Appeal 2007-2235
Application 10/138,617
with the Examiner that one of ordinary skill, advised by Apel that
microorganisms in compost are capable of degrading nitrogen oxides to
nitrogen, would have reasonably expected that injecting nitrogen
oxide-containing gas into Hudgins’ compost-containing aerobic landfill
bioreactor would result in a substantial reduction of those oxides to nitrogen
gas.
We note that Kneer states that “the engineering problems of the
mechanical feeding and discharge and hence of the control of the forced
aeration become much more serious with increasing volume of the heap
which is to be degraded microbiologically” (Kneer, col. 2, ll. 61-65).
However, Hudgins clearly discloses that aerobic waste degradation can be
carried out advantageously on the scale of a municipal waste landfill (see
e.g., Hudgins, col. 2, ll. 34-50). Thus, one of ordinary skill viewing the
references in combination would have recognized the feasibility of high
volume aerobic waste degradation, despite the concerns raised by Kneer. It
is well settled that “[n]on-obviousness cannot be established by attacking
references individually where the rejection is based upon the teachings of a
combination of references. . . . [The reference] must be read, not in
isolation, but for what it fairly teaches in combination with the prior art as a
whole.” In re Merck & Co., 800 F.2d 1091, 1097, 231 USPQ 375, 380 (Fed.
Cir. 1986).
Appellant argues that “[u]se of a landfill of 1000 or more tons, or any
size, is not mere scaling up but a new method involving use of a landfill,
which is typically preexisting and created for another purpose, to degrade
gaseous pollutants” (Br. 13). Appellant argues that “[m]oving from [Apel’s]
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