THRI LLC

Patent Trials and Appeals Board

Feb 7, 2022

2022000849 (P.T.A.B. Feb. 7, 2022)

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. 16/673,360 11/04/2019 Claude Steven McDaniel THRIL-001 NPA 8007 41468 7590 02/07/2022 IVC Patent Agency 7637 PARKVIEW CIRCLE AUSTIN, TX 78731 EXAMINER HASSAN, LIBAN M ART UNIT PAPER NUMBER 1799 NOTIFICATION DATE DELIVERY MODE 02/07/2022 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): dsimmons1@sbcglobal.net uspto@dockettrak.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte CLAUDE STEVEN MCDANIEL1 ____________ Appeal 2022-000849 Application 16/673,360 Technology Center 1700 ____________ Before LINDA M. GAUDETTE, CHRISTOPHER C. KENNEDY, and LILAN REN, Administrative Patent Judges. KENNEDY, Administrative Patent Judge. DECISION ON APPEAL This is an appeal under 35 U.S.C. § 134(a) from the Examiner’s decision rejecting claims 1, 3, 4, 6, 8, 9, 12, 15-20, 22-25, 27, 29-31, 33, and 34. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. BACKGROUND The subject matter on appeal relates to devices for capturing carbon dioxide. E.g., Spec. ¶ 2; Claim 1. Claim 1 is reproduced below from page 31 (Appendix A) of the Appeal Brief: 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. The Appellant identifies the real party in interest as THRI LLC. Appeal Br. 1. Appeal 2022-000849 Application 16/673,360 2 1. A carbon dioxide capture device, comprising: a substrate having at least one coatable surface, wherein the substrate inhibits the transmission of water through a thickness thereof and along a length and width thereof; and a carbon dioxide capture coating composition adheredly coated on the at least one coatable surface, wherein the carbon dioxide capture coating composition comprises a coating material and photosynthetic organisms, wherein the coating material comprises a hydrogel polymer that is crosslinked, wherein the photosynthetic organisms are admixed with the coating material and wherein the photosynthetic organisms admixed with the coating material constitute all photosynthetic organisms of the carbon dioxide capture device. REJECTIONS ON APPEAL The claims stand rejected under 35 U.S.C. § 103 as follows: 1. Claims 1, 3, 4, 6, 8, 12, 15, 16, 31, and 34 over Tsutsumi (JP 9-57058, dated Mar. 4, 1997) (machine translation of record) and Abdel- Fattah (US 2014/0242676 A1, published Aug. 28, 2014). 2. Claims 9, 16, 17, and 33 over Tsutsumi, Abdel-Fattah, and Andersen (US 2012/0208255 A1, published Aug. 16, 2012). 3. Claims 18-20, 22-25, 27, 29, and 30 over Tsutsumi, Abdel-Fattah, Andersen, and Aikens (US 2009/0181434 A1, published July 16, 2009). ANALYSIS The Appellant presents arguments only as to claim 1, but we have considered these arguments to the extent applicable to the claims subject to Rejections 2 and 3. We address the Appellant’s arguments concerning claim 1 below. Appeal 2022-000849 Application 16/673,360 3 After review of the cited evidence in the appeal record and the opposing positions of the Appellant and the Examiner, we determine that the Appellant has not identified reversible error in the Examiner’s rejections. Accordingly, we affirm the rejections for reasons set forth below, in the Final Action dated May 19, 2021, and in the Examiner’s Answer. Of particular relevance to the issues raised by the Appellant, the Examiner finds that Tsutsumi discloses a carbon dioxide capture device similar to that of claim 1, but that Tsutsumi’s device includes a polypropylene filter carrier layer with photosynthetic organisms on its surface, rather than a hydrogel polymer admixed with photosynthetic organisms, as required by claim 1. Final Act. 3-4. The Examiner finds that Abdel-Fattah discloses a carbon dioxide capture device that uses a hydrogel polymer within the scope of claim 1, and that Abdel-Fattah discloses that photosynthetic organisms may be “immobilized inside or on a surface of the hydrogel polymer.” Id. at 4. The Examiner finds that Abdel-Fattah discloses that its hydrogel polymer “can be recovered and reused,” and that encapsulating the photosynthetic organisms within the hydrogel protects the organisms from environmental contamination and predators. Id. at 5. The Examiner determines that it would have been obvious to substitute Tsutsumi’s CO2 capture structure (i.e., polypropylene filter carrier layer with surface-attached photosynthetic organisms) with Abdel-Fattah’s CO2 capture structure (i.e., hydrogel polymer with admixed photosynthetic organisms) to reduce costs (because Abdel-Fattah’s structure can be recovered and reused) and to protect the photosynthetic organisms from contamination and predators. Id. at 5-6. Appeal 2022-000849 Application 16/673,360 4 As to the requirement that the coating composition be “adheredly coated” on the surface of the substrate, the Examiner finds that Tsutsumi broadly discloses that the carrier layer “can be fixed on the surface of the substrate, but does not explicitly disclose . . . adheredly coated.” Id. at 6 (internal citation omitted). The Examiner determines that it would have been obvious to adheredly coat the composition onto the substrate “since such modification would have been nothing more than the simple substitution of one known securing means for another [with] predictable result of fixing the carbon dioxide capture coating composition on the surface of the substrate.” Id. In view of those and other findings less relevant to the issues on appeal, the Examiner concludes that the subject matter of claim 1 would have been obvious to a person of ordinary skill in the art. The Appellant first argues that Tsutsumi’s polypropylene filter carrier layer is not a “coating material” as recited by claim 1. Appeal Br. 11-14. That argument is not persuasive because it attacks Tsutsumi individually. See In re Keller, 642 F.2d 413, 426 (CCPA 1981) (“[O]ne cannot show non-obviousness by attacking references individually where, as here, the rejections are based on combinations of references.”). As explained above, the Examiner proposes replacing Tsutsumi’s CO2 capture structure (i.e., polypropylene filter carrier layer + surface-attached photosynthetic organisms) with Abdel-Fattah’s CO2 capture structure (i.e., hydrogel polymer with admixed photosynthetic organisms). The Appellant does not argue that Abdel-Fattah’s hydrogel polymer with admixed photosynthetic organisms falls beyond the scope of the term “coating material.” Appeal 2022-000849 Application 16/673,360 5 The Appellant next argues that Tsutsumi’s polypropylene filter carrier layer “is a water transmissive substrate.” Appeal Br. 15-16. That argument is not persuasive because the Examiner does not find that Tsutsumi’s polypropylene filter carrier layer corresponds to the claimed substrate. The Examiner finds that the “inner wall of [Tsutsumi’s] reactor” corresponds to the recited substrate, and the Examiner provides specific reasoning as to how Tsutsumi teaches or suggests that the substrate inhibits the transmission of water. See Final Act. 3-4. The Appellant’s argument concerning whether Tsutsumi’s polypropylene filter carrier layer transmits water fails to address the rationale actually relied on by the Examiner. The Appellant next argues that Tsutsumi’s polypropylene filter carrier layer is not adheredly coated on a substrate. Appeal Br. 16-17. That argument is not persuasive because it does not address the combination rationale relied on by the Examiner. See Keller, 642 F.2d at 426. As explained above, the Examiner proposes replacing Tsutsumi’s polypropylene filter carrier layer with Abdel-Fattah’s foam hydrogel, which is described as a “cover[ing].” E.g., Abdel-Fattah Fig. 3, ¶ 49. With regard to the combination rationale actually relied on by the Examiner, the Appellant explains that the Specification refers to a coating with reference to “spraying, dipping, rolling, brushing, and the like,” Appeal Br. 18, and argues that “the hydrogel polymer (i.e., ‘foam’) of Abdel-Fattah do[es] not meet the above-mentioned coating material attributes.” Appeal Br. 18-19. That argument is not persuasive. The Appellant acknowledges that Tsutsumi broadly discloses that its carrier layer is “provided on” the substrate without limitation as to how it is attached. Appeal Br. 17. The Appeal 2022-000849 Application 16/673,360 6 Appellant provides no persuasive explanation of why Abdel-Fattah’s foam hydrogel covering a substrate should be considered to fall beyond the scope of the term “adheredly coated on” the substrate. See In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) (“[I]t has long been the Board’s practice to require an applicant to identify the alleged error in the examiner’s rejections . . . .”). The Appellant’s assertion that “the hydrogel polymer (i.e., ‘foam’) of Abdel-Fattah do[es] not meet the above-mentioned coating material attributes” is unsupported attorney argument. In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974) (“Attorney’s argument in a brief cannot take the place of evidence.”). The Appellant next argues that the Examiner’s rationale “ignores [a] central teaching of Abdel-Fattah.” Appeal Br. 19. Specifically, the Appellant argues that Abdel-Fattah “dispers[es] carbon dioxide gas into a hydrogel matrix,” Appeal Br. 20, whereas Tsutsumi flows a CO2 gas over the surface of a carrier to which photosynthetic organisms are attached, id. at 20-21. The Appellant refers to these as “mode[s] of CO2 delivery,” and argues that changing from the surface-flow mode of Tsutsumi to the internal-flow-through-hydrogel mode of Abdel-Fattah would impermissibly change the principle of operation of Tsutsumi. Id. at 23, 28. In the Answer, the Examiner responds that both Tsutsumi and Abdel- Fattah are “directed to carbon dioxide sequestration devices including a carrier for supporting photosynthetic microorganisms and exposing the photosynthetic microorganisms to the carbon dioxide.” Ans. 16. The Examiner acknowledges that, in Abdel-Fattah, “the gas stream containing carbon dioxide is introduced and applied inside the carrier containing microorganisms,” and that, in Tsutsumi, the “microorganisms are Appeal 2022-000849 Application 16/673,360 7 immobilized on a surface of the carrier and gas containing carbon dioxide is applied on the surface of the carrier.” Id. The Examiner finds, however, that Tsutsumi specifically contemplates the use of different methods of supplying the CO2-containing gas, and the Examiner identifies benefits to supplying the gas as contemplated by Abdel-Fattah. Id. at 16. The Examiner determines that “employing other methods” of supplying the CO2- containing gas, such as Abdel-Fattah’s, “with the device of Tsutsumi would not” impermissibly change the principle of operation of Tsutsumi. Id. We agree with the Examiner. Both Tsutsumi and Abdel-Fattah use photosynthetic organisms to assist in the capture of CO2. The proposed combination does not alter that principle of operation. Both flowing a CO2- containing gas over a carrier surface comprising organisms, and flowing a CO2-containing gas through a hydrogel comprising organisms, were known methods of capturing CO2. The Examiner’s proposed combination is the substitution of one known method (and associated structure) for another. We are not persuaded that the proposed combination changes the principle of operation of Tsutsumi in a way that negates reason to combine or otherwise indicates reversible error in the rejection. The Appellant also argues that replacing the surface-attached organisms of Tsutsumi with admixed organisms of Abdel-Fattah would serve no purpose. Appeal Br. 25. For support, the Appellant argues that Tsutsumi involves a “closed reactor” such that its microorganisms do not need protection from contamination or predators. Id. at 26. That argument is not persuasive because Tsutsumi suggests the desirability of protection from contamination. For example, Tsutsumi specifically identifies a particular photosynthetic organism as desirable Appeal 2022-000849 Application 16/673,360 8 because it is “resistant to various germs, and difficult to die.” Tsutsumi ¶ 38. That disclosure undermines the Appellant’s assertion that protection from contamination would provide no benefit in Tsutsumi. We have carefully considered each of the Appellant’s arguments, and we are not persuaded that the Appellant has identified reversible error in the Examiner’s rejections. See Jung, 637 F.3d at 1365. DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § References Affirmed Reversed 1, 3, 4, 6, 8, 12, 15, 16, 31, 34 103 Tsutsumi, Abdel-Fattah 1, 3, 4, 6, 8, 12, 15, 16, 31, 34, 9, 16, 17, 33 103 Tsutsumi, Abdel-Fattah, Andersen 9, 16, 17, 33 18-20, 22- 25, 27, 29, 30 103 Tsutsumi, Abdel- Fattah, Andersen, Aikens 18-20, 22- 25, 27, 29, 30 Overall Outcome 1, 3, 4, 6, 8, 9, 12, 15-20, 22-25, 27, 29-31, 33, 34 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