Li, Li et al.

Patent Trials and Appeals Board

Oct 8, 2020

2019003658 (P.T.A.B. Oct. 8, 2020)

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.
13/576,565 08/01/2012 Li Li G8989-00003 8815
8933 7590 10/08/2020
DUANE MORRIS LLP - Philadelphia
IP DEPARTMENT
30 SOUTH 17TH STREET
PHILADELPHIA, PA 19103-4196
EXAMINER
DOYLE, BRANDI M
ART UNIT PAPER NUMBER
1771
MAIL DATE DELIVERY MODE
10/08/2020 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 LI LI and QUNZHU LI

Appeal 2019-003658
Application 13/576,565
Technology Center 1700
____________

Before ROMULO H. DELMENDO, MICHAEL P. COLAIANNI, and
MICHAEL G. MCMANUS, Administrative Patent Judges.

DELMENDO, Administrative Patent Judge.

DECISION ON APPEAL
The Appellant1 appeals under 35 U.S.C. § 134(a) from the Primary
Examiner’s final decision to reject claims 1–7, 9, 10, and 13–23.2,3 We have
jurisdiction under 35 U.S.C. § 6(b).
We affirm.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42—i.e., the Inventors (Application Data Sheet filed August 1,
2012 at 1), who are also identified as the real parties in interest (Substitute
Appeal Brief filed October 15, 2018 (“Appeal Br.”) at 2).
2 See Appeal Br. 8–49; Reply Brief filed April 8, 2019 (“Reply Br.”) at 1–
26 (original document pagination incorrect); Final Office Action entered
October 17, 2017 (“Final Act.”) at 3–8; Examiner’s Answer entered
February 7, 2019 (“Ans.”) at 3–16.
3 We heard oral arguments from the Appellant’s representative on October
1, 2020.
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I. BACKGROUND
The subject matter on appeal relates to a method for circulating cooled
regenerated catalyst in fluid catalytic cracking (“FCC”) (Specification filed
August 1, 2012 (“Spec.”) at 1, ll. 5–8). Figure 2 (descriptions for reference
numerals added) is reproduced from the Drawings filed August 1, 2012, as
follows:

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Figure 2 above is described as “a typical scheme of [a] heavy oil
catalytic device of the present invention,” wherein the figure illustrates a
catalyst circulation process including, inter alia: introducing heavy oil into
a first reaction zone 3 (presumably of a riser reactor) together with a mixed
media 32 and a cold regenerated catalyst supplied through cold pipeline
11A; further reacting the mixture in a second reaction zone 2 after adding a
cold shocking agent 34; stripping the catalyst in a stripping section 1A of a
disengager 1 where product is removed at the top of the disengager 1;
combusting and regenerating the stripped catalyst in a regenerator 5; cooling
the regenerated catalyst in catalyst coolers 8A and 8B, which contain mixing
buffer spaces 9A and 9B; and reusing the cold regenerated catalyst from
catalyst cooler 8A by supplying the catalyst to the first reaction zone 3
(Spec. at 17, l. 19–20, l. 25).
Representative claim 1 is reproduced from the Claims Appendix to the
Appeal Brief, as follows:
1. A method for circulating a cold regenerated catalyst,
comprising
reacting hydrocarbon materials with a catalyst in a riser
reactor to generate gas and oil products and a reacted catalyst;
separating the gas and oil products from the reacted
catalyst in a settler;
stripping the separated catalyst in a stripping section;
burning and regenerating the stripped catalyst in a
regenerator to obtain a hot regenerated catalyst;
cooling the hot regenerated catalyst by a heat exchange
element, the heat exchange element being located in a catalyst
cooler and having a heat-taking medium inside;
adjusting a temperature of the cooling catalyst in a mixing
buffer space in the catalyst cooler downstream of the heat
exchange element, the mixing buffer space having distribution
facilities for a fluidized medium at a lower portion and one or
more outlets for exiting regenerated catalyst, to form a cold
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regenerated catalyst having a temperature in a range of 200°C
to 720°C;[4] and
reusing the cold regenerated catalyst in the riser reactor
directly through a transmission channel;
wherein the riser reactor comprises at least one reaction
zone, the stripping section, and the settler;
the catalyst cooler is connected to the riser reactor and is
used to adjust reaction temperature of each reaction zone of the
riser reactor, the temperature in the regenerator, or both,
respectively.[5]
(Appeal Br. Claims App. (original pagination incorrect; emphases added)).
II. REJECTIONS ON APPEAL
The claims on appeal stand rejected under 35 U.S.C. § 103(a) (pre-
AIA) as follows:
A. Claims 1–7, 9, 10, and 13–20 as unpatentable over Li;6 and
B. Claims 21–23 as unpatentable over Lin in view of Roux et al.7
(“Roux”).
(Ans. 3–16; Final Act. 3–8).

4 The Appellant refers to these highlighted limitations as “Feature[ ]2”
(Appeal Br. 10 (emphasis omitted)).
5 The Appellant refers to these highlighted limitations as “Feature 1”
(Appeal Br. 10 (emphasis omitted)).
6 CN 1664074 A, published September 7, 2005. The Examiner relies on the
Drawings in the original document and on the disclosures in the verified
English language translation filed June 1, 2016 (Ans. 3).
7 US 2011/0220548 A1, published September 15, 2011.
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III. DISCUSSION
REJECTION A
1. Grouping of Claims
Unless separately argued within the meaning of 37 C.F.R.
§ 41.37(c)(1)(iv), the claims subject to this rejection stand or fall with claim
1, which we select as representative pursuant to the rule. Skeletal arguments
based merely on what a claim recites, such as offered for claim 2 (Appeal
Br. 32–33), are not arguments for separate patentability that require our
separate consideration. In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011).
2. The Examiner’s Position
The Examiner finds that Li describes, or would have suggested to a
person having ordinary skill in the art, all the operational steps and
limitations recited in claim 1, as currently drafted, taking account of the
description in the remainder of the Specification (Ans. 3–5, 9; Final Act. 4–
6). As for secondary considerations of nonobviousness, the Examiner states
that the entered declarations8 in support of commercial success or
unexpected results have been considered but explains that the objective
evidence as a whole does not include sufficient factual showings in support
of commercial success or unexpected results (Ans. 13–15; Advisory Action
entered April 16, 2018; Advisory Action entered February 23, 2018).
3. The Appellant’s Contentions

8 See Declaration of Qunzhu Li filed March 19, 2018 (“Second Li
Declaration” or “Second Li Decl.”); Declaration of Qunzhu Li filed January
17, 2018 (“First Li Declaration” or “First Li Decl.”); Declaration of Jinglin
Gao filed October 30, 2015 (“Gao Declaration” or “Gao Decl.”); Declaration
of Nan Zhang filed October 30, 2015 (“Zhang Declaration” or “Zhang
Decl.”).
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As for claim 1, the Appellant’s contentions focus only on two
limitations as highlighted above in reproduced claim 1—i.e., Feature 2 and
Feature 1. Regarding Feature 2 (i.e., the “mixing buffer space” limitations),
the Appellant acknowledges that the Specification’s description “[i]n the
downstream, there is a buffer space for mixed buffer catalyst,” as currently
recited in the Specification (Spec. 4, ll. 21–22), is “wrong or incorrect”
(Appeal Br. 10). The Appellant states that the error occurred from a
mistranslation of the original Chinese document and that the description
should actually read “[i]n the downstream, there is a catalyst mix and buffer
zone for mixing and buffering catalyst” (id. (emphasis omitted; citing MPEP
§ 2163.07)). While apologizing for the error, the Appellant argues that
“mixing buffer space” in the phrase “mixing buffer space in the catalyst
cooler downstream of the heat exchange element” in claim 1 should be
interpreted to be “an independent space downstream of the catalyst cooler
for mixing and buffering the cooled regenerated catalyst” (id. at 11–12
(emphasis omitted; citing published Specification ¶¶ 16–17 (Spec. 4, l. 18–5,
l. 6)). Under this newly proposed interpretation, the Appellant argues that Li
does not disclose or teach a “mixing buffer space” as specified in claim 1
because “there is no specific space reserved in [Li’s] cooler 8A or 8B” and
“35A or 35B mentioned in Li is just a fluidizing media rather than a space”
for mixing and buffering (Appeal Br. 19 (bolding added)). According to the
Appellant, “Li has the same inventors and applicants as the present
application” but “the reference numbers 9Aand 9B[, which ]are specifically
indicated in the lower part of the cooler in the description of the invention . .
. are not indicated in the corresponding position of the figures of Li,” thus
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“indicat[ing] that there is a difference in this feature between them” (id. at
19–20).
The Appellant argues further that “the recited ‘adjusting temperature
of the cooling catalyst in a mixing buffer space’ is a new special process step
that distinguishes substantively and overwhelmingly over the more or less or
even negligible a little bit of mixing effect existing in Li” (id. at 22). The
Appellant argues that “those skilled in the art have always believe
understand [sic] that, conventionally, the catalyst bed of the fluidized bed
including an external heat exchanger (i.e. the catalyst cooler) is isothermal
(i.e. temperature is uniform)” but “this is a long-standing technical prejudice,
which departs from the objective fact and teaches away from the claimed
‘adjusting temperature of the cooling catalyst itself in a mixing buffer space,
in order to eliminate the radial temperature difference existing inherently in
the catalyst cooler’” (id. at 23). According to the Appellant, it was
“unexpectedly discovered after performing numerous experiments that a
mixing buffer space arranged downstream of the catalyst cooler can
effectively further mix and buffer the cooled regenerated catalyst, and thus
eliminate uneven radial temperature – making the catalyst temperature more
uniform, and the pressure tend to be more stable” (id. at 24). According to
the Appellant, “Li is never aware of [a] ‘radial temperature difference’
problem, let alone of applying the mixing buffer space which is technical
means in Chemical filed [sic] FCC fields to solve the problem” (id. at 24–25
(emphases omitted)).
Additionally, the Appellant argues that Li does not disclose the
limitations recited in the “wherein” clause of claim 1—i.e., Feature 1 (id. at
10, 25–26). According to the Appellant, Li uses two catalyst coolers to
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adjust the reaction temperatures of a first reaction zone and second reaction
zone of a riser, respectively, whereas only one catalyst cooler is used to
adjust the reaction temperature in each reaction of the riser reactor in the
claimed invention (id. at 25–26).
Lastly with respect to claim 1, the Appellant contends that evidence in
support of nonobviousness (e.g., declaration evidence) was not properly
considered (id. at 33–38). For example, the Appellant alleges that, unlike
the claimed invention, which achieved “great [c]ommercial [s]uccess,” no
one has been willing to use the process disclosed in Li since 2008 (id. at 37–
38).
4. Opinion
We have fully considered the Appellant’s arguments but find them
unpersuasive to identify reversible error in the Examiner’s rejection. In re
Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011). Because we detect no
reversible error in the Examiner’s factual findings, analyses, and
conclusions, we adopt them as our own and add the following for emphasis.
In re Cree, Inc., 818 F.3d 694, 698 n.2 (Fed. Cir. 2016); In re Brana, 51
F.3d 1560, 1564 n.13 (Fed. Cir. 1995).
“During . . . original examination, the PTO must give claims their
broadest reasonable construction consistent with the specification.” In re
ICON Health & Fitness, Inc., 496 F.3d 1374, 1379 (Fed. Cir. 2007). Thus,
“we look to the specification to see if it provides a definition for claim terms,
but otherwise apply a broad interpretation.” Id. “As [our reviewing] court
has discussed, this methodology produces claims with only justifiable
breadth.” Id.; see also Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2131,
2143, 2144–45 (2016) (the broadest reasonable interpretation standard
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“helps ensure precision while avoiding overly broad claims, and . . . help[s]
members of the public draw useful information from the disclosed invention
and better understand the lawful limits of the claim”).
Applying this mode of claim interpretation, we agree with the
Examiner that Li describes Features 1 and 2, as recited in claim 1. As a
preliminary matter, and contrary to the Appellant’s suggestion to the
contrary (Appeal Br. 10–11), the Inventors represented to the PTO that they
reviewed and understood the contents of the as-filed application, including
the current Specification and Drawings, by filing the application including
an Oath on August 1, 2012. Neither the Specification, including the claims,
nor the Drawings were properly amended to correct the alleged errors in the
originally-filed application.9 Indeed, the Appellant admits as much (id.). As
the Examiner cogently explains, the claims must be examined as currently of
record and, therefore, “[a]rguments addressing claim language as . . .
intended are not persuasive or relevant until an amendment reflecting such
language is entered” (Ans. 9). See In re Hiniker Co., 150 F.3d 1362, 1369
(Fed. Cir. 1998) (The “name of the game is the claim” and unclaimed
features cannot impart patentability to claims); In re Self, 671 F.2d 1344,
1348 (CCPA 1982) (“[The A]ppellant’s arguments fail from the outset
because . . . they are not based on limitations appearing in the claims.”).
As the Examiner finds (Ans. 9), the Appellant does not direct us to
any description in the current Specification that would constitute a special

9 The Appellant attempted to amend the claims on January 17, 2018, which
is subsequent to the Final Action, but the Advisory Action entered February
23, 2018 indicates that these amendments were denied entry as raising new
issues that would require further consideration and/or search as well as the
issue of new matter.
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definition for the language “mixing buffer space” in claim 1. Claim 1
merely specifies that the “mixing buffer space” is located “in the catalyst
cooler downstream of the heat exchange element” (Claims App. (emphasis
added)). Although the Specification includes the phrases “[i]n the
downstream, there is a buffer space for mixed buffer catalyst” and that
“[t]here are one, two or more catalyst exits set in the catalyst mixed buffer
space in the downstream of the described catalyst cooler” (Spec. 4, ll. 18–25;
published Spec. ¶¶ 16–17), claim 1 unequivocally specifies the “mixing
buffer space” as being located “in the catalyst cooler downstream of the heat
exchange element” (Claims App. (emphasis added)), as recited above—not a
space that is downstream and separate from the entire catalyst cooler as the
Appellant seems to argue (Appeal Br. 11). To the extent that paragraphs 16
and 17 of Specification may somehow be understood to disclose a mixing
buffer space that is in a location independent and separate from the catalyst
cooler, such a feature is not recited in claim 1, and, therefore, constitutes an
unclaimed embodiment. The Drawings (e.g., Fig. 2 above), which show
mixing buffer spaces 9A and 9B to be located within catalyst coolers 8A and
8B downstream of the heat exchangers, confirm the Examiner’s
interpretation. As neither claim 1 nor the Specification places any structural
limitations (e.g., volumetric size) for the “mixing buffer space,” we interpret
the “mixing buffer space” to read on any volume of space that is
downstream of the heat exchanger but within the catalyst cooler, whereby
the cooled catalyst is mixed with the other materials and buffered to any
degree.
Thus, under the broadest reasonable interpretation of the claim
language (Feature 2) consistent with the remainder of the Specification and
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Drawings, we find that Li describes Feature 2. Specifically, Li’s Figure 1
(reference numerals descriptions added) is reproduced as follows:

Li’s Figure 1 above, shows, inter alia, two catalyst coolers 8A and 8B
with respective units that convey heat removable media 37A and 37B and
respective inlets for fluidization media 35A and 35B near the outlets for the
catalyst coolers 8A and 8B (Li 18–21). Each of the spaces in Li’s catalyst
coolers 8A and 8B defined by the locations downstream of the heat
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exchangers but before the outlets may properly be considered as a “mixing
buffer space,” as recited in claim 1. That Li (with the same inventive entity
as in the current application) did not use the same reference numerals 9A
and 9B, as in Figure 1 of the application, to identify the mixing buffer spaces
is not dispositive (Appeal Br. 19–20). That is so because, e.g., Li also did
not specifically identify the burner or combustor 5A within regenerator 5,
even though Li teaches explicitly that coke is burned (i.e., combusted) in the
regenerator (Li at 2). Therefore, we discern no reversible error in the
Examiner’s finding that Li describes a “mixing buffer space in the catalyst
cooler downstream of the heat exchange element,” as required by claim 1.
We are unpersuaded by the Appellant’s argument that “Li neither
teaches nor suggests ‘adjusting temperature of the cooling catalyst in a
mixing buffer space to obtain the uniform and stable temperature,’ as
claimed” (Appeal Br. 13). The quoted language is not recited in claim 1,
which instead recites: “adjusting a temperature of the cooling catalyst in a
mixing buffer space in the catalyst cooler downstream of the heat exchange
element . . . to form a cold regenerated catalyst having a temperature in a
range of 200°C to 720°C” (Claims App.). As the Examiner finds (Ans. 3),
Li teaches cooling the regenerated catalyst to a temperature of 200–720°C in
the catalyst cooler (Li at 3).
The Appellant’s argument (Appeal Br. 13–14) that Feature 2 solves a
problem or that the prior art would have taught away from it is inapposite
because Li discloses Feature 2. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398,
420 (2007) (“The first error of the Court of Appeals in this case was to
foreclose this reasoning by holding that courts and patent examiners should
look only to the problem the patentee was trying to solve.”); cf. Celeritas
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Techs., Ltd. v. Rockwell Int’l Corp., 150 F.3d 1354, 1361 (Fed. Cir. 1998)
(“[T]he question whether a reference ‘teaches away’ from the invention is
inapplicable to an anticipation analysis.”).
In this regard, although the Appellant refers to several declarations in
a rather skeletal and conclusory fashion (see, e.g., Appeal Br. 14), such
references are insufficient because, as the Examiner explains (Ans. 13) and
as we discussed above, Li teaches the limitations on which the Appellant
relies as critical or significant. In re Kao, 639 F.3d 1057, 1068 (Fed. Cir.
2011) (“[T]here is a more fundamental requirement that must be met before
secondary considerations can carry the day. ‘For objective evidence of
secondary considerations to be accorded substantial weight, its proponent
must establish a nexus between the evidence and the merits of the claimed
invention.’”) (internal citation omitted); In re Baxter Travenol Labs., 952
F.2d 388, 392 (Fed. Cir. 1991) (“[W]hen unexpected results are used as
evidence of nonobviousness, the results must be shown to be unexpected
compared with the closest prior art . . . Mere recognition of latent properties
in the prior art does not render nonobvious an otherwise known invention.”).
To the extent that the Appellant can substantiate that “[n]o one is
willing to utilize the solution of [Li] since 2008,” whereas a total of 15
commercial units were successfully implemented from 2008–2014 (Second
Li Decl. at 4 (emphasis removed)), such would merely demonstrate that
something falling within the scope of claim 1 suffers from the same
deficiencies as Li’s method or system. Moreover, such conclusory
statements in the declaration are entitled to little probative value as they are
not accompanied by detailed comparisons and discussions as to what are
being compared. Cf. In re Borkowski, 505 F.2d 713, 718 (CCPA 1974)
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(“The affidavits for the most part consist of vague and general statements in
the broadest terms as to what the exhibits show along with the assertion that
the exhibits describe a reduction to practice. This amounts essentially to
mere pleading, unsupported by proof or showing of facts.”); In re Lindner,
457 F.2d 506, 508 (CCPA 1972) (“[M]ere conclusory statements in the
specification and affidavits are entitled to little weight when the Patent
Office questions the efficacy of those statements.”).
With respect to Feature 1, we find no merit in the Appellant’s position
that Li lacks a teaching of this feature. Contrary to the Appellant’s
erroneous belief (Appeal Br. 26), claim 1 does not limit the method to a
single catalyst cooler. Although claim 1 states that “the catalyst cooler is
connected to the riser and is used to adjust reaction temperature of each
reaction zone of the riser reactor, the temperature in the regenerator, or
both” (Claims App. (emphasis added)), the catalyst cooler need not be
directly connected to the riser reactor and need not adjust the temperature of
each reaction zone of the riser reactor by virtue of the conjunction “or.”
Instead, the claim broadly encompasses a catalyst cooler that is directly
connected to, e.g., the regenerator only, the riser reactor only, or both and
adjusts the temperature in the regenerator and only one of the reaction zones
in the riser reactor (e.g., Li, Fig. 1, catalyst cooler 8B). In any event, Li
teaches a catalyst cooler that is directly connected to the riser reactor and,
from a thermodynamics standpoint, necessarily adjusts the temperatures of
each reaction zone in the riser reactor (id. Fig. 1, catalyst cooler 8A, the
outlet of which is connected to the riser reactor somewhere upstream of the
first reaction zone 3 in a manner indistinguishable from that shown in Figure
2 of the current application).
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Relying on the Specification (published Spec. ¶¶ 59–60; Spec. 12, ll.
16–19), the Appellant argues that Feature 1 provides advantages such as
increased processing capacity (Appeal Br. 30). This argument is misplaced
because Li teaches Feature 1. Moreover, the Appellant offers no direct and
fair comparison between the claimed method and Li’s method. In this
regard, we are in complete agreement with the Examiner’s assessment (Ans.
14–15).
As for separately argued claims 6 and 16, the Appellant argues that Li
uses single-parameter adjustment of the catalyst-to-oil ratio to realize the
control of reaction temperature (Appeal Br. 38). We agree with the
Examiner’s findings, which we adopt as our own (Ans. 16). Li does in fact
adjust the ratio of the amount of regenerated catalyst mixture that enters the
riser reactor to the feed of the hydrocarbon materials (e.g., Li at 4).
REJECTION B
The Appellant does not offer any additional arguments for claims 21–
23 (Appeal Br. 39). Therefore, we uphold Rejection B for the same reasons
discussed above.
For these reasons, and those well-stated by the Examiner, we uphold
the Examiner’s rejections.

IV. CONCLUSION
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–7, 9, 10, 13–
20
103(a) Li 1–7, 9, 10,
13–20

21–23 103(a) Li, Roux 21–23
Overall
Outcome
1–7, 9, 10,
13–23

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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).

AFFIRMED