Ex Parte MOREL et al

Patent Trials and Appeals Board

Jun 26, 2019

14974313 - (D) (P.T.A.B. Jun. 26, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/974,313 12/18/2015
23599 7590 06/28/2019
MILLEN, WHITE, ZELANO & BRANIGAN, P.C.
2200 CLARENDON BL VD.
SUITE 1400
ARLINGTON, VA 22201
Frederic MOREL
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.
PET-3059 5108
EXAMINER
BOYER, RANDY
ART UNIT PAPER NUMBER
1771
NOTIFICATION DATE DELIVERY MODE
06/28/2019 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):
docketing@mwzb.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte FREDERIC MOREL and JACINTHE FRECON
Appeal2018-005450
Application 14/974,313
Technology Center 1700
Before N. WHITNEY WILSON, BRIAND. RANGE, and
MERRELL C. CASHION, JR., Administrative Patent Judges.
WILSON, Administrative Patent Judge.
DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner's
May 26, 2017 decision finally rejecting claims 1, 3, and 7-12 ("Final Act.").
We have jurisdiction over the appeal under 35 U.S.C. § 6(b).
We affirm-in-part.
1 Appellant is the Applicant - AXENS - which is also identified as the
real party in interest (Appeal Br. 1 ).
Appeal2018-005450
Application 14/974,313
CLAIMED SUBJECT MATTER
Appellant's disclosure is directed a process for the intense conversion
of a heavy hydrocarbon feed (Abstract). The process includes the following
steps: (1) ebullated bed hydroconversion of the initial feedstock;
(2) separating at least a portion of the hydroconverted liquid effluent from
step (1 ); (3) hydrocracking at least a portion of the vacuum gas oil fraction
from step (2); (4) fractionating at least a portion of the effluent from step (3);
and ( 5) recycling at least a portion of the unconverted vacuum gas oil
fraction from step ( 4) to the first hydrocarbon conversion step ( 1 ). Details of
the claimed invention are set forth in claim 1, which is reproduced below
from the Claims Appendix of the Appeal Brief:
1. A process for the intense conversion of a heavy hydrocarbon
feed, comprising the following steps:
a) a first step for ebullated bed hydroconversion of the
feed in the presence of hydrogen, comprising at least one
three-phase reactor containing at least one ebullated bed
hydroconversion catalyst;
b) a step for separating at least a portion of a
hydroconverted liquid effluent obtained from step a) into a
fraction comprising a gasoline cut and a gas oil cut, a vacuum
gas oil fraction and an unconverted residual fraction;
c) a step for hydrocracking at least a portion of the
vacuum gas oil fraction obtained from step b) in a reactor
comprising at least one fixed bed hydrocracking catalyst;
d) a step for fractionating at least a portion of an effluent
obtained from step c) into a gasoline fraction, a gas oil fraction
and an unconverted vacuum gas oil fraction;
e) a step for recycling at least a portion of the
unconverted vacuum gas oil fraction obtained from step d) to
said first hydroconversion step a)
wherein at least a portion of the unconverted residual
fraction obtained from step b) is sent to a deasphalting section
where it is treated in an extraction step using a solvent under
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Application 14/974,313
conditions for obtaining a deasphalted hydrocarbon cut and
pitch;
wherein said deasphalted hydrocarbon cut is sent to a
second hydroconversion step in the presence of hydrogen and at
least one ebullated bed hydroconversion catalyst,
wherein the effluent obtained from the second
hydroconversion step undergoes a separation step f) in order to
produce at least one fraction comprising a gasoline cut and a
gas oil cut, a vacuum gas oil fraction and a unconverted residual
fraction, and
wherein the vacuum gas oil fraction obtained from the
separation step f) is sent to the hydrocracking step c) as a
mixture with the vacuum gas oil fraction obtained from step b)
and optionally with a straight run vacuum gas oil fraction.
REJECTIONS
1. Claim 10 is rejected under 35 U.S.C. § 112(b) as being
indefinite because the term "the extractor" lacks antecedent basis. 2, 3
2. Claims 1, 3, 7-9, 11, and 12 are rejected under
35 U.S.C. § 103 4 as unpatentable over Lenglet. 5
2 In the Final Action, claim 7 was also rejected under § 112(b) because the
phrase "the deasphalting step" lacked antecedent basis. This rejection was
withdrawn in view of an Amendment After Final, which was entered by the
Examiner as set forth in the Advisory Action dated August 15, 2017.
3 We consider the Examiner's rejection of claim 10 under § 112(b) because
the Examiner did not expressly withdraw this rejection. See 37 C.F.R. §
4I.39(a)(l).
4 In the Final Action, this rejection was stated to be an anticipation rejection
under 35 U.S.C. § I02(a)(l) (Final Act. 4). However, the explanation of the
rejection made it apparent that the basis for the rejection was obviousness
under § 103. This was clarified and confirmed in the Examiner's Answer
(Ans. 4).
5 Lenglet et al., US 2008/0011643 Al, published January 17, 2008.
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Application 14/974,313
3. Claim 10 was rejected under 35 U.S.C. § 103 as unpatentable
over Lenglet in view of Beavon. 6
DISCUSSION
Rejection 1. Appellant states that the rejection of claim 10 as lacking
antecedent basis for the term "the extractor" should be withdrawn in view of
an amendment filed with the Appeal Brief (Appeal Br. 3). While it appears
that the proposed amendment would obviate the rejection, we are not
authorized to enter the amendment. 37 C.F.R. § 4I.33(b). If prosecution is
resumed, Appellant can resubmit the amendment for consideration by the
Examiner. However, at the present time, we summarily affirm the rejection
of claim 10 under § 112(b) because Appellant does not identify error in the
rejection.
Rejection 2. The Examiner finds that Lenglet discloses each of the
elements of claim 1, except that Lenglet does not disclose step (f):
Lenglet does not explicitly disclose wherein the effluent from
the second hydroconversion step undergoes separation to
produce gasoline, gas oil, vacuum gas oil, and unconverted
residual fractions; with the vacuum gas oil fraction being sent
to the hydrocracking step ( c) in admixture with the vacuum gas
oil fraction from step (b ).
(Final Act. 4--5, citing Lenglet ,r,r 25, 195-197, 208,212,213,216, and 236).
The Examiner further finds that Lenglet discloses that hydroconverted
effluents include gas oil and kerosene fractions that may be mixed with other
fractions such as naptha, kerosene, gas oil, and vacuum distillate (Final Act.
5, citing Lenglet ,r 231 ). The Examiner further finds that this disclosure
implies a separation step of the effluent to produce these separate fractions
6 Beavon, US 2,847,353, issued August 12, 1958.
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Application 14/974,313
(Final Act. 5). The Examiner also finds that Lenglet notes that gasoline may
be obtained by reforming or hydroisomerization of the naptha fraction, and
that the kerosene and gas oil fractions may be treated by hydrocracking
(Final Act. 5, citing Lenglet ,r,r 233-234).
Based on the foregoing, the Examiner determines that it would have
been obvious to send the vacuum gas oil fraction separated from the second
hydroconversion step effluent to the hydrocracking step ( c) in admixture
with the vacuum gas oil fraction from step (b) because doing so would
provide cost savings by eliminating the need to have a separate
hydrocracking unit to process the same class of feed (vacuum gas oil) (Final
Act. 5-6).
Appellant's first argument is that Lenglet does not disclose the use of
a "heavy hydrocarbon feed" because Lenglet is directed to optimizing the
use of gas in pre-refining crude oil and increasing the quantity of high cetane
index gas oil bases (Appeal Br. 4). This argument is not persuasive because,
as found by the Examiner (Ans. 6-7), Lenglet is directed to "treatment of a
crude oil or of a hydrocarbon feed comprising a refinery residue" (internal
quotation marks, citation, and emphasis omitted), and Appellant's
Specification recites that it "relates to the field of the production of gas oil
starting from oil residues" (Spec. 1 ). Appellant does not challenge this
finding and, therefore, does not show reversible error in it.
Appellant next characterizes the claimed process as follows:
[T]he claims require a combination of two intertwined
circulation paths for [the vacuum gas oil fraction] VGO:
A. a heavy hydrocarbon feed is hydroconverted ( step
a), and a VGO cut is separated (step b), hydrocracked (step c)
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with further separation of a VGO cut (step d), said VGO cut
being recycled to step a (step f).
B. the unconverted residues from step bis
deasphalted, hydroconverted, then separated to produce a VGO
cut, said VGO cut being recycled to hydrocracking step c.
(Appeal Br. 4). Appellant contends that while "Lenglet may teach a
VGO cut recycle that appear[ s] similar to path A," it does not teach or
suggest anything which corresponds to path B (Appeal Br. 5).
According to Appellant,
[ u] sing the teachings from Lenglet, one of ordinary skill in the
art would have no reason to arrive at a process in which a
stream of unconverted VGO would be recycled to the inlet of
the hydrotreatment step (a), whereas the stream of produced
VGO (f) is recycled to the inlet ofhydrocracking step (c).
(Appeal Br. 5).
In response to this argument, the Examiner finds that:
inasmuch as Lenglet provides that: (1) "[ o ]ther fractions can
also be hydro treated in unit 200 such as [ ... ] vacuum gas oil
(VGO) supplied via line 11" (see Lenglet, paragraph [0210]);
and (2) "the hydrocracking effluents (unit 300, in particular of
the M-HDK, MP-HDK or HDK type, preferably single pass,
usually with moderate conversion between 30% and 60% by
weight) can be evacuated without fractionation of the
hydrocracking effluent ( or {with! fractionation of only a portion
of the unconverted vacuum gas oil, to recycle it)" (see Lenglet,
paragraph [0236]) ( emphases added), then Examiner submits
that there is sufficient suggestion to the person having ordinary
skill in the art to recycle the VGO fractions to either or both of
the hydroconversion (hydrotreatment) and hydrocracking steps
as market conditions may dictate for the specific product(s)
desired.
(Ans. 8).
While Lenglet does state that some of the VOG may be recycled, we
agree with Appellant (Appeal Br. 4--5; Reply Br. 1-2) that Lenglet does not
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teach the two intertwined circulation paths set forth by the claims on appeal.
Although, as correctly pointed out by the Examiner, a person of skill in the
art is not an automaton, we agree with Appellant that the passage of Lenglet
cited by the Examiner as supporting the dual-recycling path (Lenglet ,r 236)
does not describe, or necessarily even suggest the use of two separate
recycling paths in a single process.
The Examiner has the initial burden of establishing a prima facie case
of obviousness based on an inherent or explicit disclosure of the claimed
subject matter under 35 U.S.C. § 103. In re Oetiker, 977 F.2d 1443, 1445
(Fed. Cir. 1992) ("[T]he examiner bears the initial burden, on review of the
prior art or on any other ground, of presenting a prim a f acie case of
unpatentability."). To establish a prima facie case of obviousness, the
Examiner must show that each and every limitation of the claim is described
or suggested by the prior art or would have been obvious based on the
knowledge of those of ordinary skill in the art. In re Fine, 83 7 F .2d 1071,
1074 (Fed. Cir. 1988). In this instance, the evidence of record does not
adequately establish that the cited art would have made obvious the two
intertwined circulation paths for VGO and two separate and distinct recycles
as set forth in the claims. Accordingly, we reverse Rejection 2. We reverse
Rejection 3 for the same reasons.
CONCLUSION
We AFFIRM the rejection of claim 10 under 35 U.S.C. § 112(b) as
being indefinite because the term "the extractor" lacks antecedent basis.
We REVERSE the rejection of claims 1, 3, 7-9, 11, and 12 under
35 U.S.C. § 103 as unpatentable over Lenglet.
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We REVERSE the rejection of claim 10 under 35 U.S.C. § 103 as
unpatentable over Lenglet in view of Beavon.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED-IN-PART
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