Ex Parte 7,902,107 et al

Patent Trial and Appeal Board

Aug 28, 2017

95001744 (P.T.A.B. Aug. 28, 2017)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
95/001,744 09/07/2011 7,902,107 B248 7004US
(88418.0024.0
4832
109171 7590 08/29/2017
Womble Carlyle Sandridge & Rice, LLP
Attn: IP Docketing
P.O. Box 7037
Atlanta, GA 30357-7037
EXAMINER
LOPEZ, CARLOS N
ART UNIT PAPER NUMBER
3991
MAIL DATE DELIVERY MODE
08/29/2017 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
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.
95/001,894 02/15/2012 7,902,107 B2 H0610.0506/P506-RE 7108
109171 7590 08/29/2017
Womble Carlyle Sandridge & Rice, LLP
Attn: IP Docketing
P.O. Box 7037
Atlanta, GA 30357-7037
EXAMINER
LOPEZ, CARLOS N
ART UNIT PAPER NUMBER
3991
MAIL DATE DELIVERY MODE
08/29/2017 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
____________

JOHNSON MATTHEY, INC. & HALDOR TOPSOE A/S DENMARK,
Requesters and Appellants,

v.

Patent of BASF CORPORATION,
Patent Owner and Respondent
____________

Appeal 2017-006009
Reexamination Control 95/001,744 & 95/001,894 (merged)
Patent 7,902,107 B2
Technology Center 3900
____________

Before RICHARD M. LEBOVITZ, JEFFREY B. ROBERTSON, and
JEFFREY W. ABRAHAM, Administrative Patent Judges.

ROBERTSON, Administrative Patent Judge.

DECISION ON APPEAL

Third-Party Requesters Johnson Matthey, Inc. (hereinafter “JMI”) and
Haldor Topsoe A/S Denmark (hereinafter “HTAS”) appeal under 35 U.S.C.
§§ 134(c) and 315(b) from the Examiner’s refusal to reject claims 1, 3–21,
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23–34, 36, and 37 on various grounds.1 Patent Owner BASF Corporation
(hereinafter “Patent Owner”) urges that the Examiner’s decision must be
affirmed.2 We have jurisdiction under 35 U.S.C. §§ 6, 134(c) and 315(b).
We REVERSE the Examiner’s decision not to adopt certain proposed
rejections. By operation of rule, our reversal constitutes a new ground of
rejection of claims 1, 3–21, 23–34, 36, and 37 under 37 C.F.R. § 41.77(b).

STATEMENT OF THE CASE
JMI requested inter partes reexamination of United States Patent
7,902,107 B2 (hereinafter the “’107 Patent”) on September 22, 2011, which
was assigned Reexamination Control No. 95/001,744 (hereinafter “the ’744
Reexamination”).
HTAS requested inter partes reexamination of the ’107 Patent on
February 15, 2012, which was assigned Reexamination Control No.
95/001,894 (hereinafter “the ’894 Reexamination”).
In a DECISION SUA SPONTE MERGING REEXAMINATION
PROCEEDINGS mailed May 28, 2013 (hereinafter “Merger Decision”), the

1 See JMI’s Appeal Brief filed April 30, 2015, hereinafter “JMI App. Br.”;
JMI’s Rebuttal Brief filed July 7, 2016, hereinafter “JMI Reb. Br.;” HTAS’s
Appeal Brief filed January 28, 2015, hereinafter “JMI App. Br.”; JMI’s
Rebuttal Brief filed June 6, 2016, hereinafter “HTAS Reb. Br.;” Examiner’s
Answer mailed May 5, 2016, hereinafter “Ans.,” Right of Appeal Notice
mailed October 30, 2014, hereinafter “RAN.”
2 See Patent Owner’s Respondent Brief to JMI’s Appeal Brief filed June 29,
2015, hereinafter “PO ’744 Resp’t Br.” And Patent Owner’s Respondent
Brief to HTAS’s Appeal Brief filed June 29, 2015, hereinafter “PO ’894
Resp’t Br.”
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’744 Reexamination and the ’894 Reexamination were merged into a single
proceeding.
The ’107 Patent issued to Joseph A. Patchett et al. on March 8, 2011,
based on Application 12/028,300 filed February 8, 2008, which is listed as a
continuation of application No. 11/676,798, filed on February 20, 2007,
which in turn is listed as a division of application No. 10/634,659, filed on
August 5, 2003 and issued as U.S. Patent 7,229,597 (hereinafter “the ’597
Patent.”) We are informed that the ’597 Patent is also subjected to inter
partes reexamination (Reexamination Control No. 95/001,745), which has
been appealed to the PTAB. (JMI App. Br. 1.)
In addition, several other patents claiming the benefit of the ’597
Patent were subjected to Inter Partes Review, namely U.S. Patent 8,899,023
(IPR 2015-01265); U.S. Patent 9,039,982 (IPR 2015-01266); and U.S.
Patent 9,032,709 (IPR 2015-01267). Final Written Decisions were entered
in all three Inter Partes Review proceedings determining that the Petitioner
had failed to show by a preponderance of the evidence that the claims were
unpatentable. (IPR 2015-01265, Paper No. 35 entered November 30, 2016;
IPR 2015-01266, Paper No. 35 entered November 30, 2016; IPR 2015-
01267, Paper No. 35 entered November 30, 2016.)
The ’107 Patent states that the invention relates to an emission
treatment system including a material effective in the Selective Catalytic
Reduction (SCR) of nitrogen oxides (NOx) by a reductant such as ammonia,
and in particular, a wall-flow monolith containing an SCR catalyst
composition including a zeolite and base metal component selected from
copper or iron. (Col. 1, ll. 10–22; col. 4, ll. 27–30, 45–52.)
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Claim 1, which is illustrative of the appealed subject matter, reads as
follows (with paragraphing added for clarity and underlining indicating
additions relative to the claim as issued):
1. A catalyst article consisting essentially of a wall flow
monolith and catalytic material,
wherein the wall flow monolith has a plurality of
longitudinally extending passages formed by longitudinally
extending walls bounding and defining said passages, wherein
the passages comprise inlet passages having an open inlet end
and a closed outlet end, and outlet passages having a closed
inlet end and an open outlet end, and
the wall flow monolith contains catalytic material
comprising a slurry loaded washcoat of an SCR catalyst
composition including a zeolite and a base metal component
that permeates the walls at a loading up to 2.4 g/in3 effective to
convert a NOx component to nitrogen through selective
catalytic reduction with ammonia.
(JMI App. Br. 36, Claims App’x.3)

Independent claims 18 and 21 are similar to claim 1 with the
exception that claims 18 and 21 recite that “the wall flow monolith has a
wall porosity of at least 50% with an average pore size of at least 5
microns.” In addition, claim 18 recites that the SCR catalyst composition
permeates the walls at a concentration of at least 1.3 g/in3, while claim 21
does not contain any recitation regarding the permeation of the walls by the
SCR catalyst composition. The term “NOx” refers to nitrogen oxides. (’107
patent, col. 1, l. 15.) “SCR” is Selective Catalytic Reduction. The claim

3 The claim numbering in the Claims Appendix in JMI’s Appeal Brief
appears to be incorrect as the numbering skips from claim 29 to claim 31.
(See JMI App. Br. 41.)
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requires the SCR catalyst to include zeolite and a base metal. According to
the ’107 patent, the base metal is preferably one or more of copper and iron.
(Id., col. 4, ll. 45–48.)

JMI’s Appeal in the ’744 Reexamination4
JMI contests the Examiner’s refusal to reject claims 1, 3–21, 23–34,
36, and 37 under 35 U.S.C. § 103(a) as follows:
I. Claims 1, 3–21, 23–34, 36, and 37 as obvious over Ohno ’3515
and Speronello;6
II. Claims 1, 3–21, 23–34, 36, and 37 as obvious over Hashimoto,7
Ohno ’351 and Speronello;
III. Claims 1, 3–21, 23–34, 36, and 37 as obvious over Nakanishi8
and Speronello; and
IV. Claims 1, 3–21, 23–34, 36, and 37 as obvious over Araki,9
Heck,10 and Speronello.

4 In the interest of efficiency, throughout the course of discussing the ’744
Reexamination Appeal, we make reference to corresponding evidence in the
’894 Reexamination Appeal to the extent that there is a difference between
the evidence in the two reexamination proceedings.
5 WO 02/26351 A1 published April 4, 2002, citations to English translation
of Record. We further observe that this prior art was not raised in the three
Inter Partes Review proceedings discussed above.
6 U.S. Patent 5,516,497 issued May 14, 1996.
7 Hashimoto, S. et al., “SiC and Cordierite Diesel Particulate Filters
Designed for Low Pressure Drop and Catalyzed, Uncatalyzed Systems,”
SAE Technical Paper Series, 2002-01-0322 (Mar. 2002).
8 JP 09-173866 published July 8, 1997, citations to English translation of
record.
9 EP 0 766 993 A2 published April 9, 1997.
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(JMI App. Br. 5–6.)

In support of the above proposed rejections JMI relies on the
following declaration evidence in addition to the prior art cited above (JMI
App. Br. 43–44, Evidence App’x):
Declaration of Phillip G. Blakeman, Ph.D., Under 37 C.F.R. § 1.132
(“First Blakeman Decl.”) (Ex. 9);
Declaration of Paul R. Phillips, Ph.D., Under 37 C.F.R. § 1.132 (“First
Phillips Decl.”) (Ex. 10);
Declaration of Andrew P. Walker, Ph.D., Under 37 C.F.R. § 1.132
(“Walker Decl.”) (Ex. 11);
Declaration by Raj Rajaram, Ph.D., Under 37 C.F.R. C.F.R. § 1.132
(“Rajaram Decl.”) (Ex. 12);
Second Declaration by Phillip G. Blakeman, Ph.D., Under 37 C.F.R.
§ 1.132 (“Second Blakeman Decl.”) (Ex. 13);
Second Declaration by Paul R. Phillips, Ph.D., Under 37 C.F.R.
§ 1.132 (“Second Phillips Decl.”) (Ex. 14); and
Third Declaration by Phillip G. Blakeman, Ph.D., Under 37 C.F.R.
§ 1.132 (“Third Blakeman Decl.”) (Ex. 15).

Patent Owner relies on the following declaration evidence in support
of the patentability of the claims (’744 Resp’t Br. 15–16, Evidence App’x):

10 Heck, R.M. et al., “Catalytic Air Pollution Control,” (2d ed. 2002) pp.
204–208.
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Declaration of Gary L. Haller, Ph.D. Under 37 C.F.R. § 1.132 and
exhibit, dated January 23, 2012 (“Haller ’744 Decl.”) (Ex. 5);
Declaration of Andrew P. Walker, Ph.D., Under 37 C.F.R. § 1.132
and exhibits, dated February 24, 2012 (“Walker Decl.”) (Ex. 6);
Declaration of Robert J. Farrauto, Ph.D. Under 37 C.F.R. § 1.132 and
exhibits, dated June 27, 2012 (“Farrauto Decl.”) (Ex. 7);
Declaration of Joseph A. Patchett, Ph.D. Under 37 C.F.R. § 1.132,
dated June 28, 2012 (“Patchett ’744 Decl.”) (Ex. 8);
Declaration of Joseph C. Dettling Under 37 C.F.R. § 1.132 and
exhibits, dated June 29, 2012 (“Dettling ’744 Decl.”) (Ex. 9);
Second Declaration of Gary L. Haller, Ph.D. Under 37 C.F.R. § 1.132
and exhibits, dated June 28, 2012 (“Second Haller Decl.”) (Ex. 13);
Second Declaration of Phillip G. Blakeman, Ph.D., Under 37 C.F.R.
§ 1.132, dated August 1, 2012 (“Second Blakeman Decl.”) (Ex. 14);
and
Second Declaration of Joseph A. Patchett, Ph.D. Under 37 C.F.R.
§ 1.132 and exhibits, dated May 1, 2015 (“Second Patchett Decl.”)
(Ex. 17).

HTAS’s Appeal in the ’894 Reexamination
HTAS contests the Examiner’s refusal to reject claims 21, 24–26, 33,
34, and 36 under 35 U.S.C. § 103(a) as follows:11

11 HTAS indicates also that it is challenging claim 21 under 35 U.S.C. § 112,
first paragraph as failing to comply with the written description requirement.
(HTAS App. Br. 4.) However, we agree with Patent Owner that HTAS did
not timely raise this rejection during the reexamination proceeding in front
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V. Claim 21 under 35 U.S.C. § 102(a) as anticipated by Akama;12
VI. Claims 21 and 36 under 35 U.S.C. § 102(b) as anticipated by
Ohno ’529;13
VII. Claims 21 and 36 under 35 U.S.C. § 103(a) as obvious over
Nakatani;14
VIII. Claims 21, 24–26, 33, 34, and 36 under 35 U.S.C. § 103(a) as
obvious over Nakatani and Speronello;
IX. Claims 21, 24–26, 33, 34, and 36 under 35 U.S.C. § 103(a) as
obvious over Ohno ’529 and Speronello, and
X. Claims 24–26, 33, 34, and 36 under 35 U.S.C. § 103(a) as
obvious over Akama as applied to claim 21 above and further in
view of Speronello.
(HTAS App. Br. 3–4.)

of the Central Reexamination Unit, and as a result is not permitted to raise it
on appeal. (’894 Resp’t Br. 2; Merger Decision 4–5 (explaining that appeal
may only be taken from a rejection that was previously proposed by the
particular Requester appealing.)) Accordingly, we do not address this
proposed rejection in this Decision. We also observe that HTAS does not
list claim 37 in the issues to be reviewed on appeal, but includes claim 37 in
its arguments. (Compare HTAS App. Br. 3–4 with 4–5.) We agree with
Patent Owner that HTAS did not propose a rejection of claim 37 with
respect to the rejections appealed after claim 37 was added to the
reexamination by amendment. (’894 Resp’t Br. 8, 12, 13–14.)
12 JP 2002-361047, published December 17, 2002.
13 U.S. Patent 7,625,529 B2, issued December 1, 2009. The ’529 Patent is
relied upon as an English equivalent by HTAS of WO 02/26351 A1, which
is the Ohno ’351 reference discussed above. (HTAS App. Br. 13.)
14 K. Nakatani et al., “Simultaneous PM and NOx Reduction System for
Diesel Engines,” Society of Automotive Engineers, 2002.
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HTAS does not cite any declaration evidence in addition to the prior
art cited above (HTAS App. Br. 34, Evidence App’x).

Patent Owner relies on the following declaration evidence in support
of the patentability of the claims (’744 Resp’t Br. 15–16, Evidence App’x):
Declaration of Robert J. Farrauto, Ph.D. Under 37 C.F.R. § 1.132 and
exhibits, dated June 27, 2012 (“Farrauto Decl.”) (Ex. 2);
Declaration of Joseph A. Patchett, Ph.D. Under 37 C.F.R. § 1.132,
dated July 11, 2012 (“Patchett ’894 Decl.”) (Ex. 3);
Declaration of Joseph C. Dettling Under 37 C.F.R. § 1.132 and
exhibits, dated July 10, 2012 (“Dettling ’894 Decl.”) (Ex. 4);
Declaration of Gary L. Haller, Ph.D. Under 37 C.F.R. § 1.132 and
exhibit, dated July 10, 2012 (“Haller ’894 Decl.”) (Ex. 5); and
Second Declaration of Joseph A. Patchett, Ph.D. Under 37 C.F.R.
§ 1.132 and exhibits, dated May 1, 2015 (“Second Patchett Decl.”)
(Ex. 10).

FINDINGS OF FACT (“FF”)
1. Ohno ’351 discloses a catalyst-carrying filter that purifies the
exhaust gas of an engine that is “capable of effective and
efficient removal by oxidation of carbon monoxide (CO) and
hydrocarbon (HC) and reduction of nitrogen oxide (NOx)
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contained in exhaust gas.” (P. 1, 1st ¶; see Ohno ’529, col. 1, ll.
6–10.15)
2. Ohno ’351 discloses a wall-flow filter in the form of a SiC
sintered support that contains cells, where one end of the cell is
sealed, and the open ends are arranged to form a checkered
pattern of the open and closed ends. (¶ bridging pages 7 and 8;
Figs. 1(a) and 1(b); see Ohno ’529, col. 5, ll. 43–55, Fig. 1(a)
and 1(b).)
3. Ohno ’351 discloses that various impregnation methods may be
used to produce the catalyst-carrying filter including an
incipient wetness method, where an aqueous solution of catalyst
is dropped in small amounts on the ceramic support. (P. 22, 1st
full ¶; see Ohno ’529, col. 14, ll. 38–54.)
4. Ohno ’351 discloses:
The catalyst carrying filter 10 of the embodiment
of the invention is used as an exhaust gas purifying
filter. One such use is the usual honeycomb ceramic
support 15, for example, a gasoline oxidation catalyst,
ternary catalyst and diesel engine oxidation catalyst.
Another use would be as a diesel particulate filter with
the honeycomb alternately sealed in a checkered pattern.

(P. 28, 2nd ¶; see Ohno ’529, col. 18, ll. 35–41.)

5. Ohno ’351 discloses:
This diesel particulate filter (hereinafter,
abbreviated as “DPF”) itself would have the function of

15 References to Ohno ’529 reflect the corresponding citation to account for
the English equivalent used in the ’894 Reexamination.
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only accumulating particulates (particulate matter: PM)
in the cell walls 12, but when it carries a catalyst, the
hydrocarbon and carbon monoxide in the exhaust gas
could be oxidized.
Also, even in an oxidized atmosphere such as the
diesel exhaust gas, if it carried a NOx selective
reduction catalyst component that can deoxidize NOx or
an occlusion catalyst component, it would be possible to
deoxidize NOx.

(P. 28, ¶¶ 3–4; see Ohno ’529, col. 18, ll. 41–50.)

6. Speronello discloses that metal-promoted zeolites reduce NOx
in the presence of ammonia to produce nitrogen and water over
the competing reaction of oxygen and ammonia. (Col. 5, ll. 5–
12.)
7. Speronello discloses SCR catalysts where the base metal used
in connection with the zeolite is iron or copper. (Col. 5, ll. 40–
46.)
8. While exemplifying flow-through filters, Speronello discloses
that “[a]ny suitable physical form of the catalyst may be
utilized.” (Col. 7, ll. 10–57.)
9. Speronello discloses that the filter may be coated with a
washcoat containing a slurry of fine particles of copper-
promoted zeolite, the copper-promoted zeolite may be mixed
with a binder and extruded into the honeycomb configuration,
or formed in situ. (Col. 7, ll. 57–66, col. 8, ll. 46–55.)
10. Speronello discloses that zeolites may be selected to make the
catalyst more resistant to sulfur poisoning, to have thermal and
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hydrothermal stability, and long life and efficiency. (Col. 6, ll.
17–49.)

PRINCIPLES OF LAW
In responding to a prima facie case of obviousness, one cannot show
nonobviousness by attacking references individually where the rejections are
based on combinations of references. In re Keller, 642 F.2d 413, 426
(CCPA 1981); In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir.
1986).
“[T]he test for combining references is not what the individual
references themselves suggest but rather what the combination of disclosures
taken as a whole would suggest to one of ordinary skill in the art.” In re
McLaughlin, 443 F.2d 1392, 1395 (CCPA 1971). In addition, “[t]he prior
art’s mere disclosure of more than one alternative does not constitute a
teaching away from any of these alternatives because such disclosure does
not criticize, discredit, or otherwise discourage the solution claimed.” In re
Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004).
In order for a showing of unexpected results to overcome the
teachings of the prior art, the results presented must be commensurate in
scope with the claims. See In re Kollman, 595 F.2d 48, 55 (CCPA 1979).
“[W]hen unexpected results are used as evidence of nonobviousness,
the results must be shown to be unexpected compared with the closest prior
art.” In re Baxter Travenol Labs., 952 F.2d 388, 392 (Fed. Cir. 1991).

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JMI’s Appeal in the ’744 Reexamination
Ohno ’351 in view of Speronello
ISSUES
JMI contends that Ohno ’351 discloses a high-porosity wall-flow filter
corresponding to the wall-flow monolith16 recited in the claims with a
catalyst coating that permeates the walls of the filter, but not an SCR catalyst
as recited in the claims. (JMI App. Br. 6–7.) However, JMI contends that
Speronello discloses SCR catalyst compositions including a zeolite with a
copper or iron metal base component that catalyze the reaction of NOx and
ammonia to form nitrogen and water. (JMI App. Br. 7.) JMI acknowledges
that Speronello exemplifies a flow-through substrate for the SCR catalyst,
but contends that the method of coating in Speronello is similar to the
method employed in the ’107 Patent and recited in the claims. (JMI App.
Br. 7–8.) JMI argues that in view of Ohno ’351’s disclosed objective of
providing a catalyst-carrying filter and that the catalyst on the filter may be
an SCR catalyst, it would have been obvious to use Speronello’s catalyst in
constructing the filter of Ohno ’351 as Speronello discloses that the metal
zeolite catalysts exhibit resistance to sulfur poisoning, thermal durability,
and a broad operational temperature range. (JMI App. Br. 9, 11–12.)
The Examiner did not adopt the rejection of Ohno ’351 and
Speronello because according to the Examiner, Ohno ’351 discloses a
“selective reduction catalyst component” and not necessarily a complete
SCR catalyst composition such that Ohno ’351 teaches away from SCR

16 As explained by JMI, the wall-flow monoliths recited in the claims are
known by various names, including “wall flow filter,” “particulate filter,”
“soot filter,” or “filter.” (JMI App. Br. 3.)
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catalyst compositions as disclosed in Speronello. (RAN 9.) The Examiner
stated further that Ohno ’351 does not provide a reasonable expectation of
success that an SCR catalyst composition that comprises a zeolite and a base
metal would permeate the walls of a wall-flow monolith as claimed. (RAN
9.)
Patent Owner contends that there are significant differences between
the wall-flow monoliths disclosed in Ohno ’351 and the flow-through
substrates disclosed in Speronello such that because Speronello does not
disclose the application of zeolites to wall-flow filters, one of ordinary skill
in the art would not have used the SCR catalyst disclosed in Speronello in a
wall-flow filter as disclosed by Ohno ’351. (’744 Resp’t Br. 2–3.) Patent
Owner further contends that, because Ohno ’351 requires an oxidation
catalyst to oxidize carbon monoxide and hydrocarbon, substitution of the
catalysts of Speronello in the filters of Ohno ’351 would mean that Ohno
’351 would no longer work for its intended purpose. (’744 Resp’t Br. 3–4.)
Patent Owner argues further that Ohno ’351 does not teach a “slurry
loaded washcoat” as recited in the claims, because there is a structural
difference between the layers disclosed in Ohno ’351 and the slurry-loaded
washcoat recited in the claims. (’744 Resp’t Br. 5.) Patent Owner agrees
with the Examiner that Ohno ’351 discloses an SCR catalyst “component”
rather than an SCR catalyst composition. (’744 Resp’t Br. 5–8.) Patent
Owner contends that evidence of unexpected results supports the
patentability of the claims. (’744 Resp’t Br. 12–14.)
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Thus, the dispositive issue is:
Considering the evidence as a whole, would it have been obvious to
one of ordinary skill in the art to have used the SCR catalyst disclosed in
Speronello in a wall-flow filter as disclosed in Ohno ’351?

ANALYSIS
After careful consideration of the evidence of record, we agree with
JMI, that Ohno ’351 and Speronello would have rendered the claimed wall-
flow monolith having an SCR catalytic material comprising a zeolite and a
base metal component obvious. That is, Ohno ’351 expressly discloses that
the wall-flow monolith disclosed therein is designed to include catalysts
capable of selective reduction of NOx contained in engine exhaust gas. (FF
1, 2, 4, 5.) Speronello discloses SCR catalysts including zeolite and base
metal that have specific advantages over conventional SCR catalysts,
including thermal resistance, long life, and efficiency. (FF 7, 10.) Thus, one
of ordinary skill in the art would have had a reason to use the catalysts
disclosed in Speronello as the SCR catalysts expressly suggested in Ohno
’351.

Catalyst “Component”
As to the Examiner’s and Patent Owner’s position that Ohno ’351
discloses catalyst “components” for selective catalytic reduction, which
would not include the complete catalysts disclosed in Speronello, we are of
the view that this reading Ohno ’351 is unduly narrow. Specifically, we find
that one of ordinary skill in the art, in reading the disclosure of Ohno ’351 as
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a whole, would have understood the discussion of an SCR catalyst
component in Ohno ’351 to include a complete SCR catalyst composition
that itself is a component of a larger system, rather than being limited to an
incomplete catalyst composition. A basis for this finding is that in the
objectives disclosed in Ohno ’351, it is expressly stated that the wall flow
monolith is capable of selective reduction of NOx, indicating that a
functional catalyst is present. (FF 1, 5.) Thus, we agree with the
interpretation of Ohno ’351 advanced by JMI, namely that “component”
refers to a component of the filter, and not a component of an SCR catalyst.
(JMI App. Br. 14–16, Third Blakeman Decl. paras. 7–9.)
Patent Owner points to other patents that disclose zeolites as catalyst
“components” and that a single “component” can exhibit catalytic reduction
of NOx. (’744 Resp’t Br. 5–7; Second Patchett Decl. ¶¶ 9–20.) The
positions taken by Patent Owner do not consider the prior art as a whole, and
in particular, the disclosure of Speronello relating to the specific advantages
of the SCR catalyst composition disclosed therein. (FF 10.) Moreover, the
issue is whether Ohno ’351, itself, discloses an SCR catalyst, namely a
catalyst that catalyzes the reaction of NOx and ammonia to form nitrogen
and water. (JMI App. Br. 7.) Thus, that Ohno ’351 uses the term
“component” and does not specify the use of a zeolite, is not dispositive as
to what one of ordinary skill in the art would have understood from the prior
art.
Teaching Away / Reasonable Expectation of Success
Even if Ohno ’351 were to be interpreted narrowly as disclosing a
component of an SCR catalyst, Ohno ’351 does not criticize or otherwise
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disparage the use of the SCR catalyst composition as disclosed in
Speronello. Thus, we are not persuaded by Patent Owner’s and the
Examiner’s position that Ohno ’351 teaches away from the use of the SCR
catalyst in Speronello even if their interpretation of “component” as limiting
the catalyst is correct. Fulton, 391 F.3d at 1201.
Similarly, we are not persuaded by the Examiner’s position that the
prior art provides no reasonable expectation of success to use a complete
SCR catalyst, because Ohno ’351 discloses that the pores of the filter wall
are not completely clogged. (RAN 33.) We do not view Ohno ’351’s
disclosure that the pores of the filter are not completely clogged to provide
sufficient evidence that a zeolite containing catalyst composition would be
unsuitable for a wall flow filter. Indeed, Patent Owner’s expert could not
definitively state that a catalyst composition would clog the pores of the
filter wall.17 (Second Haller Decl. ¶ 20 (“A slurry loaded washcoat,
comprised of preformed catalyst particles in a slurry, would be expected to
fill the individual pores in the walls of the wall flow filter to some extent
with individual particles that make up the slurry” (emphasis added).) As
explained further below, Ohno ’351 does not limit its coating methods, and
therefore, we are also not persuaded by Patent Owner’s arguments that there
would be no reasonable expectation of success in using a zeolite and base
metal, because it would be “highly unlikely” that zeolite crystals could be

17 Hashimoto provides evidence that wash coating can be used successfully
for DPF filters. (Hashimoto, text under Fig. 21, second to last page (“the
porosity and mean pore size of the DPF materials are critical for the
catalyzed DPF system. Also, high porosity material can be coated with
significantly higher wash coat loading without adversely effecting pressure-
drop.”).)
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grown in the pores of the wall-flow filter disclosed in Ohno ’351. (’744
Resp’t Br. 7; Farrauto Decl. ¶ 20.)
We observe, as does the Examiner, that the claims do not expressly
recite any particular attributes of a “slurry loaded washcoat” and as a result,
the claims merely recite the presence of a coating of catalytic material on the
wall-flow monolith. (RAN 7.) Thus, we interpret “washcoat” to mean that a
coating of SCR catalyst is present on the wall-flow monolith. Nevertheless,
even if the term “slurry loaded washcoat” imparts particular structural
characteristics to the claims, we do not subscribe to Patent Owner’s view
that Ohno ’351 teaches away from wash coating due to significant peeling of
the coating during washing as well as resulting in increased back pressure.
(’744 Resp’t Br. 7, Haller ’744 Decl. ¶ 13; Second Patchett Decl. ¶ 21; Ohno
’351 ¶ bridging pages 15 and 16.) As pointed out by JMI, Ohno ’351 uses
the term wash coating to refer to the formation of a prior art thick coating of
alumina film on the surfaces of the prior art cell walls, wherein gaps
between particles can become clogged and impede passage, whereas Ohno
’351 discloses embodiments wherein the cell walls are structured and coated
to promote individual covering with alumina thin film such that pores in the
cell walls are maintained as pores and are never completely clogged. (Ohno
’351 p. 12, last full ¶, p. 13, 1st full ¶; JMI Reb. Br. 6; Walker Decl. ¶¶ 12–
14.)
Contrary to Patent Owner’s position, Ohno ’351 discloses specifically
that various methods of coating a catalyst on a wall flow filter may be used.
(FF 3.) Thus, Ohno ’351 is not limited to generating the catalyst
composition in situ, i.e., where the zeolite and base metal composition would
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be grown on the surface of the wall-flow monolith. Speronello discloses that
the support disclosed therein is coated using a variety of techniques
including a slurry-loaded washcoat of pre-formed zeolite/base metal catalyst.
(FF 9.) As a result, we are not persuaded by Patent Owner’s contentions that
there is a structural difference between Ohno’s chemically derived layers
and the slurry-loaded washcoat recited in the claims. (’744 Resp’t Br. 5
citing Farrauto Decl. ¶¶ 18–19, Patchett ’744 Decl. ¶ 14,18 Dettling ’744
Decl. ¶ 24.19)
Accordingly, because Ohno ’351 is not limited in its catalyst coating
method to generating the catalyst in situ, and we have not been directed to
sufficient evidence that applying a slurry-loaded washcoat of SCR catalyst
as disclosed in the prior art would render the wall flow filter of Ohno ’351
inoperable, we are not persuaded that a wall-flow monolith including a
slurry-loaded washcoat of an SCR catalyst composition would not have been
obvious to one of ordinary skill in the art.

Wall-Flow v. Flow-Through Filters
We are not persuaded by Patent Owner’s contentions that there are
significant differences between the flow-through substrates in Speronello
and the wall-flow filters described in Ohno ’351 in relation to porosities,
back pressure considerations, and temperature operations such that Ohno
’351 and Speronello are in a different technical field. (’744 Resp’t Br. 2–3.)
In particular, while we do not disagree with Patent Owner that one of

18 See Patchett ’894 Decl. ¶ 13.
19 See Dettling ’894 Decl. ¶ 21.)
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ordinary skill in the art may load a flow-through substrate differently than a
wall-flow monolith (Haller ’744 Decl. ¶ 1920) and that there are different
considerations associated with each type of filter, we are of the view that this
does not rise to a level of a different technical field. (JMI App. Br. 6, 9–10;
Walker Decl. ¶ 11; Phillips Decl. ¶ 5.) Both types of filters are associated
with the purification of exhaust from engines, and in particular reduction of
NOx gases therefrom. (FF 2, 4, 5, 9, 10.) Moreover, both Ohno ’351 and
Speronello do not limit the applications with which the filters described
therein could be used. (FF 4, 5, 8.) In addition, as evidenced by Heck,
zeolites were known in the art to be used for NOx reduction with ammonia
at higher temperatures. (Heck, Fig. 8.9.) Accordingly, Patent Owner’s
contentions with respect to the considerations involved with different types
of filters are not persuasive.
Oxidation Catalyst
With respect to Patent Owner’s contention that Ohno ’351 requires an
oxidation catalyst and that using the SCR catalyst disclosed in Speronello
would mean that Ohno ’351 would no longer work for its intended purpose,
again we observe that Ohno ’351 expressly discloses the use of an SCR
catalyst and specifically discloses the reduction of NOx as an objective,
which is the purpose of the SCR catalyst. (FF 1, 5.) In addition, the claims
do not require the presence of an oxidation catalyst and Ohno ’351 is broad
in its disclosure of the filters disclosed therein. In this regard, we agree with
JMI that Ohno ’351, while providing an example of an oxidation catalyst, is

20 See Haller ’894 Decl. ¶ 19.)
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not limited to oxidation catalysts, but is generally directed to “an exhaust gas
purifying filter.” (FF 4; JMI App. Br. 9; Second Blakeman Decl. ¶¶ 12, 13.)

Unexpected Results
Patent Owner contends that Example 4 in the ’107 Patent
demonstrates unexpected results as to the effectiveness of a diesel particulate
filter loaded with an SCR catalyst comprising zeolite and a base metal such
as copper or iron in removing NOx and preventing soot buildup on the walls
of the filter in the absence of any platinum group metals on the filter. (’744
Resp’t Br. 13.) Patent Owner points also to the experiments described in the
Patchett Declaration that allegedly compare the catalyst article in Ohno ’351
to the catalyst article in the ’107 Patent to further demonstrate unexpected
results. (’744 Resp’t Br. 13–14; Patchett ’744 Decl. ¶¶ 15–17, 20–22;21
Second Haller Decl. ¶¶ 27–28.)
Example 4 of the ’107 Patent is an evaluation of filtration efficiency
of NOx conversion and particulate removal for coated soot filters, where an
SCR catalyst containing a copper containing zeolite was coated on to either
a wall-flow monolith substrate (Catalyst A1, see Example 1, col. 12, ll. 16–
36) or a flow-through monolith substrate (Catalyst D1, see Example 1, col.
12, ll. 47–55). (Col. 14, ll. 11–15, 57–62.) The results of the experiment are
shown in Table 1 of the ’107 Patent. The ’107 Patent discloses that the
results show that disposing the SCR catalyst composition on the wall-flow
monolith demonstrate integrated high NOx and particulate removal
efficiency. (Col. 15, ll. 3–28.) According to Patent Owner, the results are

21 See Patchett ’894 Decl. ¶¶ 14–16, 24–26.
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unexpected because the filters of the prior art require the presence of a
platinum group metal in the filter to promote burning of soot, and it would
have been unexpected that a high particulate removal efficiency could be
maintained without an undue increase in back pressure. (Second Haller
Decl. ¶ 27.)
JMI contends that the results in Example 4 and the results presented in
the Patchett Declaration are not commensurate in scope with the claims and
further do not outweigh the evidence of obviousness in the proposed
rejections. (JMI Reb. Br. 17; see Phillips Decl. ¶¶ 6–12.) In particular, JMI
contends that the metal-promoted zeolite SCR catalysts in the ’107 Patent
were already known in the art as evidenced by Speronello and perform their
known function. (JMI Reb. Br. 18.) JMI contends that nothing in the claims
of the ’107 Patent requires an amount of particulate removal, filtration
efficiency and back pressure. (JMI Reb. Br. 18.) JMI contends that the
experiments conducted by Dr. Patchett are irrelevant because the
experiments only involved a platinum catalyst, and in view of the prior art
teachings of metal-promoted zeolite catalysts, the experiments fail to
establish anything unexpected. (JMI Reb. Br. 19.)
We agree with JMI that the results presented in Example 4 of the ’107
Patent are not commensurate in scope with the claims. That is, the claims
are directed to a “catalyst article” including a zeolite and a base metal
component, which according to independent claim 1, permeates the walls of
the wall flow monolith at a loading up to 2.4 g/in3, in independent claim 18,
permeates the walls of the wall flow monolith at a concentration of at least
1.3 g/in3, and in claim 21, the amount of loading is such that the catalyst
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composition is “effective to convert a NOx component to nitrogen through
selective catalytic reduction with ammonia.” However, in Example 4, the
catalyst loadings are 2.1 g/in3 for the wall-flow monolith (A1), and 2.0 g/in3
for the flow-through substrate (D1). (Col. 12, ll. 36–50, col. 15, Table 1.)
Thus, the results in Example 4 are not commensurate in scope with the
claims, because the catalyst loadings recited in the claims comprise a broad
range (claim 1) and are open ended (claims 18, 21), while the examples are
only directed to one loading at the higher end of the claimed range.
In addition, while providing evidence that a zeolite/base metal catalyst
composition has different results depending on the substrate on which it is
disposed, Example 4 does not provide sufficient evidence to support Patent
Owner’s position that the results in Example 4 of the ’107 Patent are
surprising and unexpected. Specifically, although the comparison of total
particulate removal percentage between the flow-through and wall-flow
monoliths arguably reflects a comparison between Speronello as the closest
prior art, such a comparison does not demonstrate unexpected results, as
other evidence on this record presented by Patent Owner indicates that one
of ordinary skill in the art would not have expected that the total particulate
removal percentage would be high in a flow through monolith because the
flow through monolith is not used to capture particulates. (Dettling ’744
Decl. ¶¶ 21, 23.22) Accordingly, we are not persuaded by Patent Owner’s
position that because Speronello is limited to a catalyst on a flow-through
monolith, integrated NOx removal, particulate removal, filtration efficiency
and acceptable back pressure maintenance are evidence of unexpected

22 See Dettling ’894 Decl. ¶¶ 22, 24.
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results. (’744 Resp’t Br. 13–14.) Thus, while we attribute some weight to
the opinions of Patent Owner’s declarants as outlined above as to the
surprising and unexpected nature of the sustained particulate removal
efficiency of the wall-flow monoliths containing an SCR catalyst falling
within the scope of the claim, such opinions are unconvincing when
considered in light of the scope of the claims, the underlying evidence relied
on in support thereof, and the teachings of the prior art discussed above.
Regarding the results presented in the Patchett Declaration (Patchett
’744 Decl. ¶¶ 13–1623), we agree with JMI that testing platinum alumina
catalysts disclosed in Ohno ’351 provides little information as to any
unexpected results with respect to the zeolite and base metal and the ability
to act as SCR catalysts in a wall flow monolith, as according to Patent
Owner, the catalysts disclosed by Ohno ’351 are oxidation catalysts.
(Farrauto Decl. ¶ 21.)

Industry Recognition and Praise
Patent Owner argues further that the ’107 has received recognition
and praise in the form of the 2011 Thomas Alva Edison Patent Award in the
environmental category. (’744 Resp’t Br. 14; Patchett ’744 Decl. ¶ 23.24)
However, we have not been directed to sufficient evidence to relate the
Award to the specific catalyst article recited in the claims.

23 See Patchett ’894 Decl. ¶¶ 12–15.
24 See Patchett ’894 Decl. ¶ 27.
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Obviousness Conclusion
Accordingly, after weighing both the evidence in favor of obviousness
and the evidence against obviousness of the subject matter of the claims as
discussed above, we find that the evidence in favor of obviousness
outweighs the evidence against obviousness, particularly in view of the
disclosure in Speronello of the SCR catalyst compositions recited in the
claims and the express suggestion in Ohno ’351 to employ SCR catalysts in
wall flow monoliths.
As a result, we reverse the Examiner’s decision not to reject claims 1,
3–21, 23–34, 36 and 37 and set forth a new rejection for these claims as
obvious over Ohno and Speronello for the reasons discussed above. For the
dependent claims, we refer to JMI’s discussion of how the limitations of
those claim would be met in JMI’s Request for Reexamination, pages 9–32.
(See JMI App. Br. 9.)

Remaining Proposed Rejections
Because the combination of Ohno and Speronello is sufficient to
address all of the claims appealed, we find it unnecessary to reach the
remaining rejections advanced in JMI’s appeal.

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HTAS’s Appeal in the ’894 Reexamination
Ohno ’529 in view of Speronello
DISCUSSION
HTAS contends that the combination of Ohno ’529 (the English
equivalent of Ohno ’351, see FN 12) and Speronello would have rendered
claims 21, 24–26, 33, 34, and 36 obvious. (HTAS App. Br. 19–25.)
The Examiner did not adopt the rejection for similar reasons as
discussed above with respect to the ’744 Reexamination. (RAN 22–23.)
Patent Owner contends that the Examiner was correct for similar
reasons as discussed above in the ’744 Reexamination. (’894 Resp’t Br. 8–
12.)
For the reasons discussed above, we reverse the Examiner’s decision
to reject claims 21, 24–26, 33, 34, and 36 and enter a new ground of
rejection of these claims based on Ohno ’529 in view of Speronello. For the
dependent claims, we refer to HTAS’s discussion of how the limitations of
those claim would be met in HTAS’s Request for Reexamination, pages 20–
24. (See HTAS App. Br. 20.) In addition, because we are aware that Ohno
’529 teaches porosities falling within the range disclosed in claim 37 (see
Request for Reexamination in the ’894 reexamination filed by HTAS 21),
we enter a new ground of rejection for claim 37 as obvious over Ohno ’529
in view of Speronello.

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Remaining Proposed Rejections
Because the combination of Ohno and Speronello is sufficient to
address all of the claims appealed, we find it unnecessary to reach the
remaining rejections advanced in HTAS’s appeal.

DECISION
The Examiner’s decision refusing to reject claims 1, 3–21, 23–34, 36,
and 37 is reversed.

TIME PERIOD FOR RESPONSE
This decision contains new grounds of rejection pursuant to 37 C.F.R.
§ 41.77(b) which provides that “[a]ny decision which includes a new ground
of rejection pursuant to this paragraph shall not be considered final for
judicial review.” Correspondingly, no portion of the decision is final for
purposes of judicial review. A requester may also request rehearing under
37 C.F.R. § 41.79, if appropriate, however, the Board may elect to defer
issuing any decision on such request for rehearing until such time that a final
decision on appeal has been issued by the Board. For further guidance on
new grounds of rejection, see 37 C.F.R. § 41.77(b)–(g). The decision may
become final after it has returned to the Board. 37 C.F.R. § 41.77(f).
Section 41.77(b) of Title 37 of the Code of Federal Regulations also
provides that the Owner, WITHIN ONE MONTH FROM THE DATE OF
THE DECISION, must exercise one of the following two options with
respect to the new grounds of rejection to avoid termination of the appeal as
to the rejected claims:
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(1) Reopen prosecution. The owner may file a response
requesting reopening of prosecution before the examiner.
Such a response must be either an amendment of the claims
so rejected or new evidence relating to the claims so
rejected, or both.

(2) Request rehearing. The owner may request that the
proceeding be reheard under § 41.79 by the Board upon the
same record . . . .

Any request to reopen prosecution before the examiner under 37
C.F.R. § 41.77(b)(1) shall be limited in scope to the “claims so rejected.”
Accordingly, a request to reopen prosecution is limited to issues raised by
the new ground(s) of rejection entered by the Board. A request to reopen
prosecution that includes issues other than those raised by the new ground(s)
is unlikely to be granted. Furthermore, should the Owner seek to substitute
claims, there is a presumption that only one substitute claim would be
needed to replace a cancelled claim.
A requester may file comments in reply to Owner response. 37 C.F.R.
§ 41.77(c). Requester comments under 37 C.F.R. § 41.77(c) shall be limited
in scope to the issues raised by the Board’s opinion reflecting its decision to
reject the claims and the Owner's response under paragraph 37 C.F.R.
§ 41.77(b)(1). A newly proposed rejection is not permitted as a matter of
right. A newly proposed rejection may be appropriate if it is presented to
address an amendment and/or new evidence properly submitted by the
Owner, and is presented with a brief explanation as to why the newly
proposed rejection is now necessary and why it could not have been
presented earlier.
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Compliance with the page limits pursuant to 37 C.F.R. § 1.943(b), for
all Owner responses and requester comments, is required.
The Examiner, after the Board’s entry of Owner response and
Requester comments, will issue a determination under 37 C.F.R. § 41.77(d)
as to whether the Board’s rejection is maintained or has been overcome.
The proceeding will then be returned to the Board together with any
comments and reply submitted by the Owner and/or Requester under 37
C.F.R. § 41.77(e) for reconsideration and issuance of a new decision by the
Board as provided by 37 C.F.R. § 41.77(f).
Requests for extensions of time in this inter partes reexamination
proceeding are governed by 37 C.F.R. § 1.956. See 37 C.F.R. § 41.77(g).

REVERSED; 37 C.F.R. § 41.77(b)

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PATENT OWNER:
WOMBLE CARLYLE SANDRIDGE & RICE, LLP
ATTN: IP Docketing
P.O. Box 7037
Atlanta, GA 30357-7037

THIRD-PARTY REQUESTER:
FITZAPATRICK, CELLA, HARPER & SCINTO
1290 Avenue of The Americas
New York, NY 10104-3800

Stephen A. Soffen
DICKSTEIN SHAPIRO LLP
1825 Eye Street, NW
Washington, DC 20006-5403