De Graaf, Elbert Arjan. et al.

Patent Trials and Appeals Board

Feb 14, 2020

12532317 - (D) (P.T.A.B. Feb. 14, 2020)

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.
12/532,317 09/21/2009 Elbert Arjan De Graaf C2-7650 US 6762
56744 7590 02/14/2020
Albemarle Netherlands B.V.
Patent and Trademark Department
451 Florida Street
Baton Rouge, LA 70801
EXAMINER
SLIFKA, COLIN W
ART UNIT PAPER NUMBER
1732
NOTIFICATION DATE DELIVERY MODE
02/14/2020 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):
Albemarle.IPDocket@albemarle.com
Maggie.Martin@Albemarle.com
tina.matz@albemarle.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ELBERT ARJAN DE GRAAF, JORGE ALBERTO CONZALEZ,
JULIE ANN FRANCIS, and MARIA MARGARET LUDVIG
Appeal 2019-003915
Application 12/532,317
Technology Center 1700
Before LINDA M. GAUDETTE, DONNA M. PRAISS, and
MICHAEL G. MCMANUS, Administrative Patent Judges.
GAUDETTE, Administrative Patent Judge.
DECISION ON APPEAL1
The Appellant2 appeals under 35 U.S.C. § 134(a) from the Examiner’s
decision finally rejecting claims 1, 3, 5, 14, 15, 19, and 46.3
We AFFIRM.

1 This Decision includes citations to the following documents: Specification
filed September 21, 2009 (“Spec.”); Final Office Action dated March 30,
2018 (“Final”); Appeal Brief filed November 28, 2018 (“Appeal Br.”); and
Examiner’s Answer dated February 21, 2019 (“Ans.”).
2 We use the word “Appellant” to refer to the “applicant” as defined in
37 C.F.R. § 1.42. The Appellant identifies the real party in interest as
Albemarle Netherlands B.V. Appeal Br. 1.
3 We have jurisdiction under 35 U.S.C. § 6(b).
Appeal 2019-003915
Application 12/532,317

2
CLAIMED SUBJECT MATTER
The invention relates to a process for preparing an additive-containing
anionic clay for use in reducing SOx emissions from a fluid catalytic
cracking (“FCC”) regenerator. Title of the Invention. The inventive method
is said to produce an anionic clay that exhibits good SOx reduction
performance, yet is essentially free of vanadium, a material that is said to
cause detrimental effects on the environment. Spec. ¶ 22. Claim 1,
reproduced below, is illustrative of the claimed subject matter:
1. A process for the preparation of an additive-containing
anionic clay comprising the steps of:
a. milling a physical mixture of a magnesium
compound and [an] aluminum compound to an
average particle size of about 0.1 to about 10
microns,
b. calcining the milled physical mixture at a
temperature in the range of about 200 to about
800°C, and
c. rehydrating the calcined mixture in aqueous
suspension to form the additive-containing
anionic clay,
wherein cerium is present in the physical mixture of step (a), a
compound comprising either iron or zinc or combinations
thereof is added during rehydration step (c), SO42- is added
during rehydration step (c), and the additive-containing anionic
clay is essentially free of vanadium.
Appeal Br. A-1.

Appeal 2019-003915
Application 12/532,317

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REFERENCES
The Examiner relies on the following references as evidence of
unpatentability:

Name Reference Date
Drezdon4 US 4,774,212 Sept. 27, 1988
Stamires ’812 US 2002/0092812 A1 July 18, 2002
Stamires ’520 US 2002/0110520 A1 Aug. 15, 2002
Stamires WO ’570 WO 01/12570 A1 Feb. 22, 2001

REJECTIONS
1. Claims 1, 3, 5, 14, 15, 19, and 46 are rejected under 35 U.S.C.
§ 103(a) over Stamires WO ’570 in view of Stamires ’520.
2. Claims 1, 3, 5, 14, 15, 19, and 46 are rejected under 35 U.S.C.
§ 103(a) over Stamires ’812 in view of Stamires ’520.

OPINION
The Appellant argues that the Examiner erred reversibly in finding
that each of Stamires WO ’570 and Stamires ’812 discloses or suggests a
process for preparing an additive-containing anionic clay that is “essentially
free of vanadium” (claim 1). Appeal Br. 7, 10. The Appellant argues that, to
the contrary, the references teach away from an essentially vanadium-free
product. Id. at 8. In support of this argument, the Appellant directs us to
Stamires WO ’570’s disclosure that “[t]he presence of V and Zn improves

4 The Examiner relies on the Drezdon disclosure incorporated by reference
in Stamires WO ’570 and Stamires ’812. See Final 4 (citing Stamires WO
’570, page 11, line 11), 8 (citing Stamires ’812 ¶ 59).
Appeal 2019-003915
Application 12/532,317

4
the suitability for removal of S-Compounds in the gasoline and diesel
fraction of FCC.” Id. (quoting Stamires WO ’570, page 10, lines 13–14).
The Appellant directs us similarly to Stamires ’812’s disclosure that “[t]he
presence of V, W, Mo and/or Zn improves the suitability for removal of S-
compounds in the gasoline and diesel fraction of FCC.” Id. (quoting
Stamires ’812 ¶ 56). The Appellant also argues that the Specification
includes evidence of unexpected and improved results. Id.
The Appellant made similar arguments before this Board panel in a
prior appeal (Appeal No. 2016-001843) in the involved application. See Ans.
3. The appealed claims in the prior appeal included the limitation
“essentially free of vanadium” and were rejected as unpatentable over the
same combinations of references. See Ex parte De Graaf, Appeal No. 2016-
001843 (PTAB Mar. 27, 2017). We find the Appellant’s present argument
that the applied prior art fails to disclose or suggest preparing an additive-
containing anionic clay that is “essentially free of vanadium” unpersuasive
for the reasons stated in the Answer, and in our Decision in the prior appeal,
both of which we incorporate by reference in this Decision. See Ans. 3–5;
De Graaf, at 3–5.
The Appellant additionally argues that the Examiner erred reversibly
in finding that each of Stamires WO ’570 and Stamires ’812 discloses or
suggests adding SO42- during a rehydration step as recited in the claim 1
“wherein” clause. Appeal Br. 8. As to this limitation, the Examiner found
that Stamires WO ’570 and Stamires ’812 teach calcining shaped bodies,
rehydrating the bodies, and incorporating additives. Final 3–4, 7–8. The
Examiner found that Stamires WO ’570 and Stamires ’812 disclose, via
Drezdon, that SO42- is a conventional, simple anion employed in clays. Id. at
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Application 12/532,317

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4, 8; see Stamires WO ’570 page 11, lines 5–11 and Stamires ’812 ¶ 59 (“If
desired, the crystalline anionic clay-containing shaped bodies prepared by
the process according to the invention may be subjected to ion exchange, in
which the interlayer charge-balancing anions of the clay are replaced with
other anions. Said other anions are the ones commonly present in anionic
clays and include pillaring anions . . . . Examples of suitable pillaring anions
are given in US 4,774,212, which is included by reference for this
purpose.”); Drezdon 1:38–41 (“[T]he anion, which is carbonate in
hydrotalcite, can be varied in synthesis by a large number of simple anions
such as NO3-, Cl-, OH-, SO42- etc.”). The Examiner found that the ordinary
artisan would have employed SO42- during the Stamires WO ’570 and
Stamires ’812 rehydration steps to achieve desired functionalities of the
shaped bodies, or to synthesize the carbonate anions of Stamires WO ’570
and Stamires ’812, as taught by these references via Drezdon. Final 4, 8.
The Appellant argues that Stamires WO ’570 and Stamires ’812
describe SO42- as “just one of a number of possible additions of anions,”
“with no specific direction . . . [on] how to achieve any desired
functionality.” Appeal Br. 8. The Appellant further argues that the present
inventors “discovered that by adding SO42- during the rehydration step, the
attrition of the inventive additive is greatly improved.” Appeal Br. 9 (citing
Spec.5 ¶¶ 51, 64, Example 2).

5 The Appellant references paragraph numbers in the published application
(US 2010/0111797). For consistency, we have revised the Appellant’s
citations to correspond to the paragraph numbers in the Specification as
filed.
Appeal 2019-003915
Application 12/532,317

6
The Appellant’s arguments are not persuasive of error in the
Examiner’s conclusion of obviousness. Although Drezdon indicates that
there are a large number of simple anions that may be utilized, SO42- is
included in the list of four, explicitly-identified anions (see Drezdon 1:38–41
supra p. 5), and both Stamires WO ’570 and Stamires ’812 identify Drezdon
as providing “[e]xamples of suitable pillaring anions” (Stamires WO ’570
page 11, lines 10–11; Stamires ’812 ¶ 59). Accordingly, we are not
persuaded that the prior art fails to provide direction to select SO42- for
addition during Stamires WO ’570’s and Stamires ’812’s rehydrating steps.
See PharmaStem Therapeutics, Inc. v. ViaCell, Inc., 491 F.3d 1342, 1364
(Fed Cir. 2007) (noting that an obviousness rejection predicated on selection
of one or more components from numerous possible choices may be
appropriate if the prior art provides direction as to which of many possible
choices is likely to be successful); Merck & Co., Inc. v. Biocraft Labs, Inc.,
874 F.2d 804, 808 (Fed. Cir. 1989) (explaining that the fact that a reference
“discloses a multitude of effective combinations does not render any
particular formulation less obvious”). We add that the “motivation to modify
a prior art reference to arrive at the claimed invention need not be the same
motivation that the patentee had.” Alcon Research, Ltd. v. Apotex Inc., 687
F.3d 1362, 1368 (Fed. Cir. 2012) (citing KSR Int’l Co. v. Teleflex, Inc., 550
U.S. 398, 420 (2007) (stating that it is error to look “only to the problem the
patentee was trying to solve”)).
As to the Appellant’s contention that adding SO42- during the
rehydration step provides unexpected results, we have reviewed the
Specification disclosure relied on by the Appellant, but agree with the
Examiner that the Appellant’s testing is not reasonably commensurate in
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Application 12/532,317

7
scope with the claims, nor is there adequate basis to conclude that other
compounds included within the scope of the claims would exhibit the same
behavior as the tested compound. See Ans. 5; In re Kao, 639 F.3d 1057,
1068 (Fed. Cir. 2011).

CONCLUSION
The Appellant has not identified reversible error in the Examiner’s
conclusion of obviousness as to appealed claims 1, 3, 5, 14, 15, 19, and 46.
Accordingly, we sustain the Examiner’s rejections.

DECISION SUMMARY
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 3, 5, 14,
15, 19, 46
103(a) Stamires WO ’570,
Stamires ’520
1, 3, 5, 14,
15, 19, 46

1, 3, 5, 14,
15, 19, 46
103(a) Stamires ’812,
Stamires ’520
1, 3, 5, 14,
15, 19, 46

Overall
Outcome
1, 3, 5, 14,
15, 19, 46

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