Ex Parte Mina

Patent Trial and Appeal Board

Dec 27, 2016

12618136 (P.T.A.B. Dec. 27, 2016)

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.
12/618,136 11/13/2009 Theodors Ishaq Mina ATL3-PT044 5999
135838 7590 12/29/2016
Studio Torta (RINGFENCE)
c/o BUCHANAN INGERSOLL & ROONEY PC
P.O. BOX 1404
EXAMINER
GOYAL, ARUN
ALEXANDRIA, VA 22313 ART UNIT PAPER NUMBER
3741
NOTIFICATION DATE DELIVERY MODE
12/29/2016 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):
ADIPDOCl@BIPC.COM
stacy. shaw @ bipc. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte THEODORS ISHAQ MINA
Appeal 2014-009114
Application 12/618,136
Technology Center 3700
Before CHARLES N. GREENHUT, MICHAEL L. HOELTER, and
GORDON D. KINDER, Administrative Patent Judges.
KINDER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant1 appeals under 35 U.S.C. § 134 from a rejection of claims
1—18. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
1 Appellant states that the real party in interest is Alstom Technology LTD.
Appeal Br. 1.
Appeal 2014-009114
Application 12/618,136
CLAIMED SUBJECT MATTER
The claimed invention relates generally to “low pollution combustion
processes, and to combustors with burners that support such combustion
processes.” Spec. 1 5. Claims 1, 7, and 18 are independent. Claim 1,
reproduced below, illustrates the claimed subject matter:
1. A method for burning fuel with air in a combustion
chamber with low production of NOx emissions, comprising
the steps of:
supplying fuel and air to a burner associated with the
combustion chamber, the burner comprising an air supply
nozzle and at least one fuel supply nozzle located within the air
supply nozzle, the amount of air supplied by the air supply
nozzle in use being at least as much as required for
stoichiometric combustion of the fuel and all subsequent
dilution of the combustion process in the combustion chamber
and below 250% of the air requited for complete combustion,
wherein a ratio of an axial distance between an exit of the air
supply nozzle and an exit of the fuel supply nozzle exit to a
diameter of the air supply nozzle is less than 5:4; and
combusting the fuel with the air in a flame and a post­
flame reaction by injecting the fuel and all the air through the
burner directly into the combustion chamber in a substantially
unmixed state as a fuel stream inside an air stream, wherein the
air is immediately available in the proximity of the flame
during the combustion process to act as a heat sink and so that
the combustion process in the flame is followed by fast dilution
and the post-flame reaction continues as a lean-bum reaction,
the thickness of the fuel stream being such that the fuel bums in
the combustion chamber at or close to the stoichiometric
fuel/air ratio as a diffusion flame with a high surface-to-volume
ratio.
Appeal Br. 23 (Claims App.)
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Application 12/618,136
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Delabroy US 6,688,876 B2 Feb. 10, 2004
Glezer US 2005/0044857 A1 Mar. 3, 2005
Inoue US 6,928,823 B2 Aug. 16, 2005
Mass US 7,249,721B2 July 31, 2007
REJECTIONS
The Examiner made the following rejections:
Claims 1, 7, 9, 10, and 14-17 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Inoue, Glezer, and Mass.
Claims 2—6, 8, 11—13, and 18 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Inoue, Glezer, and Mass.
Claims 2, 5, 8, and 13 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Inoue, Glezer, Mass, and Delabroy.2
ANALYSIS
Appellant proposes that claims 1—6, 16, and 17 are allowable because
the cited references do not suggest “injecting the fuel and all the air through
the burner directly into the combustion chamber in a substantially unmixed
state as a fuel stream inside an airstream” as required by these claims.
Appeal Br. 11—15.
In support of this proposition Appellant first argues that Inoue teaches
away from the “substantially unmixed” limitation of claims 1—6, 16, and 17.
2 Claim 17 was rejected under 35 U.S.C. § 112 (Final Act. 2). That rejection
has been withdrawn. Ans. 2.
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Application 12/618,136
Appeal Br. 11. Appellant quotes from Inoue: “since the arrangement of this
embodiment promotes a partial mixture of fuel before the fuel is injected
from the end face of an air hole, it can be expected that the fuel and air can
be mixed at a much shorter distance.” Id. (quoting Inoue 5:15—18.)
“A reference may be said to teach away when a person of ordinary
skill, upon reading the reference, would be discouraged from following the
path set out in the reference, or would be led in a direction divergent from
the path that was taken by the applicant.” In re Gurley, 27 F.3d 551, 553
(Fed. Cir. 1994). Here, Appellant has ignored the sentence immediately
following that quoted above in which Inoue says, “Furthermore, by adjusting
the length of the air hole passage, it is possible to set the conditions from
almost no mixture occurring in the passage to an almost complete premixed
condition.”3 Inoue, 5:19-22. Thus, far from teaching away from a
“substantially unmixed state as a fuel stream inside an airstream” (claim 1),
Inoue teaches that the degree of premixing is variable and adjustable from
“almost no” mixing to “almost complete” mixing. This adjustability is
clearly demonstrated in Inoue’s Figures 15(c) and 15(d) and in the
discussion at column 9, lines 7—24. Moreover, in a passage cited in the Final
Action (Final Act. 4) but not addressed by Appellant and discussing the same
embodiment that Appellant urged taught premixing, Inoue describes the
sequence of events as fuel and air are injected into the combustion chamber:
3 In the combustion art, “premixed” refers to “a flame in which the oxidizer
has been mixed with the fuel before it reaches the flame front. This creates a
thin flame front as all of the reactants are readily available.” Available at
https://en.wikipedia.org/wiki/Premixed_flame (last viewed December 10,
2016).
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Application 12/618,136
As described above, by arranging a coaxial jet in which the
airflow envelopes the fuel, the fuel flows into the combustion
chamber, mixes with the ambient coaxial air flow to become a
premixed air fuel mixture having a proper stoichiometric
mixture ratio, and then comes in contact with high-temperature
gas and starts to bum.
fnoue 5:51—58 (emphasis added), fnoue’s use of “then” shows this to be a
description of events in sequence. Accordingly, fnoue not only does not
teach away from the subject matter of claim 1, but affirmatively teaches that
the coaxial flow of fuel surrounded (“enveloped,” id.) by air mixes after it
enters the combustion chamber, in the manner described in claim 1. See also
id. at 7:55—60. The portions of Mass and Glezer relied upon by Appellant as
teaching away from an air/fuel stream that is substantially unmixed as it
enters the combustion chamber are descriptions of the problems perceived in
the background art. As discussed above, Inoue teaches low NOx emissions
can still be achieved while reducing or minimizing premixing. See, e.g.,
Inoue at 7:60-63, 9:64—10:21, and Fig 17 at “C”. Thus, considering the
combined teachings of all the references, one skilled in the art would not be
led away from utilizing an unmixed air/fuel stream for the sake of achieving
a desired NOx emission level. See Appeal Br. 11—12.
Appellant next argues that there is (1) no suggestion of any unmixed
state of a fuel stream inside an airstream and (2) no suggestion of air that
acts as a heat sink such that combustion in the flame is followed by fast
dilution. Appeal Br. 12. Regarding Appellant’s initial contention, we have
already found, in agreement with the Examiner, that fnoue specifically
discloses an unmixed state of a fuel stream inside an airstream.
Accordingly, we are not persuaded of Examiner error on that point.
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Regarding Appellant’s subsequent air-as-heat-sink argument is addressed
below.
Appellant’s third argument is that, contrary to the subject matter of
claim 1, the prior art teaches that it is necessary to premix fuel and air to
facilitate combustion with low nitrogen oxide emissions, citing Inoue 5:15—
21, 8:45—50, 9:30—40, 10:4-2 [sic, 21?]; Mass 2:20-24; Glaser 13. Appeal
Br. 13. As discussed above, we agree with the Examiner that Inoue
specifically teaches a coaxial fiiel/airstream in which the two are not
substantially premixed as they are injected into the combustion chamber.
Therefore, we are not persuaded by Appellant’s third argument, i.e., that it is
necessary to premix, and as such, we are not persuaded that the Examiner
erred in rejecting 1—6, 16, and 17.
Appellant’s fourth argument is that claims 1—6, 16, and 17 require
“combusting of a fuel with the air in a flame and post-flame reaction such
that the air that surrounds and is substantially unmixed with the fuel acts as a
heat sink in the thickness of the stream of fuel surrounded by the air is such
that the combustion process in the flame is followed by a post-flame reaction
that continues to bum as a diffusion flame.” Appeal Br. 14. In support of
this argument Appellant asserts Inoue does not suggest any diffusion flame
combustion, and Appellant further asserts that Inoue does not have any
thickness of the fuel stream that is surrounded by air such that any diffusion
flame results from the burners disclosed. “The air and fuel are premixed in
[Inoue] such that no such diffusion occurs.” Id. “Moreover, the cited art
fails to suggest that an airstream unmixed with a fuel stream surrounds the
fuel stream to act as a heat sink.” Id. at 13.
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Application 12/618,136
The Examiner replies that Inoue explicitly teaches a diffusion flame,
citing column 4, lines 4—11 and column 5, lines 43—48. Ans. 2. Inoue states
that it is possible to ensure combustion stability under certain operating
conditions by “causing the fuel to become locally over-concentrated in
burning the fuel in the mechanism similar to the diffusion combustion which
utilizes oxygen in the ambient air.” Inoue 4:7—11; see also id. 5:43—48.
Inoue further describes the injection of gas and air into the combustion
chamber by saying that the fuel flows within ambient coaxial airflow into
the combustion chamber. Id. 5:52—53. As the Examiner found, Inoue
discloses a fuel stream that is surrounded by air, and the result is a diffusion
flame (which Inoue also specifically describes). As a consequence of the
fuel being enveloped by air, the air is present to act as a heat sink and
Appellant does not explain how this is not the case. We have already
addressed Appellant’s assertion that Inoue only discloses premixed fuel and
air, agreeing with the Examiner that this assertion is not accurate.
Accordingly, Appellant’s fourth argument fails to persuade us of Examiner
error in rejecting claims 1—6, 16, and 17.
For the final argument in connection with claim 1 and in support of
the patentability of claims 7 and 18, Appellant argues that Inoue’s Figures
4(a) and 4(b) do not support rejection of the pending claims as asserted by
the Examiner. Appeal Br. 14—15. Appellant quotes from Inoue, column 5,
lines 15—17, but fails to address the following sentence which, as pointed out
above, demonstrates that Inoue affirmatively teaches that “it is possible to
set the conditions from almost no mixture occurring in the passage to an
almost complete premixed condition” “by adjusting the length of the air hole
passage.” Inoue, 5:18—21. Accordingly, for reasons similar to those
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described above, we are not persuaded that the Examiner erred in rejecting
claims 1—6, 16, and 17.4
Claim 17.
Appellant makes an additional argument in favor of claim 17. Appeal
Br. 15. Claim 17 depends from claim 16, which in turn depends from claim
1. Claim 17 requires “[an] air supply nozzle and [a] fuel supply nozzle [that]
are shaped such that any substantial turbulence as the air flows through the
annular passages is avoided.” Appeal Br. 26 (Claims App.). Appellant
asserts no such annular passage is disclosed or suggested in the cited art. Id.
The Examiner responds that claim 17 includes no structure to limit
turbulence and that the Appellant discloses the same structure as taught by
Inoue in Figures 4a and 5a. Ans. 4.
In certain circumstances functional language may be used to add
limitations to an apparatus claim. See K-2 Corp. v. Salomon S.A., 191
F.3d 1356, 1363 (Fed. Cir. 1999); Wright Med. Tech., Inc. v.
Osteonics Corp., 122 F.3d 1440, 1443-44 (Fed. Cir. 1997). In cases
in which functional language adds a structural limitation to an
apparatus claim, however, it does so because the language describes
something about the structure of the apparatus rather than merely
listing its intended or preferred uses.
Textron Innovations Inc. v. American Eurocopter Corp. (Fed. Cir. 2012)
(nonprecedential). Here the desired function (reducing or eliminating
turbulence) is not accompanied by any specific structure to accomplish the
desired goal, and therefore does not limit the claim. On the contrary,
Appellant utilizes the same structure as disclosed by Inoue. Inoue Figure 12
4 Appellant's comments about Figure 17 of Inoue (Appeal Br. 15) are not
directed to any particular claim language, and therefore do not apprise us of
error.
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Application 12/618,136
shows smooth air flow and limited fuel mixing at the air/fuel boundary,
forming “a good coaxial jet flow.” fnoue 7:54—55.
Appellant’s discussion of fnoue’s angled air holes 57 (Appeal Br. 16)
is not persuasive because the swirling described is not inconsistent with
individual jets that are not turbulent even though the cumulative effect of
several such jets is a swirling flow in the combustion chamber.
In view of the forgoing we are not persuaded the Examiner erred in
rejecting claim 17.
Claims 3-5.
Claims 3—5 depend from claim 1 adding that “the distance from a
centerline of the gaseous fuel stream to a boundary between the fuel stream
and the air stream is in the range of approximately” (1) 0.5 mm to
approximately 5 mm (claim 3); (2) 0.5 mm to approximately 3mm (Claim 4)
and (3) 0.2 mm to roughly 0.5mm (claim 5). Appeal Br. 24 (Claims App.).
Appellant argues that Inoue suggests there should be no distance
between the gaseous fuel stream centerline and an airstream because,
according to Appellant, Inoue suggests premixing. Appeal Br. 17; Reply
10-11. We have already found above and are in agreement with the
Examiner (Final Act. 6—7; Ans. 4) that Inoue discloses a nozzle where there
is no substantial premixing until after the symmetric, coaxial flow exits the
air hole 52. See Inoue 7:55-60 and Fig. 12. Appellant’s Reply asserts that
Inoue does not say that “mixing only occurs after the fuel passes out of the
air opening.” Reply 11. However, to be clear, claim 1 and those dependent
from it do not prohibit any mixing in the passage, but rather that the air/fuel
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streams exit the passage “in a substantially unmixed state.” Inoue’s Figure
12 shows that some mixing has begun to take place after the coaxial streams
are combined and exit opening 52, but such mixing is limited and instead,
the streams are illustrated as being “in a substantially unmixed state” upon
such exiting under the broadest reasonable interpretation of that term. Thus,
Figure 12 does not undermine the Examiner’s finding.
Appellant argues that Delabroy discloses a fuel injector that
guarantees atomization prior to its reaching the combustion chamber.
Appeal Br. 17. Appellant argues that, “No separation of fuel to any
boundary of gas is present in such an atomizer.” Id. Appellant summarizes
stating: “No separation of fuel and air exist in the fuel air premixture
disclosed by these references for there to be any such boundary as required
by claims 3—5.” Reply 11.
The Examiner responds that claims 3—5 do not specify where along
the length of the centerline of the gaseous fuel flow the distance to the
boundary between the fuel stream and the airstream is measured, i.e., inside
the hole, at the fuel injection point or at the exit of the hole, and therefore
“the distance as claimed was obvious over both fnoue and Delabroy at the
time of the invention ... at least [at] one of these [measuring] points.” Ans.
4.
The Examiner has the better argument. First, as discussed above,
fnoue does indeed show a boundary between fuel and the surrounding air.
Second, the Examiner is correct in that Claims 3—5 do not specify where the
measurement is to be made, and Appellant is not persuasive that the gaseous
fuel flow in both Delabroy and Inoue fail to achieve this distance.
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Accordingly, Appellant has not apprised us of error in the Examiner’s
rejection of claims 3—5.
Claims 7—15.
Appellant argues that claims 7—15 are patentable over the cited art for
the same reasons that claim 1 was argued patentable. Appeal Br. 17—19.
The Examiner responds that as apparatus claims, claims 7—15 must
distinguish from the prior art in terms of structure, citing In re Schreiber,
128 F.3d 1473, 1477-78, (Fed. Cir. 1997); MPEP 2114. Ans. 4. Appellant
asserts the cited art teaches that premixing of air and fuel is necessary to
provide low production of nitrogen oxides. Appeal Br. 17—18. For the
reasons discussed in connection with claim 1, these arguments do not
persuade us that the Examiner erred in rejecting claims 7—15.
Appellant asserts that the Examiner has given no weight to the
functional limitations in claims 7—15. Reply 12—14. “[Ajpparatus claims
cover what a device is, not what a device does.'” Hewlett-Packard Co. v.
Bausch &Lomb Inc., 909 F.2d 1464, 1468 (Fed. Cir. 1990), and Appellant
fails to identify any structure that enables its many asserted functional
differences. As discussed above in connection with claim 1, Inoue teaches
the claimed methods of operation, the same methods asserted as functional
distinctions in claims 7—15, and Appellant fails to persuasively point out any
structural differences between Inoue and the claims at issue. Accordingly,
we are not persuaded that the Examiner erred in rejecting claims 7—15.
Claim 13.
Appellant argues that claim 13’s requirement that the “radial height of
an exit of the air nozzle be between 20—30 times the exit diameter of the air
nozzle” is not suggested by the cited art. Appeal Br. 19-20; Reply 14—16.
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The Examiner answers that the diameter of the air nozzle (D in Figures 15(e)
and 15(f)) is a result effective variable as shown by Inoue Figure 17 which
therefore “can be optimized through routine experimentation.” Ans. 5. We
note particularly Inoue’s Figures 15(e) and 15(f) which show air nozzles of
different diameters as well as the discussion of the consequences of
adjusting that diameter on NOx emissions. See Inoue 9:26-40. Appellant
suggests that Inoue (9:30-37) discloses a disadvantage to a large diameter
air nozzle, namely, a longer distance is required for the air and fuel to mix.
Appeal Br. 19; Reply 15. Inoue does say that large air nozzle diameters lead
to increased NOx, but also that there is a trade off in reduced manufacturing
costs. Inoue 9:26-40. Appellant also argues that Inoue does not teach a size
differential between the fuel nozzle and the air nozzle. Appeal Br. 19—20.
We find that the discussion in Inoue of varying the size of the air nozzle
diameter with no mention of alteration of the fuel nozzle (Inoue 9:26-40)
suggests varying the ratio between the two, and this would not cause Inoue
to fail to function or achieve its improvement, because, as we found above,
Inoue teaches that mixing can take place in the combustion chamber.
Specifically, Inoue’s Figure 12 shows no substantial mixing even after the
coaxial jet of fuel and enveloping air have arrived “at a downstream side of
an air outlet.” Inoue 7:56—57. Additionally, as the Examiner points out,
Delabroy discloses a fiiel to air nozzle diameter ratio of over 30. See Ans. 5.
Finally, Appellant argues that Inoue, modified as suggested by the
Examiner, not only would not operate according to Inoue’s principles, but
also would not achieve Inoue’s compact mixing advantage, citing Inoue
10:11—21. Appeal Br. 20; Reply 15. This argument is not convincing
because Inoue’s advantage is achieved through “one embodiment of the
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present invention” (Inoue 10:12), and Inoue discloses that mixing can occur
in the combustion chamber, as discussed above. Thus, Inoue discloses
achieving its advantage without substantial premixing of the air and fuel.
In view of the foregoing, we are not persuaded that the Examiner
erred in rejecting claim 13.
Claim 18. Appellant urges claim 18 is independently patentable for
reasons similar to those advanced in connection with claims 1 and 7. Appeal
Br. 20—21; Reply 16—18. These arguments are not persuasive for the
reasons set out above. Appellant makes additional arguments for the
separate patentability of claim 18. Id. All of those arguments rely on the
premise that Inoue does not teach a burner that supplies a fuel stream
surrounded by an airstream in a substantially unmixed condition as it arrives
in a combustion chamber.
As we have discussed above, Inoue does not support Appellant’s
position. For example, Inoue discloses in connection with Figure 1:
Although the diameter of the air holes 52 and 57 is small,
it is preferable to form the holes in such size that when fuel
injected from the fuel nozzles 55 and 56 passes through the air
holes 52 and 57, a fuel jet and an [sic] circular flow of the air
enveloping the fuel jet can be formed accompanying the
ambient air.
Inoue 4:60—65 (emphasis added). While Inoue does suggest that some
premixing can occur within the air passage upstream of the combustion
chamber, Inoue also says this is adjustable. “[B]y adjusting the length of the
air hole passage, it is possible to set the conditions from almost no mixture
occurring in the passage to an almost complete premixed condition.” Id.
5:18—21. Inoue describes the fuel injection process in detail stating “the fuel
flows into the combustion chamber, mixes within the ambient coaxial
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airflow to become a premixed air fuel mixture having a proper
stoichiometric mixture ratio, and then comes in contact with a high-
temperature gas and starts to bum.” Id. 5:52—57.
Thus, the Examiner correctly finds that Inoue teaches a device that has
all the same stmctural features as recited in claim 18. Claim 18 describes no
stmctural difference from Inoue which inherently provides air to act as a
heat sink during the combustion process. Schreiber, 128 F.3d at 1478.
Accordingly, we are not persuaded that the Examiner erred in his
rejection of claim 18.
DECISION
For the above reasons, the Examiner’s rejection of claims 1—18 is
affirmed.
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)(l)(iv).
AFFIRMED
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