Ex Parte Pinkham et al

Patent Trial and Appeal Board

Jun 18, 2013

11805373 (P.T.A.B. Jun. 18, 2013)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
11/805,373 05/23/2007 Daniel Pinkham JR. 7725-3 2981
7590 06/19/2013
Robert D. Touslee
Johns Manville
10100 West Ute Avenue
Littleton, CO 80127
EXAMINER
LAZORCIK, JASON L
ART UNIT PAPER NUMBER
1741
MAIL DATE DELIVERY MODE
06/19/2013 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL
BOARD
____________

Ex parte DANIEL PINKHAM, JR., GERARD JOSEPH DEMOTT and
GARY GRONER
____________

Appeal 2011-012540
Application 11/805,373
Technology Center 1700
____________

Before ANDREW H. METZ, CATHERINE Q. TIMM, and DONNA M.
PRAISS, Administrative Patent Judges.

METZ, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE

Appellants appeal under 35 U.S.C. § 134 from the Examiner's
decision rejecting claims 1 through 17. Claims 18 through 25 are claims
originally presented for examination but were canceled by Appellants as
claims directed to a previously non-elected invention pursuant to a
requirement for restriction in which election of the subject matter of claims 1
through 17 was made without traverse. Therefore, the subject matter of
canceled claims 18 through 25 forms no issue in this appeal. We have
jurisdiction under 35 U.S.C. § 6.
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We AFFIRM.

THE INVENTION
Appellants disclose a method for producing molten glass from a glass
batch in a glass-melting furnace. Appellants’ method begins with a “recipe”
for the desired glass batch and comprises weighing out the ingredients
necessary to form the glass batch and subsequently mixing and melting the
ingredients that make up the glass batch recipe. Electricity for the glass-
making method is generated using hot combustion gases obtained by
combusting compressed oxidizing gas and fuel in a combustion chamber. At
least one of the ingredients for the recipe for the glass batch or a mixture of
all the ingredients is heated in a heating device using heat recovered from
the hot exhaust gases, said hot exhaust gases obtained by the combustion of
compressed oxidizing gas and fuel and used to prepare electricity. The
heated ingredient or ingredients are thereafter fed to a mixer, mixed and fed
to a glass melting furnace to melt the heated batch and produce molten glass.
According to Appellants, it is known in the glass making art to
preheat batch for a glass making furnace. Spec. page 1, lines 13 through 20.
It is also known in the glass making art to generate electricity for the glass
making process by using a gas turbine or other “heat engine” that exhausts
gases at elevated temperatures and to use these hot exhaust gases in a heat
exchanger to preheat air and air fuel mixtures used to fuel the gas turbines.
Spec. page 1, lines 22 through 25.
Claim 1 is believed to be adequately representative of the appealed
subject matter and is reproduced below for a more facile understanding of
the claimed invention.
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1. A method of preparing a glass batch for a glass melting furnace
comprising weighing out at least one major ingredient and one or
more minor ingredients, all ingredients comprised of particulates,
according to a desired recipe, mixing the at least one major
ingredient and one or more minor ingredients together thoroughly
to form a mixture, using a heat engine receiving hot combustion
gases directly from combustion of compressed oxidizing gas and a
fuel in a combustion chamber, the hot combustion gases having a
temperature of at least 600 degrees C. at a pressure of at least 4 psi
gauge to generate electricity and to produce waste hot exhaust gases
from the heat engine having a temperature of at least 390 degrees
C., heating, in a heating device, at least one of the ingredients or the
mixture with the waste hot exhaust gases from the heat engine and
feeding the at least one of the heated ingredients to a mixer and/or
feeding the heated mixed batch to the glass melting furnace to melt
the heated batch and produce molten glass.

The references of record which are being relied on by the Examiner as
evidence of obviousness are:
Henry et al. (Henry) 2,718,096 Sept. 20, 1955
Harcuba 4,684,342 Aug. 04, 1987
Chen et al. (Chen) 5,006,141 Apr. 009, 1991

THE REJECTIONS
Claims 1 through 10 and 14 through 17 stand rejected as being
unpatentable under 35 U.S.C. § 103(a) as the claimed subject matter would
have been obvious at the time Appellants made their invention from the
disclosure of Chen considered with Henry.
Claims 11 through 13 stand rejected as being unpatentable under 35
U.S.C. § 103(a) as the claimed subject matter would have been obvious at
the time Appellants made their invention from the disclosure of Chen
considered with Henry and Harcuba.
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OPINION
Appellants have chosen to make no argument concerning the separate
patentability of any dependent claim. Rather, Appellants have chosen to
limit their discussion of the alleged error committed by the examiner in
rejecting Appellants’ claims to the rejection of claim 1. Accordingly, we
shall limit our review solely to the rejection of and patentability under 35
U.S.C. § 103 of claim 1.
Appellants set forth three arguments in their brief which they urge
support a finding that the Examiner erred in determining that the subject
matter of claim 1 would have been obvious in the sense of the statute from
the disclosure of Chen considered with Henry. The three reasons are set
forth on pages 6 through 8 of Appellants’ Brief. For reasons which follow,
we find that the Examiner correctly determined that the subject matter of
claim 1 would have been obvious to the hypothetical person of ordinary skill
in the art at the time Appellants made their invention and we also find that
Appellants’ arguments do not persuade us that the Examiner erred in his
determination.
The Examiner has relied specifically on the description in Chen of a
glass making process as embodied in Fig. 3 of Chen. The furnace 309 in
Chen burns a mixture of natural gas and oxygen-rich gas. Hot waste gas
from the combustion in the furnace is cycled directly to the “recuperator”
320 where it is cooled with compressed air. The heated compressed air is
then expanded through an “expander” 324 to generate power (shaft power or
electricity). Electricity generated by the expander may be used to boost the
power to the glass-making furnace. The exhaust gas from the glass-making
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furnace may be used to preheat cullet via line 331 for mixing with the batch
glass and then the mixture may be added to the glass-making furnace.
Appellants urge that Chen does not render the claimed method
obvious in the sense of the statute because Chen does not teach or suggest a
“heat engine” receiving hot combustion gases directly from the combustion
of compressed oxidizing gas and a fuel in a combustion chamber. We
disagree. The disclosure in Chen of combusting an oxidizing gas and fuel in
the glass-making furnace is clear and unequivocal. Likewise, hot combustion
gases from the glass-making furnace are cycled to the “recuperator”,
“expander” and “compressor” where sensible waste heat from the exhaust
gas stream is recovered and cycled to other uses in the process, including
generating power and preheating the cullet used for making the glass.
Appellants’ argument that the “recuperator” in Chen is not a “heat
engine” as required by claim 1 finds no support in the record. There are two
disclosures in Appellants’ Specification that describe the claim term “heat
engine.” The first at page 1, lines 29 through 35, describes a device for
generating electricity using a drive that is powered by a “heat engine.” The
“heat engine” is described as for generating electricity by “using the waste
hot gases exhausted from the heat engine, such as a gas turbine, with or
without a heat exchanger, to preheat glass batch, or one or more of the
ingredients for a glass batch.” At page 3, lines 11 through 13 of the
Specification, Appellants define a “heat engine” as including “a gas turbine
or any other type of engine that uses hot gases to provide power to turn an
electrical generator.” Thus, there is no adequate disclosure in Appellants’
Specification that would limit the “heat engine” of claim 1 to a gas turbine.
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Indeed, as the Examiner has observed, Appellants’ reliance on a dictionary
definition for “heat engine” as “a machine for powering equipment, a
machine that converts energy into mechanical power or motion” (Brief page
5, lines 11 through 15) is sufficiently broad and non-specific as to include
the apparatus in Chen, the "recuperator", the "compressor" and the
"expander", which the Examiner considers to be the “heat engine” in Chen’s
process.
Appellants’ criticism of Henry as failing to teach or suggest a “heat
engine” receiving directly oxidizing gas and a fuel in a combustion chamber
is also founded on Appellants’ incorrect interpretation of “heat engine” in
claim 1 as limited to a gas turbine. Moreover, contrary to Appellants’
argument that the “heat engine” of claim 1 directly receives oxidizing gas
and a fuel (see the sentence bridging page 6 and 7 of the Brief)
mischaracterizes the language of claim 1. The “heat engine” of claim 1 does
not receive directly or otherwise oxidizing gas and fuel, rather the “heat
engine” of claim 1 receives hot combustion gases from the combustion
chamber and it is the combustion chamber, not the “heat engine”, which
receives the mixture of oxidizing gas and fuel.
The furnace depicted in the figure in Henry is a combustion chamber
as claimed and the combustion therein is fueled by combusting a mixture of
combustion air and fuel as required by claim 1. The exhaust gases from the
combustion of the fuel/air mixture in Henry may be used in a heat exchange
arrangement to heat the fresh raw material for making glass or for
recuperating their heat for any other purpose. Column 3, lines 20 through 27.
The exhaust gases from the combustion in Henry may also be connected to
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one or more heat exchangers for preheating the fuel gas and/or combustion
air and may be combined with a mechanical device, such as a gas turbine in
order to supply energy necessary for compressing the fuel gas and/or
combustion air. Column 3, line 74 through column 4, line7. Thus, we find
Appellants’ arguments concerning the disclosure of Henry to be
unpersuasive.
Appellants’ second argument urging that the Examiner erred by
relying on the disclosure in Chen is founded on Appellants’ theory that the
“recuperator” of Chen is not a “heat engine” as required by the claim 1.
Brief page 7. The Examiner’s position on this issue has been consistently
represented to Appellants throughout the prosecution and again in his
Answer. Specifically, the Examiner observes in his Answer that it has never
been his position that the “recuperator” is the “heat engine” in Chen or that
the “recuperator” in Chen meets the limitation in claim 1 for a “heat engine.”
Rather the Examiner’s position is that the “recuperator” is part of three
elements described in Chen (“recuperator”, “compressor”, and “expander”)
that the Examiner has construed as meeting the “heat engine” limitation in
claim 1. Appellants have failed to even address, let alone rebut, the
Examiner’s stated position in their Brief. As we explained above,
Appellants’ disclosure specifically provides for using the “heat engine” with
or without a heat exchanger, to preheat glass batch, or one or more of the
ingredients for a glass batch. We agree with the Examiner’s unrebutted
finding that the “recuperator”, “expander”, and “compressor” described in
Chen together form a “heat engine” as required by claim 1 and use the hot
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exhaust gases to generate power and preheat cullet or glass batch for the
glass-making process.
Finally, Appellants argue that neither Chen nor Henry teach using
“the waste hot gases coming from a heat engine to preheat one or more
ingredients of a glass batch.” Brief page 8. Once again, this argument is
based on Appellants’ unduly restrictive definition of “heat engine” as
denoting only a gas turbine. For reasons set forth fully above, there is no
basis in this record for restricting the term “heat engine” to only a gas
turbine.
We are satisfied from the disclosure of Chen and Henry that the
hypothetical glass-making process engineer of ordinary skill in the art would
have been motivated at the time Appellants made their invention to recover
as much excess sensible waste heat generated in the glass-making process as
possible and to recycle such excess sensible waste heat back into the process
based on both process efficiency and economic savings. We are also
satisfied from the disclosure in Chen and Henry that the hypothetical person
of ordinary skill in the art would have found Appellants’ process to be
obvious in the sense of the statue.
The decision of the Examiner 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)(1)(iv).
AFFIRMED

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