Ex Parte Vinegar et al

Patent Trial and Appeal Board

Mar 21, 2017

13411300 (P.T.A.B. Mar. 21, 2017)

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.
13/411,300 03/02/2012 Harold J. Vinegar TH3059-02-US-DIV 6796
23632 7590 03/23/2017
SHF! T OH miUPANY EXAMINER
P O BOX 2463 PAIK, SANG YEOP
HOUSTON, TX 77252-2463
ART UNIT PAPER NUMBER
3742
NOTIFICATION DATE DELIVERY MODE
03/23/2017 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):
USPatents@Shell.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte HAROLD J. VINEGAR and
CHRISTOPHER KELVIN HARRIS
Appeal 2014-009107
Application 13/411,300
Technology Center 3700
Before LINDA E. HORNER, JOHN C. KERINS and
STEVEN D. A. McCARTHY, Administrative Patent Judges.
McCARTHY, Administrative Patent Judge.
DECISION ON APPEAL
1 STATEMENT OF THE CASE
2 The Appellants1 appeal under 35 U.S.C. § 134(a) from the Examiner’s
3 decision finally rejecting claims 653—67 and 1066—70. (See Br. 4; “Final
4 Action” or “Final Act.”), at 2 & 5). We have jurisdiction under 35 U.S.C.
5 § 6(b).
6 We sustain the rejection of claims 653—56, 658, 660-67 and 1066—70
7 under pre-AIA 35 U.S.C. § 103(a) as being unpatentable over Wellington
8 (US 2002/0027001 Al, publ. Mar. 7, 2002), in view of Carter (US
1 The Appellants identify the real party in interest as Shell Oil
Company.
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4,814,587, issued Mar. 21, 1989) and Tamura (US 4,549,073, issued Oct.
22, 1985). In addition, we sustain the rejection of claims 653—67 and 1066—
70 for non-statutory obviousness-type double patenting over claims 1—46 of
Patent US 8,355,623 B2 to Vinegar, issued January 15, 2013 (“’623
patent”), in view of the teachings of Tamura.
We do not sustain the rejection of claims 653—67 and 1066—70 under
§ 103(a) as being unpatentable over Bouck (US 4,415,034, issued Nov. 15,
1983), Carter and Tamura. Neither do we sustain the rejection of claims 657
and 659 under § 103(a) as being unpatentable over Wellington, Carter and
Tamura.
THE CLAIMED SUBJECT MATTER
The Specification teaches methods for heating hydrocarbons in
subsurface formations. (See Spec. 1,11. 25—27). More specifically, the
Specification teaches using temperature limited heaters to heat oil shale
formations, coal formations, tar sands formations and formations with heavy
viscous oils, in order to help to mobilize the hydrocarbons for production
(that is, for removal to the surface). (See Spec. 102,11. 10—12). The
Appellants define a “temperature limited heater” as a “heater that regulates
heat output (for example, reduces heat output) above a specified temperature
without the use of external controls such as temperature controllers, power
regulators, rectifiers, or other devices.” (Spec. 19,11. 10—12).
The Specification discusses one electric heater which generates heat
due to the resistance of a ferromagnetic material to the flow of a time-
varying current. (See Spec. 93,11. 7—8). When a time-varying current flows
through a ferromagnetic material, the resulting magnetic field cause a
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pronounced “skin effect.” That is, the magnetic field induces the current to
flow primarily through the radially outer portion of the conductor,
decreasing the area through which the current flows and correspondingly
increasing the effective electrical resistance. This increased effective
electrical resistance increases the heat generated by the heater at a fixed
current. (See Spec. 94,11. 15—18).
The ferromagnetic properties of the material break down near a “Curie
temperature.” Near the Curie temperature, the skin effect diminishes and the
effective electric resistance decreases. This reduces the heat output by the
heater at a fixed signal, thereby limiting the temperature of the heater. (See
Spec. 94,11. 21—29). Such temperature limiting heaters have improved
reliability, as well as an improved capability to efficiently and uniformly
heat a subsurface formation. (See Spec. 93,1. 22 — 94,1. 2).
One drawback to such heaters is that the effect of the induced
magnetic field on the current flow is non-linear, reducing efficiency and
making it difficult to maintain a controlled electrical power supply to the
heater. (See Spec. 135,11. 5—12). The Appellants address this problem by
coupling the ferromagnetic material to a non-magnetic electrical conductor.
For example, the heater element of Application Figure 84 includes an
electrically conductive core 656; an annular ferromagnetic conductor 654
surrounding the electrically conductive core; and an annular electric
conductor 716 surrounding the ferromagnetic conductor. The ferromagnetic
conductor 654 is positioned relative to the electrical conductor 716 such that
an electromagnetic field produced by a time-varying current flow in the
ferromagnetic conductor confines a majority of the flow of the electrical
current in the electrical conductor at temperatures below the Curie
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temperature of the ferromagnetic conductor. (See Spec. 140,11. 8—20; see
also id. at 135,11. 16—29).
This arrangement improves the linearity of the response of the heater
to applied power, because the relationship between applied voltage and
current flow in the electrical conductor is more linear than that in the
ferromagnetic conductor. (See Spec. 135,11. 16—29; see also id. at 136,1. 26
— 137,1. 2). The Specification teaches that:
The temperature limited heater may be controlled based on
measurements (assessments) of the resistance and/or the power
factor during operation of the heater. In some embodiments, the
power, or current, supplied to the temperature limited heater is
controlled based on assessment of the resistance and/or the
power factor of the heater during operation of the heater and the
comparison of this assessment versus the predicted behavior of
the heater.
(Spec. 137,11. A-9).
Claims 653, 1069 and 1070 are independent. Claim 653 is
representative:
653. A method for controlling a heater in a subsurface
formation, comprising:
providing heat to at least a portion of the subsurface
formation by applying electrical power to a heater located in a
wellbore in the subsurface formation, wherein the subsurface
formation comprises a hydrocarbon containing formation and the
wellbore is positioned in a hydrocarbon containing layer in the
formation, and wherein the heater comprises:
a ferromagnetic conductor; and
an electrical conductor electrically coupled to the
ferromagnetic conductor, wherein the ferromagnetic
conductor is positioned relative to the electrical conductor
such that an electromagnetic field produced by time-
varying current flow in the ferromagnetic conductor
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confines a majority of the flow of the electrical current to
the electrical conductor at temperatures below or near a
selected temperature;
assessing an electrical characteristic of the heater in the
subsurface formation;
comparing the assessed electrical characteristic to
predicted behavior for the electrical characteristic;
controlling the heater based on the comparison; and
heating the hydrocarbon containing layer such that at least
some hydrocarbons are mobilized in the layer.
ISSUES
The Appellants argue the three independent claims, claims 653, 1069
and 1070, as a group for purposes of the rejections entered by the Examiner
under § 103(a). {See generally Br. 10—18). Claim 653 is representative.
Although the Appellants address dependent claims 654—67 and 1068 under
separate subheadings, the Appellants present separate arguments only with
respect to claims 656—59 (see Br. 19 & 20), 662 (see Br. 21) and 663 (see
Br. 21 & 22). Therefore, dependent claims 654, 655, 660, 661, 664—67 and
1068 may be grouped with claim 653 for purposes of this rejection. Claims
656—59, 662 and 663 will be considered separately for purposes of the
rejection over the teachings of Wellington, Carter and Tamura.
The Appellants argue all of the appealed claims as a group for
purposes of the double-patenting rejection, both challenging the Examiner’s
statement of the reasons for combining the teachings of Tamura with the
subject matter of the claims of the ’623 patent; and offering to file a terminal
disclaimer in the event that the rejection is affirmed and prosecution re­
opens. (See Br. 23). Because the ’623 patent has issued and the rejection is
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ripe for appeal, this opinion will address the rejection on its merits.2 Once
again, claim 653 is representative.
This appeal raises four issues:
First, would one of ordinary skill in the art have had reason to
combine the teachings of Houck, Carter and Tamura as proposed by the
Examiner to yield the subject matter of independent claims 653, 1069 and
1070?
Second, would one of ordinary skill in the art have had reason to
combine the teachings of Wellington, Carter and Tamura to yield the subject
matter of representative claim 653?
Third, would one of ordinary skill in the art have had reason to
combine the teachings of Wellington, Carter and Tamura to yield the subject
matter of dependent claims 656—59, 662 and 663?
Fourth, did the Examiner correctly reject claims 653—67 and 1068—70
for obviousness-type double patenting?
FINDINGS OF FACT
The record supports the following findings of fact (“FF”) by a
preponderance of the evidence.
2 The Appellants represent that, “[i]n the event the present application
is in condition for allowance but for the double patenting rejection ([and] the
double patenting rejection is upheld), Appellant will provide a terminal
disclaimer.” (Br. 23). Because we affirm the rejection of claims 653—56,
658, 660-67 and 1066—70 under § 103(a), that situation does not arise as a
result of the outcome in this appeal.
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Bouck
1. Bouck teaches methods for heating subsurface formations
containing hydrocarbon materials such as tar sand, oil shale or heavy oil
deposits. (See Bouck, col. 1,11. 20-23; col. 3,11. 41^44).
2. More specifically, Bouck describes heating a subsurface
formation by running an electrode current through the formation, between
electrodes positioned in separate electrode wells. (See Bouck, col. 1,11. 20-
23; col. 5,11. 44-47; & Fig. 3). In order to carry this process out more
efficiently, Bouck teaches expanding the effective size of at least one of the
electrodes by heating the formation to coke hydrocarbons near the electrode
well; and then injecting an electrolyte such as brine into the coked
hydrocarbon. (See Bouck, col. 1,11. 24—26; col. 2,1. 23 — col. 3,1. 8; col. 4,
11. 22-38; col. 5,11. 38-44; & Fig. 2).
3. Bouck teaches that the heater used to coke the hydrocarbons
near the electrode well may be “any of a variety of such devices” (Bouck,
col. 3,11. 67 & 68), including an electric heater (see Bouck, col. 3,1. 68 —
col. 4,1. 3). Bouck does not specifically teach using an electric heater
including a ferromagnetic conductor. Although Bouck teaches that “a
sufficient and controlled supply of heat energy ... be applied to the
formation surrounding the borehole” (Bouck, col. 4,11. 4—7), Bouck does not
teach any particular control mechanism for the heater.
Wellington
4. Wellington teaches methods for heat treating hydrocarbons in
situ within coal formations to yield mixtures of relatively high quality
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hydrocarbon products, hydrogen and other products. (See Wellington, paras.
23 & 238).
5. More specifically, Wellington teaches heat treating
hydrocarbons in situ by means of heat sources placed within heater wells
positioned in a coal formation. (See Wellington, para. 275). One such heat
source may be an electric heater including a heater element in the form of an
insulated conductor disposed in the wellbore. (See Wellington, para. 317 &
360). As depicted in Figure 16, an insulated conductor heating element may
include an electrical conductor 575; electrical insulation 576 annularly
surrounding the conductor; and a sheath 577 annularly surrounding the
insulation. The heating element generates heat due to the resistance of the
conductor 575 to the flow of either direct or alternating current. (See
Wellington, para. 363).
6. Wellington teaches that:
[HJigher frequency current may be used to take advantage of the
skin effect in certain metals.... [A] 60 cycle AC current may be
used in combination with conductors made of metals that exhibit
pronounced skin effects. For example, ferromagnetic metals like
iron alloys and nickel may exhibit a skin effect. The skin effect
confines the current to a region close to the outer surface of the
conductor, thereby effectively increasing the resistance of the
conductor. A higher resistance may be desired to decrease the
operating current, minimize ohmic losses in surface cables, and
also minimize the cost of surface facilities.
(Wellington, para. 365).
7. Wellington teaches controlling an electrical heat source
positioned in a wellbore by means of an “operating system.” For example,
the operating system may monitor the temperature by means of a
thermocouple placed proximate the heat source; and alter a parameter of the
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heat source itself, or of equipment coupled to the heat source, in order to
provide a desired heating rate or temperature increase. (See Wellington,
paras. 445 & 447).
Carter
8. Carter describes ferromagnetic self-regulating (that is,
temperature limited) heaters. (Carter, col. 1,11. 6 & 7).
9. More specifically, Carter describes known self-regulating
heaters including high resistivity, high permeability magnetic surface layers
on non-magnetic, low resistivity layers. Carter teaches that the ability of
these heaters to self-regulate depends on their ability to generate magnetic
fields below the Curie temperature of the ferromagnetic layer that contain
the current near the surfaces of the high resistivity ferromagnetic layers at
temperatures below the Curie temperature. (See Carter, col. 1,11. 15—23).
One drawback to these heaters is that they generate magnetic fields of
relatively high power levels within the ferromagnetic layers that may result
in non-linear reductions in heating efficiency below the Curie temperature.
(See Carter, col. 1,11. 25—34).
10. Carter addresses this problem by means of an electric heater
including an inner, low resistance, non-magnetic layer 9; a ferromagnetic
layer 8; and an outer, high-resistance, non-magnetic layer 7. (See Carter,
col. 5,11. 56—59 & Fig. 4). As described by Carter, the “ferromagnetic layer
8 acts as a switch to direct the major portion of the current to the high-
resistance region 7 when below the effective Curie temperature or through
the low-resistance layer 9 above Curie.” (Carter, col. 3,11. 3—19 & col. 5,11.
59-63). Carter teaches that by selecting an outer layer 7 having desirable
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electrical impedance characteristics, the efficiency of the heater is improved.
(See Carter, col. 2,11. 2A-29).
Tamura
11. Tamura describes a controller for regulating the flow of current
through a resistive heating element. (See Tamura, col. 3,11. 14—17).
12. As depicted schematically in Figure 1 of Tamura, the controller
alternates between applying a resistive heating current IH and a sensing
current Is to the heating element 2. (See Tamura, col. 3,11. 17—20 & 58—67).
During the periods in which the controller applies the sensing current Is, the
controller calculates an effective electrical resistance Rm of the heating
element 2 based on a measurement of the voltage drop across the heating
element. (See Tamura, col. 3,11. 20-26 & 62—67). The controller calculates
a predicted resistance Rhot based on a linear analytical equation relating Ri,ol
to the temperature T of the element. (See Tamura, col. 2,1. 52 — col. 3,1. 5
& col. 3,11. 20—26). The controller controls the temperature of the heater by
regulating the resistive heating current IH until the measured resistance Rm
matches the predicted resistance Rhot- (See Tamura, col. 3,11. 5—12 & 26—29;
& col. 3,1. 67 -col. 4,1. 23).
ANALYSIS
First Issue
We do not sustain the rejection of claims 653—67 and 1066—70 under
§ 103(a) as being unpatentable over Bouck, Carter and Tamura. Each of
independent claims 653, 1069 and 1070 recites a method including the step
of providing heat to at least a portion of a subsurface formation by applying
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electrical power to a heater including a ferromagnetic conductor, or, in the
case of claim 1070, to a plurality of heaters including ferromagnetic
conductors. Bouck teaches using an electric heater to coke hydrocarbons
near a wellbore in a hydrocarbon-containing formation. Bouck teaches that
the details of the heater are not critical. (See FF 3). Carter describes an
electric heater including a ferromagnetic conductor but does not describe the
use of such a heater in a wellbore. (See generally FF 8—12; see also Br. 13).
As such, Carter describes structure that might have been used, or adapted for
use, to perform the method taught by Bouck, if one of ordinary skill in the
art had reason to do so.
The Examiner concludes that it would have been obvious to combine
the teachings of Bouck, Carter and Tamura because,
[i]n view of Carter, it would have been obvious ... to adapt
Bouck . . . [with the] ferromagnetic heater as claimed that [was]
well known in the art to provide self-regulating heating; and in
view of Tamura, it would have been obvious to adapt with the
electrical heater that [was] further controlled to achieve a desired
heating temperature as its resistance, any other parameters
including the power factors that affect [ed] the temperature of the
heating element, [being] measured and compared to the predicted
value to maintain the desired heating temperatures at near or
below the selected temperature thereof with the controlled flow
of the current.
(Ans. 3). The Appellants correctly point out that the field of electric heaters
“is a vast field that includes the use of electrical heaters for many different
applications.” (Br. 13). The Examiner has not proven that one of ordinary
skill in the art would have had reason to choose an electric heater having a
ferromagnetic conductor, in particular, for use in coking the hydrocarbons
near a wellbore, as described in Bouck; or that precise control of the
temperature of the heater, as taught by Tamura, would have been a
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significant consideration in carrying out the coking process taught by Bouck.
For this reason, we do not sustain this ground of rejection.
Second Issue
We sustain the rejection of claims 653—55, 660, 661, 664—67 and
1066—70 under § 103(a) as being unpatentable over Wellington, Carter and
Tamura. Wellington teaches the use of an electric heater including a
ferromagnetic conductor to heat treat hydrocarbons in situ within a coal
formation to yield a mixture of relatively high quality hydrocarbon products,
hydrogen and other products. (See FF 4—6). In doing so, the heat treatment
helps to mobilize these hydrocarbon products for extraction. More
specifically, Wellington teaches the use of an electric heater having a
ferromagnetic conductor in order to raise the effective electrical resistance of
the heating element by confining the current flow to a narrow region near the
surface of the ferromagnetic conductor. (See FF 6). Tamura teaches using a
controller to control the temperature of an electric heater. (See FF 12). In
view of Wellington’s teaching to measure the actual, effective electrical
resistance of the heater; and to use an “operating system” to control the
temperature increase (See FF 7), one familiar with the teachings of Tamura
would have had reason to modify Wellington’s “operating system” to assess
an electrical characteristic of the heater, namely, effective electrical
resistance, in the subsurface formation; compare the assessed electrical
characteristic to predicted behavior for the electrical characteristic; and
control the heater based on the comparison.
If one of ordinary skill in the art sought to modify Wellington’s heater
in this fashion, he or she likely would have experienced the problem
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addressed by Carter, namely, difficulty in controlling the current flow
through the heater due to the non-linearity of the current flow characteristics
through the ferromagnetic conductor. (See FF 9). This is true even if he or
she did not operate the heating element at the Curie temperature in order to
exploit the temperature limiting capacity of the ferromagnetic conductor.
Carter teaches that the current flow characteristics of the ferromagnetic
material are non-linear below the Curie temperature. (See id.) Therefore,
one familiar with the teachings of Wellington, Tamura and Carter would
have had reason to adopt Carter’s solution to the problem. More
specifically, he or she would have had reason to modify Wellington’s heater
further to include both a ferromagnetic conductor; and an electrical
conductor electrically coupled to the ferromagnetic conductor, wherein the
ferromagnetic conductor is positioned relative to the electrical conductor
such that an electromagnetic field produced by time-varying current flow in
the ferromagnetic conductor confines a majority of the flow of the electrical
current to the electrical conductor at temperatures below or near a selected
temperature. (See FF 10; see also Ans. 6).
The Appellants argue that “adapting the heater structures of Carter or
Tamura with the teachings of. . . Wellington would require adapting the
heater structures of Carter or Tamura to address problems for which the
heater structures were not designed.” (Br. 13). This argument
mischaracterizes the Examiner’s rejection. The Examiner is not suggesting
that one of ordinary skill in the art would have had reason to adapt particular
heaters described by Carter or Tamura to the heating of hydrocarbons in a
wellbore. Instead, the Examiner proposes modifying Wellington’s heater in
view of the teachings of Carter and Tamura. More specifically, it would
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have been obvious to modify Wellington’s heater to implement solutions
taught by Carter and Tamura to particular problems that Wellington’s heater
likely would have faced in service. This is a proper use of the teachings of
Carter and Tamura.
Third Issue
Claim 656 recites the “method of claim 653, wherein the method
further comprises assessing the electrical characteristic based on electrical
measurements of the heater.” The Appellants argue that “Carter only
teaches self- or auto-regulation of the heater based on the inherent properties
of the heater. Carter does not have any teaching or provide any suggestion
for assessing any electrical characteristic based on electrical measurements
of the heater.” (Br. 19). Claim 658 recites the “method of claim 653,
wherein the method further comprises assessing the predicted behavior for
the electrical characteristic using analytical equations.” The Appellants
argue that “Carter does not have any teaching or provide any suggestion for
assessing any predicted behavior using analytical equations.” (Br. 20).
Tamura provides both teachings. (See FF 12). One familiar with the
teachings of Wellington regarding the control of the heating rate would have
had reason to combine the teachings of Tamura with those of Wellington.
We sustain the rejection of claims 656 and 658 under § 103(a) as being
unpatentable over Wellington, Carter and Tamura.
Claim 657 recites the “method of claim 653, wherein the method
further comprises assessing the predicted behavior for the electrical
characteristic using experimental measurements.” Claim 659 recites the
“method of claim 653, wherein the method further comprises assessing the
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predicted behavior for the electrical characteristic using simulations.”
Neither Wellington, nor Carter, nor Tamura teaches these steps. The
Examiner concludes that “[i]t would also have been obvious to assess the
electrical characteristics behaviors in . . . experimental measurements or
simulations as a matter of routine experimentations to provide for such
predicted values.” (Ans. 3 & 4). The Examiner has not made sufficient
findings or articulated persuasive reasoning to show that a particular course
of experimentation would have led one of ordinary skill in the art to use
either experimental measurements or simulations to assess the predicted
behavior of a heater. We do not sustain the rejection of claims 657 and 659
under § 103(a) as being unpatentable over Wellington, Carter and Tamura.
Claim 662 recites the “method of claim 653, wherein controlling the
heater comprises controlling the power provided to the heater.” Claim 663
recites the “method of claim 653, wherein controlling the heater comprises
controlling the current provided to the heater.” The Appellants argue that
“Carter merely describes how current flow switches within the auto­
regulating heater based on changes with temperature in the properties of the
materials used in the heater. Nowhere in the disclosure of Carter does Carter
teach or suggest changing or varying of the current or power provided to the
auto-regulating heater.” (Br. 21 & 22 (emphasis omitted)). Tamura teaches
controlling the current provided to a heater. (See FF 12). Furthermore, for
any given heater temperature (that is, for any given electrical resistance),
controlling current effectively controls power. (Cf FF 12 (finding that
Tamura describes a linear relationship between temperature and resistance,
the latter being the ratio between the applied power and the square of the
applied current)). Because one of ordinary skill in the art would have had
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reason to combine the teachings of Tamura with those of Wellington, we
sustain the rejection of claims 662 and 663 under § 103(a) as being
unpatentable over Wellington, Carter and Tamura.
Fourth Issue
We sustain the rejection of claims 653—67 and 1066—70 for non-
statutory obviousness-type double patenting over the claims of the ’623
patent, in view of the teachings of Tamura. Claim 1 of the ’623 patent
recites:
1. A heater configured to heat a hydrocarbon
containing formation, comprising:
a ferromagnetic member;
an electrical conductor electrically coupled to the
ferromagnetic member, the electrical conductor
configured to conduct a majority of time-varying
electrical current passing through the heater at about
25° C.;
wherein the heater is configured to provide a first heat
output below the Curie temperature of the
ferromagnetic member, and the heater is configured
to automatically provide a second heat output
approximately at and above the Curie temperature
of the ferromagnetic member, the second heat
output being reduced compared to the first heat
output;
wherein the electrical conductor provides a majority of the
mechanical strength to support the heater at or near
the Curie temperature of the ferromagnetic member;
wherein the heater is configured to allow heat to transfer
from the heater to a hydrocarbon containing layer in
the formation such that heat transfers from the
heater to hydrocarbons in the hydrocarbon
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containing layer to at least mobilize some
hydrocarbons in the layer; and
wherein the heater is located in a heater well extending
from a surface of the earth through an overburden
of the formation and into the hydrocarbon
containing layer in the formation.
Claim 10 of the ’623 patent recites:
10. The heater of claim 1, wherein the ferromagnetic
member is electrically coupled to the electrical conductor such
that an electromagnetic field produced by the time-varying
electrical current flow in the ferromagnetic member confines a
majority of the flow of the time-varying electrical current to the
electrical conductor at temperatures below the Curie temperature
of the ferromagnetic member.
In other words, claims 1 and 10 recite heaters configured to perform each of
the steps of claim 653 except:
assessing an electrical characteristic of the heater in the
subsurface formation;
comparing the assessed electrical characteristic to
predicted behavior for the electrical characteristic; [and]
controlling the heater based on the comparison.
Tamura teaches these steps. (See FF 12).
The Appellants argue that “Tamura only teaches heaters and does not
provide any teaching, suggestion, motivation or objective reason within the
reference itself or to one of ordinary skill in the art that would [have led] one
of ordinary skill in the art to apply the teachings of Tamura to the field of
heating and mobilizing hydrocarbons in a hydrocarbon containing layer in a
subsurface formation.” (Br. 23). Both claim 1 of the ’623 patent and, by
incorporation, claim 10 of the ’623 patent, recite heaters in the field of
heating and mobilizing hydrocarbons in a hydrocarbon containing layer in a
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subsurface formation. Tamura teaches method steps for better controlling
such a heater. It would have been obvious to improve the method of use of
the heater recited in claims 1 and 10 of the ’623 patent by using the method
steps taught by Tamura to control the heating rate of the heater.
DECISION
The affirmance of the rejection of a claim on any of the grounds
specified constitutes a general affirmance of the Examiner on that claim. 37
C.F.R. § 41.50(a)(1). Each claim on appeal is subject to at least one
rejection that is herein affirmed. Accordingly, we AFFIRM the Examiner’s
decision rejecting claims 653—67 and 1066—70.
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).
AFFIRMED
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