Ex Parte De Graaf et al

Patent Trial and Appeal Board

Mar 23, 2017

12532317 (P.T.A.B. Mar. 23, 2017)

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 03/27/2017
Albemarle Netherlands; R V
EXAMINER
Patent and Trademark Department
451 Florida Street
SLIFKA, COLIN W
Baton Rouge, LA 70801 ART UNIT PAPER NUMBER
1732
NOTIFICATION DATE DELIVERY MODE
03/27/2017 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
tina.matz@ albemarle.com
Maggie.Martin@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 GONZALEZ, JULIE ANN FRANCIS,
and MARIA MARGARET LUDVIG
Appeal 2016-001843
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
1 This Decision includes citations to the following documents: Specification filed
Sept. 21, 2009 (“Spec.”); Final Office Action mailed May 21, 2014 (“Final”);
Appeal Brief filed Oct. 20, 2014 (“Br.”); and Examiner’s Answer mailed Dec. 4,
2014 (“Ans.”).
Appeal 2016-001843
Application 12/532,317
Appellants2 appeal under 35 U.S.C. § 134(a) from the Examiner’s decision
finally rejecting claims 1, 3, 5, 7, 9, 11, 12, 14, 15, 19, 44, and 45. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
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 has come under enhanced scrutiny
because of its detrimental effect on the environment. Spec. 122. Claim 1, the sole
independent claim on appeal, is reproduced below:
1. A process for the preparation of an additive containing
anionic clay comprising the steps of:
a. milling a physical mixture of a divalent metal compound
and a trivalent metal 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 an additive is optionally present in the physical mixture
of step (a), an additive is present in the aqueous suspension of step (c),
an anionic material is added during rehydration step (c), and the
additive-containing anionic clay is essentially free of vanadium.
Br., Claims App’x, A-l (emphasis added).
2 Appellants identify the real party in interest as Albemarle Netherlands B.V. Br.
1.
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Appeal 2016-001843
Application 12/532,317
Claims 1, 3, 5, 7, 9, 11, 12, 14, 15, 19, 44, and 45 stand rejected under 35
U.S.C. § 103(a) as unpatentable over the following combinations of references:
1. Stamires et al., (WO 01/12570, published Feb. 22, 2001, (“Stamires
WO 570”)) and Stamires et al., (US 2002/0110520, published Aug. 15, 2002,
(“Stamires 520”)); and
2. Stamires et al., (US 2002/0092812, published July 18, 2002,
(“Stamires 812”)) and Stamires 520.
Appellants argue the claims as a group. See Br. 7—9. Appellants raise the
following issue on appeal: Did the Examiner reversibly err in determining a
preponderance of the evidence supports a finding that Stamires WO 570 and
Stamires 812 each disclose or suggest a process for producing an “additive-
containing anionic clay [that] is essentially free of vanadium” (claim 1)? We
answer this question in the negative for the reasons stated in the Final Office
Action, the Answer, and below.
The Examiner finds one of ordinary skill in the art would have understood
Stamires WO 570 as teaching a process for producing additive-containing anionic
clays that are effective in reducing SOx in FCC due to the addition of either
vanadium or an excess of aluminum and/or magnesium. See Ans. 2. The
Examiner’s finding is supported by the relied-upon disclosure in Stamires WO
570, which reads as follows:
With the help of additives the shaped bodies may be provided with
desired functionalities, or the desired functionality may be increased
by the addition of additives. The suitability of anionic clay-containing
shaped bodies for the removal of SOx and/or NOx compounds in FCC
may be improved by the addition of Ce and/or V. The presence of V
and Zn improves the suitability for removal of S-compounds in the
gasoline and diesel fraction of FCC. As described above, these
functionalities may also be built in by using an excess of aluminium
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Appeal 2016-001843
Application 12/532,317
source and/or magnesium source. A combination of these measures
increases the effect.
Stamires WO 570, p. 10,11. 9—17. Likewise, the Examiner finds one of ordinary
skill in the art would have understood Stamires 812 as teaching a process for
producing additive-containing anionic clays that are effective in reducing SOx in
FCC due to the addition of either vanadium or an excess of trivalent and/or
divalent metal sources. Ans. 3. The Examiner’s finding is supported by the relied-
upon disclosure in Stamires 812, which reads as follows:
The suitability of anionic clay-containing shaped bodies for the
removal of SOx and/or NOx compounds in FCC may be improved by
the addition of Ce and/or V. The presence of V, W, Mo and/or Zn
improves the suitability for removal of S-compounds in the gasoline
and diesel fraction of FCC. ... As described above, these
functionalities may also be built in by using an[ ] excess of trivalent
metal source and/or divalent metal source.
Stamires 812 | 56.
Appellants argue one of ordinary skill in the art would have understood the
above-quoted disclosures in Stamires WO 570 and Stamires 812 as teaching away
from producing an essentially vanadium-free anionic clay. Br. 8. Appellants
further argue Example 1 and Table 1 of the Specification demonstrate unexpected
results in the vanadium-free anionic clays produced by the inventive process, in
that they show “equivalent SOx pickup compared to vanadium containing
materials, but with enhanced release.” Id.
“A reference may be said to teach away when a person of ordinary skill,
upon reading the reference, would be discouraged from following the path set out
in the reference, or would be led in a direction divergent from the path that was
taken by the applicant.” In re Gurley 27 F.3d 551, 553 (Fed. Cir. 1994).
Appellants have not explained persuasively why the ordinary artisan would have
understood the disclosures of Stamires WO 570 and Stamires 812 as discouraging
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Appeal 2016-001843
Application 12/532,317
the ordinary artisan from producing a vanadium-free anionic clay for removal of
SOx. See Br. 8—9. Stated differently, Appellants have not argued persuasively that
the Examiner’s reading of these disclosures, as teaching that both vanadium-
containing and vanadium-free anionic clays are effective for removal of SOx, is
erroneous or unreasonable. See In re Geisler, 116 F.3d 1465, 1471 (Fed. Cir.
1997) (argument by counsel cannot take the place of evidence).
“[W]hen unexpected results are used as evidence of nonobviousness, the
results must be shown to be unexpected compared with the closest prior art.” In re
Baxter TravenolLabs., 952 F.2d 388, 392 (Fed. Cir. 1991). The Specification
provides a comparison between vanadium-free anionic clays produced in
accordance with the invention and clays containing vanadium. See Spec. 63.
Appellants have not provided a comparison, however, between the anionic clays
produced by the inventive process and the vanadium-free anionic clays produced
by the processes described in Stamires WO 570 and Stamires 812, which represent
the closest prior art. Accordingly, Appellants’ test results are not persuasive
evidence of nonobviousness.
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
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