Ex Parte McKENNA

Patent Trials and Appeals Board

Jan 27, 2016

13456374 - (D) (P.T.A.B. Jan. 27, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/456,374
94591 7590
Johnson Matthey Inc,
435 Devon Park Dr.
Suite 600
04/26/2012
01/29/2016
Wayne, PA 19087-1998
FIRST NAMED INVENTOR
FIONA-MAIREAD McKENNA
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.
WYN/70081US1/KC 5386
EXAMINER
SOLIMAN, HAYTHAM
ART UNIT PAPER NUMBER
1736
NOTIFICATION DATE DELIVERY MODE
01129/2016 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):
J ohnsonMatthey IP@matthey.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte FIONA-MAIREAD MCKENNA
Appeal2014-004385
Application 13/456,374
Technology Center 1700
Before ROMULO H. DELMENDO, CHRISTOPHER L. OGDEN, and
JULIA HEANEY, Administrative Patent Judges.
HEANEY, Administrative Patent Judge.
DECISION ON APPEAL
Appellant 1 seeks our review pursuant to 35 U.S.C. § 134(a) of a
decision of the Examiner to reject claims 1-12 of Application 13/456,374
under 35 U.S.C. § 103(a). We have jurisdiction under 35 U.S.C. § 6(b). We
affirm.
1 Appellant identifies the Real Party in Interest as Johnson Matthey Public
Limited Company. Br. 1.
Appeal2014-004385
Application 13/456,374
BACKGROUND
The subject matter on appeal relates to a NOx trap composition. Br. 1.
The composition comprises a platinum group metal, barium, and cobalt,
supported on a magnesia-alumina support.
Representative claim 1 is reproduced from the Claims Appendix of
the Appeal Brief as follows:
1. A NOx trap composition comprising a platinum group metal,
barium, cobalt, and a magnesia-alumina support, wherein the
platinum group metal, barium, and cobalt are supported on the
magnesia-alumina support.
THE REJECTIONS
Claims 1-10 stand rejected under 35 U.S.C. § 103(a) as unpatentable
over the combination of Lauterbach2 and Ruwisch. 3
Claims 11 and 12 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over the combination of Lauterbach, Ruwisch, and Kupe. 4
On pages 7-9 of the Answer, the Examiner withdrew a rejection under
35 U.S.C. § 103(a) of claims 1-8 as unpatentable over Lauterbach in view of
Erickson. 5
DISCUSSION
Appellant does not present separate arguments specifically directed to
the dependent claims under rejection. Br. 9-12. Nor does Appellant present
a substantively distinct argument as to independent claim 11. Therefore, we
2 US 7,811,536 B2, issued October 12, 2010 (hereinafter "Lauterbach").
3 US 2003/0125202 Al, published July 3, 2003 (hereinafter "Ruwisch").
4 US 7,584,603 B2, issued September 8, 2009 (hereinafter "Kupe").
5 US 2,992,191 issued July 11, 1961.
2
Appeal2014-004385
Application 13/456,374
need only address independent claim 1. We sustain the rejections for the
reasons given by the Examiner in the Answer with the following comments
added for emphasis.
Appellant argues that the rejection did not provide a sufficient
rationale for combining the Mg/Al mixed oxide catalyst ofRuwisch with the
Pt-Ba-Co/alumina catalyst described in Lauterbach, to produce the claimed
invention. Br. 6-9. Specifically, Appellant asserts that Ruwisch teaches a
NOx storage catalyst having an Mg/ Al oxide component as a separate
component from a Ba/Ce-Zr mixed oxide component. Id. In other words,
"Ruwisch does not teach that the platinum group metal and barium (let alone
cobalt) are all supported on the magnesia-alumina support, as required by
the currently claimed invention." Id. at 8.
In response, the Examiner states that the rejection did not rely on
Ruwisch for teaching a catalyst; rather, "Ruwisch is relied upon solely for
the Mg/ Al mixed oxide support because of their thermal stability (i-f 39 of
Ruwisch)." Ans. l 0. The Examiner further finds that a person of ordinary
skill in the art would understand that the benefit of thermal stability provided
by a Mg/ Al mixed oxide support, would also be beneficial in the one
component catalyst of Lauterbach. Id. 10-11. Because Appellant does not
offer any technical reasoning or evidence to the contrary, we do not discern
harmful error in this analysis. See e.g. In re Keller, 642 F.2d 413, 425
( CCP A 1981) (obviousness focuses on what the combined references would
have suggested to a person of ordinary skill, not whether their specific
structures can be combined).
Appellant further argues unexpected results, i.e., "there is nothing in a
combination of Lauterbach and Ruwisch that would lead one to expect that
the PGM/Ba/Co/magnesia-alumina compound of the invention (Catalyst IA)
3
Appeal2014-004385
Application 13/456,374
would have higher NOx storage" than comparative catalysts, as shown in
Table 1 of the Specification. Br. 9. The burden of showing unexpected
results rests on the person who asserts them by establishing that the
difference between the claimed invention and the closest prior art was an
unexpected difference. See In re Baxter Travenol Labs., 952 F.2d 388, 392
(Fed. Cir. 1991). Further, a showing of unexpected results supported by
factual evidence must be reasonably commensurate in scope with the degree
of protection sought by the claims on appeal. In re Grasselli, 713 F .2d 731,
743 (Fed. Cir. 1983). As the Examiner correctly finds, the sole inventive
example presented in Table 1, Catalyst IA, is limited to a particular
composition, whereas claim 1 is open to any amount of the claimed
components. Ans. 11; Specification 9. Thus, the evidence Appellant
presents in support of unexpected results is not commensurate with the scope
of the claims, and does not overcome the determination of obviousness.
SU1\11\1AR Y
We affirm the rejection of claims 1-12.
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
KRH
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