Ex Parte Limaye et al

Patent Trial and Appeal Board

May 25, 2018

12674634 (P.T.A.B. May. 25, 2018)

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.].
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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.
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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:
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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
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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
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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
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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
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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.
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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
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