Ex Parte LANDSCHOF et al

Patent Trials and Appeals BoardMar 27, 2019

13324166 - (D) (P.T.A.B. Mar. 27, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/324, 166 12/13/2011 23632 7590 03/29/2019 SHELL OIL COMPANY POBOX576 HOUSTON, TX 77001-0576 FIRST NAMED INVENTOR Jorg LANDSCHOF 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. TH2850US-DIV 7863 EXAMINER HINES, LATOSHA D ART UNIT PAPER NUMBER 1771 NOTIFICATION DATE DELIVERY MODE 03/29/2019 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 Shelldocketing@cpaglobal.com shellusdocketing@cpaglobal.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte JORG LANDSCHOF, MICHAEL CLIFFORD MACKNA Y, and TIMOTHY MICHAEL SHEA Appeal 2018-003931 Application 13/324,166 Technology Center 1700 Before MICHAEL P. COLAIANNI, N. WHITNEY WILSON, and DEBRA L. DENNETT, Administrative Patent Judges. WILSON, Administrative Patent Judge. DECISION ON APPEAL Appellants 1 appeal under 35 U.S.C. Â§ 134(a) from the decision of the Examiner finally rejecting claims 115-121, 123-133, and 135-159.2 We have jurisdiction over the appeal under 35 U.S.C. Â§ 6(b). We affirm. 1 The real party in interest is said to be Shell Oil Co. (Appeal Br. 3). 2 For purposes of this appeal, we have assumed that the Examiner's indication that claims 122 and 134 are pending is a clerical error (see, e.g., Final Act. l; Ans. 2). Appellants canceled claims 122 and 134 by Amendment, filed May 10, 2016. The Examiner entered the Amendment on June 8, 2016. Appeal 2018-003931 Application 13/324,166 BACKGROUND Appellants' invention is directed to unleaded fuel compositions, having an octane rating of 105 or more, for use in high performance engines (Spec. ,r 2, 4, 6). Independent claim 115 is representative of the claims on appeal and is reproduced below from the Claims Appendix to the Appeal Brief ( emphasis added): 115. An unleaded gasoline fuel composition comprising a base blend exhibiting a Motor Octane Number (MON) of 100 or more, the base blend comprising: 40 vol.% or more of two or more alkylated benzenes comprising 10 vol.% or more xylene, the alkylated benzenes having the following general structure: wherein R, R 1, and R 2 are selected from the group consisting of hydrogen and alkyl groups having from 1 to 4 carbon atoms, at least one of R, R 1, and R 2 being an alkyl group; from about 2 vol.% to about 15 vol.% of one or more aromatic amines having the following general structure: R .,, Â·Â·:- wherein R3 is hydrogen; 2 Appeal 2018-003931 Application 13/324,166 R4 and R5 independently are selected from the group consisting of hydrogen and alkyl groups having from about 1 to 4 carbon atoms; and, an isoparaffin composition comprising a sufficient amount of isooctane for the isoparaffin composition to exhibit a MON of 88 or greater, the isoparaffin composition comprising less than 5 vol.% isoparaffins having a total of 6--7 carbon atoms; and, a quantity of isopentane; the base blend exhibiting the Motor Octane Number (MON) of 100 or more. (Appeal Br. 32-33 (Claims App.)). REJECTION Appellants appeal the rejection of claims 115-121, 123-133, and 135-159 as unpatentable under 35 U.S.C. Â§ I03(a) over Bazzani. 3 Appellants' arguments urge reversal of the Examiner's rejection in the following groups of claims: (I) 115-121, 123,4 and 124; (II) 126-133 and 135 5-137; (III) 138-147; (IV) 148-150; (V) 151-153; and (VI) 154--159 (see generally Appeal Br. 3-38; Reply Br. 1-7). Accordingly, we select independent claims 115, 126, and 138 and dependent claims 148, 151, and 154 as representative of claims groups (I), (II), (III), (IV), (V), and (VI), respectively. 37 C.F.R. Â§ 4I.37(c)(l)(iv). 3 Bazzani et al., EP 1359207 Al, published November 5, 2003. 4 Appellants did not include claim 123 in any claim group. We view Appellants' omission of claim 123 from claims group (I) as a clerical error. 5 Claim 135 depends on claim 134, which is a canceled claim. Should prosecution continue in this case, appropriate correction will be required. 3 Appeal 2018-003931 Application 13/324,166 DISCUSSION We have reviewed the arguments set forth by Appellants in their Appeal and Reply Briefs. We conclude that, essentially for the reasons set forth by the Examiner in the Final Action and the Answer, Appellants have not demonstrated reversible error in the obviousness rejection. We add the following for emphasis. I. Claims 115-121, 123, and 124 The Examiner finds that Bazzani' s unleaded formulated motor gasoline comprising a base blend composition teaches each of the limitations of independent claim 115 (Ans. 2-7). Appellants make the following arguments urging reversal of the rejection of claims 115-121, 123, and 124: (l)theExaminerhasnot established that Bazzani's "large number and volume ranges of components" teaches, suggests, or would have motivated the ordinary skilled artisan to produce an unleaded fuel composition, which possesses each of four elements recited in claim 115 (Appeal Br. 8; see generally id. at 8-12; Reply Br. 3--4); (2) the Examiner has failed to establish that Bazzani would have enabled one of ordinary skill in the art to formulate an unleaded fuel composition that exhibits a MON of 100 or more (Appeal Br. 12-15; Reply Br. 2); (3) Appellants' evidence demonstrates that the unleaded fuel composition recited in claim 115 "exhibited unexpected advantageous properties" (Appeal Br. 16; see generally id. at 16-17; Reply Br. 1, 5); (4) the unleaded fuel composition recited in claim 115 solved a long felt, but unsolved need (Appeal Br. 17-27; Reply Br. 6-7); and (5) US 8,628,594 provides evidence that a third party is copying the claimed base blend (Appeal Br. 27-28). 4 Appeal 2018-003931 Application 13/324,166 Appellants' arguments are not persuasive. In connection with argument ( 1 ), Appellants specifically argue that the Examiner has not established that Bazzani teaches or suggests the following elements: ( 1) 40 vol.% or more of two or more alkylated benzenes comprising 10 vol.% or more xylene; (2) from about 2 vol.% to about 15 vol.% of one or more aromatic amines having the following general structure: ; :Â· ~ . ' ' . ~<.,);:::;>) wherein R3 is hydrogen; (3) an isoparaffin composition comprising a sufficient, amount of isooctane to exhibit a MON of 88 or greater, the isoparaffin composition comprising less than 5 vol.% isoparaffins having a total of 6-7 carbon atoms; and ( 4) a quantity of isopentane. (id. at 8, 9, 10, 11) (emphasis added). However, we agree with the Examiner that Bazzani teaches or suggests each of Elements ( 1 }-( 4 ). As the Examiner found, Bazzani specifically teaches in paragraph 0004, 'an unleaded blend composition' -having a Motor Octane Number (MON) of at least 80 (MON of 80-110 or 80-105 (see paragraph 0028)) comprising: -component (a) at least 5% of at least one hydrocarbon having the following formula I RCH[2]-CH(CH[3])-C(CH[3])[2]-CH[3J wherein R is hydrogen or methyl and component; -[ component] (b) at least one saturated liquid aliphatic hydrocarbon having 4 to 12 (4--10 such as 5-10 e.g. 5-8 carbon atoms in the amount of 2-50 volume% (includes 5 Appeal 2018-003931 Application 13/324,166 isoparaffins isooctane or isopentane or a mixture ( see paragraph 001 O)); the composition comprises at least one of an olefin ( e.g. in amount of 1-30%) and/or at least one aromatic hydrocarbon (e.g. in amount of 1-50%) (includes toluene or o, m, or p xylene or a mixture thereof or a trimethylbenzene (see paragraph 0020)) and/or less than 5Â°/o of benzene. Bazzani further discloses in paragraph 0024, aromatic amines i.e. aniline6 present if at all in the amount of less than 5% by volume. (Ans. 6-7). Appellants assert that "there is not a teaching or suggestion that Bazzani's fuel composition must comprise" or "necessarily use" or "combine" the features recited in Elements ( 1 }-( 4) (see, e.g., Appeal Br. 9; see generally id. at 8-12). However, the Examiner's applied prior art need only teach or suggest each limitation in order to render the claim obvious. See In re Burckel, 592 F.2d 1175, 1179 (CCPA 1979) ("[A] reference must be considered not only for what it expressly teaches, but also for what it fairly suggests."); see also In re Fritch, 972 F.2d 1260, 1264 (Fed. Cir. 1992) (explaining that "[i]t is well settled that a prior art reference is relevant for all that it teaches to those of ordinary skill in the art")). Furthermore, the Examiner finds that "Bazzani discloses each component of claim 115, wherein the Elements ( 1 }-( 4) overlap or lie within the claimed ranges" (Ans. 6). Therefore, the claimed amounts of Elements (1}-(4) are prima facie obvious over the teachings ofBazzani. In re Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003) ("[a] primafacie case of 6 Bazzani' s explicitly disclosed aniline is an aromatic amine that only comprises hydrogen on the nitrogen atom and thus, meets the limitations of Element (2). 6 Appeal 2018-003931 Application 13/324,166 obviousness typically exists when the ranges of ... [the] claimed composition overlap the ranges disclosed in the prior art"); see also In re Malagari, 499 F.2d 1297, 1303 (CCPA 1974) (concluding that a claimed invention was rendered prima facie obvious by a prior art reference whose disclosed range (0.020--0.035% carbon) overlapped the claimed range (0.030--0.070% carbon)). Appellants argue in connection with argument (2) that Bazzani failed to formulate any unleaded gasoline fuel blend that exhibited a MON of 100 or more (Appeal Br. 13). Argument (2) is not persuasive because, the cited prior art, which is directed to an unleaded blend composition having a MON of at least 80, discloses each limitation recited in claim 115 (see Ans. 2-7). It is well established that when claimed and prior art products are produced by identical or substantially identical processes, the PTO can require an applicant to prove that the prior art products do not necessarily or inherently possess the characteristics of his claimed product. In re Best, 562 F.2d 1252, 1255 (CCP A 1977). This is true whether the rejection is under 35 U.S.C. Â§ 102 (anticipation) or 35 U.S.C. Â§ 103 (obviousness), and is based on the fact that the PTO is not in a position to manufacture products or to obtain and compare prior art products. Id. On this record, Appellants have not shown that Bazzani' s unleaded fuel composition fails to exhibit a MON of 100 or more. Argument (3) is not persuasive because Appellants' arguments and Declarations/Testimony have failed to establish that the claimed ranges are critical to confer the "unexpected advantageous properties" of using the claimed fuel blend as a drop-in substitute for 1 OOLL leaded fuel in an 7 Appeal 2018-003931 Application 13/324,166 aviation piston engine (Appeal Br. 16; see generally id. at 16-17; Reply Br. 1, 5). As the Federal Circuit has explained, [i]n general, an applicant may overcome a prima facie case of obviousness by establishing 'that the [ claimed] range is critical, generally by showing that the claimed range achieves unexpected results relative to the prior art range.' That same standard applies when, as here, the applicant seeks to optimize certain variables by selecting narrow ranges from broader ranges disclosed in the prior art. Moreover, the applicant's showing of unexpected results must be commensurate in scope with the claimed range. Peterson, 315 F.3d at 1330. On this record, Appellants have not shown that Bazzani' s unleaded fuel composition 7 cannot be used as a drop-in substitute for 1 OOLL leaded fuel in an aviation piston engine. Furthermore, Appellants admit that the "[S]pecification does not include description and claim limitations related to use of the claimed compounds as aviation gasoline," let alone unleaded aviation gasoline (Appeal Br. 28, fn.15). Therefore, Appellants have not provided probative evidence of unexpected results sufficient to rebut the Examiner's prima facie case of obviousness. Appellants proffer, in connection with argument (4), Declarations/Testimony purported to show that the subject matter of claim 7 We have reviewed Appellants' evidence proffered in support of their assertion that the BP Consortium, Bazzani' s alleged assignee, failed in their attempt to improve Bazzani's formula for use as a drop-in substitute for lOOLL leaded fuel (Appeal Br. 26, fn.12; see also id. at 20; Reply Br. 6). However, Appellants' evidence is circumstantial based only on the assignee's identity. In other words, there is no conclusive evidence demonstrating that Bazzani's unleaded fuel composition was actually submitted, but failed, as a drop-in substitute for lOOLL. 8 Appeal 2018-003931 Application 13/324,166 115 satisfied a long felt but unsolved need to provide an unleaded drop-in substitute for IOOLL fuel (Appeal Br. 17-27; Reply Br. 6-7). However, we agree with the Examiner that "Bazanni [is] ... evidence that there is no long-felt need" for an unleaded aviation fuel composition (Ans. 10). As set forth above, Bazzani discloses each component of claim 115 and the claimed amounts of each component are prima facie obvious over Bazzani' s teachings. We note that Bazanni explicitly discloses that the unleaded fuel composition's "component (b) is contained in ... aviation alkylate" (Bazzani 2:20-21; see also US 6,258,134 Bl, issued July 10, 2001 (disclosing in 1:18-19 that "[c]onventional aviation gasoline (Avgas) generally contains an aviation alkylate basefuel")). 8 Therefore, we are not persuaded that the evidence of record is sufficient to show that the subject matter of claim 115 satisfied a long felt but unsolved need sufficient to rebut the prima facie case of obviousness established by the Examiner. Argument (5) asserts that US 8,628,594 provides evidence that a third party is copying the claimed base blend (Appeal Br. 27-28). However, we agree with the Examiner that US 8,628,594, unlike claim 115, "is directed to 8 Appellants argue that Leo Pharmaceutical Products, Ltd. v. Rea, 726 F.3d 1346 (Fed. Cir. 2013) is instructive in showing that the presently claimed invention provides a long felt, but unsolved need sufficient to rebut any established prima facie case of obviousness (Appeal Br. 17-19, 26-27). However, Leo's facts are distinguishable from the facts in the present case- the claims at issue in Leo recited the long felt need that was solved, e.g., "wherein ... pharmaceutical composition is storage stable." Leo Pharmaceutical, 726 F.3d 1349-50. On the other hand, the present claims are silent with respect to the alleged long felt, but unsolved need for unleaded aviation gasoline (see also Appeal Br. 28, fn.15). 9 Appeal 2018-003931 Application 13/324,166 specific standards of the fuel blend (ASTM D910-07), the fuel blend is used in an exact engine, and a detailed fuel blend that is an aircraft fuel for an aircraft engine" (Ans. 10). See Metso Minerals, Inc. v. Powerscreen Int 'l Distribution, Ltd., 526 Fed. App. 988, 998 (Fed. Cir. 2013) (non- precedential) ("Our case law holds that copying requires evidence of efforts to replicate a specific product.") Accordingly, we affirm the rejection of claims 115-121, 123, and 124 for the reasons set forth above and explained in the Examiner's Final Action and the Answer. 37 C.F.R. Â§ 4I.37(c)(l)(iv). II. Claims 126-133 and 135-137 Appellants note that "[i]ndependent claim 126 contains the same limitations as claim 115 and further provides that the gasoline fuel composition comprises about 40 vol.% or more of a base fuel comprising the isoparaffin composition" (Appeal Br. 29). However, as set forth above, Bazzani discloses each component of claim 115 and the claimed amounts of each component are prima facie obvious over Bazzani's teachings (Ans. 2-7). Furthermore, the additional limitation recited in claim 126 does not distinguish it from Bazzani. As the Examiner found, "Bazzani meets the limitation of claim 126, teaching in paragraph 0013 [that] the straight or branched hydrocarbons are present in the amount of 2-50% by volume, which overlaps the claimed range of 40 vol[.]% or more of isoparaffin composition" (id. at 10). See Peterson, 315 F.3d at 1329. Accordingly, we affirm the rejection of claims 126-133 and 135-137 for the reasons set forth above and explained in the Examiner's Final Action and the Answer. 37 C.F.R. Â§ 4I.37(c)(l)(iv). 10 Appeal 2018-003931 Application 13/324,166 III. Claims 138-147 Appellants note that "[i]ndependent claim 138 ... contains the same limitations as independent claim 126 and further provides that the gasoline fuel composition comprises (a) from about 40 to about 60 vol.% of the two or more alkylated benzenes; (b) from about 2 to about 7 vol.% of the one or more aromatic amines; and ( c) from about 3 to about 7 vol.% isopentane" (Appeal Br. 29). However, as set forth above, Bazzani discloses each component of claim 126 and the claimed amounts of each component are prima facie obvious over Bazzani' s teachings. With respect to the additional limitations recited in claim 13 8, Appellants fail to identify reversible error in the Examiner's findings that Bazzani teaches each of these limitations (Ans. 11). Accordingly, we affirm the rejection of claims 138-147 for the reasons set forth above and explained in the Examiner's Final Action and the Answer. 37 C.F.R. Â§ 4I.37(c)(l)(iv). IV. Claims 148-150 Dependent claim 148 is reproduced below from the Claims Appendix to the Appeal Brief (emphasis added): 148. The unleaded gasoline fuel composition of claim 115 wherein the amount of xylene is 19 vol.% or more. (Appeal Br. 38). Appellants argue that the Examiner has failed to show that Bazzani teaches or suggests one of ordinary skill in the art "to use 19 vol.% or more xylene as one of the two or more alkylated benzene's in Bazzani's blends" (id. at 30). 11 Appeal 2018-003931 Application 13/324,166 However, the Examiner finds that Bazzani' s unleaded blend composition may comprise "at least one aromatic hydrocarbon ( e.g. in amount of 1-50%) (includes toluene or o, m, or p xylene or a mixture thereof or a trimethylbenzene (see paragraph 0020))" (Ans. 12). Accordingly, we affirm the rejection of claims 148-150 for the reasons set forth above and explained in the Examiner's Final Action and the Answer. 37 C.F.R. Â§ 4I.37(c)(l)(iv). V. Claims 151-153 Dependent claim 151 is reproduced below from the Claims Appendix to the Appeal Brief (emphasis added): 151. The unleaded gasoline fuel composition of claim 115 wherein the amount of xylene is 21 vol.% or more. (Appeal Br. 38). Appellants argue that the Examiner has failed to show that Bazzani teaches or suggests one of ordinary skill in the art "to use 21 vol.% or more xylene as one of the two or more alkylated benzene's in Bazzani's blends" (id. at 30). However, for the reasons set forth above discussing claim 148, Appellants fail to identify reversible error in the Examiner's findings that Bazzani teaches the limitations recited in claim 151 (Ans. 12). Accordingly, we affirm the rejection of claims 151-15 3 for the reasons set forth above and explained in the Examiner's Final Action and the Answer. 37 C.F.R. Â§ 4I.37(c)(l)(iv). 12 Appeal 2018-003931 Application 13/324,166 VI. Claims 154--159 Dependent claim 154 is reproduced below from the Claims Appendix to the Appeal Brief (emphasis added): 154. The unleaded gasoline fuel composition of claim 115 where[]in the isoparaffin composition comprises primarily 2,2,4-trimethyl pentane. (Appeal Br. 38). Appellants argue that "[t]he claims in this group further distinguish any blend in which 2,2,3-trimethylpentane is substituted for triptane in ... Bazzani's fuel compositions" (id. at 30). Appellants' argument is not persuasive because we agree with the Examiner that: (i) each of the independent claims recite the open-ended claim term "comprising," which allows for the addition of other compounds to Bazzani's composition; and (ii) Appellants have failed to exclude triptane from the presently claimed fuel blend (Ans. 12-13). As the Examiner finds, "Bazzani has met the [2,2,4-trimethylpentane (iso-octane )] limitation of claims 154--159" (id. at 13; see Bazzani ,r 10). Accordingly, we affirm the rejection of claims 154--159 for the reasons set forth above and explained in the Examiner's Final Action and the Answer. 37 C.F.R. Â§ 4I.37(c)(l)(iv). CONCLUSION We AFFIRM the rejection of claims 115-121, 123-133, and 135-159 under 35 U.S.C. Â§ 103(a) as unpatentable over Bazzani. 13 Appeal 2018-003931 Application 13/324,166 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 14