Ex Parte Knudsen et al

Patent Trial and Appeal Board

Feb 27, 2017

13709523 (P.T.A.B. Feb. 27, 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.
13/709,523 12/10/2012 Ronald D. KNUDSEN 33890US02 (4081-14201) 7595
37814 7590 02/27/2017
CHEVRON PHILLIPS CHEMICAL COMPANY
5601 Granite Parkway, Suite 500
PLANO, TX 75024
EXAMINER
MCAVOY, ELLEN M
ART UNIT PAPER NUMBER
1771
MAIL DATE DELIVERY MODE
02/27/2017 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 RONALD D. KNUDSEN, WARREN M. EWERT,
and BRUCE E. KREISCHER
__________

Appeal 2015-007278
Application 13/709,523
Technology Center 1700
____________

Before BEVERLY A. FRANKLIN, MICHAEL P. COLAIANNI, and
MICHAEL G. McMANUS, Administrative Patent Judges.

COLAIANNI, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2015-007278
Application 13/709,523

2
Appellants appeal under 35 U.S.C. § 134 the final rejection of claims
1–5 and 9–26. The application in this appeal is a continuation of parent
application number 10/800,471. In the parent application, the Board
affirmed the Examiner’s rejection in Appeal No. 2011-001064. We have
jurisdiction over the appeal pursuant to 35 U.S.C. § 6(b).
We AFFIRM.
Appellants’ invention is directed to “methods of deactivating the
catalyst in the effluent of the oligomerization reactor under conditions which
prevent or decrease the formation of hydrogen halide acids during
downstream processing and thereby prevent or decrease process equipment
corrosion caused by such acids.” (Spec. ¶ 4).
Claim 1 is illustrative:
1. A process to deactivate a halide-containing olefin oligomerization
catalyst system and inhibit or limit the decomposition of the deactivated
catalyst system during recovery of an olefin oligomerization product
comprising the steps of:
a) forming an intermediate stream by contacting an olefin
oligomerization reactor effluent stream which comprises one or more
olefin products, the catalyst system, and heavies with an alcohol that
is soluble in any portion of the reactor effluent stream thereby
deactivating the catalyst system, wherein the alcohol is selected from
the group consisting of 1-hexanol, 3-hexanol, 2-ethyl-1-hexanol, 3-
octanol, 1-heptanol, 2-heptanol, 3-heptanol, 4-heptanol, 2-methyl-3-
heptanol, 1-octanol, 2-octanol, 4-octanol, 7-methyl-2-decanol, 1-
decanol, 2-decanol, 3-decanol, 4-decanol, 5-decanol, 2-ethyl-1-
decanol, and mixtures thereof; and

b) separating the intermediate stream into at least one product stream
comprising the olefin oligomerization product and at least one heavies
stream, wherein separating the intermediate stream comprises
distilling a material, wherein distilling the material comprises passing
the material through a reboiler, wherein the material is maintained
below about 190 °C.
Appeal 2015-007278
Application 13/709,523

3
Appellants appeal the following rejection:
Claims 1–5 and 9–26 are rejected under 35 U.S.C. § 103(a) as obvious over
Lashier et al., (US 5,689,028, issued Nov. 18, 1997) (“Lashier”), Araki et
al., (US 5,750,816, issued May 12, 1998) (“Araki”) or Kreischer et al., (US
6,380,451 B1, issued Apr. 30, 2002) (“Kreischer”).

Appellants argue subject matter common to independent claims 1, 20,
and 21 (App. Br. 6–7). We select claim 1 as representative.

FINDINGS OF FACT & ANALYSIS
The Examiner’s findings and conclusions regarding Lashier, Araki, or
Kreischer are located on pages 2 to 4 of the Answer. With regard to the
temperature of the reboiler, the Examiner finds that none of the cited
references teach that the reboiler temperature is 190°C or less (Ans. 3–4).
The Examiner finds that Lashier, Araki, and Kreischer each teach that the
oligomer product produced is separated from the catalyst/alcohol by
distillation (Kreischer, col. 9, ll. 63–66; Lashier, col. 6, ll. 22–25; Araki, col.
9, ll. 48–56). The Examiner further finds that each of the applied references
uses the same catalyst, the same method of deactivation of the catalyst using
the same alcohols, and the same product recovery step as recited in claim 1
(Ans. 7). Based upon these findings, the Examiner finds that the skilled
artisan would have been able to determine through routine optimization the
optimal temperature to run the distillation without resulting in unwanted
decomposition of the components including distilling at a temperature below
190°C. Id.
Appeal 2015-007278
Application 13/709,523

4
Appellants argue that the Examiner failed to present a prima facie
case of obviousness (App. Br. 9). Appellants contend that the Examiner has
not articulated an appropriate rationale supporting the conclusion of
obviousness (App. Br. 11). Appellants contend that the Examiner’s reasons
are conclusory and rest on faulty logic (App. Br. 12). Appellants contend
that the Examiner’s rationale based on the applied prior art disclosures that
any reaction conditions which can affect the steps of the process, including
distillation, may be used is nothing more than a conclusory statement that
reaction conditions may be tweaked. Id. Appellants argue that the
Examiner’s reasoning that because Lashier, Kreischer, or Araki do not
indicate any level of corrosion and each reference uses the same catalyst
deactivation process and alcohols to deactivate, the use of a reboiler
temperature of less than 190°C would have been likely used is based upon a
logical fallacy (App. Br. 13). Appellants contend that even though the
applied prior art is silent regarding the presence of corrosion that does not
mean that no corrosion occurred. Id. Appellants contend that the
Examiner’s finding that Lashier, Kreischer or Araki teach a reboiler
temperature of 190°C is based on a possibility and thus the applied prior art
cannot inherently teach the claimed reboiler temperature (App. Br. 14).
Appellants contend that though differences in concentrations and
temperatures are generally encompassed by the art, the Examiner has not
established that the claimed reboiler temperature of less than 190°C is
generally encompassed by the prior art (App. Br. 14–15). Appellants argue
that the Examiner has not shown that the reboiler temperature is a result-
effective variable for influencing catalyst system decomposition and/or
equipment corrosion that would have been optimized (App. Br. 15).
Appeal 2015-007278
Application 13/709,523

5
Appellants argue that the declaration of Ronald Knudsen dated
January 13, 2014 (hereinafter the “Knudsen Declaration) states that a person
of ordinary skill in the art would not have appreciated that passing material
through the reboiler at a temperature greater than 190°C would have
unacceptably contributed to the decomposition of the deactivated catalyst
system and/or unacceptably contributed to the formation of a corrosive
compound (App. Br. 15–16). Appellants argue that one of ordinary skill in
the art would not have known to adjust the reboiler temperature to affect
catalyst decomposition or the production of corrosive compounds (App. Br.
16). Appellants argue that the claimed process that operates the reboiler at a
temperature of 190°C is an “optimized result-effective variable that is
critical to inhibiting or limiting the decomposition of the deactivated catalyst
system during recovery of an olefin oligomerization product” (App. Br. 17–
18). Appellants contend that they determined that reboiler temperatures
exceeding 190°C resulted in catalyst decomposition and corrosion which
was not recognized by Lashier, Kreischer or Araki (App. Br. 19).
Appellants cite to the evidence in their Figures 1 and 3 of the Specification
as evidence that the reboiler temperature of 190°C is critical and a result-
effective variable for limiting decomposition of the catalyst and corrosion
(App. Br. 20–21). Appellants contend that their evidence that uses 2-ethyl-
1-hexanol is representative of the subgenus of C6 to C12 alcohols disclosed in
the Specification and recited in claim 1 such that one of ordinary skill in the
art would reasonably expect all the alcohols in the subgenus to behave in the
same manner (i.e., there is a trend) (App. Br. 22–25; Reply Br. 10–11).
We find that the preponderance of the evidence favors the Examiner’s
obviousness conclusion. The claims of this appeal differ from the claims on
Appeal 2015-007278
Application 13/709,523

6
appeal in the parent application by the addition of the Markush group of
alcohols. It is undisputed that Lashier, Araki, and Kreischer each teach an
oligomerization process where a catalyst is deactivated using an alcohol that
includes those recited in claim 1 and the resulting deactivated product may
be separated using a distillation process (Ans. 2–4). The issue in this appeal
centers on whether it would have been obvious to operate the reboiler (i.e.,
distillation) process in Lashier, Araki or Kreischer at a temperature of less
than 190°C. The Examiner’s findings that Lashier, Araki, and Kreischer use
the same process, the same alcohols, the same catalyst deactivation process,
and the same separation process (distillation) supports the conclusion that
one of ordinary skill in the art would have optimized the reboiler
temperature to provide the desired separation. Like Appellants, the
distillation includes separating the alcohol from the deactivated catalyst
(Spec. ¶ 58). Depending on the type of alcohol used and the desired degree
of separation, it would have been within the skill of the ordinary artisan to
take into account the boiling point of the alcohol and the other components
to achieve the desired degree of separation. For example, 2-ethyl-1-hexanol
has a boiling point of 180 to 186°C1, so it would have been obvious to keep
the reboiler at a temperature near the boiling point of the alcohol to ensure
its proper separation from the catalyst.
It is not dispositive that Lashier, Araki or Kreischer did not recognize
that keeping the reboiler temperature at less than 190°C prevented catalyst
decomposition and corrosion. In the present case, the temperature of the
reboiler would have been set to effect the desired level of separation
between the alcohol and the catalyst. Contrary to declarant’s opinion in the

1 https://pubchem.ncbi.nlm.nih.gov/compound/2-Ethylhexanol#section=Top
Appeal 2015-007278
Application 13/709,523

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Knudsen Declaration, the prior art’s reason for setting the reboiler
temperature need not be the same as Appellants’ reason.
With regard to Appellants’ evidence of reboiler temperature
criticality, Appellants argue that the addition of the Markush group of C6 to
C12 alcohols renders the Specification evidence commensurate in scope.
Appellants’ evidence, however, only includes one of the claimed alcohols
(2-ethyl-1-hexanol with six carbon atoms). Although Appellants contend
that one of ordinary skill would reasonably expect the same result for any of
the alcohols listed in the Markush grouping, Appellants’ evidence is solely
limited to single species in the group. A person of skill in the art could not
discern a trend with other alcohols recited in the claim based on data for a
single alcohol species. In other words, Appellants’ single six carbon alcohol
example does not show that the same results would have been expected for
any alcohol (e.g., C7 to C12 alcohols) in the Markush grouping. Appellants’
evidence is not commensurate in scope with the claimed invention.
Appellants’ evidence does not establish that the claimed temperature is
critical over the entire range of alcohols.
On this record, we affirm the Examiner’s § 103 rejection.
DECISION
The Examiner’s decision 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).

ORDER
AFFIRMED