Ex Parte Hortmann et al

Patent Trial and Appeal Board

Jun 28, 2016

12665199 (P.T.A.B. Jun. 28, 2016)

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.
12/665,199 05/28/2010 Kai Hortmann F-1049 RCE 2 9301
25264 7590 06/28/2016
FINA TECHNOLOGY INC
PO BOX 674412
HOUSTON, TX 77267-4412
EXAMINER
LU, C CAIXIA
ART UNIT PAPER NUMBER
1765
MAIL DATE DELIVERY MODE
06/28/2016 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 KAI HORTMANN, DAVID VANDEWIELE, and
WILLIAM GAUTHIER
____________

Appeal 2015-000833
Application 12/665,199
Technology Center 1700
____________
Before BRADLEY R. GARRIS, BEVERLY A. FRANKLIN,
and MONTÉ T. SQUIRE, Administrative Patent Judges.
SQUIRE, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants1 appeal from the Examiner’s final rejection of claims 11
and 13–22. 35 U.S.C. § 134(a). We have jurisdiction under 35 U.S.C. § 6(b).
For the reasons set forth below, we AFFIRM.

1 Appellants identify Total Research & Technology Feluy as the Real Party
in Interest. App. Br. 5.
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The Claimed Invention
Appellants’ disclosure relates to a process for the polymerization of
olefins, particularly, a process for the polymerization of propylene. Spec. 1,
ll. 6–8. Claim 11 is representative of the claims on appeal and is reproduced
below from the Claims Appendix to the Appeal Brief (App. Br. 17)
(emphasis added):
11. A process for the polymerisation of olefins comprising:
passing an olefin-containing hydrocarbon feedstock over a
sorbent material comprising nickel deposited on a support
material, wherein said nickel is present as both nickel oxide and
metallic nickel in a nickel-nickel oxide sorbent bed, wherein a
total weight of nickel oxide and metallic nickel represents from
40 to 70 wt.% of the sorbent material, wherein the weight ratio
of nickel and nickel oxide is from 0.4 to 2.0, wherein the olefin-
containing hydrocarbon feedstock has reduced carbon monoxide
content after passing over the sorbent material;
converting at least part of the olefins contained in said
hydrocarbon feedstock into a polymer over one or more
metallocene catalysts; and recovering the polymer.
The References
The Examiner relies on the following prior art in rejecting the claims
on appeal:
Debras et al., US 4,861,939 Aug. 29, 1989
(hereinafter “Debras I”)

Debras et al., US 5,470,456 Nov. 28, 1995
(hereinafter “Debras II”)

Foral et al., US 2003/0105376 A1 June 5, 2003
(hereinafter “Foral”)

Bodart et al., EP 0648720 A1 Apr. 19, 1995
(hereinafter “Bodart”)
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The Rejection
On appeal, the Examiner maintains the following rejection:
Claims 11 and 13–22 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Foral in view of Debras I, Debras II, and Bodart.
OPINION
Having considered the respective positions advanced by the Examiner
and Appellants in light of this appeal record, we affirm the Examiner’s
rejections for the reasons set forth in the Answer, which we adopt as our
own. Nevertheless, we highlight and address specific findings and
arguments for emphasis as follows.
Appellants argue claims 11 and 13–22 as a group. We, therefore,
select claim 11 as representative of this group, and the remaining claims
stand or fall with claim 11. 37 C.F.R. § 41.37(c)(1)(iv).
The Examiner finds that the combination of Foral and Debras I,
Debras II, or Bodart, respectively, suggests all of the limitations of claim 11.
Ans. 2–4. The Examiner finds that Foral discloses nearly all of claim 11’s
limitations, except that it does not discloses use of “an adsorbent comprising
both nickel metal and nickel oxide on the same support,” as required by the
claim. Id. at 2, 3 (citing Foral ¶¶ 32, 34, 47). The Examiner, however, relies
on each of Debras I, Debras II, and Bodart, respectively, for teaching these
missing limitations. Id. at 3.
In particular, the Examiner finds that Debras I discloses “a process for
removing impurities in an olefin stock for preparation of an olefin polymer
by passing the olefin stream over an absorbent material comprising both
nickel oxide and metallic nickel on a support material, wherein the total
weight of nickel and nickel oxide can range up to about 80 wt[.] % of the
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absorbent and the metallic nickel content is within the range of 10 to 50 wt%
of the absorbent.” Ans. 3 (citing Debras I, col. 2, l. 60–col. 3, l. 42; col. 4, l.
54–col. 5, l. 7). The Examiner finds further that Debras II and Bodart each
discloses a process “similar” to the process Debras I discloses, and that the
cited prior references are all “analogous” because “they all are from the
same area of endeavor of purification of olefin stock for olefin
polymerizations in the presence of catalysts such as metallocene and Ziegler
catalyst which are sensitive to similar impurities.” Id.
Based on the above findings, the Examiner concludes that it would
have been obvious to one of ordinary skill in the art at the time of the
invention “to employ [the] absorbent material of Debras I, Debras II or
Bodart in Foral’s olefin stream purification process in order to simplify
Foral’s two-step purification process to a one-step process to provide olefin
stocks for polymerization in the presence of metallocene catalyst
composition since such is conventionally done in the art.” Ans. 3, 4. The
Examiner further concludes that it would have been obvious to one of
ordinary skill in the art at the time of invention to “choose nickel oxide as
Foral’s second absorbent component of nickel with a positive valence in
search for the most efficient absorbents for impurity removal since such is
within the scope of the teaching of the cited the prior art.” Id. at 4.
Appellants argue that the Examiner’s rejection should be reversed
“because the prior art does not teach or suggest the use of the recited nickel-
nickel oxide sorbent bed to reduce the amount of carbon monoxide in an
olefin-containing hydrocarbon feedstock.” App. Br. 12. In particular,
Appellants argue that: (1) “Foral does not disclose nickel oxide as a
sorbent”; (2) “[t]here is no teaching that Foral, Debras I, Debras II, or
Bodart ‘envision’ both nickel oxide and iron oxide as an absorbent for
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carbon monoxide”; and that (3) “none of Debras I, Debras II, and Bodart
teach, disclose or suggest the recited use of nickel oxide.” Id. at 12, 13.
We are not persuaded by Appellants’ arguments. As found by the
Examiner (Ans. 2, 3, 4) and contrary to Appellants’ argument, the cited prior
art does disclose the claimed nickel-nickel oxide sorbent bed. In particular,
as the Examiner found (Ans. 3, 4), Foral discloses nickel with a positive
valence, which is exemplified as nickel oxide, i.e., NiO, and disclosed as
nickel ferrite, i.e., NiFe2O4, which is equivalent to and well-known in the art
as NiOFe2O4. Foral ¶¶ 32, 34, 47. As the Examiner also found (Ans. 4),
Debras I, Debras II, and Bodart each discloses nickel oxide as one of the two
required absorbents to remove the impurities in olefin monomer streams for
utilizing highly efficient catalysts, e.g., metallocene catalysts, to convert
such olefins into polymers. Debras I, Abstract, col. 2, l. 60–col. 3, l. 42; col.
4, l. 54–col. 5, l. 7; Debras II, Abstract; Bodart, Abstract. We discern no
reversible error in the Examiner’s analysis and findings in this regard.
Moreover, the Examiner’s conclusions (Ans. 4) that, based on the
teachings of the prior art, it would have been obvious to one of ordinary skill
in the art at the time of invention to: (a) choose nickel oxide as Foral’s
second absorbent component of nickel with a positive valence in
determining the most efficient absorbents for impurity removal, and (b)
employ the absorbent material of Debras I, Debras II or Bodart in Foral’s
olefin stream purification process in order to simplify Foral’s two-step
purification process to a one-step process are supported a preponderance of
the evidence and based on sound technical reasoning. Foral ¶¶ 32, 34, 47;
Debras I, Abstract, col. 2, l. 60–col. 3, l. 42; col. 4, l. 54–col. 5, l. 7; Debras
II, Abstract; Bodart, Abstract. Appellants’ argument, without more, is
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insufficient to establish reversible error in the Examiner’s findings and
conclusions in this regard.
Appellants argue that: (1) the “Examiner has not established that one
of ordinary skill in the art, reading any one of Debras I, Debras II, or
Bodart, would [have been] motivated to apply the [disclosed] solutions for
removal of arsine and carbonyl sulfide to remove carbon monoxide”; (2) that
the “cited references do not teach that carbon oxides and acetylenic
impurities absorb/complex with nickel and nickel oxide by a similar or
identical mechanism as does arsine and carbonyl sulfide”; and (3) that the
references “provide no indication that the absorbents disclosed therein are
suitable for the removal of carbon oxides and acetylenic impurities.” App.
Br. 13, 14.
We do not find Appellants’ arguments persuasive because Appellants
fail to direct us to sufficient evidence in the record or provide an adequate
technical explanation to support them. Attorney argument cannot take the
place of evidence. In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984).
Moreover, as previously discussed above, the Examiner provides a
reasonable basis and identifies sufficient evidence in the record to evince
why one of ordinary skill would have combined the teachings of the
references to arrive at Appellants’ claimed invention. See Foral ¶¶ 32 and 34
(disclosing a two-step purification process); Debras I, Abstract, col. 5, 15–22
(disclosing a one-step purification process). That Appellants disagree with
the Examiner’s reason for combining the references, without more, is
insufficient to establish reversible error. KSR Int’l Co. v. Teleflex, Inc., 550
U.S. 398, 420 (2007) (explaining that any need or problem known in the art
can provide a reason for combining the elements in the manner claimed).
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Appellants argue that “Foral teaches against using a nickel bed and
nickel ferrite bed to remove the compounds in Debras I, Debras II, or
Bodart” and that “Debras I, Debras II, and Bodart do not provide
motivation to modify Foral, because such a modification would change the
principle of operation of Foral.” App. Br. 14, 15.
Appellants’ initial argument is not well-taken because it is irrelevant
to and fails to adequately address the Examiner’s rejection. Contrary to
what Appellants’ argument seems to suggest, the Examiner’s rejection does
not propose using Foral’s nickel bed and nickel ferrite bed to remove the
compounds in the processes disclosed by Debras I, Debras II, and Bodart.
Instead, as the Examiner concluded (Ans. 3, 4, 6) and previously discussed
above, one of ordinary skill in the art at the time of the invention would have
employed the “absorbent material of Debras I, Debras II or Bodart in Foral’s
olefin stream purification process in order to simplify Foral’s two-step
purification process to a one-step process.” Appellants’ argument is
insufficient to establish reversible error in the Examiner’s findings and
conclusion in this regard.
Accordingly, we affirm the Examiner’s rejection of claims 11 and 13–
22 under 35 U.S.C. § 103(a) as unpatentable over the combination of Debras
I, Debras II, or Bodart.
DECISION/ORDER
The Examiner’s rejections of claims 11 and 13–22 under 35 U.S.C.
§ 103(a) are affirmed.
It is ordered that the Examiner’s decision is affirmed.
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).
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AFFIRMED