DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Response to Arguments
Applicant's arguments filed 12/22/2025 have been fully considered but they are not persuasive. The applicant argues, on pp. 6-8 of the remarks, that Hayden does not disclose that “at least 85% of the hydrogen stream is hydrogen”. The examiner respectfully disagrees. Claim 1 requires “the second fuel comprises a hydrogen stream”, claim 11 requires “the fuel comprises…a hydrogen fuel”, and claim 19 requires that “the second fuel comprises a hydrogen stream”. In each of these clauses the claims require a fuel of which one component is hydrogen. Therefore, the amendments requiring that “at least 85% of the hydrogen stream is hydrogen” do not make sense, since “the hydrogen stream” does not refer to the entire “second fuel”1 but rather that part of the second fuel that is hydrogen, therefore the concentration of the hydrogen stream must always be 100%2. For these reasons the rejections are maintained.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-20 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 1 requires that “at least 85% of the hydrogen stream is hydrogen”. The claim requires “the second fuel comprises a hydrogen stream”. The clause requires a fuel of which one component is hydrogen. Therefore, the amendment requiring that “at least 85% of the hydrogen stream is hydrogen” does not make sense, since “the hydrogen stream” does not refer to the entire “second fuel” but rather that part of the second fuel that is hydrogen, therefore the concentration of the hydrogen stream must always be 100%.
Claims 2-10 are rejected based on their dependence on claim 1.
Claim 11 requires that “the fuel comprises…a hydrogen fuel”. The clause requires a fuel of which one component is hydrogen. Therefore, the amendment requiring that “at least 85% of the hydrogen fuel is hydrogen” does not make sense, since “the hydrogen fuel” does not refer to the entire “fuel” but rather that part of the fuel that is hydrogen, therefore the concentration of the hydrogen stream must always be 100%.
Claims 12-18 are rejected based on their dependence on claim 11.
Claim 19 requires that “at least 85% of the hydrogen stream is hydrogen”. The claim requires “the second fuel comprises a hydrogen stream”. The clause requires a fuel of which one component is hydrogen. Therefore, the amendment requiring that “at least 85% of the hydrogen stream is hydrogen” does not make sense, since “the hydrogen stream” does not refer to the entire “second fuel” but rather that part of the second fuel that is hydrogen, therefore the concentration of the hydrogen stream must always be 100%.
Claims 20 is rejected based on their dependence on claim 19.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim(s) 1-2 and 8-9 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Hayden et. al (US 4,109,613).
With respect to claim 1 Hayden discloses a process for controlling emissions in a plant, the process comprising: passing a first fuel [heavy fuel oil through 32] to a first furnace [reference character 12], the first furnace having a burner [reference character 34] configured to receive combustion air [through plenum 36], inject the first fuel and the combustion air into the first furnace, and produce a flame and flue gas; heating a first fluid [in heat exchangers 60, 62, 64, and 66] in the first furnace; passing a second fuel [combustible gas via reference character 50] to a second furnace, the second furnace having a burner [reference character 48] configured to receive combustion air [via plenum 52], inject the second fuel and the combustion air into the second furnace, and produce a flame and flue gas; heating a second fluid [in heat exchangers 68 and 70] in the second furnace; wherein one of the first fuel and the second fuel comprises a hydrogen stream3, and wherein the other of the first fuel and the second fuel comprises a hydrocarbon stream [heavy fuel oil, see column 2 lines 17-21], wherein the first and second fuels are segregated from each other [see Fig.1]. Hayden further discloses that 100% of the hydrogen steam is hydrogen (see 112(b) rejection above).
With respect to claim 2 Hayden discloses that the first fuel and the second fuel are unblended relative to each other [see Fig.1].
With respect to claim 8 Hayden discloses that at least one of the first fuel and the second fuel are produced at the plant or both the first fuel and the second fuel are produced at the plant. Specifically, the second fuel, syngas/” clean combustible gas”, is produced at the plant.
With respect to claim 9 Hayden discloses that the first fuel is passed to the first furnace simultaneously with the second fuel being passed to the second furnace [see Fig. 1].
Claim(s) 11-12 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Hayden et. al (US 4,109,613).
With respect to claim 11 Hayden discloses a process for controlling emissions from a furnace in a plant, the furnace configured to receive a hydrogen fuel [combustible gas via reference character 50] and a hydrocarbon fuel [heavy fuel oil through 32], to produce a flame and a flue gas, and to heat a process fluid in tubes [in heat exchangers 60, 62, 64, 66, 68, and 70] extending within the furnace, the process comprising: determining a fuel [heavy fuel oil through 32] being passed to the furnace, wherein the fuel comprises either a hydrogen fuel or a hydrocarbon fuel; and, providing a first exhaust path [see annotated Fig. below] for a flue gas from the furnace when the fuel has been determined to be hydrogen fuel; and, providing a second exhaust path [see annotated Fig. below] for a flue gas from the furnace when the fuel has been determined to be hydrocarbon fuel, wherein the first exhaust path and the second exhaust path are different. Hayden further discloses that 100% of the hydrogen fuel is hydrogen (see 112(b) rejection above).
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With respect to claim 12 Hayden discloses providing the first exhaust path comprises changing an orientation of at least one means for controlling a gas flow [reference character 26] in order to direct the flue gas to either the first exhaust path [via 82 and 80] or the second exhaust path.
With respect to claim 16 Hayden discloses that the second exhaust path comprises an opening to the atmosphere [downstream of 58].
With respect to claim 17 Hayden discloses that the first exhaust path does not include any carbon capture process zone between the furnace and the opening to the atmosphere [see Fig. 1 of Hayden].
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claim(s) 3-4 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hayden et. al (US 4,109,613) in view of Maddaus et. al (US 2010/0205964 A1).
With respect to claim 3 Hayden discloses that the first fuel comprises the hydrocarbon stream [heavy fuel oil].
Hayden does not disclose that the process comprises: removing carbon from flue gas from the first furnace in a carbon capture unit.
Maddaus discloses a boiler plant [see Fig. 1] where the exhaust is passed through a carbon capture unit [reference character 18] which separates the carbon dioxide for sequestration [paragraph 0023].
It would have been obvious to one of ordinary skill in the art at the time of the filing date of the invention to modify the system taught by Hayden by passing the exhaust gas through a carbon sequestration unit, as taught by Maddaus, in order to prevent discharge of carbon dioxide to the atmosphere.
With respect to claim 4 the combination of Hayden and Maddaus disclose venting a flue gas from the second furnace to the atmosphere [reference character 32 and paragraph 0023 of Maddaus].
Claim(s) 5-7 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hayden et. al (US 4,109,613) in view of Jones et. al (US 2002/0197574 A1).
With respect to claim 5 Hayden does not disclose mixing the flue gas from the first furnace with the first fuel to produce the flame in the first furnace.
Jones discloses mixing flue gas [reference character 182] with the fuel [in aspirator 164] in order to reduce the overall NOx content in the flue gas [see Abstract].
It would have been obvious to one of ordinary skill in the art at the time of the filing date of the invention to modify the burner taught by Hayden by mixing the fuel gas with the fuel in the burner, as taught by Jones, in order reduce the overall NOx content in the fuel gas [see Abstract of Jones].
With respect to claim 6 Hayden discloses removing the flue gas from the first furnace above a convection section of the first furnace [flue gas is removed from the furnace through flue 28].
With respect to claim 7 Hayden discloses removing the flue gas from the first furnace from a combustion zone in the first furnace [flue gas is removed from the furnace through flue 28].
Claim(s) 10 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hayden et. al (US 4,109,613) in view of Davis et. al (US 2010/0035193 A1).
With respect to claim 10 Hayden does not disclose combining a second hydrocarbon stream with the one of the first fuel and the second fuel that is the hydrocarbon stream, or combining a second hydrogen stream with the one of the first fuel and the second fuel that is the hydrogen stream, or both.
Davis discloses mixing natural gas4 with a syngas stream [see Fig. 3] in order to ensure that the BTU of the syngas is sufficient to operate the burner head at its rated value [see paragraph 0015 of Davis].
It would have been obvious to one of ordinary skill in the art at the time of the filing date of the invention to modify the system taught by Hayden by mixing natural gas with the syngas stream if needed, as taught by Davis, in order to ensure that the burner operates at is rated heat output [see paragraph 0015 of Davis].
Claim(s) 13-15 and 18 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hayden et. al (US 4,109,613) in view of Liu et. al (US 2012/0082604 A1).
With respect to claim 13 Hayden does not disclose the first exhaust path comprises a carbon capture process zone.
Liu discloses a carbon captures system for combustion gasses that includes a carbon capture process zone [see Fig. 11B].
It would have been obvious to one of ordinary skill in the art at the time of the filing date of the invention to modify the system taught by Hayden by including a carbon capture process zone, as taught by Liu, in order to prevent discharge of carbon dioxide to the atmosphere.
With respect to claim 14 the combination of Hayden and Liu disclose that the carbon capture process zone comprises a solvent carbon capture process zone [see paragraph 0004 of Liu].
With respect to claim 15 the combination of Hayden and Liu, as taught by claim 13, does not disclose an SCR process zone is disposed in the second exhaust path between the furnace and the carbon capture process zone.
Liu further discloses an SCR process zone [reference character 56] disposed in the exhaust path between the furnace and the carbon capture zone [see Figs. 11A-11B of Liu].
It would have been obvious to one of ordinary skill in the art at the time of the filing date of the invention to modify the furnace taught by Hayden by including an SCR zone upstream of the carbon capture zone, as taught, by Liu, in order to remove NOx compounds from the flue gas.
With respect to claim 18 Hayden does not disclose that the first exhaust path includes an SCR pathway between the furnace and the opening to the atmosphere.
Liu further discloses an SCR process zone [reference character 56] disposed in the exhaust path between the furnace and the opening to the atmosphere.
It would have been obvious to one of ordinary skill in the art at the time of the filing date of the invention to modify the furnace taught by Hayden by including an SCR zone upstream of the opening to the atmosphere, as taught, by Liu, in order to remove NOx compounds from the flue gas.
Claim(s) 19-20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hayden et. al (US 4,109,613) in view of Heavner III et. al (US 2005/0267710 A1).
With respect to claim 19 Hayden discloses a process for controlling a furnace, the furnace having a burner [reference character 34 and 48] configured to receive a fuel [heavy fuel oil through 32] and combustion air and produce a flame to process fluid within the tubes [in heat exchangers 60, 62, 64, 66, 68, and 70], the process comprising: passing a first fuel [heavy fuel oil through 32] and combustion air to a burner in a furnace; producing a flame from the combustion of the first fuel and heating a process fluid in process tubes within the furnace; passing a second fuel [combustible gas via reference character 50] and combustion air to the burner in the furnace; and, producing a flame from the combustion of the second fuel and heating the process fluid in the process tubes within the furnace, wherein one of the first fuel and the second fuel comprises a hydrogen stream5, and wherein the other of the first fuel and the second fuel comprises a hydrocarbon stream [heavy fuel oil through 32]. Hayden further discloses that 100% of the hydrogen steam is hydrogen (see 112(b) rejection above).
Hayden does not disclose determining a level of coke on the process tubes; when the determined level of coke meets or exceeds a threshold passing a second fuel and combustion air to the burner in the furnace.
Heavner III discloses a furnace system where “…statistical data may be used to determine if fouling (e.g., coke deposition) within tubes that route a process fluid through a furnace is occurring, to determine the extent of fouling, and/or to determine if fouling has reached a threshold level” [paragraph 0130].
It would have been obvious to one of ordinary skill in the art at the time of the filing date of the invention to modify the furnace taught by Hayden by including the fouling determination system taught by Heavner III in order to determine if coking has exceeded a threshold level and take the appropriate action. Note that Hayden discloses that the first and second fuels are simultaneously fed to burners 34 and 48 therefore the second fuel would continue to be fed to the burner after the fouling determination step until a decoking procedure is initiated.
With respect to claim 20 the combination of Hayden and Heavner III discloses that determining a level of coke on the process tubes comprises: measuring or obtaining a pressure drop associated with the process tubes; or, measuring or obtaining a temperature associated with the process tubes [see paragraph 0035-0036 or Heavner III].
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claim 1 rejected on the ground of nonstatutory double patenting as being unpatentable over claim 12 of U.S. Patent No. 12,398,879. Although the claims at issue are not identical, they are not patentably distinct from each other because Claim 12 of the reference patent discloses all of the limitations of claim 1 of the subject application.
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to VIVEK K SHIRSAT whose telephone number is (571)272-3722. The examiner can normally be reached M-F 9:00AM-5:20AM.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Steven B McAllister can be reached at 571-272-6785. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/VIVEK K SHIRSAT/Primary Examiner, Art Unit 3762
1 Equivalent in claim 11.
2 The examiner notes that a solution to this problem is claiming that “at least 85% of the second fuel is hydrogen” (or equivalent).
3 Hayden discloses that “[t]his gasifier receives heavy fuel oil from the supply 32 and air from the common duct 38 via a passage 39 at a rate determined by a damper 46 and converts the oil to a clean combustible gas which is fed to a burner 48 in the furnace 14 via a duct 50” [column 2 lines 23-27] where a person having ordinary skill in the art would recognize that gasifying heavy fuel oil results in the production of synthesis gas or “syngas” which is primarily composed of hydrogen, carbon monoxide, methane, and carbon dioxide.
4 Natural gas consists primarily of methane, which, being a compound of carbon and hydrogen, is interpreted as a supply of hydrogen to the flame, since the methane will disassociate into carbon and hydrogen during the combustion process.
5 See footnote 1.