Ex Parte VierheiligDownload PDFPatent Trial and Appeal BoardJan 27, 201611928978 (P.T.A.B. Jan. 27, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 111928,978 94591 7590 Johnson Matthey Inc, 435 Devon Park Dr. Suite 600 10/30/2007 01/29/2016 Wayne, PA 19087-1998 FIRST NAMED INVENTOR Albert A. VIERHEILIG 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. CAT175US2 8067 EXAMINER DA VIS, SHENG HAN ART UNIT PAPER NUMBER 1732 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 PATENT TRIAL AND APPEAL BOARD Ex parte ALBERT A. VIERHEILIG Appeal2014-004855 Application 11/928,978 Technology Center 1700 Before CHUNG K. PAK, KAREN M. HASTINGS, and CHRISTOPHER C. KENNEDY, Administrative Patent Judges. HASTINGS, Administrative Patent Judge. DECISION ON APPEAL Appellant 1 appeals under 35 U.S.C. § 134 from the Examiner's decision rejecting claims 1, 4---6, 14, 15, 17- 19, 20, and 21under35 U.S.C. 103(a) as being unpatentable over the basic combination of Markham (US 5,308,473, issued May 3, 1994) with Buchanan (US 5,547,648, issued Aug. 20, 1996) and Bhore (US 5,741,469, issued Apr. 21, 1998).2 We have jurisdiction over the appeal pursuant to 35 U.S.C. § 6(b ). We AFFIRM. 1 The Real Party in Interest is stated to be Intercat, Inc. (App. Br. 1 ). 2 The Examiner applies an additional reference to claim 6 (Ans. 8). Appellant does not present any additional arguments directed to claim 6 (App. Br. 9, 10). Appeal2014-004855 Application 11/928,978 Claim 1 is illustrative of the claimed subject matter (emphasis added): 1. A method of removing the sulfur oxide content of a sulfur oxide-containing gas in a FCC unit containing a reactor and a regenerator section, the method comprising: contacting the sulfur oxide-containing gas with a SOx removing additive at a low oxygen environment condition wherein a flue gas exiting the regenerator section contains less than 0.5 vol. % oxygen, wherein the SOx removing additive consists of: a sorbent consisting of a magnesium aluminum oxide with spinel crystal structure; an oxidation catalyst consisting of cerium oxide; optionally, at least one Group VIII metal selected from a group consisting of platinum, palladium, iridium, osmium, rhodium, and ruthenium; and optionally, a support material selected from a group consisting of calcium aluminate, aluminum nitrohydrate, aluminum chlorohydrate, magnesia, silica, alumina, titania, zirconia, clay, a clay phosphate material, and combinations thereof, wherein the SOx removing additive is introduced into the regenerator and/ or the reactor of the FCC unit and is continuously cycled between the reactor and the regenerator. Appellant does not argue any of the claims separately (App. Br. 4-- 10). Accordingly, we focus on claim 1 and all of the claims stand or fall together. ANALYSIS We have reviewed each of Appellant's arguments for patentability. However, we will sustain the Examiner's rejections for essentially those reasons expressed in the Answer, including the Response to Argument section, and we add the following primarily for emphasis. 2 Appeal2014-004855 Application 11/928,978 Appellant does not dispute that Buchanan and Bhore teach a solid adsorbent encompassed by claim 1 (App. Br. 6). Rather, Appellant's main argument is that Buchanan as well as Bhore require that additional air be added and thus do not teach or suggest the use of their SOx removing additives in a low oxygen containing process (App. Br. 5-8; Reply Br. 4---6). These arguments are not persuasive of reversible error for reasons detailed by the Examiner in the Answer. The claims merely require that "a flue gas exiting the regenerator section contains less than 0.5 vol.% oxygen." Notably, Buchanan encompasses his sorbents being effective when the gas exiting the sorbent bed has a value as low as .01 vol.% oxygen (col. 5 11. 16-19). Appellant presents no objective evidence that the SOx additives of the applied prior art were not used and/or would not function in the same "low oxygen environment" as encompassed by the claims. Without supporting evidence, the mere conclusion by the inventor that the references do not teach use in a similar low oxygen environment is insufficient. Arguments and conclusions unsupported by factual evidence carry no evidentiary weight and cannot establish patentability. In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984); In re Swan Wood, 582 F.2d 638, 642 (CCPA 1978); In re Lindner, 457 F.2d 506, 508 (CCPA 1972). We note that Appellant presents arguments for the first time in the Reply Brief filed May 24, 2013, directed specifically Markham's lack of specificity as to where its SOx additives were being used (Reply Br. 3). It is inappropriate for Appellant to discuss for the first time in the Reply Brief matters that could have been raised in the Appeal Brief. 3 7 CPR § 41.41(b)(2) (2013). In any event, one of ordinary skill in the art would have 3 Appeal2014-004855 Application 11/928,978 inferred from Markham that these additives were being used in the reactor/regenerator. It has been established that "the [obviousness] analysis need not seek out precise teachings directed to the specific subject matter of the challenged claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ." KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007). Likewise, it is also well settled that a reference stands for all of the specific teachings thereof as well as the inferences one of ordinary skill in the art would have reasonably been expected to draw therefrom. See In re Fritch, 972 F.2d 1260, 1264---65 (Fed. Cir. 1992). Appellant's mere statement that the examples of the current application show the "required additives of the invention unexpectedly remove a significant amount of sulfur under low oxygen conditions" (App. Br. 7) falls short of satisfying Appellant's burden to establish unexpected results. In re Klosak, 455 F.2d 1077, 1080 (CCPA 1972) (the burden of analyzing and explaining data to support nonobviousness rests with Appellant). In light of these circumstances, the preponderance of the evidence supports the Examiner's rejections. Accordingly, we sustain the rejections of the claims on appeal. ORDER The Examiner's§ 103 rejections are affirmed. 4 Appeal2014-004855 Application 11/928,978 TIME PERIOD FOR RESPONSE 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 kmm 5 Copy with citationCopy as parenthetical citation