Daniel M. Hasenberg et al.

Patent Trials and Appeals Board

Sep 4, 2019

14221327 - (D) (P.T.A.B. Sep. 4, 2019)

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.
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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
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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
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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
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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
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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
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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
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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).
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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).
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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
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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
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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.”
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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.
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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
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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.
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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
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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