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 .
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 1-3 and 21-37 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 “particularly wherein” followed by limitations describing the spatial arrangement of parts of the invention. “Particularly wherein” makes it unclear if the subsequent limitations are optional or required. For the purposes of examination, the limitations are interpreted as optional.
Claim 22 recites the limitation "the intermediate annular conduit exit plane" in line 2. There is insufficient antecedent basis for this limitation in the claim.
Claim 26 requires “especially” in line 6 and “in particular” in line 8 followed by limitations describing the spatial arrangement of parts of the invention. “Especially” and “in particular” make it unclear if the subsequent limitations are optional or required. For the purposes of examination, the limitations are interpreted as optional.
Claim 28 requires “a swirler section” in line 3, however, “a swirler section” is already introduced in line 1 of claim 28. For the purposes of examination the claim is interpreted as requiring “the swirler section”.
Claim 29 depends from itself, since the dependency of claim 29 is unclear it is impossible to determine the scope of the claim. For this reason the claim has not been treated on the merits.
A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, claim 31 recites the various broad recitations of velocity in parts i-iv, and the claim also recites narrow limitations in each part beginning with “particularly” which is the narrower statement of the range/limitation. The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims.
Claim 32 recites the limitation "the swirl angle" in line 1. There is insufficient antecedent basis for this limitation in the claim.
A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, claim 32 recites the broad recitation 5 to 60, and the claim also recites 30 to 45 which is the narrower statement of the range/limitation. The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims.
Claim 35 recites the limitation "the volumetric flow rate of premixed oxidant" in line 4. There is insufficient antecedent basis for this limitation in the claim.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 29 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. Claim 29 is written as depending on itself. Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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, 3, 28 and 33 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Batz et. al (US 20160076763 A1).
With respect to claim 1 Batz discloses a burner [reference character 100], comprising a primary fuel conduit [reference character 11] comprising a primary fuel outlet [reference character 17] having a multiplicity of primary fuel exit holes [see paragraph 0058] for supply of a primary fuel into an ignition chamber [see annotated Fig. below], wherein the wall surrounding the ignition chamber comprises a plurality of bleed holes [the apertures in 14], a main oxidant conduit [reference character 13] for supply of a main oxidant, comprising an intermediate annular conduit [see annotated Fig. below] in a downstream portion of the burner [see annotated Fig. below], which intermediate annular conduit is configured to allow splitting of the main oxidant, such that a first portion is introduced into the ignition chamber via the plurality of bleed holes to mix with the primary fuel, and a second portion is introduced into an oxidant section [the section occupied by swirl means 15]; wherein the burner further comprises a plurality of secondary oxidant conduits [reference character 113] for supply of a secondary oxidant, particularly wherein at least in said downstream portion of the burner the primary fuel conduit is surrounded by the main oxidant conduit and the plurality of secondary oxidant conduits [see Fig. 1].
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With respect to claim 2 Batz discloses that the burner further comprises a secondary fuel conduit [reference character 21] for supply of a secondary fuel, having a secondary fuel outlet [reference character 22] at its downstream end, wherein at least in the downstream portion of the burner, in which primary fuel outlet, ignition chamber, intermediate annular conduit and secondary fuel outlet are present, the primary fuel conduit is surrounded by the main oxidant conduit and the secondary fuel conduit [see Fig. 2].
With respect to claim 3 Batz discloses that at least in said downstream portion of the burner the primary fuel conduit is surrounded by the main oxidant conduit and the secondary fuel conduit, and the plurality of secondary oxidant conduits [see Fig. 2].
With respect to claim 28 Batz discloses that the oxidant section is a swirler section [reference character 15], particularly wherein the intermediate annular conduit is configured to allow splitting of the main oxidant into two portions, wherein a second portion is introduced into a swirler section.
With respect to claim 33 Batz discloses that during start-up, about 100% of the total thermal power of the burner is provided by the i) primary fuel [paragraph 0082].
With respect to claim 36 Batz discloses a method for operating a burner (1) in accordance with claim 1, the method comprising the steps of i) starting the burner, ii) ramping up the burner in firing rate [paragraphs 0082], iii) starting the secondary fuel, iv) further ramping up the burner to the firing rate of the burner [paragraph 0083].
With respect to claim 37 Batz discloses that step i) comprises starting the main oxidant, the ignition source, and the primary fuel [paragraph 0072].
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) 31 and 32 is/are rejected under 35 U.S.C. 103 as being unpatentable over Batz et. al (US 20160076763 A1).
With respect to claim 31 Batz does not disclose that the burner (1) is configured in such a way that, at the exit of a given conduit, the velocity of the primary fuel is between 30 ft/s and 500 ft/s, particularly between 40 i) ft/s and 400 ft/s; and/or ii) the velocity of the main oxidant is between 5 ft/s and 300 ft/s, particularly between 10 ft/s and 200 ft/s; and/or iii) the velocity of the secondary fuel is between 20 ft/s and 200 ft/s, particularly between 40 ft/s and 120 ft/s; and/or iv) the velocity of the secondary oxidant is between 50 ft/s and 500 ft/s, particularly between 100 ft/s and 300 ft/s.
However, the velocities of the fuel and oxidant are interpreted to be result effective variables that would be optimized in order to achieve a desired result. In this case the velocities would be optimized in order to minimized the mixing time (or mixing distance) and ensure flameholding over the breadth of the burner’s turndown ratio. Therefore, it would have been obvious to one of ordinary skill in the art at the time of the filing date of the invention to provide the fuel and oxidizer velocities required by the claim since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or working ranges involves only routine skill in the art In re Aller, 105 USPQ 233.
With respect to claim 32 Batz does not disclose that the swirl angle is from 5 to 60 degrees, preferably from 30 to 45 degrees. However, the swirl angle is interpreted to be a result effective variable that would be optimized in order to achieve a desired result. In this case the angle would be optimized so that the ratio of angular to axial momentum of the fluid issued from the swirler would result in both mixing and flame stabilization.
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.
Claims 1-3, 21, 23-24, and 26-30 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 3, 5-6, 21-23, 25, and 27 of copending Application No. (18/233,419, hereinafter ‘419) in view of Batz.
Claim 1 of ‘419 provides for all of the limitations of claim 1 of the subject application except for wherein the burner further comprises a plurality of second oxidant conduits for supply of secondary oxidant.
Batz discloses a burner [reference character 100], comprising a primary fuel conduit [reference character 11] comprising a primary fuel outlet [reference character 17] having a multiplicity of primary fuel exit holes [see paragraph 0058] for supply of a primary fuel into an ignition chamber [see annotated Fig. below], wherein the wall surrounding the ignition chamber comprises a plurality of bleed holes [the apertures in 14], a main oxidant conduit [reference character 13] for supply of a main oxidant, comprising an intermediate annular conduit [see annotated Fig. below] in a downstream portion of the burner [see annotated Fig. below], which intermediate annular conduit is configured to allow splitting of the main oxidant, such that a first portion is introduced into the ignition chamber via the plurality of bleed holes to mix with the primary fuel, and a second portion is introduced into an oxidant section [the section occupied by swirl means 15]; wherein the burner further comprises a plurality of secondary oxidant conduits [reference character 113] for supply of a secondary oxidant.
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 ‘419 by providing secondary oxidant conduits around the secondary fuel conduits for supply of secondary oxidant, as taught by Batz, in order to ensure sufficient secondary air for combustion of the secondary fuel.
Claim 1 of ‘419 provides for all the limitations of claims 2-3 of the subject application.
Claim 3 of ‘419 provides for all the limitations of claim 21 of the subject application.
Claim 5 of ‘419 provides for all the limitations of claim 23 of the subject application.
Claim 6 of ‘419 provides for all the limitations of claim 24 of the subject application.
Claim 21 of ‘419 in combination with Batz provides for all the limitations of claim 26 of the subject application.
Claim 22 of ‘419 provides for all the limitations of claim 27 of the subject application.
Claim 23 of ‘419 provides for all the limitations of claim 28 of the subject application.
Claim 25 of ‘419 provides for all the limitations of claim 29 of the subject application.
Claim 27 of ‘419 provides for all the limitations of claim 30 of the subject application.
This is a provisional nonstatutory double patenting rejection.
Conclusion
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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/VIVEK K SHIRSAT/Primary Examiner, Art Unit 3762