Ex parte Stippick

Board of Patent Appeals and Interferences

Aug 31, 2000

08430937 (B.P.A.I. Aug. 31, 2000)

1
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(2) is not binding precedent of the Board.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. 17
UNITED STATES PATENT AND TRADEMARK OFFICE
__________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________
Ex parte JOHN STIPPICK
__________
Appeal No. 1998-2242
Application No. 08/430,937
__________
ON BRIEF
__________
Before PATE, GONZALES, and BAHR, Administrative Patent Judges.
PATE, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal from the final rejection of claims 3
through 6, 10 and 12 through 18. These are the only claims
remaining in the application.
The claimed invention is directed to a method for
supporting a tray in a mass or heat transfer apparatus such as
Appeal No. 1998-2242
Application No. 08/430,937
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a distillation or flash column at an oil refinery.
Claim 15, reproduced below, is further illustrative of
the claimed subject matter.
15. A method of providing support to a tray comprised of
one or more tray panels, said method comprising providing each
said tray panel with equidistantly spaced stiffeners located
perpendicular to and connected to the bottom surface of said
tray panel and positioned in a manner that said stiffeners
cooperate to form a continuous and orthogonal grill under said
tray.
The references listed below have been relied upon by the
examiner to support rejections under sections 102 and 103:
Kohn 2,664,280 Dec. 29,
1953
Thrift 3,056,592 Oct. 2, 1962
DiNicolantonio et al. 4,133,852 Jan. 9, 1979
(DiNicolantonio)
Matsumoto et al. 5,431,366 Jul. 11, 1995
(Matsumoto) (filed Apr. 28, 1994)
The admitted prior art as set forth on pages 5 through 6 of
the instant specification and Figure 2.
THE REJECTIONS
Claim 4 stands rejected under 35 U.S.C. § 112, second
paragraph, as being indefinite for failing to particularly
point out and distinctly claim the subject matter which
appellant regards as the invention.
Appeal No. 1998-2242
Application No. 08/430,937
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Claims 3 through 6, 10 and 12 through 18 stand rejected
under 35 U.S.C. § 102(b) as anticipated by DiNicolantonio.
The examiner states this rejection thusly:
DiNicolantonio et al. who teach a method (see Fig. 3
paragraph bridging columns 3 and 4) for providing
support for a gas-liquid mass transfer contact tray
wherein the tray comprises at least one or more tray
panels (40,42), said method comprising a step of
providing for each of said tray panels with a
plurality of equidistantly spaced stiffeners (50)
wherein the stiffeners (50) in each tray panel are
located perpendicular to and connected to the bottom
surface of the tray panel, and wherein the
stiffeners in each tray panel are further positioned
to define a continuous and orthogonal grill under
each said tray panel or the tray. It is further
clear that the tray of DiNicolantonio et al. is
perforated and circular, comprises a sealing ring
(26) and does not have a support beam. [examiner’s
answer, page 6].
Claims 3 through 6, 10 and 12 through 18 stand rejected
under 35 U.S.C. § 103 as unpatentable over DiNicolantonio or
Thrift taken with admitted prior art found on pages 5 and 6
and in Figure 2 of appellant’s specification. The examiner’s
factual findings with respect to DiNicolantonio have been
reproduced above. With respect to Thrift, the examiner states
that Thrift teaches a method comprising a step of providing
for each tray panel of a perforated tray of a gas liquid mass
transfer column a plurality of stiffeners which reinforce the
Appeal No. 1998-2242
Application No. 08/430,937
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mass transfer tray without using conventional supporting
beams. Thus, the examiner concludes that it would have been
obvious to modify the prior art method disclosed on pages 5
and 6 and Figure 2 by providing for
one or more mass transfer tray panels a plurality of
stiffeners, as taught by Thrift, without using additional
support beams to support the contact tray.
Claims 3 through 6, 10 and 12 through 18 stand rejected
under 35 U.S.C. § 103 as unpatentable over DiNicolantonio and
Thrift and the admitted prior art, as in the previous
rejection, further in view of either Matsumoto or Kohn.
According to the examiner, Kohn teaches a method for
supporting a contact tray by providing additional reinforcing
stiffeners in the form of a continuous orthogonal grill. On
the other hand, Matsumoto is said to provide a reinforcement
grill of continuous orthogonal shape to provide support for a
large panel. The examiner concludes that it would have been
obvious to modify the admitted prior art with either
DiNicolantonio or Thrift as discussed above, further in view
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Application No. 08/430,937
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of the orthogonal grill as taught by Matsumoto or Kohn.
OPINION
We have carefully reviewed the rejections on appeal in
light of the arguments of the appellant and the examiner. As
a result of this review, we have reached the conclusion that
the applied prior art of DiNicolantonio establishes the lack
of novelty of claims 3, 10, 12, 13, 15 and 16. This prior art
reference does not anticipate claims 4, 5, 6, 14, 17 and 18.
We also affirm the rejection of claim 4 under 35 U.S.C. § 112.
We further have determined that the examiner has not
established the prima
facie obviousness of any of the appealed claims. Therefore,
all rejections under 35 U.S.C. § 103 will be reversed. Our
reasons follow.
With reference to DiNicolantonio, we agree with the
examiner’s finding of fact that DiNicolantonio discloses a
tray comprised of at least one tray panel 40, which tray panel
has beneath it an orthogonal grill of stiffeners. We further
note that the “comprising” and “comprised” language, of claim
15 is open-ended. Thus, the tray of claim 15 can be
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Application No. 08/430,937
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considered as formed of one tray panel or a multitude of tray
panels. Therefore, the tray of claim 15 could be merely the
tray panel 40 disclosed in DiNicolantonio. Appellant argues
in the reply brief that the only proper interpretation of the
language of the appealed claim is that “a tray that was
comprised of only one panel would have the tray panel comprise
continuous orthogonal stiffeners which form the orthogonal
grill under the entire tray.” We agree. Inasmuch as the
claim defines a tray as comprising one or more tray panels,
the tray panel 40 of DiNicolantonio is considered a tray
consistent with the language of the claim. Additionally, we
must point out that the expression “a tray,” comprised of only
one panel is somewhat contradictory in that “comprised” is an
open-ended expression. Furthermore, while it is true that a
tray comprised of two panels would have each panel having
their required stiffeners, claim 15 has a broader scope, in
that a tray could be merely one panel. For this reason, we
affirm the § 102 rejection of claims 3, 10, 12, 13, 15 and 16.
With respect to claim 4, we similarly affirm the 35
U.S.C.
§ 112 rejection of this claim, inasmuch as this claim has not
Appeal No. 1998-2242
Application No. 08/430,937
We note that claim 14 refers to “said trays.” However,1
only one tray has been positively recited previously in this
claim’s chain of dependency. This minor error should be
corrected in any further prosecution before the examiner.
7
been argued or treated by the appellant, in any way, in the
appeal brief.
With respect to claims 4, 5 and 6, we do not affirm the
anticipation rejection of these claims, inasmuch as
DiNicolantonio does not show a ripple tray, the manway tray
being circular, or having baffle means. With respect to claim
14, DiNicolantonio does not disclose a method wherein there
are no supporting beams for any of the trays.1
As to claims 17 and 18, DiNicolantonio does not disclose
this claimed process of retrofitting existing process columns.
Therefore, the rejection of claims 17 and 18 under 35 U.S.C.
§ 102 is not sustained.
Turning to the obviousness rejections, whether based on
DiNicolantonio and the admitted prior art in view of Thrift or
based on DiNicolantonio, the admitted prior art, Thrift, Kohn
and Matsumoto all taken together, we will not sustain these
Appeal No. 1998-2242
Application No. 08/430,937
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rejections. In our view, there is no suggestion or motivation
for combining the references of the applied prior art. In
fact, it is only by picking and choosing features from all the
prior art that the examiner can arrive at the claimed
invention. In our view, this picking and choosing is clearly
based on impermissible hindsight analysis of the claimed
subject matter. Therefore, the obviousness rejections are not
sustained.
SUMMARY
The rejection of claim 4 under 35 U.S.C. § 112 is
affirmed. The rejection of claims 3, 10, 12, 13, 15 and 16
under 35 U.S.C. § 102 has been sustained.
The rejection of claims 4, 5, 6, 14, 17 and 18 under 35
U.S.C. § 102 has not been sustained.
Finally, the rejections of claims 3 through 6, 10 and 12
through 18 under 35 U.S.C. § 103 have not been sustained.
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
Appeal No. 1998-2242
Application No. 08/430,937
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William F. Pate )
Administrative Patent Judge )
)
)
)
John F. Gonzales ) BOARD OF
PATENT
Administrative Patent Judge ) APPEALS AND
) INTERFERENCES
)
)
Jennifer D. Bahr )
Administrative Patent Judge )

WFP:tdl
Appeal No. 1998-2242
Application No. 08/430,937
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Alan B. Clement
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