Ex Parte Mohajeri et al

Patent Trial and Appeal Board

Jun 17, 2016

12629835 (P.T.A.B. Jun. 17, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/629,835 12/02/2009 Ali Mohajeri
60769 7590 06/21/2016
ARASH BEHRA VESH
MANNA VA & KANG, P.C.
3201 Jermantown Road
Suite 525
Fairfax, VA 22030
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
5000.1001 8576
EXAMINER
NGUYEN, COLETTE B
ART UNIT PAPER NUMBER
1732
NOTIFICATION DATE DELIVERY MODE
06/21/2016 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address( es):
abehravesh@mannavakang.com
docketing@mannavakang.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ALI MOHAJERI, ALIMORAD
RASHIDI,KHEIROLLAHJAF ARI JOZANI, PA YMAN KHO MARI,
BARMAN AMINI, DORSA PARVIZ and MANSOUR KALBASI
Appeal2015-001620
Application 12/629,835
Technology Center 1700
Before JEFFREY T. SMITH, KAREN M. HASTINGS, and
MICHAEL P. COLAIANNI, 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, 4, and 7-17. We have jurisdiction under 35 U.S.C. § 6.
Claim 1 is illustrative of the subject matter on appeal and is
reproduced below:
Appeal2015-001620
Application 12/629,835
1. A hydrodesulphurization nanocatalyst, comprising:
a nano-structured porous carbonaceous support material,
comprising carbon nanotubes;
a first active metal selected from sulfides of the group 8B
of the periodic table of elements, which sulfides are formed
during the sulphurization reaction from nitrate, acetate,
carbonate, sulfate, or thiocyanate salts of the group 8B metal of
the periodic table of elements; and
a second active metal selected from sulfides of the group
6B of the periodic table of elements, which metal is
molybdenum, which sulfides are formed during the
sulphurization reaction from ammonium heptamolybdate,
ammonium molybdate, sodium molybdate and molybdenum
oxide;
wherein the molar ratio of the group 8B metal to group
6B metal is from about 0.2 to about 0.5, wherein the group 8B
active metal is cobalt, and wherein the active metals in the
nanocatalyst are present in an amount from about 3 to about 15
percent by weight.
Appellants (App. Br. 6) request review of the following rejections
from the Examiner's Final Action: 1
I. Claims 1, 7, 9, 11-14 and 17 rejected under 35 U.S.C. § 103(a)
as unpatentable over Ma (US 2006/0142149 Al, published June 29, 2006)
and Sudhakar (US 5,770,046, issued June 23, 1998).
II. Claim 4 rejected under 35 U.S.C. § 103(a) as unpatentable over
Ma, Sudhakar, and Bronner (US 6,623,628 Bl, issued September 23, 2003).
1 The Examiner withdrew the rejection under 35 U.S.C. § 112, second
paragraph. Final Act. 2, Ans. 8. Accordingly, this rejection is not before us
for review on appeal.
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Application 12/629,835
Ill. Claim 8 rejected under 35 U.S.C. § 103(a) as unpatentable over
Ma, Sudhakar, and Lin (US 7,871,592 B2, issued January 18, 2011).
IV. Claim 10 rejected under 35 U.S.C. § 103(a) as unpatentable
over Ma, Sudhakar, and Bening (US 5,965,470, issued October 12, 1999).
V. Claims 15-17 rejected under 35 U.S.C. § 103(a) as
unpatentable over Ma, Sudhakar, and Eijsbouts-Spickova (US 8,476,184 B2,
issued July 2, 2013).
OPINION
We AFFIRM.
Prior Art Rejections
Rejection I (claims 1, 11 and 12)2
After review of the respective positions provided by Appellants and
the Examiner, we AFFIRM the Examiner's prior art rejection of claims 1, 7,
9, 11-14 and 17 under 35 U.S.C. § 103(a) for the reasons presented by the
Examiner and add the following for emphasis.
Claim 1
Independent claim 1 is directed to a hydrodesulphurization
nanocatalyst comprising a carbon nanotube support having as active metals a
Co sulfide and a Mo sulfide where the Co to Mo molar ratio is from about
0.2 to about 0.5.
2 Appellants present separate arguments for independent claims 1, 12 and
dependent claim 11 but do not present separate arguments for dependent
claims 7, 9, 13, 14 and 17. See Appeal Brief, generally. Accordingly, we
select independent claim 1 as representative of the subject matter before us
on appeal. Claims argued separately will be addressed separately. However,
claims 7, 9, 13, 14 and 17 will stand or fall with their respective independent
claim.
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Application 12/629,835
We refer to the Examiner's Answer for a statement of the rejection.
Final Act. 3--4.
Appellants argue Ma does not suggest a catalyst having a first active
metal of only Co and a second active metal of only Mo because Ma's
catalyst requires the presence of other metals. App. Br. 10-11; Ma i-f 74.
Appellants additionally argue Sudhakar does not disclose the claimed Co to
Mo molar ratio. App. Br. 11.
We are unpersuaded by Appellants' arguments and agree with the
Examiner's determination of obviousness for the reasons provided by the
Examiner. Ans. 8-9. First, we agree with the Examiner's determination that
the use of the transitional open language "comprising" in claim 1 does not
limit the metals present in the catalyst to just Co and Mo. Id. at 8. With
respect to the molar ratio of Co to Mo, the Examiner found Ma discloses a
hydrodesulfurisation nanocatalyst comprising a nano-structured support and
sulfides of Co and Mo. Final Act. 3--4, Ma Abstract i-fi-1 14, 15, 24, 31, 92.
While Ma is silent as to the molar ratio of Co to Mo, the Examiner found
Sudhakar teaches a hydrodesulfurisation catalyst having a carbonaceous
support comprising 0.1-15% Co and 0.5-30% Mo as catalytic metals ..
Final Act. 4; Sudhakar col. 9, 11. 10-65. The Examiner determined these
disclosed amounts result in Co to Mo molar ratios that overlap the claimed
Co to Mo molar ratio. Final Act. 4. Moreover, Appellants acknowledge that
Sudhakar' s amounts for Co and Mo result in a broad Co to Mo molar ratio
range that encompasses the claimed molar ratio for the same elements. App.
Br. 12. Thus, since the amounts of Co and Mo and, thus, a ratio representing
these amounts, are result effective variables, the Examiner provided a
reasonable basis to combine the cited art to arrive to the claimed invention.
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Application 12/629,835
It is well settled that it would have been obvious for an artisan with ordinary
skill to develop workable or even optimum ranges for result-effective
parameters. In re Boesch, 617 F.2d 272, 276 (CCPA 1980); In re Aller, 220
F.2d 454, 456 (CCPA 1955); In re Woodruff, 919 F.2d 1575, 1577-78 (Fed.
Cir. 1990)(where the difference between the claimed invention and the prior
art is some range, the applicant must show that the particular range is
critical, generally by showing that the claimed range achieves unexpected
results relative to the prior art range). Thus, Appellants have not adequately
explained why one skilled in the art would not have been capable of arriving
to the claimed catalysts from the teachings of the cited references.
In addition, Appellants principally assert the data in Table 3 of the
Specification shows unexpected results by the claimed Co to Mo molar ratio
in the form of improved hydrodesulfurisation performance when compared
against the hydrodesulfurisation performance of Sudhakar's catalysts. App.
Br. 12; Spec. i-fi-170-73 (Table 3 appears after i173).
The burden of establishing unexpected results rests on the person who
asserts them. Appellants may meet their burden by establishing that the
difference between the claimed invention and the closest prior art was an
unexpected difference. See In re Klosak, 455 F.2d 1077, 1080 (CCPA
1972). The unexpected results must be established by factual evidence, and
attorney statements are insufficient to establish unexpected results. See In re
Geisler, 116 F.3d 1465, 1470-71 (Fed. Cir. 1997). Further, a showing of
unexpected results supported by factual evidence must be reasonably
commensurate in scope with the degree of protection sought by the claims
on appeal. In re Grasselli, 713 F.2d 731, 743 (Fed. Cir. 1983); In re
Clemens, 622 F.2d 1029, 1035(CCPA1980).
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Appeal2015-001620
Application 12/629,835
We find the evidence is insutlicient to establish unexpected results.
First of all, Table 3 does not include any information about the Co to
Mo molar ratio of the claimed catalysts tested and Appellants provide no
explanation or direct us to any portion of the Specification discussing this
feature with respect to the proffered comparison. Thus, one skilled in the art
is unable to ascertain if this proffered showing, in fact, demonstrates the
unexpected results asserted by Appellants.
Secondly, Appellants asserted focus of the showing is the Co to Mo
molar ratio. App. Br. 12. However, the comparison is between catalysts
having different carbonaceous supports (claimed nano-based v. Sudhakar' s
non-nano based supports)). Appellants have not adequately explained what
impact, if any, the different type of supports has in the effectiveness of the
dehydrosulfurisation process.
Lastly, Appellants have tested only two catalysts having combined
active metal contents of 5 and 10% while the claimed invention requires
from about 3 to about 15 percent by weight combined active metals.
Appellants have not adequately explained why the two tested catalysts are
representative of the entire range of combined active metal contents claimed
for the catalyst.
On this record, Appellants have not adequately shown, much less
explained, why the evidence relied upon would have been unexpected by
one of ordinary skill in the art or is reasonably commensurate in the scope
with the claims. See, e.g., In re Harris, 409 F.3d 1339, 1344 (Fed. Cir.
2005) ("Even assuming that the results were unexpected, Harris needed to
show results covering the scope of the claimed range. Alternatively Harris
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Application 12/629,835
needed to narrow the claims."); Jn re Greenfield, 571 F .2d 1185, 1189
(CCP A 1978).
Claim 11
Claim 11 is directed a hydrodesulphurization process using the
catalyst of claim 1 where the hydrodesulphurization reaction is conducted at
a pressure of about 15 bar or less.
We have considered Appellants' arguments with respect to claim 11
and find them unavailing. App. Br. 13; Reply Br. 4. In the Reply Brief,
Appellants acknowledge that Sudhakar discloses a reaction pressure range of
between 200 and 1000 psig that encompasses the claimed reaction pressure
range of about 15 bar or less (217 psig or less). Reply Br. 4. While
Appellants argue that Sudhakar's preferred range of reaction pressures does
not overlap the claimed range, it is well settled that a reference may be relied
upon for all that it would have reasonably suggested to one having ordinary
skill in the art, including non-preferred embodiments. Reply Br. 4; Merck &
Co. v. Biocraft Labs., Inc., 874 F.2d 804, 807 (Fed. Cir. 1989) ("all
disclosures of the prior art, including unpreferred embodiments, must be
considered") (quoting In re Lamberti, 545 F.2d 747, 750 (CCPA 1976)).
Given Appellants' acknowledgement, Appellants have not adequately
distinguished the claimed process from the process of the prior art.
Claim 12
Claim 12 is directed a method of making a nanocatalyst comprising a
specific drying step.
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Application 12/629,835
Appellants argue Ma's Example 13 discloses temperature and time
combination (130° C for 20 hours) valid for specific CrCh catalysts and
cannot be simply generalized to other catalysts. Reply Br. 5.; Ma i-f 145. We
are unpersuaded by this argument because claim 12 is not limited to a
particular catalyst.
Accordingly, we affirm the Examiner's prior art rejection of claims 1,
7, 9, 11-14 and 17 for the reasons presented by the Examiner and given
above.
Rejections 11-V
In addition, the Examiner separately rejected dependent claims 4, 8,
10 and 15-17 under 35 U.S.C. § 103(a) as unpatentable over Ma and
Sudhakar in combination with a number of additional references (Rejections
II-V). Final Act. 5-8. In addressing these separate rejections, Appellants
rely primarily on the arguments presented when discussing Rejection I.
App. Br. 14--16. Appellants did not substantially address or further
distinguish the respectively cited secondary references based on the
additional limitations of the dependent claims. Id.
Accordingly, we sustain the Examiner's Rejections II-V for the
reasons presented by the Examiner and given above.
ORDER
The Examiner's prior art rejections of claims 1, 4, and 7-17 are
affirmed.
TIME PERIOD
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Appeal2015-001620
Application 12/629,835
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l).
AFFIRMED
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