Ex Parte Khaliq et al

Patent Trial and Appeal Board

Nov 20, 2017

13126306 (P.T.A.B. Nov. 20, 2017)

United States Patent and Trademark Office
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
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Alexandria, Virginia 22313-1450
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APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
13/126,306 10/24/2011 Hamera Khaliq JMYS-208US 2266
23122 7590 11/22/2017
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte HAMERA KHALIQ, SHARON BALE,
GORDON JAMES KELLY, and JOHN WEST
Appeal 2017-002531
Application 13/126,306
Technology Center 1700
Before ADRIENE LEPIANE HANLON, LINDA M. GAUDETTE, and
JENNIFER R. GUPTA, Administrative Patent Judges.
GUPTA, Administrative Patent Judge.
DECISION ON APPEAL1
Appellants2 appeal under 35 U.S.C. § 134(a) from the Examiner’s
final decision rejecting claims 13—31 and 37.3 We have jurisdiction under
35 U.S.C. § 6(b). We affirm.
1 In this decision, we refer to the Specification filed April 27, 2011
(“Spec.”), the Final Office Action mailed February 4, 2016 (“Final Act.”),
the Appeal Brief filed April 11, 2016 (“Appeal Br.”), the Examiner’s
Answer mailed October 3, 2016 (“Ans.”), and the Reply Brief filed
December 2, 2016 (“Reply Br.”).
2 Appellants identify the real party in interest as Johnson Matthey PLC.
Appeal Br. 2.
3 Claims 1—12 and 32—36 are withdrawn from consideration by the Examiner
as directed to non-elected inventions.
Appeal 2017-002531
Application 13/126,306
The subject matter on appeal relates to cobalt catalysts, particularly
cobalt catalysts supported on a transition alumina, suitable for use in the
Fischer-Tropsch synthesis of hydrocarbons. Spec. 1,11. 6—9. Claim 13,
reproduced below from the Claims Appendix of the Appeal Brief, is
illustrative of the claims on appeal.
13. A process for preparing a catalyst comprising the
steps of:
(a) forming a catalyst precursor by;
(i) impregnating a transition alumina with a cobalt
compound and a precious metal promoter compound, and
(ii) drying the impregnated alumina to produce a dried
catalyst precursor,
(b) calcining the dried catalyst precursor at a temperature
in the range 250 to 650oC to produce a calcined precursor, and
(c) reducing the calcined precursor at a temperature in the
range 450 to 650oC,
wherein steps (i) and (ii) are performed until a cobalt
content of the catalyst is > 25% by weight and a precious metal
promoter content of the catalyst is in the range 0.05 to 0.25% by
weight, such that cobalt crystallites in the catalyst have an
average size, as determined by hydrogen chemisorption, of
>15 nm.
Appeal Br. 7 (Claims Appendix).
REJECTIONS
The Examiner maintains the following rejections on appeal:
Rejection 1: Claims 13—30 and 37 under pre-AIA 35 U.S.C. § 103(a)
as unpatentable over Espinoza et al. (US 2005/0119116 Al, published
June 2, 2005) (“Espinoza”) in view of Hu et al. (US 2007/0099797 Al,
published May 3, 2007) (“Hu”); and
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Application 13/126,306
Rejection 2: Claim 31 under pre-AIA 35 U.S.C. § 103(a) as
unpatentable over Espinoza in view of Mohedas et al.
(US 2005/0182145 Al, published August 18, 2005) (“Mohedas”).
DISCUSSION
Appellants argue the claims as a group, and do not separately contest
the separate rejection of claim 31. See Appeal Br. 3—6. We select claim 13
as representative of the rejected claims, and the remaining claims on appeal
will stand or fall with claim 13. See 37 C.F.R. § 41.37(c)(l)(iv).
Upon consideration of the evidence on this record and each of
Appellants’ contentions, we find that the preponderance of evidence
supports the Examiner’s conclusion that the subject matter of Appellants’
claims is unpatentable over the applied prior art. We sustain the Examiner’s
§ 103(a) rejections essentially for the reasons set out by the Examiner in the
Final Action and Answer. We add the following.
The Examiner finds that Espinoza discloses forming a catalyst
precursor by impregnating a catalyst material onto a support material. Final
Act. 2 (citing Espinoza | 86). The Examiner finds that Espinoza discloses
that the support material is silica-alumina, and the catalytic material includes
cobalt in an amount ranging from about 15 wt.% to about 35 wt.% of the
total catalyst composition, and ruthenium in an amount between about
0.0001 wt.% to about 5 wt.%, of the total catalyst composition, such that the
cobalt crystallites in the catalyst have an average size between about 6 nm
and about 25 nm. Final Act. 3 (citing Espinoza Tflf 24, 36, 37, 61, 70). The
Examiner also finds that Espinoza teaches drying the impregnated support,
calcining the dried impregnated support at a temperature between about
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Application 13/126,306
200 -C and about 800 -C, and reducing the calcined support at a temperature
ranging from 75 °C to about 500 -C. Final Act. 3 (citing Espinoza ]Hf 98, 99,
104).
The Examiner finds that Hu discloses gamma alumina and alumina
are alternative materials for Fischer-Tropsch catalysts. Final Act. 3 (citing
Hu 122). Based on this finding, the Examiner determines that one of
ordinary skill in the art would have been led to substitute gamma alumina, as
taught by Hu, for alumina in Espinoza’s support, with a reasonable
expectation that the modified support would be an effective support for
Espinoza’s catalyst material. Final Act. 3.
Appellants argue that a person of ordinary skill in the art would not
have been motivated to modify Espinoza by replacing the silica-alumina
support with a gamma alumina support. Appeal Br. 5. Appellants argue that
Espinoza teaches only using a mixed metal oxide support, and thus, teaches
away from a support material that is not a mixed oxide. Id. Moreover,
Appellants argue that eliminating silica from Espinoza’s support would
eliminate the alleged advantageous effect of controlling crystallite size and
dispersion as suggested by Espinoza. Id. Appellants also argue that a silica-
alumina support is not equivalent to a gamma support. Id. Specifically,
Appellants contend that silica-alumina supports have very different
properties than either silica or alumina supports, as evidenced by the
Declaration under 37 C.F.R. § 1.132 executed by Gordon James Kelly on
November 12, 2014 (“the Kelly Declaration”). Id. at 6. Therefore,
Appellants argue that a person of ordinary skill in the art would have no
expectation of success that a transition alumina may be successfully
exchanged with a silica alumina support. Id.
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Application 13/126,306
We are not persuaded by Appellants’ arguments of reversible error in
the Examiner’s rejections. The Examiner’s rejections do not propose
replacing Espinoza’s silica-alumina support with a gamma alumina support.
Rather, the Examiner’s rejections propose substituting gamma alumina for
alumina in Espinoza’s silica-alumina support. Final Act. 3. Although
Espinoza’s disclosure focuses on using only mixed oxide supports, it fails to
teach away from using a support that is not a mixed oxide. See In re Fulton,
391 F.3d 1195, 1201 (Fed. Cir. 2004) (explaining that a reference teaches
away when it criticizes, discredits, or otherwise discourages the claimed
solution).
Hu teaches that alumina, gamma alumina, and alumina-silica are
functionally equivalent materials used to support a Fischer-Tropsch catalyst.
Hu 122. Based on Hu’s teaching, one of ordinary skill in the art would have
been motivated to use gamma alumina instead of alumina in Espinoza’s
silica alumina support. In reFout, 675 F.2d 297, 301 (CCPA 1982) (where
two known alternatives are interchangeable for a desired function, an
express suggestion to substitute one for the other is not needed to render a
substitution obvious). Likewise, one of ordinary skill in the art would have
had a reasonable expectation that a mixed oxide support of gamma alumina
and silica would be an effective support for Espinoza’s catalyst material
based on the teachings in Hu. In re O Farrell, 853 F.2d 894, 903—04 (Fed.
Cir. 1988) (“Obviousness does not require absolute predictability of success.
. . . [A]ll that is required is a reasonable expectation of success.”). On this
record, Appellants have not adequately explained why the Examiner erred in
finding one skilled in the art, using no more than ordinary creativity, would
have substituted Hu’s gamma alumina for the alumina in Espinoza’s silica-
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Application 13/126,306
alumina support. Nor have Appellants provided sufficient evidence that
Hu’s gamma alumina would not work as the alumina in Espinoza’s silica-
alumina support.
Accordingly, based on the totality of the appeal record, including due
consideration of Appellants’ arguments and evidence, we determine that the
preponderance of the evidence weighs most heavily in favor of obviousness
of the subject matter recited in claims 13—31 and 37.
DECISION
For the above reasons, the rejections of claims 13—31 and 37 are
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).
AFFIRMED
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