Ex Parte Dierickx

Board of Patent Appeals and Interferences

Jun 26, 2012

11597441 (B.P.A.I. Jun. 26, 2012)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
11/597,441 11/22/2006 Jan Lodewijk Maria Dierickx TS1590 US 7647
23632 7590 06/26/2012
SHELL OIL COMPANY
P O BOX 2463
HOUSTON, TX 772522463
EXAMINER
ROBINSON, RENEE E
ART UNIT PAPER NUMBER
1774
MAIL DATE DELIVERY MODE
06/26/2012 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte JAN LODEWIJK MARIA DIERICKX
____________

Appeal 2011-001461
Application 11/597,441
Technology Center 1700
____________

Before BRADLEY R. GARRIS, LINDA M. GAUDETTE, and
MICHAEL P. COLAIANNI, Administrative Patent Judges.

GAUDETTE, Administrative Patent Judge.

Appeal 2011-001461
Application 11/597,441

2
DECISION ON APPEAL

Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s decision1
finally rejecting claims 1-11, the only claims pending in the Application.2, 3 We
have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
Appellant relies on limitations found in claim 1, the sole independent claim,
in support of patentability as to all appealed claims. (See generally, Br. 3-5.)
Claim 1 reads as follows (as reproduced from the Claims Appendix to the Appeal
Brief):
1. A process to prepare a gas oil, by
(a) isolating from a Fischer-Tropsch synthesis product a first gas oil fraction
and a heavier fraction boiling above the gas oil fraction;
(b) contacting the heavier fraction with a catalyst system comprising a
catalyst, which catalyst comprises an acidic matrix and a large pore molecular
sieve in a riser reactor at a temperature of between 450 and 650°C at a contact time
of between 1 and 10 seconds and at a catalyst to oil ratio of between 2 and 20
kg/kg to produce a product by fluid catalytic cracking;
(c) isolating from the product of step (b) a second gas oil fraction; and

1 Final Office Action mailed Nov. 17, 2009 (“Final”).
2 Appeal Brief filed Apr. 15, 2010 (“Br.”)
3 The claims stand rejected under 35 U.S.C. § 103(a) as follows: claims 1, 5-7, and
10 are rejected as unpatentable over Wittenbrink (US 6,274,029 B1 issued Aug.
14, 2001) in view of Derr (US 4,684,756 issued Aug. 4, 1987); claims 2-4 are
rejected as unpatentable over Wittenbrink in view of Derr, and further in view of
Germaine (WO 02/070630 A1 published Sep. 12, 2002); claim 8 is rejected as
unpatentable over Wittenbrink in view of Derr, and further in view of Wielers
(US 5,278,114 issued Jan. 11, 1994); claim 9 is rejected as unpatentable over
Wittenbrink in view of Derr, and further in view of Du Toit (WO 02/04575 A2
published Jan. 17, 2002); and claim 11 is rejected as unpatentable over Wittenbrink
in view of Derr, and further in view of Geerlings (WO 99/34917 published Jul. 15,
1999). (Br. 3; Examiner’s Answer mailed Jul. 7, 2010 (“Ans.”), 4-11.)

Appeal 2011-001461
Application 11/597,441

3
(d) combining the first gas oil fraction with the second gas oil fraction.

The Examiner finds Wittenbrink discloses a process as claimed in appealed
claim 1 (i.e., “a process for preparing distillate from a Fischer-Tropsch wax”
(col. 1, ll. 12-13)) with the exception that
Wittenbrink does not expressly disclose:
(b) contacting the heavier fraction with a catalyst system in a
riser reactor at a temperature of between 450 and 650°C at a contact
time of between 1 and 10 seconds and a catalyst to oil ratio of
between 2 and 20 kg/kg to produce a product by fluid catalytic
cracking (FCC).
(Ans. 5-6.) Instead of the above step (b), Wittenbrink employs a hydrocracking
step (see col. 2, ll. 33-59 wherein “the heavier fraction [is contacted] with a
catalyst system comprising a catalyst, which catalyst comprises an acidic matrix
and a large pore molecular sieve (Y and ultrastable Y sieves), in a reactor at a
temperature from 300-800°F (150-427°C).” (Ans. 5.)
The Examiner finds Derr discloses a process to upgrade the heavy waxy
product produced in a Fischer-Tropsch synthesis by FCC at “a temperature of 465-
478°C, a contact time of 1 second, and a catalyst to oil ratio of 4.2” (id. at 6),
which conditions fall within the ranges recited in appealed claim 1, step (b). The
Examiner finds “Derr . . . teaches that hydrocracking and FCC are equivalents
known for the same purpose (upgrading F-T waxes to distillate fuels)” and,
therefore, it would have been obvious to substitute the hydrocracking step (b) in
Wittenbrink with a FCC step, as suggested by Derr. (Ans. 12.)
Appellant argues one of ordinary skill in the art would not have been
motivated to modify Wittenbrink in the manner proposed by the Examiner
because, while “Derr expressly suggests that the gas oil product obtained by the
FCC process is of higher quality that [sic, than] the gas oil product obtained by
Appeal 2011-001461
Application 11/597,441

4
refinery cracking . . . ‘petroleum feedstocks’ . . . , there is no suggestion that the
FCC process provides any improvement to hydrocracking when dealing with just
Fischer-Tropsch derived products.” (Br. 5.)
“If a person of ordinary skill can implement a predictable variation, § 103
likely bars its patentability. For the same reason, if a technique has been used to
improve one device, and a person of ordinary skill in the art would recognize that it
would improve similar devices in the same way, using the technique is obvious
unless its actual application is beyond his or her skill.” KSR Int’l Co. v. Teleflex,
Inc., 550 U.S. 398, 417 (2007).
Appellant’s argument fails to refute the Examiner’s finding that
“hydrocracking and FCC are equivalents known for the same purpose” (Ans. 12
supra p. 3) and, therefore, one of ordinary skill in the art would anticipate that FCC
could be used in place of hydrocracking in Wittenbrink’s process. Appellant has
not shown that one of ordinary skill in the art would not have possessed the
requisite skills to modify Wittenbrink’s process in the manner proposed by the
Examiner. (See generally, Br. 3-5.) Absent such arguments/evidence we are not
persuaded of error in the Examiner’s obviousness determination.
Accordingly, we sustain all five grounds of rejection.
No time period for taking any subsequent action in connection with this
appeal may be extended under 37 C.F.R. § 1.136(a)(1).
AFFIRMED

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