Ex Parte Hazin et al

Patent Trial and Appeal Board

Jan 19, 2018

13764225 (P.T.A.B. Jan. 19, 2018)

United States Patent and Trademark Office
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
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APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
13/764,225 02/11/2013 Paulette Hazin 11CHEM0022-U S -NP 8464
102091 7590 01/23/2018
Cantor Colburn LLP - SABIC Americas
20 Church Street
Hartford, CT 06103
EXAMINER
MAYES, MELVIN C
ART UNIT PAPER NUMBER
1732
NOTIFICATION DATE DELIVERY MODE
01/23/2018 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):
usptopatentmail@cantorcolbum.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PAULETTE HAZIN and REGINALD TENNYSON
Appeal 2017-004554
Application 13/764,225
Technology Center 1700
Before LINDA M. GAUDETTE, WESLEY B. DERRICK, and
DEBRA L. DENNETT, Administrative Patent Judges.
DENNETT, Administrative Patent Judge.
DECISION ON APPEAL1
STATEMENT OF THE CASE
Appellants2 appeal under 35 U.S.C. § 134(a) from the Examiner’s
Final Rejection of claims 1—7, 9, 11—28, 30, and 31, which constitute all the
claims pending in this application. We have jurisdiction under 35 U.S.C.
§ 6(b).
We REVERSE.
1 In our Opinion, we refer to the Specification filed February 11, 2013
(“Spec.”); the Final Action mailed November 3, 2015 (“Final Act.”); the
Advisory Action mailed February 23, 2016 (“Advis. Act.”); the Appeal Br.
filed April 4, 2016 (“Br.”); and the Examiner’s Answer mailed September 1,
2016 (“Ans.”). Appellants did not file a Reply Brief.
2 Appellants identify SAUDI BASIC INDUSTRIES CORPORATION as the
real party in interest. Br. 2.
Appeal 2017-004554
Application 13/764,225
The invention relates to methods of making catalysts for oxidative
dehydrogenation of organic compounds such as olefins. Spec. 12. Claim 1,
reproduced below, is illustrative of the claimed subject matter:
1. A method of making a dehydrogenation catalyst,
comprising:
combining a zinc precursor, an iron precursor, a cobalt
precursor, a magnesium precursor, optionally a calcium
precursor, and optionally an M precursor, in water to form a
mixture, wherein M is selected from silver (Ag), aluminum
(Al), cerium (Ce), cesium (Cs), copper (Cu), potassium (K),
lanthanum (La), lithium (Li), manganese (Mn), molybdenum
(Mo), sodium (Na), nickel (Ni), phosphorus (P), palladium
(Pd), platinum (Pt), ruthenium (Ru), silicon (Si), vanadium (V),
tungsten (W), yttrium (Y), as well as combinations comprising
at least one of the foregoing, wherein the zinc precursor
comprises initial zinc and the iron precursor comprises initial
iron;
adding base to the mixture to form a slurry having a pH
of 7 to 8.5;
aging the slurry at a temperature of greater than or equal
to 40°C while agitating;
filtering a precipitate from the aged slurry to collect a
catalyst precursor; and
drying and calcining the catalyst precursor to form the
catalyst;
wherein the catalyst has the formula (I)
FeZnaCobMgcCadCleMfOx (I)
wherein the amounts are in mole ratios relative to 1 mole
of iron, “a” is 0.07 to 0.35 moles; “b” is 0.01 to 0.20 moles; “c”
is less than or equal to 0.40 moles; “d” is less than or equal to
0.40 moles; “e” is less than or equal to 0.10 moles; “f’ is less
than or equal to 0.20 moles; and “x” is a number depending on
the relative amount and valence of the elements different from
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Application 13/764,225
oxygen in Formula (I), and wherein greater than or equal to
88% of the initial zinc is recovered; and
wherein the mole ratio of the initial zinc to the initial iron
is less than or equal to 0.35.
Br. 23—24 (Claims App’x).
REFERENCES
The Examiner relies on the follow prior art in rejecting the claims on
appeal:
Christmann et al.
(“Christmann”)
Chung et al.
(“Chung”)
Yang et al.
(“Yang”)
US 4,020,120
US 2010/0280300
Al
CN 1088624C
Apr. 26, 1977
Nov. 4, 2010
Aug. 7, 2002
Lee H., Jung JC., Kim H., Chung YM., Kim TJ., Lee SJ., Oh
SH., Kim YS., Song IK., “Preparation of ZnFe204 Catalysts by a
Co-precipitation Method Using Aqueous Buffer Solution and
Their Catalytic Activity for Oxidative Dehydrogenation of n-
Buteneto 1,3-Butadiene,” Catalysis Letters (2007) 122: 281—
286 (“Chung”)
REJECTIONS
The Examiner maintains and Appellants seek review of the following
rejections under 35 U.S.C. § 103(a)3: (1) claims 1—7, 9, 11—14, 17, 18, and
22—28 over Yang in view of Lee; (2) claims 15—25, 30, and 31 over Yang in
view of Christmann; and (3) claims 19—21 over Yang in view of Lee and
further in view of Chung. Final Act. 4—17; Br. 7.
3 Because this application was filed before the March 16, 2013, effective
date of the America Invents Act, we refer to the pre-AIA version of the
statutes.
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Application 13/764,225
OPINION
Rejection over Yang in view of Lee
Claim 1 and its dependent claims require, inter alia, that greater than
or equal to 88% of the initial zinc is recovered in the catalyst. Br. 24
(Claims App’x). In relation to this claim limitation, the Examiner
acknowledges that Yang does not teach greater than or equal to 88% of zinc
is recovered. Final Act. 6. However, the Examiner finds that Lee teaches
production of a catalyst with nearly identical and final Zn:Fe ratios, and
reasons that the similar ratios indicate “full recovery of both metals.” Id.
Appellants dispute the Examiner’s finding. Br. 8.
The Examiner’s reasoning is unpersuasive. The fact that the initial
and final Zn:Fe ratios are similar in Lee teaches nothing about the amount of
catalyst resulting from the disclosed method, and therefore, nothing about
the amount of metal recovered as catalyst. A large amount of the initial
metals could be lost in the method, but the final Zn:Fe ratio could still be
similar to the initial ratio. On this basis, we do not sustain the Examiner’s
rejection of claims 1—7, 9, and 11—14 over Yang in view of Lee.
Independent claims 17 and 26 and their respective dependent claims
require that the mole ratio of the initial zinc to the initial iron is less than or
equal to 0.32. Br. 26—30 (Claims App’x).
The Examiner acknowledges that Yang does not teach that the initial
Zn:Fe ratio is less than or equal to 0.32. Final Act. 12. The Examiner
calculates, however, that Yang teaches the final Fe:Zn ratio is 0.2 to 0.32.
Id. at 8. The Examiner finds that Lee teaches that the initial Zn:Fe ratio and
final Zn:Fe ratio are almost identical. Id. at 9. The Examiner concludes that
it would have been obvious to one of skill in the art at the time of the
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Application 13/764,225
invention to retain as much of the zinc as possible, and such recovery would
result in nearly identical final and initial Zn:Fe ratios. Id.
Appellants argue that Yang teaches initial Zn:Fe ratios of 0.33 to 0.85,
which is outside the claimed range. Br. 13. Lee teaches similar initial and
final Fe:Zn ratios, but the ratios are approximately 2:1 (or 0.5:1 for Zn:Fe) at
a pH of 7 to 12. See Lee, Preparation of Zinc Ferrite (ZnFe204) Catalysts,
Table 2. Appellants argue that the Examiner provides no reason or
motivation for one of ordinary skill in the art to modify Yang’s disclosure
with that of Lee. Id. at 10.
The Examiner’s finding that the ordinary artisan employing Yang’s
method would turn to Lee’s disclosure of pH and reaction conditions in
order to retain as much zinc as possible is not supported by the references.
Lee teaches that the initial and final Zn:Fe ratios are similar, but discloses
nothing about the amount of catalyst resulting from practicing the method.
One can only speculate as to whether most, some, or little of the initial zinc
actually ends up incorporated into the catalyst created by Lee. Thus, there is
no motivation to modify Yang’s teachings with Lee’s disclosure, as one of
ordinary skill in the art at the time of the invention would have had no
expectation that the resulting modified method would cause loss of less zinc
than Yang’s original method. Therefore, we do not sustain the rejection of
claims 17, 18, and 22—28 over Yang in view of Lee.
Rejection over Yang in view of Christmann
The Examiner rejects claims 15—25, 30, and 31 over Yang in view of
Christmann. Final Act. 13—16.
As stated above, claim 17 and its dependent claims (8—25) contain the
limitation that the mole ratio of the initial zinc to the initial iron is less than
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Application 13/764,225
or equal to 0.32. Br. 26—28 (Claim App’x). The Examiner acknowledges
that neither Yang nor Christmann teach that the initial Zn:Fe ratio is the
same as the final Zn:Fe ratio. Final Act. 15. The Examiner concludes,
however, that because Christmann’s method does not involve precipitation,
the loss of precursor metals is expected to be negligible. Id.
Appellants argue that the claims are non-obvious because the
references do not disclose the required initial Zn:Fe ratio of 0.32. Br. 18—19.
Appellants contend, and the Examiner does not dispute, that Yang
discloses initial zinc to initial iron ratios of 0.33 to 0.85. See Br. 13; Yang
Exs. 1—12. The Examiner makes no finding that 0.33 to 0.85 is “close
enough” to the claimed range that the ordinary artisan would have expected
the same result. See generally, Final Act.; Ans.; see In re Peterson, 315
F.3d 1325, 1329 (Fed. Cir. 2003). Instead, the Examiner determines that
Christmann supports “negligible” loss of metal precursors. See id. at 15.
However, even negligible loss of Zn and Fe (as well as Mg, Ca, Sr, or Ba
required by Yang and Co required by claim 17) fails to support a mole ratio
of initial Zn to initial Fe that is less than or equal to 0.32 when the initial
ratios taught by Yang are higher and Christmann does not cure the
deficiency. Therefore, the Examiner does not show that the combined
references teach the limitations of claim 17.
We do not sustain the rejection of claim 17 or its dependent claims
18—25 over Yang in view of Christmann.
Claim 15 and its dependent claims (16, 30, and 31) do not include the
requirement that the mole ratio of the initial zinc to the initial iron is less
than or equal to 0.32, but require a yellow iron (III) oxide monohydrate. Br.
25—26, and 29—30 (Claims App’x).
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Application 13/764,225
The Examiner finds that Yang teaches a catalyst of the formula
ZnaCabCocFe204*X(Fe203), but does not teach that the catalyst is made by a
process other than precipitation. Final Act. 14. The Examiner finds that
Christmann teaches making a catalyst of the allegedly same formula by
adding yellow iron oxide monohydrate with zinc chloride and appropriate
metal precursors. Id. The Examiner concludes that using Christmann’s
method of preparation to make Yang’s catalyst is merely “substitution of
known equivalents.” Advis. Act. 2.
Appellants argue that the methods of Yang (precipitation) and
Christmann (spray-drying and calcinating precursors) are clearly different,
and the Examiner’s finding that the methods are known equivalents is
merely conclusory. Br. 16. Appellants argue that Yang discloses that even
small changes in the preparation method can result in large changes in yield
and selectivity, and catalysts resulting from different procedures are not
necessarily the same. Id. at 14—15 (citing Yang Exs. 1—12).
Applying the Examiner’s finding that the references teach a catalyst of
the formula ZnaCabCocFe204*X(Fe203), Yang requires “a,” “b,” and “X” are
all greater than zero, while Christmann requires “a” is greater than zero, but
“b” and “X” equal zero. Therefore, we cannot agree that the Examiner
demonstrates that Yang and Christmann teach the same catalyst. We
consequently do not sustain the rejection of claim 15 and its dependent
claims 16, 30, and 31 over Yang in view of Christmann.
Rejection over Yang in view of Lee and further in view of Chung
Claims 19—21 depend directly or indirectly from claim 18, which
depends from claim 17. Br. 26—28 (Claims App’x). Claim 18 requires
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Application 13/764,225
combining the iron precursor of claim 17 with an acid, and claims 19—21
further require that the acid is hydrochloric acid. Id. at 27—28.
The Examiner rejects claims 19—21 over Yang in view of Lee, as
applied to claim 18 (and claim 17 discussed supra), and further in view of
Chung. Final Act. 16.
In the rejection of claim 17 over Yang in view of Lee above at page 5
we explain why the Examiner errs in finding that the ordinary artisan would
have been motivated to modify Yang’s teaching with that of Lee. That
explanation serves here as well. And because the addition of Chung to the
combination does not overcome the error in the Examiner’s conclusion, we
do not sustain the rejection of claims 19—21.
DECISION
The rejection of claims 1—7, 9, 11—28, 30, and 31 is reversed.
REVERSED
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