Ex Parte Trabhardt et al

Patent Trial and Appeal Board

Jan 28, 2019

13717472 (P.T.A.B. Jan. 28, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/717,472 12/17/2012
20995 7590 01/30/2019
KNOBBE MARTENS OLSON & BEAR LLP
2040 MAIN STREET
FOURTEENTH FLOOR
IRVINE, CA 92614
FIRST NAMED INVENTOR
Horst Trabhardt
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.
VIERJ5.004AUS 8264
EXAMINER
JOHNSON, BENJAMIN W
ART UNIT PAPER NUMBER
3762
NOTIFICATION DATE DELIVERY MODE
01/30/2019 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):
j ayna.cartee@knobbe.com
efiling@knobbe.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte HORST TRABHARDT, JUERGEN MUELLER,
and FRANK-UDO LEIDICH
Appeal2018-005570
Application 13/717,472 1
Technology Center 3700
Before MURRIEL E. CRAWFORD, MICHAEL C. ASTORINO, and
KENNETH G. SCHOPPER, Administrative Patent Judges.
ASTORINO, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), the Appellants appeal from the
Examiner's decision rejecting claims 1, 7, 9-11, and 14. We have
jurisdiction over the appeal under 35 U.S.C. § 6(b ).
We REVERSE.
1 "The real parties in interest in the present application are Mitsubishi
Hitachi Power Systems Europe GmbH, of Berlin, Germany, and Alstom
Technology Ltd., of Baden, Switzerland." Appeal Br. 3.
Appeal2018-005570
Application 13/717,472
STATEMENT OF THE CASE
Claimed Subject Matter
Claim 1, the sole independent claim, is representative of the subject
matter on appeal and is reproduced below.
1. A method for reducing stress corrosion cracking of
tubes of erected and installed tube wall regions or tube wall
segments of a steam generator tube wall of a boiler of a power
station fired by carbon containing fuel by reducing the oxygen
content in the flow volume of the tubes of the erected and
installed tube wall regions or tube wall segments before filling
the boiler with water for a first time when the boiler is started for
a first time, wherein the tubes of the tube wall regions or tube
wall segments are composed of one of the steels T22, T23, or
T24, the method comprising:
introducing an inert gas or an inert gas mixture into
the tubes of the tube wall regions or segments of the steam
generator tube wall of the boiler of the power station fired
by carbon containing fuel, through which boiler water or
steam formed from this boiler water flows when the power
station is in operation, before filling the tubes of the tube
wall regions or segments of the steam generator tube wall
of the boiler with boiler water for the first time when the
boiler is started for the first time, such that the inert gas or
the inert gas mixture displaces atmospheric oxygen which
is present as a gaseous oxygen in the respective flow
volume of the tubes of the tube wall regions or segments
of the steam generator tube wall of the boiler at a time
point before the tubes are filled with boiler water for the
first time when the boiler is started for the first time.
2
Appeal2018-005570
Application 13/717,472
REJECTION
Claims 1, 7, 9-11, and 14 are rejected under (pre-AIA) 35 U.S.C.
§ I03(a) as unpatentable over Takuma, 2 Horlitz, 3 and Keegan. 4
ANALYSIS
The Appellants argue that the Examiner's rejection of claim 1 is
improper because, contrary to the Examiner's finding, Takuma's corrosion
preventing method of a boiler does not correspond to claim 1 's recitation:
introducing an inert gas or an inert gas mixture into the tubes ...
before filling the tubes of the tube wall regions or segments of
the steam generator tube wall of the boiler with boiler water for
the first time when the boiler is started for the first time, such that
the inert gas or the inert gas mixture displaces atmospheric
oxygen which is present as a gaseous oxygen in the respective
flow volume of the tubes of the tube wall regions or segments of
the steam generator tube wall of the boiler at a time point before
the tubes are filled with boiler water for the first time when the
boiler is started for the first time.
Appeal Br. 7. The crux of the Appellants' argument is directed to the
broadest reasonable interpretation of "before the tubes are filled with boiler
water for the first time when the boiler is started for the first time" - and
the substantially similar language of claim 1 - as read in light of the
Specification as it would be interpreted by one of ordinary skill in the art.
See Appeal Br. 7-10; Reply Br. 2-3. The Appellants point to the
Specification at page 1, line 21 through page 2, line 1:
2 Takuma (JP H04I 10505 A, pub. Apr. 13, 1992).
3 Horlitz, Jr. et al. (US 4,633,818, iss. Jan. 6, 1987).
4 Keegan (US 2010/0028705 Al, pub. Feb. 4, 2010).
3
Appeal2018-005570
Application 13/717,472
However, when a steam generator is being filled with
boiler water, in particular for the first time, the oxygen content
permissible in the boiler water may be exceeded in that the
atmospheric oxygen still present in the flow volumes of the tubes
when the tubes are being filled is incorporated into the boiler
water. Particularly when the steam generator is started up for the
first time, the result of this may be that it is then operated, at least
initially, with an inadmissibly high oxygen content in the boiler
water.
The same problem may also arise when a steam
generator is restarted, for example after a repair, when boiler
water present in the flow volumes of the tubes is discharged at
the time of the shutdown or decommissioning of the steam
generator.
Reply Br. 3. The Appellants "submit[] that the cited portion of the
Specification describes the starting up of a steam generator for a first time
separately from the restarting of a steam generator, and notes that the same
problem can arise under both circumstances" and argue that "a steam
generator being started up for the first time as being a separate and distinct
action from the restarting of a steam generator." Id.
The Examiner's position concerning the claim language in dispute is
as follows:
the limitation of introducing an inert gas ( or inert gas mixture)
into the tubes of a boiler "before filling the tubes of the tube wall
segments of the steam generator tube wall of the boiler with
boiler water for a first time when the boiler is started for a first
time" is being interpreted as introducing an inert gas ( or inert gas
mixture) into the tubes of a boiler at a time point before the boiler
is filled with water and brought into operation for the first time
after a time point at which the boiler is empty of or unfilled with
water, such as during a shut-down period.
Ans. 7.
4
Appeal2018-005570
Application 13/717,472
Although the Examiner understands the foregoing interpretation to be
consistent with the Specification (see id. at 8), the Examiner does not
address the Specification's description at page 1, line 21 through page 2,
line 1. And, we cannot reconcile the Examiner's interpretation of the
disputed claim language with the Specification's description at page 1,
line 21 through page 2, line 1. Accordingly, we construe the claim phrase
"before the tubes are filled with boiler water for the first time when the
boiler is started for the first time" - and the substantially similar language
of claim 1 -to be mutually exclusive with a "restart" of a boiler, i.e., a
starting a boiler for the first time after a shutdown.
The Examiner's rejection is based on a finding that Takuma teaches
"before the tubes are filled with boiler water for the first time when the
boiler is started for the first time," as recited in claim 1, by starting a boiler
for the first time after a shut-down period. See Final Act. 5; Ans. 7-8. The
Examiner explains:
Takuma teaches of filling the inside of the boiler with a highly
charged inert gas atmosphere during a shut-down period such
that corrosion within the tube walls is prevented. Once the boiler
is started for the first time after this shut-down period, water is
introduced and the inert gas that was previously introduced to the
tubes and stored in the tubes is discharged together with
generated steam. Thus, the tube wall segments are introduced to
inert gas before they are filled with boiler water for the first time
after a shut-down period.
Ans. 7 (citing Takuma Translation 3:25-28, 4:18-25, filed Aug. 5, 2015).
However, for the reasons discussed above, we determine that one of ordinary
skill in the art would understand the foregoing teaching of Takuma to be a
restart of a boiler instead of "when the boiler is started for a first time," as
recited in claim 1. Furthermore, we note that the Examiner's reliance on
5
Appeal2018-005570
Application 13/717,472
Horlitz and Keegan does not cure the deficiency of the Examiner's rejection.
See also Appeal Br. 7, 10.
Thus, we do not sustain the Examiner's rejection of claims 1, 7, 9-11,
and 14 under (pre-AIA) 35 U.S.C. § 103(a) as unpatentable over Takuma,
Horlitz, and Keegan.
DECISION
We REVERSE the Examiner's decision rejecting claims 1, 7, 9-11,
and 14.
REVERSED
6