Ex Parte Butler

Board of Patent Appeals and Interferences

Dec 16, 2010

11650282 (B.P.A.I. Dec. 16, 2010)

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.
11/650,282 01/05/2007 James R. Butler COS-1041 8519
25264 7590 12/16/2010
FINA TECHNOLOGY INC
PO BOX 674412
HOUSTON, TX 77267-4412
EXAMINER
DANG, THUAN D
ART UNIT PAPER NUMBER
1771
MAIL DATE DELIVERY MODE
12/16/2010 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte JAMES R. BUTLER
____________________

Appeal 2010-001239
Application 11/650,282
Technology Center 1700
____________________

Before EDWARD C. KIMLIN, CATHERINE Q. TIMM, and
JEFFREY T. SMITH, Administrative Patent Judges.

TIMM, Administrative Patent Judge.

DECISION ON APPEAL1
I. STATEMENT OF CASE
Appellant appeals under 35 U.S.C. § 134 from the Examiner’s
decision to reject claims 1-3 and 5-18. We have jurisdiction under 35 U.S.C.
§ 6(b).

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.
Appeal 201-001239
Application 11/650,282

2

We AFFRIM.
Appellant’s invention relates to a method of ethylating benzene with
low-cost dilute ethylene in the liquid phase using an alkylation catalyst
(Spec. ¶¶ [0005]-[0006]). Claim 1 is illustrative:
1. A method of forming ethylbenzene comprising:
contacting dilute ethylene with a molar excess of benzene
in the presence of an alkylation catalyst to form ethylbenzene,
wherein such contact occurs in a liquid phase reaction zone and
wherein the molar ratio of benzene to ethylene is about 8:1 or
less; and
recovering ethylbenzene from the reaction zone.
The Examiner maintains, and Appellant seeks review of, the
following rejections:
1. The rejection of claims 1, 6, 14, 15, and 17 under 35 U.S.C. § 102(b)
as anticipated by Pohl (US 2004/0171899 A1; published Sep. 2,
2004);
2. The rejection of claims 11 and 13 under 35 U.S.C. § 102(b) as
anticipated by or, in the alternative, under 35 U.S.C. § 103(a) as
obvious over Pohl;
3. The rejection of claim 18 under 35 U.S.C. § 103(a) as obvious over
Pohl; and
4. The rejection of claims 2, 3, 5, 7-10, 12, and 16 under 35 U.S.C. §
103(a) as obvious over Pohl in view of Innes (US 4,891,458; issued
Jan. 2, 1990).
Appeal 201-001239
Application 11/650,282

3
Appellant presents substantially identical arguments with respect to
each of the rejections, namely, that the Examiner’s findings with respect to
the teachings of Pohl and applied to all the rejections in the same capacity
are incorrect (Br. 3-4). We select claim 1 as a representative claim in
deciding the dispositive issue on appeal.
II. DISPOSITIVE ISSUE
The dispositive issue arising from the contentions of the Examiner and
Appellant is: does the evidence support the Appellant’s view that the
Examiner erred in finding that Pohl teaches contacting dilute ethylene with a
molar excess of benzene? We answer this question in the negative.
III. DISCUSSION
We adopt the Examiner’s findings in the Answer as our own and add
any additional findings of fact appearing below for emphasis.
The Examiner contends that Pohl teaches a preferred benzene to
ethylene molar ratio range of between 1.5:1 to 3.5:1, thus teaching a reaction
having a molar excess of benzene (Ans. 3 and 4).
Appellant contends that Pohl does not teach a reaction having a molar
excess of benzene. Appellant argues the ratio range relied upon by the
Examiner is actually a molar ratio of benzene to ethyl, which includes both
ethylene and ethylbenzene (Reply Br. 2). Appellant also argues that Pohl
teaches an ethylene to benzene ratio range of between 10:1 and 30:1, thus
teaching a molar excess of ethylene (Br. 3-4; Reply Br. 2).
Pohl states that “[t]he aromatic to olefin ratio is typically from about
1.0 to about 10, preferably about 1.5 to about 3.5” (Pohl, ¶ [0021]). Pohl
also clearly describes the components of the alkylation reaction as an
Appeal 201-001239
Application 11/650,282

4
aromatic compound (benzene), an olefin compound (ethylene) and an
alkylaromatic compound (ethylbenzene) (Pohl, ¶¶ [0009] and [0010]). We
have found no evidence to suggest that the olefin component of the ratio
relied upon by the Examiner would have included ethylbenzene, as argued
by Appellant. To the contrary, Pohl separately discloses a phenyl (benzene)
to ethyl ratio (see Pohl, ¶ [0021]). Thus, we agree with the Examiner that
Pohl reasonably teaches a preferred molar ratio of benzene to ethylene
within the claimed range and, thus, a molar excess of benzene.
Appellant relies on an optional alternative embodiment, in which a
high purity ethylene is added to subsequent reaction zones in “about the
same as the amount of ethylene that is reacted in the preceding bed,” as
evidence that the disclosed alkylation reaction, in fact, includes excess
ethylene (Pohl, ¶ [0023]). Pohl’s optional embodiment does not rebut the
Examiner’s particular findings regarding the teachings of Pohl. See Hewlett-
Packard Co. v. Mustek Sys., Inc., 340 F.3d 1314, 1324 n. 6 (Fed. Cir. 2003)
(“The anticipation analysis asks solely whether the prior art reference
discloses and enables the claimed invention, and not how the prior art
characterizes that disclosure or whether alternatives are also disclosed.”).
The evidence as a whole supports the Examiner’s finding that Pohl
anticipates an alkylation reaction including a molar excess of benzene as
recited in claim 1.
IV. CONCLUSION
On the record before us, we sustain the rejections maintained by the
Examiner.
Appeal 201-001239
Application 11/650,282

5
V. DECISION
The decision of the Examiner is affirmed.
VI. TIME PERIOD FOR RESPONSE
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

cam

FINA TECHNOLOGY INC
PO BOX 674412
HOUSTON TX 77267-4412