Peter K. Stoimenov

Patent Trials and Appeals Board

Dec 13, 2019

14671258 - (D) (P.T.A.B. Dec. 13, 2019)

UNITED STATES PATENT AND TRADEMARK OFFICE
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.
14/671,258 03/27/2015 Peter K. Stoimenov Reaction35.449002 7361
100183 7590 12/13/2019
Adolph Locklar
Michael Locklar
4615 S.W. Freeway
Suite 630
Houston, TX 77027
EXAMINER
WOOD, ELIZABETH D
ART UNIT PAPER NUMBER
1732
NOTIFICATION DATE DELIVERY MODE
12/13/2019 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):
docket@adolphlocklar.com
docket@al-ip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte PETER K. STOIMENOV
____________________

Appeal 2019-002662
Application 14/671,258
Technology Center 1700
____________________

Before ADRIENE LEPIANE HANLON, CATHERINE Q. TIMM, and
N. WHITNEY WILSON, Administrative Patent Judges.

WILSON, Administrative Patent Judge.

DECISION ON APPEAL

Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
February 27, 2018 decision finally rejecting claims 1–11 and 13 (“Final
Act.”). We have jurisdiction over the appeal under 35 U.S.C. § 6(b).
We reverse.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies Reaction 35, LLC, as the real party in
interest (Appeal Br. 5).
Appeal 2019-002662
Application 14/671,258

2
CLAIMED SUBJECT MATTER
Appellant’s disclosure relates to a method of manufacturing a
modified zeolite catalyst (Abstract). Details of the claimed method are set
forth in representative claim 1, which is reproduced below from the Claims
Appendix to the Appeal Brief:
1. A method of manufacturing a modified zeolite catalyst
comprising:
reacting a zeolite, wherein the zeolite is ZSM-5 or
ZSM-11, with a metal salt to form a zeolite/metal salt complex;
heating the zeolite/metal salt complex to form an
intermediate modified zeolite;
reacting the intermediate modified zeolite with an acid;
and
ion exchanging the intermediate modified zeolite
following the reaction with the acid to form a modified zeolite
catalyst.

REJECTIONS
1. Claims 1, 3, 4, 7, 8, 10, 11, and 13 are rejected under
35 U.S.C. § 103(a) as unpatentable over Jun2 in view of Bowes.3
2. Claim 2 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Jun in view of Bowes, and further in view of Stamires.4

2 Jun et al., CN 101537369 (A), published September 23, 2009. We refer, as
do Appellant and the Examiner, to the machine translation of record.
3 Bowes et al., US 5,043,307, issued August 27, 1991.
4 Stamires et al., WO 2013/123299 A1, published August 22, 2013.
Appeal 2019-002662
Application 14/671,258

3
3. Claims 5 and 6 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Jun in view of Bowes, and further in view of Nesterenko.5
4. Claim 9 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Jun in view of Bowes, and further in view of Wu.6

DISCUSSION
Appellant argues the claims subject to Rejection 1 as a group (see,
Appeal Br. 8–13). Accordingly, our analysis will focus on the rejection of
claim 1, and the remaining claims covered by this rejection (3, 4, 7, 8, 10,
11, and 13) will stand or fall with claim 1.
The Examiner’s findings are set forth in the Final Action at pages 5–6.
The Examiner finds that Jun teaches each of the steps of the claimed
invention, except that Jun does not teach the final step: “[Jun] differs from
the instantly claimed process…in the failure to specify that their obtained
product is ion exchanged to form the final product” (Final Act. 5–6). The
Examiner further finds that a person of skill in the art “is more than aware
that zeolite materials are used to catalyze varied reactions and would have
found it obvious to select a desired metal for the conduct of such reactions
and ion-exchange the zeolite for such purpose” (Final Act. 6). The
Examiner finds that Bowes, for example, teaches ion exchanging an
intermediate modified zeolite subsequent to an acid reaction with

5 Nesterenko et al., US 2011/0071264 A1, published March 24, 2011.
6 Wu et al., US 7,160,360 B2, issued January 9, 2007.
Appeal 2019-002662
Application 14/671,258

4
ammonium compounds to reduce sodium in the product to produce a final
zeolite product (id.).
Appellant makes three arguments seeking reversal of the rejection:
(1) Jun does not suggest a need to modify its catalyst; (2) no obvious to try
motivation exists; and (3) the claimed catalyst has unexpected properties
(Appeal Br. 8).
With respect to Argument (1), Appellant contends that Jun is aimed at
providing a highly selective catalyst, and that there is no suggestion in Jun
that an ion exchange process would improve the selectivity of the catalyst,
and that (id.). The Examiner counters that because the claim on appeal is
not specific to a particular catalyst, “the bar for the assertion of the
obviousness of ion-exchanging a zeolite with a metal is quite low…and
Bowes indicates that such a step is known and routine in the zeolite
production art” (Ans. 7).
It is well established that “rejections on obviousness grounds cannot
be sustained by mere conclusory statements; instead, there must be some
articulated reasoning with some rational underpinning to support the legal
conclusion of obviousness.” In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006),
cited with approval in KSR, 550 U.S. 398, 418 (2007). Thus, the Examiner
must establish a reason why a person of ordinary skill in the art would have
modified Jun’s method for producing a zeolite catalyst by adding an ion-
exchange step. While the Examiner has argued that such a step is well
known in the art (and cited Bowes in support of this proposition), the
Examiner has not articulated findings as to why a person of skill in the art
would have added an ion-exchange step to Jun’s process.
Appeal 2019-002662
Application 14/671,258

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Appellant has noted, without persuasive rebuttal from the Examiner,
that the rejection fails to identify a reason why a person of skill in the art
would have modified Jun’s process (as opposed to some other process for
preparing a zeolite catalyst) to incorporate an ion-exchange step. That is, the
rejection does not provide a rational explanation of why a person of skill in
the art would have added an ion exchange step to a process for preparing a
selective catalyst for making ethylbenzene. Without such an explanation,
the rejection is deficient and must be reversed. Because each of the
remaining rejections relies on the same flawed combination of Jun and
Bowes, we also reverse those rejections.
CONCLUSION
In summary:

Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 3, 4, 7,
8, 10, 11,
13
103 Jun, Bowes 1, 3, 4, 7,
8, 10, 11,
13
2 103 Jun, Bowes,
Stamires
2
5, 6 103 Jun, Bowes,
Nesterenko
5, 6
9 103 Jun, Bowes, Wu 9
Overall
Outcome
1–11, 13

REVERSED