11663326 (P.T.A.B. Apr. 29, 2013)

Ex Parte Henn et al

Patent Trial and Appeal BoardApr 29, 2013

11663326 (P.T.A.B. Apr. 29, 2013)

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. 11/663,326 03/20/2007 Rolf Henn 12810-00443-US (PF 55905) 6087 23416 7590 04/29/2013 NOVAK DRUCE CONNOLLY BOVE + QUIGG LLP P O BOX 2207 WILMINGTON, DE 19899-2207 EXAMINER DANG, THUAN D ART UNIT PAPER NUMBER 1772 MAIL DATE DELIVERY MODE 04/29/2013 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 ROLF HENN, ULRICH MULLER, FERDINAND STRAUB and JURGEN DOSCH ____________ Appeal 2012-003297 Application 11/663,326 Technology Center 1700 ____________ Before ADRIENE LEPIANE HANLON, JEFFREY T. SMITH, and LINDA M. GAUDETTE, Administrative Patent Judges. GAUDETTE, Administrative Patent Judge. DECISION ON APPEAL Appeal 2012-003297 Application 11/663,326 2 Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s decision1 finally rejecting claims 10-29 under 35 U.S.C. § 103(a) as unpatentable over Venkat (US 6,617,482 B1, issued Sep. 9, 2003) and Gajda (US 5,744,686, issued Apr. 28, 1998).2 We have jurisdiction under 35 U.S.C. § 6(b). “The invention relates to a process for purifying feed streams comprising aromatics in polymerization or alkylation processes by bringing them into contact with zeolites.” (Spec.3 1:5-6.) The inventive process is said to be “more economical than the processes of the prior art” because “the polymerization and alkylation catalysts have a longer life when an aromatic which has been purified according to the invention is used. This considerably reduces the outlay for catalyst regeneration.” (Id. at 6:6-9.) Claim 10 is representative of the invention and is reproduced below from the Claims Appendix to the Appeal Brief: 10. A process comprising: (a) providing a process feedstream comprising an aromatic component; and (b) bringing the process feedstream into contact with a first zeolite and a second zeolite; wherein the first zeolite has a mean pore size of 0.3 to 0.5 nm, and wherein the second zeolite has a mean pore size of 0.6 to 0.8 nm. We decide the following issue in favor of Appellants and, therefore, REVERSE the Examiner’s decision to reject claims 10-29: Does a preponderance of the evidence favor the Examiner’s finding that one of ordinary skill in the art at the time of the invention would have been motivated to use both Gajda’s zeolite having a pore size of less than about .55 nm and Venkat’s zeolite having a pore size of greater than .56 nm in either Gajda’s or Venkat’s alkylation processes? 1 Final Office Action mailed Sep. 15, 2010 (“Final”) 2 Appeal Brief filed May 16, 2011 (“App. Br.”) 3 Specification filed Mar. 20, 2007 Appeal 2012-003297 Application 11/663,326 3 The Examiner concedes neither Gajda nor Venkat discloses the use of zeolites having different pore sizes as claimed, but maintains [i]t would have been obvious to one having ordinary skill in the art at the time the invention was made to have modified either [the] Gajda or Venkat process by using both zeolites taught of each of the two references for treating the aromatic feed to arrive at the applicants’ claimed process since 1) the combination of two zeolites having different pore sizes is expected to remove more contaminants having different sizes and 2) it is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition which is to be used for the very same purpose. In re Kerkhoven, 205 USPQ 1069 (CCPA 1980). (Ans. 4 4-5.) Appellants contend the ordinary artisan would not have had “a reasonable expectation of successfully achieving a better purification of an aromatic feedstock,” (App. Br. 3), but would have understood that Venkat’s zeolites are “alternative[s] to, or replacement[s] for” Gajda’s zeolites (id. at 4). In support of this argument, Appellants point out “the later-filed Venkat reference specifically discusses the previously published Gajda reference and notes that [] zeolites . . . having pores with cross-sectional dimensions greater than 5.6 Angstroms (i.e., greater than 0.56 nm) perform better than” Gajda’s smaller pore zeolites. (Id. at 3- 4 (referring to Venkat col. 2, ll. 18-225, as indicated in Reply Br.6 3) (emphasis omitted).) Appellants thus maintain “one of ordinary skill in the art, upon reading 4 Examiner’s Answer mailed Aug. 3, 2011. 5 “In accordance with the present invention, it has now been found that molecular sieves having pores and/or surface cavities with a cross-sectional size greater than 5.6 Angstroms are more effective for removing nitrogen contaminants from aromatic feedstocks than the small pore materials described in U.S. Pat. Nos. 5,744,686 and 5,942,650.” 6 Reply Brief filed Oct. 3, 2011. Appeal 2012-003297 Application 11/663,326 4 Venkat, would have [had] no reason to employ both adsorbents as Venkat would [have been] interpreted by one of ordinary skill in the art as suggesting that doing so would be redundant and superfluous.” (Id. at 4 (emphasis omitted).) The Examiner, in response, contends the ordinary artisan would have expected a purer feed since Gajda discloses removal of “acetonitrile, propionitrile, and acrylonitrile” (Ans. 5-6 (citing Gajda col. 3, l. 66-col. 4, line 1)), while Venkat discloses removal of different nitrogen contaminants, “such as pyridine, quinoline, N-formyl-morpholine, and N-methyl-pyrrolidone” (id. at 5 (citing Venkat col. 3, ll. 24-34)). Appellants have persuaded us that Venkat’s disclosure is broader than suggested by the Examiner, noting Venkat indicates the aforementioned contaminants are merely representative of the “basic nitrogen compounds” (Venkat col. 3, l. 31) removed by Venkat’s zeolites and that Venkat explicitly discloses removal of acetonitrile in the examples. (Reply Br. 2.) Moreover, the Examiner has not clearly explained why column 2, lines 17-22 of Venkat fail to support a finding that Venkat’s zeolites are more effective than Gajda’s zeolites in removing all nitrogen contaminants from aromatic feedstocks. (Cf. Ans. 6 (“[N]othing in Venkat discloses Venkat's adsorbent performs better than the one of Gajda.”).) In sum, Appellants have persuaded us that a preponderance of the evidence fails to support the Examiner’s finding that one of ordinary skill in the art at the time of the invention would have been motivated to use both Gajda’s zeolite having a pore size of less than about .55 nm and Venkat’s zeolite having a pore size of greater than .56 nm in either Gajda’s or Venkat’s alkylation processes. Accordingly, the Examiner’s decision to reject claims 10-29 is: REVERSED bar