Reinier Crous et al.

Patent Trials and Appeals Board

Mar 23, 2022

2021000515 (P.T.A.B. Mar. 23, 2022)

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. 13/133,583 06/20/2011 Reinier Crous P9341US00 4179 168042 7590 03/23/2022 DITTHAVONG, STEINER, & MLOTKOWSKI 201 N. Union Street, Suite 110 Alexandria, VA 22314 EXAMINER CALL, DOUGLAS BRYANT ART UNIT PAPER NUMBER 1732 NOTIFICATION DATE DELIVERY MODE 03/23/2022 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): docket@dcpatent.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte REINIER CROUS, TRACY CAROLYN BROMFIELD, and SHARON BOOYENS __________ Appeal 2021-000515 Application 13/133,583 Technology Center 1700 ____________ Before ADRIENE LEPIANE HANLON, MICHAEL P. COLAIANNI, and JAMES C. HOUSEL, Administrative Patent Judges. COLAIANNI, Administrative Patent Judge. DECISION ON APPEAL Appellant1 appeals under 35 U.S.C. § 134(a) the final rejection of claims 1-5, 16, and 21-25. We have jurisdiction over the appeal pursuant to 35 U.S.C. § 6(b). Oral arguments were heard in this appeal on March 9, 2022. We AFFIRM. Appellant’s invention is directed to a hydrocarbon synthesis catalyst comprising Fe as catalytically active metal (Spec. 1). Claim 1 is illustrative: 1. A hydrocarbon synthesis catalyst comprising: 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as Sasol Technology (PTY) Limited. (Appeal Br. 1). Appeal 2021-000515 Application 13/133,583 2 an unreduced form comprising: a) Fe as catalytically active metal, b) a first promoter comprising an alkali metal and/or an alkaline-earth metal, the alkali metal and/or alkaline-earth metal being present in a combined amount of 0.1 to 1.0 g/100 g Fe, c) a second promoter comprising a metalloid and/or a non-metal, the metalloid selected from the group of boron and antimony, the non-metal being phosphorus, and the metalloid and/or non-metal being present in a combined amount of 0.03 to 0.2 g/100 g Fe, d) a surface area of 80 m2/g or less, and e) a weight ratio of the first promoter to the second promoter of 0.8:1 to 20:l; and a reduced form comprising: a chemical bond between the at least one metal of the first promoter and the at least one metalloid of the second promoter and/or a chemical bond between the at least one metal of the first promoter and the at least one non- metal of the second promoter, and wherein at least 75 wt.% of the Fe is in the zero oxidation state. Appellant appeals the following rejections2: 1. Claims 1-5 are rejected under 35 U.S.C. § 103(a) as unpatentable over Hu (US 2004/0009871 Al; published Jan. 15, 2004) in view of Wright (US 6,486,220 Bl; issued Nov. 26, 2002), Bromfield et al. (The Effect of Sulfide Ions on a Precipitated Iron Fischer-Tropsch Catalyst, Applied Catalysis A: General, vol. 186, Elsevier Science, pp. 297-307 (1999)), Pernicone et al. (Catalyst Activation by Reduction, Pure and Applied Chem., vol. 50, pp. 1169-1191 (1978)). 2 The Examiner rejects claim 16 under 35 U.S.C. § 112, second paragraph, as being indefinite (Final Act. 2-3). Appellant does not appeal that rejection (Appeal Br. 2). Accordingly, that rejection is summarily affirmed. Appeal 2021-000515 Application 13/133,583 3 2. Claim 16 is rejected under 35 U.S.C. § 103(a) as unpatentable over Espinoza (WO 01/97968 A2; published Dec. 27, 2001) in view of Hu, Wright, and Bromfield. 3. Claims 21-25 are rejected under 35 U.S.C. § 103(a) as unpatentable over Espinoza in view of Bromfield, Kritzinger (The Role of Sulfur in Commercial Iron-based Fischer-Tropsch Catalysis with Focus on C2- product Selectivity and Yield, Catalysis Today, vol. 71, pp. 307-318 (2002)), and Bartholomew et al. (Sulfur Poisoning of Cobalt and Iron Fischer-Tropsch Catalysts, Applied Catalysis, vol. 15, Elsevier Science, pp. 59-67 (1985)). FINDINGS OF FACT & ANALYSIS We review the appealed rejection for reversible error based on the arguments and evidence presented by Appellant. 37 C.F.R. § 41.37(c)(1)(iv); 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) (explaining that even if the Examiner had failed to make a prima facie case, “it has long been the Board’s practice to require an applicant to identify the alleged error in the examiner’s rejections”). 35 U.S.C. § 103(a) Rejection: Claim 1 Appellant argues the subject matter of claim 1 only (Appeal Br. 6-8). Accordingly, claims 2 to 5 will stand or fall with our analysis of the rejection of claim 1. The Examiner’s findings and conclusions regarding Hu, Wright, Bromfield, and Pernicone are located on pages 4 to 8 of the Final Action. Appeal 2021-000515 Application 13/133,583 4 Appellant argues the Examiner engaged in impermissible hindsight in selecting boron from among the list of other promoters to use as a promoter in Hu’s catalyst (Appeal Br. 6). Appellant argues that Hu lists a “good portion of the entire periodic table” in the list of suitable promoters with no indication of a preference for boron (Appeal Br. 6). Appellant contends the prior art must provide some reason to choose a particular component which meets the claim elements (Appeal Br. 6). Appellant argues that catalysis is an unpredictable art and the skilled artisan would not have had a reasonable expectation of success to enhance C2-C8 selectivity with the catalyst because Hu is silent regarding the selectivity of the catalysts formed therein (Appeal Br. 7). Appellant argues that a skilled artisan would not arrive at the weight ranges for the promoters in the catalyst through routine experimentation (Appeal Br. 7). Appellant contends that Hu does not teach the particular or desired effects of catalysts so that the amounts would not have been optimized to the weight ranges of the promoters recited in claim 1 (Appeal Br. 7). Appellant’s arguments are not persuasive. The Examiner correctly finds that Hu expressly discloses that boron is one of the promoters that improves Fischer-Tropsch catalysts by modifying the catalyst activity and/or selectivity (Ans. 24; Hu ¶ 15). The Examiner finds that Hu teaches families of related elements that the ordinarily skilled artisan would only have to select a member of the narrower family for use as the promoter in the catalyst (Ans. 24-25). The Examiner finds that the weight range of promoter taught by Hu falls within the claimed range (Final Act. 5). In other words, Hu teaches that the listed promoters that include boron are effective for improving Fischer-Tropsch’s catalysts and may be used in an amount Appeal 2021-000515 Application 13/133,583 5 that falls within the claimed range (Hu ¶ 15). The Examiner provides a reason to select boron from the listed promoters: to improve the Fischer- Tropsch’s catalyst as taught by Hu (Ans. 24). We agree with the Examiner that Hu lists suitable promoters including boron, any one of which would have been expected to effectively improve the Fischer-Tropsch catalyst as taught by Hu. (Ans. 25). See Merck & Co., Inc. v. Biocraft Laboratories, Inc., 874 F.2d 804, 807 (Fed. Cir. 1989) (Disclosure of a multitude of effective combinations does not render any particular formulation less obvious.). Appellant’s argument about Hu’s silence regarding improving C2-C8 selectivity with the catalyst is not germane to the claim because the improvement in selectivity is not recited in claim 1 (Ans. 26). In re Van Geuns, 988 F.2d 1181, 1184 (Fed. Cir. 1993) (rejecting appellants’ nonobviousness argument as based on limitation not recited in claim); In re Self, 671 F.2d 1344, 1348 (CCPA 1982) (“Many of appellant’s arguments fail from the outset because, as the solicitor has pointed out, they are not based on limitations appearing in the claims.”). The Examiner further finds and Appellant does not specifically dispute that the secondary references, Wright3 and Bromfield, teach using boron and phosphorus as elements in a Fischer-Tropsch catalyst (Ans. 25). The Examiner finds that weight ranges of the promoters in Hu overlap the ranges recited in the claims and, therefore, render the claimed weight ranges prima facie obvious (Ans. 26-27). The Examiner’s finding of overlapping 3 Appellant provides arguments regarding Wright for the first time on pages 2 to 3 of the Reply Brief. These arguments are untimely as they are based on the Examiner’s rejection made in the Final Action that could have and should have been made in the principal Brief (Reply Br. 2-3; Ans. 7; Final Act. 6). 37 C.F.R. § 41.41(b)(2). We will not consider these arguments. Appeal 2021-000515 Application 13/133,583 6 ranges undermines Appellant’s argument that an ordinarily skilled artisan would not have optimized the promoter amounts to be within the claimed ranges. We affirm the Examiner’s § 103(a) rejection of claims 1-5 over Hu, Wright, Bromfield, and Pernicone. 35 U.S.C. § 103(a) Rejections: Claims 16 and 21 The Examiner’s findings and conclusions regarding claim 16 and Espinoza, Hu, Wright, and Bromfield are located on pages 10 to 14 of the Final Action. The Examiner’s findings and conclusions regarding claim 21 and Espinoza, Bromfield, Kritzinger, and Bartholomew are located on pages 15-22 of the Final Action. Regarding claim 16, Appellant argues that Espinoza teaches that sulfur and copper are impurities in Espinoza’s catalyst (Appeal Br. 8). Appellant argues that Espinoza prefers to minimize the impurities and it would not have been obvious to substitute Hu’s boron impurity for Espinoza’s copper impurity (Appeal Br. 9). Appellant argues that the sulfur in Espinoza’s example 2 is an impurity because no sulfur containing compound was added in making the catalyst (Appeal Br. 10). Appellant contends a person skilled in the art would not add more of an impurity to the catalyst (Appeal Br. 10). Appellant’s argument is not persuasive because the Examiner correctly finds boron, sulfur, and copper are not included in Espinoza’s list of impurities (Ans. 27, 28). Espinoza’s list of impurities on page 9 does not include boron, sulfur, or copper. Appellant does not explain why in light of Espinoza’s teaching an ordinarily skilled artisan would have understood Appeal 2021-000515 Application 13/133,583 7 copper, sulfur, and boron to be impurities. Even though Espinoza’s example 2 does not include a sulfur containing material in the process of making the product, Espinoza does not disclose that the presence of sulfur, irrespective of its origin, is an undesirable impurity. Rather, the Examiner correctly finds that Espinoza indicates the presence of sulfur in the unreduced form in the catalyst in example 2 (Ans. 28). Moreover, the Examiner does not rely solely on Espinoza to teach using sulfur in catalysts. Rather, the Examiner relies on Bromfield with regard to claim 16 to teach the desirability of adding sulfur to a catalyst, Appellant recognizes as much (Appeal Br. 10). Appellant argues, however, that Bromfield teaches washing to remove all the sodium ions such that the final catalyst formed would not include sodium (Appeal Br. 10). We understand Appellant to argue that Bromfield teaches that the catalyst would not have an alkali metal promoter present as required by claim 16. Contrary to Appellant’s arguments, Espinoza teaches including an alkali metal promoter (Espinoza 7:13-17). Indeed, even Espinoza’s example 2 includes potassium and sulfur (Espinoza 21). The Examiner relies upon Bromfield to teach using sulfur in a catalyst (Final Act. 11-12). The Examiner does not rely solely on Bromfield though to teach a metalloid, as the Examiner relies on Hu to teach using boron (a metalloid promoter) and Wright teaches using boron or phosphorus (Final Act. 11-13). The Examiner finds that Hu would have suggested the claimed weight ratio of alkali or alkaline earth elements to boron (a metalloid) within the claimed range of 0.8:1 to 20:1 (Final Act. 12). Appellant does not dispute these findings regarding claim 16. Appeal 2021-000515 Application 13/133,583 8 Regarding claim 21, Appellant argues Espinoza does not desire to include sulfur in the catalyst thereof and indicates sulfur is an undesirable impurity (Appeal Br. 11). This argument is unpersuasive for the same reasons discussed regarding claim 16. We add that the Examiner relies on Bromfield and Kritzinger to teach adding sulfur to catalysts for particular benefits (Final Act. 15-16; 17). We affirm the Examiner’s § 103(a) rejection of claim 16 over Espinoza in view of Hu, Wright, and Bromfield and the § 103(a) rejection of claims 21-25 over Espinoza in view of Bromfield, Kritzinger, and Bartholomew. DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1-5 103(a) Hu, Wright, Bromfield, Pernicone 1-5 16 103(a) Espinoza, Wright, Hu, Bromfield 16 21-25 103(a) Espinoza, Bromfield, Kritzinger, Bartholomew 21-25 Overall Outcome 1-5, 16, 21-25 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)(iv). AFFIRMED