Orson L. Sydora

Patent Trials and Appeals Board

Jan 6, 2020

12980457 - (D) (P.T.A.B. Jan. 6, 2020)

UNITED STATES PATENT AND TRADEMARK OFFICE
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.
12/980,457 12/29/2010 Orson L. Sydora 211396US00 (4081-16100) 4732
37814 7590 01/06/2020
CHEVRON PHILLIPS CHEMICAL COMPANY
5601 Granite Parkway, Suite 500
PLANO, TX 75024
EXAMINER
QIAN, YUN
ART UNIT PAPER NUMBER
1732
MAIL DATE DELIVERY MODE
01/06/2020 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 ORSON L. SYDORA
Appeal 2019-001657
Application 12/980,457
Technology Center 1700
Before LINDA M. GAUDETTE, JAMES C. HOUSEL, and
MICHELLE N. ANKENBRAND, Administrative Patent Judges.
HOUSEL, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision under 35 U.S.C. § 103(a) to reject claims 1, 2, 4, 5, 8,
10–14, 16–18, and 20–27 as unpatentable over Zhang (CN 1651142 A, pub.
Aug. 10, 2005), and claim 15 as unpatentable over Zhang in view of Blann
(Kevin Blann, et al., Ethylene Tetramerisation: Suble Effects Exhibited by N-

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42(a). Appellant identifies the real party in interest as Chevron Phillips
Chemical Company LP. Appeal Brief (“Appeal Br.”) filed Sept. 6, 2018, p.
4.
Appeal 2019-001657
Application 12/980,457

2
substituted Diphosphinoamine Ligands, J. Catalysis 249 (2007), 244–9). We
have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.2
CLAIMED SUBJECT MATTER
The claims are directed to a process of making and using olefin
oligomerization catalysts. Spec. Title; ¶ 2. Appellant discloses a method of
forming an olefin oligomerization catalyst comprising forming a mixture of
a metal compound, a diphosphino aminyl ligand, and a metal alkyl, aging the
mixture in the substantial absence of an olefin monomer, and contacting the
aged mixture with an olefin monomer to form an olefin oligomer product.
Id. ¶ 4. According to Appellant, the oligomer product has a reduced polymer
amount when compared to an otherwise similar process wherein the mixture
is either not aged or aged in the presence of an olefin oligomer. Id.
Sole independent claim 22, reproduced below from the Claims
Appendix to the Appeal Brief, is illustrative of the claimed subject matter
(paragraphing added to improve readability):
22. A process comprising forming an aged catalyst system
mixture that consists essentially of a metal compound, a
diphosphino aminyl ligand, a metal alkyl that comprises an
aluminoxane, and optionally a hydrocarbon solvent wherein
forming the catalyst system mixture comprises:
a) contacting i) the metal compound, ii) the diphosphino
aminyl ligand, and iii) the metal alkyl that comprises the

2 Our Decision refers to the Specification (“Spec.”) filed Dec. 29, 2010, the
Examiner’s Final Office Action (“Final Act.”) dated Apr. 11, 2018, the
Examiner’s Answer (“Ans.”) dated Oct. 25, 2018, and Appellant’s Reply
Brief (“Reply Br.”) filed Dec. 17, 2018.

Appeal 2019-001657
Application 12/980,457

3
aluminoxane, wherein the molar ratio of the metal of the metal
alkyl to the metal compound ranges from 100:1 to 3,000:1; and
b) aging the catalyst system mixture for at least 20
minutes in the substantial absence of an olefin monomer to
form the aged catalyst system mixture,
wherein the substantial absence of the olefin monomer is
a molar ratio of the olefin monomer to the metal compound up
to 5:1,
wherein the process comprises oligomerizing ethylene to
form a liquid oligomer product mixture comprising at least 60
wt. % C6 and C8 olefins.

OPINION
Appellant argues the limitations of independent claim 22 only. In
accordance with 37 C.F.R. § 41.37(c)(1)(iv), dependent claims 1, 2, 4, 5, 8,
10–18, 20, 21, and 23–27 stand or fall with claim 22.
After review of the Examiner’s and Appellant’s opposing positions
and the appeal record before us, we determine that Appellant’s arguments
are insufficient to identify reversible error in the Examiner’s anticipation
rejection. In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011). Accordingly, we
affirm the stated obviousness rejections for substantially the fact findings
and the reasons the Examiner sets forth in the Examiner’s Answer and the
Final Office Action. We offer the following for emphasis only.
The Examiner finds that Zhang3 teaches a process for forming an
ethylene oligomerization catalyst system to produce greater than 90 wt.%

3 The Examiner relies, without objection, on an English language machine
translation of Zhang. However, Appellant’s arguments in part include a
human translation of relevant portions of Zhang. For purposes of this
Appeal 2019-001657
Application 12/980,457

4
C6–C8 linear alpha-olefin oligomer product, the process comprising mixing a
chromium compound such as CrCl3 or chromium acetoacetonate
(“Cr(acac)3”), a diphosphino aminyl ligand such as Ph2PN(iPr)PPh2 or
Ph2PN(Cy)PPh2, methylaluminoxane (“MAO”), in toluene, stirring the
mixture for at least five minutes, and then “standby” at room temperature.
Final 4–5. The Examiner further finds that although Zhang does not disclose
a time of at least 20 minutes for mixing these catalyst components, Zhang’s
aging time overlaps this time range because Zhang teaches that the catalyst
system is held in “standby” after mixing for five minutes. Id. at 5.
Appellant argues that Zhang teaches aging the catalyst for exactly five
minutes, but otherwise fails to teach a range of at least five minutes, let
alone a range of at least 20 minutes as claimed. Appeal Br. 9–11. Appellant
further argues that Zhang’s disclosure of “standby” or “future use,” without
more, is insufficient support for concluding that Zhang’s catalyst system
may be aged for an additional, indefinite amount of time. Appeal Br. 12–16;
Reply Br. 3–5. Additionally, Appellant contends that one of ordinary skill in
the art would not have optimized the aging time in Zhang to be at least 20
minutes because Zhang fails to recognize that aging time is a result-effective
variable. Appeal Br. 16–21; Reply Br. 6. Lastly, Appellant argues that only
through impermissible hindsight would a skilled artisan have optimized
Zhang’s aging time to arrive at a time of at least 20 minutes. Appeal Br. 23.
Appellant’s arguments are not persuasive of reversible error. We note
there is no dispute that Zhang teaches the same process as recited in claim
22, with the exception of an explicit teaching that the mixed catalyst should

Decision, we primarily rely on the machine translation, with support from
the human translation.
Appeal 2019-001657
Application 12/980,457

5
be aged for a period of at least 20 minutes in the substantial absence of
olefin monomer. Zhang discloses aging for five minutes, but includes the
term, “standby,” according to the machine translation, or the phrase, “for
future use,” according to the human translation. Appeal Br. 10–11. The
Examiner interprets the modifying language as indicating that the catalyst
may be used at some later, indefinite time after the five minutes of
stirring/reacting. Ans. 4. Although Appellant argues that Zhang provides no
context or disclosure of result as to the amount of time that qualifies as
“standby” or “future use,” the Examiner notes that Zhang teaches the
oligomerization process using the catalyst system to produce greater than
90 wt. % oligomer. This result provides context for any suitable length of
time for which Zhang’s catalyst system is usable.
In addition, Appellant contends, and the Examiner accepts, that the
ordinary artisan understood that Zhang’s catalyst system would degrade and
become inactive over some indefinite period of time. Compare Appeal Br.
15, with Ans. 4. Thus, contrary to Appellant’s argument that aging time was
not recognized to be a result-effective variable, the knowledge of those
skilled in the art that Zhang’s catalyst system would degrade and become
inactive over time is an indication that aging time was indeed recognized to
be a result-dependent variable. Given Zhang’s objective to achieve greater
than 90 wt. % oligomer, the ordinary artisan would have readily understood
that the catalyst system should be used between five minutes and a future
time at which the catalyst is degraded to a level that this result cannot be
achieved. Therefore, the Examiner’s interpretation of “standby” and “future
use” as suggesting an indefinite future time is reasonable within the context
of Zhang’s disclosure and the knowledge of those skilled in the art. As such,
Appeal 2019-001657
Application 12/980,457

6
we are not persuaded that the Examiner’s obviousness conclusion employs
impermissible hindsight because the Examiner’s reasoning is based on this
interpretation of Zhang, rather than Appellant’s disclosure.
Appellant next asserts that the recited aging process achieves an
unexpected result, namely, a reduction in the relative amount of undesirable
polymer produced during the oligomerization process, which Appellant
supports primarily with citations to Specification Table 3. Appeal Br. 21–22;
Reply Br. 6–12. The Examiner responds that these results are not
commensurate in scope with claim 22. Ans. 6–7. Specifically, the Examiner
sets forth seven features of the results that are not commensurate in scope
with claim 22: 1) Claim 22 recites any diphosphino aminyl ligand, though
Table 3 used only five different ligands (Spec. ¶ 230); 2) Claim 22 recites
any metal compound, though Table 3 used only two different chromium
compounds (id. ¶¶ 231–233); 3) Claim 22 does not require a solvent but
permits any hydrocarbon solvent, though Table 3 used only three different
solvents (id.); 4) Claim 22 recites any metal alkyl that includes aluminoxane,
though Table 3 only used a single modified methylaluminoxane (“MMAO”
or “MMAO-3A”) (id.); 5) Claim 22 recites an aging time of “at least 20
minutes,” but Table 3 only provided aging times of 0.02 hrs, 0.25 hrs, 1 hr, 2
hrs, and 4 hours; 6) Claim 22 does not recite a temperature either for the
aging process or for the oligomerization process, though Table 3 only aged
the catalyst system of the invention at 25˚C and oligomerized at 45, 70, 85,
and 95˚C; and 7) Claim 22 recites a range of ratios of the metal of the metal
Appeal 2019-001657
Application 12/980,457

7
alkyl to the metal compound from 100:1 to 3,000:1, though Table 3 only
provided ratios of 250:1 and 500:1.4 Ans. 6–7. We agree with the Examiner.
Appellant acknowledges that the Examiner addressed each of these
seven features in both the Final Office Action and the Examiner’s Answer.
Reply Br. 6–9. Although Appellant states that it addressed the Examiner’s
position from the Final Office Action in the Appeal Brief (id. at 9, citing
Appeal Br. 13–14), no such response is present in the Appeal Brief. In fact,
pages 13 and 14 of the Appeal Brief address the Examiner’s interpretation of
“standby” and “future use,” not the Examiner’s position that the results in
Table 3 are not commensurate in scope with claim 22. Thus, Appellant
presents a new argument not raised in the Appeal Brief addressing for the
first time the Examiner’s position on commensurate in scope. Under
regulations governing appeals to the Board, we do not consider new
argument not timely presented in the Appeal Brief when filed in a Reply
Brief, absent a showing of good cause explaining why the argument could
not have been presented in the Appeal Brief. See Ex parte Borden, 93
USPQ2d 1473, 1476–77 (BPAI 2010) (informative); see also 37 C.F.R.
§ 41.37 and § 41.41. Appellant has provided this record with no such
showing and, therefore, has waived this argument.
Further, even if considered, Appellant’s argument is not persuasive.
The burden is on Appellant to explain why the results using only specific
compounds and conditions are representative of the entire scope of the
claims, such that one skilled in the art would reasonably expect any
improvement in the results to be present over the entire range of compounds

4 Further, relative to the seventh feature, the alleged inventive runs were
performed only with a ratio of 500:1. See Spec. ¶ 235, Table 3.
Appeal 2019-001657
Application 12/980,457

8
and conditions recited in the claims. A party asserting unexpected results as
evidence of nonobviousness has the burden of proving that the results are
unexpected. In re Geisler, 116 F.3d 1465, 1469–70 (Fed. Cir. 1997). Such
burden requires Appellant to proffer factual evidence that actually shows
unexpected results relative to the closest prior art, see In re Baxter Travenol
Labs., 952 F.2d 388, 392 (Fed. Cir. 1991), and that is reasonably
commensurate in scope with the 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 (CCPA 1980); In re Hyson, 453 F.2d 764, 786 (CCPA 1972).
“[I]t is not enough to show that results are obtained which differ from those
obtained in the prior art: that difference must be shown to be an unexpected
difference.” In re Klosak, 455 F.2d 1077, 1080 (CCPA 1972). The extent of
the showing on which an Appellant relies also must reasonably support the
entire scope of the claims at issue. See In re Harris, 409 F.3d 1339, 1344
(Fed. Cir. 2005). Appellant has not carried its burden here.
Appellant invites comparison of Runs 14 and 15, Runs 18 and 22, and
Runs 24 and 25 of Table 3, which Appellant contends show that a catalyst
system mixture that is aged for at least 20 minutes has a significant decrease
in the relative amount of undesirable polymer produced during the
oligomerization process. Appeal Br. 22. Though run 15 has an eight-fold
relative reduction in polymer produced as compared to run 14, run 14 was
only aged for 0.02 hrs (or 1.2 minutes, less than Zhang’s stirring time of 5
minutes) and run 15 was aged for 4 hrs (far more than the 20 minute low end
point of claim 22). We note runs 16 and 17 were aged for the same times as
runs 14 and 15, respectively, yet run 17 only presents less than a three-fold
relative reduction in polymer produced. See Spec. ¶ 135, Table 3.
Appeal 2019-001657
Application 12/980,457

9
Similarly, runs 18 and 22, as well as runs 25 and 24, were also aged
for the same times as runs 14 and 15, respectively, yet runs 22 and 24
present a nine-fold and a two-fold relative reduction in polymer produced,
respectively. See Spec. ¶ 235, Table 3. On the other hand, we note run 19,
which is aged for 1.2 minutes presents the lowest relative production of
polymer of any of the three component catalyst system runs, which suggests
that improved results are not necessarily dependent on aging time for all
compounds and conditions within the scope of claim 22.
Additionally, we note that Appellant fails to present any evidence that
the results, even if commensurate in scope with claim 22, were unexpected
or surprising to those skilled in the art. “[I]t is well settled that unexpected
results must be established by factual evidence. ‘Mere argument or
conclusory statements in the specification does not suffice.’” Geisler, 116
F.3d at 1470 (quoting In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1994));
see also In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974) (“Attorney’s
argument in a brief cannot take the place of evidence.”).

CONCLUSION
Upon consideration of the record, and for the reasons given above and
in the Final Office Action and the Examiner’s Answer, the decision of the
Examiner rejecting claims 1, 2, 4, 5, 8, 10–18, and 20–27 under 35 U.S.C.
§ 103(a) as unpatentable over Zhang, alone or in view of Blann, is affirmed.
Appeal 2019-001657
Application 12/980,457

10
DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C.
§
Basis/References Affirmed Reversed
1, 2, 4, 5, 8,
10–14, 16–
18, 20–27
103(a) Zhang 1, 2, 4, 5, 8,
10–14, 16–
18, 20–27

15 103(a) Zhang, Blann 15
Overall
Outcome
1, 2, 4, 5, 8,
10–18, 20–
27

TIME PERIOD FOR RESPONSE
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)(1)(iv).
AFFIRMED