Daniel M. Hasenberg et al.Download PDFPatent Trials and Appeals BoardSep 4, 201914221327 - (D) (P.T.A.B. Sep. 4, 2019) 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. 14/221,327 03/21/2014 Daniel M. Hasenberg 60293.0096US01 2162 66767 7590 09/04/2019 MERCHANT & GOULD CHEVRON PHILLIPS P.O. BOX 2903 MINNEAPOLIS, MN 55402-0903 EXAMINER NASSIRI MOTLAGH, ANITA ART UNIT PAPER NUMBER 1734 NOTIFICATION DATE DELIVERY MODE 09/04/2019 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): USPTO66767@merchantgould.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte DANIEL M. HASENBERG, MITCHELL D. REFVIK, MICHAEL S. MATSON, MARUTI BHANDARKAR, and RONALD D. KNUDSEN1 ____________ Appeal 2018-006906 Application 14/221,327 Technology Center 1700 ____________ Before BEVERLY A. FRANKLIN, JAMES A. WORTH, and CHRISTOPHER C. KENNEDY, Administrative Patent Judges. KENNEDY, Administrative Patent Judge. DECISION ON APPEAL This case is an appeal under 35 U.S.C. § 134(a) from the Examiner’s decision rejecting claims 1 and 3–25. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. BACKGROUND The subject matter on appeal relates to processes for purifying H2S feed streams. E.g., Spec. 1:6–7; Claim 1. Claim 1 is reproduced below from page 26 (Claims Appendix) of the Appeal Brief: 1 The Appellant is the Applicant, Chevron Phillips Chemical Company LP, which is also identified as the real party in interest. See App. Br. 2. Appeal 2018-006906 Application 14/221,327 2 1. A process to purify a feed stream comprising hydrogen sulfide and sulfur-containing impurities, the process comprising: contacting the feed stream with a solid catalytic sorbent to remove at least a portion of the sulfur-containing impurities from the feed stream to form a purified H2S stream; wherein the solid catalytic sorbent comprises an alkali metal hydroxide impregnated activated carbon or an alkaline earth metal hydroxide impregnated activated carbon. REJECTIONS ON APPEAL The claims stand rejected under 35 U.S.C. § 103 as follows: 1. Claims 1, 3–6, 8, 11, 12, and 20 over Woelfert (US 2011/0263894 A1, published Oct. 27, 2011) and Kimtantas (US 5,686,056, issued Nov. 11, 1997); 2. Claim 7 over Woelfert, Kimtantas, and Calgon (CalgonCarbon ST I X Product Bulletin dated 2012, of record); 3. Claims 9 and 10 over Woelfert, Kimtantas, and Wölfert ’839 (US 2010/0008839 A1, published Jan. 14, 2010); 4. Claim 13–19, 21, and 22 over Woelfert, Kimtantas, and Riley (US 2011/0230693 A1, published Sept. 22, 2011); 5. Claim 23 over Woelfert, Kimtantas, and Moller (US 2005/0265913 A1, published Dec. 1, 2005); 6. Claims 24 and 25 over Woelfert, Kimtantas, Moller, and Alptekin (Gökhan Alptekin et al., Sorbents for Natural Gas Desulfurization, 12 ECS Transactions 563 (2008)). ANALYSIS After review of the cited evidence in the appeal record and the opposing positions of the Appellant and the Examiner, we determine that the Appeal 2018-006906 Application 14/221,327 3 Appellant has not identified reversible error in the Examiner’s rejections. Accordingly, we affirm the rejections for reasons set forth below, in the Final Action, and in the Examiner’s Answer. See generally Final Act. 2–33; Ans. 3–14. The Appellant provides separate arguments for claims 1, 12, and 23. We address those claims below. Pursuant to the Appellant’s grouping of claims, claims 3–9, 11, 13–15, and 17–21 will stand or fall with claim 1; claims 10, 16, and 22 will stand or fall with claim 12; and claims 24 and 25 will stand or fall with claim 23. See App. Br. 11, 22 (grouping claims); see generally 37 C.F.R. § 41.37(c)(1)(iv). Claim 1 The Examiner finds that Woelfert “teaches a process to purify a feed stream comprising hydrogen sulfide and sulfur-containing impurities” that involves contacting the feed stream with a solid catalytic sorbent, wherein the catalytic sorbent comprises alkali metal hydroxide, alkaline earth metal hydroxide, or activated carbon. Final Act. 3. The Examiner finds that Woelfert does not explicitly teach a sorbent comprising an alkali metal hydroxide impregnated activated carbon or an alkaline earth metal hydroxide impregnated activated carbon. Id. The Examiner finds that Kimtantas teaches a purification process that involves the use of a filter media, such as a carbon bed, through which sulfide gas is passed, and that “a catalyst may further be provided which breaks down the hydrogen sulfide-sulfur polymer to hydrogen sulfide and sulfur so that the sulfur may be collected in the filter media.” Id. The Examiner determines that it would have been obvious to use “a catalyst such as an alkaline metal hydroxide or alkaline earth metal Appeal 2018-006906 Application 14/221,327 4 hydroxide,” as taught by Woelfert, as the catalyst in Kimtantas’s carbon bed, “in order to catalytically convert the polysulfane to hydrogen sulfide and sulfur and collect the sulfur on the filter media for a more pure H2S gas stream with a reasonable expectation of success.” Id. at 3–4. The Examiner cites Chester (Arthur W. Chester et al., Mixing dynamics in catalyst impregnation in double-cone blenders, 102 Powder Tech. 85 (1999)), as evidence that “the method generally used” for combining catalysts “is impregnation.” Id. at 30. The Appellant raises several arguments against the Examiner’s rationale, which we address in turn below. 1. The Appellant argues that “Woelfert and Calgon expressly teach away from modifying and combining the references as the PTO has done.” App. Br. 11–14. We are not persuaded by that argument. Woelfert cites DE 102 45 164 A1 (“DE ’164”) as teaching that “activated carbon” and “alkali metal, alkaline earth metal and other basic mixtures or hydroxides” are “suitable catalytically active solids” for removing impurities from H2S streams. Woelfert ¶ 11. Woelfert acknowledges that “[a] disadvantage” of processes described by DE ’164 “is the lasting consumption of the components used for the purification.” Id. ¶ 12. Notwithstanding that disadvantage, Woelfert expressly teaches the use of the processes of DE ’164 in purifying H2S for use with Woelfert’s invention. See id. ¶ 36. “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 Appeal 2018-006906 Application 14/221,327 5 the path that was taken by the applicant.” In re Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994). Woelfert’s identification of one disadvantage of the methods described by DE ’164 cannot be said to “discourage[]” a person of ordinary skill in the art “from following the path set out in the reference” or to lead “in a direction divergent from the path that was taken by the applicant,” see id. at 553, because Woelfert expressly recommends using the methods and materials of DE ’164 despite the acknowledged disadvantage. See Woelfert ¶ 36. On this record, we are not persuaded that Woelfert teaches away from the claimed invention. Cf. Winner Int’l Royalty Corp. v. Wang, 202 F.3d 1340, 1349 n.8 (Fed. Cir. 2000) (“[T]he benefits, both lost and gained, should be weighed against one another.”). We are also not persuaded that Calgon teaches away from the claimed invention. See App. Br. 13–14. Calgon is a “Product Bulletin” for a specific CalgonCarbon product (ST I X) that is “designed for the removal of acid gases and odor compounds from air.” See Calgon at 1. As an initial matter, we observe that Calgon is not cited by the Examiner in support of Rejection 1. Calgon is cited in support of Rejection 2, and only for its disclosure of sorbent shapes and sizes that fall within the scope of claim 7. See Final Act. 12. The Appellant’s argument is unpersuasive because neither the Appellant nor the Hasenberg Declaration dated February 6, 2017, persuasively explains why Calgon’s disclosed use as an “air” purifier would have caused a person of ordinary skill in the art to doubt its suitability for use in other applications, such as purifying an H2S stream. We recognize that Calgon discloses that ST I X has “high capacit[y]” for H2S, but that is in Appeal 2018-006906 Application 14/221,327 6 the context of “air,” and the Appellant does not persuasively show, for example, that ST I X would not strongly adsorb H2Sx polysulfane impurities in the context of an H2S stream, even if it may also adsorb some H2S. See Ans. 7 (“[T]he composition of the feed stream being purified in Woelfert and Kimtantas (mainly H2S with H2Sx impurities) is very different from the one taught by Calgon (i.e., mainly air with H2S as an impurity).”). While Calgon itself may not provide a reason to use ST I X to purify an H2S stream, the Examiner does not rely on it for that, and we are not persuaded that Calgon’s disclosure that ST I X is useful for the removal of acid gases and odor compounds from air teaches away from its use in purifying an H2S stream, particularly in view of the disclosure in Woelfert that alkali metal hydroxides, alkaline earth metal hydroxides, and activated carbon are useful for purifying an H2S stream. Cf. PAR Pharm., Inc. v. TWI Pharm., Inc., 773 F.3d 1186, 1198 (Fed. Cir. 2014) (“The reasonable expectation of success requirement for obviousness does not necessitate an absolute certainty for success.”); Para-Ordnance Mfg., Inc. v. SGS Imps. Int’l, Inc., 73 F.3d 1085, 1090 (Fed. Cir. 1995) (disclosures that arguably teach away “must be weighed alongside” disclosures that teach “the propriety of” making the proposed modification). The Appellant’s “teach away” argument is also not persuasive because the Appellant does not explain why a single example of a composition that falls within the scope of claim 1 (i.e., ST I X) should be considered to teach away from the entire genus of catalytic sorbents recited by claim 1 and suggested by the prior art. In other words, that a single document describes a single specie (ST I X) that may not have been optimal for H2S purification does not indicate that other combinations of hydroxides Appeal 2018-006906 Application 14/221,327 7 and activated carbon would also have been unsuitable, particularly in view of the suggestions in Woelfert and Kimtantas that hydroxides and activated carbon are suitable for H2S purification. On this record, we are not persuaded that Woelfert or Calgon teaches away from the subject matter of claim 1. See In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) (“[I]t has long been the Board’s practice to require an applicant to identify the alleged error in the examiner’s rejections . . . .”). 2. The Appellant argues that the “PTO fails to identify a plausible motivation to modify and combine the references” because the “purported advantage to combine activated carbon with a hydroxide is already present in Woelfert.” App. Br. 15. That argument is not persuasive. As the Examiner explained in the Advisory Action issued on October 31, 2017, “[i]t is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition which is to be used for the very same purpose.” Advisory Act. 1 (quoting In re Kerkhoven, 626 F.2d 846, 850 (CCPA 1980)). The Examiner repeats that discussion in the Answer. See Ans. 8–9. The Appellant does not address Kerkhoven, or otherwise attempt to explain why Kerkhoven is not applicable in this case, in either the Appeal Brief or the Reply Brief. In that regard, we observe that Woelfert alone discloses the use of both activated carbon and alkaline metal/alkaline earth metal hydroxides as suitable catalytic solids, and it states that “other basic mixtures” are also suitable. Given that the Examiner’s proposal is simply the mixture of activated carbon and an alkaline metal/alkaline earth metal hydroxide, as Appeal 2018-006906 Application 14/221,327 8 suggested by Woelfert alone,2 it does not appear that combination with Kimtantas is even necessary to render the claimed subject matter obvious. See Kerkhoven, 626 F.2d at 850. In any event, Kimtantas suggests that use of a filter media alone, such as a carbon bed, would be enhanced by addition of a catalyst. See Kimtantas at 2:41–51. Thus, even were we to agree with the Appellant that Woelfert indicates that an activated carbon alone or an alkaline metal/alkaline earth metal hydroxide alone already provides the benefits identified by the Examiner, Kimtantas suggests benefits of using both and indicates that a filter media alone, such as a carbon bed, may not be as effective in “break[ing] down the hydrogen sulfide-sulfur polymer” as is the combination of, e.g., carbon and a catalyst. See id.; cf. also In re Ethicon, Inc., 844 F.3d 1344, 1351 (Fed. Cir. 2017) (“The normal desire of artisans to improve upon what is already generally known can provide the motivation to optimize variables . . . .”). 3. The Appellant argues that “Woelfert discloses a laundry list of materials alleged to be ‘suitable’ catalysts” and that a person of ordinary skill in the art “would have no motivation to specifically select a hydroxide from Woelfert’s list.” App. Br. 16. That argument is not persuasive. Woelfert discloses that “[s]uitable catalytically active solids are . . . activated carbon, Al2O3, SiO2, zeolites, glasses, oxides and mixed oxides, alkaline metal, alkaline earth metal, and other basic mixtures or hydroxides.” Woelfert ¶ 11. The Appellant provides no persuasive explanation why that list of suitable catalysts would have been 2 The Appellant acknowledges that “Woelfert states that mixtures can be used.” Reply Br. 5 (citing Woelfert ¶ 11). Appeal 2018-006906 Application 14/221,327 9 considered so extensive as to render any particular selection or combination nonobvious. See Merck & Co. v. Biocraft Labs., Inc., 874 F.2d 804, 807 (Fed. Cir. 1989) (“That the [prior art] patent discloses a multitude of effective combinations does not render any particular formulation less obvious.”). 4. The Appellant argues that Woelfert and Kimtantas do not “provide[] any suggestion or methodology to conduct an impregnation step,” and that the PTO’s reliance on Chester “is purely conclusory, and is improper hindsight based solely on Applicant’s disclosure, and not the cited references.” App. Br. 16. That argument is not persuasive because it does not meaningfully address the Examiner’s rationale and specific findings. Woelfert discloses “mixtures” of catalysts, Woelfert ¶ 11, and Kimtantas discloses combining a catalyst with, e.g., a carbon filter media, Kimtantas at 2:37–53. The Examiner cites Chester simply as evidence that impregnation was a common way to mix or combine catalysts. See Final Act. 30. Chester discloses: In making catalysts, it would be ideal if all the components could be thrown into a large vessel, mixed together, shaped into appropriate particles, then heat treated as required. Unfortunately, this is not usually the case; more often, the base of the catalyst must be formed first, then other components introduced later. For some common refining catalysts, (e.g., reforming, hydrotreating) alumina is formed into pellets of various shapes and sizes, then treated with appropriate metal solutions (e.g., Pt, Mo, Ni, etc.) to incorporate the amount required. The methods generally used to incorporate metals or other components are ion exchange and impregnation. Chester at 85 (emphasis added). Appeal 2018-006906 Application 14/221,327 10 The Appellant’s unexplained assertion that the Examiner’s rationale is conclusory and based on hindsight amounts to little more than mere disagreement with the Examiner’s rationale. For example, the Appellant does not identify any disclosure in either Woelfert or Kimtantas that the mixture or combination of catalysts suggested by those references could not be achieved via known methods such as impregnation. Chester itself appears to refer to impregnation as type of mixture. Chester at 1 (“While impregnation may be performed by slurrying the support with an excess of solution, then drying the mixture . . . .” (emphasis added)). The Appellant’s limited argument does not persuade us of reversible error in the rejection. See SmithKline Beecham Corp. v. Apotex Corp., 439 F.3d 1312, 1320 (Fed. Cir. 2006) (“[M]ere statements of disagreement . . . as to the existence of factual disputes do not amount to a developed argument.”). Additionally, the Appellant’s Specification defines “impregnated” broadly: “Within the present application and claims, alkali metal hydroxide or alkaline earth metal hydroxide impregnated refers to all methods of introducing an alkali metal hydroxide or alkaline earth metal hydroxide into the material (e.g., contacting or treating the material with an alkali metal hydroxide or alkaline earth metal hydroxide, among other methods).” Spec. at 11:22–26. Based on that definition, the Examiner explains that many, if not all, “mixtures” would fall within the scope of the claim. See Ans. 12. The entirety of the Appellant’s response to the Examiner’s claim construction reasoning is: “As disclosed on pages 11–12 of Appellant’s specification, this is completely incorrect.” Reply Br. 5. However, as set forth above, “mere statements of disagreement” are unpersuasive, SmithKline Beecham, 439 F.3d at 1320, and the Appellant identifies nothing Appeal 2018-006906 Application 14/221,327 11 particular in the Specification that would limit the broad definition indicated above or otherwise show error in the Examiner’s associated findings. In view of the Specification’s broad description of the term “impregnated,” it is unclear that the Examiner’s reliance on Chester is even necessary to support the rejection. On this record, and particularly under the claim construction standard applicable to this proceeding (broadest reasonable construction consistent with the specification, see In re ICON Health & Fitness, Inc., 496 F.3d 1374, 1379 (Fed. Cir. 2007)), the Appellant has not identified reversible error in the Examiner’s finding that the prior art teaches or suggests “impregnated” catalysts as recited by claim 1. See Jung, 637 F.3d at 1365. 5. The Appellant argues that “a person of ordinary skill in the art could not possibly expect the PTO’s combination of Woelfert and Kimtantas to be successful (with or without Chester).” App. Br. 17; see also Hasenberg Decl. ¶ 12 (“[T]here is no reasonable expectation that an alkali metal hydroxide impregnated activated carbon or an alkaline earth metal hydroxide impregnated activated carbon would be capable of removing sulfur-containing impurities from a feed stream containing hydrogen sulfide.”). The Appellant relies heavily on the arguments discussed above concerning Calgon. See id. at 17–18. That argument is not persuasive for reasons essentially the same as those discussed above concerning Calgon. A reasonable expectation of success that a mixture of activated carbon and alkaline metal/alkaline earth metal hydroxides would be suitable for purifying an H2S stream is provided by Woelfert’s express disclosure of the suitability of those materials “and other basic mixtures” for the conversion of polysulfane impurities to Appeal 2018-006906 Application 14/221,327 12 hydrogen sulfide and sulfur. See Woelfert ¶ 11; see also Kerkhoven, 626 F.2d at 850. As set forth above, we are not persuaded of reversible error in the Examiner’s reliance on Chester to show that impregnation is a typical method of combining catalysts. The Appellant provides no persuasive reason why Woelfert’s express disclosures concerning activated carbon and alkaline metal/alkaline earth metal hydroxides would not have provided a reasonable expectation that mixtures (including impregnated mixtures) of the same compounds would be suitable for the same purpose. Although we attribute some weight to the Hasenberg Declaration, on this record we are not persuaded that it overcomes the plain teachings of the prior art references. Cf. In re Bulina, 362 F.2d 555, 559 (CCPA 1966) (“[A]n affidavit by an applicant or co- applicant as to the advantages of his invention is less persuasive than one made by a disinterested person.”); see also Yorkey v. Diab, 601 F.3d 1279, 1284 (Fed. Cir. 2010) (factfinder has discretion to give more weight to one item of evidence over another unless no reasonable trier of fact could have done so). For reasons discussed above, we are not persuaded that Calgon defeats the reasonable expectation of success found in the art as a whole. In summary, we have carefully considered the Appellant’s arguments concerning claim 1, and we are not persuaded of reversible error in the Examiner’s rejection. Claim 12 Claim 12 depends from claim 1 and recites that “at least 60 wt. % of the sulfur-containing impurities are removed from the feed stream to form the purified H2S stream.” Appeal 2018-006906 Application 14/221,327 13 The Examiner finds that Woelfert teaches a feed stream comprising “10 to 200 ppm by weight polysulfanes (i.e., sulfur-containing impurities) and removal of those polysulfanes from the feed stream.” Final Act. 8 (internal citations omitted); Woelfert ¶¶ 35–36. The Examiner finds that Woelfert “does not explicitly teach removal of at least 60 wt.% of the sulfur- containing impurities.” Id. The Examiner finds that Kimtantas teaches hydrogen sulfide feed streams including “a variety of impurities on the order of 400 ppm or more such as polysulfanes (hydrogen-sulfide-sulfur polymer) and sulfur,” and that “Kimtantas teaches removal of these polysulfanes and sulfur such that no more than about 10 ppm (97.5% removal) and more preferably 5 ppm (98.75% removal) of the impurities remain within the hydrogen sulfide gas.” Id. at 9. The Examiner determines that it would have been obvious “to remove at least 60 wt.% of the sulfur-containing impurities in Woelfert’s hydrogen sulfide feed stream . . . in order to obtain a hydrogen sulfide stream which is useful in many applications with a reasonable expectation of success.” Id. The Appellant first argues that, because the Appellant’s own experiments “demonstrate that the use of molecular sieves, as contemplated by Kimtantas, removes only 24 wt. % of impurities from the feed stream,” “Kimtantas does not teach or suggest, to one of ordinary skill in the art, Applicant’s 60 wt. % removal of sulfur-containing impurities.” App. Br. 19. That argument is not persuasive because the Appellant does not adequately explain why the Appellant’s own results somehow negate Kimtantas’s disclosure of 5 ppm impurities from a starting point of 400 ppm impurities, i.e., removal of 98.75% of the impurities. See Kimtantas cols. 1–2, 3:55–67. Appeal 2018-006906 Application 14/221,327 14 For example, the Appellant does not assert that the Appellant used the same molecular sieves and/or the same operating conditions as those used in Kimtantas. See App. Br. 19. The Appellant also argues that activated carbons alone remove less than 60 wt% of impurities as illustrated by their own experiments showing a maximum of 57 wt% removal and an average of 35 wt% removal. See App. Br. 19–20. That argument is not persuasive because the Examiner’s proposal does not rely on activated carbon alone. The fact that activated carbon alone may achieve less than 60 wt% impurity removal does not show that the combination proposed by the Examiner would likewise result in less than 60 wt% impurity removal. Woelfert describes removal of polysulfane impurities and does not indicate that any significant amount of impurity remains after removal. See Woelfert ¶ 11. As noted above, Kimtantas indicates that removal of 97% or more of impurities is desirable. See Kimtantas cols. 1–2, 3:55–67. Given that, as explained above, the combined art teaches or suggests a method that falls within the scope of claim 1, it appears that the amount of impurities removed from the feed stream flows naturally from the sorbent materials and other factors (such as length of time that the feed stream is exposed to the sorbent materials) within the ordinary level of skill in the art to optimize to obtain desired results. On this record, the Appellant’s arguments do not persuade us that the impurity removal limitation of claim 12 distinguishes over the prior art. The Appellant also argues that “selectively removing at least 60 wt. % of sulfur-containing impurities from a[n] H2S feed stream using the claimed catalytic sorbents is completely unexpected.” App. Br. 20–21. The Appeal 2018-006906 Application 14/221,327 15 Appellant cites the Hasenberg Declaration as showing that it was “unexpected that alkali metal hydroxide impregnated sorbents . . . removed significantly more sulfur-containing impurities than activated carbon sorbents.” Id. The Appellant bears the burden of establishing that unexpected results support a conclusion of nonobviousness. In re Huang, 100 F.3d 135, 139 (Fed. Cir. 1996). That Appellant’s argument is not persuasive for at least two reasons. First, the relied-upon data is not commensurate in scope with the claims. The data relied upon by the Appellant concerns only two sorbent compositions. See id. at 20 (compositions K and C). Claim 1 permits the use of any sorbent that comprises an alkali metal hydroxide impregnated activated carbon or an alkaline earth metal hydroxide impregnated carbon, and it permits any ratio of metal hydroxide to activated carbon. “Establishing that one (or a small number of) species gives unexpected results is inadequate proof, for ‘it is the view of [the CCPA] that objective evidence of non-obviousness must be commensurate in scope with the claims which the evidence is offered to support.’” In re Greenfield, 571 F.2d 1185, 1189 (CCPA 1978) (quoting In re Tiffin, 448 F.2d 791, 792 (CCPA 1971)). In the Appeal Brief, the Appellant does not attempt to show that the data is commensurate in scope with the claims; nor does Appellant attempt to make any such showing in the Reply Brief notwithstanding the Examiner’s express determination in both the Advisory Action and the Answer that “the results are not commensurate in scope with the broad claim limitations.” Advisory Act. 2; Ans. 13. Appeal 2018-006906 Application 14/221,327 16 Second, the Appellant does not show or assert that its comparison involves the closest prior art. As stated above, Dr. Hasenberg states that the results were allegedly unexpected in comparison to sorbents containing only activated carbon. See App. Br. 20 (citing Hasenberg Decl. ¶ 16). Woelfert discloses “mixtures” of catalysts, Woelfert ¶ 11, and Kimtantas discloses carbon to which “[a] catalyst is further provided,” Kimtantas at 2:40–53. The Appellant has not attempted to explain why activated carbon alone is the closest prior art in view of the disclosures of Woelfert and Kimtantas. On this record, the Appellant has not persuasively shown that unexpected results support a conclusion of nonobviousness. We are not persuaded of reversible error in the Examiner’s rejection of claim 12. Claim 23 Independent claim 23 is similar to claim 1 but also recites that the feed stream is contacted with the sorbent “for a time period of at least 100 hours” and that “for the time period of at least 100 hours, a minimum of 50 wt. % of the sulfur-containing impurities are removed from the feed stream to form the purified H2S stream.” The Examiner relies on Woelfert and Kimtantas as described above, and the Examiner also relies on Moller as teaching “at least 50% removal of the sulfur-containing impurities for at least 48 hours (i.e., adsorber bed life of 48 hours) using an adsorber bed.” Final Act. 24. The Examiner finds that “Moller does not explicitly teach at least 50% removal of the sulfur containing impurities for at least 100 hours,” but that Moller “does teach that the life of the adsorber bed is a result effective variable to the adsorbent being used by teaching that the life of an adsorber with etched Raschig rings is 20 hours and that of an adsorbent with SiO2 supports with a particle size Appeal 2018-006906 Application 14/221,327 17 of 3–5 mm is 48 hours.” Id. at 24–25. In view of those disclosures, the Examiner determines: [I]t would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to use a carbon bed such as activated carbon as the filter media impregnated with a catalyst such as an alkali metal hydroxide or alkaline earth metal hydroxide wherein for the time period of at least 100 hours (i.e., service life of the adsorber bed), a minimum of 50 wt.% of the sulfur-containing impurities are removed from the feed stream to form the purified H2S stream in Woelfert’s process. One of ordinary skill in the art, before the effective filing date of the claimed invention would have been motivated to do so in order to catalytically convert desired amount of the polysulfane to hydrogen sulfide and sulfur and collect the sulfur on the filter media for a more pure H2S gas stream during the adsorbent/catalyst life with a reasonable expectation of success. Id. at 25. We understand the Examiner’s discussion to indicate that the Examiner finds that optimization of process parameters and the “adsorbent being used” to achieve desired adsorber life and removal rates would have been within the ordinary level of skill in the art. See id. The Appellant first argues that “[t]he cited references fail to teach or suggest a process in which a minimum of 50 wt. % of sulfur-containing impurities are removed from the feed stream for a time period of at least 100 hours.” App. Br. 22–23. That argument is not persuasive because, as noted above, the Examiner recognizes that “Moller does not explicitly teach at least 50% removal of the sulfur containing impurities for at least 100 hours,” Final Act. 24, and indicates that service life and removal rates are results of optimizing the adsorbent used and other process parameters. See Final Act. 24–25; see also Moller ¶¶ 27–29 (indicating that service life and removal rates are affected by the nature of the adsorbent). The Appellant’s argument that the references do not specifically teach the recited removal Appeal 2018-006906 Application 14/221,327 18 rate and service life do not persuasively show reversible error in that analysis. The Appellant also argues that “the longevity of the claimed solid catalyst sorbents is completely unexpected, and could not be predicted or ascertained in any way based on a fair reading of the cited references.” App. Br. 23–24. That argument is not persuasive at least for the reason that, similar to the unexpected results argument discussed above, the Appellant fails to persuasively show that the alleged unexpected results are commensurate in scope with the claims and/or that they involve a comparison to the closest prior art. In particular, we observe that the data cited by the Appellant (Hasenberg Decl. ¶ 18) involves the use of only a single sorbent composition (ST I X), while the method of claim 23 broadly recites the use of any sorbent composition that “comprises an alkali metal hydroxide impregnated activated carbon or an alkaline earth metal hydroxide impregnated activated carbon.” Claim 23; see also Greenfield, 571 F.2d at 1189 (“Establishing that one (or a small number of) species gives unexpected results is inadequate proof . . . .”). On this record, we are not persuaded of reversible error in the Examiner’s rejection of claim 23. See Jung, 637 F.3d at 1365. CONCLUSION We AFFIRM the Examiner’s rejections of claims 1 and 3–25. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). AFFIRMED Copy with citationCopy as parenthetical citation