Ex Parte Stamires et al

Patent Trial and Appeal Board

Jun 28, 2016

11722388 (P.T.A.B. Jun. 28, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
111722,388 11109/2009 Dennis Stamires
56744 7590 06/30/2016
Albemarle Netherlands RV,
Patent and Trademark Department
451 Florida Street
Baton Rouge, LA 70801
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.
ACH-3093 US 8986
EXAMINER
DA VIS, SHENG HAN
ART UNIT PAPER NUMBER
1732
NOTIFICATION DATE DELIVERY MODE
06/30/2016 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):
mariela. stein@albemarle.com
Albemarle.IPDocket@albemarle.com
tina.matz@albemarle.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DENNIS STAMIRES, PAUL O'CONNOR, ERIK JEROEN
LAHEIJ, and CHARLES V ADOVIC
Appeal2015-000976
Application 11/722,388
Technology Center 1700
Before BEYERL YA. FRANKLIN, GEORGE C. BEST and GRACE
KARAFFA OBERMANN, Administrative Patent Judges.
FRANKLIN, Administrative Patent Judge.
DECISION ON APPEAL
Appellants seek our review under 35 U.S.C. § 134 of the Examiner's
decision rejecting claims 1-5. 1 We have jurisdiction over the appeal under
35 U.S.C. § 6(b).
1 The rejection of claims 7 and 8 has been withdrawn by the Examiner.
Ans. 2.
Appeal2015-000976
Application 11/722,388
STATEivIENT OF THE CASE
Claim 1 is illustrative of Appellants' subject matter on appeal and is
set forth below (with text in bold for emphasis):
1. A process for the preparation of a catalyst comprising the
steps of:
a) preparing a slurry comprising clay, zeolite, a
sodium-free silica source, quasi-crystalline
boehmite, and micro-crystalline boehmite,
provided that the slurry does not comprise peptised
quasi-crystalline boehmite,
b) adding a monovalent acid to the slurry,
c) adjusting the pH of the slurry to a value above 3,
and
d) shaping the slurry to form particles.
The Examiner relies on the following prior art references as evidence
of unpatentability:
Young
Cao
Stamires
Song
Chaudhari
us 3,890,247
us 6,080,303
US 2003/0003035 Al
CN 1119390
US 7 ,026,266 B2
THE REJECTIONS
Jun. 17, 1975
Jun.27,2000
Jan. 2,2003
Aug. 27, 2003
Apr. 11, 2006
1. Claims 1, 3, 4, and 5 are rejected under 35 U.S.C. § 103(a) over Song
in view of Young, and further in view of Cao, and further in view of
Stamires.
2. Claim 2 was rejected under 35 U.S.C. § 103(a) over Song in view of
Cao, and further in view of Young, and further view of Stamires, and further
view of Chaudhari.
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Application 11/722,388
ANALYSIS
We select claims 1 and 4 as representative of all the claims on appeal,
based upon Appellants' presented arguments. 37 C.F.R. § 41.37(c) (1) (iv)
(2014). We affirm each rejection for the reasons and fact findings made by
the Examiner in the record, and add the following.
Claims 1 and 4 pertain to a catalyst composition and process for
making the catalyst composition, wherein the catalyst composition
comprises clay, zeolite, a sodium-free silica source, quasi-crystalline
boehmite (QCB), and micro-crystalline boehmite (MCB), and claim 4 also
recites that the slurry does not comprise peptised QCB.2
As disclosed on page 4 of the Specification, MCB is a good metal
passivator, especially for Ni contaminants. However, in the past, the
preparation of MCB-containing fluid catalytic cracking (FCC) catalyst
particles has been unsuccessful because MCB is difficult to bind with
conventional FCC-type binders, leading to catalyst particles with
unacceptable attrition. According to Appellants' Specification, MCB-
containing catalysts with satisfactory attrition resistance are obtained.
With regard to claim 1, Appellants argue that Song does not disclose
creating a slurry of all components, and then adding a monovalent acid.
Appeal Br. 7. Appellants argue that Implementation 9 is the only disclosure
in Song that uses a silica source. In Implementation 9, QCB boehmite and
zeolite are mixed, then the acid is added to the mix, then clay, then a silica
source. Id. Appellants state that the slurry according to their claimed
subject matter requires the inclusion of a silica source and the absence of
2 Appellants explain that there is a need to mix all the components of the
slurry prior to the peptising of the QCB. Appeal Br. 7.
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Application 11/722,388
peptised QCB. Id. Appellants state that the slurry of Song's
Implementation 9 would only be completed when the silica source is added.
Because the silica source is added after the acid addition, the slurry of
Implementation 9 necessarily includes peptised QCB. Id. Appellants
submit that the only demonstrated disclosure of a slurry in Song, with all of
the components of the present claims, is a slurry that contains peptised QCB.
Id.
However, the Examiner points out that Song teaches that silicon oxide
(or their precursors) can be included in the catalyst mixture (Song, p. 10,
1. 10), and that such compounds can be added into the mixture "without
restriction on sequence" (Song, p. 2, 11. 7-8, and p. 8, 11. 19-20). Ans.3. The
Examiner states that the materials that Song teaches that must be added in a
particular sequence are: the molecular sieve and/or aluminum sol, prior to
the inorganic acid (Song, p. 8, 11. 15-17). Id. Appellants do not adequately
address Song's teaching that silicon oxide can be included in the catalyst
mixture, and that such compounds can be added into the mixture "without
restriction on sequence." We agree with the Examiner that Song suggests
adding the silica source before or after the acid is added, and are
unpersuaded by Appellants' arguments in this regard, absent evidence of
unexpectedly superior results (discussed, infra).
With regard to claim 1 (as well as claim 5) requiring both QCB and
MCB, and claim 4 requiring both QCB and MCB, wherein the QCB is not
peptised QCB, Appellants argue that the applied art does not disclose that it
is desirous to combine MCB and QCB in a FCC catalyst for the reasons set
forth on pages 8-9 of the Appeal Brief. We are unpersuaded by such
argument for the reasons provided by the Examiner on pages 5---6 of the
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Application 11/722,388
Answer. Therein, the Examiner explains that Song teaches use of pseudo-
boehmite (or quasi-crystalline boehmite) for the FCC catalyst mixture.
Song, p. 5. Ans. 6. The Examiner states that Song further teaches that
pseudo-boehmite can be substituted by boehmite, with the implication that
use of another boehmite other than pseudo-boehmite can be utilized. Song,
p. 10; Ans. 6. The Examiner states that according to Appellants'
Specification, it is well known in the art that "[b ]roadly, there are two
categories of boehmite alumina: quasi-boehmite (QCB) and micro-
crystalline boehmites." Spec. p. 4; Ans. 6. The Examiner relies upon
Stamires for teaching the addition of other boehmite, wherein the type of
bohemite can be varied by varying factors such as pH and temperatures.
Stamires, i-f 54. Both micro-crystalline boehmite and quasi-crystalline
boehmite are discussed in i-f 56 of Stamires. Ans. 6. We agree with the
Examiner for the reasons in the record that these collective teachings suggest
combining QCB and MCB in FCC catalysts.
With specific regard to the claim limitation that QCB is not peptised,
we are not convinced by such argument for the following reasons. Firstly,
Song suggests this aspect of the claimed invention, as discussed, supra, by
the fact that Song teaches that silicon oxide can be included in the catalyst
mixture, and that such compounds can be added into the mixture "without
restriction on sequence." Secondly, we agree with the Examiner's position
that Appellants' showing of unexpected results (in an effort to demonstrate
the necessary addition of silicon oxide prior to acid addition) is
unconvincing. Ans. 3--4. Beginning on page 8 of the Appeal Brief,
Appellants set forth a Table in an effort to show results of significantly more
attrition resistant catalysts when all elements are introduced prior to the
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Application 11/722,388
introduction of the monovalent acid. The Examiner states, inter alia, that
this showing is not adequate because a comparison is not made with the
closest prior art, i.e., Song. Ans. 4. We agree and note that "when
unexpected results are used as evidence of nonobviousness, the results must
be shown to be unexpected compared with the closest prior art." Kao Corp.
v. Unilever U.S., Inc., 441 F.3d 963, 970 (Fed. Cir. 2006) (quoting In Re
Baxter Travenol Labs., 952 F.2d 388, 392 (Fed. Cir. 1991)). As a general
guideline, the closest prior art is the reference that has the most claim
limitations in common with the invention, bearing in mind the relative
importance of particular limitations. In re Merchant, 575 F.2d 865, 868
(CCP A 1978).
Appellants also argue that the Examiner is using classic hindsight
reasoning, cobbling together disparate documents (modifying the primary
references with 3 other references) in an effort to reach all the claim
limitations. Appeal Br. 8. However, we are not persuaded, for the reasons
discussed above, that the Examiner has not set forth a prima facie case of
obviousness.
In view of the above, we affirm Rejection 1. Because Appellants rely
upon the same arguments for Rejection 2 (Appeal Br. 9), are also affirm
Rejection 2 for the same reasons.
DECISION
The rejection is affirmed.
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Application 11/722,388
THvIE PERIOD
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a).
ORDER
AFFIRMED
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