Ex parte Chattha et al.

Board of Patent Appeals and Interferences

Mar 30, 1998

07952060 (B.P.A.I. Mar. 30, 1998)

Application for patent filed September 28, 1992.1
1
THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered today (1) was not written for
publication in a law journal and (2) is not binding precedent of the Board.
Paper No. 18
UNITED STATES PATENT AND TRADEMARK OFFICE
__________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________
Ex parte MOHINDER S. CHATTHA,
SOMASUNDARAM SUBRAMANIAN, and
WILLIAM L.H. WATKINS
__________
Appeal No. 95-2734
Application 07/952,0601
__________
ON BRIEF
__________
Before JOHN D. SMITH, GARRIS, and WEIFFENBACH, Administrative Patent Judges.
GARRIS, Administrative Patent Judge.
Appeal No. 95-2734
Application 07/952,060
In claim 1, the capitalization of pH is in error and should be corrected in any2
further prosecution that may occur.
2
DECISION ON APPEAL
This is a decision on an appeal from the final rejection of claims 1 through 202
which are all of the claims in the application.
The subject matter on appeal relates to a catalyst for promoting oxidization-
reduction reactions with the exhaust gas of an internal combustion engine, to a
corresponding process for so treating such exhaust gas and to a process for making
the aforementioned catalyst. This subject matter is adequately illustrated by
independent claims 1, 6, and 18, which read as follows:
1. A catalyst for promoting oxidation-reduction reactions with the exhaust gases
produced by an internal combustion engine comprising:
tungsten oxide;
a basic metal oxide having a Ph [sic, pH ] greater than that of tungsten oxide;pzc pzc
and
a noble metal wherein at least 51 weight percent of the total weight of the basic
metal oxide is present as a separate layer in juxtaposed relation to the tungsten oxide.
6. A catalyst for promoting oxidation-reduction reactions with the exhaust gases
produced by an internal combustion engine comprising:
a composite oxide comprised of:
a refractory inorganic oxide;
Appeal No. 95-2734
Application 07/952,060
3
tungsten oxide in juxtaposed relation with the refractory inorganic oxide;
and
a basic metal oxide having a pH greater than tungsten oxide, whereinpzc
no more than 35 weight percent of the total weight of the basic metal oxide is present in
the refractory inorganic oxide; and
arrayed on the composite oxide a noble metal.
18. A process for making a catalyst for promoting oxidation-reduction reactions
with the exhaust gases produced by an internal combustion engine comprising:
providing a refractory inorganic oxide deposited on a monolithic substrate;
contacting the refractory inorganic oxide with a tungsten containing compound
and calcining to make a tungsten oxide treated material;
contacting the tungsten oxide treated material with a basic metal precursor and
calcining to make a basic metal oxide treated material, wherein the basic metal oxide
has a pH greater than tungsten oxide and the refractory inorganic oxide contains nopzc
more than 35 weight percent of the total weight of the basic metal oxide; and
contacting the basic metal oxide treated material with a noble metal containing
compound and calcining.
The reference relied upon by the examiner in the rejections before us is set forth
below:
Wyatt et al. (Wyatt) 4,500,650 Feb. 19, 1985
Claims 1, 3 through 6, 9, 11 through 16, and 18 stand rejected under 35 U.S.C.
§ 102(b) as being anticipated by Wyatt.
Appeal No. 95-2734
Application 07/952,060
4
Claims 1 through 20 stand rejected under 35 U.S.C. § 103 as being obvious over
Wyatt.
The claims on appeal have been grouped and argued separately as indicated on
page 2 of the Brief and will be so considered in the opinion below.
Opinion
For the reasons which follow, we will sustain only the § 103 rejection of claims 1
through 5, 12 through 14, and 17 as being obvious over Wyatt.
Wyatt discloses a three-way catalyst for treating exhaust gases produced by an
internal combustion engine which includes a monolithic substrate having thereon a
refractory oxide layer (also called the washcoat), tungsten oxide, and a platinum group
metal (e.g., see lines 39 through 61 in column 1). Further, patentee teaches that the
refractory oxide layer may be made from a variety of compounds including oxides of
barium and the lanthanides (e.g., see lines 54 through 56 in column 1). In this latter
regard, the paragraph bridging pages 7 and 8 of the appellants’ specification reveals
that barium oxide and lanthanum oxide are basic metal oxides having pH valuespzc
greater than that of tungsten oxide as required by the appealed claims.
Thus, the Wyatt catalyst may include each of the ingredients defined by the
appealed claims. Additionally, this catalyst may be prepared by depositing and firing
Appeal No. 95-2734
Application 07/952,060
5
the ingredients in several different ways including the deposition and firing of the
washcoat followed by the deposition and firing of the tungsten and platinum group
metals (e.g., see lines 4 through 16, especially lines 11 through 16, in column 2). This
last mentioned preparation technique would result in a separate refractory oxide layer
having the here claimed juxtaposed relation to tungsten oxide.
In light of the foregoing, it is our opinion that a catalyst corresponding to that of
appealed claim 1 would have been obtained by picking and choosing from Wyatt’s
disclosure of many suitable refractory oxide compounds, a barium oxide or a lanthanum
oxide specifically as a washcoat material and by picking and choosing from patentee’s
several catalyst-preparation techniques, the specific technique discussed above.
Because the catalyst under consideration is the consequence of picking and choosing
rather than clear and unequivocal direction from the Wyatt reference, we cannot
sustain the examiner’s § 102 rejection of appealed claim 1 or of appealed claims 3
through 5 and 12 through 14 which include all of the claim 1 limitations. In re Arkley,
455 F.2d 586, 587, 172 USPQ 524, 526 (CCPA 1972). Nevertheless, we are confident
that it would have been obvious for one with ordinary skill in the art to have made these
selections notwithstanding the large number of selection combinations embraced by
patentee’s disclosure. Merck & Co. v. Biocraft Labs., Inc., 874 F.2d 804, 808, 10
USPQ2d 1843, 1846 (Fed. Cir.), cert. denied, 493 U.S. 975 (1989).
Appeal No. 95-2734
Application 07/952,060
Appealed claim 1 does not require that the ingredients therein be arranged in3
any particular order and therefore encompasses a catalyst wherein the tungsten oxide
is deposited on the separate basic metal oxide layer.
6
We cannot agree with the appellants’ basic position that Wyatt would not have
suggested the claim 1 feature of a basic metal oxide present as a separate layer in
juxtaposed relation to the tungsten oxide. Patentee explicitly teaches forming a
refractory oxide washcoat in the form of a layer from compounds which correspond to
the here claimed basic metal oxide. Moreover, as a result of patentee’s previously
mentioned deposition and firing technique, this oxide layer would be separate and in
juxtaposed relation to the tungsten oxide deposited thereon. Finally, it is our3
perspective that this catalyst preparation technique would necessarily result in all of the
barium oxide or lanthanum oxide being present as the separate layer, thereby
satisfying the “at least 51 percent” requirement of the appellants’ claim 1.
For the above stated reasons, we will sustain the examiner’s § 103 rejection over
Wyatt of independent claim 1 and of nonargued dependent claims 2 through 5. We will
also sustain the § 103 rejection over Wyatt of process claims 12 through 14 and 17
which correspond to catalyst claims 1 through 5.
As previously explained, the § 102 rejection of claims 1, 3 through 5, and 12
through 14 cannot be sustained. In addition, we also cannot sustain either the § 102
rejection of claims 6, 9, 11, 15, and 18 or the § 103 rejection of claims 6 through 11, 15,
Appeal No. 95-2734
Application 07/952,060
7
16, and 18 through 20. This is because Wyatt contains no teaching or suggestion of
the feature required by all these claims where “no more than 35 weight percent of the
total weight of the basic metal oxides” is present in the refractory inorganic oxide. In
Wyatt’s catalyst, 100 percent of the barium oxide or lanthanum oxide would be present
in the refractory oxide layer because these are the compounds from which the layer is
made. Furthermore, it is clear to us that Wyatt contains no teaching or suggestion
concerning the specific steps and sequences of the catalyst making process defined by
appealed claim 18 notwithstanding the examiner’s unembellished position to the
contrary.
In summary, we sustain the examiner’s § 103 rejection of claims 1 through 5, 12
through 14, and 17 but do not sustain any of the other rejections before us on this
appeal.
The decision of the examiner is affirmed-in-part.
Appeal No. 95-2734
Application 07/952,060
8
No time period for taking any subsequent action in connection with this appeal
may be extended under 37 CFR § 1.136(a).
AFFIRMED-IN-PART
John D. Smith )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
Bradley R. Garris ) APPEALS AND
Administrative Patent Judge ) INTERFERENCES
)
)
)
Cameron Weiffenbach )
Administrative Patent Judge )
Appeal No. 95-2734
Application 07/952,060
9
William J. Schramm
Brooks & Kushman
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