Bjorn Moden et al.

Patent Trials and Appeals Board

Jul 26, 2019

13449230 - (D) (P.T.A.B. Jul. 26, 2019)

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.
13/449,230 04/17/2012 Bjorn Moden 10545.0013-00000 7241
22852 7590 07/26/2019
FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER
LLP
901 NEW YORK AVENUE, NW
WASHINGTON, DC 20001-4413
EXAMINER
DAVIS, SHENG HAN
ART UNIT PAPER NUMBER
1732
NOTIFICATION DATE DELIVERY MODE
07/26/2019 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):
regional-desk@finnegan.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte BJORN MODEN, DAVID COOPER, HONG-XIN LI, and
WILLIAM E. CORMIER
____________

Appeal 2018-000805
Application 13/449,230
Technology Center 1700
____________

Before DONNA M. PRAISS, N. WHITNEY WILSON, and
JEFFREY R. SNAY, Administrative Patent Judges.

SNAY, Administrative Patent Judge.

DECISION ON APPEAL1
Appellants2 appeal under 35 U.S.C. § 134(a) from the Examiner’s
decision finally rejecting claims 1–4 and 7, 8, 10, and 11. A hearing was
held July 11, 2019. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

1 We cite to the Specification (“Spec.”) filed April 17, 2012; Final Office
Action (“Final Act.”) dated November 27, 2015; Appellants’ Appeal Brief
(“Appeal Br.”) filed April 24, 2017 as corrected July 24, 2017; Examiner’s
Answer (“Ans.”) dated August 31, 2017; and Appellants’ Reply Brief
(“Reply Br.”) filed October 31, 2017.
2 Appellants identify PQ Corporation as the real party in interest. Appeal Br. 3.
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BACKGROUND
The subject matter on appeal relates to an aluminosilicate zeolite
material suitable for use in selective catalytic reduction of exhaust gas.
Spec. ¶ 2. Claim 1 reads as follow:
1. A microporous crystalline material comprising an
aluminosilicate zeolite synthesized without the use of an
organic structural directing agent, wherein said zeolite
comprises a chabazite (CHA) structure having copper, a silica-
to-alumina ratio (SAR) ranging from 5 to 15, and a crystal size
greater than 0.5 microns, wherein said copper containing
chabazite has a Cu/Al molar ratio of at least 0.08.

Appeal Br. Claims Appendix. Independent claims 7 and 11 are directed to
selective catalytic reduction (SCR) methods using a material essentially as
recited in claim 1. Id. Each remaining claim on appeal depends from claim
1 or 7.3
REJECTIONS
I. Claims 1–3 and 7, 8, 10, and 11 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Bull I4 and Bull II.5
II. Claim 4 stands rejected under 35 U.S.C. § 103(a) as unpatentable over
Bull I, Bull II, and Bull III.6

3 Claim 10 improperly depends from canceled claim 9. For purposes of this
decision, we view claim 10 as depending from claim 7, which is consistent
with Appellants’ characterization of claim 10 (see Appeal. Br. 5).
4 US 2011/0020204 A1, published January 27, 2011.
5 US 2012/0208691 A1, published August 16, 2012.
6 US 2009/0196812 A1, published August 6, 2009.
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OPINION
Rejection I
Appellants argue independent claims 1, 7, and 11 as a group. See
Appeal Br. 8–14. Appellants present separate headings for each of
dependent claims 2, 3, 8, and 10 in the argument section of the Appeal Brief,
but solely rely on arguments presented in connection with the independent
claims. See id. at 14–16. With regard to Rejection I, we select claim 1 as
representative, and decide the appeal based on the representative claim
alone. Claims 2, 3, 7, 8, 10, and 11 stand or fall with claim 1.
Relevant to Appellants’ arguments on appeal, the Examiner finds that
Bull I discloses a Cu-containing chabazite material that meets all of the
recitations of claim 1, except that Bull I is silent as to the crystal size of the
material. Final Act. 5. The Examiner finds that Bull II would have provided
one of ordinary skill with a reason to produce the chabazite material with
crystals greater than 0.5 microns in size. Id. (finding that Bull II “explains
that larger crystal sizes result in improved catalyst stability when using Cu-
modifying a CHA zeolite.”) (citing Bull II ¶ 12).
Appellants argue that Bull I discloses a chabazite material that is
“specifically processed to achieve a small crystal size, likely less than 0.5
microns.” Appeal Br. 8; see Reply Br. 3–4. For evidence, Appellants point
to Comparable Example 4 of the Specification, which, according to
Appellants, was prepared by a process that is similar to Example 1 of Bull I.
Appeal Br. 8–9. We find Appellants’ argument unpersuasive. Like Bull I,
the Specification is silent with regard to any quantitative measure of crystal
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size for the material identified in Comparable Example I.7 See Spec. ¶¶ 62,
63. Thus, Appellants’ argument is not persuasive that the materials
disclosed in Bull I necessarily would have precluded crystals greater than
0.5 microns in size. Moreover, Appellants’ argument does not persuasively
address the combined teachings of Bull I and Bull II that are relied upon by
the Examiner with regard to crystal size. See Bull II ¶ 12 (“It is indicated
that large crystal size results in improved catalyst stability with catalytic data
provided for only Cu/Chabazite.”).
Appellants also argue that Bull II employs organic templating agents
which are precluded by claim 1. Appeal Br. 10–11; Reply Br. 7–10.
Similarly, Appellants argue that Chandler, a reference discussed in Bull II,
also employs organic templating agents. Appeal Br. 11. However,
Appellants do dispute the Examiner’s finding that Bull I discloses synthesis
of Cu-modified chabazite materials without use of organic templating
agents. Compare Final Act. 5 (citing Bull I Ex. 1), with Appeal Br.
generally. Nor do Appellants persuasively explain why use of organic
templates by Bull II and/or Chandler would have negated the synthesis
technique taught in Bull I, or the desire for large crystal size in Cu-modified
chabazite stated in Bull II.

7 The heading preceding paragraph 62 of the Specification characterizes
Comparable Example 4 as “small crystal chabazite”). However, Appellants
do not point to evidence or any disclosure in the Specification that would
lead one of ordinary skill necessarily to interpret that characterization as a
numerical value of less than 0.5 microns. Appellants’ statement at page 10
of the Appeal Brief that Comparable Example 4 had “crystal sizes ranging
from 0.1-0.2 µm” is unsubstantiated attorney argument and not persuasive
evidence of crystal size.
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Appellants argue (Appeal Br. 12) that the Examiner incorrectly
calculated the Cu/Al molar ratio in Bull I’s Example 1. However,
Appellants do not challenge or otherwise respond to the Examiner’s revised
calculation. Compare Ans. 5, with Reply Br. generally. Nor do Appellants
address the Examiner’s finding that Bull I teaches increasing Cu/Al loading
to improve catalytic performance of the material. Ans. 3 (citing Bull I ¶ 27).
Accordingly, Appellants do not identify error in the Examiner’s
determination that one of ordinary skill would have found it obvious to
provide the Cu-Chabazite material of Bull I with a Cu/Al molar ratio of 0.08
or greater.
For the foregoing reasons, Appellants do not persuade us of error in
the Examiner’s rejection of claim 1. Rejection I as applied to each of claims
1–3 and 7, 8, 10, and 11 is sustained.

Rejection II
Claim 4 specifies a property of the material recited in claim 1—
namely, that the material “retains at least 60% of surface area after exposure
to 700oC. for 16 hours in the presence of up to 10 volume percent of water
vapor.” Appellants argue that the Examiner’s rejection relies in part on Bull
III which, according to Appellants, differs from the material in claim 1
because Bull III uses an organic templating agent and states a different
silica-to-alumina ratio. Appeal Br. 16–18; Reply Br. 10–11. However, the
Examiner’s rejection is premised on a finding that the Cu-Chabazite material
taught by Bull I and Bull II is essentially the same as that recited in claim 1
and, for that reason, would have been expected to exhibit essentially the
same properties. See Ans. 6. Where patentability rests upon a property of
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the claimed material not disclosed within the art, the PTO has no reasonable
method of determining whether there is, in fact, a patentable difference
between the prior art materials and the claimed material (In re Best, 562 F.2d
1252, 1255 (CCPA 1977)). Once the Examiner provides a reasonable basis
to believe that the characteristic is inherent, the burden shifts to the applicant
to prove that the prior art products do not necessarily possess the
characteristics of his claimed product (id. at 1254–55 (discussing In re
Swinehart, 439 F.2d 210 (CCPA 1971) and In re Ludtke, 441 F.2d 660
(CCPA 1971))). Appellants’ argument that Bull III purportedly discloses a
different material is not evidence of any property exhibited by the material
taught by Bull I and Bull II.
Rejection II also is sustained.

CONCLUSION
We sustain the Examiner’s rejections.

DECISION
The Examiner’s decision is affirmed.

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)(1).

AFFIRMED