Ex parte Pelton

Board of Patent Appeals and Interferences

Jun 30, 1999

08011604 (B.P.A.I. Jun. 30, 1999)

Application for patent filed February 1, 1993. 1
According to appellant, this application is a division of
Application No. 07/845,324 filed March 3, 1992, now U.S.
Patent No. 5,198,180 issued March 30, 1993; which is a
division of Application No. 07/656,849 filed February 19,
1991, now U.S. Patent No. 5,234,202 issued August 10, 1993.
THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered today (1) was
not written for publication in a law journal and (2) is not
binding precedent of the Board.
Paper No. 24
UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________
Ex parte JOHN F. PELTON
____________
Appeal No. 95-1724
Application No. 08/011,6041
____________
ON BRIEF
____________
Before KIMLIN, JOHN D. SMITH and GARRIS, Administrative Patent
Judges.
GARRIS, Administrative Patent Judge.
DECISION ON APPEAL
Appeal No. 95-1724
Application No. 08/011,604
2
This is a decision on an appeal from the final rejection
of claims 1 through 16 which are all of the claims remaining
in the application.
The subject matter on appeal relates to an insulated
refractory lined refining chamber for aluminum refining being
adapted for the positioning of a spinning nozzle assembly
therein for the injection of sparging gas into a body of
molten aluminum present in the chamber wherein the improvement
consists essentially of vertical, refractory baffle means
positioned at the floor of and across said refining chamber so
as to be located under a rotor portion of said spinning nozzle
assembly upon placement of said spinning nozzle assembly in
the refining chamber. This appealed subject matter is
adequately illustrated by independent claim 1 which reads as
follows:
1. In an insulated refractory lined refining chamber
for aluminum refining, having side walls and a floor and being
adapted for the positioning of a spinning nozzle assembly
therein for the injection of sparging gas into a body of
molten aluminum present in the chamber during aluminum
refining operations, said insulated refractory lined refining
chamber having no gas inlet means in the side wall thereof,
the improvement consisting essentially of vertical, refractory
baffle means positioned at the floor of and across said
refining chamber, so as to be located under a rotor portion of
said spinning nozzle assembly upon placement of said spinning
Appeal No. 95-1724
Application No. 08/011,604
3
nozzle assembly in the refining chamber for the injection of
sparging gas into the body of molten aluminum therein, whereby
said baffle means serves to change the flow pattern of the
body of molten aluminum within the refining chamber upon the
use thereof for refining operations so as to enable higher gas
flows and/or nozzle rotating speeds to be employed without
excessive surface turbulence of said molten aluminum, thereby
enabling increased refining rates to be achieved in said
refining chamber.
The references relied upon by the examiner as evidence of
obviousness are:
Heuer 2,290,961 Jul. 28,
1942
Bruno et al. (Bruno) 3,839,019 Oct. 1,
1974
Szekely 3,870,511 Mar. 11,
1975
Ivanov et al. (Ivanov) 4,526,761 Jul. 2,
1985
The examiner has advanced on this appeal the following
rejections under 35 U.S.C. § 103:
Claims 1, 2, 4 through 8 and 15 over Heuer;
Claims 1 through 5, 7 through 13, 15 and 16 over Szekely;
Claims 1 through 5 and 7 through 15 over Bruno; and
Appeal No. 95-1724
Application No. 08/011,604
4
Claim 16 over each of the above noted references and
further in view of Ivanov.
We refer to the several briefs and answers of record for
a complete exposition of the opposing viewpoints expressed by
the appellant and the examiner concerning the above noted
rejections.
As a preliminary matter, we note that the appealed claims
have been separately grouped and argued in the manner
indicated on page 3 of the principal Brief, and we will
appropriately consider the separately grouped and argued
claims in our opinion below.
OPINION
For the reasons which follow, we will sustain only the §
103 rejection of claims 1, 2, 4 through 8 and 15 as being
unpatentable over Heuer, and concomitantly we will not sustain
any of the other § 103 rejections before us on this appeal.
Concerning the rejection based on the Heuer reference, we
discern nothing in the apparatus defined by appealed claim 1
which distinguishes over the apparatus disclosed in the
Appeal No. 95-1724
Application No. 08/011,604
5
reference. We appreciate, of course, the appellant’s point
that his claimed chamber is used for refining aluminum whereas
the chamber of Heuer is used for the manufacture of pig iron.
However, this difference in use does not distinguish the
apparatus of appealed claim 1 from the apparatus of Heuer for
it is well settled that the manner or method in which a
machine or apparatus is to be utilized is not germane to the
issue of patentability of the machine or apparatus itself. In
re Casey, 370 F.2d 576, 580, 152 USPQ 235, 238 (CCPA 1967).
Additionally, the appellant argues that his claim 1
baffle means distinguishes over the thicker portion of Heuer’s
refractory lining 21 (e.g., see Figures 1 and 6 of the
reference drawing). In this regard, the appellant emphasizes
that his baffle means is intended to be positioned under and
to function in cooperation with a spinning nozzle assembly
whereas patentee’s thicker refractory portion is surmised to
be employed “because such portion of the lining is subject to
greater wear and tear upon the introduction of a molten charge
of pig iron onto the bottom portion of the lining at this
point” (Brief, page 4). This argument does not persuade us
Appeal No. 95-1724
Application No. 08/011,604
6
that the apparatus defined by appealed claim 1 is
distinguishable over the Heuer apparatus.
For the reasons previously indicated, the fact that
appellant’s baffle means and patentee’s thicker refractory
portion may be used for different purposes is not germane to
the issue of patentability which is before us on this appeal.
What is germane is the fact that the baffle means and thicker
refractory portion are structurally indistinguishable.
Moreover, we cannot agree with the appellant’s position
that the location of his claim 1 baffle means distinguishes
over the location of Heuer’s thicker refractory portion. We
here reiterate the examiner’s point that the appealed claims
do not require a spinning nozzle assembly. Instead, the
independent claim on appeal simply recites that the claimed
chamber is “adapted for the positioning of a spinning nozzle
assembly therein” and that the claimed refractory baffle means
is positioned “so as to be located under a rotor portion of
said spinning nozzle assembly upon placement of said spinning
nozzle assembly in the refining chamber for the injection of
sparging gas into the body of molten aluminum therein.”
Plainly, the chamber of Heuer’s apparatus is “adapted” for the
Appeal No. 95-1724
Application No. 08/011,604
7
positioning of an assembly at charging opening 24 as evinced
by a comparison of Figures 1 and 6. That is, an assembly such
as a spinning nozzle assembly is capable of being positioned
at this charging opening. Further, the location of patentee’s
thicker refractory portion is explicitly shown to be under
this charging opening and therefore corresponds to the
location defined by appealed claim 1.
For the above stated reasons, it is our determination
that the independent claim on appeal fails to structurally
distinguish the chamber defined thereby from the chamber
disclosed by Heuer notwithstanding the appellants’ arguments
to the contrary.
We also are unconvinced by the appellant’s arguments that
dependent claims 4, 5, 7 and 8 are patentable over Heuer. In
our view, it would have been obvious for one with ordinary
skill in the art to provide patentee’s thicker refractory
portion with height dimensions within the ranges defined by
dependent claims 4 and 5, for example, in order to militate
against the greater wear and tear to which this portion of the
refractory lining is subjected. As for claims 7 and 8, the
distance between the baffle means and rotor which is defined
Appeal No. 95-1724
Application No. 08/011,604
8
by these claims is determined by the lengthwise positioning of
the spinning nozzle assembly after it is placed in the here
claimed chamber. Concerning this matter, it is appropriate to
reiterate the earlier mentioned point that the appealed claims
do not require the chamber to include the spinning nozzle
assembly. It follows that the distance feature of the claims
under review relates to a future intended placement of the
assembly. With this in mind, we re-emphasize our earlier
observation that Heuer’s chamber is “adapted” for the
positioning of an assembly at the charging opening thereof,
and such positioning would enable the lengthwise disposition
of the assembly to be located at the here claimed distance
from patentee’s raised refractory portion.
In light of the foregoing, we will sustain the examiner’s
§ 103 rejection of claims 1, 2, 4 through 8 and 15 as being
unpatentable over Heuer.
However, we cannot sustain the examiner’s § 103 rejection
of claim 16 (which requires the baffle means to be of an
“essentially triangular cross section”) as being unpatentable
over Heuer in view of Ivanov. The examiner concludes that it
would have been obvious to provide Heuer with a triangular
Appeal No. 95-1724
Application No. 08/011,604
9
shaped baffle of the type shown by Ivanov in order to “improve
the circulation” (Answer, page 6). However, the applied
references contain no teaching or suggestion that it would be
desirable and thus obvious to “improve the circulation” in
Heuer’s apparatus via a triangular shaped baffle of the type
shown by Ivanov. Significantly, it is the appellant rather
than Heuer who discloses use of a triangular shaped baffle in
order to “improve the circulation.” As a consequence, it is
our determination that the examiner’s conclusion is
inappropriately based upon impermissible hindsight derived
from the appellant’s own disclosure rather than some teaching,
suggestion or incentive derived from the applied prior art.
The rejections based upon Szekely and Bruno also cannot
be sustained. Contrary to the examiner’s belief, the chambers
disclosed in these references are not adapted for the
positioning of a spinning nozzle assembly therein at a
location such that a refractory baffle means is located under
the assembly. In all of the embodiments shown in these
references, the baffles are disposed under a portion of the
chamber which is quite plainly not adapted for the positioning
of a spinning nozzle assembly. For example, it is the
Appeal No. 95-1724
Application No. 08/011,604
10
examiner’s position that Bruno’s chamber contains “a turbine
blade which is located above at least a position [sic,
portion?] of baffle 32” (Supplemental Examiner’s Answer, page
3). As correctly indicated by the appellant, however, Figure
1 of Bruno clearly shows patentee’s turbine blade to be
located substantially to the left of, rather than above as
urged by the examiner, baffle 32.
It follows that we cannot sustain the examiner’s § 103
rejection of claims 1 through 5, 7 through 13, 15 and 16 as
being unpatentable over Szekely or his § 103 rejection of
claims 1 through 5 and 7 through 15 as being unpatentable over
Bruno. Furthermore, since the above discussed deficiencies of
these references are not supplied by Ivanov, we also cannot
sustain the examiner’s § 103 rejection of claim 16 as being
unpatentable over Szekely and Bruno in view of Ivanov.
In summary, we have sustained the rejection of claims 1,
2, 4 through 8 and 15 as being unpatentable over Heuer but
have not sustained any of the other rejections advanced by the
examiner on this appeal.
The decision of the examiner is affirmed-in-part.
Appeal No. 95-1724
Application No. 08/011,604
11
No time period for taking any subsequent action in
connection with this appeal may be extended under 37 CFR
§ 1.136(a).
AFFIRMED-IN-PART
EDWARD C. KIMLIN )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
JOHN D. SMITH ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
BRADLEY R. GARRIS )
Administrative Patent Judge )
bae
Appeal No. 95-1724
Application No. 08/011,604
12
Praxair, Inc.
Law Department - M1557
39 Old Ridgebury Road
Danbury, CT 06810-5113