Ex parte Barry et al.Download PDFBoard of Patent Appeals and InterferencesApr 30, 199908146862 (B.P.A.I. Apr. 30, 1999) Copy Citation Application for patent filed November 1, 1993.1 -1- THIS OPINION WAS NOT WRITTEN FOR PUBLICATION The opinion in support of the decision being entered today (1) was not written for publication in a law journal and (2) is not binding precedent of the Board. Paper No. 18 UNITED STATES PATENT AND TRADEMARK OFFICE ________________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ________________ Ex parte MAHLER A. BARRY, RALPH N. MILLER and V.N. MALLIKARJUNA RAO ________________ Appeal No. 96-2885 Application No. 08/146,8621 ________________ ON BRIEF ________________ Before KIMLIN, JOHN D. SMITH and PAK, Administrative Patent Judges. KIMLIN, Administrative Patent Judge. DECISION ON APPEAL Appeal No. 96-2885 Application No. 08/146,862 -2- This is an appeal from the final rejection of claims 4- 10. Claims 1-3, the other claims remaining in the present application, stand withdrawn from consideration. Claim 4 is illustrative: 4. A composition consisting essentially of hydrogen fluoride in combination with an effective amount of a compound selected from the group consisting of CC1 CF and CC1 FCF to3 3 2 3 form an azeotrope or azeotrope-like composition with hydrogen fluoride, said composition containing from about 10 to 27 mole percent CC1 CF and from about 90 to 73 mole percent of HF or3 3 from about 35 to 56 mole percent CC1 FCF and from about 65 to2 3 44 mole percent of HF; said composition (i) including a liquid phase and a vapor phase with a composition which is essentially that of said liquid phase, and (ii) having a boiling point which ranges from about -25EC at 50 kPa when the composition consists essentially of about 65 mole percent HF and about 35 mole percent CC1 FCF to about 125EC at 4020 kPa2 3 when the composition consists essentially of about 44 mole percent HF and about 56 mole percent CC1 FCF and a boiling2 3 point which ranges from about 20EC at 140 kPa when the composition consists essentially of about 90 mole percent HF and about 10 mole percent CC1 CF to about 150EC at 4750 kPa3 3 when the composition consists essentially of about 73 mole percent HF and about 27 mole percent CC1 CF3.3 In the rejection of the appealed claims, the examiner relies upon the following references: Lantz et al. (Lantz) 5,055,624 Oct. 8, 1991 Lee et al. (Lee) 5,196,616 Mar. 23, 1993 (filed Oct. 18, 1991) Appeal No. 96-2885 Application No. 08/146,862 -3- Appellants' claimed invention is directed to an azeotrope or azeotrope-like composition consisting essentially of hydrogen fluoride and either CC1 CF or CC1 FCF .3 3 2 3 Appealed claims 4-7 stand rejected under 35 U.S.C. § 103 as being unpatentable over Lee. Claims 4 and 8-10 stand rejected under 35 U.S.C. § 102(b) as being anticipated by or, in the alternative, under 35 U.S.C. § 103 as being unpatentable over Lantz. Upon careful consideration of the opposing arguments presented on appeal, we will sustain the examiner's rejection of claims 4-7 under § 103 over Lee. However, we will not sustain the examiner's rejection of claims 4 and 8-10 over Lantz. We consider first the examiner's rejection of claims 4-7 under § 103 over Lee. Lee discloses a process of separating and recovering an organic phase containing fluorocarbons from an azeotrope or azeotrope-like composition comprising an admixture of a fluorocarbon and HF. Lee also teaches that fluorocarbons of particular interest in composition with HF include the presently claimed CF CCl F (column 4, line 61). 3 2 Accordingly, since Lee is directed to processing azeotrope or Appeal No. 96-2885 Application No. 08/146,862 -4- azeotrope-like compositions comprising HF and fluorocarbons like the presently claimed CF CCl F, we fully concur with the3 2 examiner that the claimed azeotrope or azeotrope-like composition consisting essentially of hydrogen fluoride and CC1 FCF would have been obvious to one of ordinary skill in2 3 the art. Appellants contend that: The feed stream [of Lee] can be any mixture of at least one fluorocarbon and hydrogen fluoride that results in a fluorocarbon/HF admixture that is difficult to separate by conventional distillation (see, Col. 4, lines 12-17); and does not have to be at an azeotrope or azeotrope-like concentration range, but merely capable of forming the difficult- to-separate composition during distillation (see, Col. 4, lines 27- 32). See sentence bridging pages 6 and 7 of Brief. However, as noted above, Lee expressly teaches that "this invention provides a process for the separation of a difficult-to- separate azeotrope or azeotrope-like composition consisting essentially of hydrogen fluoride and a C -C fluorocarbon1 3 composition" (sentence bridging columns 2 and 3). Furthermore, we fail to perceive any meaningful distinction between a so-called "azeotrope-like composition" and a Appeal No. 96-2885 Application No. 08/146,862 -5- composition that is difficult to separate by conventional distillation. While appellants maintain that Lee does not specifically disclose a two-component mixture of HF and CC1 FCF , we find2 3 that the reference teaching of CF CCl F as a fluorocarbon of3 2 particular interest, as well as other two-component azeotropic mixtures of HF and a fluorocarbon, would have suggested the claimed azeotropic mixture to one of ordinary skill in the art. Moreover, we are satisfied that it would have taken no more than routine experimentation for one of ordinary skill in the art to determine that a mixture of HF and the disclosed CF CCl F is an azeotrope at particular concentrations.3 2 We now turn to the rejection of claims 4 and 8-10 under § 102/§ 103 over Lantz. Since appellants do not dispute that Lantz discloses mixtures of the claimed components at the claimed concentrations, we agree with the examiner that Lantz discloses azeotropic compositions of the claimed components, notwith-standing the fact that Lantz does not describe the compositions as such. We say this because an admixture of two compounds at the proper concentrations either exhibit the properties of an azeotropic mixture or do not. Hence, since Appeal No. 96-2885 Application No. 08/146,862 -6- there is no dispute that Lantz discloses the claimed composition consisting essentially of HF and CCl CF at the3 3 claimed concentrations, it necessarily follows that the reference discloses an azeotropic composition of appellants' components. However, the appealed claims also require that the claimed composition include "a liquid phase and a vapor phase with a composition which is essentially that of said liquid phase." On the other hand, Lantz specifically teaches that "[t]he pressure can be between 10 and 80 bars absolute, but must be sufficient to maintain the reagents in the liquid state at the temperature chosen for the reaction" (column 3, lines 1-3). Consequently, Lantz provides a teaching away of the claim requirement of a liquid phase and a vapor phase. The examiner speculates that "at least a minute vapor phase will exist in equilibrium with the liquid phase of Lantz et al.," but the examiner fails to provide the requisite factual support for the inevitability of a vapor phase existing at the pressures required by Lantz. Also, there is no teaching or suggestion in Lantz "to mix the hydrogen fluoride and chlorofluorocarbon components at room temperature and pressure" (page 6 of Answer). The motivation provided by the Appeal No. 96-2885 Application No. 08/146,862 -7- examiner lacks factual support in the reference. Furthermore, any mixture at room temperature would require a mixture at the appropriate concentrations of the components which, again, is not suggested by the reference. In conclusion, we affirm the examiner's rejection of claims 4-7 under § 103 over Lee. We reverse the examiner's rejection of claims 4 and 8-10 under § 102/§ 103 over Lantz. Accordingly, the examiner's decision rejecting the appealed claims is affirmed-in-part. Appeal No. 96-2885 Application No. 08/146,862 -8- No time period for taking any subsequent action in connection with this appeal may be extended under 37 CFR § 1.136(a). AFFIRMED-IN-PART EDWARD C. KIMLIN ) Administrative Patent Judge ) ) ) ) ) JOHN D. SMITH ) BOARD OF PATENT Administrative Patent Judge ) APPEALS AND ) INTERFERENCES ) ) ) CHUNG K. PAK ) Administrative Patent Judge ) clm Appeal No. 96-2885 Application No. 08/146,862 -9- David E. Heiser E. I. du Pont de Nemours & Co. 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