Ex Parte Van Westrenen et al

Patent Trial and Appeal BoardJul 31, 2015

12743280 (P.T.A.B. Jul. 31, 2015)

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. 12/743,280 06/29/2010 Jeroen Van Westrenen TS 1997 USA P 2269 23632 7590 07/31/2015 SHELL OIL COMPANY P O BOX 2463 HOUSTON, TX 77252-2463 EXAMINER NGUYEN, TAM M ART UNIT PAPER NUMBER 1772 MAIL DATE DELIVERY MODE 07/31/2015 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 JEROEN VAN WESTRENEN,1 Leslie Andrew Chewter, and Ferry Winter ________________ Appeal 2013-007600 Application 12/743,280 Technology Center 1700 ________________ Before ROMULO H. DELMENDO, JEFFREY T. SMITH, and MARK NAGUMO, Administrative Patent Judges. NAGUMO, Administrative Patent Judge. DECISION ON APPEAL Jeroen Van Westrenen, Leslie Andrew Chewter, and Ferry Winter (“Shell”) timely appeal under 35 U.S.C. § 134(a) from the final rejection2 of claims 1–12, which are all of the pending claims. We have jurisdiction. 35 U.S.C. § 6. We affirm. 1 The real party in interest is listed as Shell Oil Company (“Shell”). (Appeal Brief, filed 3 December 2012 (“Br.”), 2.) 2 Office action mailed 3 July 2012 (“Final Rejection”; cited as “FR”). Appeal 2013-007600 Application 12/743,280 2 OPINION A. Introduction3 The subject matter on appeal relates to processes for converting oxygenates (e.g., methanol, dimethyl ether) to olefins, with a molar ratio of ethylene (C2H4) to propylene (C3H6) of at least 0.5 (1:2). Selectivity for ethylene production is said to be desired. (Spec. 2, ll. 12–17.) The claimed process is said to yield benefits of more economical implementations, including temperature control, catalyst deactivation, and solids handling. (Id. at 3, ll. 3–9.) Claim 1 is representative of the dispositive issues and reads: A process for converting an oxygenate to an olefin-containing product, wherein oxygenate is contacted with an oxygenate conversion catalyst to convert the oxygenate to an olefin-containing product, which contains ethylene and propylene with a molar ethylene/propylene ratio of at least 0.5, in a reactor system comprising two or more serially arranged riser reactor stages to obtain a riser reactor effluent from each stage, wherein each riser reactor stage comprises a single riser reactor or a plurality of parallel riser reactors, 3 Application 12/743,280, Process for converting an oxygenate into an olefin-containing product, and reactor system, filed 29 June 2010 as the national stage of PCT/EP08/65872, filed 19 November 2008, claiming the benefit of six applications filed in the EPO on 19 November 2007. We refer to the “ʼ280 Specification,” which we cite as “Spec.” Appeal 2013-007600 Application 12/743,280 3 such that at least part of the riser reactor effluent of a preceding riser reactor stage is fed into a subsequent riser reactor stage, and wherein oxygenate is added to a plurality of the riser reactor stages. (Claims App., Br. 5; indentation, paragraphing, and emphasis added.) The Examiner maintains the following ground of rejection:4 Claims 1–12 stand rejected under 35 U.S.C. § 103(a) in view of the combined teachings of Xu5 and Van Dijk.6 B. Discussion Findings of fact throughout this Opinion are supported by a preponderance of the evidence of record. Initially, we find that Shell has raised substantive arguments only for the patentability of claim 1. (Br. 3.)7 All claims therefore stand or fall with claim 1. The only criticism raised by Shell is that “there is no teaching or suggestion in the Xu reference of producing an olefin product containing ethylene and propylene with a molar ethylene/propylene ratio of at least 0.5.” (Id. at ll. 13–15.) Shell adds that “[t]he Examiner has provided no detailed argument as to how Xu teaches or suggests an ethylene/propylene ration [sic] of at least 0.5.” (Id. at ll. 17–18.) 4 Examiner’s Answer mailed 26 April 2013 (“Ans.”). 5 Teng Xu and Stephen Neil Vaughn, Increasing ethylene and/or propylene production in an oxygenate to olefins reaction systems, U.S. Patent Application Publication 2006/0135834 A1 (2006). 6 Christiaan P. Van Dijk, Conversion of methanol to gasoline, WO 96/15082 (1996). 7 Shell did not file a Reply Brief. Appeal 2013-007600 Application 12/743,280 4 Shell does not dispute the Examiner’s finding that Xu teaches that the olefin product can selectively be ethylene or propylene. (FR 4, ll. 5–6, citing Xu, abstract, [0017], and [0030].) Nor does Shell dispute the Examiner’s finding (Ans. 3, ll. 18–19, citing Xu 10 [0106], which is illustrated by Xu, Fig. 2 (not reproduced here)) that in Example 3, Xu describes a multi-stage conversion of methanol (MeOH) to olefin product, which is described as “rich in ethylene and/or propylene” (Xu [0106], last sentence). Nor does Shell dispute the Examiner’s findings that Xu describes riser reactors as a “preferred reactor type” (FR 3, citing Xu 7 [0076]), and that Xu describes options in which the oxygenate stream is split into portions and introduced at a multiplicity of locations along the length of the reactor (id. at 3, citing Xu 8 [0082]). It is well settled that, when the Examiner provides a reasonable basis to conclude that a prior art reference describes or suggests a process (more generally, the claimed subject matter), the burden shifts to the Applicant to come forward with evidence and argument demonstrating that the Examiner’s conclusion is not supported by a preponderance of the evidence of record, or that the reasoning is flawed in some other way. See, e.g., In re Spada, 911 F.2d 705, 707 n.3 (Fed. Cir. 1990) (“The prima facie case is a procedural tool which, as used in patent examination (as by courts in general), means not only that the evidence of the prior art would reasonably allow the conclusion the examiner seeks, but also that the prior art compels such a conclusion if the applicant produces no evidence or argument to rebut it.”) Claim 1 covers a very broad range of processes. Aside from the serial riser-reactor structure and the oxygenate being added to more than one Appeal 2013-007600 Application 12/743,280 5 reactor stage, claim 1 recites only that the oxygenate be contacted with a catalyst, as conditions that must be satisfied in addition to the ethylene/propylene ratio. Moreover, the range of products is not otherwise constrained. Thus, any process conducted in a serial riser-reactor with addition of oxygenate in two or more riser stages that produces at least half as much ethylene as propylene, even as a small fraction of the total product, is covered by claim 1. The disclosure of catalysts useful in the presently claimed invention, in the ʼ280 Specification, as in Xu, is not particularly constrained. The ʼ280 Specification provides four “examples,” one of which (Example 2), is comparative. These examples, however, are all reports of “model calculations of various reactor systems” (Spec. 37, ll. 7–8) based on the kinetic reaction network illustrated in Figure 4 (not reproduced here) (id. at ll. 9–10). Parameters for the network of chemical reactions are said to have been based on experiments using dimethyl ether and methanol over ZSM-23 (id. at ll. 28–31), where ZSM-23 is said to be an “MTT”-type molecular-sieve zeolite oxygenation catalyst. (Id. at 12, ll. 10–13.) The numerical results reported in Tables 1–4 (id. at 39, 40, 43, and 44) were obtained using the “Aspen Custom Modeller”—apparently a commercially available program—as well as “proprietary software routines.” (Id. at 37, l. 33, to 34, l. 2.) Sole Comparative Example 2 is based on a “single isothermal plug flow reactor,” (id. at 39, ll. 15–16), which has only a single stage (see Fig.6, not reproduced here). If there are more conditions required to ensure the production of ethylene and propylene in a molar ratio at least 1:2 than are recited in claim 1, the nature of those conditions is obscure. In any event, the Appeal 2013-007600 Application 12/743,280 6 enablement of the claimed invention has not been challenged, and we perceive no reasonable challenge on the basis of the present record. More importantly, the ʼ280 Specification does not provide evidence that the achievement of the minimum 1:2 ethylene: propylene ratio was regarded by those having ordinary skill in the art as unachievable with then-known methods. Accordingly, we are not persuaded of any basis to conclude that the Examiner erred harmfully in concluding that conducting a conversion of oxygenates to olefins in a serial riser reactor system, with oxygenate being provided to at least two of the stages, would have been obvious. We are also not persuaded that, given the teachings in Xu that the production of “olefin product rich in ethylene and/or propylene,” even if expressly only the in aggregate, the Examiner erred harmfully in concluding that the recited ethylene:propylene molar ratio would have been obtained by no more than the ordinary process of selecting catalysts and reaction conditions. Generally, the broader the claim, the broader the scope of prior art that potentially renders the claimed subject matter obvious. The mere denial, unaccompanied by an explanation, that the prior art fails to disclose some result of a prior art process, does not suffice to shift the burden back to the Examiner.8 8 Shell has criticized the Examiner’s reliance on Van Dijk only in that Van Dijk does not, in Shell’s view, “suggest the limitations of claim 1 that are missing from the Xu reference.” (Br. 3, ll. 21–22.) As indicated supra, Van Dijk appears to be no more than cumulative with Xu, so any error in the Examiner’s findings and conclusions based on Van Dijk are harmless. Appeal 2013-007600 Application 12/743,280 7 C. Order It is ORDERED that the rejection of claims 1–12 is affirmed. 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 tc