Ex Parte Rolland

Patent Trial and Appeal Board

Jun 20, 2018

14031063 (P.T.A.B. Jun. 20, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/031,063 09/19/2013
23599 7590 06/22/2018
MILLEN, WHITE, ZELANO & BRANIGAN, P.C.
2200 CLARENDON BL VD.
SUITE 1400
ARLINGTON, VA 22201
Gildas ROLLAND
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.
PET-2901 2540
EXAMINER
PIERPONT,AARONW
ART UNIT PAPER NUMBER
1772
NOTIFICATION DATE DELIVERY MODE
06/22/2018 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):
docketing@mwzb.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte GILDAS ROLLAND
Appeal2017-008528
Application 14/031,063 1
Technology Center 1700
Before ROMULO H. DELMENDO, MONTE T. SQUIRE, and
BRIAND. RANGE, Administrative Patent Judges.
RANGE, Administrative Patent Judge.
DECISION ON APPEAL
SUMMARY
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner's
decision rejecting claims 1-15. We have jurisdiction. 35 U.S.C. § 6(b).
We AFFIRM.
1 Appellant is the Applicant, AXENS, which according to the Appeal Brief,
is also the real party in interest. Appeal Br. 1. Appellant states that AXENS
is a wholly owned subsidiary of IFP Energies Nouvelles. Appeal Br. 1.
Appeal2017-008528
Application 14/031,063
STATEMENT OF THE CASE2
Appellant describes the invention as relating to a process for
producing "1,3-butadiene from ethylene by dimerizing ethylene into butenes
using homogeneous catalysis, then dehydrogenating the butenes obtained."
Spec. 1: 1-3. Claim 1, reproduced below, is illustrative of the claimed
subject matter:
1. A process for the production of 1,3-butadiene from a
stream comprising ethylene, comprising:
a) selectively dimerizating of the ethylene into butene-I
by bringing said stream into contact with a catalytic system based
on a homogeneous catalyst, in order to produce an effluent
comprising n-butenes;
b) dehydrogenating of the n-butenes obtained in a) by
bringing at least a portion of said effluent into contact with a
heterogeneous catalyst, in order to produce an effluent
comprising 1,3-butadiene.
Appeal Br. 7 (Claims App.).
REFERENCES
The Examiner relies upon the prior art below in rejecting the claims
on appeal:
Zuech
Pitzer
Commereuc et al.
("Commereuc '895")
Commereuc et al.
("Commereuc")
Chung et al.
("Chung")
us 3,485,881
us 3,925,499
us 5,792,895
us 5,877,376
US 2011/0004041 Al
Dec. 23, 1969
Dec. 9, 1975
Aug. 11, 1998
Mar. 2, 1999
Jan. 6, 2011
2 In this Decision, we refer to the Final Office Action dated November 13,
2015 ("Final Act."), the Appeal Brief filed July 12, 2016 ("Appeal Br."), and
the Examiner's Answer dated December 9, 2016 ("Ans.").
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Application 14/031,063
REJECTIONS
The Examiner maintains the following rejections on appeal:
Rejection 1. Claims 1-5, 7, 10-12, 14, and 15 under 35 U.S.C. § 103
as unpatentable over Commereuc in view of Chung. Ans. 2.
Rejection 2. Claim 6 is rejected under pre-AIA 35 U.S.C. 103(a) as
being unpatentable over Commereuc, in view of Chung, as applied to claim
2 above, and further in view of Commereuc '895. Id. at 6.
Rejection 3. Claims 8 and 9 under 35 U.S.C. § 103 as unpatentable
over Commereuc in view of Chung and further in view of Zuech. Id. at 7.
Rejection 4. Claim 13 under 35 U.S.C. § 103 as unpatentable over
Commereuc in view of Chung and further in view of Pitzer. Id. at 9.
Rejection 5. Claims 1 and 8-15 provisionally on the ground of
nonstatutory double patenting as unpatentable over claims 1, 2, 6, and 10-15
of co-pending application number 14/033,953.
ANALYSIS
We review the appealed rejections for error based upon the issues
identified by Appellant and in light of the arguments and evidence produced
thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential),
cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) ("[I]t
has long been the Board's practice to require an applicant to identify the
alleged error in the examiner's rejections."). After considering the evidence
presented in this Appeal and each of Appellant's arguments, we are not
persuaded that Appellant identifies reversible error. Thus, we affirm the
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Application 14/031,063
Examiner's rejections for the reasons expressed in the Final Office Action
and the Answer. We add the following primarily for emphasis.
Rejections 1--4. Appellant argues rejections 1--4 together and argue
all claims as a group aside from providing an additional argument for claim
2. See Appeal Br. 2---6. Therefore, consistent with the provisions of 37
C.F.R. § 4I.37(c)(l)(iv) (2013), we first focus on claim 1. Claims 8-15
stand or fall together with claim 1. Claims 3-7 stand or fall with claim 2.
The Examiner finds that Commereuc discloses conversion of ethylene
into butene- I using a homogenous catalyst. Ans. 2-3. The Examiner finds
that Commereuc does not disclose dehydrogenation of the n-butenes by
bringing a portion of the effluent into contact with heterogenous catalyst to
produce an effluent comprising 1,3-butadiene. Id. at 3. The Examiner finds,
however, that Chung discloses production of 1,3-butadiene by oxidative
dehydrogenation of n-butene in a reactor containing bismuth molybdate
catalyst and zinc ferrite catalyst (i.e., a heterogenous catalyst). Id. The
Examiner determines that it would have bene obvious to modify Commereuc
by dehydrogenating its n-butene product over a heterogenous catalyst as
taught by Chung in order to predictably produce a valuable chemical (i.e.,
the 1,3-butadiene). Id.
Appellant argues that a person of skill in the art would not have
applied Chung's heterogenous catalyst process to the butene product of
Commereuc. Appeal Br. 3-5. In particular, Appellant argues that
Commereuc produces a pure I-butene through selective dimerization.
Appeal Br. 3--4 ( citing Commereuc 3 :46-50 ( explaining that the Commereuc
effluent separates butene-I from ethylene)). Appellant argues that Chung's
goal is to have catalysts with high activity to butene-2 and different catalysts
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Application 14/031,063
with high butene- I activity. Appeal Br. 4. Appellant thus argues that use of
the specialized process of Chung to process the pure I-butene feed of
Commereuc would be a "wasteful expense." Id.
The preponderance of the evidence better supports the Examiner's
position. While Commereuc appears to have the goal of purifying I-butene
as well as possible, a person of skill in the art reading both Commereuc and
Chung would recognize that a process like Commereuc' s is unlikely to be
perfect. In particular, Commereuc indicates that its process reduces by-
products but that by-products are still produced. See, e.g., Commereuc
1 :26-30 (indicating by-products are "reduced"); 1 :49--54 (same); 1 :66-2:5
(indicating that reaction has selectivity that may be "less good" in certain
scenarios). Because Commereuc' s reaction is unlikely to be perfect, a
person of skill in the art would recognize that a good way to produce 1,3-
butadiene from the imperfect Commereuc feed would be through Chung's
heterogeneous catalyst process. As the Examiner emphasizes, Chung
teaches that its process may be modified to handle feeds containing mainly
I-butene (like Commereuc). Ans. 12; Chung ,r 78 (indicating that Chung
process can be further improved by increasing the amount of I -butene in the
C4 feed).
Because Appellant does not persuasively identify reversible error, we
sustain the Examiner's rejections of claims 1 and 8-15.
Claim 2 is similar to claim 1 but recites more specifically that "the
ethylene dimerization is carried out in the presence of a catalytic system
comprising a catalyst based on an alkyl titanate and an aluminium compound
with formula AlR3 or AlR2H in which each Risa hydrocarbyl radical."
Appeal Br. 7 (Claims App.). To the extent Appellant raises the same
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argument as claim 1 (Appeal Br. 6), the argument is unpersuasive for the
reasons explained above.
Appellant also argues that the specific catalyst is not suggested for the
production of starting materials for butadiene. Id. The Examiner finds,
however, that Commereuc discloses the claimed catalyst for initial
processing of the ethylene. Ans. 2-3 (citing Commereuc 1:31-38).
Appellant presents no argument why the Examiner's finding is incorrect and
therefore does not identify reversible error. We thus sustain the Examiner's
rejection of claims 2-7.
Rejection 5. Appellant does not dispute the merits of the Examiner's
provisional obviousness type-double patenting rejection. Appeal Br. 6. We
summarily sustain this rejection.
DECISION
For the above reasons, we affirm the Examiner's rejections of
claims 1-15.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED
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