Ex Parte Bracht et al

Patent Trial and Appeal BoardApr 22, 2016

12640298 (P.T.A.B. Apr. 22, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 12/640,298 12/17/2009 Maarten Bracht 23632 7590 04/26/2016 SHELL OIL COMPANY PO BOX 2463 HOUSTON, TX 77252-2463 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 ATTORNEY DOCKET NO. CONFIRMATION NO. TS2211 (US) 8505 EXAMINER KEYS,ROSALYNDANN ART UNIT PAPER NUMBER 1671 NOTIFICATION DATE DELIVERY MODE 04/26/2016 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): USPatents@Shell.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte MAARTEN BRACHT, MAARTEN HESSELINK, CHRISTIAAN NIJST, and THOMAS JORIS REMANS 1 Appeal2014-001721 Application 12/640,298 Technology Center 1600 Before MELANIE L. McCOLLUM, JEFFREY N. FREDMAN, and RICHARD J. SMITH, Administrative Patent Judges. SMITH, Administrative Patent Judge. DECISION ON APPEAL This is an appeal under 35 U.S.C. Â§ 134 involving claims to a multi- stage process for the production of hydrocarbons from syngas that have been rejected as obvious. We have jurisdiction under 35 U.S.C. Â§ 6(b). We affirm. 1 According to Appellants, the real party in interest is Shell Oil Company. (Br. 2.) Appeal2014-001721 Application 12/640,298 STATEMENT OF THE CASE Background "One of the features of the present invention is that the effluent of the first stage Fischer-Tropsch reactor and that of the second stage Fischer- Tropsch reactor are fed to the same separation unit." (Spec. 4, 11. 9-11.) Claims on Appeal Claims 1-13 are on appeal. (Br. 6-8.) Claim 1 is representative and reads as follows: 1. A multi-stage process for the production of hydrocarbons from syngas comprising hydrogen and carbon monoxide, which comprises the steps of: a) providing a fresh syngas feed to a first stage Fischer-Tropsch reactor and allowing CO and hydrogen to convert into hydrocarbon products at a temperature in the range from 125 to 400 Â°C and a pressure in the range from 5 to 150 bar absolute, and a gaseous hourly space velocity in the range from 500 to 10000 Nl/l/h; b) feeding the effluent from the first stage reactor to a separation unit; c) removing a gasous effluent stream comprising hydrogen and CO from the separation unit; d) removing one or more other streams comprising hydrocarbon and/or water from the separation unit; e) conveying a first portion of the gaseous effluent stream to a second stage Fischer-Tropsch reactor and allowing CO and hydrogen to convert into hydrocarbon products in the second stage Fischer-Tropsch reactor at a temperature in the range from 125 to 400 Â°C and a pressure in the range from 5 to 150 bar absolute, and a gaseous hourly space velocity in the range from 500 to 10000 Nl/l/h, whereby the first stage Fischer-Tropsch reactor and the second stage Fischer-Tropsch reactor are separate reactors; t) feeding the effluent from the second stage Fischer-Tropsch reactor to the separation unit; and 2 Appeal2014-001721 Application 12/640,298 g) removing a second portion of the gaseous etlluent stream as off-gas. (Id. at 6.) Examiner's Rejection Claims 1-13 stand rejected under 35 U.S.C. Â§ 103(a) as unpatentable over Erling.2 (Final Act. 2.)3 Appellants present arguments for the patentability of claims 1-13 as a group. (Br. 3--4.) Therefore, we limit our discussion to claim 1 as representative of those claims. ISSUE Does a preponderance of evidence of record support the Examiner's conclusion of obviousness with respect to claim 1? ANALYSIS The Examiner finds that Erling teaches all of the steps of claim 1, except for step f. (Final Act. 4.) Specifically, the Examiner finds that claim l recites that the effluent from the second stage Fischer-Tropsch (F-T) reactor is fed to the same separation unit as the effluent from the first F-T reactor, whereas Erling teaches feeding effluent from the second F-T reactor to a different separation unit than the first. (Id.) However, the Examiner also finds that it was general knowledge to use a single vessel rather than multiple vessels, and that the economic benefits (e.g., cost savings) of doing so would have motivated a person of ordinary skill in the art to use a single separator rather than the two separators as taught by Erling. (Id. at 2-5.)4 2 Erling, WO 2008/062208 A2, published May 29, 2008 ("Erling"). 3 Office Action dated Feb. 5, 2013. 4 The Examiner cites six prior art references for this position. (Final Act. 2- 3.) 3 Appeal2014-001721 Application 12/640,298 Appellants respond by arguing that "[i]f it were a mere substitution and [it] would have been cheaper, Erling would have used a single separation unit." (Br. 4.) Appellants also argue that considerations concerning the size of the separation unit and operating conditions have to be taken into account, and that "there is no teaching or motivation suggested by Erling to do so." (Id.) Finally, Appellants refer to statements in the Specification to argue that the process of the present invention results in "a high conversion, accompanied by a high selectivity to C5+ products," and that the present invention "allows the use of syngas with a relatively low hydrogen/CO ratio." (Id.) We adopt as our own the findings of fact set forth by the Examiner in (1) the action from which this appeal is taken (Final Act. 2-5) and (2) the Examiner's Answer in response to Appellants' Appeal Brief (Ans. 2-3), and concur with the conclusions reached by the Examiner. Moreover, the Examiner has satisfied the burden of showing "some articulated reasoning with some rational underpinning to support the legal conclusion of obviousness." KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007). As discussed below, Appellants' arguments do not overcome that prima facie case of obviousness. Appellants argue that the use of the same separation unit for both F-T reactors would not have been obvious because ( 1) Erling would have used a single separation unit if it were a mere substitution and would have been cheaper, and (2) the size of the separation unit and operating conditions would have to be taken into account in using a single separation unit, and Erling provides no teaching or motivation to do so. (Br. 4.) We are not persuaded. The test for obviousness is not whether Erling 4 Appeal2014-001721 Application 12/640,298 would have used a single separation unit, but rather what Erling would have suggested to one of ordinary skill in the art. See In re Keller, 642 F.2d 413, 425 (CCP A 1981) (citing cases). Here, Erling teaches all of the steps of claim 1 except for the use of a single separation unit. (Final Act. 4.) However, as the Examiner points out, the use of (and advantage of using) a single vessel rather than multiple vessels was well known in the art. (Final Act. 2-3). 5 Moreover, evaluating suggestion or motivation in an obviousness analysis "not only permits, but requires, consideration of common knowledge and common sense." DyStar Textilfarben GmbH & Co. Deutschland KG v. C.H. Patrick Co., 464 F.3d 1356, 1367 (Fed. Cir. 2006); see also KSR, 550 U.S. at 421 ("A person of ordinary skill is also a person of ordinary creativity, not an automaton."). We find that a person of ordinary skill in the art would have had the knowledge, motivation, and capability of modifying the process of Erling so as to utilize the same separation unit for both F-T reactors. We are also unpersuaded by Appellants reference to statements in the Specification regarding certain advantages of the claimed process. (Br. 4.) "Mere argument or conclusory statements in the specification does not suffice" to establish unexpected results. In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997) (quoting In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984)). Thus, mere statements of purported advantages arising from the claimed process do not overcome the prima facie case of obviousness. 5 Appellants do not challenge the Examiner's reliance upon the six prior art references to show general knowledge in the art. 5 Appeal2014-001721 Application 12/640,298 CONCLUSION OF LAW A preponderance of evidence of record supports the Examiner's conclusion that claim 1 is obvious under 35 U.S.C. Â§ 103(a). Claims 2-13 were not argued separately and fall with claim 1. See 37 C.F.R. Â§ 41.37(c)(l)(iv). SUMMARY We affirm the rejection of all claims on appeal. TIME PERIOD FOR RESPONSE No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a). AFFIRMED 6