Ex Parte Detournay et al

Patent Trial and Appeal Board

Sep 14, 2016

13508903 (P.T.A.B. Sep. 14, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/508,903 05/14/2012
23117 7590 09/16/2016
NIXON & V ANDERHYE, PC
901 NORTH GLEBE ROAD, 11 TH FLOOR
ARLINGTON, VA 22203
FIRST NAMED INVENTOR
Stephan Detournay
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.
LCM-4702-237 8437
EXAMINER
ENG, ELIZABETH
ART UNIT PAPER NUMBER
1762
NOTIFICATION DATE DELIVERY MODE
09/16/2016 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):
PTOMAIL@nixonvan.com
pair_nixon@firsttofile.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte STEPHAN DETOURNA Y and
CHRISTOPHE MOINEAU1
Appeal2015-003296
Application 13/508,903
Technology Center 1700
Before CATHERINE Q. TIMM, CHRISTOPHER C. KENNEDY, and
MONTE T. SQUIRE, Administrative Patent Judges.
TIMM, Administrative Patent Judge.
DECISION ON APPEAL 2
1 Appellants identify the real party in interest as Ineos Commercial Services
UK Limited. Appeal Br. 3.
2 In our opinion below, we refer to the Final Office Action mailed November
15, 2013 (Final), the Appeal Brief filed June 16, 2014 (Appeal Br.), the
Examiner's Answer mailed October 31, 2014 (Ans.), and the Reply Brief
filed December 31, 2014 (Reply Br.).
Appeal2015-003296
Application 13/508,903
STATEMENT OF CASE
Appellants appeal under 35 U.S.C. § 134(a) the Examiner's decision
to reject claims 15--42 under 35 U.S.C. § 103(a) as obvious over McDaniel3
in view ofBodart. 4 We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
The claims are directed to a process for the polymerization of olefins.
The process is conducted in the presence of a titanium-modified supported
chromium-oxide-based catalyst that has been thermally treated in two steps.
In essence, the claims are directed to a process for polymerization using a
catalyst partly defined by a particular thermal treatment process.
Appellants' confine their arguments to the rejection of claim 15.
Thus, we select claim 15 as representative for resolving the issues on appeal.
We reproduce claim 15 from the Claims Appendix of the Appeal Brief
below with a key limitation highlighted:
15. Process for the polymerisation of at least one alpha
olefin containing from 2 to 12 carbon atoms in the presence of a
supported chromium oxide based catalyst characterised in that
- the supported chromium oxide based catalyst is a
titanium modified supported chromium oxide based catalyst;
- the chromium oxide based catalyst is supported on a
refractory oxide; and
- the titanium modified supported chromium oxide based
catalyst has been subjected to a 2 steps thermal treatment
wherein
o the first step consists in bringing the catalyst under
an inert atmosphere to a temperature comprised between 600
3 US 4,397,769, issued Aug. 9, 1983.
4 WO 2007/118863 Al, pub. October 25, 2007.
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Application 13/508,903
and 900°C and then keeping the catalyst during a holding time
of less than or equal to 8 hours under an inert atmosphere at a
temperature comprised between 600 and 900°C, and
o the second step consists in the treatment of the
catalyst coming from step 1 under an oxidizing atmosphere at a
temperature comprised between 400 and 700°C during a
holding time comprised between 2 and 10 hours, and
o wherein the maximum temperature of step 2 is
always lower than the maximum temperature of step 1 and
wherein the difference between the maximum temperature of
step 1 and the maximum temperature of step 2 is comprised
between 50 and 250°C,
and further wherein the preparation of the catalyst is not
carried out by the cogel method and involves the introduction
of a titanium compound on to a support by addition and/or
impregnation.
Appeal Br. 11.
OPINION
The Examiner finds that McDaniel teaches a process for the
polymerization of ethylene, an alpha olefin containing 2 carbon atoms, in the
presence of a titanium-modified silica-supported chromium-oxide-based
catalyst. Final 4. The Examiner further finds that McDaniel teaches the
two-step thermal treatment required by claim 15, including bringing the
catalyst under an inert atmosphere (nitrogen) in the first thermal treatment
step. Id.
Appellants contend that McDaniel does not teach conducting the first
thermal treatment under an inert atmosphere, but rather teaches conducting
the first thermal treatment in the presence of a formaldehyde treating agent.
Appeal Br. 7-8.
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Application 13/508,903
We do not find Appellants' contention persuasive because it
misunderstands the teaching of McDaniel.
McDaniel describes preheating the catalyst in a nonoxidizing gas such
as nitrogen or argon, and dispersing gaseous formaldehyde in the
nonoxidizing gas for contact with a dry fluidized catalyst or support for a
time period sufficient to consume the treating agent. McDaniel, col. 4, 11. 4--
13. But the step of dispersing gaseous formaldehyde (or its by-products) is
not simultaneous with heating in the inert atmosphere as argued by
Appellants. In fact, heating in the inert atmosphere begins before the
gaseous formaldehyde addition. This is made particularly clear in Example I
where dry nitrogen or dry air is supplied to the activator tube containing the
dried catalyst, the catalyst is heated for 2 hours 35 minutes, and only then
contacted with the vaporized charge of paraformaldehyde thermal
decomposition products that is introduced from a different tube. McDaniel,
col. 5, 11. 36-66. Thus, McDaniel suggests a first step of thermally treating
the catalyst under an inert atmosphere (nitrogen) for a time less than or equal
to 8 hours (e.g., 2 hours 35 minutes) as required by claim 15.
Appellants direct a separate argument to the Examiner's finding of a
reason to prepare the catalyst by a method other than the cogel method.
With respect to this aspect of the rejection, the Examiner acknowledges that
McDaniel is silent about preparing the catalyst by methods other than the
cogel method, and turns to Bodart as evidence that it was known in the art to
use other methods to support the obviousness conclusion. Final 6-7.
Appellants contend that because McDaniel states that the cogel catalyst is
preferred, "[t]he skilled person, as of the effective date of this case, would
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Application 13/508,903
therefore [not] have been motivated to in some way select a non-preferred
catalyst preparation method from McDaniel." Appeal Br. 8.
For the reasons stated by the Examiner, we do not find Appellants'
argument persuasive. Although, as pointed out by Appellants, McDaniel
states that the cogel method is preferred, McDaniel, col. 3, lines 33-38,
McDaniel does not state that the cogel method is required. As the Examiner
points out, and Appellants do not dispute, McDaniel teaches other methods
of preparing the catalyst. Compare Appeal Br. 8; Reply Br. 3 with Ans. 10.
"A reference must be considered for everything that it teaches, not simply
the described invention or a preferred embodiment." In re Applied
Materials, Inc., 692 F.3d 1289, 1298 (Fed. Cir. 2012). Nor does the
combination need be the most desirable combination available to establish
obviousness. In re Fulton, 391F.3d1195, 1200 (Fed. Cir. 2004). When one
considers McDaniel and Bodart for everything they teach, a preponderance
of the evidence indicates that those of ordinary skill in the art knew how to
form a useful catalyst by processes other than the cogel method.
CONCLUSION
We sustain the Examiner's rejection.
DECISION
The Examiner's decision is affirmed.
TIME PERIOD FOR RESPONSE
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).
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Appeal2015-003296
Application 13/508,903
AFFIRMED
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