Alexandra Chaumonnot et al.Download PDFPatent Trials and Appeals BoardMay 28, 20212020000379 (P.T.A.B. May. 28, 2021) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE UNITED STATES DEPARTMENT OF COMMERCE United States Patent and Trademark Office Address: COMMISSIONER FOR PATENTS P.O. Box 1450 Alexandria, Virginia 22313-1450 www.uspto.gov APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 13/995,531 10/08/2013 Alexandra Chaumonnot PET-2885 7465 23599 7590 05/28/2021 MILLEN, WHITE, ZELANO & BRANIGAN, P.C. 2200 CLARENDON BLVD. SUITE 1400 ARLINGTON, VA 22201 EXAMINER FORREST, MICHAEL ART UNIT PAPER NUMBER 1732 NOTIFICATION DATE DELIVERY MODE 05/28/2021 ELECTRONIC Please find below and/or attached an Office communication concerning this application or proceeding. The time period for reply, if any, is set in the attached communication. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address(es): docketing@mwzb.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte ALEXANDRA CHAUMONNOT, CLEMENT SANCHEZ, CEDRIC BOISSIERE, FREDERIC COLBEAU-JUSTIN, and AUDREY BONDUELLE ____________ Appeal 2020-000379 Application 13/995,531 Technology Center 1700 ____________ Before MICHAEL P. COLAIANNI, JEFFREY R. SNAY, and MERRELL C. CASHION, JR., Administrative Patent Judges. SNAY, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 17–30. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies Centre National de la Recherche Scientifique, Universite Pierre et Marie Curie, and IFP Energies Nouvelles as the real parties in interest. Appeal Br. 1. Appeal 2020-000379 Application 13/995,531 2 BACKGROUND The invention relates to inorganic oxide catalyst materials. Spec. 1. Sole independent claim 17 is representative: 17. An inorganic material constituted by at least two elementary spherical particles, each of said spherical particles comprising metallic nanoparticles having at least one band with a wave number in the range 750 to 1050 cm-1 in Raman spectroscopy and containing at least one or more metals selected from vanadium, niobium, tantalum, molybdenum and tungsten, said spherical particles being free of the presence of metallic particles in the form of heteropolyanions, said metallic nanoparticles being present within a mesostructured matrix based on an oxide of at least one element Y selected from the group constituted by silicon, aluminium, titanium, tungsten, zirconium, gallium, germanium, tin, antimony, lead, vanadium, iron, manganese, hafnium, niobium, tantalum, yttrium, cerium, gadolinium, europium and neodymium and a mixture of at least two of these elements, said matrix having pores with a diameter in the range 1.5 to 50 nm and having amorphous walls with a thickness in the range 1 to 30 nm, said elementary spherical particles having a maximum diameter of 200 microns and said metallic nanoparticles having a maximum dimension strictly less than 1 nm such that said metallic nanoparticles are not detected in transmission electron microscopy (TEM), wherein the material is prepared by a process comprising the following steps in succession: a) mixing: - at least one surfactant; - at least one precursor of the at least one element Y; - at least one first metallic precursor containing at least one or more metals selected from vanadium, niobium, tantalum, molybdenum and tungsten present in metallic nanoparticles having at least one band with a wave number in the range 750 to 1050 cm-1 in Raman spectroscopy; - optionally, at least one colloidal solution in which zeolitic nanocrystals with a maximum nanometric dimension equal to 300 nm are dispersed; to form a solution wherein at least the precursor of the at least Appeal 2020-000379 Application 13/995,531 3 one element Y and the at least one first metallic precursor are dissolved; b) aerosol atomizing said solution obtained in step a) in order to result in the formation of spherical liquid droplets; c) drying said droplets; and d) eliminating at least said surfactant. Appeal Br. 15–16 (Claims Appendix). REJECTIONS I. Claims 17–30 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Chaumonnot.2 II. Claims 17–30 stand alternatively rejected under 35 U.S.C. § 103(a) as unpatentable over Chaumonnot in combination with AAPA.3 OPINION Rejection I: obviousness over Chaumonnot With regard to Rejection I, Appellant argues the rejected claims as a group, focusing on features recited in independent claim 17. Appeal Br. 3– 13. We select this claim as representative, with which each remaining claim stands or falls. Appellant acknowledges the subject matter of this application was considered in our previous Decision dated December 21, 2017. Appeal Br. 3. Appellant contends, however, that the claims now on appeal have been amended to recite a product-by-process and, for that reason, present issues 2 US 2008/0072705 A1, published March 27, 2008 (“Chaumonnot”). 3 The Examiner identifies Appellant’s disclosure (Spec. 1) that CoMo, NiMo, and NiW are common formulations for hydrotreating catalysts as admitted prior art (“AAPA”). Final Act. 11. Appeal 2020-000379 Application 13/995,531 4 that are not the same as in the previous appeal. Id. Appellant points to no difference between claim 17 and that which was considered in our previous decision other than the recitation in claim 17 of process steps by which the claimed material is made. In rejecting claim 17, the Examiner finds Chaumonnot teaches or renders obvious all of the recited material properties, but does not disclose the recited process for its preparation. Final Act. 4–7. The Examiner cites In re Thorpe, 777 F.2d 695 (Fed. Cir. 1985) for the proposition that a product-by-process type claim is properly rejected where the prior art teaches or renders obvious the same product even though the prior art product was made by a different process. Final Act. 4. Appellant contends Chaumonnot’s disclosed process necessarily would have yielded a product other than that which is claimed. Appeal Br. 4. Particularly, Appellant argues Chaumonnot discloses forming a material from a colloid of separately prepared metal nanoparticles, whereas the claim recites a process involving a metallic precursor dissolved in solution. Id. Based on that distinction, Appellant argues “the size of the metal nanoparticles in the resulting Chaumonnot material has to be significantly greater than the size of the metallic nanoparticles in the claimed materials.” Id. See also id. at 5 (“With the nanoparticles being prepared in advance and not dissolved in a solution, the size of the metal nanoparticles in the resulting Chaumonnot material must necessarily be significantly greater than the size of the metallic nanoparticles in the claimed materials.”); Reply Br. 1 (stating that the main point made in the Appeal Brief is “that a product made from a solution having the metallic precursor dissolved in solution (as claimed) will necessarily have its resulting metallic nanoparticles smaller Appeal 2020-000379 Application 13/995,531 5 than those in a product made from a colloid having the metallic particles prepared in advance and suspended in a colloid (Chaumonnot)”). Appellant’s arguments are not persuasive for the reasons set forth in the Examiner’s Answer. We add the following for emphasis. Claim 17 recites, inter alia, “metallic nanoparticles having a maximum dimension strictly less than 1 nm.” The Examiner finds Chaumonnot discloses metallic nanoparticles having a diameter less than 300 nm, and finds Chaumonnot’s disclosed range overlaps and, therefore, renders obvious Appellant’s recited range. Final Act. 5 (citing Chaumonnot ¶ 16).4 Appellant’s argument that Chaumonnot’s disclosed production method necessarily would have yielded particles that are larger than particles produced by the recited method does not reveal error in the Examiner’s obviousness determination. The question raised in this appeal is whether the prior art relied upon by the Examiner suggests metal nanoparticles smaller than 1 nm. The Examiner presents sufficient evidence to support a finding that Chaumonnot would have suggested metal nanoparticles smaller than 1 nm, albeit from a different process. Appellant’s contention that the recited process produces smaller particles does not refute that finding. That is, accepting Appellant’s contention that the recited process steps yield particles smaller than those produced by Chaumonnot’s process does not require a determination that Chaumonnot’s disclosed range of less than 300 nm would 4 We rejected Appellant’s argument in the previous appeal that Chaumonnot discloses a range of 1 to 300 nm rather than a broader range of less than 300 nm. Decision on Appeal, dated December 21, 2017, 4. Appellant’s same argument repeated here, see Appeal Br. 9–13, is rejected for the same reasons. Appeal 2020-000379 Application 13/995,531 6 not have included particles smaller than 1 nm. Appellant’s further argument that Chaumonnot fails to enable producing nanoparticles smaller than 1 nm is conclusory and not supported by evidence. Appeal Br. 8. For the foregoing reasons, the Examiner’s rejection of claims 17–30 as obvious over Chaumonnot is sustained. Rejection II: obviousness over Chaumonnot and AAPA With regard to Rejection II, Appellant relies on the same arguments presented in connection with Rejection I. Appeal Br. 14. Accordingly, we sustain the Examiner’s rejection of claims 17–30 as obvious over Chaumonnot and AAPA for the reasons given above. CONCLUSION The Examiner’s decision rejecting claims 17–30 is affirmed. DECISION SUMMARY In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 17–30 103(a) Chaumonnot 17–30 17–30 103(a) Chaumonnot, AAPA 17–30 Overall outcome 17–30 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED Copy with citationCopy as parenthetical citation