Ex Parte Hazin et alDownload PDFPatent Trial and Appeal BoardJan 19, 201813764225 (P.T.A.B. Jan. 19, 2018) Copy Citation 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. 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 2 Appeal 2017-004554 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. 3 Appeal 2017-004554 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 4 Appeal 2017-004554 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 5 Appeal 2017-004554 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). 6 Appeal 2017-004554 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 7 Appeal 2017-004554 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 8 Copy with citationCopy as parenthetical citation