Ex parte Barry et al.

Board of Patent Appeals and Interferences

Apr 30, 1999

08146862 (B.P.A.I. Apr. 30, 1999)

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journal and (2) is not binding precedent of the Board.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application, stand withdrawn from consideration.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
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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
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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
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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
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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-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
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David E. Heiser
E. I. du Pont de Nemours & Co.
Legal - Patents
Wilmington, DE 19898