DECISION The Examiner's decision is affirmed. 1, 2, 18, 19, 21, 24, 27, 33, 36, 43, 45, 46, 48-50 47 1, 2, 21, 24, 27, 33, 36, 43, 45-50 26 1, 2, 18, 19, 21, 24, 26, 27, 33, 36, 43, 45-50 No time period for taking any subsequent action in connection with this appeal may be extended. See 37 C.F.R. § 1.136(a)(l)(iv) (2016). AFFIRMED 10 Copy with citationCopy as parenthetical citation