Ex Parte Chandler et al

Patent Trial and Appeal Board

Aug 31, 2016

12974528 (P.T.A.B. Aug. 31, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/974,528
94591 7590
Johnson Matthey Inc,
435 Devon Park Dr.
Suite 600
12/21/2010
09/02/2016
Wayne, PA 19087-1998
FIRST NAMED INVENTOR
Guy Richard CHANDLER
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
WYN/1913US/KMC 3886
EXAMINER
SLIFKA, COLIN W
ART UNIT PAPER NUMBER
1732
NOTIFICATION DATE DELIVERY MODE
09/02/2016 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address( es):
J ohnsonMatthey IP@matthey.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte GUY RICHARD CHANDLER,
ELIZABETH HAZEL MOUNTSTEVENS,
PAUL RICHARD PHILLIPS, and DANIEL SW ALLOW
Appeal2015-002218
Application 12/974,528
Technology Center 1700
Before: MICHAEL P. COLAIANNI, WESLEY B. DERRICK, and
AVEL YN M. ROSS, Administrative Patent Judges.
ROSS, Administrative Patent Judge.
DECISION ON APPEAL 1
Appellants2 appeal under 35 U.S.C. § 134 from the Examiner's final
rejection of claims 1-12. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 In our decision below, we refer to the Specification dated September 5,
2013 (Spec.), the Final Office Action appealed from mailed February 13,
2014 (Final Act.), the Appeal Brief filed July 14, 2014 (Appeal Br.), the
Examiner's Answer mailed October 1, 2014 (Ans.), and the Reply Brief
filed December 1, 2014 (Reply Br.).
2 Appellants identify the real party in interest as Johnson Matthey Public
Limited Company. Appeal Br. 1.
Appeal2015-002218
Application 12/974,528
STATEMENT OF CASE
The claims are directed to NOx trap where the rare oxide dispersion
loading in the second, downstream zone is greater than the loading in the
first, upstream zone. Spec. 3. According to Appellants, "[b ]y 'zoning' the
dispersed ceria to the rear of a substrate monolith carrying the NOx trap, an
advantageous combination of functionalities is obtained." Id. at 13. Claim
1, reproduced below, is illustrative of the claimed subject matter:
1. A NOx trap comprising components comprising at least
one platinum group metal, at least one NOx storage material and
bulk ceria or a bulk cerium-containing mixed oxide deposited
uniformly in a first layer on a honeycombed substrate monolith,
the uniformly deposited components in the first layer having a
first, upstream, zone having increased activity relative to a
second, downstream zone for oxidising hydrocarbons and carbon
monoxide, and a second, downstream, zone having increased
activity to generate heat during a desulphation event, relative to
the first, upstream, zone, wherein the second, downstream, zone
comprises a dispersion of rare earth oxide, wherein the rare earth
oxide dispersion loading in the second, downstream zone is
greater than the rare earth oxide dispersion loading in the first,
upstream zone.
Claims Appendix at Appeal Br. 10.
REJECTIONS
The Examiner made the following rejections:
A. Claims 1-7 and 9-12 stand rejected under 35 U.S.C.
§103(a) as being unpatentable over Sung.3 Final Act. 2.
3 Sung et al., US 6,087,298, issued July 11, 2000 (hereinafter "Sung").
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B. Claim 8 stands rejected under 35 U.S.C. §103(a) as being
unpatentable over Sung in view of Vierheilig. 4 Id. at 6.
Appellants seek our review of Rejections A-B but present no
additional argument for reversal of the rejection of claim 8 separate from
what is argued for claim 1. Appeal Br. 8. Therefore, we focus our
discussion on the rejection of claim 1 (Rejection A) to resolve the issues on
appeal.
OPINION
The Examiner rejects claim 1 (and all but one of the dependent
claims) as being unpatentable over Sung alone. Appeal Br. 2. The
Examiner finds that Sung teaches an exhaust treatment system having a
catalytic article with two zones, i.e., a first upstream layer and a first
downstream layer. Final Act. 2. The Examiner finds that Sung uniformly
deposits a platinum group metal, a NOx storage material, and bulk or a bulk
cerium oxide in a first layer. Id. 2-3. The Examiner additionally finds that
Sung teaches that the first upstream layer may preferably have
from 0.0 to about 0.5 g/in3 of at least one rare earth metal
component selected from ceria, lanthanum, and neodymium
metal components (col. 12, lines 9-13), and the first downstream
layer may preferably have from about 0.025-0.5 g/in3 of at least
one rare earth metal component selected from ceria, lanthanum,
and neodymium metal components (col. 15, lines 19-22).
Final Act. 3--4. But, the Examiner acknowledges that "Sung does not teach
the exact same proportions as recited in the instant claims." Id at 4. The
Examiner concludes that one skilled in the art would have found the instant
4 Albert Vierheilig, US 2005/0207956 Al, published September 22, 2005
(hereinafter "Vierheilig").
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Application 12/974,528
invention obvious "because the compositional proportions and material
loadings taught by Sung overlap the instantly claimed proportions and
therefore are considered to establish a prima facie case of obviousness." Id.
Appellants argue three-fold. First, Appellants contend that only
through improper hindsight can the Appellants' invention be achieved.
Appeal Br. 5. According to Appellants, the
Examiner appears to argue that it would have been obvious to
one of ordinary skill in the art to modify the teachings of Sung to
develop a catalyst that has a first upstream layer and a second
downstream layer with the exact same loading of Pt, Pd, alkaline
earth metal component, and bulk OSC; while at the same time
having a greater loading of dispersed OSC in the second
downstream zone compared to the first upstream zone.
Id. 4--5. Appellants assert that the combination proposed by the Examiner
"is not just a simple selection of one amount within a range ... but four
selections from four different ranges of the first zone ... that must be equal
to that of a corresponding four selections from a corresponding four ranges
of the second zone." Id. In addition, Appellants argue that the combination
requires that the Examiner select a higher dispersion of a rare earth oxide in
the second zone as compared to the first, where "a specific range of
dispersed (vs bulk) rare earth oxide is not even taught in Sung." Id.
The Examiner finds that "instant claim 1 does not refer to explicit
loading amounts or even ranges of each material, but rather refers to the
amounts relative to each other or generally speaking" and "[a]s such, it is not
just a single embodiment selected from the teachings of Sung that would
satisfy the instant claim 1, but a seemingly countless number of possible
combinations .... " Ans. 3. The Examiner also notes that Appellants offer
no precedent to support their argument that there are too many selections to
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be made and thus the combination would have been nonobvious even though
the selections are squarely within the ranges of Sung. Id. 2.
We do not find Appellants arguments persuasive of reversible error.
Here, Sung teaches each of the required elements of claim 1 in a
combination as expressed by claim 1. Sung teaches a catalytic article having
an upstream zone and a downstream zone. Sung col. 1, 11. 6-12. The zones
include at least one layer comprising a platinum group metal, a NOx storage
material and a bulk ceria or bulk cerium containing mixed oxide. Id. col. 11,
1. 63---col. 12, 1. 5 and col. 15, 11. 8-15. The Examiner finds that because
these components may be distributed in equal amounts in the first upstream
layer and the first downstream layer, they are deposited uniformly as
required by claim 1. Final Act. 2-3. As discussed below, we discern no
error in this finding. And, like the Examiner (Final Act. 4), we conclude that
the skilled artisan would have considered the subject matter of claim 1
obvious given that the composition proportions of Sung overlap with those
of claim 1 to establish a prima facie case of obviousness. We find no
evidence that the Examiner relies on impermissible hindsight reasoning as
the Examiner's articulated reasons for combining the teachings of Sung are
supported by the prior art disclosure itself. See, e.g., Sensonics, Inc. v.
Aerosonic Corp., 81F.3d1566, 1570 (Fed. Cir. 1996) (citing Interconnect
Planning Corp. v. Feil, 774 F.2d 1132, 1138 (Fed. Cir. 1985)) ("The
invention must be viewed not after the blueprint has been drawn by the
inventor, but as it would have been perceived in the state of the art that
existed at the time the invention was made."). Moreover, Appellants do not
identify any knowledge relied upon by the Examiner that was gleaned only
from the Appellants' disclosure and was not within the level of skill in the
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art at the time of the invention. Jn re McLaughlin, 443 F.2d 1392, 1395
(CCPA 1971).
Second, Appellants argue that Sung fails to teach uniformly
depositing a platinum group metal, a NOx storage material, and bulk ceria
(or a bulk cerium-containing missed oxide) as required by claim 1. Appeal
Br. 5---6. Appellants contend that "the examples of Sung indicate that in
order to produce its catalyst article, the first upstream zone should have a
higher concentration of platinum group metal than the downstream zone,"
therefore, the loadings of the platinum group metals (as well as other metals)
are different in the different zones. Id. at 6 (referring to Examples 1 and 2).
According to Appellants, "Sung which specifically teaches that it is
advantageous to use different metals in the upstream and downstream zones:
'The Pd-only at the front, and bi-metal or tri-metal catalyst at the rear
arrangement, creates advantages over a system consisting of Pd-only
catalysts.' See Col. 38, lines 19-21." Id.
The Examiner finds that because the first upstream layer and first
downstream layer of Sung have the claimed components in concentrations of
overlapping values, i.e., equal values, the components are uniformly
deposited in a first layer as claimed by the instant application. Final Act. 2-
4. The Examiner further explains that Appellants arguments regarding
loadings of the platinum group metals differing in different zones to be
directed toward preferred or alternative embodiments. Ans. 4.
Appellants' arguments are not persuasive of reversible error by the
Examiner. Sung explicitly teaches (relevant to Appellants' argument) that:
[a] useful and preferred first upstream layer has:
from about 0.003 to about 0.6 g/in3 of at least one palladium
component;
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from 0 to about 0.065 g/in3 of at least one first platinum and/or
first rhodium component;
* * *
Sung col. 11, 11. 63-7. And, Sung teaches (relevant to Appellants'
argument) that:
[a] useful and preferred first downstream layer has:
from about 0.0175 to about 0.3 g/in3 of palladium component;
from about 0 to about 0.065 g/in3 of a first platinum component
* * *
Sung col. 15, 11. 8-12. Therefore, Sung teaches a range of platinum group
metals of about 0.0 to 0.665 g/in3 in the first upstream layer and a range of
0.0175 to 0.365 g/in3 in the first downstream layer. Because the broad
teachings of Sung provide for embodiments where the concentration of the
platinum group metal is the same concentration for the first upstream and
first downstream layers, we find no error in the Examiner's determination
that Sung teaches a platinum group metal that is "uniformly deposited in a
first layer," as in claim 1. Final Act. 2. Appellants reliance upon Examples
1 and 2 to argue that Sung teaches that the first upstream and first
downstream zones have different platinum group metal loadings (Appeal Br.
6) is insufficient to supplant the broad teachings of Sung. Sung is not
limited to this preferred embodiment. See In re Lamberti, 545 F.2d 747,
750 (CCPA 1976) ("all disclosure of the prior art, including unpreferred
embodiments, must be considered").
And, while Appellants specifically argue about the lack of uniformity
of the platinum group metal alone (Appeal Br. 6), the same reasoning
applied above holds true to support the Examiner's finding that the NOx
storage material and ceria components are also uniformly deposited. Final
Act. 2-3. Sung teaches that the oxygen storage component optionally is
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bulk ceria. Id. at col. 10, 11. 31-34. And, Sung teaches that the
concentration of the oxygen storage component in the first upstream layer
may range from 0.05 to about 2.0 g/in3 and the range for the downstream
layer is at least 0.05. Sung col. 11, 1. 63---col. 12, 1. 13 and col. 21, 11. 46-49.
Sung further teaches that the alkaline earth metal component, the NOx
storage material, ranges from about 0.0 to about 0.5 g/in3 in the first
upstream layer and about 0.025 to about 0.5 g/in3 in the first downstream
layer. Sung col. 11, 1. 63---col. 12, 1. 13 and col. 15, 11. 8-22.
Regarding Appellants' argument that "there is nothing in Sung to
suggest that such a catalyst formulation would produce a catalyst having an
upstream zone which oxidizes oxidizable components of the exhaust gas
and/or reduces reducible components of the exhaust gas at a lower
temperature than in the downstream zone" (Reply Br. 3), we note that Sung
broadly teaches embodiments that includes platinum loadings in the
upstream and downstream zones that fall within the ranges required by
Appellants' claim 1. Accordingly, because Sung's exhaust gas treatment
system includes embodiments where the catalyst system would have been
identical to that required by claim 1, we find that Sung's catalyst formulation
would have an upstream zone that oxidizes oxidizable components of the
exhaust gas and/or reduces reducible components of the exhaust gas at a
lower temperature than in the downstream zone.
Lastly, Appellants argue that Sung does not teach that the downstream
zone comprises a greater loading of dispersed rare earth oxide than the
upstream zone. Appeal Br. 6-7. Appellants contend Sung teaches that the
oxygen storage components (i.e., ceria) in the upstream layer is dispersed
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ceria and the oxygen storage component of the downstream layer is bulk
ceria. Id. at 7.
The Examiner finds that
Sung allows for 0----0.5 g/in3 of rare earth metal component in the
first upstream layer and 0.025---0.5 g/in3 of rare earth metal
component in the first downstream layer. At minimal amounts,
the presence of the rare earth metal component (not including
ceria, which technically is also a rare earth oxide) in the upstream
portion is essentially optional, as it could be 0 g/in3, and the
minimum amount, 0.025 g/in3, in the downstream portion is
therefore present in a greater concentration.
Ans. 3. The Examiner further finds that Sung teaches the first downstream
oxygen storage component as well as the upstream oxygen storage
component can be a bulk particulate, including ceria. Ans. 4. Therefore,
explains the Examiner, Appellants discussion regarding "bulk" versus
"dispersed" ceria is directed to preferred or alternative embodiments. Id.
Again, Appellants' argument does not convince us of any error by the
Examiner. Appellants assume the rare earth oxide in the Examiner's
combination is ceria. But, the Examiner clearly relies upon the ceria
disclosure to support the oxygen storage component rather than the rare
earth metal component. See Final Act. 2-3. Sung teaches that the first
upstream layer preferably include from about 0.0 to about 0.5 g/in3 of a rare
earth oxide (than can include ceria, lanthanum and neodymium components)
and a first down stream layer that has a range of about 0.025 to about 0.5
g/in3. Sung col. 12, 11. 9-13 and col. 15, 11. 21-24. Sung also teaches that
the rare earth oxide is dispersed, i.e., in intimate contact, with the other
components. Id. col. 23, 11. 18-26 and col. 29, 11. 54---62. As the Examiner
correctly finds, at the minimum amounts, Sung teaches an upstream layer
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having 0.0 g/in3 a rare earth oxide and the first downstream layer including
0.025 g/in3 of a rare earth oxide. Therefore, the "rare earth oxide dispersion
loading in the second, downstream zone is greater than the rare earth oxide
dispersion loading in the first, upstream zone" as disclosed in claim 1.
CONCLUSION
The Examiner did not reversibly err in rejecting claims 1-7 and 9-12,
under 35 U.S.C. §103(a), as being unpatentable over Sung.
The Examiner did not reversibly err in rejecting claim 8, under 35
U.S.C. § 103(a), as being unpatentable over Sung in view of Vierheilig.
DECISION
For the above reasons, the Examiner's rejection of claims 1-12 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)(l).
AFFIRMED
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