Ex Parte Dath et alDownload PDFBoard of Patent Appeals and InterferencesJul 1, 201110524640 (B.P.A.I. Jul. 1, 2011) Copy Citation 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. 10/524,640 05/30/2006 Jean-Pierre Dath F-857 (31223.00074) 1992 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 2010-005200 Application 10/524,640 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 1-7 and 11-22 under 35 U.S.C. §103(a) as unpatentable over Kaeding (US 4,849,573, issued Jul. 18, 1989) in view of Fina (EP 0 921 181 A1, published Jun. 9, 1999).2, 3 We have jurisdiction under 35 U.S.C. § 6(b). 1 Final Office Action mailed Mar. 4, 2009 (“Final”). 2 Appeal Brief filed Jul. 25, 2009 (“App. Br.”). Appeal 2010-005200 Application 10/524,640 2 We AFFIRM. Appellants do not present separate arguments in support of any individual claims or claim groupings. (See generally, App. Br. 3-4.) Accordingly, we decide the appeal as to all claims on the basis of representative claim 1, which is reproduced below from the Claims Appendix to the Appeal Brief, see 37 C.F.R. § 41.37(c)(1)(vii) (“When multiple claims subject to the same ground of rejection are argued as a group by appellant, the Board may select a single claim from the group of claims that are argued together to decide the appeal with respect to the group of claims as to the ground of rejection on the basis of the selected claim alone.”): 1. A process for converting a carbon containing feedstock to provide an effluent containing light olefins, the process comprising passing a feedstock containing carbon containing compounds consisting essentially of C1 to C6 aliphatic hetero compounds selected from the group consisting of alcohols, ethers, carbonyl compounds and mixtures thereof and containing steam in an amount up to 80 weight % of said feedstock, through a reactor containing a crystalline silicate catalyst to produce an effluent including propylene which is recovered from the reactor, wherein the crystalline silicate catalyst is pretreated by subjecting said catalyst to steaming to de- aluminate said catalyst and is selected from at least one of an MFI crystalline silicate having a silicon/aluminum atomic ratio within the range of 250 to 500 and an MEL crystalline silicate having a silicon/aluminum atomic ratio within the range of 150 to 800. Upon consideration of Appellants’ arguments, we determine that the sole issue on appeal is: Are the facts and reasons relied on by the Examiner 3 Appellants have identified this appeal as related to subsequently filed Appeal No. 2010-002879 (SN 10/569,240). (See Decision on Appeal (No. 2010-002879), n.3.) Appeal 2010-005200 Application 10/524,640 3 sufficient to establish that Kaeding discloses or suggests a process which utilizes a catalyst as recited in appealed claim 1? (See App. Br. 3-4.)4 The Examiner’s obviousness determination as to independent claims 1 and 15 is based on the following findings of fact: Kaeding discloses a process for converting a feed comprising alcohol (such as methanol), ether (such as dimethyl ether), and diluent steam to light olefins (ethylene, propylene, butene) over a zeolite catalyst such as ZSM-5 (MFI) and ZSM-11 (MEL). The zeolite catalyst has a silica to alumina mole ratio of at least 140, preferably 298 to 2000. (Ans.5 4 (internal citations omitted).) These ranges overlap Appellants’ claimed ranges. (Id.) Kaeding discloses “[n]atural zeolites may be converted to the desired type of zeolite catalyst by treatments including steaming and alumina extraction.” (Id. (citations omitted).) Appellants do not dispute the aforementioned findings of fact, and we find them to be supported by the disclosure in Kaeding cited by the Examiner on page 3 of the Final and page 4 of the Answer. 4 The arguments in Appellants’ Reply Brief (filed Dec. 7, 2009) are not directed to new issues raised by the Examiner in the Answer (see Final 3-4 (explaining that Kaeding’s silica to alumina mole ratios overlap with Appellants’ claimed ranges)), and there has been no explanation as to why these arguments were not raised in the Appeal Brief. Therefore, the arguments in the Reply Brief have been waived. See 37 C.F.R. § 41.37(c)(1)(vii) (second sentence); In re Hyatt, 211 F.3d 1367, 1373 (Fed. Cir. 2000) (explaining that an argument not first raised in the brief to the Board is waived on appeal); Ex parte Nakashima, 93 USPQ2d 1834 (BPAI 2010) (explaining that arguments and evidence not timely presented in the principal Brief, will not be considered when filed in a Reply Brief, absent a showing of good cause explaining why the argument could not have been presented in the Principal Brief). 5 Examiner’s Answer mailed Oct. 5, 2009. Appeal 2010-005200 Application 10/524,640 4 Appellants argue “[t]he references of record do not provide a motivation to replace the catalyst in Kaeding (for a methanol to propylene conversion process) with the catalyst of Fina (used for a C4+ olefin conversion process to propylene).” (App. Br. 4.) Appellants further assert “that the teachings of Fina lack a firm basis to predict the effect of the proposed interchange and therefore cannot reasonably be combined to render the claims of the present application obvious.” (Id. (internal citation omitted).) As explained in the Examiner’s Response to Argument (Ans. 5-6), Appellants’ arguments are not persuasive of error in the Examiner’s obviousness determination because they do not address the facts and reasons relied on by the Examiner in rejecting claim 1 (as well as independent claim 15). Specifically, the Examiner’s obviousness determination is based on findings that Kaeding suggests a process using a catalyst as claimed. (Ans. 6 (“[T]here is no need to replace the catalyst in Kaeding with the catalyst in Fina.”).) “Fina [was] relied upon solely to substantiate the details of making the catalysts to obtain catalysts having desired property, i.e., silica to alumina molar ratio, in the Kaeding process.” (Id.) In other words, Appellants have not explained why the Examiner erred in concluding that one of ordinary skill in the art would have found the invention as recited in claims 1 (and claim 15) obvious in view of the teachings of Kaeding alone. In our view, the Examiner’s fact finding and reasoning is sufficient to establish a prima facie case of obviousness as to independent claims 1 and 15 (Ans. 4 and sentence bridging 5-6 (noting that overlapping ranges are prima facie evidence of obviousness)). See also, In re Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003); In re Geisler, 116 F.3d 1465, 1469 (Fed. Cir. Appeal 2010-005200 Application 10/524,640 5 1997); In re Woodruff, 919 F.2d 1575, 1578 (Fed. Cir. 1990); Titanium Metals Corp. v. Banner, 778 F.2d 775, 783 (Fed. Cir. 1985). Because Appellants have not shown error in this fact finding and reasoning, we sustain the rejection of claims 1-7 and 11-22 under 35 U.S.C. §103(a) as unpatentable over Kaeding in view of Fina. 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 Copy with citationCopy as parenthetical citation