Ex Parte 7825081 et al

Patent Trial and Appeal Board

Jun 25, 2015

95000630 (P.T.A.B. Jun. 25, 2015)

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.
95/000,630 05/02/2011 7825081 9404.21459-REX 3919
116637 7590 06/25/2015
HONEYWELL/FOX/BANNER
Patent Services
101 Columbia Rd.
Morristown, NJ 07962
EXAMINER
JOHNSON, JERRY D
ART UNIT PAPER NUMBER
3991
MAIL DATE DELIVERY MODE
06/25/2015 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
____________

Mexichem Amanco Holding S.A. de C.V.
Requester and Respondent

v.

Patent of
Honeywell International Inc.
Patent Owner and Appellant
____________

Appeal 2015-001235
Reexamination Control 95/000,630
Patent 7,825,081 B2
Technology Center 3900
____________

Before ROMULO H. DELMENDO, RICHARD M. LEBOVITZ, and
JEFFREY B. ROBERTSON, Administrative Patent Judges.

ROBERTSON, Administrative Patent Judge.

DECISION ON APPEAL
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Honeywell International Inc. (“Patent Owner”) appeals under 35
U.S.C. §§ 134(b) and 315(a) (Pre-AIA) the Examiner’s decision to reject
claims 1, 6, 8-15, 17, 30, 33-41, and 55-57.1 Claims 2-5, 7, 16, 18-29, 31,
32, 42-54, and 58-60 have been cancelled. (Ans., noting that Patent Owner’s
amendment filed August 22, 2013 was entered.) Third-Party Requester
Mexichem Amanco Holding S.A. de C.V. (hereinafter “Requester”) urges
that the Examiner’s decision must be affirmed.2 We have jurisdiction under
35 U.S.C. §§ 134(b) and 315(a) (Pre-AIA). We reverse the Examiner’s
decision to reject claims 1, 6, 8-15, 17, 30, 33-36, 38-41, and 55-57, but
affirm as to claim 37.

STATEMENT OF THE CASE
United States Patent 7,825,081 B2 (hereinafter the “’081 Patent”),
which is the subject of the current inter partes reexamination, issued to Rajiv
R. Singh et al. on November 2, 2010. The application issuing as the ’081
Patent claims to be a divisional of Application No. 10/837,526, which issued
as U.S. Patent 7,524,805 B2, which in turn is the subject of Reexamination
Control. No. 95/000,574 and is also on appeal. (Appeal No. 2014-007990.)
The appeal of 95/000,574 is decided concurrently with this present appeal.

1 See Patent Owner’s Appeal Brief 1 (filed December 27, 2013) (hereinafter
“PO App. Br.”) Examiner’s Answer (mailed February 28, 2014) (hereinafter
“Ans.”); Right of Appeal Notice (mailed April 23, 2013) (hereinafter
“RAN.”).
2 See Requester’s Respondent Brief (filed January 24, 2014) (hereinafter
“Req. Resp’t Br.”).
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We heard oral arguments from both the Patent Owner and Requester
on May 7, 2015, a transcript of which was entered into the electronic record
on May 27, 2015.
The ’081 Patent relates to methods of cooling an article and methods
of preparing sprayable compositions utilizing an “azeotrope-like”
composition containing a mixture of trans-1,3,3,3-tetrafluoropropene
(transHFO-1234ze) and a hydrofluorocarbon (HFC) as a refrigerant or
propellant, respectively. (Col. 1, ll. 24-25; col. 2, ll. 26-45; col. 3, ll. 49-66.)
Claims 1 and 6, which are illustrative of the appealed subject matter,
read as follows:
1. A method for cooling an article comprising:
condensing a refrigerant composition comprising an
azeotrope-like composition comprising effective amounts of
trans-1,3,3,3-tetrafluoropropene (transHFO-1234ze) and a
compound selected from the group consisting of
1,1,1,2,3,3,3-heptafluoropropane ("HFC-227ea")
1,1,1,2,-tetrafluoroethane ("HFC-134a"),
1,1,1,2,2-pentafluoroethane ("HFC-125") and combinations of
two or more of these;
and
thereafter evaporating said refrigerant composition in the
vicinity of the article to be cooled.
6. A method for preparing a sprayable composition
comprising mixing
an active ingredient and, optionally, one or more inert
ingredients and/or solvents, and a propellant comprising an
azeotrope-like mixture consisting essentially of
trans-1,3,3,3-tetrafluoropropene (transHFO-1234ze) and a
compound selected from the group consisting of
1,1-difluoroethane ("HFC-152a"),
1,1,1,2,3,3,3-heptafluoropropane ("HFC-227ea"),
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1,1,1,2-tetrafluoroethane ("HFC-134a"), 1,1,1,2,2-
pentafluoroethane ("HFC-125") and combinations of two or
more of these.
(PO App. Br. 43 Claims App’x.)

Patent Owner contests the Examiner’s decision to reject the claims as
follows:
I. Claims 1, 13, 14, and 17 under 35 U.S.C. § 102(b) as
anticipated by or, in the alternative, under 35 U.S.C. § 103(a) as
obvious over Inagaki;3
II. Claims 1, 6, 8-15, 17, 30, 33-35, 41, and 55-57 under 35 U.S.C.
§ 103(a) as obvious over Inagaki;
III. Claims 6, 30, 33-38, and 55-57 under 35 U.S.C. § 103(a) as
obvious over Inagaki in view of Schultz;4
IV. Claims 39-41 under 35 U.S.C. § 103(a) as obvious over Inagaki
in view of Schultz and Musso;5 and
V. Claim 1 under 35 U.S.C. § 103(a) as obvious over Inagaki in
view of Althouse.6
(PO App. Br. 4.)
Patent Owner does not contest the rejection of claim 37 under 35
U.S.C. § 112, second paragraph. (Id.)

3 Japanese Unexamined Patent Application Laid Open H4-l l 0388 to Inagaki
et al., published April 10, 1992. Citations to English translation of record.
4 U.S. Patent No. 7,105,152 B1, issued September 12, 2006.
5 U.S. Patent No. 5,766,511, issued June 16, 1998.
6 Andrew D. Althouse et al., “Modern Refrigeration and Air Conditioning,”
1968.
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CLAIM CONSTRUCTION
Central to the present appeal is the interpretation of the term
“azeotrope-like” composition recited in each of independent claims 1 and 6.
The Examiner interpreted the term as follows: “consistent with the
specification, the term ‘azeotrope-like’ is broadly construed as a
composition containing a mixture of transHFO-1234ze and one or more of
HFC-152a, HFC-227ea, HFC-134a, or HFC-125.” (RAN 5.)
“‘During reexamination, as with original examination, the PTO must
give claims their broadest reasonable construction consistent with the
specification.’” In re Suitco Surface, Inc., 603 F.3d 1255, 1259 (Fed. Cir.
2010) (quoting In re ICON Health and Fitness, Inc., 496 F.3d 1374, 1379
(Fed. Cir. 2007)). Thus, although the PTO construes claim terms under the
“broadest reasonable interpretation” standard, our reviewing court has
repeatedly “instructed that any such construction [must] be ‘consistent with
the specification, . . . and that claim language should be read in light of the
specification as it would be interpreted by one of ordinary skill in the art.’”
Id. at 1260.
The ’081 Patent states:
Azeotrope-like compositions are constant boiling or
essentially constant boiling. In other words, for azeotrope-like
compositions, the composition of the vapor formed during
boiling or evaporation is identical, or substantially identical, to
the original liquid composition. Thus, with boiling or
evaporation, the liquid composition changes, if at all, only to a
minimal or negligible extent. This is to be contrasted with non-
azeotrope-like compositions in which, during boiling or
evaporation, the liquid composition changes to a substantial
degree. All azeotrope-like compositions of the invention within
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the indicated ranges, as well as, certain compositions outside
these ranges, are azeotrope-like.

(Col. 2, l. 65-col. 3, l. 9.)
Therefore, according to the Specification, an “azeotrope-like”
composition is defined as a composition that is constant boiling or
essentially constant boiling. Compositions including the recited components
must exhibit such behavior in order to meet the claims. We do not subscribe
to the Examiner’s and the Requester’s view that the claims include any
compositions containing a mixture of the components recited therein. (RAN
5, 16-17; Req. Resp’t Br. 7-10.) To do so would read the term
“azeotrope-like,” as expressly defined in the Specification, out of the claims.
We interpret the term “effective amounts” recited in claim 1, to mean
“amounts effective to result in an ‘azeotrope-like’ composition.” Even
though we acknowledge that the ’081 Patent discloses broad ranges for such
components (see col. 4, ll. 7-23), the claim is still limited by the requirement
that the composition be “azeotrope-like.” In this regard, we do not interpret
the disclosure of amounts in the ’081 Patent to be a definition as to what
constitutes an “azeotrope-like” composition as is the position of the
Requester. (Req. Resp’t Br. 3, 8-10.) Rather, we look to the express
definition of “azeotrope-like” composition discussed above, with the broad
amounts disclosed as providing general guidance in producing an
“azeotrope-like” composition with a constant or substantially constant
boiling point.

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The ’081 Patent supports the above interpretation in disclosing that:
“[t]he term ‘effective amounts’ as used herein refers to the amount of each
component which upon combination with the other component, results in the
formation of an azeotrope-like composition of the present invention.” (Col.
3, ll. 52-56.) Contrary to Requester’s position, we do not view this
definition of “effective amounts” as “self-defined” (Req. Resp’t Br. 7), but
instead to be relating the amounts to those necessary to result in the
identified properties of an “azeotrope-like” composition. In view of our
interpretation of the claims, Requester’s arguments that the claims do not
include the preferred embodiments are unpersuasive. (Req. Resp. Br. 8-10.)

REJECTION UNDER 35 U.S.C. § 112
Claim 37 stands rejected under 35 U.S.C. § 112, second paragraph
(pre-AIA) as providing insufficient antecedent basis for the term “said
medicinal material.” (Ans. 3 (not paginated); RAN 6.) Patent Owner does
not dispute this rejection. (PO App. Br. 4.) Accordingly, we summarily
affirm this rejection. Hyatt v. Dudas, 551 F.3d 1307, 1314 (Fed. Cir. 2008).

PRIOR ART REJECTIONS
Rejections I and II-Inagaki
The Examiner’s position is that Inagaki discloses an “azeotrope-like”
composition. (RAN 7-8.) The Examiner stated: “While Inagaki does not
specifically teach that mixtures of C3HmFn with at least one compound of the
selected group are azeotrope-like, Inagaki nevertheless teaches compositions
comprising the claimed components. . . . Accordingly, Inagaki teaches a
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composition for use in heat transfer applications which reasonably appears
to be either the same as or an obvious variation of the instantly claimed
composition.” (RAN 8, see also RAN 16-17.) Requester agrees with the
Examiner. (Req. Resp’t Br. 4, 10.)
Patent Owner contends that Inagaki fails to disclose an
“azeotrope-like” composition because, inter alia, Inagaki only discusses
azeotropes in the background section and not in the context of the invention
disclosed in Inagaki. (PO App. Br. 17-18.) Patent Owner argues that the
compositions disclosed in Inagaki are not inherently “azeotrope-like.” (PO
App. Br. 18-19.) Patent Owner argues also that because Inagaki does not
provide any teaching or suggestion that the compositions disclosed there in
would result in “azeotrope-like” compositions and because the formation of
“azeotrope-like” compositions is not predictable, there would have been no
reasonable expectation of success in forming the “azeotrope-like”
compositions recited in the claims based on the disclosure of Inagaki. (PO
App. Br. 22-24.)

ISSUE
The dispositive issue on appeal is: Does Inagaki disclose or render
obvious the “azeotrope-like” composition recited in the claims?
We answer this question in the negative.

FINDINGS OF FACT (“FF”)
1. Inagaki discloses: “Conventionally, chlofluoro hydrocarbon,
fluorohydrocarbon, azeotropic composition of said
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chlofluorohydrocarbon and said fluorohydrocarbon and their
homologues have been known as heat media (cooling media)
used for a heat pump.” (Inagaki, p. 1, col. 1, “Background of
Invention.”)
2. Inagaki discloses fluids for heat transfer of the formula and
specifically discloses F3C-CH=CHF,
(1,3,3,3-tetrafluoro-1-propene), which has a boiling point -16.0
degrees Celsius. (Inagaki, p. 2, cols. 1-2.)
3. Inagaki discloses mixtures of C3HmFn with R-22 (CHClF2),
R-32 (CH2F2), R-124 (CF3CHClF), R-125 (CF3CF2H), R-134a
(CF3CFH2), R-142b (CH3CClF2), 143a (CF3CH3) and R-152
(CHF2CH3). (Inagaki, p. 2, col. 2.)
4. Inagaki is silent as to whether the compositions disclosed
therein form azeotrope or “azeotrope-like” compositions.

ANALYSIS
After considering the arguments and evidence submitted by the Patent
Owner and Requester, we reverse the Examiner’s rejections of the claims
because we agree with Patent Owner that Inagaki does not disclose or render
obvious the “azeotrope-like” compositions recited in the claims.
The Examiner’s rejection relies on an interpretation of
“azeotrope-like” composition, which we did not adopt as discussed above.
That is, the Examiner relies on Inagaki’s disclosure of all the components
recited in the claims in order to support the position that Inagaki discloses
the claimed “azeotrope-like” compositions. (RAN 7-8.) However, as
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explained above, the claims require the compositions comprising the recited
components to be constant boiling or essentially constant boiling. There is
insufficient evidence of record that the compositions disclosed in Inagaki
would necessarily exhibit this property or that one of ordinary skill in the art
would have been able to arrive at the “azeotrope-like” compositions recited
in the claims based on the Inagaki’s disclosure.
In reaching this conclusion, we recognize that as long as the Examiner
has a reasonable basis to believe that the compositions of the prior art would
be expected to possess the same or similar properties as the compositions
recited in the claims, the Examiner may shift the burden to the Patent Owner
to prove otherwise. In re Spada, 911 F.2d 705, 708 (Fed. Cir. 1990) (citing
In re King, 801 F.2d 1324, 1327 (Fed. Cir. 1986); In re Ludtke, 441 F.2d
660, 664 (CCPA 1971). (“[W]hen the PTO shows sound basis for believing
that the products of the applicant and the prior art are the same, the applicant
has the burden of showing that they are not.”) However, in this case, there is
insufficient evidence to support such a belief as explained further below.
Here, we observe as does Patent Owner, that the formation of
azeotropic compositions has been recognized previously as unpredictable.
In re Broadly, 404 F.2d 616, 619 (CCPA 1968) (a homologous relationship
between hydrofluorocarbons was insufficient to predict the formation of an
azeotrope). In addition, Patent Owner relies on Declarations of Rajiv Ratna
Singh, executed on August 12, 2011 (“First Singh Declaration”) and August
26, 2012 (“Second Singh Declaration”) to establish that “azeotrope-like”
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compositions are unpredictable.7 (First Singh Decl. paras. 6-8.) Dr. Singh
cites to three U.S. Patents, U.S. Patent No. 3,085,065 (“the ’065 Patent),
U.S. Patent No. 5,182,040 (“the ’040 Patent”), and U.S. Patent No.
5,648,017 (“the ’017 Patent”), for support of the unpredictability of forming
azeotropes in fluorocarbon compositions. (First Singh Decl. para. 6.)
Specifically, the ’065 Patent states:
It is impossible to predict that an azeotrope will form
between any two compounds and so it is impossible to pick
any two refrigerants and combine them to obtain an azeotrope
boiling at some particular point by prediction. If an azeotrope
occurs at all, its boiling point is a function of the system and is
not under the control of the experimenter. The mere existence
of a large number of fluorinated hydrocarbons does not aid in
predicting the formation of azeotropes by mixtures thereof.

(Col. 1, l. 66-col. 2, l. 3.) The ’040 and ’017 patents have similar statements
about the unpredictability of forming azeotropes. (First Singh Decl. para. 6.)
Thus, the evidence of record, as in Broadly, supports Patent Owner’s
position that azeotropes may not be formed predictably. Although the
claims are directed to “azeotrope-like” compositions, which include
azeotropes, but are not limited necessarily to “true” azeotropes, in light of
the definition of “azeotropelike” discussed above, we credit Dr. Singh’s
testimony that forming an “azeotrope-like” composition would be
unpredictable. That is, because “azeotrope-like” compositions are “constant

7 Dr. Singh is a co-inventor of the ’081 Patent. (First Singh Declaration
para. 1.) Dr. Singh has Ph.D. in physical chemistry, and is a
Senior/Corporate Fellow and Leader in the Fluorine Chemistry Group.
(First Singh Declaration, paras. 2 and 3; Second Singh Declaration, para. 3.)
We find Dr. Singh to be qualified to opine on azeotrope-like compositions.
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boiling or essentially constant boiling,” one of ordinary skill in the art would
have expected that the formation of an “azeotrope-like” composition would
have been equally unpredictable because their properties are not the same as
they are for mixtures of pure compounds. (First Singh Decl. paras. 6-8.)
In this regard, we are not persuaded by Requester’s contention that the
’081 Patent does not support the formation of an azeotrope. (Req. Resp’t Br.
6.) Specifically, Requester argues that the boiling point temperatures relied
on for the “pure” components such as R-134a are not consistent with the
values disclosed in Patent Owner’s own Material Safety Data Sheet. (Req.
Resp’t Br. 5.) Requester relies on the declaration of Robert Elliott Low
executed on September 15, 2011 (the “Low Declaration”), who declared that
the discrepancy in boiling points “casts doubt” over the results reported in
the ’081 Patent.8 (Req. Resp’t Br. 6; Low Declaration, para. 31.)
However, Patent Owner argues that the alleged variation in boiling
point is irrelevant, and that the measured boiling point of the compositions in
the examples disclosed in the ’081 Patent changes very little with changes in
concentration of components, and thus show essentially no change in boiling
point as required by an azeotropic composition. (Patent Owner Rebuttal
Brief filed March 28, 2014, “PO Reb. Br.” 2-6.) As further explained by Dr.
Singh, the differences in the absolute boiling points may be attributed to
differences or errors in the calibration of equipment. (Second Singh
Declaration, para. 10, FN2.) Dr. Singh explains further that the measured

8 Dr. Low, who is employed by Mexichem, earned a Doctorate in Chemical
Engineering with experience in azeoptropic and nonazeotropic refrigerants.
(Low Declaration, paras. 1-4.) We find Dr. Low qualified to opine on
azetropic compositions.
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boiling point of the compositions of changes very little with changes in
concentration of components, in the case of transHFO-1234ze with
HFC-134a, for example. (Second Singh Declaration, paras. 10, 11, 13, 14.)
Requester relies further on declarations of Stuart Corr, one executed
in 2011, (the “First Corr Declaration”) and a second declaration submitted
with a response filed September 26, 2012 (the “Second Corr Declaration).9
We address the declarations of Dr. Corr to the extent they are consistent with
our interpretation of “azeotrope-like” set forth above. Dr. Corr declared that
one of ordinary skill in the art would not be able to determine whether or not
a particular composition is or is not “azeotrope-like” in view of the
disclosure in the ’081 Patent. (First Corr Declaration, para. 25.) Dr. Corr
states further that in view of the boiling point changes in Examples 1-4 (less
than 2 ºC, less than 6 ºC, less than 1 ºC, less than 1 ºC, respectively) of the
’081 Patent, the skilled person would see “different criteria” being applied to
each of the binary mixtures in the examples. (First Corr Declaration, para.
30.) Dr. Corr appears to be relying on the quantitative difference in boiling
changes between the examples, but does not adequately explain why such
differences rise to the level of “different criteria” as opposed to different
examples illustrating azeotrope-like compositions.

9 The exact date of the First Corr Declaration is not legible and the Second
Corr Declaration is undated. Dr. Corr, who is employed by Mexichem, has
Ph.D. in physical chemistry, and worked in developing ozone-benign
alternatives to chlorfluorocarbons (CFC) and hydrochlorofluorocarbons
(HCFC) refrigerants. (First Corr Declaration, paras. 3-5; Second Corr
Declaration, para. 3.) We find Dr. Corr to be qualified to opine on
fluorocarbon compositions used as refrigerants.
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Thus, we find that the evidence pointed to by the Patent Owner and
Requester in the briefs weighs in favor of the Patent Owner. (PO Reb. Br.
2-6.) Specifically, we agree with Patent Owner that the behavior of the
compositions with respect to the change in temperature of the boiling points
as discussed in the ’081 Patent and the Second Singh Declaration supports
Patent Owner’s position that azeotrope-like compositions containing the
claimed components would be unpredictable. (PO Reb. Br. 2-6.)
Thus, although Inagaki discloses compounds and combinations of
compounds that may include the compounds recited in the claims (FF2,
FF3), Inagaki is silent as to whether azeotrope or “azeotrope-like”
compositions are formed. (FF4.) Inagaki does mention azeotropic
compositions, but only in the background section of the disclosure, and not
in conjunction with the disclosure of their invention. (FF1, FF4.) In view of
the above discussion, insufficient basis exists to support the Examiner’s
position that Inagaki discloses or renders obvious “azeotrope-like”
compositions as recited in independent claims 1 and 6. Accordingly, we
reverse the Examiner’s rejection of the claims as anticipated by or obvious
over Inagaki.

Rejections III-V
The remaining prior art rejections on appeal all rely on Inagaki for the
disclosure of an “azeotrope-like” composition. (RAN 9, 10, 11, 12.)
Therefore, we reverse the Examiner’s rejections (Rejections III-V) for the
same reasons.

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CONCLUSION
On this record, the Examiner erred in determining that Inagaki
discloses or renders obvious the “azeotrope-like” composition recited in the
claims.

DECISION
The Examiner’s decision to reject claims 1, 6, 8-15, 17, 30, 33-36, 38-
41, and 55-57 is reversed, but affirmed as to claim 37.

In accordance with 37 C.F.R. § 41.79(a)(1), the “[p]arties to the
appeal may file a request for rehearing of the decision within one month of
the date of: . . . [t]he original decision of the Board under § 41.77(a).” A
request for rehearing must be in compliance with 37 C.F.R. § 41.79(b).
Comments in opposition to the request and additional requests for rehearing
must be in accordance with 37 C.F.R. § 41.79(c) & (d), respectively. Under
37 C.F.R. § 41.79(e), the times for requesting rehearing under paragraph (a)
of this section, for requesting further rehearing under paragraph (d) of this
section, and for submitting comments under paragraph (c) of this section
may not be extended.
An appeal to the United States Court of Appeals for the Federal
Circuit under 35 U.S.C. §§ 141-144 and 315 and 37 C.F.R. § 1.983 for an
inter partes reexamination proceeding “commenced” on or after November
2, 2002 may not be taken “until all parties' rights to request rehearing have
been exhausted, at which time the decision of the Board is final and
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appealable by any party to the appeal to the Board.” 37 C.F.R. § 41.81. See
also MPEP § 2682 (8th ed., Rev. 7, July 2008).

AFFIRMED-IN-PART

PATENT OWNER:
HONEYWELL/FOX/BANNER
Patent Services
101 Columbia Road
Morristown, NJ 07962

THIRD-PARTY REQUESTER:

RYAN KROMHOLZ & MANION, S.C.
PO Box 26618
Milwaukee, WI 53226