Ex Parte Butler

Patent Trial and Appeal Board

Sep 27, 2013

12416074 (P.T.A.B. Sep. 27, 2013)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
12/416,074 03/31/2009 James R. Butler COS-1191 3739
25264 7590 09/27/2013
FINA TECHNOLOGY INC
PO BOX 674412
HOUSTON, TX 77267-4412
EXAMINER
ETHERTON, BRADLEY
ART UNIT PAPER NUMBER
1772
MAIL DATE DELIVERY MODE
09/27/2013 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 JAMES R. BUTLER
__________

Appeal 2012-006782
Application 12/416,074
Technology Center 1700
____________

Before CHUNG K. PAK, CATHERINE Q. TIMM, and
MICHAEL P. COLAIANNI, Administrative Patent Judges.

COLAIANNI, Administrative Patent Judge.

DECISION ON APPEAL

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Appellant appeals under 35 U.S.C. § 134 the final rejection of claims
5, 11, 12, and 17-211. We have jurisdiction over the appeal pursuant to
35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
Appellant’s invention is directed to a process of oxidative coupling of
hydrocarbons that uses the heat produced by the exothermic oxidative
coupling reaction 200 to produce steam 330 via heating coil 310 or 316 that
is used in the cracking zone 270 (Figs. 2 and 3; Spec. para. [0015]).
Claim 11 is illustrative:
11. A method of revamping an existing ethylene
production facility comprising:
providing an existing production facility comprising a
cracking zone;
adding one or more reactors to the facility, wherein the
one or more reactors are capable of reacting methane with
oxygen to produce a first product stream comprising ethylene
and/or ethane;
sending at least a portion of the first product stream
comprising ethylene and/or ethane to the existing ethylene
production facility for further processing to form ethylene;

1 Though Appellant acknowledges that claims 1, 3-8, 10-12, and 16-23 are
pending, Appellant chose to limit the appeal to claims 5, 11, 12, and 17-21
(App. Br. 7). The Notice of Appeal states that Appellant appeals from “the
last decision of the Examiner” (Notice of Appeal). Accordingly, the
Examiner’s decision to reject claims 1, 3, 4, 6-8, 10, 16, 22, and 23 which
have not been appealed becomes an unappealable final agency action. Ex
parte Ghuman, 88 USPQ2d 1478, 1480 (BPAI 2008) (precedential). Upon
of return of jurisdiction to the Examiner, the Examiner should cancel claims
1, 3, 4, 6-8, 10, 16, 22, and 23. Id.
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dissipating heat from the one or more reactors to
maintain the reaction zone within a desired temperature range
for reacting the methane and oxygen to form ethylene and/or
ethane;
wherein at least a portion of the dissipated heat is utilized
in the existing production facility;
wherein at least a portion of the dissipated heat is
sufficient to supply all steam needs for the cracking zone.
Appellant appeals the following rejections:
1. Claim 5 is rejected under 35 U.S.C. § 102(b) as anticipated by
Calamur (US 5,254,781 issued Oct. 19, 1993).
2. Claims 12 and 18 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Calamur.
3. Claim 11 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Calamur in view of Cameron (US 5,025,108 issued June 18,
1991).
4. Claims 17, 20, and 21 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Calamur in view of Erekson (US 4,950,827 issued
Aug. 21, 1990).
5. Claim 19 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Calamur in view of Kimble (US 4,982,038 issued Jan. 1, 1991).

REJECTION (1): CLAIM 5
ISSUE
Did the Examiner reversibly err in finding that Calamur’s teachings
anticipate the subject matter of claim 5 that includes methane separated from
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the first product stream is used as fuel to provide heating for the process?
We decide this issue in the negative.

FINDINGS OF FACT & ANALYSIS
The Examiner finds that Calamur teaches that methane is separated
from the oxidative coupling reaction (corresponding to the claimed “first
product stream”) and Calamur discloses that the methane may be used as
fuel for the cracking zone in the process (Ans. 4-6).
Appellant contends that Calamur does not teach, disclose or suggest
that the methane is used as fuel to provide fuel for its process or a single
piece of equipment where such fuel could be used (App. Br. 15). Appellant
contends that Calamur only discloses the oxidative coupling of methane and
oxygen as being the source of heat for the process and Calamur fails to teach
that any piece of equipment would require heating (id.).
The Examiner responds that Calamur teaches at column 1, lines 28-36
that methane is used as fuel to provide part of the heat required by the
cracking process (Ans. 17). The Examiner finds that Calamur at column 5,
lines 49-53 teaches that methane is separated out of the effluent from the
oxidative coupling reactor and it is used as fuel (id.). The Examiner finds
that based on these disclosures Calamur teaches all the limitations of claim
5.
We agree with the Examiner and add the following discussion
primarily for emphasis. Calamur teaches that the hydrocarbon cracking part
of the process is “very endothermic” and requires large quantities of heat per
pound of product (col. 6, ll. 38-40). Calamur teaches that it is known to use
recovered methane as fuel in the cracking zone (col. 1, ll. 23-36). Calamur
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discloses that methane may be recovered from the effluent of the oxidative
coupling reaction and used as fuel (col. 5, ll. 49-51). Calamur teaches that
the recycling of the heat from the oxidative coupling reaction provides a
majority (preferably over 70%) of the heat required for the hydrocarbon
cracking (col. 4, ll. 35-40).
Calamur’s disclosures are such that a skilled artisan would take
Calamur’s teachings in combination with his own knowledge and be in
possession of the claimed invention. In re LeGrice, 301 F.2d 929, 936
(CCPA 1962). Calamur’s teaches that the hydrocarbon cracking part of the
process is very endothermic and methane recycled from the oxidative
coupling reaction may be used as fuel. Calamur further teaches that the
regenerative heating provides a majority (e.g.,., greater than 70%) of the
heating required for the cracking part of the process. Accordingly, we find
that Calamur anticipates the claimed invention as the skilled artisan knows
that methane recycle may be used as fuel for the cracking process and may
be used to make up any deficit in heat required to operate the hydrocarbon
cracking process.
Appellant contends that Calamur’s column 1, lines 28-36 disclosure
teaches that methane produced in the cracking process, not the oxidative
coupling process, is used to heat the furnaces (Reply Br. 8). We read
Calamur’s column 1 to disclose that the methane produced by the olefin
making process is burned in the cracking process to provide the needed heat
to the highly endothermic cracking process. Appellant’s argument that
“process” in claim 5 includes the steps of claim 1, does not undermine the
Examiner’s finding that supplying methane to the cracking zone would
satisfy claim 5 (App. Br. 14). Notably, claim 1 includes a cracking zone,
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which is an endothermic part of the process. Calamur teaches sending
methane to be used as fuel to an endothermic part of the process, such as the
cracking zone.
On this record, we affirm the Examiner’s § 102(b) rejection over
Calamur. Furthermore, the subject matter of claim 5 would have been
obvious in light of Calamur’s teachings.

REJECTIONS (2) and (3): CLAIMS 11, 12 AND 18
ISSUES
1. Did the Examiner reversibly err in concluding that Calamur would
have rendered obvious the subject matter of claims 11 and 12 that
includes supplying all the steam needs in a “cracking zone” (claim 11)
or an ethylene production facility (claim 12)? We decide this issue in
the negative.
2. Did the Examiner reversibly err in concluding that Calamur would
have rendered obvious the subject matter of claim 18 the recites that
the oxidative coupling reactor includes methane and ethylene? We
decide this issue in the negative.

FINDINGS OF FACT AND ANALYSIS
Issue (1): Claims 11 and 12
The Examiner finds that Calamur teaches that the effluent from the
oxidative coupling reaction is passed through heat exchangers where high
pressure steam is generated (Ans. 9, 11). The Examiner finds that the steam
may be used as part of the feed to a conventional cracking furnace (id. at 9,
11-12). Regarding the limitation that the steam produced by the oxidative
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coupling reaction is sufficient to supply enough energy to supply all the
steam needs for the ethylene production facility, the Examiner concludes
that such would have been a change in size/proportion of a process and is
not patentably distinct absent evidence of new or unexpected results (id. at 9,
12). Appellant does not contest the Examiner’s conclusion regarding the
obviousness of changing the size of oxidative coupling reactor to supply the
amount of steam needed.
Appellant argues that Calamur does not teach or suggest using steam
in an ethylene production facility (App. Br. 15). Appellant contends that
Calamur does not teach or suggest that the steam produced by the heat
exchangers in Calamur can be used in a steam cracker (id. at 16). Appellant
contends that Calamur does not teach or suggest that the steam generated by
the heat exchanger is of the type of super-heated high pressure steam
necessary for use in a steam cracker or that the heat exchangers in Calamur
may be operated in a fashion so as to generate the type of super-heated
steam necessary for the ethane cracker (id. at 16, 19). Appellant argues that
Calamur and Cameron describe a process that allows for “at least a portion
of the dissipated heat is sufficient to supply all steam needs for the cracking
zone” (id. at 18).
Contrary to Appellant’s arguments, Calamur teaches forming high-
pressure steam using the heat generated from the oxidative coupling reaction
via heat exchanger 61 (col. 5, ll. 45-46). Calamur further teaches that steam
may be injected at 3 with propane feed 1 into preheater 4 which is then sent
to a thermal cracking unit 6 (col. 4, ll. 43-51). Calamur discloses that
hydrocarbon cracking is generally carried out using steam at various
pressures and amounts (col. 6, ll. 29-54).
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Based on these disclosures, the preponderance of the evidence favors
the Examiner’s conclusion of obviousness. Calamur teaches forming steam
by transferring heat from the effluent of various portions of the process
including the oxidation coupling reaction. Calamur further discloses that
steam is used in the cracking processes. Accordingly, it would have been
obvious to use the steam generated by using the effluent of the oxidation
coupling reaction in the ethylene production facility as steam for the
hydrocarbon cracker.
While Appellant contends that there is no indication that Calamur’s
steam has the required temperature for cracking, no evidence has been
provided to substantiate Appellant’s attorney argument. We find that the
evidence contained in Calamur noted supra would have rendered obvious
using the produced steam in a hydrocarbon cracker in manufacturing
ethylene. One skilled in the art would have tailored the temperature and
pressure of the steam for the particular hydrocarbon being cracked as noted
by Calamur (col. 6, ll. 50-54).
Regarding claim 11, Appellant states that the Examiner and Appellant
understand the cracking zone to be a traditional ethane cracker (App. Br.
18). However, the Examiner’s reading of Calamur does not comport with
Appellant’s “understanding”. Rather, the Examiner finds that the cracking
zone includes a “hydrocarbon cracking unit” rather than the more limited
ethane cracking unit argued by Appellant (Ans. 11). As noted above, we
agree with the Examiner’s finding that propane cracker 6 constitutes a
“cracking zone” within the meaning of claim 11 (Ans. 4, 11).
On this record we affirm the Examiner’s § 103(a) rejection of claims
11 and 12.
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Issue (2): Claim 18
Claim 18 requires that the oxidative coupling reaction includes the
reaction of ethylene and methane.
Appellant argues that the only proof offered by the Examiner that
ethylene and methane in the reactor must react is that both are present in the
reactor (App. Br. 17). Appellant contends that the Examiner has not
satisfied the burden of establishing inherency. Id. Appellant contends that
such a reaction would produce higher carbon number hydrocarbons which
would bypass the de-propanizer and de-butanizer and be processed in the de-
ethanizer (id. at 18). Appellant contends that Calamur’s process would not
function properly with the resulting higher carbon number materials (Reply
Br. 11).
Appellant’s arguments are not persuasive as they fail to address the
Examiner’s findings that Calamur discloses the same reactor feeds, the same
catalyst, and the same reaction conditions as the instant process (Ans. 19).
Based on these findings, the Examiner has provided a reasonable basis
grounded in technical reasoning for concluding that the ethylene and
methane would inherently react in the oxidative coupling reaction. Ex parte
Levy, 17 USPQ2d 1461, 1464 (BPAI 1990).
On this record, we affirm the Examiner’s § 103 rejection of
claim 18.

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REJECTIONS (4) AND (5)
ISSUE
Did the Examiner reversibly err in concluding that it would have been
obvious to modify Calamur to include the aromatic hydrocarbons recited in
claims 17, 20, and 21 or the isobutylene in claim 19 with the methane
oxidation coupling reaction? We decide this issue in the affirmative.

FINDINGS OF FACT AND ANALYSIS
The Examiner finds that Calamur does not teach oxidative coupling of
toluene, t-butyltoluene, trimethylbenzene or isobutylene with methane (Ans.
14). The Examiner finds that Erekson discloses oxidatively coupling an
aliphatic hydrocarbon with a substituted aromatic hydrocarbon using the
same rare earth catalysts as disclosed by Calamur (id.). The Examiner finds
that Kimble discloses oxidatively coupling isobutylene and methane using a
rare earth oxide as disclosed by Calamur (id. at 15). The Examiner
concludes that it would have been obvious to modify the methane coupling
process of Calamur and include toluene or isobutylene in the hydrocarbon
feed as taught by Erekson and Kimble, respectively, because this involves
application of a known technique to improve a known route to styrene or
yield a valuable product (isoprene) and toluene is a less expensive chemical
than benzene for producing styrene (id. at 14-15, 16).
Appellant argues that adding toluene or isobutylene to Calamur’s feed
would have destroyed the function of Calamur’s device as higher carbon
number hydrocarbons would be formed and these would frustrate the
purpose of Calamur’s integrated oxidative coupling
reactor/cracking/separation system in producing ethylene or ethane (App.
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Br. 20, 21). Appellant argues that the Examiner has not explained how the
addition of isobutylene or an aromatic compound such as toluene to the
hydrocarbon feed would affect the system disclosed by Calamur (Ans. 20,
21).
The preponderance of the evidence favors Appellant’s argument of
nonobviousness. The Examiner’s reasoning for combining toluene or
isobutylene with Calamur’s process is to obtain styrene or isoprene (id. at
14-15, 16). Erekson and Kimble respectively teach oxidatively coupling
methane with toluene or isobutylene to obtain styrene or isoprene. However,
our review of Erekson and Kimble fails to reveal any cracking of the
hydrocarbons to achieve the styrene or isoprene. In other words, it is unclear
what affect the cracking process of Calamur would have on the formation of
styrene or isoprene. It is unclear whether any styrene or isoprene would
remain after the cracking processes.
The Examiner finds that Calamur teaches a flash drum 65 that
separates the oxidation coupling effluent into an ethane containing stream
that is sent to the ethane cracker 68 in Figure 3 (Ans. 21, 22). We agree with
Appellant that the higher carbon number styrene and isoprene would have
been expected to proceed to the ethane cracker as they would have been
expected to have higher boiling points then the methane and carbon
monoxide flashed off the effluent in stream 66. Indeed, Calamur teaches
that methane and carbon monoxide are removed via line 66 from the
oxidative coupling effluent exiting the flash drum, while the bottom line 67
contains higher carbon number ethane that is sent to ethane cracker 68
(Calamur col. 5, ll. 47-55).
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Accordingly, the preponderance of the evidence favors Appellant’s
argument of nonobviousness. We reverse the Examiner’s rejection of claims
17, and 19-21.

DECISION
The Examiner’s decision is affirmed-in-part.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1).

ORDER
AFFIRMED-IN-PART

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