Ex Parte Touzalin et al

Patent Trial and Appeal Board

Sep 25, 2018

14415187 (P.T.A.B. Sep. 25, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/415,187 01/16/2015
23599 7590 09/27/2018
MILLEN, WHITE, ZELANO & BRANIGAN, P.C.
2200 CLARENDON BL VD.
SUITE 1400
ARLINGTON, VA 22201
Olivier Touzalin
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.
PET-2990 3560
EXAMINER
STEIN, MICHELLE
ART UNIT PAPER NUMBER
1771
NOTIFICATION DATE DELIVERY MODE
09/27/2018 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):
docketing@mwzb.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Exparte OLIVIER TOUZALIN, PHILIBERT LEFLAIVE,
DIAMANTIS ASTERIS, DELPHINE LARGETEAU,
and JEAN-LUC NOCCA
Appeal2017-010357
Application 14/415, 187
Technology Center 1700
Before MICHAEL P. COLAIANNI, GEORGE C. BEST, and
N. WHITNEY WILSON, Administrative Patent Judges.
COLAIANNI, Administrative Patent Judge.
DECISION ON APPEAL
Appellants 1 appeal under 35 U.S.C. § 134 the non-final rejection of
claims 1-14. We have jurisdiction over the appeal pursuant to 35 U.S.C.
§ 6(b).
We AFFIRM. Because our affirmance relies upon additional factual
determinations and reasoning, we designate our affirmance as constituting
NEW GROUNDS OF REJECTION PURSUANT TO 37 C.F.R. § 41.50(b).
1 Appellants identify the real party in interest as IFP Energies nouvelles.
Appeal Br. 1.
Appeal2017-010357
Application 14/415,187
Appellants' invention is directed to a process for the desulphurization
of gasoline comprising diolefins, olefins, and mercaptans, while minimizing
hydrogen consumption and preserving the octane number (Spec. 1: 1--4).
Claim 1 is illustrative ( emphasis added):
1. A process for the treatment of a gasoline comprising
diolefins, olefins and sulphur containing compounds including
mercaptans, said process comprising the following steps:
a) carrying out a step for demercaptanization by addition
reaction of at least a portion of the mercaptans contained in the
gasoline with the olefins contained in the gasoline by bringing
the gasoline into contact with at least one first catalyst, at a
temperature in the range 50°C to 250°C, at a pressure in the
range 0.4 to 5 MPa and with a liquid hourly space velocity
(LHSV) in the range 0.5 to 10 h-1, the first catalyst being in the
sulphide form and comprising a first support, at least one metal
selected from group VIII and at least one metal selected from
group VIb of the periodic classification of the elements, the first
catalyst having the following characteristics:
• a support constituted by a gamma alumina with a
specific surface area in the range 180 m2/g to 270 m2/g;
• the quantity of metal from group VIb, expressed in
the oxide form, is in the range 4% to 20% by weight with
respect to the total catalyst weight;
• the quantity of metal from group VIII, expressed in
the oxide form, is in the range 3 % to 15% by weight with
respect to the total catalyst weight;
• the molar ratio between the metal from group VIII
and the metal from group VIB is in the range 1 to 2.5 mol/mol;
b) in a distillation column, carrying out fractionation
of the gasoline obtained from step a) into at least one first
intermediate light gasoline cut with a total sulphur content
below that of the starting gasoline and a second intermediate
heavy gasoline cut containing the major proportion of the
starting sulphur-containing compounds;
2
Appeal2017-010357
Application 14/415,187
c) introducing a stream of hydrogen and at least the
second intermediate heavy gasoline cut obtained from step b)
into a catalytic distillation column ( 14) comprising at least one
reaction zone (15) including at least one second catalyst in the
sulphide form comprising a second support, at least one metal
from group VIII and a metal from group VIb, with the
quantity of metal from group VIII, expressed as the oxide, in
the range 0.5% to 25% by weight with respect to the weight of
catalyst and with the quantity of metal from group VIb,
expressed as the oxide, in the range 1.5% to 60% by weight
with respect to the weight of catalyst, the conditions in the
catalytic distillation column being selected so as to bring the
second intermediate heavy gasoline obtained from step b) into
contact, in the presence of hydrogen, with the second catalyst
in order to decompose the sulphur-containing compounds into
H2S, contact of the second intermediate heavy gasoline cut
with the second catalyst being carried out at a pressure in the
range O .1 to 4 MP a and at a temperature in the range 210°C to
350°c·
'
d) evacuating at least one final light gasoline fraction
comprising H2S and a desulphurized heavy gasoline fraction
from the catalytic distillation column, the final light gasoline
fraction being evacuated at a point located above the reaction
zone and the desulphurized heavy gasoline fraction being
evacuated at a point located below the reaction zone.
Appellants appeal the following rejections:
1. Claims 1-11 are rejected under 35 U.S.C. § I03(a) as
unpatentable over Heam et al. (US 5,597,476, issued Jan. 28, 1997,
"Heam '476") in view ofMontillet et al. (FR 2935389, published May
3, 2010, and relying on a translation dated May 31, 2016, "Montillet")
as evidenced by, or alternatively in further view of, Bouchy et al. (US
2007/0173674 Al, published July 26, 2007, "Bouchy") and Heam et
al. (US 2001/0050245 Al, published Dec. 13, 2001, "Heam 2001").
3
Appeal2017-010357
Application 14/415,187
2. Claims 12-14 are rejected under 35 U.S.C. § I03(a) as unpatentable
over Heam '476 in view ofMontillet as evidenced by, or alternatively in
further view of, Bouchy and Heam 2001, and in further view of Boyer et al.
(US 2006/0180502 Al, published Aug. 17, 2006, "Boyer").
FINDINGS OF FACT & ANALYSIS
The Examiner finds, inter alia, that Bouchy and Heam 2001 provide
evidence or teach that mono-olefins present in the process of Heam '4 7 6,
modified by Montillet's demercaptanization catalyst and reaction conditions,
would also react with mercaptans to create sulfides (Ans. 5---6).
Appellants argue that claim 1 is distinguished from the applied prior
art because "Heam [ '4 7 6] uses different reaction conditions and a distinct
catalyst from that defined in the claimed invention" (Appeal Br. 9).
Appellants further argue that "the catalyst used in the Heam 2001 process is
distinct from that used in the claimed method, so it cannot be concluded that
the same result as obtained in the claimed process would inherently result."
Id. at 11.
The Examiner responds by finding that "Heam '4 7 6 teaches 2-5%
cobalt and 5-20% molybdenum on alumina support or 21.5% molybdenum
and 3.5% nickel on alumina support as the catalyst" (Ans. 10 (citing Heam
'4 7 6 Table III)).
Appellants, however, are correct in noting that the catalysts discussed
in Table III of Heam '476 are directed to the hydrodesulfurization catalyst
used in step d) (Reply Br. 2). Thus, we agree with Appellants that Table III
of Heam '4 7 6 is not dispositive with respect to any teaching or suggestion of
the claimed demercaptanization step a). Furthermore, Appellants
4
Appeal2017-010357
Application 14/415,187
persuasively argue that the "Heam 2001 catalyst is a reduced nickel catalyst
... and not a bimetallic catalyst with a certain ratio of Group VIII and Group
Vlb metals, as in the claimed method." Id. at 12 ( citing Heam 2001 ,r 11 ).
Although the Examiner finds that the catalyst and reaction conditions
recited in the demercaptanization step a) of claim 1 read on or overlap the
catalyst and reaction conditions resulting from the combined teachings of
Heam '476's and Montillet's disclosed demercaptanization steps, the
Examiner admits that "Montillet does not address whether or not the
mercaptans are reacted with the mono-olefins" (Ans. 11 ). The Examiner
finds, however, that "Bouchy teaches the same catalyst as Montillet at the
same conditions with the same gasoline feed results in reaction of mono-
olefins with mercaptans." Id. ( citing Bouchy ,r,r 22-35). Thus, the
Examiner concludes that "it is expected that the Montillet catalyst would
also result in reaction of mono-olefins with mercaptans." Id.
Appellants argue, inter alia, that Bouchy fails to provide evidence or
suggest that Montillet's demercapatanization catalyst and reaction condition
would facilitate the reaction of mono-olefins with mercaptans because
"Bouchy teaches a catalyst which has[] the molar ratio between the metal
from group VIII and the metal from group VIB[] in the range 0.2 to 0.5
mol/mol" (Appeal Br. 11 ).
The preponderance of the evidence favors Appellants' argument
because Montillet teaches that the catalyst ratio VIII:VIb is 0.6 to 3 mol/mol,
which does not overlap the range disclosed by Bouchy (Montillet 7).
Furthermore, Bouchy's VIII:VIb catalyst ratio (i.e., 0.2 to 0.5 mol/mol) fails
to overlap the VIII: VIb range recited in claim 1 of 1 to 2.5 mol/mol.
5
Appeal2017-010357
Application 14/415,187
The Examiner has the initial burden of establishing a prima facie case
of obviousness based on an inherent or explicit disclosure of the claimed
subject matter under 35 U.S.C. § 103. In re Oetiker, 977 F.2d 1443, 1445
(Fed. Cir. 1992) ("[T]he examiner bears the initial burden, on review of the
prior art or on any other ground, of presenting a prima facie case of
unpatentability."). To establish a prima facie case of obviousness, the
Examiner must show that each and every limitation of the claim is described
or suggested by the prior art or would have been obvious based on the
knowledge of those of ordinary skill in the art. In re Fine, 837 F.2d 1071,
1074 (Fed. Cir. 1988).
In this instance, the Examiner has not shown that the claimed
VIII: VIb catalyst ratio, particularly for facilitating the reaction of mono-
olefins with mercaptans, was taught or suggested by the cited prior art. As
set forth above, Bouchy's bimetallic catalyst does not teach a ratio falling
within the claimed ratio range.
In sum, Appellants have persuasively argued that the facts and reasons
relied on by the Examiner are insufficient to establish a prima facie case of
obviousness as to independent claim 1.
Therefore, on this record, we cannot sustain the Examiner's§ 103(a)
rejections.
NEW GROUNDS OF REJECTION
1. We reject claims 1-11 under 35 U.S.C. § 103(a) as unpatentable over
Heam '476 in view ofMontillet as evidenced by, or alternatively in further
view of, Bouchy and Heam 2001.
6
Appeal2017-010357
Application 14/415,187
2. Claims 12-14 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Heam '476 in view ofMontillet as evidenced by, or alternatively in
further view of, Bouchy and Heam 2001, and in further view of Boyer.
We adopt the Examiner's findings on pages 3- 9 of the Answer. We
add the following findings and analysis to address the obviousness of the
subject matter of claim 1, including Bouchy's teachings regarding the
catalyst ratio VIII:VIb.
There is no dispute that Bouchy teaches a catalyst in which the molar
ratio between the metal from group VIII and the metal from group VIB is in
the range 0.2 to 0.5 mol/mol, whereas Montillet teaches that the catalyst
ratio VIII:VIb is 0.6 to 3 mol/mol (see Appeal Br. 11; Montillet 7)
We find that one of ordinary skill in the art would have understood
that the difference between Bouchy's catalyst ratio VIII:VIb of 0.5 mol/mol
and Montillet's catalyst ratio VIII:VIb of 0.6 mol/mol may result from
differences in the amount of VIb catalyst in the bimetallic catalyst. In view
of Bouchy's teachings (e.g., Bouchy ,r 34), we determine that it would have
been obvious for the ordinary skilled artisan at the time of the invention to
have varied the concentration of the VIb metal in the catalyst in Montillet's
bimetallic catalyst to adjust for the selective reaction of mercaptans and
mono-olefins in the claimed demercaptanization step a) and arrive at a
catalyst with a molar ratio of VIII: VIb metals within the claimed ratio range.
Indeed, Montillet's molar ratio range of VIII:VIb overlaps with the claimed
range. Thus, Appellants have the burden of showing that the process of
Heam '476, modified by Montillet's demercaptanization catalyst and
reaction conditions, in view of Bouchy, does not possess the capability of
catalyzing reactions between mercaptans and mono-olefins to create
7
Appeal2017-010357
Application 14/415,187
sulfides. See also In re Best, 562 F.2d 1252, 1255 (CCPA 1977) (explaining
that "[ w ]here ... the claimed and prior art products are identical or
substantially identical, or are produced by identical or substantially identical
processes, the PTO can require an applicant to prove that the prior art
products do not necessarily or inherently possess the characteristics of his
claimed product."). Indeed, Montillet teaches a process where diolefins are
hydrogenated to mono-olefins and the mono-olefins are subsequently
reacted with mercaptans (Montillet as translated 8).
DECISION
The Examiner's decision is affirmed.
We enter new grounds of rejection pursuant to 37 C.F.R. § 4I.50(b).
Rule 4I.50(b) provides "[a] new ground of rejection pursuant to this
paragraph shall not be considered final for judicial review." This rule also
provides:
When the Board enters such a non-final decision, the
appellant, within two months from the date of the decision,
must exercise one of the following two options with respect to
the new ground of rejection to avoid termination of the appeal
as to the rejected claims:
( 1) Reopen prosecution. Submit an
appropriate amendment of the claims so rejected or new
Evidence relating to the claims so rejected, or both, and
have the matter reconsidered by the examiner, in which
event the prosecution will be remanded to the examiner.
The new ground of rejection is binding upon the
examiner unless an amendment or new Evidence not
previously of Record is made which, in the opinion of the
examiner, overcomes the new ground of rejection
designated in the decision. Should the examiner reject
8
Appeal2017-010357
Application 14/415,187
the claims, appellant may again appeal to the Board
pursuant to this subpart.
(2) Request rehearing. Request that the
proceeding be reheard under § 41.52 by the Board upon
the same Record. The request for rehearing must address
any new ground of rejection and state with particularity
the points believed to have been misapprehended or
overlooked in entering the new ground of rejection and
also state all other grounds upon which rehearing is
sought.
Further guidance on responding to a new ground of rejection can be
found in the Manual of Patent Examining Procedure (MPEP) § 1214.01.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
37 C.F.R. § 4I.50(b)
9