Ex Parte Wong et al

Patent Trial and Appeal Board

Sep 12, 2016

12616547 (P.T.A.B. Sep. 12, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/616,547 1111112009
32583 7590 09/14/2016
KELLOGG BROWN & ROOT LLC
Gary Machetta, Chief IP Counsel
601 Jefferson Street
KT 1392
HOUSTON, TX 77002
FIRST NAMED INVENTOR
Eric Wong
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.
08-23-107 2759
EXAMINER
ROBINSON, RENEE E
ART UNIT PAPER NUMBER
1772
NOTIFICATION DATE DELIVERY MODE
09/14/2016 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):
IPLegal@kbr.com
patsi.davis@kbr.com
Vikas.Dixit@kbr.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ERIC WONG, ANAND SUBRAMANIAN, KIRAN V. SHAH,
and FAISAL MOHMAND 1
Appeal2015-002590
Application 12/616,547
Technology Center 1700
Before KAREN M. HASTINGS, JAMES C. HOUSEL, and
CHRISTOPHER C. KENNEDY, Administrative Patent Judges.
KENNEDY, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) from the Primary
Examiner's decision to reject claims 12-14 and 28-31. We have jurisdiction
under 35 U.S.C. § 6(b). We AFFIRM.
BACKGROUND
The subject matter on appeal relates to a method for producing n-
paraffins. E.g., Spec. i-f 2; Claim 12. Claim 12 is reproduced below from
page 15 (Claims Appendix) of the Appeal Brief:
1 According to the Appellants, the Real Party in Interest is Kellogg Brown &
Root LLC. App. Br. 3.
Appeal2015-002590
Application 12/616,547
12. A method for producing n-paraffins, comprising:
thermally cracking a feed comprising an atmospheric distillation
tower bottoms, vacuum distillation tower bottoms, or a
combination thereof to produce a thermally cracked hydrocarbon
mixture, wherein the feed further comprises sulfur-containing
compounds and nitrogen-containing compounds;
selectively separating a kerosene fraction comprising about 100
ppmw to about 30,000 ppmw of the sulfur-containing
compounds and at least a portion of the nitrogen, containing
compounds from the hydrocarbon mixture;
hydroprocessing at least a portion of the kerosene fraction to
produce a hydroprocessed kerosene comprising n-paraffins,
about 50 ppmw to about 500 ppmw of the sulfur-containing
compounds, and less than 200 ppmw of the nitrogen-containing
compounds;
contacting the hydroprocessed kerosene with a first adsorbent
material at conditions sufficient to cause the first adsorbent
material to adsorb at least a portion of the n-paraffins;
contacting the adsorbed n-paraffins with a displacing medium at
conditions sufficient to cause at least a portion of the adsorbed
n-paraffins to be desorbed;
recovering the desorbed n-paraffins as a first n-paraffins product,
wherein the first n-paraffins product contains less of the sulfur-
containing compounds than the hydroprocessed kerosene; and
contacting the first n-paraffins product with a second adsorbent
material at conditions sufficient to cause the second adsorbent
material to adsorb at least a portion of the sulfur-containing
compounds to produce a second n-paraffins product containing
less of the sulfur-containing compounds than the first n-paraffins
product.
ANALYSIS
Claims 12-14 and 28-31 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Stokeld (US 3,619,409, issued Nov. 9, 1971) in view of
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Miyauchi et al. (US 4,668,378, issued May 26, 1987) and Schreiner et al.
(US 5,220,099, issued June 15, 1993).
The Appellants present separate arguments for independent claim 12
and claim 28, which depends from claim 12. We limit our discussion to
those claims, and the remaining claims on appeal will stand or fall with
claim 12, from which they depend.
After review of the cited evidence in the appeal record and the
opposing positions of the Appellants and the Examiner, we determine that
the Appellants have not identified reversible error in the Examiner's
rejection. Accordingly, we affirm the rejection for reasons set forth below
and in the Examiner's Answer. See generally Ans. 2-15.
Claim 12.
The Examiner finds that Stokeld teaches a method of producing n-
paraffins comprising each step of claim 12 except that ( 1) Stokeld does not
explicitly disclose the nitrogen or sulfur content of the hydroprocessed
kerosene, (2) Stokeld does not explicitly state that the sulfur content of the
desorbed n-paraffins product is less than the sulfur content of the
hydroprocessed kerosene fraction, (3) Stokeld does not explicitly disclose
thermally cracking a hydrocarbon feed to produce a hydrocarbon mixture
and selectively separate the kerosene fraction, and ( 4) Stokeld does not
disclose a second adsorption step in which a portion of the sulfur-containing
compounds are adsorbed. Ans. 2--4.
Concerning the nitrogen and sulfur content of the hydroprocessed
kerosene, the Examiner finds that "a person of ordinary skill in the art would
optimize the operating conditions in order to produce a hydroprocessed
kerosene with a reduced sulfur and nitrogen content within levels desired for
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Application 12/616,547
the upgraded product according to product specification requirements." Id.
at 3. The Examiner determines that, "absent a showing of criticality or
unexpected results, the claimed nitrogen and sulfur contents are not
considered to be patentably distinguishing." Id.
Concerning the requirement of claim 12 that the sulfur content of the
desorbed n-paraffins product must be less than the sulfur content of the
hydroprocessed kerosene fraction, the Examiner finds that Stokeld's n-
paraffins product necessarily would have lower sulfur content than its
kerosene fraction "given that the adsorption step in Stokeld functions to
selectively adsorb then-paraffins and not sulfur compounds." Id.
Concerning the use of a thermally cracked feedstock and the selective
separation of a kerosene fraction, the Examiner finds that Miyauchi discloses
"thermal cracking of a heavy oil such as an atmospheric residue or vacuum
residue comprising sulfur compounds to produce fractions including ...
kerosene." Id. at 4. The Examiner determines that it would have been
obvious "to use a kerosene feedstock recovered from a thermal cracking
product in the process of Stokeld." Id.
Concerning the second adsorption step, the Examiner finds that
Schreiner discloses a process for "purifying kerosene range linear paraffins
by removing contaminants, including sulfur-containing compounds,
therefrom," the process involving "contacting the linear paraffin feedstock
... with an adsorbent under conditions suitable for adsorbing at least one
contaminant, including sulfur compounds." Id. at 4--5. The Examiner
concludes that "[i]t would have been obvious ... to ... modify the process
of Stokeld by subjecting the partially purified paraffins product ... to an
adsorption step to remove residual contaminants ... including sulfur-
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containing compounds ... in order to provide an n-paraffins product of
extremely high purity .... " Id. at 5.
The Appellants first argue that "the combination of Stokeld,
Miyauchi, and Schreiner does not teach, show, or suggest recovering a
desorbed n-paraffins as a first n-paraffins product containing less sulfur-
containing compounds than the hydroprocessed kerosene." App. Br. 7.
They argue that Stokeld's hydroprocessing step removes all sulfur and
nitrogen impurities and that "Stokeld [is] completely silent as to selectively
adsorbing hydrocarbons versus sulfur." Id. at 8. They further argue that,
even if Stokeld' s hydroprocessed effluent contained sulfur impurities, those
impurities would be H2S, which would be adsorbed, along with the n-
paraffins, by Stokeld's disclosed adsorbent in the first adsorption step. Id. at
9.
We are not persuaded by those arguments essentially for reasons
stated by the Examiner. See Ans. 10-11. Contrary to the Appellants'
assertion that "Stokeld makes no mention of thermally cracked kerosene
fractions," Reply Br. 3, Stokeld discloses that "kerosene fraction[s]" are
"suitably treated for the separation of straight chain hydrocarbons." Stokeld
at 2:28-32. A person of ordinary skill would have known that kerosene
fractions could be obtained by thermal cracking. E.g., id. at 2:60
(referencing thermal cracking of other fractions); Miyauchi at 9: 1-5 ("The
product oils obtained from the thermal cracking step consist[] of ... [a]
kerosene fraction .... "). Contrary to the Appellants' assertion that "Stokeld
also makes no mention of any sulfur-containing compounds," Reply Br. 3,
Stokeld teaches that "[t]he particular operating conditions selected are
dependent on the nature of the feed stream to the adsorption zone ... the
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straight chain hydrocarbon content of the feed stream of the olefinic, sulfur,
nitrogen, and aromatic compounds content thereof." Stokeld at 3:71--4:3
(emphasis added). Thus, Stokeld teaches or suggests that sulfur and nitrogen
compounds are present in the hydroprocessed portion of a kerosene fraction
that is subject to adsorption.
A preponderance of the evidence supports the Examiner's finding that
the sulfur-containing compounds contemplated by Stokeld would not be
limited to H2S. As an initial matter, the Appellants cite nothing in Stokeld
suggesting that the sulfur-containing compounds are so limited.
Additionally, as the Examiner explains, gaseous effluent and light ends,
including H2S, would be expected to be removed by Stokeld's process prior
to the adsorption step. See Ans. 10; Stokeld at 3:25-30, 4:30-32. As noted
above, Stokeld contemplates that the "feed stream to the adsorption zone"
continues to contain sulfur compounds, notwithstanding the fact that
substantially all H2S would have been expected to be removed prior to the
adsorption step. See Stokeld at 3:71--4:3.
The fact that Miyauchi' s working examples list H2S, and no other
sulfur compounds, does not persuade us that the kerosene fraction of
Miyauchi' s composition does not contain sulfur impurities, much less does it
persuade us that all kerosene fractions obtained by any thermal cracking lack
sulfur impurities other than H2S. See App. Br. 9; Miyauchi cols. 15, 16.
Although the working examples do not list impurities in the various oil
fractions, see Miyauchi at 15: 11-18, the Appellants identify nothing in
Miyauchi suggesting that those fractions are 100% free of impurities. A
person of ordinary skill would not have understood that to be the case. The
Appellants provide no persuasive basis to conclude that a kerosene fraction
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obtained from thermal cracking of a feed stock that falls within the scope of
claim 12, as taught by Miyauchi, would not include sulfur impurities other
than H2S.
Stokeld teaches that its adsorption process selectively adsorbs
"straight chain hydrocarbon components of the mixture." Stokeld at 1:53-
55; see also Stokeld at 3:32-35 ("The practice of the separation operation of
the present invention is applicable to any solid selective adsorbent which
selectively adsorbs straight chain hydrocarbons to the substantial exclusion
of nonstraight chain hydrocarbons."). As the Examiner explains, Stokeld
teaches the use of an adsorption material that "is a specific type of zeolite A"
that "falls within the scope of what is encompassed by Appellant's
dependent claim 29 as being suitable for carrying out the claimed adsorption
step." Ans. 10-11 (citing Stokeld at 3:51-55). The Appellants do not
challenge that finding in the Reply Brief. On this record, a preponderance of
the evidence supports the Examiner's finding that the hydroprocessed
kerosene of Stokeld and Miyauchi would include sulfur impurities, and that
Stokeld's adsorption process would result in an n-paraffins product that
contains fewer sulfur-containing compounds than the hydroprocessed
kerosene.
The Appellants next argue that "the combination of Stokeld,
Miyauchi, and Schreiner does not teach, show, or suggest thermally cracking
a feed ... to produce a thermally cracked hydrocarbon mixture and
selectively separating [sic] a kerosene fraction comprising about 100 ppmw
to about 30,000 ppmw of the sulfur containing compounds ... from the
hydrocarbon mixture." App. Br. 8. In particular, they argue that Miyauchi's
process removes all sulfur from the oil fractions. See id. at 10.
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We are not persuaded by that argument. As described above, the
Appellants provide no persuasive explanation as to why a person of ordinary
skill would consider Miyauchi's failure to list impurities in its working
examples as an indication that the oil fractions are 100% pure. Nor do any
of the Appellants' citations to Miyauchi appear to support their contention
that Miyauchi is concerned with producing fractions "with as little sulfur as
possible." See App. Br. 10; see also Ans. 11.
Moreover, the Examiner's rationale does not specifically require the
use of Miyauchi' s kerosene fraction in combination with Stokeld. The
Examiner cites Miyauchi for the broader proposition that it is known that a
kerosene fraction can be obtained by thermal cracking. See Ans. 4 ("[I]t
would have been obvious ... to use a kerosene feedstock recovered from a
thermal cracking product in the process of Stokeld. "). The Appellants do
not persuasively dispute that finding. The Appellants do not argue that use
of known thermal cracking techniques to obtain a kerosene fraction would
have been beyond the level of ordinary skill in the art. Nor do they argue
that oil fractions obtained from known thermal cracking techniques
generally do not possess sulfur impurities. Cf Ans. 12 ("[T]he exact
concentration of sulfur in the obtained product fractions largely depends on
the source of the heavy hydrocarbon feedstock."). We are not persuaded
that claim 12 's recitation of a specific concentration range of sulfur
impurities in the kerosene fraction patentably distinguishes claim 12 over the
prior art, particularly in view of the Appellants' failure to suggest that the
range is critical or results in unexpected properties. Cf In re Woodruff, 919
F.2d 1575, 1578 (Fed. Cir. 1990) ("The law is replete with cases in which
the difference between the claimed invention and the prior art is some range
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or other variable within the claims .... [and] in such a situation, the
applicant must show that the particular range is critical, generally by
showing that the claimed range achieves unexpected results relative to the
prior art range." (citations omitted)).
The Appellants also argue that "[ m ]odifying Stokeld to produce a
hydroprocessed kerosene product comprising n-paraffins and about 50
ppmw to about 500 ppmw of sulfur containing compounds ... would render
Stokeld unsatisfactory for its intended purpose." App. Br. 10. In particular,
they argue that "Stokeld' s process must produce a hydroprocessed kerosene
product that contains less than 15 ppm of sulfur-containing compounds." Id.
at 11.
That argument does not establish reversible error in the Examiner's
rejection. As the Examiner explains, see Ans. 12-13, the mere fact that
Stokeld references another patent that discloses a sulfur content of 0.001-
0.0015 percent says nothing about the sulfur content of Stokeld's
hydroprocessed effluent. Stokeld's discussion of an "improved method"
appears to encompass both Stokeld's hydrogenation steps and Stokeld's
adsorption step. Stokeld provides no indication of the hydroprocessed
effluent's sulfur content. As explained above, Stokeld plainly contemplates
that, even post-hydroprocessing, its feed stream possesses sulfur impurities.
See Stokeld at 3:71--4:3. Therefore, a person of ordinary skill in the art
desiring fewer sulfur impurities would have been motivated to subject
Stokeld to the adsorption steps taught by the prior art.
Even if Stokeld's hydroprocessed effluent did possess a sulfur content
of 15 ppm, as asserted by the Appellants, the issue before us is whether
claim 12 would have been obvious in view of the combined teachings of the
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prior art. The Appellants provide no evidence that the use of a
hydroprocessed kerosene fraction having, e.g., 50 ppmw sulfur-containing
compounds, rather than 15 ppmw, would prevent Stokeld from functioning
for its intended purpose. On the contrary, it appears that the two adsorption
steps of Stokeld as modified by Schreiner would continue to function
regardless of whether the hydroprocessed effluent possessed 15 ppm sulfur-
containing contaminants or 50 ppm sulfur-containing contaminants. A
person of ordinary skill in the art would have understood that, if the process
of Stokeld as modified by Schreiner is desirable on a hydroprocessed
kerosene fraction possessing 15 ppmw of sulfur-containing compounds, it
would also be desirable in connection with a kerosene fraction possessing 50
ppmw of sulfur-containing compounds. In the absence of a showing of
criticality or unexpected results, we are not persuaded of reversible error in
the Examiner's rejection. Cf Woodruff, 919 F.2d at 1578.
* * *
In summary, the combined prior art teaches or suggests the
desirability of subjecting a kerosene fraction to hydroprocessing followed by
both of the adsorption steps recited by claim 12 in order to obtain highly
purified n-paraffins for use in applications such as detergents. E.g.,
Schreiner at 1 :28-31. Absent a showing that the specific sulfur
concentration ranges of claim 12 are critical or produce unexpected results,
we are not persuaded that potential non-critical differences in the sulfur
concentrations of the prior art as compared to claim 12 result in a patentable
distinction. Cf Woodruff, 919 F.2d at 1578. We affirm the Examiner's
rejection of claim 12.
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Claim 28.
Claim 28 depends from claim 12 and recites:
28. The method of claim 12, wherein the hydroprocessed kerosene
is produced by hydroprocessing the kerosene fraction in the
presence of hydrogen and one or more catalysts at a temperature
of about 200°C to about 250°C and a pressure of about 1,350 kPa
to about 5,550 kPa.
The Examiner finds that Stokeld teaches hydroprocessing at 500-850°F
(which is equivalent to 260-450°C) and 300-900 psig (which is equivalent
to 2070-6210 kPa). Ans. 6. The Examiner acknowledges that the lower
temperature limit of Stokeld is slightly higher than the upper limit of the
claimed temperature range (250°C vs. 260°C), but the Examiner finds that
the claimed range is nevertheless prima facie obvious because, absent
evidence to the contrary, they "are close enough that one skilled in the art
would have expected them to have the same properties." Id.
The Appellants argue that the combined prior art does not teach the
recited temperature range of 200-250°C. See App. Br. 12-13; Reply Br. 4.
That argument does not establish reversible error because it does not address
or rebut the Examiner's finding that the temperature ranges are sufficiently
close that a person of ordinary skill would have expected them to have the
same properties, resulting in a prima facie case of obviousness. See
Titanium Metals Corp. of Am. v. Banner, 778 F.2d 775, 783 (Fed. Cir.
1985).
The Appellants also argue that "Stokeld requires hydroprocessing ...
at a pressure far greater than required in claim 28." See App. Br. 12
(quoting Stokeld at 1 :34--48).
That argument is not persuasive because, as the Examiner accurately
explains, see Ans. 14--15, it ignores the fact that Stokeld teaches two
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hydroprocessing steps. The first hydroprocessing step occurs at a pressure
of 2070-6210 kPa, see Stokeld at 1 :43 (300-900 psig), which substantially
overlaps the pressure range of claim 12. The second hydroprocessing step
occurs at a pressure of 8270-13800 kPa. Id. at 1 :48 (1200-2000 psig). The
Examiner finds, and the Appellants do not dispute, that Stokeld' s first
hydroprocessing step is equivalent to the hydroprocessing of claim 28. See
Ans. 14. Because claim 12, from which claim 28 depends, is a "comprising"
claim, it does not preclude the use of additional hydroprocessing steps
beyond those that are specifically recited. Accordingly, a preponderance of
the evidence supports the Examiner's finding that Stokeld teaches a
hydroprocessing step equivalent to that of claim 28 that occurs at a pressure
range that overlaps the recited range. The Examiner has established a prima
facie case of obviousness, and the Appellants fail to rebut it persuasively.
See In re Wertheim, 541F.2d257, 267 (CCPA 1976).
The Appellants argue that the Examiner's rejection is impermissibly
based on hindsight because, according to the Appellants, "the only
disclosure that a hydroprocessed kerosene product can be produced by
hydroprocessing a kerosene fraction ... at a temperature of about 200°C to
about 250°C and a pressure of about 1,350 kPa to about 5,550 kPa ... is
Appellant's own disclosure." See App. Br. 13. As set forth above, however,
Stokeld's hydroprocessing step that is equivalent to that of claim 28 utilizes
a pressure range that literally overlaps that recited by claim 28. The
Appellants do not dispute the Examiner's finding that the temperature ranges
are sufficiently close that a person of ordinary skill would have expected
them to have the same properties. The Examiner's rationale is based not on
hindsight, but on the plain teachings of the references in combination with
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the understanding of a person of ordinary skill in the art. We are not
persuaded of reversible error in the Examiner's rejection of claim 28.
CONCLUSION
We AFFIRM the Examiner's rejection of claims 12-14 and 28-31.
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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