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Patent Trials and Appeals Board

Dec 10, 2021

2020005602 (P.T.A.B. Dec. 10, 2021)

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.
15/548,214 08/02/2017 Gennadi FINKELSHTAIN 6250-P50397 1711
13897 7590 12/10/2021
Abel Schillinger, LLP
12414 Alderbrook Drive
Suite 201
Austin, TX 78758
EXAMINER
IQBAL, SYED TAHA
ART UNIT PAPER NUMBER
1736
NOTIFICATION DATE DELIVERY MODE
12/10/2021 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):
hmuensterer@abel-ip.com
mail@Abel-IP.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte GENNADI FINKELSHTAIN,
NINO BORCHTCHOUKOVA, and LEONID TITELMAN

Appeal 2020-005602
Application 15/548,214
Technology Center 1700
____________

Before DONNA M. PRAISS, JENNIFER R. GUPTA, and
LILAN REN, Administrative Patent Judges.

PRAISS, Administrative Patent Judge.

DECISION ON REQUEST FOR REHEARING
STATEMENT OF THE CASE
This is in response to a Request for Rehearing (“Req. Reh’g” or
“Request”), dated November 19, 2021, of our Decision, dated September 23,
2021 (“Dec.”), wherein we affirmed the Examiner’s decision to reject all of
the appealed claims.
Appellant requests reconsideration of our affirmance of the rejection
of claims 36–55 under 35 U.S.C. § 103 over Okamura. Req. Reh’g 1–5.
We have reconsidered our Decision of November 19, 2021, in light of
Appellant’s comments in the Request, and we find no error in the disposition
of the rejection of claims 36–55.
Appeal 2020-005602
Application 15/548,214
2
A request for rehearing “must state with particularity the points
believed to have been misapprehended or overlooked by the Board.” 37
C.F.R. § 41.52(a)(1) (2019). In the Request, Appellant reiterates statements
from pages 6 and 10 of the Appeal Brief and asserts we overlooked or
misapprehended their argument that Okamura fails to indicate the percentage
of (1) nickel in any form based on the catalyst as opposed to catalytically
active material only and (2) components A, B, and C based on the total
weight of catalyst including the carrier. Req. Reh’g 2–5. Appellant “do[es]
not disagree with the stated facts regarding Okamura,” but asserts that
independent claim 36’s recitation “the catalyst comprises from 32 % to 42 %
by weight of nickel oxide” means “at least 58% by weight of the claimed
catalyst are different from nickel oxide.” Id. at 4. According to Appellant,
what that different material would be understood to be is carrier material or
additional catalytically active components. Id.
As explained in the Decision, Okamura’s disclosure that component B
is nickel oxide and represents from 0–50% relative to 100% of the
catalytically active component, which Okamura discloses can be made up of
catalytically active components A and B, means the concentration of nickel
oxide in Okamura’s catalyst overlaps claim 36’s range of “from 32 % to 42
%.” Dec. 4–5. Appellant notes that Okamura discloses that the catalyst may
include a carrier as required by dependent claim 50. Req. Reh’g 2. Appellant
asserts that the inclusion of a carrier in Okamura’s catalyst will reduce the
concentration of nickel oxide in the catalyst as measured on the basis of both
the catalytically active material and inert carrier material (“components A
and B plus the carrier”). Id. at 2–3. However, claim 50 does not require any
particular amount of inert material. Dec. 10. The issue of whether the
amount of inert material added to Okamura’s catalyst reduces the nickel
Appeal 2020-005602
Application 15/548,214
3
oxide concentration from up to 50% nickel oxide to some lesser amount
aside, Okamura’s disclosure teaches or suggests Appellant’s “catalyst
compris[ing] from 32 % to 42 % by weight of nickel oxide” as required by
claims 36 and 50. In a determination of obviousness, “the analysis need not
seek out precise teachings directed to the specific subject matter of the
challenged claim, for a court can take account of the inference and creative
steps that a person of ordinary skill in the art would employ.” KSR Int’l Co.
v. Teleflex Inc., 550 U.S. 398, 418 (2007). Moreover, a reference may be
relied upon for all that it would have reasonably suggested to one having
ordinary skill in the art. Merck & Co. v. Biocraft Labs., 874 F.2d 804, 807
(Fed. Cir. 1989) (“That the [prior art] patent discloses a multitude of
effective combinations does not render any particular formulation less
obvious.”).
In sum, we do not find Appellant’s repeated arguments persuasive for
the reasons presented in the Decision. Thus, we decline to modify our
decision affirming the Examiner’s rejections of the appealed claims.
Based on the foregoing, Appellant’s Request is denied with respect to
making changes to the final disposition of the rejections therein.

Appeal 2020-005602
Application 15/548,214
4
CONCLUSION
Outcome of Decision on Rehearing:
Claim(s)
Rejected 35 U.S.C. § Reference(s)/Basis Denied Granted
36–55 103 Okamura 36–55

Final Outcome of Appeal after Rehearing:
Claim(s)
Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed
36–55 103 Okamura 36–55

This Decision on the Request for Rehearing incorporates our
Decision, mailed September 23, 2021, and is final for the purposes of
judicial review. See 37 C.F.R. § 41.52(a)(1) (2011).

DENIED