11122920 (B.P.A.I. Dec. 29, 2009)

Ex Parte Vizzini et al

Board of Patent Appeals and InterferencesDec 29, 2009

11122920 (B.P.A.I. Dec. 29, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ____________ Ex parte KAYO VIZZINI, STEVEN D. GRAY, and TIM J. COFFY ____________ Appeal 2009-002389 Application 11/122,920 Technology Center 1700 ____________ Decided: December 29, 2009 ____________ Before JEFFREY T. SMITH, BEVERLY A. FRANKLIN, and LINDA M. GAUDETTE, Administrative Patent Judges. FRANKLIN, Administrative Patent Judge. DECISION ON APPEAL Appellants appeal under 35 U.S.C. § 134 from the Examiner's rejection of claims 3 and 6-15. We have jurisdiction under 35 U.S.C. § 6(b). STATEMENT OF THE CASE Claim 3 is representative of the subject matter on appeal and is set forth below: Appeal 2009-002389 Application 11/122,920 2 3. A process for preparing a silica supported catalyst system comprising: admixing a magnesium alkoxide with a group 4, 5, or 6 transition metal complex to form a magnesium transition metal alkoxide adduct having the general formula: MgM(OR)2(OR1)pCIq wherein M is a group 4, 5, or 6 transition metal; R is an alkyl or aryl moiety that may have from 1 to 20 carbons and include substituted alkyl radicals; R1 is a alkyl or aryl moiety having from 1 to 10 carbons, and p and q are 0 or an integer such that p + q = the highest formal oxidation state of M, and contacting the magnesium transition metal alkoxide adduct with a silica template to form a silica supported catalyst precursor; contacting the silica supported catalyst precursor with a first chlorinating agent to form a chlorinated catalyst precursor; and contacting the chlorinated catalyst precursor with an organo-aluminum cocatalyst component to form silica supported catalyst system. The prior art relied upon by the Examiner in rejecting the claims on appeal is: Kerth 5,162,465 Nov. 10, 1992 Chen 6,174,971 B1 Jan. 16, 2001 THE REJECTION Claims 3 and 6-15 are rejected under 35 U.S.C. §103(a) as being unpatentable over Chen in view of Kerth. Appeal 2009-002389 Application 11/122,920 3 ISSUE Have Appellants shown reversible error in the Examiner’s determination that (1) the applied art suggests Appellants’ claimed subject matter and (2) Appellants’ rebuttal evidence of unexpected results is not convincing? We answer both these questions in the negative. FINDINGS OF FACT On page 5 of the Answer, the Examiner finds that Kerth demonstrates it is conventional to support a Ziegler catalyst on silica in order to optimize the activity and morphology of the catalyst composition. On page 4 of the Answer, the Examiner refers to column 2, lines 32-36 and column 6, lines 25-54 in this regard. Appellants do not dispute these particular findings made by the Examiner. Rather, it appears, as indicated in footnote 1, infra, that Appellants have misconstrued the Examiner’s position. See Brief generally. Appellants’ comparative example has Ziegler catalyst components that differ from the catalyst components of Examples 1-5. Spec. 11-18. PRINCIPLES OF LAW Appellants have the burden on appeal to the Board to demonstrate error in the Examiner's position. See In re Kahn, 441 F.3d 977, 985-86 (Fed. Cir. 2006). With regard to rebuttal evidence, the court stated in In re Dunn, 349 F.2d 433, 439 (CCPA 1965) "[t]he cause and effect sought to be proven is lost here in the welter of unfixed variables." Appeal 2009-002389 Application 11/122,920 4 ANALYSIS Regarding the Examiner’s obviousness determination, Appellants argue that “Kerth teaches Ziegler-Natta catalyst systems including a titanium component which is based on a finely divided, shape-imparting silica gel, which further includes magnesium, chlorine and a benzenecarboxylic acid derivative. See column 1, lines 10-25. Appellants again assert and maintain their disagreement with the Examiner's statements that supporting the subject catalysts (the catalysts of Chen) on silica is well known.1 [Appellants state that] [t]he Examiner has provided no support for this statement.” Br. 3. We are not convinced by these arguments for the following reasons. On page 5 of the Answer, the Examiner finds that Kerth demonstrates it is conventional to support a Ziegler catalyst on silica in order to optimize the activity and morphology of the catalyst composition. On page 4 of the Answer, the Examiner refers to column 2, lines 32-36 and column 6, lines 25-54 of Kerth in this regard. Appellants do not dispute these particular findings made by the Examiner. Rather, it appears, as indicated in footnote 1, supra, that Appellants have misconstrued the Examiner’s position. See Brief generally. The Examiner concludes, based upon these teachings of Kerth, that one would have been motivated to support any Ziegler catalyst, including the type used in Chen, for the same benefits. Ans. 5. Appellants do not show error in this rationale. See Brief generally. This leads us to 1 On page 5 of the Answer, the Examiner explains that Appellants have misconstrued the ground of rejection in this regard. Appeal 2009-002389 Application 11/122,920 5 agreement with the Examiner’s obviousness determination. See In re Kahn, 441 F.3d at 985-86. Regarding rebuttal evidence, Appellants refer to their Examples 1-5 and comparative Example 1, of their Specification (see pages 11-18 of the Specification). Br. 3-4. Appellants submit that this evidence shows that their claimed process forms a catalyst able to produce a polymer having an unexpected result, specifically that the silica supported catalyst exhibits significantly improved sheer response as compared to a magnesium supported catalyst. Br. 3-4. However, as pointed out by the Examiner on pages 5-6 of the Answer, the comparative example contains different unsupported Ziegler catalyst components as compared to the catalyst components of Examples 1-5. The Examiner states that therefore the different results could be attributed to the different catalyst components, the silica support, or both. In other words, it is the Examiner’s position that comparative testing results are more convincing when variables are fixed. We agree, for the reasons discussed by the Examiner, that Appellants’ comparative showing is inconclusive and thus nonsupportive of the conclusion desired to be drawn by Appellants. See Dunn, 349 F.2d at 439. CONCLUSIONS OF LAW Appellants have not shown reversible error in the Examiner’s determination that (1) the applied art suggests Appellants’ claimed subject matter and (2) Appellants’ evidence of unexpected results is not convincing. Appeal 2009-002389 Application 11/122,920 6 DECISION The rejection of claims 3 and 6-15 under 35 U.S.C. §103(a) as being unpatentable over Chen in view of Kerth 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)(1)(iv). AFFIRMED kmm FINA TECHNOLOGY INC P.O. BOX 674412 HOUSTON, TX 77267-4412