Ex Parte MatuszDownload PDFPatent Trial and Appeal BoardMar 22, 201612116905 (P.T.A.B. Mar. 22, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 12/116,905 05/07/2008 Marek Matusz 23632 7590 03/24/2016 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. TH3262 (US) 7988 EXAMINER KOSACK, JOSEPH R ART UNIT PAPER NUMBER 1626 NOTIFICATION DATE DELIVERY MODE 03/24/2016 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 MAREK MATUSZ Appeal2013-010123 Application 12/116,905 Technology Center 1600 Before DONALD E. ADAMS, ERIC B. GRIMES, and JEFFREY N. FREDMAN, Administrative Patent Judges. FREDMAN, Administrative Patent Judge. DECISION ON APPEAL This is an appeal 1 under 35 U.S.C. § 134 involving claims to a catalyst for the epoxidation of an olefin. The Examiner rejected the claims as obvious. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. 1 Appellant identifies the Real Party in Interest as Shell Oil Company (see Br. 2). Appeal2013-010123 Application 12/116,905 Statement of the Case Background "In olefin epoxidation, a feed containing an olefin and oxygen is contacted with a catalyst under epoxidation conditions" (Spec. 1 ). "Olefin epoxidation catalysts typically comprise a silver component, usually with one or more additional elements deposited therewith, on a carrier" (Spec. 1 ). The Claims Claims 1-5 and 7-16 are on appeal. Independent claim 1 is representative and reads as follows: 1. A catalyst for the epoxidation of an olefin comprising a carrier and, deposited on the carrier, silver, a rhenium promoter, a first co-promoter, and a second co-promoter; wherein the quantity of the rhenium promoter deposited on the carrier is greater than 1 mmole/kg, relative to the weight of the catalyst; the first co-promoter is selected from the group consisting of sulfur, phosphorus, boron, and mixtures thereof; the second co-promoter is selected from the group consisting of tungsten, molybdenum, chromium, and mixtures thereof; and the total quantity of the first co-promoter and the second co-promoter deposited on the carrier is at most 3.8 mmole/kg, relative to the weight of the catalyst. The Issue The Examiner rejected claims 1-5 and 7-16 under 35 U.S.C. § 103(a) as obvious over Lauritzen2 (Ans. 5). The Examiner finds that: Lauritzen teaches a catalyst in which the silver content is 14 7 g/kg, rhenium is present in the quantity of 1 mmol/kg, sulfur is a first promoter in the quantity of 1 mmol/kg, tungsten is the 2 Lauritzen, US 4,766,105, issued Aug. 23, 1988. 2 Appeal2013-010123 Application 12/116,905 second promoter in the quantity of 1 mmol/kg, and potassium is present in an amount of 2 mmol/kg, with cesium also present in the catalyst. (Ans. 5). The Examiner finds that "Lauritzen teaches in additional examples that the quantity of rhenium can be increased to 2 mmol/kg." (Ans. 5). The Examiner finds that because "the general conditions for the catalyst are known in the art by virtue of the teachings above, the person of ordinary skill would be motivated to optimize the concentrations of the promoters in the catalyst in a routine matter to arrive at the instantly claimed invention" (Ans. 5). The issues with respect to this rejection are: (i) Does the evidence of record support the Examiner's conclusion that Lauritzen renders obvious an olefin catalyst "wherein the quantity of the rhenium promoter deposited on the carrier is greater than 1 mmole/kg" as required by claim 1 ? (ii) If so, has Appellant provided evidence of secondary considerations, that when weighed with the evidence of obviousness, is sufficient to support a conclusion of non-obviousness? Findings of Fact 1. Lauritzen teaches a catalyst for the production of ethylene oxide from ethylene and molecular oxygen in the vapor phase which catalyst comprises a catalytically effective amount of silver, a promoting amount of alkali metal, a promoting amount of rhenium and a promoting amount of a rhenium co-promoter selected from sulfur, molybdenum, tungsten, chromium and mixtures thereof supported on a porous, refractory support. (Lauritzen, col. 1, 1. 66 to col. 2, 1. 6) 3 Appeal2013-010123 Application 12/116,905 2. Lauritzen teaches that in "a preferred embodiment ... the rhenium is present in an amount ranging from about 0.2 to about 5 millimoles of rhenium per kilogram of total catalyst" (Lauritzen, col. 2, 11. 6-12). 3. Figure 1 of Lauritzen is reproduced below: FIG.I ~ IO() )IX) 300 400 500 60!l Cs fppmw.I ~· · Figure 1 of Lauritzen depicts the beneficial effects of rhenium plus sulfur which are indicated by the highlighted area between the two curves A and C to the right of their crossover point. It can be seen from the Figure that the use of rhenium plus sulfur provides not only an increase in the absolute value of the initial selectivity obtained at optimum cesium concentration, but also a significantly improved initial selectivity of the catalyst at high cesium concentrations e.g., 300 ppm cesium and over when compared to catalysts containing no rhenium. (Lauritzen, col. 21, 11. 19--28). 4 Appeal2013-010123 Application 12/116,905 4. Table 7 of Lauritzen is reproduced, in part, below: TABLE7 EFFECT OF VARIOUS RHENIUM CO-PROMOTERS ON CATALYST PERFORMANCE Co-Pwmctet Re T11tget(ltl Re Element, Alkali metal(~) Ltvcl, Co·promote1» Target ·Level, E:1.periment No. %wAg ppmw ppmw (/o' 9\n 26~ .. D') TH 6.4 1~ ·) .1.t..· J.6 %.7 2.{~l E'''l rn UJ j7) ,.,. l~ ..:..,:.: 89.5 ~··1 .:.t: . P*) fi 5.ii r"' .' . .:'.. 2 -~ 8(),2 268 G 8*) Ai; -t. ,: )75 2 gt)_(:~ ,,. ~~: Table II depicts catalysts according to the invention and comparative examples. 5 Appeal2013-010123 Application 12/116,905 Principles of Law "The combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results." KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007). "A prima facie case of obviousness typically exists when the ranges of a claimed composition overlap the ranges disclosed in the prior art." In re Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003) Analysis We adopt the Examiner's findings of fact and reasoning regarding the scope and content of the prior art (Ans. 5; FF 1--4) and agree that the claims are rendered obvious by Lauritzen. We address Appellant's arguments below. Appellant contends that it would not have been obvious to one of ordinary skill in the art to increase the rhenium concentration of experiment 7-26 to arrive at the present invention in vie\~1 of these other experiments. First, in experiment 7-3, no sulfur or tungsten was present and the selectivity dropped to 81.9. This is significantly less than the selectivity in experiment 7-26 which was 83.8. (Br. 3). We are not persuaded. Lauritzen teaches an overlapping rhenium range of 0.2 to 5 mmole/kg (FF 2) and exemplifies the use of 2 µmole/g (i.e. mmole/kg) in figure 1 (FF 3) and in examples 7-3 and 7-31 (FF 4). While the selectivity results differed between examples 7-3, 7-26, and 7-31, so did the components of the reaction, so the data does not teach away from the use of more than 1 mmole/kg of rhenium in the catalyst (FF 4). Figure 1 further demonstrates that the use of 2 mmole/kg of rhenium increases catalyst 6 Appeal2013-010123 Application 12/116,905 selectivity when cesium levels exceed 300 ppmw, and that the addition of sulfate further increases selectivity (FF 3). Appellant contends that "when experiment 7 -31 is compared to experiment 7-32 which contained only 1 mmol/kg of rhenium and 1 mmol/kg of sulfur, the selectivity was 83.8, the same as in experiment 7-26. Accordingly, comparing 7-31 to 7-32 would suggest to one of ordinary skill in the art that increasing the amount of rhenium would result in a decrease in selectivity" (Br. 3). We are not persuaded. Experiment 7-32 differs from experiment 7-31 in the alkali metal used, because it uses lithium in the place of potassium, and also differs in the amount of silver present in the catalyst. Thus, any minor differences in the selectivity may be due these components rather than to the rhenium levels (FF 4 ). In addition, as the Examiner notes, "the lithium in experiment 7-32 is added as LiB02, leading to a different catalyst component that is not present in any of the other experiments" (Ans. 7). Appellant contends unexpectedly discovering that when the rhenium concentration is greater than 1 mmol/kg in combination with a first co-promoter selected from the group consisting of sulfur, phosphorus, boron, and mixtures thereof and a second co-promoter selected from the group consisting of tungsten, molybdenum, chromium, and mixtures thereof, a higher selectivity can be achieved. See Table 2 of the present application in which catalysts A-E which are in accordance to the invention are compared to catalysts F through M which are comparative examples. (Br. 2). We find this unexpected results argument unpersuasive. None of the examples according to the invention differ from the comparative examples 7 Appeal2013-010123 Application 12/116,905 solely in the amount of rhenium. Even one of the closer comparisons, Example C in Table II of the Specification differs from comparative Example G in rhenium amount and in cesium amount, while retaining similar selectivity values (FF 5). In addition, none of the examples are compared to the closest prior art of Example 7-26 of Lauritzen. See In re Baxter Travenol Labs., 952 F.2d 388, 392 (Fed. Cir. 1991) ("when unexpected results are used as evidence of nonobviousness, the results must be shown to be unexpected compared with the closest prior art."). Lastly, claim 1 is drawn to any quantity of rhenium "greater than 1 mmole/kg" but the examples in Table II provide data for a single value of rhenium 2 mmol/kg, and do not provide data for values greater than 2 mmol/kg. Therefore, the results are not commensurate in scope with the breadth of the claims. See In re Harris, 409 F.3d 1339, 1344 (Fed. Cir. 2005) (Unexpected results must also be "commensurate in scope with the degree of protection sought by the claimed subject matter.") Conclusion of Law (i) The evidence of record supports the Examiner's conclusion that Lauritzen renders obvious an olefin catalyst "wherein the quantity of the rhenium promoter deposited on the carrier is greater than 1 mmole/kg" as required by claim 1. (ii) Appellant has not provided evidence of secondary considerations, that when weighed with the evidence of obviousness, is sufficient to support a conclusion of non-obviousness. 8 Appeal2013-010123 Application 12/116,905 SUMMARY In summary, we affirm the rejection of claim 1 under 35 U.S.C. § 103(a) as obvious over Lauritzen. Claims 2-5 and 7-16 fall with claim 1. 37 C.F.R. § 41.37(c)(l)(iv). No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). AFFIRMED 9 Copy with citationCopy as parenthetical citation