Ex Parte Van Westrenen et al

Patent Trial and Appeal Board

Jul 31, 2015

12743280 (P.T.A.B. Jul. 31, 2015)

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.
12/743,280 06/29/2010 Jeroen Van Westrenen TS 1997 USA P 2269
23632 7590 07/31/2015
SHELL OIL COMPANY
P O BOX 2463
HOUSTON, TX 77252-2463
EXAMINER
NGUYEN, TAM M
ART UNIT PAPER NUMBER
1772
MAIL DATE DELIVERY MODE
07/31/2015 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 JEROEN VAN WESTRENEN,1
Leslie Andrew Chewter, and Ferry Winter
________________

Appeal 2013-007600
Application 12/743,280
Technology Center 1700
________________

Before ROMULO H. DELMENDO, JEFFREY T. SMITH, and
MARK NAGUMO, Administrative Patent Judges.

NAGUMO, Administrative Patent Judge.

DECISION ON APPEAL
Jeroen Van Westrenen, Leslie Andrew Chewter, and Ferry Winter
(“Shell”) timely appeal under 35 U.S.C. § 134(a) from the final rejection2 of
claims 1–12, which are all of the pending claims. We have jurisdiction.
35 U.S.C. § 6. We affirm.

1 The real party in interest is listed as Shell Oil Company (“Shell”).
(Appeal Brief, filed 3 December 2012 (“Br.”), 2.)
2 Office action mailed 3 July 2012 (“Final Rejection”; cited as “FR”).
Appeal 2013-007600
Application 12/743,280

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OPINION
A. Introduction3
The subject matter on appeal relates to processes for converting
oxygenates (e.g., methanol, dimethyl ether) to olefins, with a molar ratio of
ethylene (C2H4) to propylene (C3H6) of at least 0.5 (1:2). Selectivity for
ethylene production is said to be desired. (Spec. 2, ll. 12–17.) The claimed
process is said to yield benefits of more economical implementations,
including temperature control, catalyst deactivation, and solids handling.
(Id. at 3, ll. 3–9.)
Claim 1 is representative of the dispositive issues and reads:
A process for converting an oxygenate to an olefin-containing
product, wherein
oxygenate is contacted with an oxygenate conversion
catalyst
to convert the oxygenate to an olefin-containing product,
which contains ethylene and propylene with a molar
ethylene/propylene ratio of at least 0.5,
in a reactor system comprising
two or more serially arranged riser reactor stages
to obtain a riser reactor effluent from each stage, wherein
each riser reactor stage comprises
a single riser reactor or
a plurality of parallel riser reactors,

3 Application 12/743,280, Process for converting an oxygenate into an
olefin-containing product, and reactor system, filed 29 June 2010 as the
national stage of PCT/EP08/65872, filed 19 November 2008, claiming the
benefit of six applications filed in the EPO on 19 November 2007. We refer
to the “ʼ280 Specification,” which we cite as “Spec.”
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such that at least part of the riser reactor effluent of a
preceding riser reactor stage is fed into a subsequent riser
reactor stage, and wherein
oxygenate is added to a plurality of the riser reactor stages.
(Claims App., Br. 5; indentation, paragraphing, and emphasis added.)
The Examiner maintains the following ground of rejection:4
Claims 1–12 stand rejected under 35 U.S.C. § 103(a) in view of the
combined teachings of Xu5 and Van Dijk.6
B. Discussion
Findings of fact throughout this Opinion are supported by a
preponderance of the evidence of record.
Initially, we find that Shell has raised substantive arguments only for
the patentability of claim 1. (Br. 3.)7 All claims therefore stand or fall with
claim 1.
The only criticism raised by Shell is that “there is no teaching or
suggestion in the Xu reference of producing an olefin product containing
ethylene and propylene with a molar ethylene/propylene ratio of at
least 0.5.” (Id. at ll. 13–15.) Shell adds that “[t]he Examiner has provided
no detailed argument as to how Xu teaches or suggests an
ethylene/propylene ration [sic] of at least 0.5.” (Id. at ll. 17–18.)

4 Examiner’s Answer mailed 26 April 2013 (“Ans.”).
5 Teng Xu and Stephen Neil Vaughn, Increasing ethylene and/or propylene
production in an oxygenate to olefins reaction systems, U.S. Patent
Application Publication 2006/0135834 A1 (2006).
6 Christiaan P. Van Dijk, Conversion of methanol to gasoline,
WO 96/15082 (1996).
7 Shell did not file a Reply Brief.
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Shell does not dispute the Examiner’s finding that Xu teaches that the
olefin product can selectively be ethylene or propylene. (FR 4, ll. 5–6, citing
Xu, abstract, [0017], and [0030].) Nor does Shell dispute the Examiner’s
finding (Ans. 3, ll. 18–19, citing Xu 10 [0106], which is illustrated by Xu,
Fig. 2 (not reproduced here)) that in Example 3, Xu describes a multi-stage
conversion of methanol (MeOH) to olefin product, which is described as
“rich in ethylene and/or propylene” (Xu [0106], last sentence). Nor does
Shell dispute the Examiner’s findings that Xu describes riser reactors as a
“preferred reactor type” (FR 3, citing Xu 7 [0076]), and that Xu describes
options in which the oxygenate stream is split into portions and introduced at
a multiplicity of locations along the length of the reactor (id. at 3, citing
Xu 8 [0082]).
It is well settled that, when the Examiner provides a reasonable basis
to conclude that a prior art reference describes or suggests a process (more
generally, the claimed subject matter), the burden shifts to the Applicant to
come forward with evidence and argument demonstrating that the
Examiner’s conclusion is not supported by a preponderance of the evidence
of record, or that the reasoning is flawed in some other way. See, e.g., In re
Spada, 911 F.2d 705, 707 n.3 (Fed. Cir. 1990) (“The prima facie case is a
procedural tool which, as used in patent examination (as by courts in
general), means not only that the evidence of the prior art would reasonably
allow the conclusion the examiner seeks, but also that the prior art compels
such a conclusion if the applicant produces no evidence or argument to rebut
it.”)
Claim 1 covers a very broad range of processes. Aside from the serial
riser-reactor structure and the oxygenate being added to more than one
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reactor stage, claim 1 recites only that the oxygenate be contacted with a
catalyst, as conditions that must be satisfied in addition to the
ethylene/propylene ratio. Moreover, the range of products is not otherwise
constrained. Thus, any process conducted in a serial riser-reactor with
addition of oxygenate in two or more riser stages that produces at least half
as much ethylene as propylene, even as a small fraction of the total product,
is covered by claim 1.
The disclosure of catalysts useful in the presently claimed invention,
in the ʼ280 Specification, as in Xu, is not particularly constrained.
The ʼ280 Specification provides four “examples,” one of which
(Example 2), is comparative. These examples, however, are all reports of
“model calculations of various reactor systems” (Spec. 37, ll. 7–8) based on
the kinetic reaction network illustrated in Figure 4 (not reproduced here)
(id. at ll. 9–10). Parameters for the network of chemical reactions are said to
have been based on experiments using dimethyl ether and methanol over
ZSM-23 (id. at ll. 28–31), where ZSM-23 is said to be an “MTT”-type
molecular-sieve zeolite oxygenation catalyst. (Id. at 12, ll. 10–13.) The
numerical results reported in Tables 1–4 (id. at 39, 40, 43, and 44) were
obtained using the “Aspen Custom Modeller”—apparently a commercially
available program—as well as “proprietary software routines.” (Id. at 37,
l. 33, to 34, l. 2.) Sole Comparative Example 2 is based on a “single
isothermal plug flow reactor,” (id. at 39, ll. 15–16), which has only a single
stage (see Fig.6, not reproduced here).
If there are more conditions required to ensure the production of
ethylene and propylene in a molar ratio at least 1:2 than are recited in
claim 1, the nature of those conditions is obscure. In any event, the
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enablement of the claimed invention has not been challenged, and we
perceive no reasonable challenge on the basis of the present record. More
importantly, the ʼ280 Specification does not provide evidence that the
achievement of the minimum 1:2 ethylene: propylene ratio was regarded by
those having ordinary skill in the art as unachievable with then-known
methods.
Accordingly, we are not persuaded of any basis to conclude that the
Examiner erred harmfully in concluding that conducting a conversion of
oxygenates to olefins in a serial riser reactor system, with oxygenate being
provided to at least two of the stages, would have been obvious. We are also
not persuaded that, given the teachings in Xu that the production of “olefin
product rich in ethylene and/or propylene,” even if expressly only the in
aggregate, the Examiner erred harmfully in concluding that the recited
ethylene:propylene molar ratio would have been obtained by no more than
the ordinary process of selecting catalysts and reaction conditions.
Generally, the broader the claim, the broader the scope of prior art that
potentially renders the claimed subject matter obvious. The mere denial,
unaccompanied by an explanation, that the prior art fails to disclose some
result of a prior art process, does not suffice to shift the burden back to the
Examiner.8

8 Shell has criticized the Examiner’s reliance on Van Dijk only in that Van
Dijk does not, in Shell’s view, “suggest the limitations of claim 1 that are
missing from the Xu reference.” (Br. 3, ll. 21–22.) As indicated supra, Van
Dijk appears to be no more than cumulative with Xu, so any error in the
Examiner’s findings and conclusions based on Van Dijk are harmless.
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C. Order
It is ORDERED that the rejection of claims 1–12 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).
AFFIRMED
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