11613766 (P.T.A.B. Mar. 28, 2013)

Ex Parte McCormick et al

Patent Trial and Appeal BoardMar 28, 2013

11613766 (P.T.A.B. Mar. 28, 2013)

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. 11/613,766 12/20/2006 Ricky McCormick COS-1012 8289 25264 7590 03/28/2013 FINA TECHNOLOGY INC PO BOX 674412 HOUSTON, TX 77267-4412 EXAMINER MOHADDES, LADAN ART UNIT PAPER NUMBER 1726 MAIL DATE DELIVERY MODE 03/28/2013 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 RICKY MCCORMICK, DAVID W. KNOEPPEL, STEVEN D. GRAY, and TIME J. COFFY ____________ Appeal 2011-012832 Application 11/613,766 Technology Center 1700 ____________ Before BRADLEY R. GARRIS, CATHERINE Q. TIMM, and JEFFREY T. SMITH, Administrative Patent Judges. SMITH, Administrative Patent Judge DECISION ON APPEAL STATEMENT OF THE CASE This is an appeal under 35 U.S.C. § 134 from a final rejection of claims 1-24. We have jurisdiction under 35 U.S.C. § 6. Claim 1 is illustrative of the subject matter on appeal: 1. A process for preparing a chromium pre-catalyst comprising admixing a dried and supported chromium catalyst precursor with a treatment agent to form a pre-catalyst, wherein the treatment agent is selected from the group consisting of an aluminum treating agent, a boron treating agent, and mixtures thereof and wherein the chromium pre-catalyst is inactive for polymerization. Appeal 2011-012832 Application 11/613,766 2 The Examiner maintains and Appellants request review of the following rejections (App. Br. 3):1 Claims 1-6, 10, 14-18, and 21-23 under 35 U.S.C. § 102(b) as anticipated by Rhode, (WO 2004/026919).2 Claims 7-8, 19-20 and 24 under 35 U.S.C. § 103(a) as unpatentable over the combination of Rhode and Pullukat (US 5,895,770). Claims 10-12 under 35 U.S.C. § 103(a) as unpatentable over the combination of Rhode as and Cann (US 6,989,344 B2). Claim 13 under 35 U.S.C. § 103(a) as unpatentable over the combination of Rhode as and McConville (US 7,414,006 B2). OPINION We reverse for the reasons provided by Appellants and add the following. The dispositive issue on appeal is: Did the Examiner err in determining that Rhode describes preparing a chromium pre-catalyst comprising a chromium catalyst precursor and a treatment agent as required by the subject matter of independent claims 1 and 15?3 We answer this question in the affirmative. 1 We note Appellants indicate (App. Br. 2) that claim 9 is not under rejection. In view of our disposition of this appeal, the omission of claim 9 from a rejection is harmless error. 2 The citations for this reference are made to the US equivalent application US 2006/0122340 A1. 3 We also reverse the § 103 rejections for the same reasons. The Pullukat, Cann and McConville references were cited to address other limitations of the dependent claims not related to the dispositive issue. Appeal 2011-012832 Application 11/613,766 3 Appellants correctly argue that Rhode fails to teach a chromium pre- catalyst comprising a chromium catalyst precursor and a treatment agent as required by the claimed invention. (App. Br. 3-5). Rhode discloses the first step of the method is a pretreatment step in which the catalyst precursors or catalyst supports arc converted into polymerization catalysts. ([0010] [0011]). This pretreatment comprises as an essential step at least one thermal treatment at from 250 to 1200o C. (Id.). Rhode discloses the thermally treated catalyst may be subject to further treatment including reaction with metal alkyls such as boron trialkyls or aluminum trialkyls. ([0014]). The independent claims require the preparation of a pre-catalyst that is inactive for polymerization. The claimed pre-catalyst is treated with an aluminum treating agent and/or a boron treating agent treatment agent (without catalytic activation). As stated above, Rhode’s treatment with a treating agent occurs after the catalyst has been activated by at least one thermal treatment. The Examiner’s citation to Rhode’s ¶¶ [0050] and [0051] is not accurate. (Ans. 8). Rhode ¶ [0050] specifically states “the chromium catalyst precursor i.e. the unactivated catalyst, can also be prepared in the reactor.” ([0050]). Rhode ¶ [0051] concerns the influence of the chemical composition of the catalyst on the polymerization reaction. Rhode’s ¶¶ [0050] and [0051] do not state that the chromium catalyst precursor is subject to treatment with a metal treating agent as required by the subject matter of the independent claims. For the foregoing reasons and those presented by Appellants, the Examiner’s rejections of claims 1-29 are reversed. Appeal 2011-012832 Application 11/613,766 4 ORDER The rejections of claims 1-29 are reversed. REVERSED cam