Ex Parte Sun et al

Patent Trials and Appeals Board

Jun 25, 2019

13194739 - (D) (P.T.A.B. Jun. 25, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/194,739 07/29/2011
71762 7590 06/25/2019
JONES DELFLACHE LLP
1333 HEIGHTS BOULEVARD
SUITE 300
HOUSTON, TX 77008
FIRST NAMED INVENTOR
Hong Sun
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.
020569-26500
(FRC4-95627)
CONFIRMATION NO.
1518
EXAMINER
SUE-AKO, ANDREW B.
ART UNIT PAPER NUMBER
3674
MAIL DATE DELIVERY MODE
06/25/2019 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 HONG SUN, QI QU, RICHARD STEVENS, and
MARY MICHELE STEVENS 1
Appeal2018-007508
Application 13/194,739
Technology Center 3600
Before JENNIFER D. BAHR, GEORGE R. HOSKINS, and
BRENT M. DOUGAL, Administrative Patent Judges.
BAHR, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Hong Sun et al. (Appellants)2 appeal under 35 U.S.C. § 134(a) from
the Examiner's decision rejecting claims 60-80. We have jurisdiction under
35 U.S.C. § 6(b ).
We AFFIRM.
1 Legal representative for Richard Stevens ( deceased). See Assignment
attached to Statement Under 37 CPR 3.73(b) entered Oct. 12, 2011;
Application Data Sheet entered Nov. 2, 2011.
2 The Appeal Brief identifies Baker Hughes, a GE company, LLC as the real
party in interest. Appeal Br. 1.
Appeal2018-007508
Application 13/194,739
THE CLAIMED SUBJECT MATTER
Claim 60, reproduced below, is illustrative of the claimed subject
matter.
60. A method of fracturing a subterranean formation
compnsmg:
(a) introducing into a conduit in a well which
penetrates the subterranean formation an aqueous slickwater
fluid consisting essentially of (i) water; (ii) a friction reducer
consisting essentially of polyethylene oxide dispersed in a
polyol; (iii) a nonionic polymer selected from the group
consisting of non-derivatized guar, a guar derivative, xanthan, a
xanthan derivative, hydroxyethyl cellulose (HEC),
carboxymethyl hydroxyethyl cellulose (CMHEC),
carboxymethyl cellulose (CMC), dialkyl carboxymethyl
cellulose, locust bean gum, welan gum, karaya gum,
scleroglucan, diutan and mixtures thereof; and (iv) optionally, a
proppant, a clay stabilizer or both a proppant and a clay
stabilizer, wherein the weight ratio of the polyethylene oxide
and nonionic polymer in the aqueous slickwater fluid
is between 1:20 to 20: 1; and
(b) reducing friction of the aqueous slickwater fluid
with the polyethylene oxide as the aqueous slickwater fluid is
pumped through the conduit while protecting the polyethylene
oxide from shear degradation with the nonionic polymer.
REJECTIONS
The following rejections are before us for review:
I. Claims 60-70 and 72-79 under 35 U.S.C. § I03(a) as unpatentable
over McClaflin et al. (US 3,730,275, issued May 1, 1973,
hereinafter "McClaflin") and Ahrenst et al. (US 2008/0064614 Al,
published Mar. 13, 2008, hereinafter "Ahrenst");
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II. Claims 71and 80 under 35 U.S.C. § 103(a) as unpatentable over
McClaflin, Ahrenst, and Carville et al. (US 4,573,488, issued
Mar. 4, 1986, hereinafter "Carville").
DISCUSSION
Rejection 1-McClaflin and Ahrenst
Each of Appellants' independent claims 60, 69, and 75 requires an
aqueous slickwater fluid containing a friction reducing agent consisting
essentially of polyethylene oxide (PEO) dispersed in a polyol ( claim 60) or
in a slurry (claims 69 and 75) and a nonionic polymer that protects the PEO
from shear degradation as the aqueous slickwater fluid is introduced into a
well for fracturing a subterranean formation. Claims App. 1, 2--4. In
addressing claim 60, the Examiner finds that McClaflin discloses
introducing into a well an aqueous slickwater fluid containing, in pertinent
part, water and a friction reducing agent such as PEO or a nonionic polymer
such as guar gum. Final Act. 8. Likewise, with respect to claims 69 and 75,
the Examiner finds that McClaflin discloses pumping into the well an
aqueous slickwater fluid containing either a nonionic polymer, such as guar
gum, or a friction reducing agent comprising PEO. Id. at 10-11, 12. The
Examiner explains that McClaflin discloses including either PEO or guar
separately as friction reducers, but does not clearly disclose PEO and guar
"as a mixture together." Id. at 9, 11, 13. Thus, the Examiner relies on
Ahrenst for a teaching to provide PEO and guar together. See id. at 9-10,
11-12, 13-14 (citing Ahrenst ,r 14; id., cl. 5).
Based on Appellants' arguments, we decide the appeal of this
rejection on the basis of claims 60, 61, 65, 69, 75, and 76. See Appeal
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Br. 6-14. Claims 62---64 and 66-68 stand or fall with claim 60; claims 70
and 72-74 stand or fall with claim 69; claims 77-79 stand or fall with claim
75; and we address claims 61, 65, and 76 separately. See 37 C.F.R.
§ 4I.37(c)(l)(iv) (permitting the Board to select a single claim to decide the
appeal as to a single ground of rejection of a group of claims argued
together).
Claims 60, 62-64, and 66--68:
Appellants argue that McClaflin does not disclose that PEO is "an
effective friction reducer during pumping of a fluid through a wellbore."
Appeal Br. 8. This argument is not persuasive. McClaflin discloses, in the
Abstract, "[a] method of reducing the shear degradation when pumping
through conduits, such as well tubing during hydraulic fracturing
operations." McClaflin also addresses using the liquid as "a hydraulic
fracturing fluid for subterranean well formations." McClaflin 2:36-37.
Further, McClaflin is concerned about maintaining friction reduction
downstream of the pump. Id. 3:8-10. Ahrenst, likewise, addresses well
service applications such as fracturing. Ahrenst ,r 2. McClaflin discloses
that shear forces experienced by the liquid as it passes through a pump cause
a decrease in effectiveness of most, if not all, friction reducing additives that
are dissolved or uniformly dispersed in the main body of a liquid, and
McClaflin attempts to solve this problem by adding at least a portion of the
friction reducing additive in large chunks or granules rather than dissolving
it in the liquid. McClaflin 2:57---67. Thus, McClaflin's discussion of the
shear force problem is neither unique to PEO nor an indication that PEO is
ineffective as a friction reducer during pumping of a fluid through a
wellbore.
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Application 13/194,739
Appellants argue that Ahrenst mentions providing "mixtures" of
known conventional friction reducers (CPR), such as guar, a guar derivative,
and PEO, only in claim 5, which Appellants assert was added by amendment
and is not supported by the original specification of Ahrenst. Appeal Br. 10;
see id. n 1. This argument is unavailing because, whether supported in the
original disclosure or not, the teachings of claim 5 of Ahrenst are part of the
disclosure of Ahrenst and can be relied on as prior art as of the publication
date of the Ahrenst publication in March 2008, more than one year before
Appellants' filing date in July 2011.
Appellants additionally argue that, within the context of claim 5,
Ahrenst teaches adding a mixture of guar and PEO, as conventional friction
reducers (CPR), in addition to a cationic drag reducing surfactant and a drag
reduction enhancer comprising anionic carboxymethyl guar or
carboxymethyl hydroxypropyl guar. Appeal Br. 9. Appellants point out that
Appellants' claims "do not recite a cationic surfactant." Id. To the extent
that this is an argument that the combination proposed by the Examiner does
not satisfy the limitation in claim 60 that the slickwater fluid consists
essentially of water, a friction reducer consisting essentially of PEO
dispersed in a polyol, and a nonionic polymer, the argument is unavailing
because it attacks Ahrenst individually, rather than the combination. The
Examiner does not propose using the Suspension Friction Reducing fluid
(SFR fluid) disclosed by Ahrenst in place of the low friction loss liquid of
McClaflin. Rather, the Examiner proposes to incorporate Ahrenst's teaching
of using mixtures of conventional friction reducers, such as PEO and guar,
in McClaflin as the friction loss or drag reducing additive. See Final Act. 9.
Moreover, Appellants' Specification discloses that the fracturing fluid
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composition of Appellants' invention may include anionic, cationic, or
zwitterionic surfactant, in addition to the nonionic polymer or PEO. Spec.
,r 17. Thus, the presence of a cationic surfactant would not materially affect
the basic and novel characteristics of Appellants' claimed invention, which
Appellants describe as including effective friction reduction and sufficient
viscosity for proppant-carrying capacity, while being safe and
environmentally friendly. Id. ,r,r 13, 14. See PPG Industries v. Guardian
Industries Corp., 156 F.3d 1351, 1354 (Fed. Cir. 1998) (explaining that
"[b ]y using the term 'consisting essentially of,' the drafter signals that the
invention necessarily includes the listed ingredients and is open to unlisted
ingredients that do not materially affect the basic and novel properties of the
invention"); In re Herz, 537 F.2d 549, 551-52 (CCPA 1976) (explaining that
"the phrase 'consisting essentially of' limits the scope of a claim to the
specified ingredients and those that do not materially affect the basic and
novel characteristic(s) of a composition" and stating that "in construing the
phrase 'consisting essentially of' in [ an applicant's] claims, it is necessary
and proper to determine whether [the] specification reasonably supports a
construction" that would exclude or include particular components). Thus,
the "consisting essentially of' language in claim 60 does not exclude the
presence of a cationic surfactant.
Appellants argue that Ahrenst does not teach the PEO being
"dispersed in a polyol," as recited in claim 60. Reply Br. 4--5. In particular,
Appellants argue that Ahrenst teaches PEO as a CPR, not as a drag reduction
enhancer or a drag reducing surfactant, and Ahrenst does not mention the
CPR being in a solvent, much less being dispersed in a polyol, as recited in
claim 60. Id. (emphasizing that paragraph 70 of Ahrenst states that
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"'suitable components of the SFR fluids' such as 'drag reducing surfactants,
polymeric and monomeric drag reduction enhancers' can be used as pure
form or in a solvent which may be glycerine"). Specifically, paragraph 70 of
Ahrenst states:
Suitable components of the SFR fluids of the invention
are described below. The materials listed as being suitable for
use in the invention, such as the drag reducing surfactants,
polymeric and monomeric drag reduction enhancers, can be
used as pure compounds. However, when they are obtained
commercially, they are almost always obtained as concentrates
that include additives such as solvents, water, co-solvents such
as IP A, glycerine, propylene glycol and others. Amounts of
materials suitable for use in the invention, such as drag
reducing surfactants, polymeric and monomeric drag reduction
enhancers, are given for "pure" compounds (the active
components of the concentrates) but it is to be understood that
in most cases they will be obtained in the form of concentrates,
accompanied by other components such as co-solvents such as
IP A, glycerine, propylene glycol and the like.
Ahrenst also discloses that "the SFR fluid may also comprise a CPR
polymeric drag reducing agent, such as guar, guar derivative, polyethylene
oxide, polyacrylamide or poly AMPS or a derivative thereof." Ahrenst ,r 14.
In other words, in addition to the drag reducing surfactants and polymeric
and monomeric drag reduction enhancers, Ahrenst describes a CPR
polymeric drag reducing agent, such as PEO, as a suitable component of the
SFR fluid. Ahrenst does not expressly refer to the CPR components of the
SFR fluid in paragraph 70, but also does not exclude them. The Examiner's
interpretation of Ahrenst' s comments about how these types of compounds
are generally obtained commercially as applying equally to the conventional
friction reducers as to the drag reducing surfactants and polymeric and
monomeric drag reduction enhancers (Ans. 6; Final Act. 9) appears
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reasonable, and Appellants offer no evidence or technical explanation to
show why a person having ordinary skill in the art would expect the CPR
compounds to be available commercially in a different form than the
compounds used for the drag reducing surfactants and polymeric and
monomeric drag reduction enhancers.
Appellants argue that Ahrenst gives no indication "that a CPR guar or
cellulosic derivative inhibits the degradation of a CPR polyethylene oxide."
Appeal Br. 10. This argument is not persuasive because a conclusion of
obviousness does not require that the prior art suggest the combination to
achieve the same advantage or result discovered by an applicant. See In re
Kahn, 441 F.3d 977, 987 (Fed. Cir. 2006). "In determining whether the
subject matter of a patent claim is obvious, neither the particular motivation
nor the avowed purpose of the patentee controls. What matters is the
objective reach of the claim. If the claim extends to what is obvious, it is
invalid under§ 103." KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398, 419-20
(2007). Whether Ahrenst recognized that a CPR guar or guar derivative
would inhibit the degradation of a CPR PEO when a mixture of both CPR
guar or guar derivative and CPR PEO is added to an aqueous fluid is
immaterial to the conclusion of obviousness. See, e.g., Toro Co. v. Deere &
Co., 355 F.3d 1313, 1321 (Fed. Cir. 2004) (stating that "the fact that a
characteristic is a necessary feature or result of a prior-art embodiment (that
is itself sufficiently described and enabled) is enough for inherent
anticipation, even if that fact was unknown at the time of the prior
invention"). "The inherent teaching of a prior art reference, a question of
fact, arises both in the context of anticipation and obviousness." In re
Napier, 55 F.3d 610, 613 (Fed. Cir. 1995) (citation omitted).
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Appellants argue that Ahrenst teaches that PEO is an effective drag
reducing enhancer when the drag reducing surfactant is zwitterionic or
amphoteric, but claim 60 does not include a zwitterionic or amphoteric
surfactant. Appeal Br. 11. This argument is not persuasive because, as the
Examiner explains (Ans. 6), the statement in paragraph 121 of Ahrenst
relates to low molecular weight polymers, not the high molecular weight
PEO that Ahrenst refers to as a CPR. See Ahrenst ,r,r 3, 9, 14, 121; id., cl. 5.
Moreover, as discussed above, given the disclosure in paragraph 17 of
Appellants' Specification that the fracturing fluid composition of
Appellants' invention may include anionic, cationic, or zwitterionic
surfactant, in addition to the nonionic polymer or PEO, the presence of an
anionic, cationic, or zwitterionic surfactant would not materially change the
basic and novel properties of the claimed fluid. Thus, the "consisting
essentially of' language of claim 60 does not exclude them.
Appellants also argue that "[t]he Examiner has not provided any basis
upon which he concludes it would have been []obvious" to modify
McClaflin to include mixtures of PEO and guar having the weight ratio
recited in claim 60. Appeal Br. 12-13. According to Appellants, the
Examiner's conclusion that it would have been obvious to modify McClaflin
to include "a 1: 1 mixture of guar and polyethylene oxide is pure non-
supported conjecture." Id.; see Final Act. 9.
The Examiner responds that because guar and PEO are disclosed in
the prior art (both Ahrenst and McClaflin) as equivalents, "it would have
been obvious to include 'mixtures thereof of about 1: 1 ... , which is within
the range of 1:20 to 20: 1" recited in claim 60. Ans. 9 ( citing Non-Final
Action dated Jan. 26, 2015 (hereinafter "Non-Final Action" or "Non-Final
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Act."), p. 9). In the Non-Final Action, the Examiner found that Ahrenst "is
silent to the exact weight ratios of guar/guar derivative to polyethylene
oxide." Non-Final Act. 9. However, the Examiner also found that
Appellants' Specification does not show any criticality to the claimed range.
Id. (citing Spec. ,r,r 26, 28, 61---64). The following quotation from In re
Woodruff, 919 F.2d 1575, 1578 (Fed. Cir. 1990), is applicable here:
The law is replete with cases in which the difference
between the claimed invention and the prior art is some range
or other variable within the claims. [ citations omitted] These
cases have consistently held that in such a situation, the
applicant must show that the particular range is critical,
generally by showing that the claimed range achieves
unexpected results relative to the prior art range.
Appellants do not specifically point out any error in the Examiner's
findings regarding lack of criticality, nor do they apprise us of any flaw in
the Examiner's reasoning or conclusion regarding the weight ratios.
For the above reasons, Appellants' arguments do not apprise us of
error in the rejection of claim 60. Accordingly, we sustain the rejection of
claim 60, as well as claims 62---64 and 66---68, which fall with claim 60.
Claims 69, 70, and 72-74:
Independent claim 69 differs from claim 60, in that claim 69 recites an
aqueous slickwater fluid containing (not consisting essentially of) a nonionic
polymer and a friction reducing agent consisting essentially of PEO, and in
that claim 69 recites that the PEO is dispersed in a slurry ( rather than in a
polyol, as in claim 60). Claims App. 2-3. Further, claim 69 does not recite
a weight ratio of PEO to nonionic polymer. Id.
To the extent that the arguments discussed above are applicable to
claim 69, they fail to apprise us of error for the reasons discussed above.
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Appellants also argue that McClaflin "does not reference an aqueous
slickwater fracturing fluid consisting essentially of polyethylene oxide."
Appeal Br. 12. This argument is unavailing because claim 69 does not recite
an aqueous slickwater fracturing fluid consisting essentially of polyethylene
oxide. See In re Self, 671 F.2d 1344, 1348 (CCPA 1982) (limitations not
appearing in the claims cannot be relied upon for patentability).
Further, Appellants argue that McClaflin "does not reference the
friction reducing agent being dispersed in a slurry," but, rather, discloses
"the friction reducing agent in 'chunk form' which 'passes through the
pump' in chunk form." Appeal Br. 12. In response, the Examiner states
that "mixing the chunk form friction reducing agent into a fluid provides it
'dispersed in a slurry,' based on the plain and ordinary definitions of
'dispersed' and 'slurry."' Ans. 8. Appellants do not point out error in the
Examiner's position, which appears reasonable based on McClaflin's
description, or explain why the chunks of friction reducing additive, once
introduced into the aqueous liquid, would not satisfy the "dispersed in a
slurry" limitation of claim 69. See McClaflin 2:64---67 (disclosing that "at
least a portion of the friction loss additive was not dissolved in the liquid
being transported but rather added thereto in relatively large chunks or
granules"), 3:6-8 (describing "the slowly-dissolving friction reducing agent
pass[ing] through the pump at least partially in chunks or granules"), 4:37-
39 (disclosing that "[t]he particle size in which the friction reducing additive
is used depends on its rate of solubility in the liquid in which it is added").
For the above reasons, Appellants do not apprise us of error in the
rejection of claim 69. Accordingly, we sustain the rejection of claim 69, as
well as claims 70 and 72-74, which fall with claim 69.
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Claims 75 and 77-79:
Appellants' arguments for independent claim 7 5 are similar to those
asserted against the rejections of claim 60 and 69, discussed above. Appeal
Br. 12. For essentially the reasons set forth above, these arguments fail to
apprise us of error in the rejection of claim 75. Accordingly, we sustain the
rejection of claim 75, as well as the rejection of claims 77-79, which fall
with claim 75.
Claims 61 and 76:
Claims 61 and 76, which depend from claims 60 and 75, respectively,
recite a weight ratio of PEO to the nonionic polymer "between 1: 5 to 5: 1."
Claims App. 1, 4. Appellants' argument, and the Examiner's response
thereto, are substantially the same as for the weight ratio recited in claim 60.
See Appeal Br. 13-14; Ans. 9. Our analysis of the weight ratio issue above
in regard to claim 60 is equally applicable to the weight ratio limitation of
claims 61 and 7 6. Thus, for essentially the reasons set forth above,
Appellants fail to apprise us of error in the rejection of claims 61 and 76,
which we, thus, sustain.
Claim 65:
Claim 65 recites that "the amount of polyethylene oxide in the
aqueous slickwater fluid is between from about 0.05 to about 0.2 weight
percent." Claims App. 2. The Examiner finds that Ahrenst teaches that the
total amount of active polymeric drag reduction enhancer in the fluid is
preferably no more than about 0.2 weight percent, and more preferably no
more than about 0.05 weight percent. Final Act. 16 ( citing Ahrenst ,r 67).
The Examiner also finds that McClaflin discloses the claimed range with the
teaching of a 0.1 weight percent in the Table in column 4. Ans. 9. Given
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these friction/drag reduction additive weight percentage teachings by
McClaflin and Ahrenst, the Examiner determines it would have been
obvious to provide an amount of polyethylene oxide within the claimed
range, "in order to provide friction reduction, and because it has been held
'[W]here the general conditions of a claim are disclosed in the prior art, it is
not inventive to discover the optimum or workable ranges by routine
experimentation.'" Final Act. 16 (citing In re Aller, 220 F.2d 454, 456
(CCPA 1955)).
Appellants argue that Ahrenst "does not teach the elements of the
claims," and, thus, the routine optimization rationale is not applicable.
Appeal Br. 14. Appellants' argument that Ahrenst does not teach the
elements of claim 65 attacks Ahrenst individually, rather than the
combination of McClaflin and Ahrenst set forth in the rejection. Given the
ranges of total friction/drag reduction additive weight percentages taught by
McClaflin and Ahrenst, selecting the particular weight percentage of the
total friction/drag reduction additive weight percentage allotted to the
polyethylene oxide would seem to involve no more than routine
optimization to achieve the desired drag reduction.
Appellants do not apprise us of error in the rejection of claim 65,
which we, thus, sustain.
Rejection 11-McClaflin, Ahrenst, and Carville
Claims 71 and 80 recite that the amount of PEO "in the aqueous
slickwater fluid is between 20 to 100 ppm." Claims App. 3, 4. The
Examiner finds that McClaflin is "silent to the exact range" claimed, but
determines it would have been obvious to provide PEO in the claimed
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amount as a matter of routine optimization. Final Act. 18. The Examiner
also cites Carville as providing "evidence that it is well-known to utilize
friction reducing polymers in the claimed concentration range." Id. at 18-19
(citing Carville 2:24--39).
Appellants argue, persuasively, that Carville's teachings are directed
to petroleum-based fluids, not to slickwater fluids, or even aqueous fluids,
and thus are not particularly relevant to the amount of PEO in the aqueous
slickwater fluid claimed by Appellants. Appeal Br. 15; see Carville 1: 5-7,
39--42.
The Examiner also reasons, however, that it would have been obvious
to include "less friction reducer than in McClaflin (i.e., [less than]
1000 ppm), in the case less friction reduction was required, in order to cut
down on material costs." Final Act. 19. Appellants' only response to this
rationale is to state that McClaflin "provides no evidence of the use of
polyethylene oxide in an aqueous slickwater fluid." Appeal Br. 15.
McClaflin does not use the terminology "slickwater fluid." McClaflin
passim. McClaflin discloses "aqueous-based liquids include[ing] water,
brine, ... and the like," wherein "the liquid is a hydraulic fracturing fluid for
subterranean well formations." McClaflin 2:29-30, 36-37. Appellants'
Specification states that "[ s ]lickwater fluids are basically fresh water or
brine having sufficient friction reducing agent to minimize the tubular
friction pressures" and "slickwater fracturing is a type of hydraulic
fracturing that uses a low viscosity aqueous fluid to induce the subterranean
fracture." Spec. ,r 3. Appellants fail to persuade us that McClaflin's
aqueous-based hydraulic fracturing fluid is not a "slickwater fluid" as
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described in the Specification and as understood by those of ordinary skill in
the art.
Thus, Appellants do not apprise us of error in the rejection of claims
71 and 80, which we, thus, sustain.
DECISION
The Examiner's decision rejecting claims 60-80 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). See 37 C.F.R.
§ 1.136(a)(l )(iv).
AFFIRMED
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