W. R. GRACE & CO.-CONN.Download PDFPatent Trials and Appeals BoardMay 19, 20212020003357 (P.T.A.B. May. 19, 2021) 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. 14/416,469 01/22/2015 Yuying Shu W9960-01 4785 30633 7590 05/19/2021 W.R. GRACE & CO.-CONN. 7500 GRACE DRIVE COLUMBIA, MD 21044 EXAMINER SLIFKA, COLIN W ART UNIT PAPER NUMBER 1732 MAIL DATE DELIVERY MODE 05/19/2021 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 YUYING SHU, WU-CHENG CHENG, RICHARD F. WORMSBECHER, KEVIN J. SUTOVICH, RANJIT KUMAR, and MICHAEL S. ZIEBARTH Appeal 2020-003357 Application 14/416,469 Technology Center 1700 Before BEVERLY A. FRANKLIN, N. WHITNEY WILSON, and JENNIFER R. GUPTA, Administrative Patent Judges. GUPTA, Administrative Patent Judge. DECISION ON APPEAL1 Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the Examiner’s decision to reject claims 1–6, 8, 10–16, and 28. We have jurisdiction under 35 U.S.C. § 6(b). 1 In this Decision, we refer to the Specification filed January 22, 2015 (“Spec.”); the Final Office Action dated November 7, 2017 (“Final Act.”); the Appeal Brief filed July 2, 2018 (“Appeal Br.”); the Examiner’s Answer dated July 19, 2018 (“Ans.”); and the Reply Brief filed November 13, 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 W.R. Grace & Co.-Conn. Appeal Br. 2. Appeal 2020-003357 Application 14/416,469 2 We AFFIRM. CLAIMED SUBJECT MATTER The claims are directed to an ultra low soda catalytic cracking catalyst composition. Spec. ¶ 9. Claim 1, reproduced below with emphasis to highlight a key disputed limitation, is illustrative of the claimed subject matter: 1. An ultra low soda fluid catalytic cracking catalyst having increased activity and improved selectivity for cracking a hydrocarbon feedstock to lower molecular weight products, the catalyst comprising a particulate composition comprising a zeolite having catalytic cracking activity under fluid catalytic cracking conditions, a magnesium salt, clay, an inorganic binder and optionally at least one matrix material, wherein the catalyst has a Na2O content of less than 0.7 wt% Na2O, on a zeolite basis, based on the total weight of the catalyst composition, and the catalyst is free of rare earth metal containing compounds. Appeal Br. 8 (App. A) (emphasis added). REJECTIONS The Examiner maintains the following rejections on appeal (Ans. 3– 4): Rejection 1: Claims 1–6, 8, 10–16, and 28 are rejected under pre-AIA 35 U.S.C. § 103(a) as unpatentable over Hu et al. (US 2011/0120911 A1, published May 26, 2011); Rejection 2: Claims 1–6, 10–16, and 28 are rejected on the ground of non-statutory double patenting as unpatentable over claims 1–3, 5, 6, 8–11, 13, and 21 of U.S. Patent No. 9,993,810; and Appeal 2020-003357 Application 14/416,469 3 Rejection 3: Claims 1–6, 8, 10–16, and 28 are rejected on the ground of non-statutory double patenting as unpatentable over claims 1–6, 12–15, 17, 19, 23–25, 27, 28, 30, and 48–50 of U.S. Patent No. 10,005,072. DISCUSSION Rejection 1 – Obviousness over Hu The dispositive issue before us in this appeal is: Has the Examiner reversibly erred in finding that Hu teaches a catalytic cracking catalyst as in claim 1, where the catalyst is “free” of rare earth metal containing compounds? We answer this question in the negative. According to Appellant’s Specification, “free” as it relates to an amount of rare earth metals means “less than 0.3 wt%,” measured as the oxide, based on the total weight of the composition. Spec. ¶ 21. Appellant argues that there are no examples in Hu that teach a catalyst “free” of rare earth metals or a catalyst including less than 0.3% of yttrium excluding all other rare earth metals. Appeal Br. 4. Appellant argues that Hu’s teaching that yttrium, a rare earth metal, may be present in amounts ranging from about 0.1% to about 12% by weight of the composition, without more, would not be sufficient to establish a prima facie case of obviousness that the catalyst is free of rare earth metal containing compounds. Id. at 6. Appellant’s arguments do not identify reversible error in the Examiner’s rejection. “A reference must be considered for everything that it teaches, not simply the described invention or a preferred embodiment.” In re Applied Materials, Inc., 692 F.3d 1289, 1298 (Fed. Cir. 2012). As the Examiner finds, Hu teaches a catalyst composition including yttrium Appeal 2020-003357 Application 14/416,469 4 preferably in amounts of about 0.1% to about 12% by weight. Final Act. 5 (citing Hu ¶ 25). The preferred range of yttrium taught by Hu overlaps with the range of “less than 0.3 wt%” given in Appellant’s Specification for a catalyst “free” of rare earth metal. In re Peterson, 315 F.3d 1325, 1329–30 (Fed. Cir. 2003) (“In cases involving overlapping ranges, we and our predecessor court have consistently held that even a slight overlap in range establishes a prima facie case of obviousness.”). Because Appellant does not identify error in the Examiner’s § 103(a) rejection over Hu, we sustain the rejection of claims 1–6, 8, 10–16, and 28. Rejections 2 and 3 – Non-statutory Double Patenting Appellant states that they “are willing to file terminal disclaimers against U.S. Patent No. 9,993,810 and U.S. Patent No. 10,005,072 to overcome the double patenting rejections after the . . . obviousness rejection of this application is resolved.” Reply Br. 5. Because Appellant does not present any substantive arguments regarding the double patenting rejections, we summarily affirm the rejections. See Manual of Patent Examining Procedure (MPEP) § 1205.02 (9th ed. rev. 08.2017 Jan. 2018) (“If a ground of rejection stated by the examiner is not addressed in the appellant’s brief, appellant has waived any challenge to that ground of rejection and the Board may summarily sustain it, unless the examiner subsequently withdrew the rejection in the examiner’s answer.”). Appeal 2020-003357 Application 14/416,469 5 CONCLUSION In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1–6, 8, 10– 16, 28 103(a) Hu 1–6, 8, 10– 16, 28 1–6, 10–16, 28 Obviousness-type Double Patenting 1–6, 10–16, 28 1–6, 8, 10– 16, 28 Obviousness-type Double Patenting 1–6, 8, 10– 16, 28 Overall Outcome 1–6, 8, 10– 16, 28 TIME PERIOD FOR RESPONSE No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED Copy with citationCopy as parenthetical citation