Ex Parte Malavasi et al

Patent Trial and Appeal Board

May 25, 2018

12744677 (P.T.A.B. May. 25, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/744,677 05/25/2010 Massimo Malavasi
4372 7590 05/30/2018
ARENT FOX LLP
1717 K Street, NW
WASHINGTON, DC 20006-5344
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.
108907.00062 4328
EXAMINER
ZUBER!, RABEEUL I
ART UNIT PAPER NUMBER
3743
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):
patentdocket@arentfox.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MASSIMO MALA VASI, GRAZIA DI SAL VIA, and
EDOARDO ROSSETTI
Appeal2017-006734
Application 12/744,677 1
Technology Center 3700
Before LINDA E. HORNER, STEVEN D.A. McCARTHY, and
BRETT C. MARTIN, Administrative Patent Judges.
HORNER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Massimo Malavasi et al. ("Appellants") seek our review under
35 U.S.C. § 134(a) of the Examiner's decision rejecting claims 1-8, 10, and
14-17, which are all of the pending claims. Final Office Action (February 1,
2016) (hereinafter "Final Act."). We have jurisdiction under 35 U.S.C.
§ 6(b ).
1 Appellants identify ITEA S.p.A. as the real party in interest. Appeal Brief
(September 22, 2016), at 1 (hereinafter "Appeal Br.").
Appeal2017-006734
Application 12/744,677
In combustion plants, the basic portion of the ashes of fossil fuels,
biomasses, and wastes causes the formation of oxides and salts in the flame
front. Specification (May 25, 2010) (hereinafter "Spec."), at 1. These
compounds are particularly aggressive at high temperatures towards the
materials of the walls of combustion chambers and thermal recovery plants.
Id. The claimed subject matter relates to a process for substantially reducing
the basic ashes contained in the fumes from combustors. Id.
The Examiner determined that the claimed process would have been
obvious to one having ordinary skill in the art at the time of Appellants'
invention in view of the combined teachings of the prior art. Appellants
contend that the Examiner failed to articulate adequate reasoning for the
proposed combination of prior art. For the reasons explained below, we
agree with Appellants that the Examiner's reasoning is not sufficient to
explain why one having ordinary skill in the art would have been led to the
process claimed. Accordingly, we REVERSE.
CLAIMED SUBJECT MATTER
Claim 1 is the sole independent claim on appeal and is reproduced
below, with relevant claim language emphasized in italics.
1. A combustion process for reducing basic ashes in
combustion fumes, comprising feeding into a combustor a fuel,
a comburent and a component B), wherein combustion fumes
comprising S02 are output from the combustor, wherein
component B) is selected from sulfur or sulfur containing
compounds, and component B) is added in an amount to have a
molar ratio B'/A1 > 0.5, wherein:
B' is the sum by moles between the amount of sulfur
present in component B) + the amount of sulfur contained in the
fuel,
2
Appeal2017-006734
Application 12/744,677
A1 is the sum by moles between the amount of
alkaline and/ or alkaline-earth metals contained in the fuel + the
amount of the alkaline and/or alkaline-earth metals contained in
component B),
being
- the combustor is isothermal and flameless,
the comburent being in molar excess with respect to the
stoichiometric amount required for the combustion reaction with
the fuel, and
wherein the partial pressure of S02 ranges from 40 to
300 Pa.
Appeal Br. 19 (Claims Appendix) (emphasis added).
EVIDENCE
Child et al. us 4,436,530 Mar. 13, 1984
("Child")
Moriarty us 4,517,165 May 14, 1985
Marten et al. us 4,917,024 Apr. 17, 1990
("Marten")
Mekonen us 5,372,613 Dec. 13, 1994
Shessel et al. us 5,690,482 Nov. 25, 1997
("Shessel")
Wellington et al. us 5,862,858 Jan.26, 1999
("Wellington")
Malavasi et al. WO 2005/108867 Al Nov. 17, 2005
("Malavasi")
REJECTIONS
The Final Office Action includes the following rejections:
1. Claims 1-3, 5, 7, and 10 stand rejected underpre-AIA 35 U.S.C.
§ I03(a) as unpatentable over Moriarty, Shessel, and Wellington.
3
Appeal2017-006734
Application 12/744,677
2. Claim 4 stands rejected under pre-AIA 35 U.S.C. § 103(a) as
unpatentable over Moriarty, Shessel, Wellington, and Child.
3. Claim 6 stands rejected under pre-AIA 35 U.S.C. § 103(a) as
unpatentable over Moriarty, Shessel, Wellington, and Malavasi.
4. Claim 8 stands rejected under pre-AIA 35 U.S.C. § 103(a) as
unpatentable over Moriarty, Shessel, Wellington, and Mekonen.
5. Claims 14, 16, and 17 stand rejected under pre-AIA 35 U.S.C.
§ 103(a) as unpatentable over Moriarty, Shessel, Wellington,
Child, and Marten.
6. Claim 15 stands rejected under pre-AIA 35 U.S.C. § 103(a) as
unpatentable over Moriarty, Shessel, Wellington, Child, Marten,
and Malavasi.
ISSUE
The Examiner found that Moriarty discloses a combustion process
comprising feeding into a combustor a fuel, a comburent, and a component
B), where the component B) is a sulfur-containing compound, and the
combustion fumes output from the combustor comprise S02. Final Act. 4.
The Examiner found that Moriarty further discloses an inorganic alkaline
absorbent in the combustion zone, and the molar ratio of absorbent to fuel
sulfur constituent can be in a range as low as from about 1: 1 to 3: 1. Id. The
Examiner found that Moriarty does not teach the comburent is in molar
excess with respect to the stoichiometric amount required for the combustion
reaction with the fuel. Id.
The Examiner relied on Shessel to teach a process for the combustion
of sulfur containing fuels where an excess stoichiometric amount of oxygen
is used. Id. at 4-5 (citing Shessel, col. 2, 11. 15-29). The Examiner
4
Appeal2017-006734
Application 12/744,677
determined it would have been obvious to modify Moriarty to use excess
comburent, as taught by Shessel, as the modification "would have involved
the simple combination of prior art elements according to known techniques
to yield predictable results." Id. at 5. The Examiner further explains, "It is a
well-known concept that the amount of oxygen utilized/present during
combustion is a result driven variable, therefore a person of ordinary skill in
the art would be readily motivated to seek teachings and adjust the oxygen
content accordingly ( oxygen being the comburent ). " Examiner's Answer
(December 30, 2016), at 12-13 (hereinafter "Ans.").
Appellants argue that the Examiner's reason to modify Moriarty to
use excess comburent is inadequate. Appeal Br. 12-13. Specifically,
Appellants assert Moriarty teaches that by increasing the amount of air, the
inorganic absorbent alkaline will be "less and less effective in removing fuel
sulfur." Id. at 13 (citing Moriarty, Fig. 1); ReplyBrief(February 28, 2017),
at 10 ( arguing that using a deficit of oxygen is "critical" for the first step of
the Moriarty process). Thus, Appellants argue that a person of ordinary skill
in the art would not have been led to modify Moriarty to use excess
comburent in the combustion process. Id.
The issue before us is whether the Examiner has articulated adequate
reasoning based on rational underpinnings to explain why one having
ordinary skill in the art would have been led to modify Moriarty to increase
the comburent so that it is in molar excess with respect to the stoichiometric
amount required for the combustion reaction with the fuel.
ANALYSIS
Moriarty is directed to a method of combustion of sulfur-containing
fuels so that minimal emission of gaseous sulfur compounds occurs.
5
Appeal2017-006734
Application 12/744,677
Moriarty, col. 1, 11. 9-11. Moriarty teaches partially combusting
sulfur-containing fuel in a first combustion zone, with from about 25% to
40% of the total stoichiometric amount of oxygen required for complete
combustion of fuel, in the presence of an inorganic alkaline absorbent under
selected conditions of temperature and residence time. Id. at col. 2, 11. 47-
53. Moriarty describes that during this partial combustion step, the fuel
releases gaseous sulfur components that react with the absorbent to form
solid sulfur compounds. Id. at col. 2, 11. 53-62. Moriarty teaches that "the
air/fuel mixture stoichiometry has a significant effect on the reaction which
takes place between fuel sulfur and an inorganic alkaline absorbent in
intimate contact with the fuel." Id. at col. 3, 11. 41--45 (emphasis added).
Moriarty shows in Figure 1 the percent of fuel sulfur captured versus air/fuel
stoichiometry. Id. at 5, 11. 27-29. This graph indicates that "within a narrow
band of stoichiometry, it is possible to capture a substantial percentage of the
fuel sulfur utilizing a relatively low molar ratio of absorbent to sulfur" and
that "with an air/fuel stoichiometric ratio of from about 0.25 to 0.40, it is
possible to reduce by 90% or more the gaseous sulfur compounds which
otherwise would be emitted to the atmosphere." Id. at col. 5, 11. 38--45. As
shown in Figure 1, the percent of sulfur captured in this process decreases
significantly when more than 40% of the stoichiometric amount of air
required for complete oxidation of the fuel is used in this first combustion
zone. Id., Fig. 1. Thus, Moriarty characterizes air/fuel stoichiometric ratio
as "an essential element of the present invention." Id. at col. 7, 11. 63-68.
Shessel also relates to a process for combusting sulfur-containing
fuels while minimizing sulfur emissions from the combustion process.
Shessel, col. 1, 11. 6-8. Shessel describes a two-step combustion process that
6
Appeal2017-006734
Application 12/744,677
includes removing sulfur compounds at an intermediate point between the
two combustion steps. Id. at col. 1, 11. 9-11. In a first combustion step, fuel
is partially oxidized to produce off gasses, including carbon monoxide,
hydrogen, and hydrogen sulfide. Id. at col. 2, 11. 1-3. Then, the process
removes hydrogen sulfide from the off gasses. Id. at col. 2, 1. 4. In a second
combustion step, the off gasses are completely combusted to produce
energy. Id. at col. 2, 11. 5-6.
Shessel teaches that "[t]he partial oxidation reaction [in the first
combustion step] is conducted with less than the stoichiometric amount of
oxygen required to completely combust the fuel." Id. at col. 2, 11. 15-17
( emphasis added). Shessel explains, "[P]referably, an excess stoichiometric
amount of oxygen required to convert the carbonaceous fuel to carbon
monoxide is utilized." Id. at col. 2, 11. 27-29; see also id. at col. 4, 11. 35--49
( describing that "the amount of oxygen present in partial oxidation reactor
10 is sufficient to drive the oxidation of carbon in the fuel to carbon
monoxide to completion and insufficient to permit all of the carbon in the
fuel to react to produce carbon dioxide"). Thus, Shessel, like Moriarty, uses
less than the stoichiometric amount of oxygen required for complete
combustion of the fuel in the partial oxidation step.
We disagree with the Examiner's determination that the teachings of
Shessel would have prompted one having ordinary skill in the art to increase
the amount of oxygen in the partial oxidation reaction in the first combustion
zone of Moriarty. First, as noted above, Moriarty teaches that an essential
element of its process is to use no more than 40% of the stoichiometric
amount of oxygen during the partial oxidation step to optimize the amount
of sulfur captured by the inorganic alkaline absorbent. Thus, one having
7
Appeal2017-006734
Application 12/744,677
ordinary skill in the art would have been discouraged by Moriarty's teaching
from adding more oxygen to this step of the process. Second, Shessel does
not teach using, in its first partial oxidation step, an excess stoichiometric
amount of oxygen needed for complete combustion of the fuel. Rather,
Shessel uses an excess of the amount of oxygen needed to convert the fuel to
carbon monoxide. The Examiner has not explained whether the amount of
oxygen taught in Shessel is more than the amount already disclosed in
Moriarty. Third, Shessel teaches using the disclosed amount of oxygen in
the partial oxidation step to optimize the amount of carbon monoxide
produced to provide sufficient hydrogen to convert the sulfur to hydrogen
sulfide. Shessel, col. 4, 11. 35--49. In Moriarty, the partial oxidation step is
intended to cause a reaction between the sulfur and the inorganic alkaline
absorbent to create solid sulfur compounds. Moriarty, col. 2, 11. 53-62. The
Examiner has not explained why optimization of the creation of carbon
monoxide, taught in Shessel, would be desirable for the reaction between the
sulfur and inorganic alkaline absorbent in the partial combustion step of
Moriarty.
For these reasons, the Examiner has failed to articulate adequate
reasoning to explain why one having ordinary skill in the art would have
been led to use the comburent in molar excess with respect to the
stoichiometric amount required for the combustion reaction with the fuel, as
recited in claim 1. Accordingly, we do not sustain the rejection of claim 1,
and its dependent claims 2, 3, 5, 7, and 10, under 35 U.S.C. § 103(a) as
unpatentable over Moriarty, Shessel, and Wellington.
The remaining grounds of rejection of dependent claims 4, 6, 8, and
14-17 also are based on the modification of the process of Moriarty with the
8
Appeal2017-006734
Application 12/744,677
teachings of Shessel. Final Act. 7-11. Accordingly, for the reasons set forth
above, we likewise do not sustain the rejections under 35 U.S.C. § 103(a) of
claims 4, 6, 8, and 14-17.
DECISION
The decision of the Examiner rejecting claims 1-8, 10, and 14-17 is
reversed.
REVERSED
9