Ex Parte BosDownload PDFPatent Trial and Appeal BoardOct 8, 201412331867 (P.T.A.B. Oct. 8, 2014) Copy Citation 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. 12/331,867 12/10/2008 Alouisius Nicolaas Renee Bos TS1770 (US) 3417 23632 7590 10/08/2014 SHELL OIL COMPANY P O BOX 2463 HOUSTON, TX 77252-2463 EXAMINER DANG, THUAN D ART UNIT PAPER NUMBER 1772 MAIL DATE DELIVERY MODE 10/08/2014 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 ____________ Ex parte ALOUISIUS NICOLAAS RENEE BOS ____________ Appeal 2013-002035 Application 12/331,867 Technology Center 1700 ____________ Before TERRY J. OWENS, GEORGE C. BEST, and MICHELLE N. ANKENBRAND, Administrative Patent Judges. ANKENBRAND, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s rejection of claims 1–8, which are all of the pending claims. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. The Invention Appellant claims a process for preparing styrene from a feed containing phenylethanols using gas phase dehydration in the presence of an 1 The real party in interest is Shell Oil Company. Br. 1. Appeal 2013-002035 Application 12/331,867 2 alumina catalyst having multimodal pore size distributions. Spec. 3. Claim 1, the only independent claim, is representative of the claimed subject matter and reads as follows: 1. A process for the preparation of styrene and/or a substituted styrene from a feed containing l-phenylethanol and 2[-]phenylethanol and/or a substituted l-phenylethanol and a substituted 2[-]phenylethanol, comprising a gas phase dehydration of the feed at elevated temperature in the presence of a catalyst comprising particles of alumina having a multimodal pore size distribution having a first pore size distribution and a second pore size distribution. The References Winnick US 4,207,424 June 10, 1980 Ziehe WO 2004/078336 A2 Sept. 16, 2004 The Rejections Claims 1–8 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Winnick in view of Ziehe. OPINION We affirm the rejection under 35 U.S.C. § 103. Appellant argues the claims as one group and does not present any separate arguments for the patentability of dependent claims 2–8. Br. 1. We therefore limit our discussion to claim 1 and claims 2–8 stand or fall with claim 1. 37 C.F.R. § 41.37(c)(1)(vii) (2011). Winnick discloses a process of dehydrating an aralkanol to its corresponding olefin, such as styrene, in the presence of a silylated alumina catalyst. 5:55–68. Winnick states: “the process of this invention is applicable to the production of . . . (3) styrene and alkyl-substituted styrene by dehydration of the corresponding aralkanols[,]” including 1- Appeal 2013-002035 Application 12/331,867 3 phenylethanol. 5:60–66. Winnick, however, does not disclose a multimodal pore size distribution associated with its silylated alumina catalyst. Ziehe discloses a process for producing α-olefins by dehydration of alcohols in the presence of γ-alumina, and the use of γ-alumina as a dehydration catalyst. 1:5–7; 3:11–21. Ziehe further discloses a multimodal pore distribution size having two different pore size distributions. 2:20–35; 3:11–21; Table 2. Establishing a prima facie case of obviousness of an invention comprising a combination of known elements requires “an apparent reason to combine the known elements in the fashion claimed.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007). Appellant does not dispute the Examiner’s finding that Winnick discloses a catalyst for dehydration of phenylethanol to styrene. Appellant argues that Winnick discloses a silylated catalyst, Br. 2, as opposed to an alumina catalyst or silylated alumina catalyst. Winnick discloses contacting alumina with a silylating agent to form a silylated alumina dehydration catalyst. 2:5–8, 25–27. Appellant’s claim does not exclude the use of a silylating agent with an alumina catalyst, as the recitation of the alumina catalyst in claim 1 uses the open transition phrase “comprising.” See Georgia-Pacific Corp. v. U.S. Gypsum Co., 195 F.3d 1322, 1327 (Fed. Cir. 1999) (“The transitional term ‘comprising’ . . . is “inclusive or open-ended and does not exclude additional, unrecited elements or method steps.”). Appellant does not dispute the Examiner’s finding that Ziehe discloses an alumina catalyst having multimodal pore size distribution. Appeal 2013-002035 Application 12/331,867 4 Appellant argues that Ziehe is “very specific to forming [α]-olefins and to not forming any other unsaturated organic compounds.” Br. 3. Appellant’s argument is not well taken. Dehydrating phenylethanols to produce styrene, as disclosed by Winnick, is a reaction in which the alcohol is converted to an olefin through the removal of water to form an alpha double bond.2 Thus, Winnick, like Ziehe, discloses a reaction by which an olefin is formed from dehydration of an alcohol. Appellant argues that the catalyst taught in Ziehe is limited to the dehydration of specific alcohols—linear or branched 1-alkanols having 4 to 14 carbon atoms. Ziehe states that “the preferable alcohols are comprised of linear or branched 1-alkanols having 4 to 14 carbon atoms” and discloses examples of several 1-alkanols. 3:5–9. Ziehe, however, is not limited to its preferred embodiments. Merck & Co. v. Biocraft Labs. Inc., 874 F.2d 804, 807 (Fed. Cir. 1989); In re Mills, 470 F.2d 649, 651 (CCPA 1972); In re Bozek, 416 F.2d 1385, 1390 (CCPA 1969). Instead, all disclosures therein must be evaluated for what they would have fairly suggested to one of ordinary skill in the art. See In re Boe, 355 F.2d 961, 965 (CCPA 1966). Ziehe generally discloses a process for producing α-olefins by the gas phase dehydration of alcohols using an alumina catalyst. 1:5–6, 17–19. Thus, Ziehe would have fairly suggested, to one of ordinary skill in the art, using a multimodal 2 Appellant’s definition of olefins as “acyclic and cyclic hydrocarbons having one or more carbon-carbon double bonds, apart from the formal ones in aromatic compounds,” Br. 3, further confirms that Winnick’s process of dehydrating phenylethanol to styrene is one in which an alcohol is dehydrated to form an olefin, as disclosed in Ziehe. Styrene is a cyclic hydrocarbon having one carbon-carbon double bond, apart from the bonds in the phenyl ring. Appeal 2013-002035 Application 12/331,867 5 alumina catalyst in the above-discussed Winnick process of dehydrating phenylethanols to styrene. Appellant argues there is no teaching or suggestion in Winnick that a catalyst suitable for one dehydration reaction will work well for another dehydration reaction because catalyst technology is not a predictable art. Br. 4. Appellant, however, provides no supporting evidence or explanation for that argument. Appellant’s mere attorney argument to that effect cannot take the place of evidence. See In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984). Further, Appellant’s Specification states that the use of alumina catalysts in gas phase dehydration of phenylethanols to produce styrene “is well[-]known in the art.” Spec. 1–2. Accordingly, we are not persuaded of reversible error in the Examiner’s rejection. DECISION/ORDER The rejection of claims 1–8 under 35 U.S.C. § 103 over Winnick in view of Ziehe is affirmed. It is ordered that the Examiner’s decision is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). AFFIRMED cdc Copy with citationCopy as parenthetical citation