Ex Parte Sexton et al

Board of Patent Appeals and Interferences

Oct 12, 2010

11541339 (B.P.A.I. Oct. 12, 2010)

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.
11/541,339 09/29/2006 Jeff Sexton 06040/6720AUS 2435
20879 7590 10/13/2010
EMCH, SCHAFFER, SCHAUB & PORCELLO CO
P O BOX 916
ONE SEAGATE SUITE 1980
TOLEDO, OH 43697
EXAMINER
SINGH, PREM C
ART UNIT PAPER NUMBER
1771
MAIL DATE DELIVERY MODE
10/13/2010 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte JEFF SEXTON and BRIAN K. WILT
____________

Appeal 2010-000097
Application 11/541,339
Technology Center 1700
____________

Before EDWARD C. KIMLIN, CHARLES F. WARREN, and
MARK NAGUMO, Administrative Patent Judges.

KIMLIN, Administrative Patent Judge.

DECISION ON APPEAL1
This is an appeal from the final rejection of claims 1, 3-13, and 15-22.
We have jurisdiction under 35 U.S.C. § 6(b).
Claim 1 is illustrative:

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.
Appeal 2010-000097
Application 11/541,339

1. A process for controlling on line FCC effluent exhibiting
asorption [sic, absorption] in the near infrared (NIR) region comprising:

a) measuring absorbances of the effluent using an NIR
spectrometer measuring absorbances at wavelengths within the range of
about 780-4000 nm, and outputting an emitted signal indicative of said
absorbance;

b) subjecting the NIR spectrometer signal to a mathematical
treatment of the emitted signal;

c) processing the emitted signal or the mathematical treatment
using a defined model to determine the chemical or physical properties of
the effluent and outputting a processed signal; and

d) controlling on-line in response to the processed signal, at
least one parameter of an FCC process generating the effluent; wherein the
step of controlling on-line allows for real time optimization processing; and

e) using NIR measuring on line to control reacton [sic, reaction]
mixing sampling (RMS) on line.

The Examiner relies upon the following reference as evidence of
obviousness (Ans. 2):
Descales 6,070,128 May 30, 2000

Appellants’ claimed invention is directed to a process for controlling
online FCC (fluid catalytic cracking) effluent by measuring absorbances of
the effluent using an NIR (near infrared) spectrometer. A signal is emitted
indicative of the absorbance which is subjected to a mathematical treatment
to determine the chemical or physical properties of the effluent. A process
signal is outputted to control on-line at least one parameter of the FCC
process which generates the effluent. Also, the NIR measuring is used to
control reaction mixing sampling (RMS). According to Appellants, RMS
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Appeal 2010-000097
Application 11/541,339

collects reaction mixture or vapor stream samples from points in the reactor
other than the overhead line (see App. Br. 8, first para.).
Appealed claims 1, 3-13, and 15-22 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Descales.
Appellants do not present separate arguments for any particular claim
on appeal. Accordingly, these claims stand or fall together with claim 1.
We have thoroughly reviewed each of Appellants’ arguments for
patentability. However, we are in complete agreement with the Examiner
that the claimed subject matter would have been obvious to one of ordinary
skill in the art within the meaning of § 103 in view of the applied prior art.
Accordingly, we will sustain the Examiner’s rejection for the reasons set
forth in the Answer and we add the following for emphasis.
Descales, like Appellants, discloses a process for controlling on-line
FCC effluent by measuring absorbances of the effluent using an NIR
spectrometer and outputting an emitted signal indicative of the absorbance,
which signal is subjected to a mathematical formula to determine the
properties of the effluent, and using such determination to control on-line a
parameter of the FCC process.
Appellants dispute many of the factual findings of the Examiner but
fail to present explanations for why the portions of Descales cited by the
Examiner do not support the findings. In essence, Appellants dispute the
Examiner’s findings without presenting a countervailing rationale. For
instance, Appellants contend that Descales does not disclose real time
optimization for controlling FCC processing on-line for the refining industry
(App. Br. 4, fourth para.). However, as pointed out by the Examiner,
Descales expressly teaches that the process can be used to control an FCC
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Appeal 2010-000097
Application 11/541,339

process (col. 10, ll. 10-17), and that the process provides on-line control (see
EXAMPLE 6). We also find no merit in Appellants’ argument that nowhere
does Descales “disclose or suggest a process for controlling on-line FCC
effluent using near infrared (NIR)” (App. Br. 4, fifth para.). As noted by the
Examiner, Descales exemplifies an NIR process (see EXAMPLE 6), and
teaches absorption of wavelengths within the claimed range for measuring
the feed or product of the process (col. 2, ll. 47 et. seq.).
As acknowledged by the Examiner, Descales does not expressly teach
using NIR measuring to control reaction mixing sampling (RMS). However,
we agree with the Examiner that the Descales process of using NIR
absorption of feed and product effluent to provide on-line control of the
process and product would have suggested measuring conditions and
reactions elsewhere in the process for controlling the quality of the ultimate
product.
Appellants also contend that “[a]ny controlling disclosed by Descales
is conceptual” (Reply Br. 3, first para.). However, Appellants have
presented no evidence that the Descales disclosure would have been
understood by a person having ordinary skill in the art as being” only
conceptual in nature,” nor have Appellants proffered any objective evidence
that Caci would not have suggested implementation of the concepts taught.
Also, Appellants present no argument based upon objective evidence of non-
obviousness, such as unexpected results.
In conclusion, based on the foregoing, the Examiner’s decision
rejecting the appealed claims 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) (2008).
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Appeal 2010-000097
Application 11/541,339

AFFIRMED

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EMCH, SCHAFFER, SCHAUB & PORCELLO CO
P O BOX 916
ONE SEAGATE SUITE 1980
TOLEDO, OH 43697
5