13094532 (P.T.A.B. Feb. 29, 2016)

Ex Parte Ryan et al

Patent Trial and Appeal BoardFeb 29, 2016

13094532 (P.T.A.B. Feb. 29, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/094,532 04/26/2011 28395 7590 03/02/2016 BROOKS KUSHMAN P,CJFG1L 1000 TOWN CENTER 22NDFLOOR SOUTHFIELD, MI 48075-1238 FIRST NAMED INVENTOR Patrick Ryan 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. 83192759 1816 EXAMINER AKRAM, IMRAN ART UNIT PAPER NUMBER 1725 NOTIFICATION DATE DELIVERY MODE 03/02/2016 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): docketing@brookskushman.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Exparte PATRICK RYAN, JEFFREY WHITE, and MARK WHERRETT Appeal2015-004680 Application 13/094,532 Technology Center 1700 Before JEFFREY T. SMITH, GEORGE C. BEST, and JULIA HEANEY, Administrative Patent Judges. BEST, Administrative Patent Judge. DECISION ON APPEAL The Examiner finally rejected claims 1-18 of Application 13/094,532. Final Act. (May 15, 2013). Appellants 1 seek reversal of these rejections pursuant to 35 U.S.C. Â§ 134(a). We have jurisdiction under 35 U.S.C. Â§ 6(b ). For the reasons set forth below, we REVERSE. 1 DTE Energy is identified as the real party in interest. Appeal Br. 1. Appeal2015-004680 Application 13/094,532 BACKGROUND The '532 Application describes methods and devices for converting Volatile Organic Compounds (VOCs) into energy. Spec. 1. In particular, the Specification describes a method the concentrates a dilute hydrocarbon gas using a concentrator into a concentrated fuel. Id. The concentrated fuel is then reformed and used to power an energy conversion device. Claim 1 is representative of the '532 Application's claims and is reproduced below: 1. A method of making a reformate comprising; [sic, : ] concentrating a dilute gaseous voe stream into a concentrated voe fuel; and reforming said concentrated voe fuel into said re formate. Appeal Br. Claims App. 1. REJECTIONS On appeal, the Examiner maintains the following rejections: 1. Claims 1, 2, and 12-15 are rejected under 35 U.S.C. Â§ 102(b) as anticipated by Spiegel.2 Final Act. 2. 2. Claims 1-12 and 17 are rejected under 35 U.S.C. Â§ 103(a) as unpatentable over the combination of Irvine3 and Spiegel. Final Act. 4. 2 US 5,451,249, issued September 19, 1995. 3 US 5,730,860, issued March 24, 1998. 2 Appeal2015-004680 Application 13/094,532 3. Claim 16 is rejected under 35 U.S.C. Â§ 103(a) as unpatentable over the combination of Spiegel and Ryan. 4 Final Act. 6. 4. Claim 18 is rejected under 35 U.S.C. Â§ 103(a) as unpatentable over the combination of Spiegel and Van Egmond. 5 Final Act. 6. DISCUSSION Appellants present a single argument for reversal of each of the rejections asserted by the Examiner. See Appeal Br. 2-3. Because this argument is based upon limitations present in claim 1, we shall confine our analysis to claim 1. Dependent claims 2-18 stand or fall with claim 1. The Examiner found that Spiegel anticipates claim 1. Final Act. 2-3 (citing Spiegel col. 2, 11. 27-31 ). As the Examiner found, Spiegel describes a method for treating landfill gas to purify it and convert it into a hydrogen source for a fuel cell. Spiegel col. 1, 11. 11-15. Landfill gas, the gas produced by the decay of garbage within a landfill, is comprised of methane, heavier hydrocarbons, carbon dioxide, nitrogen, other organic compounds, hydrogen sulfide, and water vapor. Id. at col. 1, 11. 18-24. In Spiegel's process, the landfill gas is treated to remove hydrogen sulfide, water vapor, and heavy hydrocarbon contaminants. Id. at col. 3, 11. 5-55. The purified landfill gas is then subjected to a steam reforming process. Id. at col. 2, 11. 27-31. The reformate is used as a hydrogen source to power a fuel cell. Id. atcol.1,11.11-15. The Examiner's finding that Spiegel anticipates claim 1 necessarily requires a finding that methane is a VOC. On the other hand, Appellants 4 US 2003/0202914 Al, published October 30, 2003. 5 US 2004/0102669 Al, published May 27, 2004. 3 Appeal2015-004680 Application 13/094,532 argue that the rejection of claim 1 should be reversed because the Examiner erroneously concluded that methane is a voe as that term is used in the '532 Application's claims. Appeal Br. 2. Thus, the interpretation of the claim term "VOC" is dispositive of this appeal. During prosecution, the PTO gives the language of the proposed claims "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, 1054-55 (Fed. Cir. 1997). Appellants argue that they are entitled to be their own lexicographer. Reply Br. 2. In particular, the Appellants argue that a person of ordinary skill in the art would have understood the term voe as used in the '532 Application's claims as having the definition set forth in 40 C.F.R. Â§ 51.1 OO(s ). Appeal Br. 2. This regulatory provision defines the term VOC and specifically states that methane is not a VOC. Id. The Examiner responds that the term V OC is not defined in the Specification. Answer 5. The Examiner, therefore, construed the term VOC as encompassing methane. Id. We agree with the Examiner that Appellants have not defined the term VOC in their Specification. When an applicant chooses to act as a lexicographer, the novel definition must be indicated clearly. Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996). In this case, the '532 Application's Specification does not provide any indication that the term voe is being defined in any particular manner. We also are unpersuaded by Appellants' argument that a person of ordinary skill in the art would have understood that the term voe as used in 4 Appeal2015-004680 Application 13/094,532 the Specification had the definition set forth in the regulation cited by Appellants. Appellants have not identified the particular art to which their application pertains. Nor have Appellants explained the qualifications and background of a person of ordinary skill in this art. Finally, Appellants have not provided any explanation or other support for their argument that a person of ordinary skill in the art would have understood that the Specification used the term voe as defined in the particular regulation Appellants cite. Nevertheless, we reverse because the Examiner erred in construing the term VOe. The Examiner stated that "Appellant has not defined VOe in the instant specification and so it is given its broadest, reasonable interpretation." Answer 5. The Examiner's standard is incorrect because terms in a patent application's claims are to be given their broadest reasonable interpretation consistent with the specification. Morris, 127 F.3d at 1054-55. Here, the Specification discusses Spiegel. In so doing, the Specification clearly distinguishes the natural gas-i.e., methane- component of landfill gas from the voe component: [Spiegel] teaches a device and method to supply a gas stream from a landfill to be used as the fuel source of a fuel cell. The natural gas component of the landfill gas is desirable and the voe contained in the landfill gas is removed and is not used to supply fuel to the fuel cell. [Spiegel] describes heavy hydrocarbons as contaminant fractions that must be removed from the gas stream prior to reforming. Rather than teaching that the voe is a contaminant, the present invention utilizes these hydrocarbons as the feedstock for the reformer. Spec. 3. 5 Appeal2015-004680 Application 13/094,532 We conclude that a person of ordinary skill in the art at the time of the invention would have read the above-quoted portion of the Specification and reasonably understood that the Specification uses the term VOC in a manner such that methane is not considered a VOC. Because the Examiner's interpretation of the term VOC is inconsistent with the Specification, it is erroneous. In view of the foregoing, we conclude that the proper interpretation of the term VOC in the context of the '532 Application does not encompass methane. Thus, we reverse the rejection of claim 1 as anticipated by Spiegel. Accordingly, we also reverse the rejections of dependent claims 2- 18. CONCLUSION For the reasons set forth above and based upon the record before us, we reverse the rejections of claims 1-18 of the '532 Application. REVERSED 6