Ex Parte Dath et al

Board of Patent Appeals and Interferences

Jul 31, 2012

10719267 (B.P.A.I. Jul. 31, 2012)

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.
10/719,267 11/21/2003 Jean-Pierre Dath F-756 CON (31223/00020) 2790
7590 07/31/2012
David J. Alexander
Fina Technology, Inc.
P.O. Box 674412
Houston, TX 77267-4412
EXAMINER
DANG, THUAN D
ART UNIT PAPER NUMBER
1772
MAIL DATE DELIVERY MODE
07/31/2012 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 JEAN-PIERRE DATH and WALTER VERMEIREN
______________

Appeal 2010-007656
Application 10/719,267
Technology Center 1700
_______________

Before BRADLEY R. GARRIS, CHARLES F. WARREN, and
ROMULO H. DELMENDO, Administrative Patent Judges.

WARREN, Administrative Patent Judge.

DECISION ON APPEAL
Applicants appeal to the Board from the decision of the Primary
Examiner finally rejecting claims 1-3, 5-14 and 16-35 in the Office Action
mailed April 14, 2006. We have jurisdiction. 35 U.S.C. §§ 6 and 134(a)
(2002); 37 C.F.R. § 41.31(a) (2006).
We affirm the decision of the Primary Examiner.
Claim 1 illustrates Appellants’ invention of a process for cracking an
olefin-rich hydrocarbon feedstock which is selective towards light olefins in
the effluent, and is representative of the claims on appeal:
Appeal 2010-007656
Application 10/719,267
2
1. A process for cracking an olefin-rich hydrocarbon feedstock which
is selective towards light olefins in the effluent, the process comprising
contacting a hydrocarbon feedstock containing olefins in an amount within
the range of 10 to 100 wt.% having a first composition of one or more
olefinic components with a crystalline silicate catalyst to produce an effluent
having a second composition of one or more olefinic components in which
the olefin distribution is different from the olefin distribution of said
feedstock, the feedstock and the effluent having substantially the same
olefinic content by weight therein wherein the olefin content of the effluent
is within ± 15% of the olefin content of the feedstock, adding hydrogen to
the olefin-rich feedstock prior to contact of said feedstock with said
crystalline silicate catalyst to provide for the olefin-rich feedstock contacting
the catalyst in the presence of hydrogen for enhancing the stability of the
catalyst.
Appellants request review of the rejections under 35 U.S.C. 103(a)
advanced on appeal by the Examiner: claims 1-3, 5, 12, 13, 16-25 and 30
over Haag (EP 0 034 444 A2); and claims 6-11, 14, 26-29 and 31-35 over
Haag and Colombo (EP 0 109 060 A1). Br. 6;1Ans. 3, 5.
We decide this appeal with respect to each rejection on the claims as a
group and on individual claims and groups of claims as argued by
Appellants. Br., e.g., 7. 37 C.F.R. § 41.37(c)(1)(vii) (2006).
Opinion
We have considered the patentability of the claimed processes
encompassed by the claims on the record before us. As Appellants point
out, the claims on appeal include limitations not present in the claims on
appeal in Appeal 2003-1185 decided by a prior merits panel of this Board in
the Decision entered September 24, 2003, in Application 09/594,059. Br.
6-7. See, e.g., In re Rinehart, 531 F.2d 1048, 1052 (CCPA 1976).

1 We consider the Appeal Brief filed February 15, 2007, as amended with
respect to the Claim Appendix on November 3, 2009.
Appeal 2010-007656
Application 10/719,267
3
On this record, we are of the opinion Appellants’ arguments do not
establish that the evidence in the totality of the record weighs in favor of the
nonobviousness of the claimed process for cracking an olefin-rich
hydrocarbon feedstock. In this respect, we are in agreement with the
Examiner’s analysis of the evidence in Haag alone and combined with
Colombo and the findings of fact and conclusions of law stated in the
Answer, to which we add the following for emphasis with respect to
Appellants’ arguments.
I. Haag
The threshold issue is whether Haag would have led one of ordinary
skill in the art to hydrocrack a hydrocarbon feedstock containing olefins in
an amount within the range of 10 to 100 wt.% with a crystalline silicate
catalyst to produce an effluent containing one or more olefinic components
having a different olefin distribution than the feedstock, wherein hydrogen is
added to the feedstock prior to contact with the crystalline silicate catalyst to
enhance the stability of the catalyst, as specified in claim 1. Ans. 3-5, 6-11;
Br. 7-16.
We find Haag would have described to one of ordinary skill in the art
the use of activated zeolite catalysts in “acid catalyzed hydrocarbon
conversion processes over a range of conversion conditions” using a flow or
a batch apparatus. Haag 20:22 to 22:11. The activated “catalysts have
extremely high cracking activity and may be used to convert materials such
as . . . fuel petroleum crudes, . . . olefins and the like from high to low
molecular weight substances,” and “may also be used in hydrocracking, . . .
isomerization, . . . polymerization, . . . aromatization, . . . and many other
acid catalyzed reactions.” Haag 21:12-20. Haag discloses that materials
Appeal 2010-007656
Application 10/719,267
4
such as olefins can be subjected to isomerization, polymerization and
aromatization reactions in the presence of hydrogen. Haag 22:3 to 23:4,
24:1-6. Haag further discloses the conversion conditions, for flow and batch
operations, “when the conversion of hydrocarbon compounds . . . .is
cracking,” which does not use hydrogen, and “[w]hen the conversion is
hydrocracking” with “a hydrogen/hydrocarbon mole ratio of from about 1 to
about 20” at the disclosed temperature and pressure ranges, VHSV (flow
operation) and contact time (batch operation). Haag 23:5-26.
We cannot agree with Appellants’ principal position that Haag would
not have described to one of ordinary skill in the art that the disclosed
activated zeolites can be used in the hydrocracking of olefins. Br. 8-11.
Appellants have not supported the argument that the term “hydrocracking”
would have been “commonly understood [by one of ordinary skill in the art]
to be the cracking of petroleum or petroleum products in the presence of
hydrogen,” and thus would have been led by Haag to use the activated
zeolite catalysts only in hydrocracking petroleum or petroleum products. Br.
8-9. Indeed, Appellants have not adduced evidence or scientific reasoning in
this respect or established that one of ordinary skill in the art would have
known that olefin feeds cannot be hydrocracked. We are also not convinced
that Haag or one of ordinary skill in the art would have excluded olefin feeds
from the disclosed hydrocracking conversion processes by Appellants’
contentions that Haag would have disclosed olefins feeds only with respect
to isomerization, polymerization and aromatization reactions, all of which
are disclosed as conducted in the presence of hydrogen. Br. 9-11. Indeed,
Haag does not limit any conversion process to a particular material, noting
particular materials only as examples. See, e.g., In re Lamberti, 545 F.2d
Appeal 2010-007656
Application 10/719,267
5
747, 750 (CCPA 1976) (“[T]he fact that a specific [embodiment] is taught to
be preferred is not controlling, since all disclosures of the prior art, including
unpreferred embodiments, must be considered.”).
Thus, on this record, we are of the opinion that contrary to Appellants’
position, the fact that Haag does not disclose an example for hydrocracking
conversions, such as an olefin, in the same manner as cracking conversions
and other catalyzed reactions is, on balance, not dispositive that Haag would
not have suggested to one of ordinary skill in the art the use of activated
zeolite catalysts in the hydrocracking conversion of an olefin feed from high
to low molecular weight olefins.
We are also unpersuaded by Appellants’ contention that Haag would
not have suggested to one of ordinary skill in the art that an olefin feed
containing at last 10 wt.% olefins as specified in claim 1. Br. 9 and 12.
Indeed, Haag recognizes the difference between olefin feeds and fuel
petroleum crude feeds, evincing that one of ordinary skill in the art would
also have known the difference. Thus, as the Examiner points out, one of
ordinary skill in the art would have reasonably used olefin feeds contain any
amount of olefin material in the reasonable expectation of similar results.
Ans. 7. Furthermore, while Haag would not have disclosed an olefin
product content that is ± 15% of the olefin content of the olefin feed as
claimed in claim 1, as Appellants contend, Haag’s disclosed hydrocracking
conversion parameters overlap with and are similar to claimed and disclosed
process parameters. Br. 9. We determine that one of ordinary skill in the art
working within Haag’s process parameters for hydrocracking conversions
can select the parameters which result in a desired product. Indeed,
Appellant does not specify the hydrocracking conversion parameters which
Appeal 2010-007656
Application 10/719,267
6
“[t]ypically” result in an olefin product having the claimed olefin content
relative to the olefin content of the feed. Spec. 11:34 to 12:17. Br. 9.
We are further unconvinced by Appellants’ contention that Haag
would not have suggested to one of ordinary skill in the art to add hydrogen
to the olefin feed prior to contacting the feed with the activated zeolite
catalyst to enhance the stability of the catalyst as specified in claim 1. Br. 8.
We determine that one of ordinary skill in the art would have routinely
combined hydrogen with the olefin feeds to not only achieve a
hydrogen/hydrocarbon mole ratio taught by Haag but also to efficiently mix
and introduce the two feeds in a flow or a batch operation, as the Examiner
points out. Ans. 3. Appellants’ discovery that adding hydrogen to the feed
provides the additional benefit of enhancing catalyst stability does not
patentably distinguish over Haag. See, e.g., In re Woodruff, 919 F.2d 1575,
1577-78 (Fed. Cir. 1990).
We cannot subscribe to Appellants’ contention that Haag would not
have suggested to one of ordinary skill in the art the hydrogen partial
pressure range specified by representative dependent claim 2. Br. 12. We
determine that one of ordinary skill in the art routinely following Haag
would have selected suitable or optimum hydrogen/hydrocarbon mole ratios
and pressure conditions resulting in a hydrogen partial pressure range for
hydrocracking an olefin feed that falls within or overlaps the claimed range.
We are also unpersuaded by Appellants’ contention that the olefin
feed contacts the catalyst at an inlet temperature range having a lower limit
of 500º C as specified in representative dependent claim 16. would not have
been disclosed by Haag in teaching a temperature range having an upper
limit of about 1000º F (537.7º C) for hydrocracking conversions. Br. 13-14.
Appeal 2010-007656
Application 10/719,267
7
Indeed, the claimed temperature range and that of Haag overlap and there is
no showing of criticality. See, e.g., Woodruff, 919 F.2d at 1578. Appellants’
reliance on Haag’s more limited preferred temperature range as
representative of the teachings of the reference is misplaced. See, e.g.,
Lamberti, 545 F.2d at 750.
We are not convinced by Appellants’ contention that recycling
hydrogen as specified in dependent claim 5 distinguishes over Haag, as we
agree with the Examiner’s determination that one of ordinary skill in the art
would have routinely recycled a reactant to reduce material costs. Br. 14;
Ans. 4, 8.
We cannot subscribe to Appellants’ contention, with respect to
dependent claim 21, that the cancelation of the description of “EP-A-
0921179 in the name of Fina Research S.A.” from the Specification at page
5, lines 19-30, by Preliminary Amendment filed November 21, 2003,
removes from the record “any inference of an admission” that it was known
in the prior art to hydrogenate olefin feeds to remove dienes prior to any
catalytic cracking process. Br. 15-16. Indeed, Appellants’ “admission” was
based on the disclosure of a publically available patent literature document
attributed to Appellants’ assignee “Total Petrochemicals Research Feluy,
successor in name to Fina Research. S.A,” and Appellants’ description of the
document is of record in the Specification of parent Application 09/594,059,
now abandoned. See Br. 1. Thus, Appellants in fact acknowledged it was
known in the prior art to remove dienes from olefin feeds by hydrogenation
prior to catalytic cracking.
II. Haag and Colombo
Appellants principally submit that the Examiner erred in determining
Appeal 2010-007656
Application 10/719,267
8
that one of ordinary skill in the art would not have combined Haag and
Colombo and thus would not have been led to use Colombo’s silicate
catalysts for cracking an olefin feed to produce propylene in place of Haag’s
silicate catalysts for cracking and hydrocracking conversions, and
particularly because Haag’s silicate catalysts have a low silica/alumina
atomic ratio while Colombo’s silicate catalysts have a silica/alumina atomic
ratio of about 175. Ans. 5-6; Br. 16-17. We find that as Appellants point
out, Haag would have described to one of ordinary skill in the art silicate
catalysts, including ZSM-5 and ZSM-11, which can have a silica/alumina
atomic ratio of at least about 30, and exemplifies a silica/alumina atomic
ratio of about 35. Haag, e.g., 5:18-20, 6:22-24, 11:1-2, 32:24. Br. 16. We
further find that as Appellants point out, Colombo would have described to
one of ordinary skill in the art silicate catalysts, such as ZSM-5 and ZSM-11,
which have a silica/alumina atomic ratio of greater than 175, a long
endurance and a very high catalytic activity. Colombo abstract, 1:16-35,
2:34-36. Br. 16.
On this record, we disagree with Appellant’s position. We determine
that one of ordinary skill in the art would have combined Haag and Colombo
leading to the use of Colombo’s silicate catalysts in Haag’s conversion
processes to increase the yield of propylene when used with olefin feeds, as
the Examiner points out. Ans. 5-6. We are not convinced otherwise by the
differences in the silica/alumina atomic ratios which provide the high yield
of propylene as taught by Colombo. Indeed, Colombo’s silica/alumina
atomic ratio range of greater than 175 overlaps with the silica/alumina
atomic ratio rang of at least 180 specified in representative dependent claim
10, and Appellants have not established the criticality of the claimed range.
Appeal 2010-007656
Application 10/719,267
9
See, e.g., Woodruff, 919 F.2d at 1578.
We disagree with Appellants that Colombo would not have taught
adding ethylene to the olefin feed as specified in representative dependent
claim 6. Br. 17. As the Examiner points out, Colombo would have
disclosed that ethylene is produced along with propylene from olefin feeds
and would have been included with recycled olefins, as specified in
representative dependent claim 7, to save material costs, and thus added to
the olefin feed in this manner. Colombo 1:14-15, 3:28-30. Ans. 6. We are
not convinced otherwise by Appellants’ contention that according to
Colombo, recycling of C4- olefins results in an increasing accumulation of n-
butane and isobutane which can be addressed with an integrated
oligomerization step. Br. 17, citing Colombo 3:18 to 4:33. Indeed, one of
ordinary skill in the art routinely following Colombo would have recycled
unreacted feed containing C4- olefins, including ethylene, until the
accumulation of paraffins reaches a determine pointed.
We also disagree with Appellant’s contention that Colombo would not
have taught a propylene yield of from 30 to 50% based on the olefin content
of the feed, as specified in representative claim 14, based on “the average
propylene yield across the six examples reported” in Colombo’s Table 4.
Br. 18. We find that yields greater than 30% are reported for the first three
examples in Table 4. Colombo 11. Thus, Colombo teaches processes that
produce propylene yields falling within the claimed range.
Appellants’ contentions with respect to claims 25, 26 and 27 are based
on claim limitations argued without specificity with respect to the teachings
of Haag and Colombo, and we addressed above the olefin content of the
product, the recycling addition of ethylene and of other unreacted olefins in
Appeal 2010-007656
Application 10/719,267
10
the effluent. Br. 18-19.
We are not persuaded by Appellants’ contentions that the separation
zone and operation thereof to recover different fractions for recycling
encompassed by claim 28 is not taught by Haag. Br. 19. Indeed, we agree
with the Examiner that the recovery of desired products and further of
unreacted material fractions for recycling is well within the ordinary skill in
the art. Ans. 9.
We addressed above Appellant’s contentions with respect to
Colombo’s silicate catalysts, such as ZSM-5 and ZSM-11, which have a
silica/alumina atomic ratio of greater than 175, and Appellants have not
established the criticality of the silica/alumina atomic ratio ranges of such
catalysts specified in claims 32 and 33 which fall within Colombo’s range.
Br. 19-20.
Accordingly, based on our consideration of the totality of the record
before us, we have weighed the evidence of obviousness found in the
combined teachings of Haag alone and combined with Colombo with
Appellants’ countervailing evidence of and argument for nonobviousness
and conclude, by a preponderance of the evidence and weight of argument,
that the claimed invention encompassed by appealed claims 1-3, 5-14 and
16-35 would have been obvious as a matter of law under 35 U.S.C. § 103(a).
The Primary 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)(1)(iv).
AFFIRMED