Ex Parte Dean

Patent Trial and Appeal Board

Sep 5, 2017

13156440 (P.T.A.B. Sep. 5, 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.
211,520 5073
EXAMINER
STEIN, MICHELLE
ART UNIT PAPER NUMBER
1771
MAIL DATE DELIVERY MODE
13/156,440 06/09/2011
38137 7590 09/05/2017
ABELMAN, FRAYNE & SCHWAB
666 THIRD AVENUE, 10TH FLOOR
NEW YORK, NY 10017
Christopher F. Dean
09/05/2017 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CHRISTOPHER F. DEAN
Appeal 2017-001173
Application 13/156,440
Technology Center 1700
Before LINDA M. GAUDETTE, DONNA M. PRAISS, and
JANE E. INGLESE, Administrative Patent Judges.
INGLESE, Administrative Patent Judge.
DECISION ON APPEAL
Appellant1 requests our review under 35 U.S.C. § 134(a) of a Final
Rejection of claims 16-35. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
STATEMENT OF THE CASE
The subject matter on appeal is generally directed to a method of
increasing the production of lighter hydrocarbons and gasoline in
1 Appellant identifies the real party in interest as the Saudi Arabian Oil
Company. Appeal Brief filed April 6, 2016 (“App. Br.”) at 2.
Appeal 2017-001173
Application 13/156,440
conjunction with the operation of a fluidized catalytic cracking process.
Spec. 1,11. 5-7.
As explained in Appellant’s Specification, fluidized catalytic cracking
(FCC) is a process for converting heavy hydrocarbons present in feedstocks
into lighter hydrocarbons. Spec. 2,11. 6—8. The process involves contacting
hydrocarbon feedstocks with heated catalyst particles in a reactor, which
causes heavy hydrocarbons in the feedstockto “crack” into lighter products,
and deactivates the catalyst by formation of carbonaceous deposits, referred
to as coke, on the catalyst. Spec. 2,11. 8—13. Following separation of the
cracked products from the deactivated catalyst, regeneration of the catalyst
occurs in a regeneration vessel where the coke is burned from the catalyst in
the presence of air. Spec. 2,11. 13—16. The heated, regenerated catalyst is
then reused in the reactor. Spec. 2,11. 17—18.
Claim 16 illustrates the subject matter on appeal and is reproduced
below:
16. A method of enhancing the conversion of a feedstream
consisting essentially of paraffinic naphtha boiling up to
450°F/233°C derived from a cmde distillation unit into a lighter
hydrocarbon product stream consisting of ethylene, propylene,
butylenes and gasoline, the feedstream having a low
concentration of olefins, the method comprising:
a. directing a separate feedstream of the paraffinic naphtha
into the top of an ancillary downflow reactor that contains fresh
or regenerated hot catalyst of the same composition as the
catalyst used in a fluidized catalytic cracking (FCC) unit with
which the downflow reactor is associated, the regenerated
catalyst being at a temperature that is sufficient to provide the
heat required to promote the endothermic cracking of the
paraffinic naphtha;
b. introducing a heavy oil or gas oil as the feedstream to
the associated FCC;
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Application 13/156,440
c. introducing the paraffinic naphtha through a plurality of
injection nozzles into a mixing zone and into contact with a
controlled flow of the hot catalyst to provide a uniform mixture;
d. operating the downflow reactor with a residence time of
the feedstream in the reaction zone of from 0.1 seconds to 5
seconds at an operating temperature in the range of 900°F to
1200°F and with a catalyst-to-feedstream ratio in the range from
25 to 50 by weight to produce a lighter hydrocarbon reaction
product stream by cracking the paraffinic naphtha
feedstream;
e. separating the lighter hydrocarbon reaction product
stream produced in the downflow reactor cracking process from
spent catalyst in a rapid separation section that is downstream of
the reaction zone; and
f. recovering the lighter hydrocarbon reaction product
stream, wherein the lighter hydro carbon reaction product stream
contains a greater combined proportion of ethylene, propylene
and butylenes as compared to a product stream from the
associated FCC unit.
App. Br. 30-31 (Claims Appendix).
The Examiner sets forth the following rejections in the Final Office
Action entered April 9, 2015 (“Final Act.”), and maintains the rejections in
the Examiner’s Answer entered August 24, 2016 (“Ans.”):
I. Claims 16—35 under 35 U.S.C. § 103(a) as unpatentable over
Pontier et al. (WO 01/44409 Al, published June 21, 2001)2 in view ofXu et
al. (US 2004/0004025 Al, published January 8, 2004) and Youngblood et al.
(US 3,776,838, issued December 4, 1973); and
2 Appellant does not contest the Examiner’s reliance on the patent that
issued from the U.S. national stage of the PCT application (US 7,220,351
Bl, issued May 22, 2007) as an English translation, and citations in this
Decision accordingly refer to the U.S. Patent.
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Application 13/156,440
II. Claims 16—35 provisionally rejected on the ground of
nonstatutory obviousness-type double patenting over claims 1 and 3—20 of
Application No. 13/111,437.3
DISCUSSION
Upon consideration of the evidence relied upon in this appeal and
each of Appellant’s contentions, we affirm the Examiner’s rejection of
claims 16—35 under 35 U.S.C. § 103(a) for the reasons set forth in the Final
Office Action, the Answer, and below. We decline to reach the provisional
obviousness-type double patenting rejection for the reasons discussed below.
Rejection I
Appellant argues claims 16-35 as a group. App. Br. 12—29.
Therefore, we select claim 16 as representative, and decide the appeal as to
claims 16-35 based on claim 16 alone. 37 C.F.R. § 41.37(c)(l)(iv).
Pontier discloses a fluid catalytic cracking process conducted using a
parallel combination of an upflow or riser reactor that operates under
conventional cracking conditions, a downflow or dropper reactor that
operates under severe cracking conditions, and a common catalyst
regeneration zone that supplies catalyst to both reactors. Col. 1,11. 6-10,
col. 2,11. 27—36, col. 2,1. 55—col. 3,11. 8; Figure. Pontier discloses that the
differing reaction conditions utilized in the riser and dropper reactors allow
different pro ducts to be produced in each reactor. Col. 2,11. 27—54. Pontier
discloses that any uncracked fresh feed can be treated in the dropper reactor
Application No. 13/111,437 issued as U.S. Patent 8,877,042 B2 on
November 4, 2014.
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(col. 3,11. 54—57, col. 4,11. 4—8), and discloses that the catalyst to feed (or
oil) ratio (C/O) for the dropper reactor is usually 8—20. Col. 3,11. 42—52.
Pontier discloses that the dropper reactor exerts a “catalyst cooling
effect” or “heat extraction effect” because it consumes more heat during
catalytic cracking than the regenerator produces byregenerating the catalyst
utilized by the dropper. Col. 4,11. 41—61. Pontier discloses that “the heat
extraction effect requires an increase in the circulation of the catalyst with a
constant feed flow rate”—or an increase the catalyst to feed (or oil) ratio
(C/O)—and Pontier discloses that this increase results in better catalytic
activity, allowing refractory feeds to be treated in the dropper. Col. 5,11. 1—
11. The Examiner implicitly finds that Pontier does not disclose a
feedstream consisting essentially of paraffinic naphtha boiling up to
450°F/233°C derived from a cmde distillation unit, and the Examiner relies
on Youngblood for suggesting this feature. Final Act. 3—6.
Youngblood discloses catalytically cracking highly paraffinic fresh
naphtha feedstocks that boil at a temperature of about 100 to 450QF, and
discloses that severe operating conditions are required to catalytically crack
such feedstocks. Col. 2,11. 50-62; col. 4,11. 18—29; col. 5,11. 7—25. The
Examiner finds that one of ordinary skill in the art would have been led at
the time of Appellant’s invention to treat the paraffinic fresh naphtha
feedstocks disclosed in Youngblood in Pontier’s dropper reactor because
Pontier discloses that any uncracked fresh feed can be treated in the dropper
reactor, and Pontier also discloses operating the dropper reactor under severe
cracking conditions, which Youngblood indicates is required for paraffinic
fresh naphtha feedstocks. Final Act. 5—6; Ans. 16.
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The Examiner also finds that Pontier does not explicitly disclose a
catalyst-to-feedstream (or oil) ratio of from 25 to 50, and the Examiner relies
on Xu for suggesting this feature. Final Act. 6—7. Xu discloses that high
oil/catalyst contact efficiency in a downflow catalytic cracking reactor
provides good reaction performance. 113. Xu discloses operating a
downflow reactor with a catalyst to oil (or feed) ratio (C/O) of 3 to 40, and
Xu discloses that “any hydrocarbon feedstock[] suitable for catalytic
cracking” can be used as the feedstock in the downflow reactor operating
under these conditions. || 39, 41. The Examiner finds that one of ordinary
skill in the art would have been led at the time of Appellant’s invention to
operate Pontier’s dropper reactor using the catalyst to oil (feed) ratio
disclosed in Xu to enhance the oil/catalyst contact efficiency and thereby
improve performance of Pontier’s dropper reactor as disclosed in Xu. Final
Act. 7; Ans. 18—19.
Appellant contends that in an FCC generator, heat is produced by
coke combustion, and this heat supplies the energy required to raise the
temperature of the feedstockand for the cracking reactions. App. Br. 27.
Appellant contends that unlike traditional heavy hydrocarbon feeds,
naphthas do not produce sufficient coke to serve as a primary feed to an
FCC reactor. Id. Appellant argues that one of ordinary skill in the art,
therefore, would have understood that the paraffinic naphtha feed disclosed
in Youngblood could not be used as “one of the feeds to the FCC reactor in
Pontier’s process.” Id.
In support of these arguments, Appellant relies on paragraphs 9 and
59 of a Declaration of Daniel Fongstaff submitted to the Patent Office on
May 19, 2014 (the “second Fongstaff Declaration”). The second Fongstaff
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Declaration explains that Daniel Longstaff is employed by the real party in
interest of the present application. App.Br. 27; second Longstaff
Declaration 11. Appellant argues that the Examiner has not accorded “the
technical analyses and more importantly, the expert opinions expressed by
Dr. Longstaff’ sufficient weight. App. Br. 20. Appellant further requests
the Board to “acknowledge^ for the record” that Dr. Longstaff is “an expert
in the field.” App. Br. 21.
With respect to this request, we have fully considered the relied-upon
portions of the second Longstaff Declaration (and the portions of a third
Longstaff Declaration relied upon by Appellant discussed below), and we
accord the opinions offered in the Declarations the weight they are due in
light of the totality of the evidence on this record and the fact that Dr.
Longstaff is an employee of the real party in interest, as discussed
throughout the remainder of this Decision.
The relied-upon portions of the second Longstaff Declaration state
that naphthas are not suitable as a primary feed to an LCC because they do
not produce sufficient coke. ||9, 59. However, the relied-upon portions of
the Declaration further state that naphthas may be suitable as a secondary
LCC feed if a primary feed produces sufficient coke to satisfy the system’s
heat requirements. 19.
Neither Appellant nor the relied-upon portions of the second
Longstaff Declaration provide any objective evidence corroborating the
conclusory opinion provided in the Declaration that naphthas are not suitable
as a primary feed to an LCC. It follows that we give the inherently self-
interested opinion proffered in the second Longstaff Declaration little to no
weight. 37 C.L.R. § 42.65(a) (opinion testimony that does not disclose
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underlying facts or data “is entitled to little or no weight”); Velanderv.
Garner, 348 F.3d 1359, 1371 (Fed. Cir. 2003) (“[W]hat the Board
consistently did was accord little weight to broad conelusory statements that
it determined were unsupported by corroborating references. It is within the
discretion of the trier of fact to give each item of evidence such weight as it
feels appropriate”); In re Am. Acad. ofSci. Tech Ctr., 367 F.3d 1359, 1368
(Fed. Cir. 2004) (“[T]he Board is entitled to weigh the declarations and
conclude that the lack of factual corroboration warrants discounting the
opinions expressed in the declarations”).
As discussed above, Pontier discloses using a parallel combination of
an upflow or riser reactor operating under conventional cracking conditions
and a downflow or dropper reactor operating under severe cracking
conditions, and Pointer explicitly discloses that any uncracked fresh feed can
be treated in the dropper reactor. Based on these disclosures, one of
ordinary skill in the art reasonably would have expected that the highly
paraffinic fresh naphtha feedstock disclosed in Youngblood could be
successfully used as a feed for Pontier’s dropper reactor becausehighly
paraffinic fresh naphtha is an “uncracked fresh feed,” and Pontier’s dropper
reactor operates under severe conditions, which Youngblood indicates are
required for paraffinic fresh naphtha feedstocks.
Appellant and the second Longstaff Declaration do not squarely
address Pontier’s disclosure that any uncracked fresh feed can be treated in
Pontier’s dropper reactor, which would include the highly paraffinic fresh
naphtha feedstocks disclosed in Youngblood. We accordingly find no
harmful error on the Examiner’s part in giving little or no weight to the
opinions provided in the second Declaration inasmuch as the Declaration
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fails to consider the collective teachings of the applied prior art, i.e., the
totality of the evidence of record relied upon by the Examiner. See, e.g.,
Velander, 348 F.3d at 1371 (“In giving more weight to prior publications
than to subsequent conclusory statements by experts, the Board acted well
within [its] discretion”)
We further note that although the second Longstaff Declaration states
that naphthas are not suitable as a primary feed to an FCC, it indicates that
naphthas may be suitable as a secondary FCC feed if a primary feed
produces sufficient coke to satisfy the system’s heat requirements. 19. As
also discussed above, Pontier’s system utilizes a parallel combination of
both an upflow or riser (primary) reactor and downflow or dropper
(secondary) reactor. We understand the declarant’s statement that naphthas
may be suitable as a secondary FCC feed to mean that naphthas as disclosed
in Youngblood may be suitable as a feedstock for Pontier’s downflow or
dropper (secondary) reactor if Pontier’s upflow or riser (primary) reactor
produces sufficient coke to satisfy the system’s heat requirements.
Therefore, Appellant’s arguments and the relied-upon statements in the
second Fongstaff Declaration in support thereof are unpersuasive of
reversible error.
Appellant further argues that Youngblood’s process differs
significantly from the claimed method and uses materially different
operating conditions to produce different products. App. Br. 22—24.
Appellant contends that producing the products yielded by Youngblood’s
process would be an undesirable result in the context of the problem
addressed by Appellant, and would not address the problem solved by the
claimed method. App. Br. 23—24. Appellant asserts that, therefore,
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“Youngblood is not properly combined and is not relevant to the claims of
the present invention.” App. Br. 24. In support of these arguments,
Appellant relies on paragraphs 5, 8, and 12 of another Declaration of Daniel
Longstaff, which was submitted to the Patent Office on January 16, 2015
(the “third Longstaff Declaration”). App. Br. 22—24.
However, Appellant’s arguments and supporting portions of the third
Longstaff Declaration are unpersuasive of reversible error because they are
improperly based on Youngblood alone, and do not take into account what
the combined disclosures of the applied prior art would have suggested to
one of ordinary skill in the art at the time of the invention. In re Merck &
Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986) (“Non-obviousness cannot
be established by attacking references individually where the rejection is
based upon the teachings of a combination of references”); In re Keller, 642
F.2d 413, 425 (CCPA 1981) (The test for obviousness “is what the
combined teachings of the references would have suggested to those of
ordinary skill in the art”).
As discussed above, the combined disclosures of Pontier and
Youngblood would have led one of ordinary skill in the art to use the highly
paraffinic fresh naphtha feedstock disclosed in Youngblood as a feed for
Pontier’s dropper reactor because Pontier discloses that any “uncracked
fresh feed” can be used for Pontier’s dropper reactor, and Youngblood’s
highly paraffinic fresh naphtha is such an “uncracked fresh feed.” In
addition, Pontier’s dropper reactor operates under severe conditions, which
Youngblood indicates are required for paraffinic fresh naphtha feedstocks.
Moreover, “[i]n determining whether the subject matter of a patent
claim is obvious, neither the particular motivation nor the avowed purpose
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ofthe patentee controls.” KSRInt’l Co. v. Teleflex Inc., 550 U.S. 398, 419
(2007). The combined disclosures of Pontier and Youngblood set forth
above would have suggested to one of ordinary skill in the art at the time of
Appellant’s invention that the paraffinic fresh naphtha feedstock disclosed in
Youngblood would be a suitable feed for Pontier’s dropper reactor, and one
of ordinary skill in the art need not have looked to Youngblood and Pontier’s
disclosures for the same reasons that prompted Appellant’s invention. In re
Kemps, 97 F.3d 1427, 1430 (Fed. Cir. 1996) (“Although the motivation to
combine here differs from that of the applicant, the motivation in the prior
art to combine the references does not have to be identical to that of the
applicant to establish obviousness”); In re Beattie, 974 F.2d 1309, 1312
(Fed. Cir. 1992) (“[T]he law does not require that the references be
combined for the reasons contemplated by the inventor”). Therefore,
Appellant’s arguments are unpersuasive of reversible error.
Appellant further “requests that the Board take note ofthe Examiner’s
admission in paragraph 6 ofthe Final Office Action ‘that the “severe
conditions” of Youngblood are similar to the severe conditions ofthe Pontier
dropper zone.’”4 App. Br. 24 (emphasis omitted). Appellant argues that
because Youngblood is not relevant to the claims of the present invention for
the reasons discussed above, “it is clear that Pontier is likewise not relevant
to, and therefore does not render obvious the claims of the present
invention.” Id.
4 We point out that “[pjatent examiners are quasi-judicial officials” and
therefore do not make admissions, but rather make findings of fact and
conclusions based on their factual findings. Western Electric Co. v. Piezo
Tech., Inc., 860 F.2d428, 431 (Fed. Cir. 1988).
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However, like Appellant’s arguments directed to Youngblood alone
discussed above, these arguments are also unpersuasive of reversible error
because they are improperly based only on Pontier, and do not take into
account what the combined disclosures of the applied prior art would have
suggested to one of ordinary skill in the art at the time of Appellant’s
invention, discussed above. Merck, 800 F.2d at 1097; Keller, 642 F.2dat
425.
Appellant further argues that “Xu would not be perceived as a
teaching guide for the processing of paraffinic naphtha by an engineer
working in the field.” App. Br. 26. In support of this argument, Appellant
relies on paragraph 59 of the second Longstaff Declaration, which states that
one of ordinary skill in the art would not have interpreted Xu’s statement
that the feed for Xu’s downflow reactor can be “any hydrocarbon feedstock
suitable for catalytic cracking” as including paraffinic naphtha because
paraffinic naphtha does not produce sufficient coke to be used as a primary
feed to an FCC. App. Br. 26; second Longstaff Declaration 159.
However, Appellant’s arguments and the relied-upon statements in the
second Longstaff Declaration are based on Xu alone and do not take into
consideration what the combined disclosures of the entirety of the applied
prior art would have suggested to one of ordinary skill in the art at the time
of Appellant’s invention. Forthe reasons discussed above, the combined
disclosures of Pontier and Youngblood would have led one of ordinary skill
in the art to use the highly paraffinic fresh naphtha feedstock disclosed in
Youngblood as a feed for Pontier’s dropper reactor. As discussed more fully
below, Xu would have suggested operating Pontier’s dropper reactor using a
high catalyst-to-oil ratio, such as 25 as recited in claim 16, to enhance the
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catalytic activity in Pontier’s dropper reactor, thereby improving the
reactor’s performance. Therefore, Appellant’s arguments and the relied-
upon statements in the second Longstaff Declaration are unpersuasive of
reversible error.
Appellant further argues that Pointer teaches away from operating the
dropper reactor described in the reference at a high catalyst-to-oil ratio as
disclosed in Xu because doing so would eliminate the catalyst cooler effect
of Pointer’s dropper reactor. App. Br. 25—27. Relying on paragraphs 6 and
52—56 of the second Longstaff Declaration, Appellant contends that “[i]t is
known that increasing the catalyst-to-oil ratio increases the production of
coke.” App. Br. 26. Appellant argues that operating Pontier’s dropper
reactor based on Xu’s disclosures at a catalyst-to-oil ratio as recited in claim
16 would increase coke formation, which would result in more heat being
released during catalyst regeneration, thereby having “just the opposite
effect from the desired catalyst cooler effect.” Id. In support of these
arguments, Appellant relies on paragraph 12 of the third Longstaff
Declaration and paragraph 61 of the second Longstaff Declaration. App.Br.
25-26.
However, neither Appellant nor the relied-upon portions of the
Declarations provide any objective evidence corroborating the conclusory
opinion provided in the second Declaration that increasing the catalyst-to-oil
ratio in a downflow reactor increases the production of coke. Even if this
were the case, Appellant and the second and third Declarations do not
provide any objective evidence establishing that increasing the catalyst-to-
oil ratio used during operation of Pontier’s dropper reactor from 20 as
disclosed in Pointier, to 25 as suggested by Xu and recited in claim 16,
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would eliminate the catalyst cooler effect ofPontier’s dropper reactor. It
follows that we again give the opinion proffered in the relied-upon portions
of the second Longstaff Declaration little to no weight. 37 C.F.R. §
42.65(a); Velander, 348 F.3dat 1371; Am. Acad. ofSci. Tech Ctr., 367 F.3d
at 1368.
In addition, Appellant and the relied-upon portions of the second and
third Longstaff Declarations do not address Ponder’s exp licit disclosure that
the heat extraction effect of Pointer’s dropper reactor requires an increase in
the catalyst-to-feed (or oil) ratio utilized during operation of the reactor. Nor
do Appellant and the Declarations address Pontier’s disclosure that
increasing the catalyst-to-feed ratio advantageously results in better catalytic
activity, allowing refractory feeds to be treated in the dropper. In view of
these disclosures in Pontier, and in view of Xu’s disclosure that high
oiFcatalyst contact efficiency in a downflow catalytic cracking reactor
provides good reaction performance, one of ordinary skill in the art would
have been led to operate Pontier’s dropper reactor using a catalyst to oil
(feed) ratio as disclosed in Xu, such as a ratio of 25 as recited in claim 16, to
enhance catalytic activity in Pontier’s dropper reactor, thus, improving the
reactor’s performance.
We further note that Appellant’s Specification indicates that a suitable
catalyst-to-oil ratio for use during operation of Appellant’s downflow reactor
is 10 to 80. Spec. 6,11. 18—21, 12,11. 5—12. Appellant does not direct us to
any showing of criticality of the narrower ratio of 25 to 50 recited in claim
16. See In re Woodruff, 919 F.2d 1575, 1578 (Fed. Cir. 1990) (indicating
that in cases in which the difference between the claimed invention and the
prior art is some range or other variable within the claims, the applicant must
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show that the particular range is critical, generally by showing that the
claimed range achieves unexpected results relative to the prior art range).
Therefore, Appellant’s arguments and the relied-upon statements in the
second and third Longstaff Declarations are unpersuasive of reversible error.
Appellant further argues that “one of ordinary skill in the art would
readily appreciate that it would not serve the stated purpose of the
Youngblood process to operate at Applicant’s claimed higher catalyst-to-oil
ratio.” App.Br. 25. In support of these arguments, Appellant relies on
paragraphs 9 and 10 of the third Longstaff Declaration. App. Br. 24—25.
However, the Examiner’s rejection is not based on operating
Youngb lo o d ’ s pro c es s us ing a higher c atalyst-to -o il ratio. Rather, as
discussed above, the evidence supports the Examiner’s finding that one of
ordinary skill in the art would have been led at the time of Appellant’s
invention to operate Ponder’s dropper reactor using a catalyst to oil (feed)
ratio as disclosed in Xu to enhance the oil/catalyst contact efficiency, and
thereby improve the reaction performance of Pontier’s dropper reactor.
Final Act. 7; Ans. 18—19. Because Appellant’s arguments and the relied-
upon statements in the Declaration do not address what the combined
disclosures of the entirety of the applied prior art would have suggested to
one of ordinary skill in the art at the time of Appellant’s invention, they are
unpersuasive of reversible error in the rejection.
Appellant further argues that even if one of ordinary skill in the art
would have been led to utilize paraffinic naphtha as a feed for Pontier’s
dropper reactor in view of Youngblood’s disclosures, neither Pontier nor
Youngblood teaches or suggests, or provides any motivation, to operate
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Pontier’s dropper reactor at the catalyst-to-feedstream ratio recited in claim
16. App. Br. 25.
However, Appellant’s arguments ignore the teachings of Xu relied on
by the Examiner, and in so doing, do not address what the combined
disclosures of the entirety of the applied prior art would have suggested to
one of ordinary skill in the art at the time of Appellant’s invention. As
discussed above, one of ordinary skill in the art would have been led to
operate Pontier’s dropper reactor using a catalyst to oil (feed) ratio as
disclosed in Xu to enhance catalytic activity in Pontier’s dropper reactor,
thereby improving the reactor’s performance, in view of Pontier’s disclosure
that increasing the catalyst-to-feed ratio advantageously results in better
catalytic activity in a dropper reactor that exerts a heat extraction effect, and
Xu’s disclosure that high oil/catalyst contact efficiency in a downflow
catalytic cracking reactor provides good reaction performance.
Appellant further argues that the Examiner’s rejection is based on
impermissible hindsight because “there is no teaching, suggestion, or
motivation to use the catalyst-to-oil ratio of Xu in the process of
Pontier and Youngblood” (emphasis omitted), and “there is no suggestion to
use the paraffinic naphtha feed of Youngblood in Pontier, and in fact using
such a feed would be detrimental to the process ofPontier.” App. Br. 28.
However, as discussed above, the combined disclosures ofPontier,
Youngblood, and Xu would have led one of ordinary skill in the art to treat
the paraffinic fresh naphtha feedstock disclosed in Youngblood in Pontier’s
dropper reactor as recited in claim 16 because Pontier discloses that any
uncracked fresh feed can be treated in the dropper reactor. In addition, the
combined disclosures ofPontier, Youngblood, and Xu would have led one
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of ordinary skill in the art to operate Pontier’s dropper reactor with a catalyst
to oil (feed) ratio as disclosed in Xu, such as a ratio of 25 as recited in claim
16, to enhance the oil/catalyst contact efficiency, and thereby improve the
reaction performance of, Pontier’s dropper reactor as disclosed in Xu.
Accordingly, Appellant has not persuaded us that the rejection of claims 16—
35 under 35 U.S.C. § 103(a) is based on impermissible hindsight. In re
Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006) (requiring “some articulated
reasoning with some rational underpinning to support the legal conclusion of
obviousness”) (cited with approval in KSR, 550 U.S. at 418).
Appellant’s arguments and the relied-upon portions of the second and
third Longs taff Declarations are therefore unpersuasive of reversible error,
and we accordingly sustain the Examiner’s rejection of claims 16—35 under
35 U.S.C. § 103(a).
Rejection II
In view of the issuance of Application No. 13/111,437 as U.S. Patent
8,877,042 B2 on November 4, 2014, we decline to reach the provisional
obviousness-type double patenting rejection because “at least some of the
claims relied upon in the provisional obviousness-type double patenting
rejections on appeal either clearly are, or may be, different in language or
status from the claims originally relied upon when these rejections were
initially made by the Examiner.” Exparte Jerg, 2012 WL 1375142, at *3
(BPAI 2012) (informative).
DECISION
For the reasons set forth in the Final Office Action, the Answer, and
above, we affirm the Examiner’s rejection of claims 16—35 under 35 U.S.C.
§ 103(a).
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Application 13/156,440
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
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