Ex Parte 6870072 et al

Patent Trial and Appeal Board

May 14, 2013

95001387 (P.T.A.B. May. 14, 2013)

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. 95/001,387 07/12/2010 6870072 2001B094 2854 23455 7590 05/15/2013 EXXONMOBIL CHEMICAL COMPANY 5200 BAYWAY DRIVE P.O. BOX 2149 BAYTOWN, TX 77522-2149 EXAMINER DIAMOND, ALAN D ART UNIT PAPER NUMBER 3991 MAIL DATE DELIVERY MODE 05/15/2013 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ UOP LLC Requester and Respondent v. EXXONMOBIL CHEMICAL PATENTS, INC. Patent Owner and Appellant ____________________ Appeal 2012-011935 Reexamination Control No. 95/001,387 Patent 6,870,072 B2 Technology Center 3900 ____________________ Before RICHARD M. LEBOVITZ, JEFFREY B. ROBERTSON, and MICHAEL J. FITZPATRICK, Administrative Patent Judges. FITZPATRICK, Administrative Patent Judge. DECISION ON APPEAL Appeal 2012-011935 Reexamination Control No. 95/001,387 Patent 6,870,072 B2 2 STATEMENT OF THE CASE Appellant and Patent Owner ExxonMobil Chemical Patents Inc. (“Exxon” or “Patent Owner”), appeals under 35 U.S.C. § 134(b) and 315(a) (2002) 1 from the final rejection of claims 1-96 set forth in the Right of Appeal Notice (“RAN”) mailed January 5, 2012. 2 See Appeal Brief 5-6 (filed April 20, 2012) (“App. Br.”). Requester and Respondent UOP LLC (“UOP” or “Requester”) urges that the Examiner’s rejections be affirmed. 3 See Respondent Brief 14 (filed May 18, 2012) (“Resp. Br.”). We have jurisdiction under 35 U.S.C. §§ 134 and 315. We affirm. THE INVENTION This proceeding arose from a request by UOP for an inter partes reexamination of U.S. Patent 6,870,072 B2 (“’072 patent”). 4 The ’072 Patent is entitled “Heat Recovery in an Olefin Production Process,” issued to David R. Lumgair and James Harding Beech (Mar. 22, 2005), and is assigned to ExxonMobil Chemical Patents Inc. ’072 Patent, cover page; App. Br. 3. 1 The America Invents Act states that the provisions of 35 U.S.C. §§ 134 and 315 as in effect on September 15, 2012 shall continue to apply to inter partes reexaminations that are requested before September 16, 2012. See Pub. L. No. 112-29, §§ 6(c)(3)(C) and 7(e). 2 The Examiner’s Answer mailed June 1, 2012 incorporates the RAN by reference. 3 UOP indicated it would cross-appeal the Examiner’s refusal to adopt additional proposed rejections but ultimately no cross-appeal was filed. See Notice of Cross-Appeal filed February 16, 2012. 4 Request for Reexamination filed July 12, 2010. Appeal 2012-011935 Reexamination Control No. 95/001,387 Patent 6,870,072 B2 3 The ’072 Patent “relates to producing and recovering olefins from an oxygenate feed stream and more particularly to heat recovery in the process of producing and recovering olefins from an oxygenate feed stream.” ‘072 Patent, col. 1, ll. 6-9. The process is known in the art “as an oxygenate to olefin process (‘OTO’) process.” Id. at col. 1, ll. 25-26. The ’072 Patent states that “the recovery of olefins from an OTO process involves unique technical challenges.” Id. at col. 1, ll. 36-37. For example, catalyst used in such processes “often becomes entrained in an olefin effluent stream leaving the reactor.” Id. at col. 1, ll. 43-44. Certain efforts to separate the catalyst from the effluent stream (e.g., by using a cyclone separator) and thereby recapture it subjects the catalyst to mechanical stresses that can cause disintegration of the catalyst into dust- like particles, commonly referred to as catalyst fines, which become entrained in effluent stream. Id. at col. 1, ll. 45-61. Ultimately, “catalyst particles sometimes fall out of the gaseous effluent stream and deposit on downstream equipment in a phenomenon known to those skilled in the art as fouling[, which] is the accumulation of solid deposits on surfaces of the recovery train of a reactor such as an OTO reactor.” Id. at col. 2, ll. 20-26. According to the ’072 Patent, such fouling can be prevented “if the temperature of the effluent stream is maintained above its dew point temperature prior to entering a solids wash.” Id. at col. 9, ll. 20-54; see also App. Br. 9. Claim 1 on appeal reads as follows and with emphasis added. 1. A process for controlling accumulation of catalyst solids in a recovery train of an oxygenate to olefin process comprising: Appeal 2012-011935 Reexamination Control No. 95/001,387 Patent 6,870,072 B2 4 providing an effluent stream from an oxygenate to olefin reaction, wherein the effluent stream comprises solid particles and a gas phase containing prime olefins and having a dew point; removing heat from the effluent stream while maintaining the effluent stream above the dew point of the gas phase; and washing the effluent stream at a temperature below the dew point of the gas phase to remove the solid particles from effluent stream into a wash medium. Clm Appx., App. Br. 30. 5 EVIDENCE The Examiner relies upon the following prior art references: Jorgensen Mulvaney Kuechler Miller Lumgair Warner US 4,860,670 US 5,744,680 US 6,121,504 US 6,166,282 US 6,870,072 B2 EPO 0 063 195 Aug. 29, 1989 Apr. 28, 1998 Sep. 19, 2000 Dec. 26, 2000 Mar. 22, 2005 Oct. 27, 1982 The Examiner also relies on admitted prior art set forth in the specification of the ’072 Patent and on a Declaration by John J. Senetar dated June 18, 2010. REJECTIONS The Examiner makes the following rejections, all of which are before us on appeal: 1. Claims 76-84 under 35 U.S.C. § 314(a) (2002)6 as enlarging the scope of the claims of the reexamined ’072 Patent. 5 Throughout this decision, quotations of claims and claim limitations omit bracketing and underlining wherever present for clarity. Appeal 2012-011935 Reexamination Control No. 95/001,387 Patent 6,870,072 B2 5 2. Claims 76-84 under 35 U.S.C. § 112, ¶ 2 (1975), as indefinite. 3. Claims 1-11, 17-24, 26-43, 45-54, 56-58, 60-63, 66, 67, and 69-75 under 35 U.S.C. § 102(b) (2002) as anticipated by Kuechler. 4. Claims 1-43, 45-67, 69-75, 85-89, and 91-96 under 35 U.S.C. § 103(a) (2004) as unpatentable over Kuechler. 5. Claims 1-67, 69-89, and 91-96 under 35 U.S.C. § 103(a) as unpatentable over Kuechler and Miller. 6. Claims 1-43, 45-75, and 85-96 under 35 U.S.C. § 103(a) as unpatentable over Mulvaney, Kuechler, and Jorgensen. 7. Claims 12-16, 44, 55, and 76-84 under 35 U.S.C. § 103(a) as unpatentable over Mulvaney, Kuechler, Jorgensen, and Miller. ANALYSIS Rejection 1: Claims 76-84 rejected under 35 U.S.C. § 314(a) Section 314(a) states “that no proposed amended or new claim enlarging the scope of the claims of the patent shall be permitted” during inter partes reexamination proceedings. 35 U.S.C. § 314(a) (2002). The Examiner rejected new claims 76-84 as enlarging the scope of the ’072 Patent. RAN 9-10. The Patent Owner does not argue that these claims do not enlarge the scope of the ’072 Patent. App. Br. 28. Rather, the Patent Owner merely points out that it submitted amendments that it believes would overcome the rejection that were not entered by the Examiner. App. Br. 28. 6 Section 314 as in effect on September 15, 2012 applies to inter partes reexaminations such as this one that are requested before September 16, 2012. See Pub. L. No. 112-29, §§ 6(c)(3)(C). Appeal 2012-011935 Reexamination Control No. 95/001,387 Patent 6,870,072 B2 6 Thus, we summarily affirm the Examiner’s rejection of claims 76-84 under 35 U.S.C. § 314(a). Rejection 2: Claims 76-84 rejected under 35 U.S.C. § 112, ¶ 2 The Examiner rejected claims 76-84 as being indefinite in violation of 35 U.S.C. § 112, ¶ 2 (2002). RAN 10. The Patent Owner does not argue that these claims are not indefinite. App. Br. 28. Rather, the Patent Owner merely points out that it submitted amendments that it believes would overcome the rejection that were not entered by the Examiner. App. Br. 28. Thus, we summarily affirm the Examiner’s rejection of claims 76-84 under 35 U.S.C. § 112, ¶ 2. Rejection 3: Claims 1-11, 17-24, 26-43, 45-54, 56-58, 60-63, 66, 67, and 69- 75 rejected under 35 U.S.C. 102(b) as anticipated by Kuechler Patent Owner argues these claims as a group. App. Br. 8-15. In accordance with 37 C.F.R. § 41.37(c)(1)(vii)(2008), we select independent claim 1 as representative of the group. Therefore, we will treat claims 2-11, 17-24, 26-43, 45-54, 56-58, 60-63, 66, 67, and 69-75 as standing or falling with representative claim 1. 7 Independent claim 1 is directed to “[a] process for controlling accumulation of catalyst solids in a recovery train of an oxygenate to olefin 7 The Appeal Brief includes a section entitled “Separate Patentability of the Dependent Claims” that provides brief arguments with respect to certain claims, including claims 23, 24, 58, and 73-75 rejected as anticipated by Kuechler. App. Br. 26. Because the arguments presented in that section are not specific to any particular rejection, see App. Br. 26-27, we also address these claims separately below. Appeal 2012-011935 Reexamination Control No. 95/001,387 Patent 6,870,072 B2 7 process[.]” Kuechler disclose an OTO process. Kuechler col. 2, ll. 21-23. The ’072 Patent itself characterizes Kuechler as follows: One OTO system is illustrated in U.S. Pat. No. 6,121,504 (the 504 patent [i.e., Kuechler]). In the 504 patent, an oxygenate to olefin reactor produces an effluent stream. The effluent stream passes through heat exchangers for the efficient recovery of heat. Then the effluent stream passes through a quench tower. ’072 Patent col. 2, ll. 10-15. Kuechler further discloses that effluent stream (11) has a temperature of 407.9º C before it reaches the quench tower, which “removes heat from the product mixture, causing higher boiling components, such as water and unreacted oxygenate feed, to condense and form a heavy product fraction.” Kuechler col. 13, l. 42 (Table 2); col. 2, ll. 29-33 (emphasis added). The Examiner found this disclosure as satisfying the step of “removing heat from the effluent stream while maintaining the effluent stream above the dew point of the gas phase” as required by claim 1. RAN 14-15. Patent Owner argues against the anticipation rejection “because Kuechler does not disclose or enable the feature of ‘removing heat from the effluent stream while maintaining the effluent stream above the dew point of the gas phase.’” App. Br. 8. We disagree for the following reasons. Although Kuechler does not expressly mention the dew point as pointed out by Patent Owner (App. Br. 10), Kuechler expressly discloses a temperature for its effluent stream that is, in fact, above the dew point. More specifically, in Example 1, effluent stream (11) has a temperature of 407.9º C at a pressure of 275.8 kPa. Kuechler col. 13, l. 42 (Table 2); see also col. 9, ll. 62-64. Relying on declaration testimony of John J. Senetar, Appeal 2012-011935 Reexamination Control No. 95/001,387 Patent 6,870,072 B2 8 Ph.D. submitted by Requester, 8 the Examiner found the disclosed temperature to be well above the dew point of the gas phase of effluent stream (11). RAN 12. In particular, Dr. Senetar testified that, under his “direct supervision and control” and “using standard process design software, i.e. AspenPlus version 2004.1 with Soave-Redlich-Kwong equation of state with Kabadi-Danner modifications for water-hydrocarbon systems,” the dew point of effluent stream (11) was calculated to be 120.1°C -- 287.8º C below the disclosed temperature of the stream. Senetar Decl. ¶¶ 6-7. Patent Owner argues that the dew point as calculated by Dr. Senetar does not account for all variables, including the presence of the catalyst fines, which can increase the dew point. App. Br. 12-13. However, Patent Owner does not present persuasive evidence to support its position. For example, Patent Owner does not present adequate evidence that such variables would have affected the calculations made by Dr. Senetar, let alone adequate evidence regarding the extent that such variables would have affected the calculations made by Dr. Senetar. In short, Patent Owner does not present adequate evidence that Dr. Senetar’s calculations were wrong. Arguments of counsel cannot take the place of evidence lacking in the record. Estee Lauder, Inc. v. L'Oreal, S.A., 129 F.3d 588, 595 (Fed. Cir. 1997). 8 Requester submitted two declarations by John J. Senetar, one executed June 18, 2010, and one executed June 29, 2011. Although we have considered both declarations, this Decision refers to only the first declaration executed June 18, 2010 (“Senetar Decl.”). Appeal 2012-011935 Reexamination Control No. 95/001,387 Patent 6,870,072 B2 9 Patent Owner also states: while Kuechler does disclose removing heat from the effluent stream, and strictly speaking the temperature is above a calculated dew point, Kuechler does not disclose doing so “while maintaining the effluent stream above the dew point of the gas phase” enough so that fouling does not occur. App. Br. 10 (emphasis added). This argument is not persuasive, as it is not commensurate with the scope of claim 1, which only requires that the effluent stream is maintained above the dew point of the gas phase, without specifying a minimum amount by which the effluent stream must be above the dew point. 9 Patent Owner relies on Figure 1 of the ’072 Patent, which is a graph of water condensation versus temperature for the effluent stream of a methanol to olefin reaction at 280 kPa to argue that the effluent stream of Kuechler is not completely in a gaseous form. App. Br. 11; ’072 Patent col. 3, ll. 49-51, col. 15, ll. 49-50. The graph shows water condensation beginning when the temperature drops below 250º F 10 and then increasing gradually to 100% condensation as the temperature drops to about 160º F. Fig. 1. From this, Patent Owner argues that “[t]here is not a ‘bright line’ demarcation between the effluent being completely gaseous and being completely condensed. . . . Hence, there is a need to bring the temperature 9 Additionally, we note that certain dependent claims do specify a minimum amount by which the effluent stream must be above the dew point. For example, claim 23 requires “a temperature of about 3º C or more above the dew point[.]” Clm Appx., App. Br. 32. Kuechler meets this narrower limitation, as it discloses a temperature that is 287.8ºC above the dew point. 10 According to the ’072 Patent, 250º F is about 120º C. Col. 16, ll. 2-3 (stating “250º F. (120º C.)”). Appeal 2012-011935 Reexamination Control No. 95/001,387 Patent 6,870,072 B2 10 of the effluent stream high enough above the dew point to avoid such condensation.” App. Br. 11. We are not persuaded by Patent Owner’s arguments. The effluent stream (11) of Kuechler is 407.9º C -- well above both the 120.1°C dew point calculated by Dr. Senetar and the 250º F (~120º C) dew point shown in Figure 1 of the ’072 Patent. Further, the ’072 Patent states that “the condensation of water is prevented by keeping the temperature of the effluent stream above about 250º F. (120º C.) while it is being conveyed to a quench device.” Col. 16, ll. 1-3; see also RAN 59. The effluent stream in Kuechler is above this temperature. Kuechler col. 13, l. 42 (Table 2), col. 9, ll. 62-64. Patent Owner argues that “one skilled in the art would have to assume that the effluent in the heat exchanger (8) and stream (12) of Kuechler must at least partially condense.” App. Br. 10 (bold and underlining added). 11 But, effluent stream (12) has a temperature of 124.9º C, Kuechler col. 13, l. 43, and Requester presented credible evidence that the dew point of effluent 11 Kuechler disclose an embodiment in which a first effluent stream (11) has a temperature of 407.9º C and is fed through a heat exchanger (8), resulting in a second effluent stream (12), which has a temperature of 124.9º C and is sent to quench tower (13). Kuechler col. 9, ll. 59-61; col. 13, ll. 42-43. As pointed out by the Examiner, however, not all embodiments of Kuechler require effluent stream (11) to be cooled to form effluent stream (12). RAN 37. Kuechler states that, alternatively, “oxygenate conversion product effluent 11 is sent directly to quench tower 13 without intermediate cooling.” Col. 9, ll. 62-64. Appeal 2012-011935 Reexamination Control No. 95/001,387 Patent 6,870,072 B2 11 stream (12) is 118.5º C. Senetar Decl. ¶ 7. 12 Thus, effluent stream (12) is also above its respective dew point. Patent Owner also urges us to rely on a declaration of its witness, Thomas H. Colle, Ph.D., instead of the declaration of Dr. Senetar submitted by Requester, stating: The only thing that Dr. Senetar opines on with respect to dew point is to calculate the dew point of the effluent stream in the Kuechler patent example. Dr. Senetar makes no comment with respect to whether or not the dew point was of any significance with respect to the oxygenation process. The Senetar declaration does not support the Requester's or the Examiner's theory as to why the Kuechler patent inherently teaches the processes claimed in the '072 patent. . . . On the other hand, Dr. Colle, Patentee's expert, specifically opines on whether or not the Kuechler patent would be understood by the ordinary artisan to contain an enabling disclosure with respect to the importance of dew point vis a vis catalyst fine fouling. Dr. Colle concludes that there is no mention of such a concept in the Kuechler patent. App. Br. 12. These arguments are not persuasive. Anticipation requires the disclosure of all elements of a claim as arranged in the claim. SynQor, Inc. v. Artesyn Tech., Inc., 709 F.3d 1365, 1375 (Fed. Cir. 2013). Kuechler does this regardless of whether the Kuechler inventors recognized that practicing their disclosure would prevent or reduce fouling. “Inherency is not necessarily coterminous with the knowledge of those of ordinary skill in the art. Artisans of ordinary skill may not recognize the inherent characteristics 12 Patent Owner has not presented evidence of its own calculation of the dew point of effluent stream (12). Appeal 2012-011935 Reexamination Control No. 95/001,387 Patent 6,870,072 B2 12 or functioning of the prior art.” MEHL/Biophile Int’l Corp. v. Milgraum, 192 F.3d 1362, 1365 (Fed. Cir. 1999). For the foregoing reasons, we sustain the rejection of claims 1-11, 17- 24, 26-43, 45-54, 56-58, 60-63, 66, 67, and 69-75 as anticipated by Kuechler. Rejection 4: Claims 1-43, 45-67, 69-75, 85-89, and 91-96 rejected under 35 U.S.C. 103(a) as unpatentable over Kuechler Since we sustain the rejection of claims 1-11, 17-24, 26-43, 45-54, 56- 58, 60-63, 66, 67, and 69-75 as anticipated by Kuechler, we also sustain their rejection as unpatentable over Kuechler. See Structural Rubber Prods. Co. v. Park Rubber Co., 749 F.2d 707, 716 (Fed. Cir. 1984) (“a disclosure that anticipates under § 102 also renders the claim invalid under § 103, for ‘anticipation is the epitome of obviousness’”) (quoting In re Fracalossi, 681 F.2d 792, 794 (CCPA 1982)). The additional claims rejected as unpatentable over Kuechler are claims 12-16, 25, 55, 59, 64, 65, 85-89, and 91-96. Patent Owner does not present any arguments with respect to claims 12-16, 25, 55, 59, 64, and 65 beyond the unpersuasive arguments regarding the independent claims from which they depend. App. Br. 15-19. Accordingly, we also sustain the rejection of claims 12-16, 25, 55, 59, 64, and 65 as unpatentable over Kuechler. Patent Owner asserts patentability of independent claim 85, stating that “[t]he feature of claim 85 ‘wherein the temperature of the cooled effluent stream is maintained at a temperature of about 10° C or more above the dew point prior to the step of washing’ is clearly not disclosed or Appeal 2012-011935 Reexamination Control No. 95/001,387 Patent 6,870,072 B2 13 suggested in Kuechler.” App. Br. 17. We disagree. Claim 85 recites “contacting the effluent stream with a liquid at a temperature below the dew point of the gas phase, wherein the temperature of the cooled effluent stream is maintained at a temperature of about 10° C or more above the dew point prior to the step of contacting[.]” Clm Appx., App. Br. 40. As already established above, effluent stream (11), which has a temperature of 407.9º C, is more than 10° C above the dew point when it enters quench tower (13) in the embodiment disclosed by Kuechler at column 9, lines 62-64. Accordingly, we sustain the rejection of claim 85, as well as the rejection of claims 86-89 and 91-96 that depend therefrom, as unpatentable over Kuechler. Rejection 5: Claims 1-67, 69-89, and 91-96 rejected under 35 U.S.C. 103(a) as unpatentable over Kuechler and Miller Patent Owner does not present any arguments with respect to any of the rejected claims beyond the unpersuasive arguments regarding the independent claims from which they depend. App. Br. 19 (“Patentee traverses this rejection for the same reasons as stated above with respect to Kuechler . . . what is still not disclosed is the step: ‘removing heat from the effluent stream while maintaining the effluent stream above the dew point of the gas phase.’”) Accordingly, we sustain the rejection of claims 1-67, 69- 89, and 91-96 as unpatentable over Kuechler and Miller. Appeal 2012-011935 Reexamination Control No. 95/001,387 Patent 6,870,072 B2 14 Rejection 6: Claims 1-43, 45-75, and 85-96 rejected under 35 U.S.C. 103(a) as unpatentable over Mulvaney, Kuechler, and Jorgensen The Examiner relies on Mulvaney as teaching the subject matter of claim 1 except for maintaining the effluent stream temperature above the dew point prior to washing. RAN 28-29. The Examiner relies on both Kuechler and Jorgensen as teaching this additional limitation. RAN 29. Jorgensen relates to a method and apparatus for the cleaning of flue gas from the combustion of fuels, and the recovery of heat from the flue gas, whereby the flue is conducted from a boiler through a heat exchanger. Jorgensen col. 1, ll. 7-11. The Examiner found that Jorgensen teaches that when the smoke is cooled down considerably by using a heat exchanger, the temperature of the flue gas drops below the dew point of acid in the gas, which condenses and causes problems. RAN 29 (citing Jorgensen col 1, ll. 34-38). In particular, Jorgensen teaches “the particles in the flue gas become chalky and, in connection with the acid, thus form a gypsum paste which quickly blocks the heat exchanger.” Jorgensen col. 1, ll. 43-45. The Examiner further found that Jorgensen discloses a solution to the problem by cooling the flue gas only to a point such that it remains above the dew point. RAN 29 (citing Jorgensen col. 2, ll. 3-20). The Examiner concluded that it would have been obvious to perform Mulvaney’s OTO process with the effluent stream above the dew point prior to washing because (1) it is conventional to do so in an OTO process as taught by Kuechler and (2) to prevent deleterious deposits as taught by Jorgensen. RAN 29-30. With respect to Kuechler, Patent Owner argues that the stated rationale for combing it with Mulvaney is insufficient since Kuechler does Appeal 2012-011935 Reexamination Control No. 95/001,387 Patent 6,870,072 B2 15 not provide any significance to the temperature of its effluent streams. App. Br. 20. We agree with Patent Owner, and note that the Examiner does not provide evidentiary support for the assertion that the temperature employed in Kuechler is conventional for an OTO process. With respect to Jorgensen, Patent Owner argues that one of ordinary skill in the art would not look to it because it is “directed to a method for cleaning and desulfurizing flue gas from a combustion boiler.” App. Br. 21. We disagree. As stated by the Examiner, “Jorgensen teaches the basic, well known principle that keeping an effluent stream above its dew point will prevent deposits in the effluent line[.]” RAN 29; see also In re Clay, 966 F.2d 656, 659 (Fed. Cir. 1992) (“A reference is reasonably pertinent if, even though it may be in a different field from that of the inventor’s endeavor, it is one which, because of the matter with which it deals, logically would have commended itself to an inventor’s attention in considering his problem.”). Although Patent Owner persuades us that the stated rationale for combining Mulvaney and Kuechler is insufficient, it has failed to persuade us that the claims are patentable over Mulvaney and Jorgensen. The Board may rely on less than all of the references applied by the Examiner in an obviousness rationale without designating it as a new ground of rejection. In re Bush, 296 F.2d 491, 496 (CCPA 1961); In re Boyer, 363 F.2d 455, 458 n.2 (CCPA 1966). Indeed, the Examiner presented two different rationales for combining the references, and one of these rationales is sufficient to establish obviousness of the claimed subject matter. Accordingly, we Appeal 2012-011935 Reexamination Control No. 95/001,387 Patent 6,870,072 B2 16 sustain the rejection of claims 1-43, 45-75, and 85-96 over Mulvaney, Kuechler, and Jorgensen. Rejection 7: Claims 12-16, 44, 55, and 76-84 rejected under 35 U.S.C. 103(a) as unpatentable over Mulvaney, Kuechler, Jorgensen, and Miller Patent Owner presents the same arguments with respect to this rejection as it does for the rejection of claims 1-43, 45-75, and 85-96 as unpatentable over Mulvaney, Kuechler, and Jorgensen. Compare App. Br. 19-22 with App. Br. 23-26. Accordingly, we sustain the rejection of claims 12-16, 44, 55, and 76-84 as unpatentable over Mulvaney, Kuechler, Jorgensen, and Miller. Patent Owner’s “Separate Patentability of the Dependent Claims” Section This section of the Appeal Brief provides brief arguments with respect to specific claims or groups of claims but does so divorced from any specific rejection(s). App. Br. 26-27. As explained below, none of these arguments - several of which are repeat arguments that have already been considered and addressed above - changes our analysis above. a) Claims 23, 24, 25, 58, 59, 73, 74, 75, 78, 79, 80, 81 and 83 Patent Owner argues that “these claims require that the effluent stream temperature be maintained at 3°C, 5.5°C or 10ºC above the dew point prior to the step of washing” and that “neither Kuechler or Mulvaney nor any of the secondary citations either teach or suggest this particular process parameter.” App. Br. 26. We are not persuaded by Patent Owner. See pages 12-13 supra. In Kuechler, effluent stream (11) is at a temperature of 407.9º C (Kuechler col. Appeal 2012-011935 Reexamination Control No. 95/001,387 Patent 6,870,072 B2 17 13, l. 42), which is 287.8º C above the 120.1° C dew point that was calculated by Dr. Senetar. Senetar Decl. ¶ 7. b) Claim 45 Patent Owner argues that claim 45 “requires that none of the components of the effluent stream are condensed into liquid form prior to the solids wash” and that “there is no disclosure of this particular element in Kuechler or Mulvaney or in any of the secondary references relied upon by the Examiner.” App. Br. 26. We are not persuaded by Patent Owner. Because the effluent stream (11) in Kuechler is above the dew point - indeed, 287.8º C above the dew point - prior to the solids wash, it is inherent that none of the components of the effluent stream (11) would be condensed into liquid form prior to the solids wash. See Resp. Br. 13; see also RAN 15. Further, we note that independent claim 46 recites the same limitation (i.e., that “none of the components in the effluent stream are condensed to form a liquid in any elements in a recovery train prior to the gaseous effluent stream reaching the solids wash”) while only requiring “a temperature of about 3º C or more above the dew point[.]” Clm Appx., App. Br. 35. c) Claims 64-68 Patent Owner argues the following: Claims 64-68 relate to the control of the effluent stream temperature decrease through a conduit from the reactor to the heat exchanger within a particular temperature range. Patentees submit that neither Kuechler nor Mulvaney includes any disclosure which would direct the ordinary artisan to control the conduit temperature in an effort to control or prevent catalyst fine fouling in an OTO process. Appeal 2012-011935 Reexamination Control No. 95/001,387 Patent 6,870,072 B2 18 App. Br. 26. This argument does not apprise us of any error. Claims 64-68 do not require controlling the conduit temperature in an effort to control or prevent catalyst fine fouling in an OTO process. As discussed above, the prior art discloses or renders obvious the temperature ranges disclosed in these claims. d) Claims 69-72 Patent Owner argues the following: Claims 69-72 require that the solids wash be introduced into a solids wash device below its bubble point temperature. Patentees submit that neither Kuechler nor Mulvaney nor any of the secondary references have any disclosure relating to control of bubble point temperature when an effluent stream is introduced into a solids wash device. App. Br. 26-27. The Examiner found that Kuechler teaches the above-referenced limitations of these claims because “stream (15), which eventually becomes stream (20) after cooling in exchanger (19), is maintained at no less than about 25°C below the bubble point of byproduct water in the stream[.]” RAN 20 (citing col. 10, ll. 44-52 and Fig. 1); see also Kuechler col. 12, ll. 47-52. Indeed, Kuechler states “[p]referably, the exiting temperature of heavy product fraction stream 15 is maintained at no less than about 25° C. below the bubble point of byproduct water in stream 15.” Col. 10, ll. 47-49. Thus, we are not persuaded by Patent Owner’s argument. e) Claims 77, 82-84, and 87-96 Patent Owner argues the following: Appeal 2012-011935 Reexamination Control No. 95/001,387 Patent 6,870,072 B2 19 Claims 77, 82-84 and 87-96 relate to the control of conduit temperatures within a particular range with respect to the effluent stream dew point temperature. Patentees submit that neither Kuechler nor Mulvaney nor any of the secondary references provide any relevant disclosure from which the ordinary artisan would understand that such a temperature control is needed or that such temperature control could reduce or prevent catalyst fine fouling in an oxygenate to olefin process. There is no disclosure in any of the cited references from which the ordinary artisan would be led to such temperature control with the reasonable expectation of achieving control or prevent of catalyst fine fouling. App. Br. 27. This argument does not apprise us of any error. Claim 77, for example, requires that “the temperature decrease in the conduit from the exit of the heat exchanger to the solids wash is no greater than about 11°C while still being maintained above the dew point of the effluent stream prior to entering the solids wash.” Clm Appx., App. Br. 39. The Examiner concluded that it would have been obvious to one of ordinary skill in the art to “minimize[] any heat loss from the conduits” (i.e., the conduits containing effluent streams (11) and (12)) “because Kuechler clearly suggests feeding non-condensed (vapor) effluent to the quench tower[.]” RAN 24; see also Kuechler col. 2, ll. 29-33. We find that the stated reasoning provides rational underpinning to support the legal conclusion of obviousness. The Patent Owner has not adequately explained why the Examiner’s conclusion of obviousness is purportedly erroneous. DECISION The rejection of claims 76-84 under 35 U.S.C. § 314(a) (2002) as enlarging the scope of the reexamined ’072 Patent is affirmed. Appeal 2012-011935 Reexamination Control No. 95/001,387 Patent 6,870,072 B2 20 The rejection of claims 76-84 under 35 U.S.C. § 112, ¶ 2 (1975) as indefinite is affirmed. The rejection of claims 1-11, 17-24, 26-43, 45-54, 56-58, 60-63, 66, 67, and 69-75 under 35 U.S.C. § 102(b)(2002) as anticipated by Kuechler is affirmed. The rejection of claims 1-43, 45-67, 69-75, 85-89, and 91-96 under 35 U.S.C. § 103(a) (2004) as being unpatentable over Kuechler is affirmed. The rejection of claims 1-67, 69-89, and 91-96 under 35 U.S.C. § 103(a) as unpatentable over Kuechler and Miller is affirmed. The rejection of claims 1-43, 45-75, and 85-96 under 35 U.S.C. § 103(a) as being unpatentable over Mulvaney, Kuechler, and Jorgensen is affirmed. The rejection of claims 12-16, 44, 55, and 76-84 under 35 U.S.C. § 103(a) as unpatentable over Mulvaney, Kuechler, Jorgensen, and Miller is affirmed. Requests for extension of time in this inter partes reexamination proceeding are governed by 37 C.F.R. §§ 1.956 and 41.77(g). AFFIRMED ack Appeal 2012-011935 Reexamination Control No. 95/001,387 Patent 6,870,072 B2 21 PATENT OWNER: EXXONMOBIL CHEMICAL COMPANY 5200 BAYWAY DRIVE P.O. BOX 2149 BAYTOWN, TX 77522-2149 THIRD PARTY REQUESTER: BANNER & WITCOFF, LTD 1100 13TH STREET, NW SUITE 1200 WASHINGTON, DC 20005-4051