Ex Parte Welch et al

Patent Trial and Appeal Board

Oct 24, 2014

11656320 (P.T.A.B. Oct. 24, 2014)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
11/656,320 01/19/2007 William T. Welch 02231A/6457BUS 1853
20879 7590 10/24/2014
EMCH, SCHAFFER, SCHAUB & PORCELLO CO
P O BOX 916
ONE SEAGATE SUITE 1980
TOLEDO, OH 43697
EXAMINER
HYUN, PAUL SANG HWA
ART UNIT PAPER NUMBER
1772
MAIL DATE DELIVERY MODE
10/24/2014 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 WILLIAM T. WELCH,
JAMES F. HOFFMAN, BRIAN K. WILT,
ROY ROGER BLEDSOE, JR., MICHAEL B. SUMNER,
and JEFF SEXTON
____________

Appeal 2012-011098
Application 11/656,320
Technology Center 1700
____________
Before GEORGE C. BEST, N. WHITNEY WILSON, and
MICHELLE N. ANKENBRAND, Administrative Patent Judges.
BEST, Administrative Patent Judge.
DECISION ON APPEAL
On October 21, 2011, the Examiner finally rejected claims 4–7, 9, 11,
13, 17, and 19 of Application 11/656,320 under 35 U.S.C. § 103(a) as
obvious. Appellants1 seek reversal of these rejections pursuant to 35 U.S.C.
§ 134(a). We have jurisdiction under 35 U.S.C. § 6(b).
For the reasons set forth below, we AFFIRM.

1 Marathon Petroleum Co. LP is identified as the real party in interest. (App.
Br. 1.)
Appeal 2012-011098
Application 11/656,320

2
BACKGROUND
The ’320 Application describes a method for monitoring a catalytic
cracking process by near-infrared (“NIR”) spectroscopy. Spec. 1. In
particular, the Specification explains that NIR can be used to monitor the
composition of fluid catalytic cracking (“FCC”) feedstocks. Id. at 2. The
measured absorbances are processed and compared to a model. Id. at 2–3.
This comparison allows determination of the chemical and/or physical
properties of the feeds, intermediates, or products produced by the FCC
process. Id. at 3. Furthermore, the process conditions can be adjusted in
response to the comparison to obtain a desired product mix from the FCC
process. Id. at 4–5.
Claim 19 is the only independent claim in the ’320 Application and is
reproduced below:
19. A process for analyzing catalytic cracking hydrocarbon
feeds, intermediates and products exhibiting asorption [sic,
absorbtion] in the near infrared (NIR) region comprising:
a) measuring absorbances of said feed, intermediates,[2] or
products using a spectrometer measuring absorbances at
wavelengths within the range of about 780 – 2500 nm, and
continuously outputting continuous emitted signals indicative
of said absorbances;

2 In their brief, Appellants identify page 2, lines 28–31 of their Specification
as supporting the claimed step of measuring the absorbances of the catalytic
cracking hydrocarbon intermediates. (App. Br. 2.) The cited material,
however, only describes measurement of the absorbances of the feed. See
Spec. 2. In view of our disposition of this appeal, we have not exhaustively
reviewed the Specification to determine whether some other portion of the
written description adequately supports claim 19 as currently written. We
leave this determination to the Examiner in the first instance, if prosecution
of the ’320 Application continues.
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Application 11/656,320

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b) subjecting the NIR spectrometer signals to a
mathematical treatment of the emitted signals, and
mathematically converting said signals to output signals
indicative of the mathematical treatment;
c) processing the output signals indicative of the
mathematical treatment using a defined model to determine the
chemical or physical properties of feeds, intermediates or
products and outputting processed signals;
d) monitoring on-line in response to the process signals at
least one parameter of the catalytic cracking feed, intermediates
or products;
e) using NIR to adjust processing conditions to maintain
product quality and avoid an off-spec product;
f) using the NIR measuring to provide real time
optimization of (RTO) FCC monitoring; and
g) producing catalytic cracking products having lower
average molecular weight than the feed, by contacting the feed
with catalyst in a contacting zone and recovering and separating
the products exiting from the cracking zone.
(App. Br. 11 (Claims App’x).3)
REJECTION
Claims 4–7, 9, 11, 13, 17, and 19 are rejected under 35 U.S.C.
§ 103(a) as obvious over the combination of Perry4 and Senegas.5 (Ans. 4.)

3 As filed, the pages of the appendices of Appellants’ Brief were not
numbered. For ease of reference, we have numbered the pages, continuing
from the main portion of Appellants’ Brief.
4 US Patent No. 5,817,517, issued October 6, 1998.
5 US Patent No. 5,716,585, issued February 10, 1998.
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Application 11/656,320

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DISCUSSION
Appellants argue that the rejection should be reversed because the
Examiner erred in finding that the combination of Perry and Senegas
describe or suggest each feature of the claimed process. (App. Br. 4–8.) In
particular, Appellants argue that the Examiner erred in finding that the
combination of references describe or suggest the claimed steps of
a) measuring absorbances of feed, intermediates, or products
using a spectrometer measuring absorbances at wavelenths
within the range of about 780-4000 nm, and continuously
outputting continuous emitted signals indicative of the
absorbances; b) subjecting the NIR spectrometer signals to a
mathematical treatment of the emitted signals to output signals
indicative of the mathematical treatment; and e) using the NIR
measuring to provide real time optimization of (RTO) FCC
monitoring.
(Id. at 4–5.)
We are not persuaded that the Examiner reversibly erred in any of the
ways argued by Appellants. We, therefore, affirm the Examiner’s rejection.
First, Appellants argue that Perry describes the use of mid-infrared
spectroscopy rather than the claimed NIR spectroscopy. (Id. at 5–6.) This
argument is not persuasive because, as the Examiner found (Ans. 4), Perry
describes the use of infrared spectroscopic measurements in the range of
7000 cm-1–400 cm-1.6 E.g., Perry col. 6, ll. 46–48. Although Perry refers to
this range as the “extended mid-infrared,” see id., the Examiner correctly
found that the frequency range described in Perry overlaps the claimed
frequency range (about 780–2500 nm) and presumptively renders it prima

6 Appellants do not challenge the Examiner’s finding that this range
corresponds to a range of about 1430 nm–25,000 nm.
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facie obvious. See, e.g., In re Boesch, 617 F.2d 272, 275 (CCPA 1980)
(explaining that where ranges overlap, a prima facie case of obviousness is
made out).
Appellants have not provided a showing adequate to rebut this
presumption. Contrary to Appellants’ assertions, Perry does not teach away
from the use of absorbances falling within the claimed range. Although
Perry demonstrates that particular absorbances used in the prior art have
little or no effect upon Perry’s model, Perry measures and uses absorbances
within the claimed range to develop its model. Perry col. 7, ll. 18–59 (using
measured absorbances in the range 6700 cm-1–3100 cm-1 (1493 nm–3226
nm) in calibration model 1 and in the ranges 5524 cm-1–5155 cm-1 (1810
nm–1940 nm), 4999 cm-1–4860 cm-1 (2000 nm–2058 nm), and 4694 cm-1–
3100 cm-1 (2130 nm–3226 nm) in calibration model 2).
Second, Appellants argue that Perry does not describe subjecting the
NIR absorbances to a mathematical treatment. (App. Br. 5.) As discussed
above and as the Examiner found (Ans. 4–5), Perry describes both
measurement of absorbances within the claimed wavelength range and
mathematical processing of these measurements.
Third, Appellants argue that Perry does not describe use of NIR
measurements to provide real time optimization of an FCC process. (App.
Br. 5.) We are not persuaded by this argument for the reasons provided by
the Examiner. (See Ans. 8–9.) In particular, we agree with the Examiner
that the broadest reasonable interpretation of “real time optimization”
includes Perry’s “real time” analysis, which takes place within “a few
minutes.” (Ans. 8-9 (citing Perry, col. 1, ll. 32-33).)
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During prosecution, an application’s claims are given their broadest
reasonable scope consistent with the specification. In re Am. Acad. of Sci.
Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). The words used in a claim
must be read in light of the specification, as it would have been interpreted
by one of ordinary skill in the art at the time of the invention. Id. The
“broadest reasonable interpretation” standard does not prejudice the
applicant, who has the ability to correct errors in claim language and to
adjust the scope of claim protection as needed during prosecution by
amending the claims. In re Yamamoto, 740 F.2d 1569, 1571–72 (Fed. Cir.
1984).
In this instance, The Examiner has explained that the “real-time
analysis” disclosed in Perry, which takes place within a few minutes, is
within the scope of “real time optimization as set forth in the claims. (Ans.
8–9.) Appellants have not pointed to anything in their Specification or in
extrinsic evidence which would refute the Examiner’s determination and/or
support the narrow—though unspecified—definition of “real time
optimization” that they presumably believe excludes Perry’s “analysis in real
time.” Moreover, although Appellants state that Perry teaches “after the
fact” analysis (presumably as opposed to “real time” analysis) of its products
(App. Br. 6), Appellants have not provided credible evidence to support this
statement. (Id.; see also Perry, col. 1, ll. 32-35.).
Nor are we persuaded by Appellants’ remaining arguments, each of
which has been adequately addressed by the Examiner. (See Ans. 5–6, 9–
11.)
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CONCLUSION
We affirm the rejection of claims 4–7, 9, 11, 13, 17, and 19 of the
’320 Application as obvious over the combination of Perry and Senegas.
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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