Ex Parte McKENNADownload PDFPatent Trial and Appeal BoardJan 27, 201613456374 (P.T.A.B. Jan. 27, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/456,374 94591 7590 Johnson Matthey Inc, 435 Devon Park Dr. Suite 600 04/26/2012 01/29/2016 Wayne, PA 19087-1998 FIRST NAMED INVENTOR FIONA-MAIREAD McKENNA 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 ATTORNEY DOCKET NO. CONFIRMATION NO. WYN/70081US1/KC 5386 EXAMINER SOLIMAN, HAYTHAM ART UNIT PAPER NUMBER 1736 NOTIFICATION DATE DELIVERY MODE 01129/2016 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): J ohnsonMatthey IP@matthey.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte FIONA-MAIREAD MCKENNA Appeal2014-004385 Application 13/456,374 Technology Center 1700 Before ROMULO H. DELMENDO, CHRISTOPHER L. OGDEN, and JULIA HEANEY, Administrative Patent Judges. HEANEY, Administrative Patent Judge. DECISION ON APPEAL Appellant 1 seeks our review pursuant to 35 U.S.C. § 134(a) of a decision of the Examiner to reject claims 1-12 of Application 13/456,374 under 35 U.S.C. § 103(a). We have jurisdiction under 35 U.S.C. § 6(b). We affirm. 1 Appellant identifies the Real Party in Interest as Johnson Matthey Public Limited Company. Br. 1. Appeal2014-004385 Application 13/456,374 BACKGROUND The subject matter on appeal relates to a NOx trap composition. Br. 1. The composition comprises a platinum group metal, barium, and cobalt, supported on a magnesia-alumina support. Representative claim 1 is reproduced from the Claims Appendix of the Appeal Brief as follows: 1. A NOx trap composition comprising a platinum group metal, barium, cobalt, and a magnesia-alumina support, wherein the platinum group metal, barium, and cobalt are supported on the magnesia-alumina support. THE REJECTIONS Claims 1-10 stand rejected under 35 U.S.C. § 103(a) as unpatentable over the combination of Lauterbach2 and Ruwisch. 3 Claims 11 and 12 stand rejected under 35 U.S.C. § 103(a) as unpatentable over the combination of Lauterbach, Ruwisch, and Kupe. 4 On pages 7-9 of the Answer, the Examiner withdrew a rejection under 35 U.S.C. § 103(a) of claims 1-8 as unpatentable over Lauterbach in view of Erickson. 5 DISCUSSION Appellant does not present separate arguments specifically directed to the dependent claims under rejection. Br. 9-12. Nor does Appellant present a substantively distinct argument as to independent claim 11. Therefore, we 2 US 7,811,536 B2, issued October 12, 2010 (hereinafter "Lauterbach"). 3 US 2003/0125202 Al, published July 3, 2003 (hereinafter "Ruwisch"). 4 US 7,584,603 B2, issued September 8, 2009 (hereinafter "Kupe"). 5 US 2,992,191 issued July 11, 1961. 2 Appeal2014-004385 Application 13/456,374 need only address independent claim 1. We sustain the rejections for the reasons given by the Examiner in the Answer with the following comments added for emphasis. Appellant argues that the rejection did not provide a sufficient rationale for combining the Mg/Al mixed oxide catalyst ofRuwisch with the Pt-Ba-Co/alumina catalyst described in Lauterbach, to produce the claimed invention. Br. 6-9. Specifically, Appellant asserts that Ruwisch teaches a NOx storage catalyst having an Mg/ Al oxide component as a separate component from a Ba/Ce-Zr mixed oxide component. Id. In other words, "Ruwisch does not teach that the platinum group metal and barium (let alone cobalt) are all supported on the magnesia-alumina support, as required by the currently claimed invention." Id. at 8. In response, the Examiner states that the rejection did not rely on Ruwisch for teaching a catalyst; rather, "Ruwisch is relied upon solely for the Mg/ Al mixed oxide support because of their thermal stability (i-f 39 of Ruwisch)." Ans. l 0. The Examiner further finds that a person of ordinary skill in the art would understand that the benefit of thermal stability provided by a Mg/ Al mixed oxide support, would also be beneficial in the one component catalyst of Lauterbach. Id. 10-11. Because Appellant does not offer any technical reasoning or evidence to the contrary, we do not discern harmful error in this analysis. See e.g. In re Keller, 642 F.2d 413, 425 ( CCP A 1981) (obviousness focuses on what the combined references would have suggested to a person of ordinary skill, not whether their specific structures can be combined). Appellant further argues unexpected results, i.e., "there is nothing in a combination of Lauterbach and Ruwisch that would lead one to expect that the PGM/Ba/Co/magnesia-alumina compound of the invention (Catalyst IA) 3 Appeal2014-004385 Application 13/456,374 would have higher NOx storage" than comparative catalysts, as shown in Table 1 of the Specification. Br. 9. The burden of showing unexpected results rests on the person who asserts them by establishing that the difference between the claimed invention and the closest prior art was an unexpected difference. See In re Baxter Travenol Labs., 952 F.2d 388, 392 (Fed. Cir. 1991). Further, a showing of unexpected results supported by factual evidence must be reasonably commensurate in scope with the degree of protection sought by the claims on appeal. In re Grasselli, 713 F .2d 731, 743 (Fed. Cir. 1983). As the Examiner correctly finds, the sole inventive example presented in Table 1, Catalyst IA, is limited to a particular composition, whereas claim 1 is open to any amount of the claimed components. Ans. 11; Specification 9. Thus, the evidence Appellant presents in support of unexpected results is not commensurate with the scope of the claims, and does not overcome the determination of obviousness. SU1\11\1AR Y We affirm the rejection of claims 1-12. 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 KRH 4 Copy with citationCopy as parenthetical citation