Ex Parte Suchak

Patent Trial and Appeal Board

Dec 30, 2016

13590424 (P.T.A.B. Dec. 30, 2016)

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.
13/590,424 08/21/2012 Naresh J. Suchak P11A039 9209
20411 7590 12/30/2016
The Linde Group
200 Somerset Corporate Blvd.
Suite 7000
Bridgewater, NJ 08807
EXAMINER
NASSIRI MOTLAGH, ANITA
ART UNIT PAPER NUMBER
1734
MAIL DATE DELIVERY MODE
12/30/2016 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 NARESH J. SUCHAK
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Appeal 2015-006584
Application 13/590,424
Technology Center 1700
____________________

Before ROMULO H. DELMENDO, JULIA HEANEY, and
JENNIFER R. GUPTA, Administrative Patent Judges.

GUPTA, Administrative Patent Judge.

DECISION ON APPEAL1
Appellant2 appeals under 35 U.S.C. § 134(a) from the Examiner’s
decision finally rejecting claims 1, 4–6, 8, 9, 12–14, 16–18, 27, 28, and 30–
35. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
The subject matter on appeal relates to methods for improving nitric
acid production processes by lowering nitrogen oxide emissions from tail
gas streams. Spec. ¶ 2. Claim 1, reproduced below with key disputed

1 In this decision, we refer to the Final Office Action mailed July 7, 2014
(“Final Act.”), the Appeal Brief filed January 30, 2015 (“Br.”), and the
Examiner’s Answer mailed June 16, 2015 (“Ans.”).
2 Appellant identifies the real party in interest as Linde AG. Br. 3.
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limitations highlighted in italicized text, is illustrative of the claims on
appeal.
1. A method for lowering nitrogen oxides emissions from a tail
gas stream of a nitric acid production process wherein nitric
acid is recovered from a multistage absorber column
comprising adding ozone to the final absorption stages of said
absorber column, wherein the ozone contacts the nitrogen
oxides in the gas phase.
Br. 31 (Claims Appendix).
DISCUSSION
Claims 1, 4–6, 8, 9, 12–14, 16–18, and 27–35 stand rejected under
35 U.S.C. § 103(a) as unpatentable over Gubanc et al. (US 5,151,258, issued
Sept. 29, 1992) in view of Suchak et al., Simulation and Optimization of NOx
Absorption System in Nitric Acid Manufacture, 40 AMERICAN INSTITUTE OF
CHEMICAL ENGINEERS 944–956 (1994).3
Upon consideration of the evidence on this appeal record and each of
Appellant’s contentions, we find that the preponderance of evidence
supports the Examiner’s conclusion that the subject matter of Appellant’s
claims is unpatentable over the applied prior art. We sustain the Examiner’s

3 Although the statement of the rejection of claims 27–35 in the Final Action
(Final Act. 13) relies on Suchak in view of Gubanc in combination with
Johnson et al. (US 2007/0154372 A1, published July 5, 2007), the body of
the rejection only relies on Suchak and Gubanc. Thus, we treat the
Examiner’s inclusion of Johnson in the statement of the rejection to be
harmless error. The error was corrected by the Examiner in the statement of
the rejection of claims 27–35 on page 2 of the Answer.

The rejection of claims 1, 4–6, 8, 9, 12–14, and 16–18 under 35 U.S.C.
§ 112, first and second paragraphs, on pages 3–4 of the Final Office Action
were withdrawn in the Examiner’s Answer. Ans. 3.
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§ 103 rejection essentially for the reasons set out by the Examiner in the
Final Action, and the Examiner’s Answer.
We add the following.
The Examiner finds that Gubanc teaches a method for reducing
nitrogen (NOx) emissions through the addition of hydrogen peroxide in the
aqueous liquid of an absorber column. Final Act. 4, citing Gubanc Abstract.
The Examiner finds that Gubanc teaches that hydrogen peroxide contacts the
nitrogen oxides in the gas phase. Final Act 5, citing Gubanc 2:45–49. The
Examiner finds that Gubanc teaches that compounds other than hydrogen
peroxide, such as ozone, can be used as the chemical agent in the absorber
column. Final Act. 4–5, citing Gubanc 3:27–30.
Although the Examiner acknowledges that Gubanc does not explicitly
teach the chemical agent (hydrogen peroxide or ozone) is added to the final
stages of the absorber column, the Examiner finds that Gubanc teaches “the
use of chemical treatment agents in absorber columns to accommodate for
peak evolution of NOx” and “[i]t is desirable to add chemical agents only as
needed, typically just prior to increases in NOx emissions.” Final Act. 5,
citing Gubanc 1:29–32; Gubanc 1:38–40. The Examiner determines, based
on Gubanc’s teachings, that it would have been obvious to add ozone to the
final absorption stages “to minimize the amount of ozone used and only use
an amount needed for removal of residual NOx not removed by the aqueous
liquor (i.e., water alone).” Final Act. 5.
The Examiner also acknowledges that Gubanc does not explicitly
teach that the effluent is a tail gas stream of a nitric acid production where
nitric acid is recovered from a multistage absorber column. Final Act. 6.
The Examiner, however, finds that Suchak teaches the use of an absorption
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column for the manufacture of nitric acid wherein NOx gas is absorbed in
water. Final Act. 6, citing Suchak Abstract and 944 (Introduction). The
Examiner also finds that Suchak teaches using a multistage absorber column
in its process to increase nitrogen oxide removal and obtain a desired
concentration of nitric acid. Final Act. 6, citing Suchak 945 (item (3)). The
Examiner determines, and Appellant does not dispute, that it would have
been obvious to one of ordinary skill in the art, at the time the invention was
made, to use Suchak’s multistage absorber column for the production of
nitric acid and contact nitrogen oxides in the gas phase with ozone in the
final absorption stages of the absorption column, as taught by Gubanc,
because both Suchak’s absorber for nitric acid production and Gubanc’s
absorber both use water to remove nitrogen oxides from a gaseous stream.
Final Act. 6.
Appellant presents three principal arguments in response to the
Examiner’s rejections of claims 1, 4–6, 8, 9, 12–14, 16–18, and 27–35. We
address each in turn.
First, Appellant argues that it would not have been obvious to one of
ordinary skill in the art, based on the teachings of Gubanc, to add ozone to
the final absorption stages of the absorber column, as in claims 1 and 9 (see
Br. 21).
The Examiner reasonably finds that Gubanc would have motivated
one of ordinary skill in the art to add the ozone to the final absorption stages
of the absorption column to minimize the amount of ozone used and to
remove nitrogen oxide not removed by water alone. Final Act. 5, citing
Gubanc 1:29–32, 1:38–40, and 3:64–66; see also Ans. 5–6. Appellant’s
conclusory statement that the Examiner’s proposed modification would not
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have been obvious fails to address the Examiner’s specific findings and
conclusions concerning Gubanc. Accordingly, it fails to persuade us of
reversible error in the Examiner’s rejection.
Next, Appellant argues that Gubanc and Suchak teach adding ozone to
the aqueous liquor in the aqueous phase, not contacting nitrogen oxides in
the gas phase as in claims 1, 9, and 27 (see Br. 21–22, and 27).
During prosecution, an applicant’s claims are given their broadest
reasonable scope consistent with the specification. In re Am. Acad. of Sci.
Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). The words used in a claim
must be read in light of the specification, as it would have been interpreted
by one of ordinary skill in the art at the time of the invention. Id.
For the reasons given in the Answer, we agree with the Examiner that
claims 1 and 9, when given their broadest reasonable interpretation
consistent with the Specification, only require that “nitrogen oxides in the
gas phase are contacted with the ozone,” either in a gaseous or aqueous
phase. See Ans. 4. This interpretation is supported by paragraphs 31 and
49–50 of the Specification, which teach that the process gas stream that
contains nitrogen oxides is introduced into the absorber column at the
bottom and rises upward to contact the aqueous stream of process water that
is introduced and flows downward from the top of the column where ozone
is introduced, and paragraph 53 of the Specification, which teaches that
ozone can be introduced into either the vapor space or aqueous medium.
As the Examiner points out, Gubanc teaches the nitrogen oxides are in
the gas phase when contacted with the aqueous liquor containing ozone.
Final Act. 4–5, citing Gubanc 2:45–49 (teaching the aqueous liquor flowing
down the absorber column and contacting a rising gaseous effluent
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containing NOx) and 3:27–30 (teaching that ozone rather than hydrogen
peroxide can be added to the aqueous liquor in the absorber column). Thus,
Appellant’s argument fails to identify reversible error in the Examiner’s
rejection.
Finally, Appellant argues that neither Gubanc nor Suchak teaches the
nitrogen oxides are converted into their pentavalent state forming N2O5 (see
Br. 22). This argument is not persuasive of reversible error in the
Examiner’s rejection because it is not commensurate in scope with the
claims. See In re Self, 671 F.2d 1344, 1348 (CCPA 1982) (stating that
limitations not appearing in the claims cannot be relied upon for
patentability).
DECISION
For the above reasons, the Examiner’s rejections of claims 1, 4–6, 8,
9, 12–14, 16–18, and 27–35 are 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).

AFFIRMED