Ex parte Vatsky

Board of Patent Appeals and Interferences

May 17, 2000

08595965 (B.P.A.I. May. 17, 2000)

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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journal and (2) is not binding precedent of the Board.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. 14
UNITED STATES PATENT AND TRADEMARK OFFICE
________________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
________________
Ex parte JOEL VATSKY
________________
Appeal No. 1998-1553
Application 08/595,965
________________
ON BRIEF
________________
Before COHEN, FRANKFORT and McQUADE, Administrative Patent
Judges.
McQUADE, Administrative Patent Judge.
DECISION ON APPEAL
Joel Vatsky appeals from the final rejection of claims 11
through 16, all of the claims pending in the application. We
reverse.
Appeal No. 1998-1553
Application 08/595,965
The terms “the register” in claim 11 and “the housing”1
in claim 15 lack proper antecedent bases. These informalities
are deserving of correction in the event of further
prosecution before the examiner.
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The invention relates to a “burner assembly which
operates in a manner to stabilize the air flow to the burner
and reduce the formation of nitrogen oxides as a result of
fuel combustion” (specification, page 1). Claim 11 is
representative and reads as follows:
11. A burner assembly comprising an outer tubular
member, an inner tubular member extending within the outer
tubular member to define a flow passage, an inlet located at
one end of the flow passage for receiving fuel into the flow
passage, an outlet located at the other end of the flow
passage for discharging the fuel, a splitter disposed in the
flow passage for splitting up the fuel discharging from the
outlet so that, upon ignition of the fuel, a plurality of
flame patterns are formed, an enclosure extending around the
outer tubular member and having an inlet for receiving air,
the enclosure directing the air towards the outlet for mixing
with the fuel discharging from the outlet to support the
combustion, and a vane supported on the outer tubular member
for stabilizing the flow of the air, the vane being frustro-
conical in shape with its wall tapered radially inwardly in a
direction towards the outlet so that a portion of the air
impinges on the inner surface of the wall, the vane being
spaced from the outer tubular member to define an annular gap
therebetween so that a portion of the air passes through the
annular gap and impinges against the vane before passing
towards the outlet, and so that the remaining portion of the
air passes from the register, over the vane and towards the
outlet.1
Appeal No. 1998-1553
Application 08/595,965
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The references relied upon by the examiner as evidence of
obviousness are:
Eaton et al. (Eaton) 2,048,495 Jul. 21, 1936
Henderson et al. (Henderson) 3,753,658 Aug. 21,
1973
Vatsky et al. (Vatsky) 4,348,170 Sept. 7, 1982
Claims 11 through 16 stand rejected under 35 U.S.C. §
103(a) as being unpatentable over Vatsky in view of Henderson
and Eaton.
Reference is made to the appellant’s brief (Paper No. 9)
and to the examiner’s answer (Paper No. 10) for the respective
positions of the appellant and the examiner with regard to the
merits of this rejection.
Vatsky, the examiner’s primary reference, discloses a
burner assembly 10 which “operates in a manner to reduce the
formation of nitrogen oxides as a result of fuel combustion”
(column 1, lines 9 and 10) and is similar in many respects to
the burner assembly disclosed and claimed in the instant
application. The burner assembly 10 includes inner and outer
tubular members 22 and 24 defining a flow passage 26, a fuel
inlet 28 at one end of the passage, a fuel outlet at the other
Appeal No. 1998-1553
Application 08/595,965
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end of the passage (see Figure 3), splitters 60 in the flow
passage for splitting the fuel discharged from the outlet, and
an enclosure extending around the outer tubular member and
having an air receiving inlet (see Figure 1). As tacitly
conceded by the examiner, this burner assembly does not meet
the limitations in claim 11 relating to the frustro-conical
vane supported on the outer tubular member for stabilizing the
flow of the air.
Henderson discloses a carbon black reactor having a feed
introduction zone 1, a combustion zone 2, a carbon black
formation zone 3, a make oil inlet conduit and outlet nozzle
6, 8, an air conduit 9, a fuel conduit 10, a choke 14, and a
cone 20 mounted on a support 26, these components being
arranged as shown in Figure 1. Reactants introduced into zone
1 flow into the base 24 of the cone and out through a
truncated opening 23. The cone increases the velocity of the
reaction mass flowing therethrough (see column 3, line 46,
through column 4, line 9) and contributes to the ability of
the reactor to produce carbon blacks having different
structures (see column 5, line 64, through column 6, line 29).

Appeal No. 1998-1553
Application 08/595,965
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Eaton discloses a fuel burner unit comprising a nozzle
composed of a fuel oil tube 36 and a surrounding atomizing air
tube 37, and tubular casings 13 and 65 disposed about the
nozzle for directing air around and into the discharged fuel
(see page 2, column 2, lines 33 through 70). The casings also
serve to
physically shield the nozzle from combustion heat and to
actively cool the nozzle via the air flowing therethrough (see
page 1, column 1, lines 34 through 52). Casing 65 includes
internally projecting fins 71 for holding it in spaced
relation to the nozzle.
In rejecting claim 11 under 35 U.S.C. § 103(a), the
examiner concludes that
[i]t would have been obvious to one skilled in
the art at the time of the invention to install a
frustro-conical vane [presumably as in Henderson]
onto the outer surface of the outer tubular member
of a burner [presumably Vatsky’s burner] in order to
set up a swirling or turbulent action of the
secondary air or to direct and properly focus the
secondary air to the burner outlet to improve the
mixing of air and fuel at the burner outlet, thus
enhancing the combustion process. It would have
also been obvious to substitute the fins (71) of
Eaton et al for the mounting means (26) of Henderson
et al to efficiently mount the conical vane to the
surface of the outer tubular member while reducing
the cost associated with the production of a
Appeal No. 1998-1553
Application 08/595,965
The examiner’s position here is at odds with the2
appellants’ disclosure that the frustro-conical vane recited
in claim 11 provides a desirable stabilization of air flow.
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mounting means (26) [answer, pages 4 and 5].
Henderson’s cone/vane 20, however, which functions as a
carbon black reaction mass accelerator, has little apparent
relevance to the burner assembly disclosed by Vatsky.
Furthermore, there is nothing in the teachings of the applied
references to indicate that this type of element would produce
a swirling or turbulent action of secondary air in the Vatsky
burner assembly as asserted by the examiner, or that such
swirling or turbulent action would even be desirable in the
Vatsky assembly. The examiner’s alternative contention that2
such a vane would direct and properly focus the secondary air
to Vatsky’s burner outlet assumes a deficiency in the Vatsky
structure which is not borne out by the references, i.e., that
the enclosure structure 32, 34, 38 and 40 surrounding Vatsky’s
outer tube 24 does not direct and properly focus air to the
burner outlet. Eaton’s disclosure of fins 71 to hold a casing
in spaced relation to a burner nozzle does not cure the
foregoing flaws in the examiner’s analysis.
Appeal No. 1998-1553
Application 08/595,965
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In this light, we are constrained to conclude that the
only suggestion for combining Vatsky, Henderson and Eaton in
the manner proposed by the examiner so as to arrive at the
subject matter recited in claim 11 stems from hindsight
knowledge improperly derived from the appellants’ disclosure.
Therefore, we shall not sustain the standing 35 U.S.C. §
103(a) rejection of claim 11, or of claims 12 through 16 which
depend therefrom, as being unpatentable over Vatsky in view of
Henderson and Eaton.
The decision of the examiner is reversed.
REVERSED
IRWIN CHARLES COHEN )
Administrative Patent Judge )
)
)
Appeal No. 1998-1553
Application 08/595,965
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)
CHARLES E. FRANKFORT ) BOARD OF PATENT
Administrative Patent Judge ) APPEALS AND
) INTERFERENCES
)
)
JOHN P. McQUADE )
Administrative Patent Judge )
Appeal No. 1998-1553
Application 08/595,965
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Warren B. Rice
Hagnes and Boone
3100 Nations Bank Plaza
901 Main Street
Dallas, TX 75202-3789