10569240 (B.P.A.I. Jul. 1, 2011)

Ex Parte Dath et al

Board of Patent Appeals and InterferencesJul 1, 2011

10569240 (B.P.A.I. Jul. 1, 2011)

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. 10/569,240 09/29/2006 Jean-Pierre Dath F-881 (31223.00111) 4218 25264 7590 07/05/2011 FINA TECHNOLOGY INC PO BOX 674412 HOUSTON, TX 77267-4412 EXAMINER BULLOCK, IN SUK C ART UNIT PAPER NUMBER 1772 MAIL DATE DELIVERY MODE 07/05/2011 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 2010-002879 Application 10/569,240 Technology Center 1700 ________________ Before PETER F. KRATZ, LINDA M. GAUDETTE, and KAREN M. HASTINGS, Administrative Patent Judges. GAUDETTE, Administrative Patent Judge. DECISION ON APPEAL Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s decision1 finally rejecting claims 23-42 under 35 U.S.C. §103(a) as unpatentable over Lücke (Bernhard Lücke et al., CMHC: Coupled Methanol Hydrocarbon Cracking Formation of Lower Olefins from Methanol and Hydrocarbons over Modified Zeolites, in 29 Microporous and Mesoporous Materials 145-157 (1999)) in view of Chang (US 4,788,377, issued Nov. 29, 1 Final Office Action mailed Mar. 12, 2009. Appeal 2010-002879 Application 10/569,240 2 1988) and Dath (US 6,646,175 B1, issued Nov. 11, 2003).2, 3 We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. Claims 23 and 24 are representative of the invention and are reproduced below from the Claims Appendix to the Appeal Brief: 23. A process for converting a hydrocarbon feedstock to provide an effluent containing light olefins, the process comprising passing a multicomponent feedstock comprising a mixture of a first portion, containing at least one olefin of C4 or greater, and a second portion containing at least one C1 to C6 aliphatic hetero compound selected from the group consisting of an alcohol, an ether and a carbonyl compound and mixtures thereof, through a reactor containing a crystalline silicate catalyst selected from the group consisting of an MFI crystalline silicate having a silicon/aluminium [sic] atomic ratio of at least 180 and an MEL crystalline silicate having a silicon/aluminium [sic] atomic ratio of from 150 to 800 which has been subjected to a steaming step, to produce an effluent comprising a molar excess of propylene. 24. The process of claim 23 wherein the weight ratio of the at least one C1 to C6 aliphatic hetero compound in the second portion to the total hydrocarbons in the first and second portions of the feedstock is within the range 15 to 85 percent. Based on Appellants’ arguments, we separately consider the patentability of claims 24-27. (See Br. 4 (“[C]laim 24 (along with others) are directed to feeds utilizing methanol in an amount that is either equal to or less than the second portion of the feed. The secondary references do not supply such features missing from Lucke, nor does the Examiner assert 2 Appeal Brief filed Jun. 22, 2009 (“Br.”) 3 Appellants have identified this appeal as related to prior- filed Appeal No. 2010-005200 (SN 10/524,640). (See App. Br. 10, Appx. C.) Appeal 2010-002879 Application 10/569,240 3 such.”); Ans.4 7 (discussing claims 24-27).) The remaining claims stand or fall with claim 23. See 37 C.F.R. § 41.37(c)(1)(vii). Appellants’ arguments raise the following issues for our consideration: (1) Did the Examiner reversibly err in determining that it would have been obvious to have substituted Lücke’s catalyst with a “MFI crystalline silicate having a silicon/aluminum atomic ratio of at least 180” (claim 23) based on the teachings of Chang and Dath? (2) Did the Examiner reversibly err in determining that the proposed combination would have resulted in an effluent comprising a molar excess of propylene as recited in claim 23? (3) Did the Examiner reversibly err in concluding that claims 24-27 would have been obvious because it would have been a matter of routine optimization to determine the effective ratio of methanol to total feedstock or ratio of methanol to total unsaturated hydrocarbons in the feedstock? We answer these questions in the negative for the reasons fully explained in the Answer. The respective positions of the Examiner and Appellants as to each of these issues are summarized below. The Examiner finds Lücke discloses a process as claimed with the exception of a “Si/Al ratio of at least 180 for the MFI zeolite” catalyst as required by the appealed claims. (Ans. 4.) The Examiner finds Chang and Dath, respectively, disclose the use of MFI catalyst in a methanol conversion process and in an olefin cracking process. (Ans. 5.) The Examiner notes Chang teaches that use of a ZSM-5 catalyst having a silica/alumina ratio exceeding 30, and in some instances 1600 and above results in improved 4 Examiner’s Answer mailed Oct. 5, 2009. Appeal 2010-002879 Application 10/569,240 4 selectivity for light olefins, while Dath teaches that use of an MFI catalyst having a silica/alumina ratio of 180 to 1000 increases stability of the catalyst. (Id.) The Examiner further finds “Lucke [] discloses that when C4 olefins were co-fed with methanol the selectivity for ethylene and propylene increased” (Ans. 4) and Dath uses process conditions which yield at least 30- 50% propylene based on the olefin content in the feedstock (Ans. 5) Based on these findings, the Examiner determines “one skilled in the art would have been motivated to substitute the MFI catalyst in Lucke for the MFI catalyst having high silica/alumina ratio taught by both Chang and Dath for increased selectivity for light olefins and thermal stability.” (Id. at 6.) Appellants disagree with the Examiner’s determination that it would have been obvious to have replaced Lücke’s catalyst (Ans. 3-4), but have not identified error in the Examiner’s fact finding and reasoning, which we find to be sufficient to support a prima facie case of obviousness. (See Ans. 6 (explaining why Appellants’ arguments are not persuasive).) Appellants argue that even if the references were combined in the manner proposed by the Examiner, the claimed invention would not result because the references fail to teach or suggest forming an effluent comprising a molar excess of propylene. (Br. 3-4.) Appellants also argue the references fail to teach or suggest utilizing a feedstock having a ratio of methanol to total hydrocarbons as recited in claims 24-27. (Br. 4.) Appellants’ argument is not persuasive because Appellants have not addressed the Examiner’s reasonable finding that the effective ratio of methanol to total feedstock or ratio of methanol to total unsaturated hydrocarbons in the feedstock is a result effective variable and that the Appeal 2010-002879 Application 10/569,240 5 ordinary artisan would have possessed the necessary skills “to obtain optimum results, i.e., maximum selectivity to propylene” through routine experimentation (Ans. 7). The relied upon disclosure in the references, e.g., Lücke, page 149 of section 3.3 (citing in Ans. 4), supports a finding that the proposed combination would necessarily result in a process which produces an effluent comprising a molar excess of propylene. In sum, for the reasons explained in the Answer, we conclude Appellants have not identified reversible error in the Examiner’s obviousness determination. Therefore, the Examiner’s decision to reject claims 23-42 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). AFFIRMED ssl