Ex Parte Fedeyko et al

Patent Trial and Appeal Board

Apr 6, 2016

13036823 (P.T.A.B. Apr. 6, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/036,823
94591 7590
Johnson Matthey Inc.
435 Devon Park Dr.
Suite 600
02/28/2011
04/08/2016
Wayne, PA 19087-1998
FIRST NAMED INVENTOR
Joseph M. Fedeyko
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.
WYN/2084US/JDJ 5679
EXAMINER
DA VIS, SHENG HAN
ART UNIT PAPER NUMBER
1732
NOTIFICATION DATE DELIVERY MODE
04/08/2016 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):
J ohnsonMatthey IP@matthey.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JOSEPH M. FEDEYKO, ARTHUR J. REINING,
HAI-YING CHEN, and PAUL J. ANDERSEN 1
Appeal2014-008148
Application 13/036,823
Technology Center 1700
Before MARK NAGUMO, CHRISTOPHER M. KAISER, and
LILAN REN, Administrative Patent Judges.
REN, Administrative Patent Judge.
DECISION ON APPEAL
Appellants timely appeal under 35 U.S.C. § 134(a) from the Final
Rejection2 of claims 12-14, 16-26, and 28-32. 3 We have jurisdiction.
35 U.S.C. § 6(b). We affirm.
1 The Real Party In Interest is identified as Johnson Matthey PLC. (Appeal
Brief, filed 15 January 2014 ("Br."), 2.)
2 Office action mailed 05 March 2013 ("Final Rejection"; cited as "FR").
3 Claims 1-11and15 have been cancelled. (Br. 2.) Claim 27 was initially
rejected under 35 U.S.C. § 103. (FR 5.) The Examiner's Answer mailed 16
May 2014 ("Ans.") indicates that claim 27 would be allowable if rewritten in
independent form. (Ans. 11.) Claim 27 is therefore not subject to our
review.
Appeal2014-008148
Application 13/036,823
A. Introduction4
OPINION
The subject matter on appeal relates to the reduction of certain "air
pollutants" produced by "fuel-burning facilities such as ... manufacturing
plants" and "[e]lectric utility power plants." (Spec. iJ 2.) The particular air
pollutants of interest include "nitrogen oxides, also called NOx gases." (Id.)
In order "to treat a flue gas stream for the selective conversion (reduction) of
NOx to N2," the '823 Specification provides that a "Selective Catalytic
Reduction procedure [that] utilizes a catalytic bed or system" may be used.
(Id. iJ 3.) "The SCR procedure normally utilizes ammonia or urea as a
reactant [i.e., a reductant] that is injected into the flue gas stream upstream,
prior to their being contacted with the catalyst." (Id.)
The claims are directed to a high-temperature SCR process which uses
a SCR catalyst to "facilitate[] high temperature NOx reduction with high
selectivity." (Id. iJ 1.) Noting that "SCR catalysts used in high temperature
applications under low inlet NOx concentration require extremely high
selectivity ofNOx over NH3 to achieve both NOx conversion and NH3 slip
targets," the claimed SCR catalyst is said to have "excellent durability" for
"promoting the reduction ofNOx" while "undergoing thousands of hours of
hydrothermal aging with no significant loss in catalyst performance." (Id. iii!
4, 9.)
4 Application 13/036,823, High Temperature SCR Catalyst, filed 28
February 2011. We refer to the '"823 Specification," which we cite as
"Spec."
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Application 13/036,823
Representative Claim 12 reads:
A method for reducing NOx em1ss10n, said method
compnsmg:
injecting nitrogenous reductant into an exhaust stream
containing NOx and having a temperature greater than 850 °F;
contacting said exhaust stream containing said
nitrogenous reductant with an SCR catalyst to form a NOx-
reduced gas stream, said SCR catalyst comprising
a microporous crystalline silicoaluminophosphate
molecular sieve having framework type selected from the
group consisting of CHA, AEI, AFX, LEV, and LTA,
and AEI-CHA intergrowths; and
a transition metal loaded in said molecular sieve,
said transition metal loading is less than 1 wt%.
(Claims Appendix, Br. 12 (emphases added).)
5-11):
The Examiner maintains the following grounds of rejection (Ans. 3,
A. Claims 12-14, 16-20, 22-25, 28, 29, and 31 stand
rejected under 35 U.S.C. § 103(a) in viev; of
Hallstrom5 and Speronello.6
A 1. Claims 21 and 2 6 (dependent claims of claim 12) stand
rejected under 35 U.S.C. § 103 in view of Hallstrom,
Speronello, and Cox. 7
5 Kevin A. Hallstrom et al., Emission Treatment System, U.S. Patent
Application Publication 2009/0158719 Al (published June 25, 2009)
("Hallstrom").
6 Barry K. Speronello et al., Staged Metal-Promoted Zeolite Catalysts and
Method for Catalytic Reduction of Nitrogen Oxides Using the Same, U.S.
Patent 5,516,497 (issued May 14, 1996) ("Speronello").
7 Julian Peter Cox, Combined Slip Catalyst and Hydrocarbon Exotherm
Catalyst, U.S. Patent 8,329, 127 B2 (issued Dec. 11, 2012) ("Cox").
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Appeal2014-008148
Application 13/036,823
A2. Claim 30 (dependent from claim 12) stands rejected
under 35 U.S.C. § 103 in view of Hallstrom, Speronello,
and Han. 8
A3. Claim 32 (dependent from claim 12) stands rejected
under 35 U.S.C §103(a) as being unpatentable over
Hallstrom, Speronello, and Malyala. 9
The Examiner also enters a new ground of rejection:
B. Claims 21 and 26 stand rejected under 35 U.S.C. § 103 in
view of Hallstrom, Speronello, and Southward. 10
B. Discussion
Findings of fact throughout this Opinion are supported by a
preponderance of the evidence of record.
8 Hyun-Sik Han & Eun-Seok Kim, Oxidation Catalyst for NH3 and An
Apparatus for Treating Slipped or Scripped NH3, U.S. Patent Application
Publication 2009/0126353 Al (published May 21, 2009) ("Han").
9 Rajashekharam V. Malyala & Stephen J. Golden, Catalyst and Method for
Reducing Nitrogen Oxides In Exhaust Streams With Hydrocarbons or
Alcohols, U.S. Patent Application Publication 2006/0228283 Al (published
Oct. 12, 2006) ("Malyala").
10 Barry W.L. Southward & John G. Nunan, Zrox- Ce-Zrox, Ce-Zr-Reox, as
Host Matrices for Redox Active Cations for Low Temperature,
Hydrothermally Durable and Poison Resistant CR Catalysts, U.S. Patent
Application Publication US 2011/0236282 Al (published Sept. 29, 2011)
("Southward").
4
Appeal2014-008148
Application 13/036,823
Claim 1211
Appellants and the Examiner do not dispute that Hallstrom describes
both "zeolites" and "non-zeolitic" molecules. (Br. 5; Ans. 12 (citing
Hallstrom iii! 58, 59 and noting that Hallstrom describes "zeolite types as
well as non-zeolitic molecular sieves").) It is not disputed that Hallstrom
describes that "silicoaluminophosphates" is an example of non-zeolitic
molecules and that silicoaluminophosphates include a particular compound
known as "SAP0-34."12 (Hallstrom iJ 59.) It is also not disputed that
Hallstrom describes "suitable SCR catalysts" as including "zeolite,"
"silicoaluminophosphates," and "materials having the CHA structure that are
promoted with Cu" such as "Cu/SAP0-34." (Br. 4 (citing Hallstrom iii! 58,
59); Ans. 11-12 (citing the same).)
Appellants, however, argue that the Examiner erred in considering
Hallstrom. Appellants argue that Hallstrom "unambiguously refers only" to
a zeolite loaded with less than 1 wt% of copper and does not disclose a
silicoaluminophosphate having less than 1 wt% transition metal. (Br. 5.)
Appellants argue that because zeolites and non-zeolites have "different
physical and chemical properties" (id.), the claimed silicoaluminophosphate
loaded with less than 1 wt% copper is distinguished from the collective
teachings of Hallstrom and Speronello.
11 Although the Appeal Brief indicates that claims 13, 14, 16-20, 22-25, 28,
29, and 31 stand or fall with claim 12 (Br. 3, 8), Appellants argue for the
patentability of claims 16, 19, and 20 under separate headings. (Id. at 8;
Reply 14-15.) We address claims 16, 19, and 20 under the section entitled
"Remaining Claims."
12 "SAP0-34" is specifically recited in claim 17 of the '823 Specification.
(Br. 12.)
5
Appeal2014-008148
Application 13/036,823
The Examiner, on the other hand, points to evidence in Hallstrom
including the example of "silicoaluminophosphates ... promoted with Cu"
such as "Cu/SAP0-34" (Hallstrom iJ 59 cited in Ans. 3) and the discussion
that both zeolites and non-zeolites are "[ s Jui table SCR catalyst[ s ]" for
Hallstrom's SCR system. (Ans. 3 citing Hallstrom iii! 57, 58; Hallstrom iJ
55). Based on these passages, the Examiner finds that Hallstrom considers
Cu/SAP0-34 and copper-loaded zeolite catalysts both as "suitable catalysts"
for the SCR process. (See Ans. 12.) Further, based on Speronello, which
teaches that a copper loading above or below 1 wt% on a zeolite may affect
the selectivity of the zeolite in a SCR process, the Examiner reasons that a
skilled artisan would have had the knowledge to apply these references to
arrive at the claimed non-zeolitic catalyst loaded with less than 1 wt%
copper. (Id. at 13 (citing Speronello abstract); see also Speronello, 5, 11. 34-
35, 41-51.)
Unlike anticipation, an obviousness analysis allows one to "take
account of the inferences and creative steps that a person of ordinary skill in
the art would employ." KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398, 418
(2007). In this case, Hallstrom refers to "zeolites" in contrast to "non-
zeolitic molecular sieves" but describes both as "examples of suitable SCR
catalysts[.]" (Hallstrom iJ 59.) Hallstrom also provides that as "suitable
SCR catalysts," both zeolites and non-zeolites may be "promoted with
Cu[.]" (Id. at 4 iii! 58, 59.) Although Appellants point to various chemical
and physical "distinction[ s] between aluminosilicates and
silicoaluminophosphate catalysts" and the different "silica-to-alumina ratio"
in the structures of these catalysts (Br. 4, 5.), Appellants have not applied
these differences to the obviousness analysis and have not shown why these
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Appeal2014-008148
Application 13/036,823
differences may support the patentability of the claim at issue. Appellants
therefore have not shown any harmful error in the Examiner's finding in this
aspect of the obviousness analysis.
With regard to the Speronello reference, it is not disputed that
Speronello describes a zeolite catalyst loaded with either more than or less
than 1 wt% copper. (Br. 7 (citing Speronello Figure l); Ans. 13 (citing the
same and Speronello, 3, 11. 8-13 & 5, 11. 48-51 ).) Appellants assert that a
comparison between Figure 1 of the '823 Specification and Figure 1 of
Speronello "support[ s] the inventiveness of the claimed invention." (Br. 7.)
Figure 1 of Speronello and Figure 1 of the '823 Specification are reproduced
below:
~00',:,,~- ~· .. i: .,~ Ti· :>·i::···::-;. ,
soL- ""!-' :.rr=·~·/
£ :,J _,ti
~ ....... ~ ,/ -~-
'
. /
~1 48 . / '*-" ~EA1~1'!0t.URE4$Et.J~·
~ , .. / 0 '3C~/NO;;
ti 20 -- :: / · StR/to!l3
~- ·· * r~n3 01 lN+~3
o~ ............ ._._ ........ ._....=~ ...... ...... ~ .... ~~J. .. ,l;.J.,..,.., ...... ~4, ... .., ...... J... ...... ..,:.~~~~ ... i ... ~ ... ..i....i.J
O.Oi O.l ;n
Cu LO.A~!NG ON lEOUrE {wt.%~
FIG. I
Speronello
NOx Ctmversicm a! Low Transition Meta! Loaded
SAPQ..34 Mater!als
9~~....,......._~~~~~........._.,...........____,
WO
Figure 1
'823 Specification
Figure 1 of Speronello shows "conversion (% )" as a function of "Cu
Loading on Zeolite (wt%)" for three reactions: "SCR/NOx," "SCR/NH3,"
7
Appeal2014-008148
Application 13/036,823
and "NH3 Ox/NH3."13 Speronello explains that Figure 1 "shows that
increasing copper levels increase the activity of the zeolite catalyst for
ammonia conversion by oxidation with oxygen, and that the conversion of
nitrogen oxides by selective catalytic reduction with ammonia experienced a
peak at about a 0.8 percent by weight copper, and thereafter declined."
(Speronello, 13, 11. 29-34.) Speronello provides:
the [ f]igure clearly shows that copper loadings of less than
about 1 percent by weight copper ... are preferred in situations
where conversion of nitrogen oxides by reaction with ammonia
is to be favored, and that copper loadings in excess of
about 1 percent by weight are preferred in situations where
reaction of ammonia with oxygen is to be favored.
(Id. at 11. 39--45.) Speronello concludes that when the "metal loading level"
is below 1 wt%, the "selectivity for the SCR reaction ... is significantly
favored over the oxidation of ammonia by oxygen." (Id. at 5, 11. 35-50.)
On the other hand, Figure 1 of the '823 Specification shows a scenario
in which "SAP0-34 was loaded with a relatively low concentration of
copper, 0.13 and 0.23 wt%, and iron, 0.6 wt%" as compared to the
compound being "loaded more heavily at 1.01 wt% Cu and 1.2 wt% Fe."
(Spec. iJ 34). The '823 Specification provides that "the conversion rates of
the more-heavily loaded SAP0-34 samples show a precipitous drop after
1000°F" whereas "the relatively low loaded SAPO samples show
13 Speronello specifically states: "In FIG. 1, the asterisks represent the
percentage of ammonia present which is oxidized under conditions wherein
the nitrogen oxides content was zero. The squares and crosses of the Figure
represent, respectively, the conversion of nitric oxide (NO) and ammonia
under selective catalytic reaction conditions, i.e., when the gaseous stream
contains nitrogen oxide, ammonia and oxygen, and the molar ratio of
NH3/NO is one." (Speronello, 13, 11. 21-29.)
8
Appeal2014-008148
Application 13/036,823
significantly higher conversion rates above 1000° F, thus indicating
continued high selectively ofNOx over NH3." (Id.)
According to Appellants, Figure 1 of the '823 Specification shows
that "high temperature NOx performance of a silicoaluminophosphate (non-
zeolite) molecular sieve improves by decreasing the concentration of copper
loading from 1 to 0.1 weight percent" whereas Figure 1 of Speronello shows
"that high temperature NOx performance of an aluminosilicate (zeolite)
molecular sieve catalyst improves by increasing the concentration of copper
loading from 0.1 to 1 weight percent." (Br. 6 (emphases in original); Reply
9-10.) Based on their interpretation of these figures, Appellants conclude
that claim 12 shows unexpected results because combining Hallstrom with
Speronello would have "the opposite effect of catalyst metal loadings on
NOx conversation activity." (Reply 9.)
"To be particularly probative, evidence of unexpected results must
establish that there is a difference between the results obtained and those of
the closest prior art, and that the difference would not have been expected by
one of ordinary skill in the art at the time of the invention." Bristol-Myers
Squibb Co. v. Teva Pharms. USA, Inc., 752 F.3d 967, 977 (Fed. Cir. 2014).
In this case, Appellants have not shown that the figures are directly
comparable as asserted. Figure 1 of the '823 Specification shows NOx
conversion rate over a temperature range of between 300°F to 1200°F (Spec.
iJ 34.) Figure 1 of Speronello, on the other hand, shows conversion rates for
three different reactions over a range of copper loading weight percentages
at a temperature of 550°C or about 1022°F. (Speronello, 12, 1. 49.)
Appellants have not provided an analysis (e.g., with specific data points in
each figure) explaining how a direct comparison was made between a
9
Appeal2014-008148
Application 13/036,823
conversion rate as a function of temperature and a conversion rate as a
function of copper weight percentage to support the "opposite trends" of
"NOx performance."
Appellants also do not explain what the term "NOx performance"
means within the scope of the obviousness analysis. (Br. 6.) "NOx
performance" or the trend of "NOx performance" is not a term used in the
Speronello reference14 nor is it recited in the claim at issue. 15 Moreover, the
assertion that Figure 1 of the '823 Specification shows the "transition metal
loaded SAPOs have the opposite trend at the same temperature" is without
any specificity as to what the particular "same temperature" is and what each
of the figures shows at the unspecified temperature. (Reply 11.) In addition
to these ambiguities, Appellants have not offered an explanation as to how
any of these terms or phrases may be applied in the obviousness analysis.
Appellants' assertions are also not supported by evidence in the
record. For example, contrary to Appellants' assertion that Figure 1 of
Speronello shows that "increasing copper levels from 0.1 weight percent
to 1 weight percent increases the activity of the zeolite catalyst" (Br. 7),
Speronello in fact provides that "the conversion of nitrogen oxides by
selective catalytic reduction with ammonia ... declined" after
14 Speronello describes "catalytic performance" and "NOx conversion."
(Speronello, 15, 1. 53-54 & 16, 1. 41.)
15 Appellants also use terms such as "the activity of the zeolite catalyst,"
"effect of catalyst metal loadings on NOx conversion activity," and "NOx
conversion activity" when comparing the figures. (Br. 6, 7, 9; Reply 6, 10.)
Appellants have not explained whether these terms are directed to the same
property or whether they are interchangeable with "NOx performance."
10
Appeal2014-008148
Application 13/036,823
"experience[ing] a peak at about a 0.8 percent by weight copper[.]"
(Speronello, 13, 11. 29-34.)
Moreover, to the extent that Appellants assert that the "unexpected
results" are evidenced by a "higher N Ox conversion" when the copper
loading weight percentage decreases in the '823 Specification (Br. 8),
Appellants have not shown that the NOx conversion rate is higher compared
to the conversion rate in Speronello. Absent showing a difference in
absolute conversion rates between the reactions in Speronello and the '823
Specification, Appellants have not shown the minimum basis from which a
skilled artisan could have found unexpected the NOx conversion rate using
the claimed catalyst. In fact, the skilled artisan may very well have expected
a copper loading of less than 1 wt% to be "preferred" based on the teaching
in Speronello that "copper loadings of less than about 1 percent by weight ..
. are preferred in situations where conversion of nitrogen oxides by reaction
with ammonia is to be favored." (Speronello, 13, 11. 39--45.) Figure 1 of the
'823 Specification similarly shows that "the relatively low loaded SAPO
samples ... indicat[e] continued high selectively ofNOx over NH3." (Spec.
,-i 34). Appellants therefore have not shown that the Examiner erred in
considering Speronello-in particular the finding that Speronello teaches
"maintain[ing] the metal loading at levels of at most 1 %." (See Ans. 13
(citing Speronello, 3, 11. 8-13).) 16
16 Because the obviousness rejection is based on Hallstrom and Speronello
alone (FR 3), we decline to address the reference Moini (US 2013/0052125)
which the Examiner cites in support of the Examiner's position on the term
"zeolite." (See Ans. 12 (stating that the Moini reference shows a particular
definition of "zeolite").)
11
Appeal2014-008148
Application 13/036,823
On balance, we are not persuaded that the Examiner erred in finding
that a skilled artisan, considering the combined teachings of Hallstrom
(describing suitable catalysts as including both Cu/SAP0-34 and copper-
loaded zeolites having a copper loading between 0.1 wt% to 30 wt%) and
Speronello (describing that a zeolite loaded with less than 1 wt% copper is
preferred during at least one aspect of the SCR process), would have found
the claimed invention obvious.
Remaining Claims
With regard to the remaining claims (claims 16, 19-21, 26, 30, and
32), Appellants repeat the arguments with regard to claim 12 (i.e., neither
Hallstrom nor Speronello describe a non-zeolite with the claimed copper
loading weight percentage) 17 without a sufficient explanation as to why these
dependent claims are separately patentable. (Br. 8-11; Reply 15-18); In re
Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) ("[W]e hold that the Board
reasonably interpreted Rule 41.3 7 to require more substantive arguments in
an appeal brief than a mere recitation of the claim elements and a naked
assertion that the corresponding elements were not found in the prior art.").
17 In their Reply, Appellants argue for the separate patentability of claims 16
and 19 for the first time as well as the patentability of claim 20, each based
the "New Grounds of Rejection." (Reply 14-15.) The Examiner, however,
has issued the "New Grounds of Rejection" to claims 21and26 only. (Ans.
9-10; see also FR 3 (rejecting claims 16, 19, and 20 based on Hallstrom and
Speronello).) We therefore note that claims 16, 19, and 20 have been
rejected under Hallstrom and Speronello only. (See Br. 8 (arguing that the
rejection of claims 16-20 based on Hallstrom and Speronello should be
reversed).) In addition, because Appellants did not raise the separate
patentability of claims 16 and 19 in their principal brief, and have not shown
good cause for their belated arguments in the Reply, we decline to consider
these arguments.
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Application 13/036,823
We are not persuaded by these arguments for the reasons discussed with
respect to claim 12, from which claims 16, 19-21, 26, 30, and 32 depend. 18
C. Order
It is ORDERED that the rejections of claims 12-14, 16-26, and 28-32
are affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § l.136(a).
AFFIRMED
18 The Examiner entered a new ground of rejection of claims 21 and 26
based on Hallstrom, Speronello, and Southward. (Ans. 10.) It is therefore
unnecessary for us to consider the previous rejection of these claims based
on Hallstrom, Speronello, and Cox. (See FR 5.)
13