Ex parte Araya

Board of Patent Appeals and Interferences

Apr 30, 2001

08288313 (B.P.A.I. Apr. 30, 2001)

-1-
The opinion in support of the decision being
entered today was not written for publication
and is not binding precedent of the Board.
Paper No. 17
UNITED STATES PATENT AND TRADEMARK OFFICE
________________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
________________
Ex parte ABRAHAM ARAYA
________________
Appeal No. 1997-2974
Application No. 08/288,313
________________
ON BRIEF
________________
Before KIMLIN, WARREN and OWENS, Administrative Patent Judges.
KIMLIN, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal from the final rejection of claim 2,
the only claim remaining in the present application. Claim 2
is reproduced below:
2. A process for the industrial scale preparation of
P zeolite having the oxide formula
M O.A1 O .(1.90-2.10)SiO .y H O2/n 2 3 2 2
Appeal No. 1997-2974
Application No. 08/288,313
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wherein M is an n-valent alkali metal cation and y is the
water content, comprising the steps of:
Appeal No. 1997-2974
Application No. 08/288,313
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i. mixing a sodium
aluminate solution
having a
temperature of at
least 60EC with a
sodium silicate
solution at a
temperature of at
least 60EC in a
stirred vessel of
2m volume or more,3
in the presence of
a slurry of P
zeolite seed to
form a gel having
the composition,
A1 O :(1.80-2.2)SiO :(1.5-5)Na O:2 3 2 2
(40 to 150) H O2
ii. ageing the gel at a
temperature above
about 60EC with
stirring to
maintain solids in
suspension for a
period of at least
about 0.1 hour,
iii. separating the P
zeolite product,
washing the
separated P zeolite
product and drying
the same.
The examiner relies upon the following references as
evidence of obviousness:
Vaughan et al. (Vaughan) 4,178,352 Dec. 11, 1979
Brown et al. (Brown) 0,384,070 Aug. 29, 1990
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Application No. 08/288,313
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Appellant's claimed invention is directed to an
industrial scale process for preparing P zeolite of the
recited formula. The method entails mixing a sodium aluminate
solution and a sodium silicate solution in the presence of a
slurry of P zeolite seed to form a gel of the specified
formula. The P zeolite finds utility in detergent
formulations to remove calcium and magnesium hardness ions.
Appealed claim 2 stands rejected under 35 U.S.C. § 103 as
being unpatentable over Brown in view of Vaughan.
We have thoroughly reviewed each of appellant's arguments
for patentability. However, we are in complete agreement with
the examiner that the claimed subject matter would have been
obvious to one of ordinary skill in the art within the meaning
of § 103 in view of the applied prior art. Accordingly, we
will sustain the examiner's rejection for essentially those
reasons expressed in the Answer.
As set forth by the examiner, Brown, like appellant,
discloses a process for preparing a P zeolite having a silicon
to aluminum ratio within the claimed range that is used in
detergent compositions. Brown does not disclose the claimed
use of P zeolite seed to form the gel but, as pointed out by
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Application No. 08/288,313
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the examiner, Vaughan evidences that it was conventional in
the art to utilize zeolite seed, or nucleation centers, in the
preparation of zeolites (see column 1, lines 17-20 and 41-46).
Accordingly, based on the state of the prior art, we are
satisfied that it would have been obvious for one of ordinary
skill in the art to use zeolite seed in the preparation
process of Brown for preparing a P zeolite of the claimed
formula.
Appellant emphasizes that the claimed process is on an
industrial scale, i.e., in a stirred vessel of 2m volume or3
more, whereas Brown "is limited to laboratory scale
operations" and is not capable of an industrial scale
preparation (page 6 of principal brief). In addition,
appellant relies upon the disclosure in WO 94/26662
(hereinafter WO '662) for evidence that "using the teaching of
Brown, it is not possible to produce a zeolite P type having
the following formula . . . in a reactor tank of 2 m or3
above" (page 9 of principal brief, lines 1-4).
Our review of WO '662, as well as the entire evidence of
record, leads us to the conclusion that appellant has not
established on this record that it is not possible to prepare
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P zeolite on an industrial scale by following the teachings of
the Brown disclosure. Contrary to appellant's argument,
WO '662 makes no such assertion. In discussing the Brown
process, WO '662 states that such process "with such a gel
composition, even though being suitable for producing zeolite
P on a bench scale, can't always be directly transposed to
industrial scale" (page 2, penultimate paragraph, emphasis
added). On page 4, WO '662 states that "[o]ne of the problems
is that the vigourous stirring which can be achieved on a
bench scale, and which allows the formation of zeolite P
instead of zeolite A, can't always be achieved when stirring a
1.5m pool, or bigger" (first paragraph). Consequently, from3
these disclosures of the reference, it seems to us that a fair
interpretation is that the Brown process can't always produce
zeolite P, but sometimes produces mixtures of zeolite P and
zeolite A. This interpretation is further supported by the
disclosure of WO '662 that "it has now been found that it is
in any case impossible to produce pure zeolite P with a gel
dilution n below 250 for a SiO /Al O molar ratio of the gel2 2 3
below 2.1 if the gel has a volume of above 1.5m " (page 4,3
first full paragraph). In our view, the evidence relied upon
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by appellant indicates that the Brown process cannot
consistently produce pure zeolite P on an industrial scale,
or, at most, always produces a mixture of zeolite P and
zeolite A. However, inasmuch as the appealed claims do not
define any degree of purity for the produced zeolite P, the
drawbacks of the Brown process described by WO '662 cannot
serve as a point of distinction from the claimed process. In
other words, there is no evidence of record that processes
within the scope of the appealed claims are unexpectedly
superior to the processes of producing P zeolite disclosed by
Brown in terms of consistency or purity. Since the examiner
correctly reasons that it is a matter of obviousness for one
of ordinary skill in the art to make the appropriate
modifications when scaling up a bench procedure to industrial
size, and it was also well-known in the art to employ zeolite
seed in forming zeolites, the burden is not insubstantial on
appellant to present evidence of nonobviousness to outweigh
the evidence of obviousness. In our view, no such evidence of
nonobviousness is of record.
In conclusion, based on the foregoing, the examiner's
decision rejecting the appealed claims is affirmed.
Appeal No. 1997-2974
Application No. 08/288,313
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Appeal No. 1997-2974
Application No. 08/288,313
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No time period for taking any subsequent action in
connection with this appeal may be extended under 37 CFR
§ 1.136(a).
AFFIRMED
EDWARD C. KIMLIN )
Administrative Patent Judge )
)
)
)
)
CHARLES F. WARREN ) BOARD OF PATENT
Administrative Patent Judge ) APPEALS AND
) INTERFERENCES
)
)
)
TERRY J. OWENS )
Administrative Patent Judge )
ECK:clm
Appeal No. 1997-2974
Application No. 08/288,313
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Paul N Kokulis
Cushman, Darby & Cushman
Ninth Floor
1100 New York Ave., N.W.
Washington, DC 20005-3918