Ex Parte De Rezende Pinho et al

Board of Patent Appeals and Interferences

May 24, 2012

10480966 (B.P.A.I. May. 24, 2012)

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.
10/480,966 06/03/2004 Andrea De Rezende Pinho APB2880-FCC 9029
56744 7590 05/25/2012
Albemarle Netherlands B.V.
Patent and Trademark Department
451 Florida Street
Baton Rouge, LA 70801
EXAMINER
SINGH, PREM C
ART UNIT PAPER NUMBER
1771
MAIL DATE DELIVERY MODE
05/25/2012 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte ANDREA DE REZENDE PINHO, EDISSON
MORGADO JUNIOR, MARLON BRANDO DE ALMEIDA,
PAUL O'CONNOR, and PIETER IMHOF
____________________

Appeal 2010-007964
Application 10/480,966
Technology Center 1700
____________________

Before CATHERINE Q. TIMM, MICHAEL P. COLAIANNI, and
GEORGE C. BEST, Administrative Patent Judges.

TIMM, Administrative Patent Judge.

DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134 from the Examiner’s
decision to reject claims 1-3, 5, 6, and 8-13 under 35 U.S.C. § 103(a) as
obvious over Morgado1 in view of Bourgogne2. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.

1 Morgado et al., BR: PI 9704925-5A, pub. May 11, 1999.
2 Bourgogne et al., US 5,660,716, patented Aug. 26, 1997.
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Application 10/480,966

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The claims are directed to a process for fluid catalytic cracking (FCC)
of hydrocarbon feeds in a downflow reactor using a specified cracking
catalyst (Spec. 1:14-15). Appellants do not argue any claim apart from the
others (Br. 8-9). We select claim 1 as representative for deciding the issues
on appeal. Claim 1 reads as follows:
1. A process for the fluid catalytic cracking of hydrocarbons
comprising the following steps:
a) atomizing and injecting a hydrocarbon feedstock into
the top portion of a tubular downflow reactor and contacting
this hydrocarbon feedstock with a catalyst having an AAI of at
least 3.5,
b) separating reaction products and spent catalyst at the
bottom of said downflow reactor,
c) treating the spent catalyst with steam,
d) regenerating the spent catalyst in a regeneration zone,
and
e) recycling the regenerated catalyst to the downflow
reactor;
wherein the catalyst comprises 10-60 wt. % of a solid
acid, 0-50% wt. % of alumina, 0-40% wt. % of silica, and the
balance kaolin.
(Claims App. at Br. A-1.)
Appellants use a catalyst having an AAI of at least 3.5 in their FCC
process. According to the Specification, “[t]he AAI is a measure of the
accessibility of the catalyst pores to large, often high-molecular weight
compounds” (Spec. 4:8-9). “The higher the AAI value, the more accessible
the catalyst pores are.” (Spec. 4:19.) The Specification states that
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“[s]uitable methods for the preparation of such highly accessible catalysts
include the methods disclosed in Brazilian patent publication BR PI
9704925-5A” (Spec. 7:1-2). The Brazilian patent publication referenced by
the Specification is Morgado, the primary reference applied by the Examiner
to reject the claims.
In FCC processes using downflow reactors, the catalyst and the
hydrocarbon feed flow downward (Spec. 1:20-22). However, according the
Specification, while downflow reactors were known in the art, upflow or
riser reactors where the catalyst and the hydrocarbon flow upward were
more typically used. (Spec. 1:19-20.)
There is no dispute that Morgado describes a known catalyst for FCC
with the composition and AAI recited in claim 1, and that Bourgogne
describes a downflow fluidized bed for such FCC processes. Appellants’
own Specification indicates as much (see, e.g., Spec. 2:24-26 discussing US
5,660,716 (Bourgogne); Spec. 7:1-4 discussing BR PI 9704925-5A
(Morgado)).
While we agree with Appellants that Morgado does not describe using
the catalyst of that reference in a downflow reactor, we cannot say that this
fact negates the other facts found by the Examiner establishing that it would
have been obvious to one of ordinary skill in the art to have used the known
FCC catalyst of Morgado in a known downflow reactor such as that taught
by Bourgogne. The combination would have been merely the use of a
known FCC catalyst in a known FCC process. One would have expected to
obtain the known benefits associated with the catalyst along with the known
benefits associated with the downflow reactor. “The combination of familiar
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elements according to known methods is likely to be obvious when it does
no more than yield predictable results.” KSR Int'l Co. v. Teleflex Inc., 550
U.S. 398, 416 (2007).
Appellants contend that the catalyst and reactor combination provides
synergistic, unexpected and superior results (Br. 8-9). Appellants point to
data discussed in Tables 2 and 4 of their Specification to support their
argument (id.).
Table 2 displays the results of a FCC process using a riser reactor and
a FCC process using a downflow reactor (Spec. 9:5-6 and 9:15-16). Both
reactors are run at constant coke production and with conventional catalyst
(id.). Table 2 shows that the downflow reactor results in improved
conversion levels, improved selectivity to C3 olefins, and improved
hydrogen selectivity, but that the downflow reactor results in worse bottoms
conversion (bottoms of 13.0 wt% vs. 11.6 wt% in riser reactor) (Br. 8; Spec.
9:15-20 and Table 2).
In contrast, according to Appellants, using Appellants’ catalyst having
an AAI of greater than 3.5 in a downflow reactor results in a significant
increase in bottoms conversion as shown in Table 4 (Br. 8-9). Table 4
reports results for two downflow processes, one using a catalyst with an AAI
of 6.0 and the other using a catalyst with AAI of 2.0. The AAI 6.0 catalyst
(E1D) has a better bottoms conversion (8.4 wt% bottoms) as compared to
the AAI 2.0 catalyst (14.7 wt% bottoms).
We agree with the Examiner, however, that the evidence as a whole
indicates that better bottoms conversion would have been expected rather
than unexpected (Ans. 10 and 12). “[A]ny superior property must be
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unexpected to be considered as evidence of non-obviousness.” Pfizer, Inc. v.
Apotex, Inc., 480 F.3d 1348, 1371 (Fed. Cir. 2007). As pointed out by the
Examiner, Morgado discloses that the controlled porosity of the higher AAI
catalyst provides greater accessibility of the reagent molecules to the active
components of the zeolite catalyst, and also facilitates the rapid diffusion of
the cracking products, thus avoiding over-cracking and the formation of
undesirable products such as coke (Ans. 10, Morgado, p. 4, ll. 15-22). The
ordinary artisan would have expected to obtain increased bottoms
conversion with Morgado’s catalyst because the larger molecules would
have better access to the active material in the catalyst. One would have
expected to obtain both the known benefits of the downflow reactor and the
known benefits of the catalyst when the two are used together.
Appellants do not offer any convincing evidence of what results
would have been expected by the combination, and, therefore, a comparison
of expected properties to the results reported in Table 4 is not possible.
Moreover, we note that Appellants’ assertion of unexpected results is
merely made in the Brief. There is no statement in the Specification that the
results are unexpected. Appellants’ assertion in the Brief is insufficient to
establish non-obviousness. See In re Mayne, 104 F.3d 1339, 1343-44 (Fed.
Circ. 1997) (noting that an unsupported assertion is insufficient to make a
showing that “the claimed invention exhibits some superior property or
advantage that a person of ordinary skill in the relevant art would find
surprising or unexpected.”); In re Geisler, 116 F.3d 1465, 1471 (Fed. Cir.
1997) (explaining that argument by counsel cannot take the place of
evidence).
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Therefore, Appellants have not met their burden of showing that the
results would have been so significantly better than what would have been
expected from the combination that the results would have been unexpected
by the ordinary artisan.
CONCLUSION
We sustain the Examiner’s rejection.
DECISION
The Examiner’s decision is affirmed.
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)(1).

AFFIRMED
cam