Ex Parte Vierheilig

Patent Trial and Appeal Board

Jan 27, 2016

11928978 (P.T.A.B. Jan. 27, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
111928,978
94591 7590
Johnson Matthey Inc,
435 Devon Park Dr.
Suite 600
10/30/2007
01/29/2016
Wayne, PA 19087-1998
FIRST NAMED INVENTOR
Albert A. VIERHEILIG
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.
CAT175US2 8067
EXAMINER
DA VIS, SHENG HAN
ART UNIT PAPER NUMBER
1732
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 PATENT TRIAL AND APPEAL BOARD
Ex parte ALBERT A. VIERHEILIG
Appeal2014-004855
Application 11/928,978
Technology Center 1700
Before CHUNG K. PAK, KAREN M. HASTINGS, and
CHRISTOPHER C. KENNEDY, Administrative Patent Judges.
HASTINGS, Administrative Patent Judge.
DECISION ON APPEAL
Appellant 1 appeals under 35 U.S.C. § 134 from the Examiner's
decision rejecting claims 1, 4---6, 14, 15, 17- 19, 20, and 21under35 U.S.C.
103(a) as being unpatentable over the basic combination of Markham (US
5,308,473, issued May 3, 1994) with Buchanan (US 5,547,648, issued Aug.
20, 1996) and Bhore (US 5,741,469, issued Apr. 21, 1998).2 We have
jurisdiction over the appeal pursuant to 35 U.S.C. § 6(b ).
We AFFIRM.
1 The Real Party in Interest is stated to be Intercat, Inc. (App. Br. 1 ).
2 The Examiner applies an additional reference to claim 6 (Ans. 8).
Appellant does not present any additional arguments directed to claim 6
(App. Br. 9, 10).
Appeal2014-004855
Application 11/928,978
Claim 1 is illustrative of the claimed subject matter (emphasis added):
1. A method of removing the sulfur oxide content of a
sulfur oxide-containing gas in a FCC unit containing a
reactor and a regenerator section, the method comprising:
contacting the sulfur oxide-containing gas with a SOx
removing additive at a low oxygen environment condition
wherein a flue gas exiting the regenerator section contains
less than 0.5 vol. % oxygen, wherein the SOx removing
additive consists of:
a sorbent consisting of a magnesium aluminum oxide
with spinel crystal structure;
an oxidation catalyst consisting of cerium oxide;
optionally, at least one Group VIII metal selected from
a group consisting of platinum, palladium, iridium, osmium,
rhodium, and ruthenium; and
optionally, a support material selected from a group
consisting of calcium aluminate, aluminum nitrohydrate,
aluminum chlorohydrate, magnesia, silica, alumina, titania,
zirconia, clay, a clay phosphate material, and combinations
thereof,
wherein the SOx removing additive is introduced into
the regenerator and/ or the reactor of the FCC unit and is
continuously cycled between the reactor and the regenerator.
Appellant does not argue any of the claims separately (App. Br. 4--
10). Accordingly, we focus on claim 1 and all of the claims stand or fall
together.
ANALYSIS
We have reviewed each of Appellant's arguments for patentability.
However, we will sustain the Examiner's rejections for essentially those
reasons expressed in the Answer, including the Response to Argument
section, and we add the following primarily for emphasis.
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Appeal2014-004855
Application 11/928,978
Appellant does not dispute that Buchanan and Bhore teach a solid
adsorbent encompassed by claim 1 (App. Br. 6). Rather, Appellant's main
argument is that Buchanan as well as Bhore require that additional air be
added and thus do not teach or suggest the use of their SOx removing
additives in a low oxygen containing process (App. Br. 5-8; Reply Br. 4---6).
These arguments are not persuasive of reversible error for reasons detailed
by the Examiner in the Answer. The claims merely require that "a flue gas
exiting the regenerator section contains less than 0.5 vol.% oxygen."
Notably, Buchanan encompasses his sorbents being effective when the gas
exiting the sorbent bed has a value as low as .01 vol.% oxygen (col. 5 11.
16-19).
Appellant presents no objective evidence that the SOx additives of the
applied prior art were not used and/or would not function in the same "low
oxygen environment" as encompassed by the claims. Without supporting
evidence, the mere conclusion by the inventor that the references do not
teach use in a similar low oxygen environment is insufficient. Arguments
and conclusions unsupported by factual evidence carry no evidentiary
weight and cannot establish patentability. In re De Blauwe, 736 F.2d 699,
705 (Fed. Cir. 1984); In re Swan Wood, 582 F.2d 638, 642 (CCPA 1978); In
re Lindner, 457 F.2d 506, 508 (CCPA 1972).
We note that Appellant presents arguments for the first time in the
Reply Brief filed May 24, 2013, directed specifically Markham's lack of
specificity as to where its SOx additives were being used (Reply Br. 3). It is
inappropriate for Appellant to discuss for the first time in the Reply Brief
matters that could have been raised in the Appeal Brief. 3 7 CPR §
41.41(b)(2) (2013). In any event, one of ordinary skill in the art would have
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Appeal2014-004855
Application 11/928,978
inferred from Markham that these additives were being used in the
reactor/regenerator. It has been established that "the [obviousness] analysis
need not seek out precise teachings directed to the specific subject matter of
the challenged claim, for a court can take account of the inferences and
creative steps that a person of ordinary skill in the art would employ." KSR
Int'! Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007). Likewise, it is also well
settled that a reference stands for all of the specific teachings thereof as well
as the inferences one of ordinary skill in the art would have reasonably been
expected to draw therefrom. See In re Fritch, 972 F.2d 1260, 1264---65 (Fed.
Cir. 1992).
Appellant's mere statement that the examples of the current
application show the "required additives of the invention unexpectedly
remove a significant amount of sulfur under low oxygen conditions" (App.
Br. 7) falls short of satisfying Appellant's burden to establish unexpected
results. In re Klosak, 455 F.2d 1077, 1080 (CCPA 1972) (the burden of
analyzing and explaining data to support nonobviousness rests with
Appellant).
In light of these circumstances, the preponderance of the evidence
supports the Examiner's rejections. Accordingly, we sustain the rejections
of the claims on appeal.
ORDER
The Examiner's§ 103 rejections are affirmed.
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Appeal2014-004855
Application 11/928,978
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).
AFFIRMED
kmm
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