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 Objections
Claim 11 objected to because of the following informalities:
“means to heating” should be written as “means to heat”.
Appropriate correction is required.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
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 1-11 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 recites “a total quantity of air to be separated” but it is unclear how it relates to “introducing air to be separated”. For the purpose of examination, the total quantity of air to be separated is the same as the air introduced to be separated.
Claim 1 recites “heating the gaseous nitrogen from the pressure column to a temperature in a sixth temperature range from 0 to 50 C” which is considered indefinite as it is unclear how it relates to the expansion of this same stream. For the purpose of examination, this limitation is interpreted that the heating is after the expansion.
Claim 3 recites a series of steps for transforming the “further partial quantity of air to be separated” but does not positively recite how they are connected. For the purpose of examination, the steps are considered to be sequential.
Claim 11 recites a series of structural means for providing various changes to the partial quantity of the total quantity of air to be separated; however, the structural limitations are not connected to teach other, which renders the claim language indefinite as it is unclear at what point structurally each means is present in the invention. For the purpose of examination, the different structures of the invention are arranged as they are listed in the claim such that the total quantity of air to be separated is transformed by each step sequentially.
Claim 11 recites “means to heat the gaseous nitrogen removed from the pressure column to a temperature in a sixth temperature range” which is considered indefinite as the claim has already means to expand that same stream so it is unclear where structurally this means would be. For the purpose of examination, the means to heat are considered to be after the means to expand.
Claims 2, 4-10 are rejected as being dependent upon a rejected claim.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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) 1-2, 4, 6-9, 11 is/are rejected under 35 U.S.C. 103 as being unpatentable over Ha (US PG Pub 20050126221), hereinafter referred to as Ha and further in view of Abdelwahab et al. (US PG Pub 20160053764), hereinafter referred to as Abdelwahab and Cao et al. (US PG Pub 20220128301), hereinafter referred to as Cao and Ishi et al. (JP2002340477), hereinafter referred to as Ishi.
With respect to claim 1, Ha (Figure 3) teaches a method for the cryogenic separation of air using an air separation plant comprising a rectification column arrangement (30/31) with a pressure column (high pressure column 30, paragraph 48) and a low-pressure column (low-pressure column 31, paragraph 48), introducing air to be separated int the rectification column arrangement (feed air 11 is sent to the columns, paragraph 6)
wherein the pressure column is operated in a first pressure range and the low-pressure column is operated in a second pressure range, which is below the first pressure range (the double column is a traditional type of two column process, paragraph 48 which is known to have a low pressure column of 1.4 to 4 bar and a high pressure column of 5 to 7 bar, paragraphs 3-4), and compressing at least 90% of a total quantity of air separated in the rectification column arrangement is compressed to a pressure in a third pressure range which is at least 4 bar above the first pressure range (atmospheric air which as seen in the figure represents all of the feed air is initially compressed in air compressor 1, paragraph 48 to pressure 11 to 17 bar, paragraph 52 which overlaps with is at least 4 bars above the first pressure range),
successively supply a partial quantity of the total air to be separated quantity to a first booster driven by a first turbine at a temperature in a first temperature range of -30 to 100 C compressing the partial quantity of the total quantity of air to be separated using the first booster from the pressure in the third pressure range to a pressure in a fourth pressure range, which is above the third pressure range (the feed air is cooled to between -20 and 0 C and part of it is removed as stream 35 and sent to booster braker compressor 3 where it is further pressurized and thus to a higher pressure than the third range, which compressor is braked against expander 18, paragraphs 48 and 57 which as it is expanding and providing driving is a turbine), cooling the partial quantity of the total quantity of air to be separated to a temperature in a second temperature range of -160 to 60C, supplying the partial quantity of the total quantity of air to be separated at the temperature in the second temperature range to a second booster driven by a second turbine (after the compressed the air is cooled to temperature T1 of -110 to -140 C at least a portion 7 is sent to a second compressor where it is boosted again in pressure, which compressor is driven by expander 18, paragraphs 48 and 55, which would be a turbine as it is driving the booster), compressing the partial quantity of the total quantity of air to be separated using the second booster from the pressure in the fourth pressure range to a pressure in a fifth pressure range, which is above the fourth pressure range (compression in 8 would be to an even higher pressure), cooling the partial quantity of the total quantity of the total quantity of air to be separated to a temperature in a third temperature range of, and feeding the partial quantity of the total quantity of air to be separated into the pressure column (the compressed stream 9 is cooled to condense the air which can be fed into column 30), removing gaseous nitrogen from the pressure column at a pressure in the first pressure range and successively heating the gaseous nitrogen from the pressure column to a temperature a the fourth temperature range (nitrogen 14 from 30, which would be at the first pressure range as that is the column pressure, is removed and heated in the heat exchanger to form stream 17, which temperature can be considered a fourth range), expanding the gaseous nitrogen form the pressure column in the second turbine while cooling the gaseous nitrogen from the pressure column to a temperature in a fifth temperature range to a pressure in (17 is expanded in 18 to a temperature which can be considered a fifth range, paragraph 48), and heated to a temperature in a sixth temperature range (after expansion the stream is heated to form 24 at ambient, paragraph 48, which can be considered the sixth temperature range) removing gaseous nitrogen from the low-pressure column and heating the gaseous nitrogen from the low-pressure column (gaseous nitrogen 25 is removed from low pressure column 31 and heated to form stream 26, paragraph 7, which is an ambient temperature, paragraph 49) wherein the gaseous nitrogen removed from the low-pressure column is heated separately from the gaseous nitrogen removed from the pressure column (the two streams of nitrogen are heated in the heat exchanger at separate temperatures),
Ha does not teach the third temperature is in the range of -200 to -150 C. Ha does teach the stream from the second booster is liquefied (paragraph 48) and also teaches that the pressure is 17 to 25 bar for the stream from the second booster (paragraph 55) and while this does appear to provide a range that would include -200 to -150 C as air would liquefy within this range, it is not explicitly taught in Ha.
Abdelwahab (Figure 4) teaches that a further compressed air stream (from 165) which is cooled in the heat exchanger (17) is liquefied and cooled to form a liquid air stream which is at a temperature suitable or rectification in the distillation column (paragraph 69). As such, it can be shown by Abdelwahab that the temperature for cooling of the stream (stream 10 of Ha needs to be optimized to “bring it to a temperature suitable for rectification in a distillation column”. Further, it appears that one of ordinary skill in the art would have had a reasonable expectation of success in modifying Ha as it involves only adjusting the dimension of a component disclosed to require adjustment. Therefore, it would have been been obvious to one having ordinary skill in the art at the time of the invention to modify Ha so that the third temperature is in a range of -200 to -150 C as a matter of routine optimization since it has been held that “where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Ha does not teach expansion of the gaseous nitrogen in the second turbine is to the second pressure range.
Cao (Figure 1) teaches that a pressurized nitrogen stream is removed from a distillation column system (22) is heated (24), expanded (30) to 1.22 bar (Table 1, paragraph 33)
It would have been obvious to one having ordinary skill in the art at the time the invention was filed to have based on the teaching of Cao to have when expanding the gaseous nitrogen stream of Ha in the second turbine to have brought it to 1.22 bar (the streams start in the same range, and as such the stream of Cao would be understood to be the equivalent nitrogen stream) as applicant appears to have placed no criticality on the claimed (see paragraph 42 only stating in particular its between 1 to 2 bar) and since it has been held that “[i]n the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists.” In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Ha does not teach after expanding in the second turbine that the gaseous nitrogen is heated to a sixth temperature range from 0 to 50°C.
Zhou teaches that after expanding the nitrogen gas is heated to room temperature (paragraph 31).
It would have been obvious to a person having ordinary skill in the art at the time the invention was filed to have based on the teaching of Zhou to have when heating the expanded gaseous nitrogen stream to have done so to room temperature (which one having ordinary skill in the art would recognize would be approximately 25-27 C and thus within the range of 0 to 50 C) as applicant appears to have placed no criticality on the claimed range (indicating simply that the sixth temperature range is 0 to 50 C) and since it has been held that “[i]n the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists.” In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Ha does not teach the low-pressure column nitrogen is also heated to the temperature in the sixth temperature range, such that both streams are at the temperature in the sixth temperature range.
Ishi teaches that low pressure nitrogen removed from an upper column is heated to room temperature in the heat exchanger before leaving the cold box (paragraph 7).
It would have been obvious to a person having ordinary skill in the art at the time the invention was filed to have based on the teaching of Ishi to have when heating the gaseous nitrogen from the low-pressure column have done so to room temperature (which one having ordinary skill in the art would recognize would be approximately 25-27 C and thus within the range of 0 to 50 C) as applicant appears to have placed no criticality on the claimed range (indicating simply that the sixth temperature range is 0 to 50 C) and since it has been held that “[i]n the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists.” In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). Thus, both streams would be to be at the temperature in the sixth temperature range as they are both to room temperature.
Ha as modified does not explicitly that the fourth temperature range is from -100 to 50°C and the fifth temperature range is from -150 to -40°C.
Ha does teach that the order of the temperatures of the streams of the heat exchanger can be changed based on pressure of the vaporized oxygen and pressure of the column systems to optimize the performance of the process (paragraph 49).
As such, the temperature into the expander (and thus the temperature out) are a result effective variable that need to be optimized to “optimize the performance of the process”. Further, it appears that one of ordinary skill in the art would have had a reasonable expectation of success in modifying Ha as modified to have the temperatures within the claimed range, as it only involves adjusting the dimension of a component disclosed to require adjustment. Therefore, it would have been obvious to one of ordinary skill in the art at the time the invention was filed to have modified Ha as modified such that the fourth temperature range is from -100 to 50°C and the fifth temperature range is from -150 to -40°C as a matter of routine optimization since it has been held that “where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
With respect to claim 2, Ha as modified teaches wherein the first pressure range is 4 to 7 bar (5 to 7 bar, paragraph 4), the second pressure range is 1 to 2 bar (1.4 to 4 bar, paragraph 3), the third pressure range is 10 to 18 bar (third pressure is 11 to 17 bar, paragraph 52), the fourth pressure range is in a pressure range of 1.2 times to 1.5 times the third pressure range (pressure of stream 4 is 18 to 25 bar, paragraph 53, which overlaps with 1.2 to 1.5 third pressure) which the fifth pressure range is in a pressure range of 1.6 times to 2.5 times the fourth pressure range (stream of pressure 9 is 27 to 50 bar, paragraph 54, which overlaps with 1.2 to 1.5 the fourth pressure range).
With respect to claim 4, Ha as modified teaches wherein a further partial quantity of the total separated air quantity at the pressure in the third pressure range is cooled to a temperature and fed into the pressure column (liquefied air flow stream 33 can be removed and liquefied so that not all of the stream is sent for further compression in 3 and 8, paragraphs 56-67, and is then as sent along with stream 10 to the column 30 as seen in the figure).
Ha does not teach that the further partially quantity of the total separated air is cooled to the temperature in the third temperature range.
Abdelwahab (Figure 4) teaches that a further compressed air stream (from 165) which is cooled in the heat exchanger (17) is liquefied and cooled to form a liquid air stream which is at a temperature suitable or rectification in the distillation column (paragraph 69). As such, it can be shown by Abdelwahab that the temperature for cooling of the stream (stream that becomes 33 that was not sent to compressor 3) of Ha needs to be optimized to “bring it to a temperature suitable for rectification in a distillation column”. Further, it appears that one of ordinary skill in the art would have had a reasonable expectation of success in modifying Ha as it involves only adjusting the dimension of a component disclosed to require adjustment. Therefore, it would have been obvious to one having ordinary skill in the art at the time of the invention to modify Ha so that the liquid air stream (33) is in the third temperature range of -200 to -150 C as a matter of routine optimization since it has been held that “where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
With respect to claim 6, Ha as modified teaches wherein one or more liquids are removed from the rectification column arrangement (liquid oxygen 20, paragraph 48), subjected to one or more internal compressions, and discharged from the air separation plant in the form of one or more gaseous internal compression products (liquid oxygen 20 is boosted by pump 21, paragraph 48, which would be internal compression and then heated and vaporized in the exchanger to provide an oxygen product 23, paragraph 48).
With respect to claim 7, Ha as modified teaches wherein the one or more gaseous internal compression products is or comprises a gaseous internal compression product produced using oxygen-rich liquid from the low-pressure column (the oxygen stream is a liquid stream from the low-pressure column, paragraph 48).
With respect to claim 8, Ha as modified teaches wherein which no liquid products are removed from the air separation plant (as seen in the figure no liquid products are recovered from the system, only three gaseous ones, 23, 26, 24).
With respect to claim 9, Ha as modified does not teach wherein an argon-rich liquid is removed from the low-pressure column and supplied to an argon recovery system for the recovery of argon.
Examiner takes official notice that it would have been obvious to a person having ordinary skill in the art at the time the invention was filed to have provided an argon column in the distillation column system of Ha as modified where an argon-rich liquid is passed from the low-pressure column to the argon column so that in addition to oxygen and nitrogen products, an argon product can be produced. Applicant has not timely traversed this official notice and as such it is considered admitted prior art.
With respect to claim 11, Ha (Figure 3) teaches an air separation plant for the cryogenic separation of air, comprising
a rectification column arrangement (30/31) with a pressure column (high pressure column 30, paragraph 48) and a low-pressure column (low-pressure column 31, paragraph 48), the pressure column is adapted to operate in a first pressure range and the low-pressure column is adapted to operate in a second pressure range that is below the first pressure range (the double column is a traditional type of two column process, paragraph 48 which is known to have a low pressure column of 1.4 to 4 bar and a high pressure column of 5 to 7 bar, paragraphs 3-4),
means to compress at least 90% of a total quantity of air separated in the rectification column arrangement to a pressure in a third pressure range which more than 5 bar above the first pressure range (atmospheric air which as seen in the figure represents all of the feed air is initially compressed in air compressor 1, paragraph 48 to pressure 11 to 17 bar, paragraph 52 which overlaps with is at least 5 bars above the first pressure range)
means to supply a partial quantity of the total quantity air to be separated at a first temperature range of -30 to 100 C to a first booster driven by a first turbine, wherein the first booster is capable of compressing the partial quantity of the total quantity of air to be separated from the pressure in the third pressure range to a pressure in a fourth pressure range, which is above the third pressure range (the feed air is cooled to -20 to 0 C, paragraph 57, and part of the feed air is supplied to booster braker compressor 3 where it is further pressurized and thus to a higher pressure than the third range, which compressor is braked against expander 13, paragraph 48, which as it is expanding and providing driving is a turbine),
means to cool the partial quantity of the total quantity of air to be separated to a temperature in a second temperature range of -160 to -60°C and means to supply the partial quantity of the total quantity of air to be separated at the temperature in the second temperature range to a second booster driven by a second turbine (after the compression the air is cooled to temperature T1 of -110 to -140 C at least some of it, which can be considered the partial quantity, is sent to a second compressor where it is boosted again in pressure, which compressor is driven by expander 18, paragraphs 48 and 55, which would be a turbine as it is driving the booster), wherein the second booster compressor is capable of compressing the partial quantity of the total quantity of air to be separated from the pressure in the fourth pressure range to a pressure in a fifth pressure range which is above the fourth pressure range (compression in 8 would be to an even higher pressure), means to cool the partial quantity of the total quantity of air to be separated to a temperature in a third temperature range and means to feed the partial quantity of the total quantity of air to be separated into the pressure column (the compressed stream 9 is cooled to condense the air which can be fed into column 30 such temperature can be considered a temperature in a third range),
- means for removing gaseous nitrogen from the pressure column at a pressure in the first pressure range and means to heat the gaseous nitrogen removed from the pressure column to a temperature in a fourth temperature range (nitrogen 14 from 30, which would be at the first pressure range as that is the column pressure, is removed and heated in the heat exchanger to form stream 17), means deliver the gaseous nitrogen removed from the pressure column to the second turbine wherein the second turbine expands and cools the gaseous nitrogen removed from the pressure column to a temperature in a fifth temperature range and to a pressure (17 is passed to and expanded in 18 to a pressure, paragraph 48, which would cool it and bring it to a fifth temperature range) means to heat the gaseous nitrogen removed from the pressure column to a temperature in a sixth temperature range (after expansion the stream is heated to form 24 at ambient, paragraph 48), and
- means to remove gaseous nitrogen from the low-pressure column and means to heat the gaseous nitrogen removed from the low-pressure column to a temperature (gaseous nitrogen 25 is removed from low pressure column 31 and heated to form stream 26, paragraph 7), wherein the air separation plant is designed
- means to heating the gaseous nitrogen removed from the low-pressure column separately from the gaseous nitrogen removed from the pressure column (the streams are heated separately as seen in the figure),
Ha does not teach the third temperature is in the range of -200 to -150 C. Ha does teach the stream from the second booster is liquefied (paragraph 48) and also teaches that the pressure is 17 to 25 bar for the stream from the second booster (paragraph 55) and while this does appear to provide a range that would include -200 to -150 C as air would liquefy within this range, it is not explicitly taught in Ha.
Abdelwahab (Figure 4) teaches that a further compressed air stream (from 165) which is cooled in the heat exchanger (17) is liquefied and cooled to form a liquid air stream which is at a temperature suitable or rectification in the distillation column (paragraph 69). As such, it can be shown by Abdelwahab that the temperature for cooling of the stream (stream 10 of Ha needs to be optimized to “bring it to a temperature suitable for rectification in a distillation column”. Further, it appears that one of ordinary skill in the art would have had a reasonable expectation of success in modifying Ha as it involves only adjusting the dimension of a component disclosed to require adjustment. Therefore, it would have been been obvious to one having ordinary skill in the art at the time of the invention to modify Ha so that the third temperature is in a range of -200 to -150 C as a matter of routine optimization since it has been held that “where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Ha does not teach expansion of the gaseous nitrogen in the second turbine is to the second pressure range.
Cao (Figure 1) teaches that a pressurized nitrogen stream is removed from a distillation column system (22) is heated (24), expanded (30) to 1.22 bar (Table 1, paragraph 33)
It would have been obvious to one having ordinary skill in the art at the time the invention was filed to have based on the teaching of Cao to have when expanding the gaseous nitrogen stream of Ha in the second turbine to have brought it to 1.22 bar (the streams start in the same range, and asuch the stream of Cao would be understood to be the equivalent nitrogen stream) as applicant appears to have placed no criticality on the claimed (see paragraph 42 only stating in particular its between 1 to 2 bar) and since it has been held that “[i]n the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists.” In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Ha does not teach the means to heat the gaseous nitrogen removed from the pressure column is to a temperature in a sixth temperature range of 0 to 50 C.
Zhou teaches that after expanding the nitrogen gas is heated to room temperature (paragraph 31).
It would have been obvious to a person having ordinary skill in the art at the time the invention was filed to have based on the teaching of Zhou to have when heating the expanded gaseous nitrogen stream to have done so to room temperature (which one having ordinary skill in the art would recognize would be approximately 25-27 C and thus within the range of 0 to 50 C) as applicant appears to have placed no criticality on the claimed range (indicating simply that the sixth temperature range is 0 to 50 C) and since it has been held that “[i]n the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists.” In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Ha does not teach the low-pressure column nitrogen is also heated to the temperature in the sixth temperature range, such that both streams are at the temperature in the sixth temperature range.
Ishi teaches that low pressure nitrogen removed from an upper column is heated to room temperature in the heat exchanger before leaving the cold box (paragraph 7).
It would have been obvious to a person having ordinary skill in the art at the time the invention was filed to have based on the teaching of Ishi to have when heating the gaseous nitrogen from the low-pressure column have done so to room temperature (which one having ordinary skill in the art would recognize would be approximately 25-27 C and thus within the range of 0 to 50 C) as applicant appears to have placed no criticality on the claimed range (indicating simply that the sixth temperature range is 0 to 50 C) and since it has been held that “[i]n the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists.” In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). Thus, both streams would be in the same sixth temperature range.
Ha as modified does not explicitly that the fourth temperature range is from -100 to 50°C and the fifth temperature range is from -150 to -40°C.
Ha does teach that the order of the temperatures of the streams of the heat exchanger can be changed based on pressure of the vaporized oxygen and pressure of the column systems to optimize the performance of the process (paragraph 49).
As such, the temperature into the expander (and thus the temperature out) are a result effective variable that need to be optimized to “optimize the performance of the process”. Further, it appears that one of ordinary skill in the art would have had a reasonable expectation of success in modifying Ha as modified to have the temperatures within the claimed range, as it only involves adjusting the dimension of a component disclosed to require adjustment. Therefore, it would have been obvious to one of ordinary skill in the art at the time the invention was filed to have modified Ha as modified such that the fourth temperature range is from -100 to 50°C and the fifth temperature range is from -150 to -40°C as a matter of routine optimization since it has been held that “where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Claim(s) 3 is/are rejected under 35 U.S.C. 103 as being unpatentable over Ha/Abdelwahab/Zhou/Ishi/Cao and further in view of Goloubev (US PG Pub 20160003536), hereinafter referred to as Goloubev.
With respect to claim 3, Ha as modified teaches further comprising supply a further partial quantity of the total quantity of air to be separated and cooling the further partial quantity of total quantity of air to be separated to the temperature in the second temperature range or a further temperature range and expanding the further partial quantity of the total quantity of air to be separated in the first turbine to a pressure in the first pressure range and feeding the further partial quantity of the total quantity of air to be separated into the pressure column (a part of the compressed air from 11 is removed as stream 15, which is at a temperature T3, which is below T1 expanded as stream 15 in 13 for expansion into the high-pressure column, paragraph 48, which means the expansion pressure would be to that of the first pressure range).
Ha does not teach the stream sent to the first turbine is part of the stream sent to the first booster at the temperature in the first temperature range and successively compressing the further partial quantity of the total air to be separated using the first booster from the pressure in the third pressure range to the pressure in the fourth pressure range, before being cooled and removed for expansion.
Goloubev teaches that after being boosted in pressure a portion of the boosted air stream (12) can be cooled in the main heat exchanger to an intermediate temperature, removed (16) and passed to a turbine (17) before being sent to the columns (paragraphs 36-37).
Therefore it would have been obvious to a person having ordinary skill in the art at the time the invention was filed to have based on the teaching of Goloubev to have instead of having the air stream passed to the expander (13) of Ha as modified come from the outlet of the compressor (1) to have a split portion of the boosted stream from the outlet of the booster compressor (3) be cooled down and removed as the stream (15) sent to the expander since it has been shown that a simple substitution of one known element (expander stream derived from upstream of the booster compressor) for another (expander stream derived from downstream of booster compressor) to yield predictable results is obvious, whereby as they are both ways of providing a portion of an air stream to an expander which then passed the stream to the column it would have been prima facie obvious to substitute one method for the other as one of ordinary skill in the art would have been able to carry out such a substitution to provide the predictable result of an expanded stream suitable for passing for distillation. Thus, the stream passed to the expander would be part of the stream which is supplied to the first booster at the temperature in the first temperature range, is boosted to the fourth pressure, and is cooled and removed for at the further temperature range before being expanded.
Claim(s) 5 is/are rejected under 35 U.S.C. 103 as being unpatentable over Ha/Abdelwahab/Zhou/Ishi/Cao and further in view of Goloubev (US PG Pub 20180017322), hereinafter referred to as Dimitri.
With respect to claim 5, Ha as modified does not teach wherein the gaseous nitrogen removed from the low-pressure column and the gaseous nitrogen removed from the pressure column are combined at the temperature in the sixth temperature range being separately heated to the temperature in the sixth temperature range.
Dimitri (Figure 1) teaches that a warm expanded stream from the high-pressure column (17 in part passes to 41 which becomes 43) and the warmed stream from the top of the low-pressure column (18) can be united and drawn off as a product (paragraph 54).
Therefore it would have been obvious to a person having ordinary skill in the art at the time the invention was filed to have based on the teaching of Dimitri to after heating of the two gaseous nitrogen streams of Ha as modified to have combined them (this would be at the sixth temperature range, as it is the warmed streams that are mixed) since it has been shown that combining prior art elements to yield predictable results is obvious whereby combining the streams would provide the predictable result (as taught by Dimitri) of allowing them to be withdrawn as a single product stream together.
Claim(s) 10 is/are rejected under 35 U.S.C. 103 as being unpatentable over Ha/Abdelwahab/Zhou/Cao//Ishi/Dimitri and further in view of Nojima et al. (JP2006284075), hereinafter referred to as Nojima.
With respect to claim 10, Ha as modified does not teach wherein gaseous nitrogen is removed from the pressure column, heated to a temperature in the sixth temperature range and recovered at a pressure in the first pressure range as nitrogen-rich air product.
Dimitri teaches that that a portion of the overhead nitrogen removed from the high-pressure column (stream 17) can be heated in the heat exchanger to form a high-pressure gaseous nitrogen stream (paragraph 56) which is at the same pressure range as the high-pressure column (paragraph 29 and 56 show the stream and column to be in the same range).
Therefore it would have been obvious to a person having ordinary skill in the at the time the invention was filed to have based on the teaching of Dimitri to have had a portion of the overhead nitrogen stream (14) from the high pressure column of Ha as modified be split off and not sent to the expander (18) where it is heated in the main heat exchanger and recovered since been shown that combining prior art elements to yield predictable results is obvious whereby this would provide the predictable result of the recovery of an additional product stream in the form of high pressure nitrogen.
Nojima teaches that when the nitrogen gas from the high-pressure column is heated in the main heat exchanger it is to room temperature (paragraph 27).
It would have been obvious to a person having ordinary skill in the art at the time the invention was filed to have based on the teaching of Nojima to have when heating the gaseous nitrogen stream form the high pressure column to have done so to room temperature (which one having ordinary skill in the art would recognize would be approximately 25-27 C and thus within the range of 0 to 50 C) as applicant appears to have placed no criticality on the claimed range (indicating simply that the sixth temperature range is 0 to 50 C) and since it has been held that “[i]n the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists.” In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Response to Arguments
Applicant’s arguments, see page 10, paragraph 1, filed 4/11/2026, with respect to the rejection(s) of claim(s) 1 and 11 under 35 USC 103(c) have been fully considered and are persuasive. Therefore, the rejection has been withdrawn. However, upon further consideration, a new ground(s) of rejection is made in view of Cao.
Applicant's arguments filed 4/11/2026, except those listed above have been fully considered but they are not persuasive.
Applicant argues that “all of the air to be separated is further compressed a first booster compressor” in Ha. This is not persuasive.
As can be seen in Ha, only a partial stream (35) formed of the feed stream (11) is passed to the booster compressor (3) with the remaining stream passed through the heat exchanger without being passed to 3 (paragraph 57).
Applicant’s argument paragraph 2-3 of page 8, do not provide any specific argument against the teachings in the rejection above, as Ha is not relied on for teaching the specifics of those streams.
Applicant argues page 8, paragraph 4 that the pressures cited in regard to the first and second pressure range relate to the background and do not describe the pressures in Figure 3. This is not persuasive.
The pressures recited (paragraph 3-4) in Ha teach about a basic distillation scheme which is “usually a double column process” and then recite the operating pressures of such columns as 1.4 to 4 bar and 5 to 7 bar. The double column is described (paragraph 48) as being a traditional double column, which one having ordinary skill in the art would recognize would be the same as a “basic distillation scheme” with the pressures as claimed. As such, those pressures can be considered to provide a showing of obviousness of the pressures present in the columns of Ha.
Applicant argues, page 8, last paragraph – page 9 that “The stream that is compressed in booster braker compressor 3 is not a part of the feed air” but “is the entirety of the feed air”. This is not persuasive.
As can be seen in Ha, only a partial stream (35) formed of the feed stream (11) is passed to the booster compressor (3) with the remaining stream passed through the heat exchanger without being passed to 3 (paragraph 57).
Applicant argues the rejection states “booster braker compressor 3 pressurized stream 7 from this third pressure to a fourth pressure” whereas “booster brake compressor 3 pressurizes stream 7 from a pressure of 18 to 25 bar, pressures above the third pressure range of 11 to 17 bar”. This is not persuasive.
Booster brake compressor (3) does not pressurize stream 7, but stream 35 (paragraph 57) to form a stream 4) which is at the pressure of 11 to 17 bar prior to compression and at 18 to 25 bar after compression (paragraphs 52-53). Stream 8 is pressurized by the other booster brake compressor (8) to the higher pressure of 27 to 50 bra (paragraph 54).
Applicant’s arguments page 9, paragraphs 2-3 are only repeating what it disclosed above that Ha does not teach.
Applicant argues, page 9, last 2 paragraphs that “liquefaction of an air stream is dependent on the pressure of the air stream” which is not disclosed by Abdelwahab” and based on the pressures in Ha the stream would liquefy at above -150 C and as such “there is no suggestion that the cooled partial stream after the second booster… has a temperature within the range of -200 C to -150 C”. This is not persuasive.
What is provided by Abdelwahab is an explicit teaching that when feed air stream is cooled in a distillation column system it is brough to “temperatures suitable for rectification in the distillation column system” which is a teaching that the temperature at which the stream is provided at is a result effective variable, which is optimized so that it is at a temperature suitable for rectification in the distillation column. Thus, based on the teaching of Abdelwahab, and since it has been held that “where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955), the limitation as claimed can be said to be obvious.
Applicant argues, page 10, paragraph 3 that “nothing in the disclosure of Ha et al. suggest that optimization of Ha et al.’s process would lead to temperatures within these ranges”. This is not persuasive.
Ha teaches that the temperatures of the various streams can be changes to “optimize the performance of the process” which is a teaching that the specific temperatures are result effective variable, and since it has been held that “where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955), the limitation as claimed can be said to be obvious.
Applicant argues that the modification of Ha in claim 3 with Goloubev is not a “simple substitution” but “would require substantial changes” and “no motivation to make this complicate substitution” is provided. This is not persuasive.
This would not be a substantial change or complicated substitution as argued above, but a simple substitution. The teachings of both Ha and Goloubev are both ways of providing a portion of an air stream to an expander which then passed the stream to the column. As such one having ordinary skill in the art would consider both methods to be equally obvious as the way to provide the expanded stream suitable for passing to a distillation column, thus rendering the limitation obvious in order to achieve a stream that is suitable for distillation. It is well known in the art that both the feed streams and how feed streams are provided to a column including at what temperature and pressure they are provided at in various stages of operation is well within ordinary skill in the art and making changes to said streams would be well within ordinary skill in the art.
Applicants remaining arguments are moot as they are only drawn to how the additional prior art does not apply to the rejections of claim 1.
Conclusion
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/BRIAN M KING/Primary Examiner, Art Unit 3763
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