Appeal 2007-2235
Application 10/138,617
We are not persuaded by this argument. “A reference may be said to
teach away when a person of ordinary skill, upon reading the reference,
would be discouraged from following the path set out in the reference, or
would be led in a direction divergent from the path that was taken by the
applicant.” In re Kahn, 441 F. 3d 977, 990, 78 USPQ2d 1329, 1338 (Fed.
Cir. 2006)).
We note that Apel discloses that a shorter (12 inch)
compost-containing biofilter is “more efficient” than a longer (36 inch)
biofilter with respect to nitrogen oxide removal (Apel, col. 6, ll. 41-58).
However, even the larger biofilter disclosed by Apel was capable of
“removing 94% of the NO in an influent gas stream containing 250 μl/l NO”
(id. at col. 6, ll. 45-46). Given this level of decontamination, we do not
agree that Apel would have discouraged one of ordinary skill from using
large scale compost-containing bodies, such as Hudgins’ landfill, to
decontaminate larger amounts of contaminated gases.
We also note that Apel added glucose and buffer to the biofilters in
certain experiments (id. at col. 7, ll. 1-54). However, Apel obtained similar
results in the absence of glucose (id. at col. 7, l. 65, through col. 8, l. 14)
(Nox removal in glucose-added experiments ranged from 70% to 99%; Nox
removal in no-glucose-added experiment ranged from 79% to 94%).
Therefore, a person of ordinary skill in the art would not have understood
Apel to teach that adding glucose was necessary for Nox decontamination.
Moreover, claim 1 does not require the landfill to degrade nitrogen
oxides at any particular level of efficiency. Rather, claim 1 requires only a
“substantial” reduction of the nitrogen oxides to nitrogen gas. We agree
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