Appeal 2007-2235
Application 10/138,617
gases contaminated with nitrogen oxides into an aerobically operated landfill
so as to reduce the contaminants to nitrogen.
We note that none of Hudgins, Apel, or Kneer discloses using a
landfill at least 1000 tons in size to decontaminate nitrogen oxide-
contaminated gases. However, we agree with the Examiner that one of
ordinary skill, advised by Apel that an aerobically operated landfill such as
that of Hudgins would reduce nitrogen oxides to nitrogen, would have
considered it obvious to use a landfill of that size to perform the
decontamination. It is well settled that “mere scaling up of a prior art
process capable of being scaled up, if such were the case, would not
establish patentability in a claim to an old process so scaled.” In re
Rinehart, 531 F.2d 1048, 1053, 189 USPQ 143, 148 (CCPA 1976).
Appellant argues that because Apel discloses that a smaller biofilter
worked better than a large biofilter, Apel teaches away from scaling up the
nitrogen oxide decontamination process and using a landfill to
decontaminate nitrogen oxide-containing gases (Br. 12). Appellant also
argues that Apel teaches that “NO removal was improved by . . . adding
glucose, and that adding buffer was important as well. These . . . additions
are not likely to be feasible or economical with a landfill” (id.). Finally,
Appellant urges that “Kneer discloses that engineering problems become
much more serious with increasing volume of organic waste mass (col. 2,
lines 61-65), which also teaches against the use of a landfill” (id.). In view
of these teachings, Appellant argues, the references “do not provide a
reasonable expectation of success” (id.; see also Reply Br. 5).
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