SAUDI BASIC INDUSTRIES CORPORATION et al.

Patent Trials and Appeals Board

Sep 1, 2020

2019005552 (P.T.A.B. Sep. 1, 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.
14/900,622 12/22/2015 Orass Hamed 11POLY0024-US-PCT 3094
102091 7590 09/01/2020
Cantor Colburn LLP - SABIC Americas
20 Church Street
Hartford, CT 06103
EXAMINER
LU, C CAIXIA
ART UNIT PAPER NUMBER
1765
NOTIFICATION DATE DELIVERY MODE
09/01/2020 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):
usptopatentmail@cantorcolburn.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte ORASS HAMED, VUGAR ALIYEV, IAN BLACKMORE,
and NAYEF AL-ENAZI
____________

Appeal 2019-005552
Application 14/900,622
Technology Center 1700
____________

Before LINDA M. GAUDETTE, DONNA M. PRAISS, and
MONTÉ T. SQUIRE, Administrative Patent Judges.

SQUIRE, Administrative Patent Judge.

DECISION ON APPEAL1

Appellant2 appeals under 35 U.S.C. § 134(a) from the Examiner’s
decision to finally reject claims 1–7 and 14–21, which are all of the claims
pending in this application.3 We have jurisdiction under 35 U.S.C. § 6(b).

1 This Decision refers to the Specification filed Dec. 22, 2015 (“Spec.”);
Final Office Action dated Oct. 1, 2018 (“Final Act.”); Advisory Action
dated Dec. 6, 2018 (“Advisory Act.”); Appeal Brief filed Mar. 4, 2019
(“Appeal Br.”); Examiner’s Answer dated May 13, 2019 (“Ans.”); and
Reply Brief filed July 15, 2019 (“Reply Br.”).
2 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies SAUDI BASIC INDUSTRIES
CORPORATION and SABIC GLOBAL TECHNOLOGIES B.V. as the real
parties in interest. Appeal Br. 2.
3 Claims 8–13 are cancelled. Appeal Br. 16.
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We AFFIRM.
CLAIMED SUBJECT MATTER
The invention relates to a process for the production of polyethylene
by polymerization of ethylene in the presence of a chromium oxide based
catalyst. Spec. 1, Abstract. Claim 1 illustrates the subject matter on appeal
and is reproduced below from the Claims Appendix to the Appeal Brief:
1. A polymerization process for the production of
polyethylene by gas phase polymerization of ethylene in the
presence of a catalyst formed from a catalyst composition
comprising a porous silicon oxide support material carrying a
chromium compound and a transition metal containing
compound or metal halide transition metal compound wherein
the silicon oxide support material has an average particle size
between 20 μm and 40 μm, a pore volume between 1.8 and 2.2
ml/g and a surface area between 400 and 600 m2/g, and wherein
the preparation of the catalyst composition comprises the step of
adding the chromium salt to the silica support in methanol or
ethanol, then mixing and drying the slurry.
Appeal Br. 15 (key disputed claim language italicized and bolded).
REFERENCES
The Examiner relies on the following prior art references as evidence
in rejecting the claims on appeal:
Name Reference Date
Schneider et al.
(“Schneider”)
US 2004/0014914 Al Jan. 22, 2004
Gauthier et al.
(“Gauthier”)
US 6,855,783 B2 Feb. 15, 2005
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REJECTION
On appeal, the Examiner maintains the following rejection: claims
1–7 and 14–21 are rejected under 35 U.S.C. § 103 as being unpatentable
over Schneider in view of Gauthier. Ans. 3.
OPINION
Having considered the respective positions the Examiner and
Appellant advance in light of this appeal record, we affirm the Examiner’s
rejection based essentially on the fact-finding and reasoning the Examiner
provides in the Answer, Advisory Action, and Final Office Action, which
we adopt as our own. We add the following primarily for emphasis.
Claims 1–7 and 14–21
The Examiner rejects claims 1–7 and 14–21 under 35 U.S.C. § 103 as
obvious over Schneider and Gauthier. Ans. 3–6. In response to the
Examiner’s rejection, Appellant presents argument for the patentability of
claims 1–7 and 14–21 as a group. Appeal Br. 4–8. We select claim 1 as
representative and claims 2–7 and 14–21 stand or fall with claim 1.
37 C.F.R. § 41.37(c)(1)(iv).
The Examiner determines that the combination of Schneider and
Gauthier suggests an ethylene polymerization process satisfying the
limitations of claim 1 and concludes the combination would have rendered
the claim obvious. Ans. 3–6. On the record before us, we determine a
preponderance of the evidence and sound technical reasoning support the
Examiner’s findings regarding the teachings of the cited art and the
Examiner’ conclusion that the combination of Schneider and Gauthier would
have rendered the process of claim 1 obvious. Schneider, Abstract, ¶¶ 1,
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10–14, 21–24, 76–81 (Examples 1–3); Gauthier, Abstract, 5:49–6:5, 9:37–41
(Table I), 14:54–64 (Table V), 18:17–33 (Table IX)).
Appellant argues the Examiner’s rejection of claim 1 should be
reversed because the cited art does not teach or suggest “wherein the silicon
oxide support material has an average particle size between 20 μm and 40
μm, a pore volume between 1.8 and 2.2 ml/g and a surface area between 400
and 600 m2/g,” as recited in the claim. Appeal Br. 6 (“Schneider, Gauthier,
or a combination thereof fails to disclose, with specificity, the claimed
average particle size, pore volume, and surface area of the claimed silicon
oxide support material.”). Although Appellant acknowledges that the cited
art discloses silicon oxide support materials having properties encompassing
or overlapping the claimed ranges, Appellant argues “that an overlapping
range does not equate to a prima facie case of obviousness.” Id. at 5, 6.
Appellant further argues that the Examiner’s conclusion of
obviousness is improper because there is no motivation to combine
Schneider and Gauthier to arrive at the claimed invention and no expectation
of success. Id. at 5–6. Appellant argues that, because the “catalysts of
Gauthier and Schneider are very different” and “catalysis is notoriously
unpredictable,” there is no motivation to look to Gauthier in order to modify
Schneider. Id. at 5 (arguing “there is no motivation to consider picking and
choosing an element from Gauthier to modify Schneider” and “there is no
expectation of success”).
We do not find Appellant’s arguments persuasive of reversible error
in the Examiner’s rejection based principally on the fact-finding and
reasoning the Examiner provides at pages 3–6 of the Answer and pages 2–3
of the Final Office Action, which a preponderance of the evidence in the
record supports. As the Examiner finds (Ans. 3), Schneider discloses a gas
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phase ethylene polymerization process in the presence of a titanated
chromium-based catalyst composition, which includes a silica support
material having an average particle size of 20–120 μm, a pore volume of 1–2
ml/g, and a surface area of 50–600 m2/g (Schneider ¶¶ 10–14, 22–24, 76–81
(Examples 1–3)), which overlap and/or encompass the claimed ranges.
As the Examiner further finds (Ans. 5–6), Gauthier discloses catalyst
compositions for use in ethylene polymerization processes, which include a
silica support having an “average particle size of 10–50 microns, a surface
area of 200–800 m2/g, and a pore volume of 0.9–2.1 ml/g (Gauthier,
Abstract, 5:49–6:5), which overlap and/or encompass the claimed ranges. As
the Examiner also finds and explains (Ans. 5–6), Gauthier teaches that the
activity of the catalyst composition and morphology of the polymer product
(i.e., bulk density of the final ethylene product) are affected and influenced
by the physical properties of the silica support, including by the silica
support’s average particle size, surface area, and pore volume. See Gauthier,
9:37–41 (Table I), 14:54–64 (Table V), 18:17–33 (Table IX). As the
Examiner concludes (Ans. 6),
it would have been obvious to a skilled artisan at the time
the invention was made to employ Schneider’s teaching
with Gauthier’s teaching as further guidance for selecting
silica support to provide ethylene polymer in a gas phase
polymerization process in the presence of a titanated
chromium-based catalyst supported on silica having
surface area of 450–600 m2/g, [average] particle size [of]
about 20–50 μm, and pore volume of 0.9–2.1 cc/g to
optimize morphology and the productivity of ethylene
polymer in the absence of any showing criticality and
unexpected results.
Appellant’s arguments do not reveal reversible error in the
Examiner’s factual findings and analysis in this regard. Appellant’s
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argument that the cited art “fails to disclose, with specificity, the claimed
average particle size, pore volume, and surface area of the claimed silicon
oxide support material” (Appeal Br. 6) is not persuasive because it is
well-settled that where claimed ranges “overlap or lie inside ranges
disclosed by the prior art,” a prima facie case of obviousness exists. In re
Wertheim, 541 F.2d 257, 267 (CCPA 1976). Indeed, where, “the claimed
ranges are completely encompassed by the prior art, the conclusion is even
more compelling than in cases of mere overlap.” In re Peterson, 315 F.3d
1325, 1330 (Fed. Cir. 2003).
Moreover, as we discuss further below, Appellant has not proffered or
directed us to any objective evidence in the record to suggest the criticality
of the claimed ranges or that a gas phase ethylene polymerization process,
which includes a silica support material with properties falling within the
claimed ranges, achieves unexpected results relative to the prior art.
Peterson, 315 F.3d at 1330 (explaining that “the existence of overlapping or
encompassing ranges shifts the burden to the applicant to show that his
invention would not have been obvious”).
Appellant’s argument that there is no motivation to combine
Schneider and Gauthier and no expectation of success (Appeal Br. 5–6) is
equally unpersuasive. Rather, on the record before us, we determine the
Examiner does provide a reasonable basis, which a preponderance of the
evidence supports, to evince why one of ordinary skill in the art would have
had a reason to combine the teachings of Schneider and Gauthier to arrive at
the claimed invention and a reasonable expectation of success. Ans. 6; see
also In re Aller, 220 F.2d 454, 456 (CCPA 1955) (“[W]here the general
conditions of a claim are disclosed in the prior art, it is not inventive to
discover the optimum or workable ranges by routine experimentation.”);
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KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 416 (2007) (“The combination
of familiar elements according to known methods is likely to be obvious
when it does no more than yield predictable results.”).
Appellant’s assertions that the “catalysts of Gauthier and Schneider
are very different” and “catalysis is notoriously unpredictable” (Appeal Br.
5) are not persuasive because they are conclusory and Appellant does not
direct us to persuasive evidence in the record or provide an adequate
technical explanation to support them. Attorney argument is not evidence. In
re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984). See also In re Geisler,
116 F.3d 1465, 1470 (Fed. Cir. 1997) (explaining that mere lawyer’s
arguments or conclusory statements, which are unsupported by concrete
factual evidence, are entitled to little probative value).
Appellant’s disagreement as to the Examiner’s factual findings and
reasons for combining the references, without more, is insufficient to
establish reversible error. SmithKline Beecham Corp. v. Apotex Corp., 439
F.3d 1312, 1320 (Fed. Cir. 2006) (“[M]ere statements of disagreement . . . as
to the existence of factual disputes do not amount to a developed
argument.”).
Appellant argues further that the claimed invention yields unexpected
results. Appeal Br. 6–8; Reply Br. 2–3. Based principally on inventive
Example I of the Specification and the comparative test data at page 7 of the
Appeal Brief and page 3 of the Reply Brief, Appellant argues that
the Examples of the present application demonstrate that
the claimed average particle size, pore volume, and
surface area are beneficial and have unexpected results.
Appeal Br. 7 (citing page 11 of the Specification). Appellant further argues
that
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the unexpected results associated with the claimed average
particle size, pore volume, and surface area disclosed in
the Specification include (1) production of a polyethylene
resin of increased bulk density via ethylene gas phase
polymerization, (2) increase in polyethylene resin
production rate via ethylene gas phase polymerization, and
(3) improvement in the strain hardening modulus of
polyethylene resin produced via ethylene gas phase
polymerization.
Reply Br. 3.
In attempting to overcome a prima facie case of obviousness by
showing unexpected results, the burden rests with Appellant to establish
(1) that the alleged unexpected results presented as being associated with the
claimed invention are, in fact, unexpected, (2) that the comparisons are to
the disclosure of the closest prior art, and (3) that the supplied evidentiary
showing is commensurate in scope with the claimed subject matter. See In re
Klosak, 455 F.2d 1077, 1080 (CCPA 1972).
Appellant’s alleged showing of unexpected results does not satisfy the
requisite burden. Appellant has not sufficiently established that the alleged
unexpected results presented as being associated with the claimed invention
are, in fact, unexpected. As the Examiner notes (Ans. 8), Appellant does not
make clear what the unexpected results are and how that is reflected or
shown in the data. Appellant also does not adequately show or explain why
the alleged improvements Appellant contends are associated with the
claimed average particle size, pore volume, and surface area (see Reply
Br. 3) are considered to be unexpected results and not just typical results
obtained by one of ordinary skill in the art. Klosak, 455 F.2d at 1080 (“[T]he
burden of showing unexpected results rests on [the party] who asserts
them.”).
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Moreover, Appellant has not sufficiently established that the alleged
showing of unexpected results is commensurate in scope with the claims.
Appellant’s claims are broader in scope than the examples tested and
Appellant does not explain sufficiently why the examples tested are
representative of the overall scope of the claims. For example, Example I of
the Specification uses a specific type of dried silica support material
(“M-203-F silica support”) having an average particle size of 35 μm, a
surface area of 519 m2/g, and a pore volume of 1.9 ml/g. See Spec. 8. The
claims, however, are not limited to the specific silica support material tested
by Appellant or a particular silica support material having only those
specific average particle size, surface area, and pore volume properties.
Thus, absent more, we are not persuaded Appellant provides data sufficient
to show that the alleged unexpected results occur over the entire claimed
range for each of the properties of the silicon oxide support material recited
in the claim. See In re Kao, 639 F.3d 1057, 1068 (Fed. Cir. 2011)
(“Evidence of secondary considerations must be reasonably commensurate
with the scope of the claims.”).
In view of these deficiencies, Appellant’s assertion that the examples
in the Specification “demonstrate that the claimed average particle size, pore
volume, and surface area are beneficial and have unexpected results”
(Appeal Br. 7) and statement regarding alleged “unexpected results
associated with the claimed average particle size, pore volume” (Reply Br.
3) are conclusory and, without more, insufficient to establish unexpected
results. De Blauwe, 736 F.2d at 705 (“It is well settled that unexpected
results must be established by factual evidence. Mere argument or
conclusory statements in the specification does not suffice.”).
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Claims 2, 3, 14, 17–19, and 21
Although Appellant nominally presents separate arguments for the
patentability of claims 2, 14, and 18 as a group, claims 3 and 21 as a group,
and claims 17 and 19 as a group, enumerated under separate headings,
respectively, at pages 8–9, 10–11, and 12–13 of the Appeal Brief, Appellant
does not present any new or additional substantive argument, but instead
repeats and relies principally on the same arguments previously presented
above in response to the Examiner’s rejection of claim 1.
Thus, based on the fact-finding, conclusions, and analysis the
Examiner provides in the record, and for principally the same reasons
discussed above for sustaining the Examiner’s rejection of claim 1, we
sustain the Examiner’s rejection of claims 2, 3, 14, 17–19, and 21.
Accordingly, we affirm the Examiner’s rejection of claims 1–7 and
14–21 under 35 U.S.C. § 103 as obvious over Schneider and Gauthier.

CONCLUSION
In summary:
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–7, 14–21 103 Schneider, Gauthier 1–7, 14–21

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