Ex Parte Adib et al

Patent Trial and Appeal Board

May 31, 2017

12395160 (P.T.A.B. May. 31, 2017)

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.
12/395,160 02/27/2009 Kaveh Adib SP09-069 3824
22928 7590 06/02/2017
TORNTNO TNmRPORATFD
EXAMINER
SP-TI-3-1
CORNING, NY 14831
MAYES, MELVIN C
ART UNIT PAPER NUMBER
1732
NOTIFICATION DATE DELIVERY MODE
06/02/2017 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):
u sdocket @ corning .com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KAVEH ADIB, JACQUELINE LESLIE BROWN, and
STEVEN BOLAJI OGUNWUMI
Appeal 2015-006525
Application 12/395,160
Technology Center 1700
Before CATHERINE Q. TIMM, MONTE T. SQUIRE, and
BRIAN D. RANGE, Administrative Patent Judges.
SQUIRE, Administrative Patent Judge.
DECISION ON APPEAL1
Appellants2 appeal the Examiner’s decision finally rejecting claims 1—
8, 10-22, and 27—29. 35 U.S.C. § 134(a). We have jurisdiction under
35 U.S.C. § 6(b). For the reasons set forth below, we REVERSE and enter
NEW GROUNDS OF REJECTION.
1 In our Decision, we refer to the Specification filed February 27, 2009
(“Spec.”); the Final Office Action appealed from, dated April 1, 2014
(“Final Act.”); the Appeal Brief dated January 30, 2015 (“App. Br.”); the
Examiner’s Answer to the Appeal Brief dated April 22, 2015 (“Ans.”); and
the Reply Brief dated June 22, 2015 (“Reply Br.”).
2 Appellants identify Coming Incorporated as the real party in interest.
App. Br. 2.
Appeal 2015-006525
Application 12/395,160
The Claimed Invention
Appellants’ disclosure relates to a NOx reducing catalyst body
comprised of ceria, zirconia, and a metal-zeolite, and substantially free, or
free, of tungsten or tungsten compounds for use in automotive engine
exhaust systems. Spec. 1—4; Abstract. Claim 1 is illustrative of the
claimed subject matter on appeal and is reproduced below from the Claims
Appendix to the Appeal Brief (App. Br. 26) (key disputed claim language
italicized and bolded):
1. A NOx reducing extruded catalyst body comprising a
plurality of walls comprised of Ce02-Zr02 and metal
exchanged or impregnated zeolite, the Ce02-Zr02 and zeolite
being distributed homogeneously throughout the walls, wherein
the catalyst body contains essentially no tungsten, wherein the
catalyst body comprises 20 to 40 wt% Ce02-ZrC>2, and wherein
the ceria and zirconia are present with a zirconia/ceria mole
ratio of less than or equal to 1.0.
The References
The Examiner relies on the following prior art in rejecting the claims
on appeal:
Nakatsuji et al. US 5,733,837 Mar. 31, 1998
(hereinafter “Nakatsuji”)
Gandhi et al. US 2009/0260349 Al Oct. 22, 2009
(hereinafter “Gandhi”)
The Rejections
On appeal, the Examiner maintains the following rejections:
1. Claims 1—8, 15—20, and 27—29 are rejected under pre-AIA
35 U.S.C. § 103(a) as being unpatentable over Nakatsuji (“Rejection 1”).
Final Act. 3; Ans. 2.
2
Appeal 2015-006525
Application 12/395,160
2. Claims 10-14 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Nakatsuji as applied to claim 1 above, and further in view
of Gandhi (“Rejection 2”). Final Act. 6; Ans. 2.
3. Claims 21 and 22 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Nakatsuji in view of Gandhi (“Rejection 3”). Final
Act. 10; Ans. 2.
OPINION
Rejection 1
The Examiner determines that Nakatsuji teaches or suggests all of the
limitations of claim 1 and would have rendered the claim obvious. Final
Act. 3, 4 (citing Nakatsuji, Title, col. 5,11. 8, 14, col. 15 (Example B-22),
col. 18,11. 14, 15). Regarding the term “Ce02-Zr02” of claim 1, the
Examiner interprets this term to mean a physical mixture of Ce02 and Zr02
“similar to the physical mixture of table salt and table sugar mixed.” Ans. 3.
The Examiner finds that construing “Ce02-Zr02” to mean a physical mixture
of Ce02 and Zr02 constitutes the broadest reasonable interpretation because
neither the claims nor the Specification include the terminology “single
phase” or “solid solution” of CeCE-ZrCE. Id. at 3.
Appellants argue that the Examiner’s rejection of claim 1 should be
reversed because the Examiner’s rejection is based on an improper
interpretation of the term “CeCE-ZrCE.” App. Br. 12; Reply Br. 3, 4. In
particular, Appellants contend that, as opposed to a simple physical mixture
of CeCE and ZrCE, a person of ordinary skill in the art at the time of the
invention would have understood the term “CeCE-ZrCE” to mean a single­
phase, solid solution of CeCE-ZrCE. App. Br. 13.
3
Appeal 2015-006525
Application 12/395,160
We agree with Appellants’ argument regarding the Examiner’s
interpretation of the term “CeCE-ZrCE.” Specifically, we find that the
Examiner has improperly construed the term “CeCE-ZrCV’ as recited in
claim 1. As a result, we are not persuaded that a preponderance of the
evidence supports the Examiner’s finding that Nakatsuji alone teaches or
suggests this claim element.
During prosecution, claims are given their broadest reasonable
interpretation consistent with the Specification. In re Am. Acad. Of Sci.
Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). The words used in a claim
must be read in light of the Specification, as they would have been
interpreted by one of ordinary skill in the art at the time of the invention. In
re Am. Acad. Of Sci. Tech. Ctr., 367 F.3d at 1364. We are not persuaded
that the Examiner’s interpretation constitutes the broadest reasonable
interpretation in light of the Specification and the language of the claims.
On the record before us, we conclude that a person of ordinary skill in
the art at the time of the invention would have understood the term “CeCE-
Zr02” to mean a single-phase, solid solution of Ce02-Zr02—and not a
simple physical mixture of Ce02 and Zr02 as the Examiner construes the
term. As Appellants correctly point out (App. Br. 13), the components in a
mixed crystal solid solution form a unique phase wherein the solute
incorporates the solvent into the crystal lattice.3 Because the solvent
remains unchanged by addition of the solute, the mixture remains in a single
homogeneous phase.
3 See McNaught et al., IUPAC Compendium of Chemical Terminology 2d
ed. (1997), https://goldbook.iupac.Org/html/M/M03940.html (last updated
Feb. 24, 2014).
4
Appeal 2015-006525
Application 12/395,160
We are persuaded that construing “CeCVZrCV’ to mean a single­
phase, solid solution of CeCh-ZrCh constitutes the broadest reasonable
interpretation consistent with the Specification. In particular, the
Specification explicitly discloses the catalyst body comprising “oxide-based
components being comprised of zeolite and Ce02-Zr02, with a Zr/Ce mole
ratio of less than or equal to 1.0.” Spec. 111. The Specification also
describes and consistently refers to the CeC^-ZrCh component as a single
“Ce:Zr oxide” or “Ce:Zr” or “ceria:zirconia” compound rather than a
physical mixture of two separate CeCh and ZrC>2 components. Id. at
Abstract, || 11, 18, 19.
Our interpretation of the term Ce02-Zr02 is also consistent with how
the term has been used and is referred to in the prior art. For example, the
Nagai4 reference, which Appellants submitted as Exhibit B of the Evidence
Appendix to the Appeal Brief, refers to “Ce02-Zr02” mixed oxides as a
single-phase, solid solution used in automotive catalysts. Nagai, Abstract,
20. In particular, Nagai teaches that “[enhancing the homogeneity of the Ce
and Zr atoms in the Ce02-Zr02 solid solution” increases the oxygen storage
capacity (OSC), which enables the catalyst to efficiently remove harmful
compounds such as hydrocarbons, CO, and NOx in automotive exhaust
gases. Id. at 20 (emphasis added); see also id. at 24. Nagai further teaches
that the “improvement in OSC was attributed to the increase in homogeneity
of the Ce02-Zr02 solid solution and to the change in the oxygen
environment.” Id. at 20 (emphasis added).
4 Nagai et al., Structure Analysis of Ce02-Zr02 Mixed Oxides as Oxygen
Storage Promoters in Automotive Catalysts, 37:4 R&D Review of Toyota
CRDL 20—27 (2002) (hereinafter “Nagai”).
5
Appeal 2015-006525
Application 12/395,160
As Appellants point out (App. Br. 16), Figure 1 of Nagai discloses
“cubic Ce02-Zr02 with an ordered arrangement of cations” (Nagai 23),
which is indicative of a crystalline structure where the solute has
incorporated the solvent into the crystal lattice and further supports our
interpretation of the term Ce02-Zr02 to mean a single-phase, solid solution.
The Examiner’s assertion that the claim “has been interpreted in the
light of the specification consistent with what one of ordinary skill in the art
would understand the claim language to mean” (Ans. 2) is not persuasive
because it is conclusory and the Examiner does not identify sufficient
evidence in the record or provide an adequate technical explanation to
support it. In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006) (holding that the
Examiner’s “rejections . . . cannot be sustained by mere conclusory
statements”).
The Examiner also does not meaningfully address Appellants’
argument regarding the Nagai reference and its disclosure supporting the
interpretation that the term CeCE-ZrCE refers to a single-phase, solid solution
used in automotive catalysts and would have been understood as such by one
ordinary skill in the art at the time of the invention.
Accordingly, we reverse the Examiner’s rejection of claim 1 under
35 U.S.C. § 103(a) as obvious over Nakatsuji. Because claims 2—8, 15—20,
and 27—29 depend from claim 1, we also reverse the Examiner’s rejection of
these claims as obvious over Nakatsuji.
Rejections 2 and 3
Because the Examiner’s Rejections 2 and 3 are based on the Nakatsuji
reference, and the foregoing deficiency in the Examiner’s findings regarding
Nakatsuji’s teachings is not remedied by the additional reference or
6
Appeal 2015-006525
Application 12/395,160
combination of references cited in support of the second and third grounds
of rejection, we also reverse the Examiner’s rejections of claims 10—14, 21,
and 22 under 35 U.S.C. § 103(a) as being unpatentable over the combination
of Nakatsuji in view of Gandhi.
NEW GROUNDS OF REJECTION
Under the provisions of 37 C.F.R. § 41.50(b), we enter the following
new grounds of rejection:
I. Claim 1 is rejected under 35 U.S.C. § 103(a) as being
unpatentable over Nakatsuji in view of Nagai (“New Ground I”).
II. Claims 10-14 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Nakatsuji in view of Nagai as applied to claim 1 above,
and further in view of Gandhi (“New Ground II”).
III. Claims 21 and 22 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Nakatsuji in view of Nagai, and further in view of
Gandhi (“New Ground III”).
New Ground I
We determine that the combination of Nakatsuji and Nagai suggests
all of the limitations of at least claim 1 and would have rendered claim 1
obvious.5
We make the following findings of fact regarding the combination of
Nakatsuji and Nagai:
5 We leave it to the Examiner, should there be further prosecution, to
determine whether other claims are unpatentable.
7
Appeal 2015-006525
Application 12/395,160
1. Nakatsuji teaches a NOx reducing extruded catalyst body
having a plurality of walls and that the catalyst may be shaped into various
shapes such as a honeycomb structure. Nakatsuji, Title, Abstract, col. 1, 8—
15, col. 5,11. 8-10, col. 18,11. 14—17.
2. Nakatsuji teaches that the catalyst body comprises a cerium
oxide supported on a zeolite solid acid carrier and at least one element
selected from the elements of Group IV of the Periodic Table, which
includes Zr. Nakatsuji, col. 2,11. 1—14, 24—39.
3. Nakatsuji teaches that the zeolite solid acid carrier is obtained
by exchanging a part of or the whole of ion M of the zeolite for certain other
ions, including, for example, a cerium ion (Ce4+) and a zirconium ion (Zr4+);
and that the oxide type solid acid carriers may include single metal oxides
such as ZrC>2. Nakatsuji, col. 2,11. 51—55, 61—66.
4. Nakatsuji teaches that the catalyst body comprises a metal
exchanged or impregnated zeolite; the zeolite being ZSM-5 or ultrastabilized
Y-zeolites; and the catalyst body comprising 50—70 wt. % zeolite.
Nakatsuji, col. 1,11. 42^49, col. 2,11. 29—33, col. 3,11. 39-61, col. 3,1. 65-
col. 4,1. 3, col. 4,11. 7-30, col. 6,11. 64-67.
5. Nakatsuji teaches the catalyst body having 30 wt. % cerium
oxide and 1 wt. % zirconium oxide with a zirconia/ceria mole ratio less than
or equal to 1.0, and suggests that the catalyst body contains no tungsten,
tungsten oxide, or vanadium oxide and is substantially free of platinum,
palladium, and rhodium. Nakatsuji, col. 15,11. 22—24, col. 4,11. 55—59.
6. Nakatsuji teaches the catalyst body having suitable cerium
oxide in the range of 5 to 80 wt. % and zirconium oxide in the range of 0.01
8
Appeal 2015-006525
Application 12/395,160
to 50 wt. % and a mole ratio in the range of 0.0002 to 0.87. Nakatsuji, col.
4,11. 36-39, 49-50, 55-64.
7. Nakatsuji teaches that the zeolite contains iron; the catalyst
body comprises greater than or equal to 50 wt. % iron-zeolite; a suitable
temperature for the catalyst to show catalysis in the reduction of nitrogen
oxides ranges from 100°C to 800°C; and the zeolite having a Si/Al ratio in
the range of 13 to 40. Nakatsuji, col. 2,11. 49-50, col. 3,11. 49-50, col. 4,11.
55-59, col. 6,11. 1^1, col. 7,11. 22-35.
8. Nakatsuji does not explicitly teach that the catalyst body is
comprised of “Ce02-Zr02” and is silent as to whether the catalyst body’s
cerium oxide and zirconium oxide components are present in the form of a
single-phase, solid solution.
9. Nagai teaches the use of Ce02-Zr02 mixed oxides in a single­
phase, solid solution as oxygen storage promoters in automotive catalysts.
Nagai, Abstract, 20. Nagai teaches that enhancing the homogeneity of the
Ce and Zr atoms in the Ce02-Zr02 solid solution increases the oxygen
storage capacity (OSC), which enables the catalyst to efficiently remove
harmful compounds such as hydrocarbons, CO, and NOx in automotive
exhaust gases. Nagai 20, 24. Nagai teaches that Ce02-Zr02 in a single­
phase, solid solution has been widely utilized for commercial catalysts and
further discloses compositions with a Ce/Zr molar ratio equal to 1. Nagai
20-22.
Based on the above findings regarding the teachings of the prior art,
we conclude that it would have been obvious to a person of ordinary skill in
the art at the time of invention to have incorporated Nagai’s Ce02-Zr02 with
Nakatsuji’s catalyst body, including the Ce02-Zr02 and zeolite being
9
Appeal 2015-006525
Application 12/395,160
distributed homogenously throughout the walls, because Ce02-Zr02 was
known in the art and had been widely utilized for commercial catalysts and
enhancing the homogeneity of the Ce and Zr atoms in the Ce02-Zr02 solid
solution increases the oxygen storage capacity (OSC), which enables the
catalyst to efficiently remove harmful compounds such as NOx in
automotive exhaust gases. Nagai, Abstract, 20, 24; Nakatsuji, Title,
Abstract, col. 1, 8—15.
New Ground II
We determine that the combination of Nakatsuji, Nagai, and Gandhi
suggests all of the limitations of claims 10—14 and would have rendered the
claims obvious.
Claim 10 depends from claim 1 and further recites the limitation
“wherein the catalyst body reduces NOx gas by at least 20% at all
temperatures from 150°C to 600°C.” App. Br. 27 (Claims App’x). Claims
11—14 recite similar limitations, but vary the percent reduction and
temperature range. Id. at 27.
We incorporate by reference the above-stated findings of fact and
obviousness conclusion regarding the combination of Nakatsuji and Nagai
(New Ground I stated).
We make the following additional findings of fact regarding the
combination of Nakatsuji, Nagai, and Gandhi:
1. Nakatsuji teaches the catalysis temperature range of 100°C to
800°C for the reduction of nitrogen oxides. Nakatsuji, col. 6,11. 1^4.
Nakatsuji, however, does not explicitly teach the NOx conversion of at least
20% at all temperatures from 150°C to 600°C.
10
Appeal 2015-006525
Application 12/395,160
2. Gandhi teaches a selective catalytic reduction system for
controlling NOx emissions having at least 50% conversion in the
temperature range of 150°C to 600°C. Gandhi, Fig. 2, || 2, 19, 30, 31.
3. Gandhi teaches a selective catalytic reduction system for
controlling NOx emissions having at least 60% conversion in the
temperature range of 200°C to 600°C. Gandhi, Fig. 2, || 2, 19, 30, 31.
Based on the above findings, we conclude that it would have been
obvious to a person of ordinary skill in the art at the time of invention to
have formulated modified-Nakatsuji’s catalyst body to provide at least 50%
NOx conversion in the temperature range of 150°C to 600°C and at least
60% conversion in the temperature range of 200°C to 600°C as taught by
Gandhi because the higher conversion would have been desirable in further
reducing NOx emissions in automotive exhaust gases. Gandhi, Fig. 2,12;
Nakatsuji, col. 1, 8—15, col. 6,11. \-A.
New Ground III
We determine that the combination of Nakatsuji, Nagai, and Gandhi
suggests all of the limitations of claims 21 and 22 and would have rendered
the claims obvious.
Claim 21 recites language similar to claim 1 and includes the
additional limitation “wherein the catalyst body is capable of reducing NOx
gas by at least 30% at NOx gas temperatures of 200°C to 600°C.” Compare
claim 21 (App. Br. 28), with claim 1 (App. Br. 26).
Claim 22 depends from claim 21 and further recites “wherein the
catalyst body contains no tungsten, vanadium, platinum, palladium, or
rhodium.” App. Br. 28.
11
Appeal 2015-006525
Application 12/395,160
We incorporate by reference the findings of fact and obviousness
conclusion regarding the combination of Nakatsuji, Nagai, and Gandhi (New
Grounds I and II stated above).
We make the following additional findings of fact regarding the
combination of Nakatsuji, Nagai, and Gandhi:
1. Nakatsuji teaches the catalyst body having 30 wt. % cerium
oxide and 1 wt. % zirconium oxide with a zirconia/ceria mole ratio less than
or equal to 1.0, and suggests that the catalyst body contains no tungsten,
tungsten oxide, or vanadium oxide and is substantially free of platinum,
palladium, and rhodium. Nakatsuji, col. 15,11. 22—24, col. 4,11. 55—59.
2. Nakatsuji does not explicitly teach the NOx conversion of at
least 30% at all temperatures from 200°C to 600°C.
3. Gandhi teaches a selective catalytic reduction system for
controlling NOx emissions having at least 60% conversion in the
temperature range of 200°C to 600 °C. Gandhi, Fig. 2, || 2, 19, 30, 31.
Based on the above findings, we conclude that it would have been
obvious to a person of ordinary skill in the art at the time of invention to
have formulated modified-Nakatsuji’s catalyst body to provide at least 60%
NOx conversion as taught by Gandhi because the higher conversion would
have been desirable in further reducing NOx emissions in automotive
exhaust gases. Gandhi, Fig. 2,12; Nakatsuji, col. 1, 8—15, col. 6,11. 1^4.
DECISION
The Examiner’s rejections of claims 1—8, 10—22, and 27—29 are
reversed.
12
Appeal 2015-006525
Application 12/395,160
It is ordered that the Examiner’s decision is reversed and new grounds
of rejection entered.
New grounds of rejection of claims 1, 10-14, 21, and 22 under 35
U.S.C. § 103(a) as are set forth. In the event of further prosecution, we
leave it to the Examiner to determine if any other claims are patentable.
This decision contains new grounds of rejection pursuant to 37 C.F.R.
§ 41.50(b). 37 C.F.R. § 41.50(b) provides “[a] new ground of rejection
pursuant to this paragraph shall not be considered final for judicial review.”
37 C.F.R. § 41.50(b) also provides that the Appellants, WITHIN
TWO MONTHS FROM THE DATE OF THE DECISION, must exercise
one of the following two options with respect to the new ground of rejection
to avoid termination of the appeal as to the rejected claims:
(1) Reopen prosecution. Submit an appropriate
amendment of the claims so rejected or new Evidence relating
to the claims so rejected, or both, and have the matter
reconsidered by the examiner, in which event the prosecution
will be remanded to the examiner. . . .
(2) Request rehearing. Request that the proceeding be
reheard under § 41.52 by the Board upon the same Record.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
REVERSED AND NEW GROUNDS OF REJECTION ENTERED
PURSUANT TO 37 C.F.R, $ 41.50(b)
13
Application/Control No. Applicant(s)/Patent Under Patent
Notice of References Cited 12/395,160
Appeal No.
2015-006525
Examiner Art Unit
1732 Page 1 of 1
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mixed crystal (solid solution)
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