Ex Parte Thomsen

Patent Trial and Appeal Board

Dec 18, 2012

11578197 (P.T.A.B. Dec. 18, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte KENT THOMSEN
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Appeal 2010-005956
Application 11/578,197
Technology Center 3700
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Before: PHILLIP J. KAUFFMAN, CHARLES N. GREENHUT, and
MICHAEL C. ASTORINO, Administrative Patent Judges.

KAUFFMAN, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134 from a rejection of claims 9-
29. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm-in-part.

The Invention
Appellant’s claimed invention relates to an apparatus and method for
incineration of combustible waste during the manufacture of cement clinker.
Spec. 1:3-19. Claims 9, 27, and 28 are the independent claims on appeal,
and claim 9, reproduced below, is illustrative of the claimed subject matter:
9. A method for incineration of combustible waste during the
manufacture of cement clinker comprising:
preheating cement raw meal in a preheater system with or
without a calciner;
burning the preheated cement raw material to form
clinker in a kiln;
cooling the clinker in a subsequent clinker cooler;
introducing waste to a waste inlet of a compartment in
communication with the kiln and supporting the waste on a
supporting surface incorporated in the compartment;
actively transporting the waste while simultaneously
subjecting the waste to incineration through the compartment to
an outlet of the compartment, wherein at least a part of the
incineration of the waste in the compartment takes place in a
sub-stoichiometric atmosphere;
venting hot exhaust gases produced in connection with
the incineration of the waste to the preheater system for heating
the cement raw meal;
extracting slag generated during the waste incineration
process from the compartment; and
introducing exhaust gases from the kiln containing NOx
into and through the compartment in counterflow to the waste
stream.
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Evidence Relied Upon
Ogawa
Evans
Helm
US 4,627,877
US 6,210,154 B1
EP 1 200 778 B1
Dec. 9, 1986
Apr. 3, 2001
Mar. 24, 2004

The Rejections
The following rejections are before us on appeal:
I. Claims 9, 10, 13, 14, 20, 21, 23, 24, and 26 under 35 U.S.C. § 102(b)
as anticipated by Evans.
II. Claims 27-29 under 35 U.S.C. § 102(b) as anticipated by Helm.
III. Claims 11, 12, 15-19, and 22 under 35 U.S.C. § 103(a) as
unpatentable over Evans and Helm.
IV. Claims 9, 10, 13, 14, 20, 21, and 23-26 under 35 U.S.C. § 103(a) as
unpatentable over Ogawa and Evans.
V. Claims 11, 12, 15-19, and 22 under 35 U.S.C. § 103(a) as
unpatentable over Ogawa, Evans, and Helm.
VI. Claims 27-29 under 35 U.S.C. § 103(a) as unpatentable over Evans
and Helm.

OPINION
I. Claims 9, 10, 13, 14, 20, 21, 23, 24, and 26 as anticipated by Evans1
Independent claim 9 is directed to a method for incineration of
combustible waste during manufacture of cement clinker. Claim 9 calls for
supporting waste on a supporting surface in a compartment, actively
transporting that waste through a compartment to the outlet of that

1 Appellant argues these claims as a group, and we select claim 9 as
representative. See App. Br. 6-8; Reply Br. 9-12; 37 C.F.R.
§ 41.37(c)(1)(vii) (2011).
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compartment while simultaneously being incinerated, and introducing
exhaust gases from the kiln containing NOx through the compartment in
counterflow to the waste stream (the path of the waste through the
compartment2).
Claim 9 does not explicitly state that the waste remain on the
supporting surface during transporting of that waste. By contrast,
independent claims 27 and 28 each recite “supporting and transporting the
waste on a supporting surface.” See Laitram Corp. v. Rexnord, Inc., 939
F.2d 1533, 1538 (Fed. Cir. 1991) (Differences among claims can also be a
useful guide in understanding the meaning of particular claim terms); see
also In re Morris, 127 F.3d 1048, 1056 (Fed. Cir. 1997) (It is Appellant’s
burden to precisely define the invention.). Therefore, claim 9 does not
require that the waste be supported on the supporting surface during
transportation of that waste.
Based upon this claim construction, Appellant’s argument that claim 9
“requires that the waste material be both supported on a ‘supporting surface’
and that the waste be ‘actively transported’ through the compartment while it
is on the ‘supporting surface’” is unpersuasive because it is not
commensurate in scope with claim 9. See Reply Br. 9-10; see also In re
Self, 671 F.2d 1344, 1348 (CCPA 1982) (“[A]ppellant’s arguments fail from
the outset because . . . they are not based on limitations appearing in the
claims.”). Appellant’s similar assertion that the residue is not actively
transported while being supported is likewise flawed. See Reply Br. 11.

2 In light of the disclosure, the claim term “the waste stream” refers to the
path through the compartment of the actively transported waste. See Spec.
6:18-20, 10:33-11:3; see also App. Br. 6.
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Appellant also argues that Evans’s waste (tyre 76) is stationary (on
tyre support 80) during incineration and exhaust gases are introduced in
crossflow, rather than being transported and incinerated with exhaust gases
introduced in counterflow as claimed. App. Br. 6. Appellant’s argument is
unpersuasive because it does not address the rejection as articulated by the
Examiner. The Examiner found that Evans discloses actively transporting
waste through a compartment to the outlet of that compartment (by portions
of tyre 76 falling off tyre support 80 downward through precalciner 24)
while being incinerated and while exhaust gases are introduced (up through
precalciner 24) in counterflow to that waste stream. Ans. 3, 9-10.
Similarly, Appellant argues that Evans’s waste (tyre 76) is incinerated
in a static position on the support surface (tyre support 80) and it is only
residue that falls from tyre support 80. Reply Br. 10-11. This assertion is
incorrect. Portions of tyre 76 can fall from tyre support 80 and are further
combusted while falling. Evans, col. 14, ll. 46-62; see also Ans. 9-10. A
second reason this assertion is unconvincing is that Evans’s residue is the
steel wires in the tires and nothing precludes these wires from corresponding
to waste as claimed. See Evans, col. 14, ll. 40-42.
Appellant notes that the Examiner’s statement that the waste stream is
nothing but the hot gases emitted from the kiln is in error because claim 9
calls for the exhaust gases and waste stream to be different elements. Reply
Br. 10. We agree that the Examiner’s statement that the waste stream is the
exhaust gases is incorrect. See Ans. 9. However, the Examiner elsewhere
correctly recognized the waste stream (movement of waste through the
compartment to the outlet of that compartment) and the exhaust gases are
separate elements. See Ans. 3.
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Consequently, we sustain the rejection of claim 9 as anticipated by
Evans, and claims 10, 13, 14, 20, 21, 23, 24, and 26 fall with claim 9.

II. Claims 27-29 as anticipated by Helm
Independent claim 27 is directed to a method incineration of
combustible waste that includes supporting and transporting the waste on a
supporting surface of a rotary disk disposed in a compartment and exhaust
gases entering the compartment in counterflow “over the waste material on
the support surface.” Independent claim 28 is directed to an apparatus, and
contains similar limitations. Claim 29 depends from claim 28. In contrast to
independent claim 9, claims 27-29 call for the exhaust gases to be introduced
in counterflow over the waste material on the support surface.
The Examiner found that Helm discloses waste falling (downward)
into a compartment having rising exhaust gases that rise in counterflow to
the waste. Ans. 4, 11. Waste falling through a compartment is not on a
support surface, and thus does not correspond to counterflow of the exhaust
gases over the waste material on the support surface as claimed. See App.
Br. 8; Reply Br. 1-3.
Consequently, we do not sustain the rejection of claims 27-29 as
anticipated by Helm.

III. Claims 11, 12, 15-19, and 22 over Evans and Helm3
Claim 9 calls for a waste stream from the inlet to the outlet of the
compartment. Claim 11 depends from claim 9, and recites “[t]he method

3 Appellant presents a single argument for these claims, and we select claim
11 as representative.
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according to claim 9, wherein the waste is transported through the
compartment to the outlet along a circular path.” As explained in our
analysis of claim 9 as anticipated by Evans, supra, the waste need not be
supported on the supporting surface during transportation of that waste.
The Examiner found that Evans discloses the claimed subject matter
except for the waste being transported along a circular path and introducing
cement raw material to the compartment via an inlet in the compartment.
Ans. 4-5. The Examiner found that Helm discloses transporting waste
through a compartment (9) to the outlet of that compartment along a circular
path. Ans. 5. The Examiner concluded that it would have been obvious to
modify Evans to include the step of transporting the waste through the
compartment to the outlet along a circular path, as disclosed by Helm. Id.
We understand this rejection as a modification of Evans as explained
in the first rejection based upon Helm. See Ans. 4 (“the method of Evans et
al. as above”); see also Ans. 3, 9-10. Therefore, in this proposed
combination, the waste stream includes portions of waste (tyre 76 of Evans)
falling off the support surface (disc 21 of Helm replacing tyre support 80 of
Evans) downward through the compartment (precalciner 24 of Evans) while
being incinerated and while exhaust gases are introduced in counterflow to
that waste stream (up through precalciner 24).
Appellant argues that Evans discloses crossflow and Helm discloses
concurrent flow and thus the proposed combination cannot disclose
counterflow as claimed. App. Br. 9. However, for the reasons given in the
analysis of claim 9, supra, Evans discloses introducing exhaust gases in
counterflow to the waste stream as claimed.
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Appellant also asserts that Evans has two main teachings: one, that
once the waste is introduced into the kiln, it remains in a static position; and,
two that the waste is in crossflow to the exhaust gases. Appellant argues that
Helm cannot be used to destroy these two main teachings. App. Br. 9. This
argument is based upon the characterization that Evans’s waste (tyre 76) is
only incinerated while static on the support surface (tyre support 80).
However, as explained in the analysis of claim 9, supra, this characterization
is inaccurate, and for that reason this argument is unpersuasive.
As such, we sustain the rejection of claims 11, 12, 15-19, and 22 as
unpatentable over Evans and Helm.

IV. Claims 9, 10, 13, 14, 20, 21, and 23-26 over Ogawa and Evans
As detailed in the analysis of claim 9 as anticipated by Evans, supra,
claim 9 calls for actively transporting waste through a compartment to the
outlet of that compartment while being incinerated and while exhaust gases
are introduced in counterflow to that waste stream. Claims 10, 13, 14, 20,
21, and 23-26 depend from claim 9.
In contrast to the first and third rejections, this rejection does not rely
upon Evans for disclosing actively transporting waste through a
compartment to the outlet of that compartment while being incinerated and
while exhaust gases are introduced in counterflow to that waste stream.
Rather, the Examiner found that Ogawa discloses “[t]he countercurrent flow
of the exhaust gases and waste material 19 will take place in conduit 106,
107 and extending below inside the calciner 105 and kiln 13,” and that
Ogawa discloses actively transporting waste material (combustible material
19) by conveyor 21. Ans. 13.
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Ogawa’s conveyor 21 is not located within combustible gas conduit
106, exhaust conduit 107, calcining chamber 105, or heating chamber 13.
Ogawa, fig. 6. Therefore, Ogawa does not disclose actively transporting
waste (along conveyor 21) through a compartment (gas conduit 106, exhaust
conduit 107, calcining chamber 105, or heating chamber 13) to the outlet of
that compartment while being incinerated and while exhaust gases are
introduced in counterflow to that waste stream. See App. Br. 10-11; Reply
Br. 12-15. We further note that the upper end of heat-decomposing chamber
103 is sealed by an air seal gate 23 so that there does not appear to be any
exhaust gas flow introduced to conveyor 21. Ogawa, col. 6, ll. 15-18; fig. 6
(depicted as in Figure 1, but not labeled).
Because the Examiner’s conclusion of obviousness is based upon an
erroneous finding of fact, we do not sustain the rejection of claim 9 and its
dependent claims 10, 13, 14, 20, 21, and 23-26 as unpatentable over Ogawa
and Evans.

V. Claims 11, 12, 15-19, and 22 over Ogawa, Evans, and Helm
Claims 11, 12, 15-19, and 22 depend, directly or indirectly, from
independent claim 9. Therefore, these claims call for introducing exhaust
gases from the kiln containing NOx through the compartment in counterflow
to the waste stream (the path of the waste through the compartment) by
virtue of their dependence from claim 9.
The Examiner found that the combination of Ogawa and Evans
utilized for the fourth rejection discloses the claimed subject matter, “except
for the waste is transported through the compartment to the outlet along a
circular path and the cement raw meal is introduced to the compartment via
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an inlet in the compartment.” Ans. 7. The Examiner concluded that it
would have been obvious to further modify the Ogawa and Evans
combination “to include the steps of transporting the waste through the
compartment to the outlet along a circular path and introducing the cement
raw meal to the compartment via an inlet in the compartment as taught by
Helm.” Id.
Helm’s circular waste path is horizontal. See Helm, para. [0028]-
[0029]; figs. 2-5. Exhaust gases flow upwards in Ogawa’s compartment
(heat-decomposing chamber 103). Ogawa, col. 8, ll. 38-47; fig. 6 (note
arrow in conduit 108 depicting exhaust gas flow into the bottom of heat-
decomposing chamber 103). Therefore, in the proposed combination, the
waste stream would be a horizontal circular path as taught by Helm, in
crossflow to the rising exhaust gases introduced into the compartment
(Ogawa’s heat-decomposing chamber 103) rather than in counterflow as
claimed. See App. Br. 11-12.
Consequently, we do not sustain the rejection of claims 11, 12, 15-19,
and 22 as unpatentable over Ogawa, Evans, and Helm.

VI. Claims 27-29 over Evans and Helm
As explained in the analysis of the second rejection, supra, claims 27,
28, and 29 call for supporting and transporting waste on a supporting surface
of a rotary disk disposed in a compartment and exhaust gases entering the
compartment in counterflow over the waste material on the support surface.
Similar to the third rejection, the Examiner concluded that it would
have been obvious to modify Evans’s method to transport the waste through
the compartment to the outlet along a circular path as taught by Helm. Ans.
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7-9. In such a proposed combination, while the waste is transported along a
horizontal circular path it is in crossflow, rather than in counterflow as
claimed. Further, while the waste is falling it may be in counterflow to the
exhaust gases; however, it is not on the support surface. See App. Br. 12-13;
Reply Br. 4-8.
Consequently, we do not sustain the rejection of claims 27-29 as
unpatentable over Evans and Helm.

DECISION
I. We affirm the Examiner’s decision to reject claims 9, 10, 13, 14,
20, 21, 23, 24, and 26 under 35 U.S.C. § 102(b) as anticipated by Evans.
II. We reverse the Examiner’s decision to reject claims 27-29 under
35 U.S.C. § 102(b) as anticipated by Helm.
III. We affirm the Examiner’s decision to reject claims 11, 12, 15-19,
and 22 under 35 U.S.C. § 103(a) as unpatentable over Evans and Helm.
IV. We reverse the Examiner’s decision to reject claims 9, 10, 13, 14,
20, 21, and 23-26 under 35 U.S.C. § 103(a) as unpatentable over Ogawa and
Evans.
V. We reverse the Examiner’s decision to reject claims 11, 12, 15-19,
and 22 under 35 U.S.C. § 103(a) as unpatentable over Ogawa, Evans, and
Helm.
VI. We reverse the Examiner’s decision to reject claims 27-29 under
35 U.S.C. § 103(a) as unpatentable over Evans and Helm.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).
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AFFIRMED-IN-PART

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