Ex Parte Gazarian

Patent Trial and Appeal Board

Dec 7, 2017

13497295 (P.T.A.B. Dec. 7, 2017)

UNITED STATES PATENT AND TRADEMARK OFFICE
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.
13/497,295 09/27/2012 Jérémy Gazarian 20362-134694 4505
42798 7590 12/08/2017
FITCH, EVEN, TABIN & FLANNERY, LLP
120 South LaSalle Street, Suite 1600
Chicago, IL 60603-3406
EXAMINER
NASSIRI MOTLAGH, ANITA
ART UNIT PAPER NUMBER
1734
MAIL DATE DELIVERY MODE
12/08/2017 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 PATENT TRIAL AND APPEAL BOARD
____________

Ex parte JÉRÉMY GAZARIAN
____________

Appeal 2017-002420
Application 13/497,2951
Technology Center 1700
____________

Before JEFFREY B. ROBERTSON, DONNA M. PRAISS, and
SHELDON M. McGEE, Administrative Patent Judges.

McGEE, Administrative Patent Judge.

DECISION ON APPEAL

Pursuant to 35 U.S.C. § 134, Appellant appeals from the Examiner’s
rejection adverse to the patentability of claims 12, 14, 20, 22, 23, 25, 31, 33,
34, 36, 39–41, 43, 45, 46, 48, and 50 under 35 U.S.C. § 103(a).
We have jurisdiction under 35 U.S.C. § 6.
We affirm.

1 Appellant identifies the real party in interest as IFP Energies nouvelles.
App. Br. 3.
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Application 13/497,295

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SUBJECT MATTER
Sole independent claim 12 is illustrative of the subject matter on
appeal, and is copied below with key limitations italicized for emphasis:
12. A method of deacidizing natural gas comprising H2S,
COS and CO2, comprising:
(a) contacting natural gas comprising the H2S, COS and
CO2, with a first stream of an absorbent solution in a first
absorption section to obtain an H2S-depleted gaseous effluent
and an H2S-laden absorbent solution;
(b) feeding the H2S-depleted gaseous effluent into a
reactor comprising a solid catalyst that performs a reaction of
hydrolysis of the COS to H2S and CO2 to obtain a COS-depleted
gaseous effluent;
(c) contacting the COS-depleted gaseous effluent with
a second stream of the absorbent solution in a second absorption
section to obtain a treated natural gas having a reduced COS
relative to untreated natural gas, a sulfur content less than 4 parts
per million, and in which absorption of CO2 from the natural gas
has been limited and an absorbent solution partly laden with H2S;
and
(d) regenerating the H2S-laden absorbent solution to
obtain a stream of regenerated absorbent solution; and wherein
in (a), the first stream of the absorbent solution comprises
a first portion of the stream of the regenerated absorbent solution
obtained in (d), as well as an absorbent solution partly laden with
H2S, and in (c) the second stream of the absorbent solution
stream comprises a second portion of the stream of the
regenerated absorbent solution obtained in (d), the first portion
comprises at least 70 vol.% of the stream of the regenerated
absorbent solution obtained in (d) and the second portion of the
regenerated absorbent solution comprises less than 30 vol.% of
the stream of the regenerated absorbent solution obtained in (d)
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and the second absorption section has a diameter smaller than a
diameter of the first absorption section.
Claims App’x. 3–42 (emphasis added).
REFERENCES
The Examiner relies on the following references as evidence of
unpatentability:
Appl US 4,336,233 June 22, 1982
Batteux US 4,853,012 Aug. 1, 1989
Stankowiak US 6,277,345 Bl Aug. 21, 2001
Ripperger US 2009/0050533 Al Feb. 26, 2009
Oppenheim US 2011/0259197 A1 Oct. 27, 2011
Mak WO 2008/103467 Al Aug. 28, 2008
http://naturalgas.org/overview/background/, last accessed September 19,
2016 (“Naturalgas.org”)
STATEMENT OF THE CASE
Claims 12, 14, 20, 22, 23, 25, 31, 33, 34, 36, 39–41, 43, 45, 46, 48,
and 50, i.e., all claims on appeal, are rejected under 35 U.S.C. § 103(a) as
being unpatentable over a combination of Mak, Ripperger, Stankowiak,
Batteux, and Appl. Final Act. 3–12.
Appellant presents arguments against the rejection of all claims as a
group. App. Br. 8. We, therefore, select claim 12 as representative and
decide the propriety of the rejection based on this claim.
37 C.F.R. § 41.37(c)(1)(iv) (2015).

2 Claims Appendix included in Response to Notification of Non-Compliant
Appeal Brief dated May 19, 2016.
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With respect to claim 12, the Examiner finds that Mak teaches the
claimed method with the following exceptions:
1) the use of a solid catalyst to perform a hydrolysis reaction, as
required in step (b) (Final Act. 4);
2) the percentage of the regenerated absorbent solution stream
split into a first and second portion (id.);
3) the treated gas is natural gas as recited in the preamble (id. at
6);
4) the second absorber of step (c) reduces the treated gas sulfur
content to less than 4 parts per million (ppm) (id.); and
5) the relative diameters of the first and second absorption sections
(id. at 5).
The Examiner relies on the teachings of Ripperger, Batteux,
Stankowiak, and Appl to remedy these deficiencies. Id. at 4–7.
OPINION
We have considered Appellant’s arguments (App. Br. 12–20; Reply
Br. 2–6), and are unpersuaded that Appellant has identified any reversible
error in the Examiner’s rejections. In re Jung, 637 F.3d 1356, 1365–66
(Fed. Cir. 2011) (explaining the Board’s long-held practice of requiring an
Appellant to identify the alleged error in the Examiner’s rejection).
Therefore, we sustain the obviousness rejection based on the findings of fact,
conclusions of law, and rebuttals to arguments well-expressed by the
Examiner in the Final Action and in the Answer. We add the following
comments for emphasis.
Appellant spends considerable portions of its Appeal Brief focused on
the teachings of the individual references. App. Br. 12–16. Such
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statements, without more, fail to persuade us of reversible error, however,
because “[n]on-obviousness cannot be established by attacking references
individually where the rejection is based upon the teachings of a
combination of references. . . . [The reference] must be read, not in
isolation, but for what it fairly teaches in combination with the prior art as a
whole.” In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986).
Appellant also argues that the Examiner improperly combines Mak’s
embodiments for treating shifted syngas (Figure 2) and un-shifted syngas
(Figure 3). App. Br. 13, 16–17, and 19–20; Reply Br. 2–4. This line of
argument is unpersuasive, however, because Mak expressly teaches that
“[s]imilar to the configuration as depicted in Figure 2, methods and
configurations may be employed to process un-shifted syngas” with “[o]ne
such exemplary configuration [being] depicted in Figure 3.” Mak 11:1–3.
As correctly observed by the Examiner (Ans. 3), Mak’s disclosure “does not
repeat the description for every single unit in Figure 3,” but rather “points
out the differences between” Figures 2 and 3. See Mak 11:22–23 (“With
respect to the remaining components and configurations, the same
considerations and contemplations apply in Figure 3 for like items of Figure
2.”). Thus, we discern no error in the Examiner’s citation to portions of Mak
discussing components of Figure 2, because Mak’s discussion of such shared
components is equally applicable to the Figure 3 embodiment.
We also discern no persuasive merit in Appellant’s repeated
contention that Mak’s method does not require the CO2 absorption from the
natural gas to be “limited” as recited in step (c). App. Br. 13, 14, 15, 16, 17;
Reply Br. 2, 4. This argument is unpersuasive because Appellant fails to
direct us to a definition of the term “limited” so as to distinguish the claim
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over the prior art relied upon by the Examiner. In this regard, as found by
the Examiner, Mak recognizes that “CO2 absorption in the desulfurization
section may be reduced by use of a CO2 loaded solvent in the H2S
absorbers.” Final Act. 3, citing Mak 7:28–29. Based on this disclosure, the
skilled artisan would have known that the amount of CO2 absorption could
be varied in order to obtain certain desired (e.g., “limited”) levels.
“[D]iscovery of an optimum value of a result effective variable in a known
process is ordinarily within the skill of the art.” In re Boesch, 617 F.2d 272,
276 (CCPA 1980).
Appellant also contends that there are compositional differences
between shifted syngas, unshifted syngas, and natural gas, and that the
skilled artisan would not apply Mak’s method of removing hydrogen sulfide
(H2S) and carbonylsulfide (COS) from syngas streams to the removal of
such contaminants from natural gas. App. Br. 13–14, 16–17; Reply Br. 3–5.
We are not persuaded. First, we observe that Mak teaches that the
compositions for shifted and un-shifted syngas are by no means limited to
those listed in Tables 1 and 2, respectively. Rather, Mak expressly states
that these compositions are merely “typical.” Mak 9:11–14; id. at 11:1–4.
Moreover, the Examiner aptly notes that the CO2 content of an embodiment
of Mak’s un-shifted syngas (i.e., 4.3%) falls within the typical amount of
CO2 found in natural gas (i.e., 0–8%). Ans. 3. We also note that the
reference relied upon by the Examiner to establish this similarity in CO2
concentration3 also discloses that a “typical” amount of N2 (i.e, 0–5%) and
H2S (0–5%) encompasses Mak’s “typical” un-shifted syngas composition

3 http://naturalgas.org/overview/background/, retrieved September 19, 2016.
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for these elements (i.e., 0.2% and 1.5%, respectively) (Mak 11:3–4, Table
2), and Mak’s “typical” shifted syngas composition for these elements (i.e.,
0.1% and 1.3%) (Mak 9:13–14, Table 1), and further indicates that “[t]he
composition of natural gas can vary widely.”
Furthermore, Appellant has not shown that compositional differences
in the underlying gas stream (e.g., shifted syngas, un-shifted syngas, or
natural gas) would impact the ability of a particular process to remove
contaminants from such gas stream. Indeed, the Stankowiak reference relied
upon by the Examiner suggests otherwise. Stankowiak, Abstract (“The gas
to be purified can be any gas, such as synthesis gas or natural gas, which
contains gaseous, acidic impurities such as CO2, H2S, SO2, CS2, HCN, COS
or mercaptans.”) (emphasis added). Other than identifying potential
compositional differences between syngas and natural gas, Appellants have
not shown error in the Examiner’s rationale that Mak’s process (as modified
by Ripperger, Batteux, and Appl) of removing impurities from a syngas
stream, may also be used to remove the same impurities from natural gas, as
evidenced by Stankowiak. Therefore, on this record, Appellant has not
shown that the skilled artisan would not have had a reasonable expectation
of successfully treating a natural gas stream containing the recited
contaminants in the modified Mak process.
We are furthermore unpersuaded by Appellant’s arguments regarding
the limitation requiring “at least 70 vol.%” of the regenerated absorbent
solution stream to be allocated to the first portion in the first stream, and
“less than 30 vol.%” of the regenerated absorbent stream to be allocated to
the second portion of the second stream. App. Br. 17–18; Reply Br. 5.
Appellant does not address the Examiner’s finding (Final Act. 5) that
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Batteux teaches that the second portion of regenerated absorbent solution
“can vary widely . . . from about 20% to about 100%” of the liquid
introduced in the primary absorption zone. Batteux 4:6–11. We furthermore
agree with the Examiner (Final Act. 5) that the amount of liquid supplied
into the primary absorption zone is a result effective variable because such
supply “is adjusted to extract” the desired amount of acidic compounds in
the treated gas stream. Batteux 3:45–48. We observe additionally, that
Appellant has not directed our attention to persuasive evidence that the
particular split percentage recited in the claims is critical or produces an
unexpectedly good result. In re Boesch, 617 F.2d at 276 (“[i]t is well-settled
that a prima facie case of obviousness may be rebutted ‘where the results of
optimizing a variable, which was known to be result effective, (are)
unexpectedly good.’”).
We are also unpersuaded by Appellant’s arguments regarding the
limitation requiring the second absorption section to have a diameter smaller
than that of the first absorption section. App. Br. 18; Reply Br. 5. We
emphasize here that Appellant fails to address, and thus fails to identify error
in, the Examiner’s determination that it would have been obvious for the
skilled artisan to make the columns the appropriate diameter, particularly
“because the amount of fluid through the second absorption section is less
than that of the first absorption section.” Final Act. 5. Rather, Appellant’s
arguments focus on the teachings of Batteux which, contrary to Appellant’s
apparent belief (Reply Br. 5), was not relied on by the Examiner for this
feature. See Ans. 7–8 (“Although Mak and Batteux do not explicitly teach
that the second absorption section has a diameter small[er] than a diameter
of the first absoption section . . .”). Moreover, we note that Appellant’s
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allegation of the unexpected “substantial cost” benefit of the recited column
diameters (Reply Br. 5) relative to Batteux is untimely.4 Further, as
correctly noted by the Examiner (Ans. 8), Oppenheim evinces that “the
diameter of an absorber may be reduced as a result of the reduction in flow
rate suitable for given quantities.” Oppenheim ¶ 52 (“The reduction in [H2S
absorber] vessel size may be due, at least partially, to the reduction in flow
rate suitable for given quantities of H2S removal.”).
Finally, we address two procedural matters. First, Appellant’s
statement that “[t]he reliance on Oppenheim et al. is a new ground of
rejection” (Reply Br. 6), is a petitionable matter. 37 C.F.R. § 41.40(a).5

4 Because Appellant fails to show good cause why this argument could not
have been raised in the Appeal Brief, we decline to consider it. See 37
C.F.R. § 41.37 (c)(1)(iv) (“Except as provided for in §§ 41.41, 41.47, and
41.52, any arguments or authorities not included in the appeal brief will be
refused consideration by the Board for purposes of the present appeal.”).
See also 37 C.F.R. § 41.41(b)(2) (“Any argument raised in the reply brief
which was not raised in the appeal brief, or is not responsive to an argument
rasied in the examiner’s answer, including any designated new ground of
rejection, will not be considered by the Board for purposes of the present
appeal, unless good cause is shown.”).
5 “Any request to seek review of the primary examiner’s failure to designate
a rejection as a new ground of rejection in an examiner’s answer must be by
way of petition to the Director under § 1.181 of this title filed within two
months from the entry of the examiner’s answer and before the filing of any
reply brief. Failure of appellant to timely file such a petition will constitute
a waiver of any arguments that a rejection must be designated as a new
ground of rejection.”
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Also, Appellant’s statement “[o]ral argument requested” (Reply Br. 6) is not
in accordance with 37 C.F.R. § 41.47(b).6
SUMMARY
The Examiner’s final decision to reject claims 12, 14, 20, 22, 23, 25,
31, 33, 34, 36, 39–41, 43, 45, 46, 48, and 50 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

6 “If appellant desires an oral hearing, appellant must file, as a separate paper
captioned “REQUEST FOR ORAL HEARING,” a written request for such
hearing accompanied by the fee set forth in § 41.20(b)(3) within two months
from the date of the examiner’s answer or on the date of filing of a reply
brief, whichever is earlier.”