PARTON, Rudy Francois Maria Jozef. et al.Download PDFPatent Trials and Appeals BoardSep 9, 201914648389 - (D) (P.T.A.B. Sep. 9, 2019) Copy Citation 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. 14/648,389 05/29/2015 Rudy Francois Maria Jozef PARTON 30701-USA 2918 31743 7590 09/09/2019 Georgia-Pacific LLC 133 Peachtree Street NE GA030-23 ATLANTA, GA 30303 EXAMINER DIAZ, MATTHEW R ART UNIT PAPER NUMBER 1761 NOTIFICATION DATE DELIVERY MODE 09/09/2019 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): gplawpatents@gapac.com koch_PAIR@firsttofile.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte RUDY FRANCOIS MARIA JOZEF PARTON, JOHANNES AUGUSTINUS KROON, and PIERRE LOUIS WOESTENBORGHS ____________ Appeal 2019-000896 Application 14/648,389 Technology Center 1700 ____________ Before JEFFREY B. ROBERTSON, MONTÉ T. SQUIRE and MICHAEL G. MCMANUS, Administrative Patent Judges. ROBERTSON, Administrative Patent Judge. DECISION ON APPEAL1 STATEMENT OF THE CASE Appellant2 appeals under 35 U.S.C. § 134(a) from the Examiner’s Final Rejection of claims 1, 3–5, 7, and 10–20. (Appeal Br. 1.) We have jurisdiction pursuant to 35 U.S.C. § 6(b). 1 This Decision includes citations to the following documents: Specification filed May 29, 2015 (“Spec.”); Final Office Action mailed October 31, 2017 (“Final Act.”); Appeal Brief filed June 22, 2018 (“Appeal Br.”); Examiner’s Answer mailed September 11, 2018 (“Ans.”); and Reply Brief filed November 12, 2018 (“Reply Br.”). 2 We use the word “Appellant” to refer to “Applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as Appeal 2019-000896 Application 14/648,389 2 We AFFIRM. THE INVENTION Appellant states the invention relates to a process for the production of a biomass hydrolysate suitable for the production of levulinic and formic acid. (Spec. 1, ll. 7–11.) Claim 1 is representative and reproduced below from the Claims Appendix to the Appeal Brief: 1. A process for producing a biomass hydrolysate, comprising a single hydrolysis step, said single hydrolysis step comprising: heating a slurry comprising 40 wt% to 50 wt% of a biomass, based on a total weight of the slurry, to a temperature of 160°C to 190°C, for a residence time period of 20 minutes to 140 minutes, at a mineral acid concentration of 2 wt% to 5 wt%, wherein the biomass hydrolysate comprises levulinic acid and formic acid. (Appeal Br. (Claims Appendix) 12.) REJECTIONS3 1. The Examiner rejected claims 1, 3, 7, and 10–20 under pre-AIA 35 U.S.C. § 103(a) as obvious over Von Hebel et al. (US 2011/0302824 A1, published December 15, 2011, hereinafter “Von Hebel”). 2. The Examiner rejected claim 4 under pre-AIA 35 U.S.C. § 103(a) as obvious over Von Hebel and Mullen et al. (US 2014/0128634 A1, published May 8, 2014, hereinafter “Mullen”). Georgia-Pacific LLC, a wholly owned subsidiary of Koch Industries, Inc. (Appeal Br. 3.) 3 At page 2 of the Advisory Action mailed January 25, 2018, the Examiner withdrew all rejections under 35 U.S.C. §§ 101 and 112 previously set forth in the Final Action at pages 4–6. Appeal 2019-000896 Application 14/648,389 3 3. The Examiner rejected claim 5 under pre-AIA 35 U.S.C. § 103(a) as obvious over Von Hebel and Weingarten et al. (“Kinetics and reaction engineering of levulinic acid production from aqueous glucose solutions” ChemSusChem, 5, pp1280-1290, 2012, hereinafter “Weingarten”). (Final Act. 6–12; Ans. 3–8.) We select independent claim 1 for disposition of this appeal, which is representative of the claimed subject matter argued by Appellant (See Appeal Br. 11–12). 37 C.F.R. § 41.37(c)(1)(iv). Rejection 1 ISSUE The Examiner found Von Hebel discloses, inter alia, a process for producing a biomass hydrolysate including hydrolysis step including heating a slurry of a biomass at a raised temperature where the biomass hydrolysate comprises levulinic acid and formic acid. (Ans. 3–4.) The Examiner found that Von Hebel does not disclose explicitly the concentration of slurried biomass is in the range of 40–50% by weight on the total weight of the slurried biomass. (Id. at 4.) The Examiner determined it would have been obvious to one of ordinary skill in the art to have arrived at the claimed biomass concentrations “by optimizing and raising the initial biomass concentration taught by Von Hebel et al. (para. 0037 and the examples in table 1 on page 5) in order to sufficiently liquefy 60% or more and/or 80% or more of the cellulosic and lignocellulosic material and obtain materials suitable for preparing a biofuel (para. 0012, 0016, and 0043–0045).” (Id.) Appeal 2019-000896 Application 14/648,389 4 Appellant argues that Von Hebel discloses a maximum concentration of cellulosic material of 33.33 wt% based on the combined weight of biomass and the solvent mixture. (Appeal Br. 8, citing Von Hebel, ¶ 38.) Appellant argues also that Von Hebel requires addition of a catalyst to the slurry of biomass and solvent, which would further reduce the concentration of biomass in the slurry. (Id., citing Von Hebel, ¶¶ 39–43.) Appellant argues the Examiner’s reasoning is contradictory to the results shown in Von Hebel, which show that the maximum “liquefaction” of 80 wt% of biomass was achieved at the lowest concentration of biomass. (Id. at 9–10, citing Von Hebel, Table 1, Exs. 3 and 8.) Accordingly, the dispositive issue with respect to this rejection is: Considering the record as a whole, has Appellant identified a reversible error in the Examiner’s determination that it would have been obvious to have performed the method of Von Hebel with a slurry comprising 40 wt% to 50 wt % biomass? DISCUSSION We are not persuaded by Appellant’s arguments. In particular, as the Examiner points out, the amount of cellulosic material present in the solvent mixture is expressed as a preference: “[t]he cellulosic material and the solvent mixture containing water and co-solvent, are preferably mixed in a solvent mixture-to cellulosic material ratio of 2:1 to 20:1.” (Von Hebel ¶ 38, emphasis added; see Ans. 11.) Von Hebel, similar to Appellant’s Specification, does not express any particular criticality to the cellulosic material/solvent mixture concentration disclosed therein. (Id.; compare Spec. 5, ll. 24–27.) Thus, we agree with the Examiner that increasing the Appeal 2019-000896 Application 14/648,389 5 concentration of cellulosic material in the slurry to discover optimum ranges including the ranges recited in claims 1 and 10, would have been obvious. In re Aller, 220 F.2d 454, 456 (CCPA 1955) (“[W]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 this regard, we are not persuaded by Appellant’s argument that the examples in Von Hebel establish that by increasing biomass concentration, the maximum “liquefaction” decreases. Initially, we are not persuaded that the two isolated examples relied on by Appellant establish the trend argued and we point out that Appellant must rely on more than attorney argument to support any such interpretation. In re Schulze, 346 F.2d 600, 602, (CCPA 1965). Indeed, arguments of counsel cannot take the place of factually supported objective evidence. In re Huang, 100 F.3d 135, 139-40 (Fed. Cir. 1996). In addition, as the Examiner points out, the working examples disclosed in Von Hebel merely provide results with respect to particular co-solvent blends. (Ans. 14.) Examples 3 and 8 relied on by Appellant, were performed using different co-solvents, acetic acid, and gamma- valerolactone, respectively. (Von Hebel, ¶¶ 74, 80, Table 1.) Thus, it does not follow from the results disclosed in Von Hebel that increasing the concentration of biomass reduces “liquefaction.” If anything, Von Hebel appears to disclose that at the same concentration of biomass, the particular solvent has an effect on “liquefaction,” where gamma-valerolactone produced less “liquefaction” than acetic acid co-solvent. (See Examples 3 and 5.) Appeal 2019-000896 Application 14/648,389 6 Accordingly, we affirm the Examiner’s rejection of claim 1, and claims 3–11, 13–21, and 23–28. Rejections 2 and 3 Appellant does not present separate arguments for dependent claims 4 and 5, the subject of Rejections 2 and 3, respectively, but rather relies on the dependency of those claims from claim 1 as the basis for patentability. (Appeal Br. 1.) As a result, we affirm the Examiner’s rejections of these claims as well for similar reasons as discussed above with respect to Rejection 1. DECISION We affirm the Examiner’s decision rejecting claims 1, 3–5, 7, and 10– 20. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED Copy with citationCopy as parenthetical citation