10947019 (B.P.A.I. Feb. 5, 2009)

Ex Parte Minhas et al

Board of Patent Appeals and InterferencesFeb 5, 2009

10947019 (B.P.A.I. Feb. 5, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ____________ Ex parte BHUPENDER S. MINHAS, DENNIS G. PEIFFER and DAVID C. DALRYMPLE ____________ Appeal 2008-6067 Application 10/947,019 Technology Center 1700 ____________ Decided:1 February 6, 2009 ____________ Before EDWARD C. KIMLIN, ADRIENE LEPIANE HANLON, and LINDA M. GAUDETTE, Administrative Patent Judges. KIMLIN, Administrative Patent Judge. DECISION ON APPEAL This is an appeal from the final rejection of claims 1, 2, and 4. Claim 1 is illustrative: 1 The two-month time period for filing an appeal or commencing a civil action, as recited in 37 CFR § 1.304, begins to run from the decided date shown on this page of the decision. The time period does not run from the Mail Date (paper delivery) or Notification Date (electronic delivery). Appeal 2008-6067 Application 10/947,019 1. A method for recovering acid from a feed mixture comprising acid, hydrocarbons, and water, the method comprising: performing one or more acid-hydrocarbon separation processes on a feed mixture that comprises from about 70 to about 98 percent by weight acid, the one or more acid-hydrocarbon separation processes consisting essentially of processing said feed mixture via a solution-diffusion mechanism using a crosslinked polymeric membrane to form a first retentate containing a substantially greater concentration of hydrocarbons than said feed mixture and a first permeate product containing a greater concentration of acid than said feed mixture, said polymeric membrane being selectively permeable to the acid over the hydrocarbons in the feed mixture and further characterized as having a crosslinking density from about 1.0% to about 25.0%. The Examiner relies upon the following references as evidence of obviousness: Lane 2,276,210 Mar. 10, 1942 Cole 3,963,567 Jun. 15, 1976 Linder 4,767,645 Aug. 30, 1988 Kozak 6,183,648 B1 Feb. 6, 2001 Appellants’ claimed invention is directed to a method for recovering acid from a feed mixture comprising hydrocarbons, water and the acid. The feed mixture comprises from about 70 to about 98% by weight acid. A crosslinked polymeric membrane having a crosslinking density from about 1.0% to about 25.0% is used to produce a permeate containing a greater concentration of acid than the feed mixture. The membrane may be a crosslinked polyvinyl alcohol (PVA). Appealed claims 1, 2 and 4 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Kozak in view of Lane. Appellants do not present an argument that is reasonably specific to any particular claim on appeal. Accordingly, all the appealed claims stand or fall together with claim 1. 2 Appeal 2008-6067 Application 10/947,019 We have thoroughly reviewed each of Appellants’ arguments for patentability, as well as the declaration evidence relied upon in support thereof. However, we are in complete agreement with the Examiner that the claimed subject matter would have been obvious to one of ordinary skill in the art within the meaning of §103 in view of the applied prior art. Accordingly, we will sustain the Examiner’s rejection for essentially those reasons expressed in the Answer, and we add the following primarily for emphasis. Appellants do not dispute the Examiner’s factual determination that Kozak, like Appellants, discloses a process for recovering sulfuric acid from a process of sulfonating alkyl naphthalene’s by using a membrane of crosslinked polyvinyl alcohol to produce a permeate containing the acid and a retentate containing hydrocarbon compounds. While Kozak, as urged by Appellants, does not expressly disclose a feed mixture comprising 70-98% by weight acid, Kozak teaches that the particular separation membrane used must be selected with regard to the acidity of the aqueous solution being separated (col. 7, ll. 48-50). In particular, Kozak incorporates by reference Linder ‘645 for the disclosure of typical membranes used in the separation process. As pointed out by the Examiner, Linder discloses polyvinyl alcohol membranes crosslinked with isocyanates (col. 5, ll. 55-56 and col. 11, ll. 10 and 15). Consequently, since Appellants’ Specification discloses that a preferred membrane is polyvinyl alcohol crosslinked with isocyanates, it is reasonable to conclude that separation membranes used by Kozak, like Appellants’ membrane, are inherently capable of processing a feed mixture comprising 70-98% by weight acid. We note that membranes within the scope of the appealed claims may have a crosslinking density of as little as 3 Appeal 2008-6067 Application 10/947,019 1.0%. Also, we agree with the Examiner that Lane evidences that it was known in the art to employ separation membranes that can withstand acidic concentrations of sulfuric acid of 80% concentration and higher (page 2, col. 2, ll. 55 et seq.). Accordingly, we fully concur with the Examiner that it would have been obvious for one of ordinary skill in the art to select a crosslinked polyvinyl alcohol membrane to separate an acid from a feed mixture having an acid concentration within the claimed range. Appellants submit that “as stated in the First Declaration by Dennis Peiffer, one of the inventors of the claimed invention, the membranes described in the Linder references would not withstand the acid environment of the claimed invention” (sentence bridging pages 14-15 of App. Br.). In particular, paragraph 5 of the Declaration reads as follows: Based on my review of the Linder patents, the membranes described in the Linder patents are not compatible for use in an environment with a sulfuric acid concentration of 70 wt % or higher. Based on the description in the Linder patents of how the membranes are formed, the membranes described in the Linder patents would lose their structural integrity in the presence of sulfuric acid at a concentration of 70 wt % or greater. We agree with the Examiner that the Declaration is of little probative value inasmuch as it amounts to no more than an opinion devoid of factual support. The Declarant offers no explanation why a polyvinyl alcohol membrane crosslinked with an isocyanate, as disclosed in Linder ‘645, would lose its structural integrity in the presence of sulfuric acid at a concentration of 70 wt % or greater. Since Appellants’ very own Specification teaches that a polyvinyl alcohol membrane crosslinked with an isocyanate to a crosslinking density of as little as about 1.0% can withstand 4 Appeal 2008-6067 Application 10/947,019 sulfuric acid concentrations of 70 wt % or greater, it is reasonable to conclude that isocyanate-crosslinked polyvinyl alcohol membranes of Kozak/Linder would also maintain their structural integrity in the presence of such sulfuric acid concentrations. Objective evidence to the contrary, not mere opinion by a present inventor, is required to rebut the reasonable presumption. In re Spada, 911 F.2d, 705, 708 (Fed. Cir. 1990); In re Best, 562 F.2d, 1252, 1255 (CCPA 1977). Appellants also maintain that since Linder discloses composite membranes, “the Linder membranes have a fundamentally different structure than the membranes of the claimed invention” (App. Br. 16, last paragraph). However, as set forth by the Examiner, this argument is not commensurate in scope with the degree of protection sought by the appealed claims. Not only do the appealed claims encompass composite membranes, but Appellants’ Specification specifically teaches that “[t]o help the membrane maintain its physical integrity, a composite membrane may be used” ([0025]). Manifestly, Appellants contemplate including composite membranes within the scope of the appealed claims. In conclusion, based on the foregoing and the reasons well stated by the Examiner, it is our judgment that the evidence of obviousness presented by the Examiner outweighs the evidence of nonobviousness proffered by Appellants. Accordingly, we will sustain the Examiner’s rejection. 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 5 Appeal 2008-6067 Application 10/947,019 tc EXXONMOBILE RESEARCH & ENGINEERING COMPANY P.O. 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