Ex Parte SÁNCHEZ Valente et al

Patent Trial and Appeal Board

Aug 17, 2017

12883357 (P.T.A.B. Aug. 17, 2017)

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.
12/883,357 09/16/2010 Jaime SANCHEZ VALENTE 57521 4687
35161 7590 08/17/2017
DTrKTNSON WRIGHT PT T C EXAMINER
1825 Eye St., NW STEIN, MICHELLE
Suite 900
WASHINGTON, DC 20006 ART UNIT PAPER NUMBER
1771
MAIL DATE DELIVERY MODE
08/17/2017 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JAIME SANCHEZ VALENTE,
ROBERTO QUINTANA SOLORZANO,
LAZARO MOISES GARCIA MORENO,
RODOLFO JUVENTINO MORA VALLEJO, and
FRANCISCO JAVIER HERNANDEZ BELTRAN
Appeal 2016-007363
Application 12/883,3571
Technology Center 1700
Before JAMES C. HOUSEL, CHRISTOPHER L. OGDEN, and
DEBRA L. DENNETT, Administrative Patent Judges.
DENNETT, Administrative Patent Judge.
DECISION ON APPEAL2
1 Appellants identify Instituto Mexicano Del Petroleo as the real party in
interest. Appeal Br. 1.
2 In our Opinion, we refer to the following: the Declaration of Jaime
Sanchez Valente dated October 1, 2013 (“Sanchez Valente Decl.”); the Final
Action issued May 11, 2015 (“Final Act.”); the Advisory Action issued
October 2, 2015 (“Advis. Act.”); the Appeal Brief filed January 7, 2016
(“Appeal Br.”); the Examiner’s Answer issued June 6, 2016 (“Ans.”); and
the Reply Brief filed July 27, 2016 (“Reply Br.”).
Appeal 2016-007363
Application 12/883,357
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from a rejection of claims
1—3 and 13—24. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
The claims are directed to multimetallic anionic clays and processes
using multimetallic anionic clays to remove sulfur oxides from emission in a
fluid cracking process. Claims 1,13, and 23, reproduced below, are
illustrative of the claimed subject matter:
1. A composition useful to remove sulfur oxides contained
in combustion gases from a process for catalytic cracking of
hydrocarbons, which is composed of multimetallic anionic
clays (MACs) having the formula:
[MgxAlyFez(OH)2] (An‘ (y+z)/n ) [Ce02]P • mH20
wherein Mg, A1 and Fe are metals that constitute layers of
the multimetallic anionic clay while Ce, as an oxidant promoter,
is highly dispersed throughout the solid form of said MAC in the
form of cerium oxide; An' denotes an anion located between the
layers composed of the metal cations; n represents the
interlaminar anion’s negative electronic charge that may be from
-1 to -8; m is the molecules of water present as hydration water
or as water present in the interlaminar region and can be from 0
to 2; where x = 0.667 to 0.833, y = 0.001 to 0.275, z = 0.055 to
0.256, p= 0.029 to 0.110.
13. A process for cracking hydrocarbons in a fluid cracking
process and removing sulfur oxides from emissions from the
fluid cracking process, the process comprising feeding and
fluidizing a catalytic cracking catalyst and a multimetallic
anionic clay in a hydrocarbon feed containing 0.1 to 5.0 wt%
sulfur in an amount effective to reduce, in situ, SOx emissions
generated in a regenerator of a fluid catalytic cracking unit, said
multimetallic anionic clays (MACs) having the formula:
[Mgx Aly Fez(OH)2] (An‘ (y+z)/n ) [Ce02]p • mH20
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Application 12/883,357
wherein Mg, A1 and Fe are metals that constitute layers
of the multimetallic anionic clay while Ce, as an oxidant
promoter, is highly dispersed throughout the solid form of said
MAC in the form of cerium oxide; An' denotes an anion located
between the layers composed of the metal cations; n represents
the interlaminar anion’s negative electronic charge that may be
from -1 to -8; m is the molecules of water present as hydration
water or as water present in the interlaminar region and can be
from 0 to 2; where x = 0.667 to 0.833, y = 0.001 to 0.275, z =
0.055 to 0.256, p= 0.029 to 0.110.
23. The composition of claim 1, wherein said multimetallic
anionic clay is obtained by a method comprising the steps of:
(a) producing a solution of a trivalent metal precursor
containing Fe3+ having a water to solid mass of 0.1-100, said
metal precursors being present in an amount to produce the
multimetallic anionic clay and promote reaction between
soluble and insoluble precursors;
(b) forming a solution of water soluble Ce salt and
adding said solution to the solution of step (a);
(c) adding a water insoluble metal precursor of a divalent
salt, trivalent salt, or mixture thereof, to the solution of step (b),
and homogenizing to obtain a gel containing Fe3+, Al3+ and
Ce2+;
(d) dispersing a Mg precursor in acidified water and
mixing to produce a suspension containing a laminar structure;
(e) blending the gel of step (c) with the dispersion of the
Mg precursor of step (d) at a pH of 6—12, and a temperature of
80—200 °C to obtain the multimetallic anionic clay with a
laminar structure of Mg, Fe and A1 with CeO dispersed
throughout the laminar structure;
(f) spray drying the resulting mixture of step (e) to obtain
microspheroidal particles of the multimetallic anionic clay; and
(g) calcining the resulting microspheroidal particles of
step (f) at 300 to 1000 °C in the presence of air, oxygen,
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Application 12/883,357
nitrogen, or mixtures thereof to obtain said multimetallic
anionic clay.
REFERENCES
The Examiner relies on the following prior art in rejecting the claims
on appeal:
Bryson et al.
(“Bryson”)
US 3,781,197 Dec. 25, 1973
Stamires et al.
(“Stamires”)
US 6,589,902 B1 July 8, 2003
Kuehler et al.
(“Kuehler”)
US 2007/0275847 Al Nov. 29, 2007
Sanchez-Valente
et al. (“Sanchez
Valente”)
US 2008/0274034 Al Nov. 6, 2008
REJECTIONS3
The Examiner maintains and Appellants seek review of the following
rejections:
(1) claims 1—3, 23, and 24 under 35 US.C. § 103(a) over Sanchez
Valente4 in view of Stamires; and
(2) claims 13—22 over Sanchez Valente in view of Stamires and
further in view of Bryson and Kuehler. Final Act. 2, 3, and 6.
3 The Examiner rejected claims 1—3, 23, and 24 under 35 U.S.C. § 112(a) or
35 U.S.C. § 112, (pre-AIA) first paragraph, as lacking written description.
Final Act. 2. Appellants amended the claims in an Amendment After Final
on September 22, 2015. Based on the amendments, the Examiner withdrew
the rejection under 35 U.S.C. § 112(a)or35U.S.C. § 112 (pre-AIA), first
paragraph in the Advisory Action issued October 2, 2015.
4 The Examiner and Appellants refer to inventor and declarant Sanchez
Valente in different ways, but we employ the name used by the declarant,
“Sanchez Valente,” for consistency throughout this opinion.
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OPINION
Appellants repeatedly argue in the Appeal Brief and Reply Brief that
certain features are not the inherent result of combining the references. See
generally Appeal Br.; Reply Br.
Our reviewing court has recognized that inherency may supply a
missing claim limitation in an obviousness analysis, but explained that “the
use of inherency, a doctrine originally rooted in anticipation, must be
carefully circumscribed in the context of obviousness.” PAR Pharm., Inc. v.
TIV! Pharms., Inc., 773 F.3d 1186, 1194-95 (Fed. Cir. 2014). “If, however,
the disclosure is sufficient to show that the natural result flowing from the
operation as taught would result in the performance of the questioned
function, it seems to be well settled that the disclosure should be regarded as
sufficient.” Id. at 1195 (quoting In re Oelrich, 666 F.2d 578, 581 (CCPA
1981)).
The Examiner must, therefore, meet a high standard in order to rely on
inherency to establish the existence of a claim limitation in the prior art in an
obviousness analysis. For the reasons discussed below, the Examiner
satisfies the standard in this appeal.
Rejection of claims 1—3, 23, and 24 under 35 U.S.C. § 103(a)
The Examiner finds that claims 1—3, 23, and 24 are obvious over
Sanchez Valente in view of Stamires. Final Act. 3.
Appellants argue for patentability of claim 1, and separately for
patentability of dependent claims 2, 3, 23, and 24. Appeal Br. 4, 16, and 17.
We address claim 1 first.
Appellants argue that the combination of Sanchez Valente and
Stamires does not disclose the claimed combination of Mg, Al, Fe, and Ce.
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Appeal Br. 6. Appellants contend that Sanchez Valente discloses a broad
list of possible metal precursors and provides no guidance or direction to one
skill in the art to obtain the claimed MAC from the “vast number of possible
combinations of metals.” Id.', see also Reply Br. 1—2.
However, the Examiner finds that Sanchez Valente discloses a
formula comprising Mg, OH, Al, and Fe in the amounts in claim 1. Final
Act. 3^4 (citing Sanchez Valente [page] 9, Tables 1 and 2, Examples 6 and
7,89-94). The Examiner also finds that Sanchez Valente teaches that
cerium oxides and nitrates may be added to the composition. Id. at 4.
Sanchez Valente also discloses obtaining MACs with a uniform distribution
of the metal cations in the layers, and interlaminar anions. See Advis. Act. 2
(citing Sanchez Valente H 37, 57).
The Examiner further finds that Stamires teaches MACs containing
Mg, Al, and Fe, as well as the use of additives such as cerium in the form of
nitrates or oxides in the MACs in order to improve the suitability for SOx
removal in fluid catalytic cracking (“FCC”) processes. Final Act. 5. The
Examiner determines that the addition of cerium nitrate, as taught by
Stamires, to Sanchez Valente’s teaching would result in a compound having
CeCE dispersed throughout the solid form of the MAC. Id. at 4 (citing
Example 1 of the Specification at 25—26 as evidence).
The Examiner determines that one having ordinary skill in the art at
the time of the invention would have found it obvious to have modified the
MAC of Sanchez Valente by adding cerium for the benefit of improving
suitability for removal of SOx in FCC processes. Id. at 4—5.
Appellants’ argument that the combined references do not disclose the
claimed combination of Mg, Al, Fe, and C-e is not persuasive. See Appeal
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Br. 6. The cited prior art discloses the formula [MgxAlyFez(OH)2] (An'(y+z)/n)
mH2Q with components in the amounts claimed, the MAC is layered, the
anion is dispersed between the layers, and the addition of cerium nitrates or
oxides. Final Act. 3, 4; Advis. Act. 2; see also Sanchez Valente 5. All that
is necessary for claim 1 is disclosed, save the amount of cerium oxide
dispersed throughout the solid form of the MAC.
Where, as here, “the general conditions of a claim are disclosed in the
prior art, it is not inventive to discover the optimum or workable ranges by
routine experimentation.” In reAller, 220 F.2d 454, 456 (CCPA 1955); see
also In re Ethicon, Inc., 844 F.3d 1344, 1351 (Fed. Cir. 2017) (“The normal
desire of artisans to improve upon what is already generally known can
provide the motivation to optimize variables such as the percentage of a
known polymer for use in a known device.”); In re Peterson, 315 F.3d 1325,
1330 (Fed. Cir. 2003); KSR Inti Co. v. Teleflex Inc., 550 U.S. 398, 421
(2007) (“A person of ordinary skill is also a person of ordinary' creativity,
not an automaton.”). Given the disclosures of Sanchez Valente and
Stamires, Appellants do not persuade us that the skilled artisan would not be
able to discover the workable range of cerium needed to prepare the claimed
composition.
Appellants next argue that Sanchez Valente does not inherently
produce a layered structure with cerium oxide dispersed throughout the
layered structure. Appeal Br. 6. Appellants contend that “[different
processes do not inherently produce the same product even where the metal
precursors are the same or similar,” and that a product produced by “[t]he
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claimed process steps”5 will differ from the product obtained by the method
of the cited patents. Id. at 7; see also Reply Br. 2—3. Appellants explain that
[t]he layered structure of the claimed composition is formed by
dispersing a Mg precursor in acidified water to form a layered
brucite Mg(OH)2 structure. Thus, the layered structure is first
formed from the Mg precursor as a slurry or suspension. The
Ce and Fe are dissolved in water and combined with boehmite
[aluminum oxide hydroxide] to form a gel. The gel is not a
layered structure. The combination of the gel with the
suspension of the brucite Mg(OH)2 undergoes isomorphic
substitution so that the A1 and Fe constitute part of the layered
structure. The cerium in the form of cerium oxide is not able to
undergo the isomorphic substitution, and thus, deposits the
crystals of the cerium oxide throughout the preformed layered
structure during the formation of the multimetallic anionic clay.
Appeal Br. 7—8. Appellants offer the Declaration of inventor Sanchez
Valente as evidence that MACs prepared by a method that differs from that
disclosed in the invention have structures and compositions that differ from
the claimed composition. Id. at 8.
The Declaration details experiments comparing the MAC prepared by
the method disclosed in the Specification with MACs allegedly prepared by
the method disclosed in the combination of Sanchez Valente and Stamires.
Appeal Br. 10; Sanchez Valente Decl. 3^4. Examples 1 and 2 purportedly
correspond to the processes of Sanchez Valente and Stamires, while
Example 3 corresponds to the method of the invention. Sanchez Valente
Decl. 4. In Examples 1 and 2, MgO is dissolved in acidified water,
boehmite is then added to the MgO slurry, then a solution in water of
5 Claim 1 is to a composition and lacks process steps. Therefore, we view
this argument as applying to the method of preparation of the composition
that is disclosed in the Specification.
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Fe(N03)3*9H20 and cerium nitrate is combined with the MgO / boehmite
slurry, which is mixed and spray-dried. Id. at 4—6. In contrast, in Example
3, MgO is dissolved in acidified water, but boehmite is not added. Id. at 6.
Instead, a solution in water of Fe(N03)3*9Fl20 and cerium nitrate is
prepared, and boehmite is added to the Fe(N03)3 and cerium nitrate solution
to form a gel, which is subsequently added to the MgO only slurry, which is
mixed and spray-dried. Id.
The primary difference in the methods followed for the Examples is
whether boehmite is added to MgO to create a slurry or is added to Fe(N03)3
and cerium nitrate first, and then added to MgO. Sanchez Valente, the
primary prior art reference, teaches adding boehmite to a solution of, e.g.,
A1(N03)3‘9H20, A1(N03)3‘9H20 and Ni(N03)2*6H20, A1(N03)3‘9H20 and
Cu(N03)2*2!4 H20, or A1(N03)3*9H20 and Zn(N03)2*6H20, in five of seven
examples, and teaches adding boehmite to MgO in two of seven examples.
Sanchez Valente 142—148. Thus, the closest prior art to the claimed
invention teaches two methods, but only one such method was tested and
discussed in the Declaration. See id.', see Sanchez Valente Decl. generally.
As the Examiner finds, “the Examples provided [in the declaration] do not
appear to be representative of the prior art of record.” Final Act. 9.
Appellants’ argument that different methods produce products that
differ from the claimed composition is unpersuasive in this instance, as
Appellants have not provided evidence of the results of both methods
disclosed in Sanchez Valente. See Sanchez Valente Decl. generally. The
method used in five of seven examples in Sanchez Valente is ignored by
Appellants, although it is very similar—except for addition of cerium
nitrate—to the method in the Specification. The Declaration evidence is of
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little probative value here because it compares results from a prior art
method that differs significantly from the method used by Appellants,
especially when the prior art also teaches the same or similar method using
the same or similar materials. The same methods are expected to produce
the same compositions.
Appellants further argue that Stamires does not inherently contain
cerium oxide dispersed uniformly throughout the layers. Appeal Br. 12;
Reply Br. 1—2. The Examiner rejected claim 1 on a combination of
references, applying Sanchez Valente, not Stamires, to teach dispersion of
metals uniformly throughout the layers. Ans. 10. One cannot show
nonobviousness by attacking references individually when the rejection is
based on a combination of references. In re Merck & Co., 800 F.2d 1091,
1097 (Fed. Cir. 1986). Appellants’ argument is unpersuasive of reversible
error by the Examiner.
Appellants argue separately for the patentability of claims 2 and 3.
Appeal Br. 16. Claim 2 depends from claim 1, and further requires spray
drying of the composition to form micro spheroidal bodies which exhibit
suitable physical and mechanical properties to fluidize in a circulating
fluidized bed. Id. at 22 (Claims App’x). Claim 3 depends from claim 2, and
further requires that the micro spherical particles are calcined to form
micro spherical particles having an average diameter between 40 and 120
microns, an apparent bulk density in a range of 0.5 to 0.9 and an attrition
index from 1 to 4. Id.
The Examiner finds that Sanchez Valente and Stamires both teach
spray drying the compound to obtain microspheres. Ans. 11. The Examiner
also finds that Stamires teaches that the compounds have improved function
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in fluid catalytic cracking (FCC) processes and high mechanical strength and
attrition resistance, and Sanchez Valente teaches an attrition index of 1.2
(within the claimed range). Id. Although the Examiner acknowledges that
the combined references do not explicitly disclose the claimed average
particle diameter or apparent bulk density, the references teach the
composition of claim 1, thus the composition will have the same or similar
average particle diameter and apparent bulk density as claimed. Id.
Appellants do not show reversible error by the Examiner in rejecting
claims 2 and 3.
Appellants argue separately for the patentability of claims 23 and 24.
Appeal Br. 17. These claims are product-by-process claims. Appellants
argue that Sanchez Valente and Stamires do not disclose the steps in claims
23 and 24. Id.
It is settled that “even though product-by-process claims are limited
by and defined by the process, determination of patentability is based on the
product itself.” In re Thorpe, 111 F.2d 695, 697 (Fed. Cir. 1985). “If the
product in a product-by-process claim is the same as or obvious from a
product of the prior art, the claim is unpatentable even though the prior
product was made by a different process.” Id.
As the Examiner finds with regard to claim 1, the combined
references teach the same method used in the Specification and therefore,
the same product would reasonably be expected. Appellants do not show
that the Examiner reversibly erred in rejecting claims 23 and 24.
Rejection of claims 13—22 under 35 U.S.C. § 103(a)
The Examiner finds that claims 13—22 are obvious over Sanchez
Valente in view of Stamires and further in view of Bryson and Kuehler.
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Final Act. 6—8. These claims are drawn to a process for cracking
hydrocarbons in a fluid cracking process and removing sulfur oxides from
emissions from the fluid cracking process, the process comprising feeding
and fluidizing a catalytic cracking catalyst and a multimetallic anionic clay
in a hydrocarbon feed containing 0.1 to 5.0 wt% sulfur in an amount
effective to reduce, in situ, SOx emissions generated in a regenerator of a
fluid catalytic cracking unit, said multimetallic anionic clays (MACs) having
the formula as described in claim 1. Appeal Br. 22—23 (Claims App’x).
Appellants make the same argument for nonobviousness of the MAC
of claims 13—22 over Sanchez Valente and Stamires as made for claim 1,
and for the reasons provided above, that argument is unpersuasive. See id. at
18-19.
Appellants also argue that Sanchez Valente and Stamires do not teach
the process of cracking hydrocarbons and removing sulfur from exhaust
gases using MACs. Id. at 18.
The Examiner finds that Sanchez Valente in view of Stamires does
not explicitly disclose feeding a catalytic cracking catalyst, but that Kuehler
teaches a similar MAC used in a catalyst composition for reducing emissions
from an FCC regenerator wherein the MAC and catalyst particles are
present. Final Act. 7; Ans. 13. The Examiner also finds that Sanchez
Valente teaches that the MACs it discloses are suitable as catalysts for
controlling SOx and NOx, therefore Sanchez Valente’s composition would
be suitable as the MAC to reduce SOx and NOx as required by Kuehler.
Ans. 13.
Appellants argue that the composition of Sanchez Valente alone or in
combination with Stamires would not inherently result in the same amount
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of SOx removal as in claims 14—17. Appeal Br. 20. The Examiner finds that
the combination teaches the same MAC having the same properties as the
invention. Ans. 13. The Examiner further finds the Sanchez Valente
teaches SOx removal and Stamires discloses SOx reduction. Id. at 13—14.
Appellants’ argument is tied to the contention that the combination of
Sanchez Valente and Stamires produces a composition that differs from the
claimed composition. See Appeal Br. 20. For the reasons provided above,
the underlying contention is incorrect, and this argument is unpersuasive.
Appellants also argue that Kuehler does not disclose a process
meeting the additional limitations of claims 18—22. Id. As above, this
argument relies on Appellants’ contention that the composition taught by
Sanchez Valente and Stamires differs from that claimed. See id.
The Examiner finds that Kuehler teaches the MAC is present in an
amount of 1% and the catalyst particles are present in 99%. Final Act. 8.
The Examiner finds that the conversion, dry gas yield, LPG yield, gasoline
yield and coke yields would be the same as claimed, since Sanchez Valente
in view of Stamires teaches the same MAC used in the same process steps,
as discussed above. Id.
For the foregoing reasons, Appellants have not demonstrated
reversible error by the Examiner in rejecting claims 13—22.
DECISION
For the above reasons, the Examiner’s rejection of claims 1—3 and 13—
24 is affirmed.
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No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv) (2013).
AFFIRMED
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