Ex Parte Sexton et al

Board of Patent Appeals and Interferences

Apr 20, 2010

11541340 (B.P.A.I. Apr. 20, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte JEFF SEXTON and BRIAN K. WILT
____________

Appeal 2010-000044
Application 11/541,340
Technology Center 1700
____________

Decided: April 20, 2010
____________

Before EDWARD C. KIMLIN, CHUNG K. PAK, and TERRY J. OWENS,
Administrative Patent Judges.

KIMLIN, Administrative Patent Judge.

DECISION ON APPEAL

This is an appeal from the final rejection of claims 1, 3-9 and 11-21.
Claim 1 is illustrative:
1. A process for controlling on line catalytic cracking
(FCC) of a hydrocarbon feeds, intermediates and products
exhibiting absorption in the near infrared (NIR) region
comprising:
Appeal 2010-000044
Application 11/541,340

2
a) measuring absorbances of said feed, intermediates, or
products using a spectrometer measuring absorbances at
wavelengths within the range of about 780-4000 nm, and
outputting an emitted signal indicative of said absorbance;

b) subjecting the NIR spectrometer signal to a
mathematical treatment (e.g. derivative, smooth, baseline
correction) of the emitted signal;

c) processing the emitted signal or the mathematical
treatment using a defined model to determine the chemical or
physical properties of feeds, intermediates or products and
outputting a processed signal;

d) controlling on-line in response to the processed signal,
at least one parameter of the catalytic cracking feed,
intermediate or product

e) periodically or continuously outputting a periodic or
continuous signal indicative of the intensity of said absorbance
in said wavelength, or wavelengths in said two or more bands
or a combination of mathematical functions thereof;

f) mathematically converting the signal to an output
signal indicative of the mathematical function;

g) controlling the process on-line in response to the
output signal, thereby allowing direct monitoring of the
feedstock properties and effluent yields in real time to ensure
product quality and processing targets are achieved; and using
NIR measuring to provide real time optimization of (RTO) FCC
processing.

The Examiner relies upon the following reference in the rejection of
the appealed claims:
Descales 6,070,128 May 30, 2000

Appeal 2010-000044
Application 11/541,340

3
Appellants’ claimed invention is directed to a process for controlling
on line catalytic cracking of hydrocarbon feeds, intermediates and products
which exhibit absorption in the near infrared region. The process entails
measuring the infrared absorption of the feed, intermediates or products and
subjecting an emitted signal indicative of said absorption to a mathematical
treatment in order to determine the chemical or physical properties of the
feed, intermediates or products. Based on the determination, a signal is
outputted to control on line at least one parameter of the feed, intermediates
or product.
Appealed claims 1, 3-9 and 11-21 stand rejected under 35 U.S.C. §
103(a) as being unpatentable over Descales.
Appellants have not separately argued any particular claim on appeal.
Accordingly, all the appealed claims stand or fall together with claim 1.
We have thoroughly reviewed each of Appellants’ arguments for
patentability. However, we are in complete agreement with the Examiner
that the claimed subject matter would have been obvious to one of ordinary
skill in the art within the meaning of § 103 in view of the applied prior art.
Accordingly, we will sustain the Examiner’s rejection for the reasons set
forth in the Answer, which we incorporate herein, and we add the following
for emphasis only.
The Examiner has accurately found that Descales, like Appellants,
discloses a process for controlling on line catalytic cracking of hydrocarbon
feeds, intermediates and products which exhibits absorption in the near
infrared region by measuring the absorbances of the feed, intermediates or
products using a spectrometer, and subjecting the spectrometer signal to a
mathematical treatment which emits a signal for controlling at least one
Appeal 2010-000044
Application 11/541,340

4
process parameter of the catalytic cracking feed, intermediate or product.
The spectrometer of Descales measures absorbances at a range of
wavelengths which overlap the claimed range of about 780-4000 nm.
The principal argument advanced by Appellants is that Descales does
not use Real Time Optimization (RTO) for controlling catalytic cracking of
hydrocarbon feeds but, rather, “Descales at best only discloses an RTO
‘concept’” (Prin. Br. 4, 5th para.). Appellants urge that “Descales does not
disclose RTO ‘controlling’” (id.). However, the Examiner quotes several
portions of Descales which expressly disclose using Appellants’ near
infrared processing to control the catalytic cracking and not just monitor its
result. In particular, for example, the Examiner cites the disclosure that
“[t]hus the method may be used for the physicochemical determination or
prediction or process control in relation to at least one feed or product used
in or obtained by an industrial process of the refining of oil and/or in
petrochemical operations” (col. 9, ll. 66 – col. 10, l. 3, emphasis added).
The reference further discloses that “[i]n particular it may be used
for determination of at least one property of a feed and/or the prediction
and/or determination of at least one property and/or yield of product or
control of said process to keep substantially constant said property or yield”
(col. 10, ll. 6-10, emphasis added). In addition, the Examiner cites the
reference disclosure that “[i]n each case the method may be applied to
determine a property of the feed tested or yield from that feed preferably on
line and especially with continuous feed back from the results to control the
production process” (col. 17, ll. 27-30, emphasis added). The reference
further teaches that “[i]n each of the above processes the control may be
performed based on deviations from the signals (or functions) for the
Appeal 2010-000044
Application 11/541,340

5
standard or from the property(ies) of that standard” (col. 17, ll. 42-44). The
Examiner further cites the disclosure that “the [p]resent invention also
provides an apparatus suitable for carrying out … that the property or yield
may be determined continuously and in real time or to determine the nearest
standard and this in turn is linked to a control means to adjust the process to
any deviations” (col. 17, ll. 51-59, emphasis added). Hence, the Examiner
has provided ample factual support for the finding that Descales discloses
actual process control of on line catalytic cracking by measuring
absorbances of the feed, intermediates or products using a spectrometer, and
not, as urged by Appellants, a mere concept.
To the extent Appellants’ argument is that Descales is inoperable for
controlling the catalytic cracking process, it is well settled that a US patent
carries the presumption of validity and the burden on an Applicant to prove
that a patented process is inoperable is not insubstantial. In re Weber, 405
F.2d 1403 (CCPA 1969); In re Spencer, 261 F.2d 244 (CCPA 1958); In re
Reid, 179 F.2d 998 (CCPA 1950); In re Michalek, 161 F.2d 253 (CCPA
1947). In the present case, the record is totally devoid of any evidence
proffered by Appellants that the controlled process disclosed by Descales is
inoperable. We find absolutely no merit in Appellants’ argument that “the
Examiner’s four page explanation is evidence that the Examiner is adding to
Descales what is not there” (Reply Br. 3, 8th para.). Manifestly, the
Examiner’s position is based upon explicit disclosures in Descales.
As a final point, we note that Appellants base no argument upon
objective evidence of nonobviousness, such as unexpected results.
Appeal 2010-000044
Application 11/541,340

6
In conclusion, based on the foregoing and the reasons well stated by
the Examiner, the Examiner’s decision rejecting the appealed claims 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)(v).

AFFIRMED

kmm

EMCH, SCHAFFER, SCHAUB & PORCELLO CO
P.O. BOX 916
ONE SEAGATE SUITE 1980
TOLEDO, OH 43697