Ex Parte Hoek et al

Board of Patent Appeals and Interferences

Jun 19, 2012

12158204 (B.P.A.I. Jun. 19, 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.
12/158,204 06/19/2008 Arend Hoek TS1602US 7199
23632 7590 06/20/2012
SHELL OIL COMPANY
P O BOX 2463
HOUSTON, TX 772522463
EXAMINER
WOOD, ELIZABETH D
ART UNIT PAPER NUMBER
1732
MAIL DATE DELIVERY MODE
06/20/2012 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 AREND HOEK and GERARDUS PETRUS NIESEN
____________________

Appeal 2010-008121
Application 12/158,204
Technology Center 1700
____________________

Before BRADLEY R. GARRIS, ADRIENE LEPIANE HANLON, and
CATHERINE Q. TIMM, Administrative Patent Judges.

TIMM, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF CASE
Appellants appeal under 35 U.S.C. § 134 from the Examiner’s
decision to reject claims 1-5 and 7-11 under 35 U.S.C. § 103(a) over
Gimpel1 and over Reinalda2 in view of Gimpel. We have jurisdiction under
35 U.S.C. § 6(b).

1 Gimpel et al., US 2003/0162848 A1, pub. Aug. 29, 2003.
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For the reasons given by the Examiner in the Answer, we AFFIRM.
We add the following primarily for emphasis.
The claims are directed to a method of preparing a catalyst support, a
supported metal catalyst, or a catalyst body (see claims 1 and 2). In the
process, titania is admixed with a zirconium precursor to form a slurry (id.).
This slurry is spray dried or coated onto a metal, and calcined (id.). During
calcination the zirconium precursor is converted to zirconium oxide (ZrO2)
also known as zirconia (Spec. 6:1-7). The zirconium precursor may include
zirconia, but it preferably contains less than 10 w% zirconia (Spec. 6:7-10).
Preferably, the zirconium precursor comprises an ammonium zirconium
compound in an ammonium solution (Spec. 6:27-31).
The focus of this appeal is on the zirconium precursor. Claim 1 is
illustrative and we reproduce this claim with key language italicized:
1. A method of preparing a catalyst support or a
supported metal catalyst, the method comprising:
(a) admixing titania with a water soluble zirconium
precursor comprising an ammonium zirconium compound in an
alkaline solution, and if a supported metal catalyst is prepared,
with a precursor of the metal or the metal itself, yielding a
slurry,
(b) spray-drying the slurry, and
(c) calcining;
wherein the zirconium precursor comprises less than 10 w%
zirconia.
(Claims App. at Br. 6 (emphasis added).)

2 Reinalda et al., US 5,217,938, patented Jun. 8, 1993.
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OPINION
A. REJECTION OVER GIMPEL
Appellants do not argue any claim apart from the others. Therefore,
we select claim 1 as representative for resolving the issues on appeal.
Appellants open their argument by discussing results reported in their
Specification at Tables 4 and 5 (Br. 3-4; see Spec. 18-19 for Tables 4 and 5).
Appellants state that these results indicate that using a zirconium precursor
that does not contain zirconium dioxide (zirconia) results in a mechanically
stronger catalyst with increased hydrothermal strength (Br. 4). Appellants
also state that “[c]obalt titanate formation at high calcination temperatures is
highly reduced when a zirconium precursor without zirconium dioxide is
used. This is not to be expected when zirconium dioxide powder is used as
part of the precursor.” (Id.) Appellants then contend that Example V of
Gimpel does not relate to a titania supported catalyst and, while Example I
of Gimpel does relate to a titania supported catalyst, Example I fails to
disclose or suggest adding a zirconia-free zirconium precursor to titania
(id.). Appellants also state that both Examples I and V use a ceramic
zirconium oxide paint in the precursor (id.). On this basis, Appellants
contend that “[s]ince the claims of the present invention require that the
ammonium zirconium compound comprise less than 10 wt% zirconium, the
Appellants assert that these examples, and thus the reference, are not
relevant.” (Id.)
With regard to the relevance of Gimpel, we note that Gimpel, like
Appellants, is directed to forming Fischer Tropsch supported catalysts
(Gimpel ¶ [0003]; Spec. 1:1-8). According to Gimpel, the support material
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may be silica, titania, zirconia, or mixed oxides of those refractory oxides
(Gimpel ¶ [0027]). Gimpel, therefore, suggests forming titania-zirconia
mixed oxide catalyst support materials. Gimpel further suggests
alternatively using a precursor compound that will yield the desired
refractory oxide in the calcination step (Gimpel ¶ [0042-45]). Moreover, we
agree with the Examiner that Gimpel’s Example V describes producing a
zirconia precursor slurry from ammonium zirconium carbonate (Ans. 4).
Gimpel’s broad disclosure provides evidence that the ammonium zirconium
carbonate (Bacote 20) disclosed in Gimpel’s Example V was being used as a
zirconium precursor that yields zirconia upon calcining (Gimpel ¶ [0045])
The evidence supports a conclusion that when those of ordinary skill
in the art sought to form a mixed oxide support of titania and zirconia as
suggested by Gimpel, it would have been obvious to have used ammonium
zirconium carbonate (Bacote 20) as a zirconium precursor to form the
required zirconia portion of the mixed oxide support.
As pointed out by the Examiner, Appellants’ Specification indicates
that Appellants’ zirconium precursor preferably comprises an alkaline
zirconium ammonium solution sold under the trademark Bacote 20 (Ans. 7;
see also Spec. 6:27-31). It follows that, as found by the Examiner, Bacote
20 meets the requirements of the zirconium precursor containing less than 10
w% zirconia of the claims (Ans. 4). Appellants offer no convincing
evidence to the contrary (Br., generally; no reply brief was filed).
Appellants contend that Gimpel’s Examples I and V use a ceramic
zirconium paint in the precursor (Br. 4). This is not entirely correct.
Gimpel’s Example I admixes a ceramic zirconium oxide paint into the
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slurry. However, no such paint is admixed into the slurry of Example V. In
Example V, zirconium 10 oxide paint is coated onto the aluminum shaving
cores before the slurry containing the zirconium precursor is applied
(Gimpel, Exs. I and V at ¶¶ [0068] and [0075-76]). Example V of Gimpel
suggests using a water soluble zirconium precursor comprising an
ammonium zirconium compound (Bacote 20) that does not contain
zirconium oxide paint.
Moreover, we agree with the Examiner that the zirconium oxide paint
is merely used in an example and the broader teaching of the reference
indicates that it is not essential (Ans. 7-8). Moreover, the Examiner further
finds that the zirconium oxide paint is itself a precursor and not the
refractory oxide itself (Ans. 8, citing Gimpel ¶ [0045]). Paragraph 45 states
that refractory oxide paints frequently comprise a precursor compound of a
refractory oxide. Appellants do not dispute the Examiner’s finding or offer
evidence rebutting it.
For all the above reasons, the preponderance of the evidence supports
the finding of the Examiner.
It is somewhat unclear from the arguments, but Appellants appear to
contend that their Specification provides evidence of unexpected results as
shown by the data reported in Tables 4 and 5. We are, however, in full
agreement with the Examiner’s determination that the evidence is not
commensurate in scope with the claims (Ans. 8). None of Appellants’
examples include any zirconia in the slurry much less zirconia up to 10 w%.
Appellants have not provided data showing, or otherwise established, that
the results they state are unexpected occur throughout the claimed range.
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In addition, the comparison discussed in the Specification compares
catalysts formed from Bacote 20 zirconium precursor and catalysts not
formed with Bacote 20 or any other form of zirconia (Spec. 17). The
Specification only indicates that using zirconium precursor increases
hydrothermal strength as compared to catalyst with no zirconia from any
source (Spec. 19). In other words, the comparison is between catalysts with
zirconia and those with no zirconia. There is no comparison between
catalysts made from slurries containing zirconium precursor and slurries
containing zirconia. The comparison, therefore, is not particularly relevant
to the question of whether using a different starting material (zirconium
precursors with less than 10 wt% zirconia versus those having more than 10
wt% zirconia) to form the zirconia in the titania-zirconia catalyst provides an
unexpected result.
Moreover, the Specification does not state that the results would have
been unexpected to the ordinary artisan. An appellant must establish that
the property would have been viewed as unexpected by one of ordinary skill
in the art. See Pfizer, Inc. v. Apotex, Inc., 480 F.3d 1348, 1371 (Fed. Cir.
2007) (“[A]ny superior property must be unexpected to be considered as
evidence of non-obviousness,” and a proper evaluation considers what
properties were expected). Such a showing must be based on evidence, not
argument or speculation. In re Mayne, 104 F.3d 1339, 1343-44 (Fed. Cir.
1997); In re Schulze, 346 F.2d 600, 602 (CCPA 1965); see also In re
Greenfield, 571 F.2d 1185, 1189 (CCPA 1978) (arguments of counsel
cannot take the place of evidence).
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The totality of the evidence supports the Examiner’s conclusion of
obviousness over Gimpel.

B. REJECTION OVER REINALDA AND GIMPEL
Appellants point out that Reinalda discloses a silica-zirconia
supported catalyst, not a titania-zirconia supported catalyst, but this
difference is properly accounted for in the Examiner’s rejection. The
Examiner has properly established that these types of mixed oxide catalyst
support materials (silica-zirconia and titania-zirconia) were known in the art
as within a class of useful oxide support materials as evidenced by Gimpel
(Ans. 5-6 and 8; see also Gimpel ¶ [0027]). Appellants do not offer any
convincing evidence in rebuttal. The evidence supports the Examiner’s
finding of equivalence.
Appellants contend that Reinalda does not use a zirconium precursor
with less than 10 wt% zirconium dioxide (zirconia) (Br. 4). However,
Reinalda suggests employing ammonium zirconium carbonate as a
zirconium precursor (Reinalda, col. 5, ll. 52-53). While Reinalda identifies
the compound as “ammonium zirconium carbonate (20% wt ZrO2, 40g)”, we
agree with the Examiner that the ordinary artisan would have understood
“20% wt ZrO2” as referring to the weight equivalent ZrO2 yielded when the
precursor is converted to ZrO2 upon calcining (Ans. 10; Gimpel’s discussion
of Bacote 20; Appellants’ listing of Bacote 20 properties in Table 2 at Spec.
12). Clearly the precursor does not contain ZrO2. If it did, it would not be a
precursor.
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The totality of the evidence supports the Examiner’s conclusion of
obvious over Reinalda and Gimpel.
CONCLUSION
We sustain the Examiner’s rejections.
DECISION
The Examiner’s decision is affirmed.
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)(1).

AFFIRMED

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