2021000117 (P.T.A.B. Oct. 14, 2021)

JOHNSON MATTHEY PUBLIC LIMITED COMPANY

Patent Trials and Appeals BoardOct 14, 2021

2021000117 (P.T.A.B. Oct. 14, 2021)

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. 14/558,041 12/02/2014 Alejandra RIVAS-CARDONA P70168US02 6010 94591 7590 10/14/2021 Johnson Matthey Inc. 435 Devon Park Dr. Suite 600 Wayne, PA 19087-1998 EXAMINER DAVIS, SHENG HAN ART UNIT PAPER NUMBER 1732 NOTIFICATION DATE DELIVERY MODE 10/14/2021 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): JohnsonMattheyIP@matthey.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte ALEJANDRA RIVAS-CARDONA, JOSEPH MICHAEL FEDEYKO, HAI-YING CHEN, RAUL FRANCISCO LOBO, ERIC BURKHOLDER, and QINGLING LIU Appeal 2021-000117 Application 14/558,041 Technology Center 1700 Before JEFFREY B. ROBERTSON, JENNIFER R. GUPTA, and DEBRA L. DENNETT, Administrative Patent Judges. ROBERTSON, Administrative Patent Judge. DECISION ON APPEAL1 STATEMENT OF THE CASE 1 This Decision includes citations to the following documents: Specification filed December 2, 2014 (“Spec.”); Final Office Action entered April 12, 2019 (“Final Act.”); Appeal Brief filed May 14, 2020 (“Appeal Br.”); Examiner’s Answer entered August 4, 2020 (“Ans.”); and Reply Brief filed October 2, 2020 (“Reply Br.”). Appeal 2021-000117 Application 14/558,041 2 Pursuant to 35 U.S.C. § 134(a), Appellant appeals from the Examiner’s decision to reject claims 1, 3, and 5–9.2 Appeal Br. 2. We have jurisdiction under 35 U.S.C. § 6(b). We reverse. CLAIMED SUBJECT MATTER Appellant states the invention relates to transition metal containing zeolites and a method for preparing transition metal containing zeolites. Spec. 1. The Specification describes CHA zeolites3 are produced using a “structure directing agent (SDA)” that are “complex organic molecules which guide or direct the molecular shape and pattern of the zeolite’s framework.” Id. at 1, ll. 18–20. The Specification describes that using a combination of a metal-amine complex as a first CHA framework SDA and a second distinct CHA framework SDA (a “mixed template”), a CHA zeolite having a smaller cell volume compared to other CHA zeolites may be obtained. Id. at 3, ll. 15–24; 6, ll. 3–10; 7, l. 7–8, l. 2. That is, the Specification describes that CHA zeolites obtained by this method have unit cell volumes from about 2355 Å3 to about 2375 Å3 compared to other zeolites having a unit cell volume of 2380 Å3 or to aluminosilicate CHA having a unit cell volume of 2391.6 Å3. Id. at 6, ll. 3–9. In addition, the Specification describes in-situ transition metal, which is defined as “non- framework transition metal incorporated into the zeolite during its 2 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies Johnson Matthey Public Limited Company, as the real party in interest. Appeal Br. 1. 3 The designation “CHA” denotes a unique framework type of zeolite structure as assigned by the International Zeolite Association. Spec. 1, ll. 16–17. “CHA” appears to represent zeolitic materials having a “chabazite” framework structure. Bull’186 1, l. 28. Appeal 2021-000117 Application 14/558,041 3 synthesis,” may be uniformly dispersed within the cavities and channels of the zeolite, and not present in the synthesized zeolite crystal as metal oxide. Id. at 3, ll. 25–28; 5, ll. 6–7; 10, ll. 19–29. Claim 1, reproduced below, is illustrative of the claimed subject matter (Appeal Br., Claims Appendix 6): 1. A composition comprising a synthetic zeolite having a CHA framework structure, a molar silica-to-alumina ratio (SAR) of about 10 to about 30, a unit cell volume of about 2355 to about 2375 Å3, and an in-situ transition metal, wherein the zeolite substance is essentially alkali-metal-free, and wherein the zeolite has a phase purity of at least 95% by weight. REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Bull et al. (“Bull’755”) US 2011/0142755 A1 June 16, 2011 Ballinger et al. (“Ballinger”) US 2012/0201731 A1 Aug. 9, 2012 Mohanan et al. (“Mohanan”) US 2014/0112853 A1 Apr. 24, 2014 Bull et al. (“Bull’186”) WO 2011/064186 A1 June 3, 2011 REJECTIONS 1. Claims 1, 3, and 5 are rejected under 35 U.S.C. § 103 as being unpatentable over Bull’186 and Bull’755. Final Act. 4–6. 2. Claims 6 and 7 are rejected under 35 U.S.C. § 103 as being unpatentable over Bull’186, Bull’755, and Mohanan. Final Act. 6–7. Appeal 2021-000117 Application 14/558,041 4 3. Claims 8 and 9 are rejected under 35 U.S.C. § 103 as being unpatentable over Bull’186, Bull’755, and Ballinger. Final Act. 7–9. OPINION Rejection 1 We limit our discussion to claim 1, which is sufficient for disposition of this rejection. Claim 1 The Examiner’s Rejection Relevant to the issues raised with respect to claim 1, the Examiner found Bull’186 discloses a process for preparing a zeolite having a CHA structure including mixtures of tetramethylammonium hydroxide (TMAOH) and at least one organic structure directing agent (SDA) other than TMAOH. Final Act. 5; Ans. 9. The Examiner found Bull’186 discloses copper may be included as an in-situ transition metal. Id. The Examiner found Bull’186 does not disclose an amine complexed with copper. Id. The Examiner found Bull’755 discloses a copper-modified CHA-zeolite where copper amine may be used as a source of copper. Id. at 6. The Examiner found Bull’755 discloses the CHA-zeolite can be made with an organic directing agent that is a combination of an organic ammonium-based material and amine-based directing agent. Id. The Examiner determined it would have been obvious to have incorporated the metal of Bull’186 with an amine as taught by Bull’755, because doing so is known to effectively include a metal into a CHA-based zeolite for use as an SCR catalyst and Bull’755 explains that any known Cu-source is useable in the catalyst. Id. The Examiner Appeal 2021-000117 Application 14/558,041 5 determined the unit cell volume recited in claim 1 would have been obvious because the same product produced in the same way would produce the same pore volume ranges. Id. Appellant’s Arguments Appellant argues, inter alia, the prior art methods would not result in the claimed unit cell volume because such unit cell volume is only the result of “the mixed template synthesis” of the present application as opposed to the “the single template synthesis” disclosed in the prior art. Appeal Br. 2– 3; Reply Br. 2–3. Discussion We have carefully reviewed the evidence of record, and as a result, we are of the view that the Examiner’s position that the zeolites produced by the prior art would have the unit cell volume recited in claim 1 is not sufficiently supported by the preponderance of the evidence for the reasons discussed below. We observe that there is no dispute that none of the cited prior art discloses unit cell volumes. The Examiner’s position is based on findings that Bull’186’s disclosure of “at least one organic structure directing agent (SDA) other than tetramethylammonium hydroxide (TMAOH)” and TMAOH constitutes a “mixed template synthesis” and the combination of Bull’186 and Bull’755’s disclosure of “identical/substantially identical” components and methods as used in the present invention that would “necessarily have” the unit cell volumes recited in claim 1. Ans. 10. However, although it is true Bull’186 discloses two SDAs, both of those SDAs appear to correspond to Appeal 2021-000117 Application 14/558,041 6 Appellant’s second SDA. That is, Bull’186 discloses the SDA that is not TMAOH includes ammonium compounds, similar to those described in the Specification for the second SDA. Bull’186 8, l. 25–9, l. 12; Spec. 7, l. 14– 8, l. 2. In this regard, the Specification describes examples of the second SDA include tetramethylammonium cations and hydroxide anions, and as such, the second SDA also includes TMAOH. Spec. 7, l. 27–8, l. 2. In addition, although Bull’755 discloses copper amine carbonate or copper tetraamine as suitable sources of copper to be incorporated into aqueous solution (i) in order to produce a copper containing zeolite, Bull’755 discloses the copper content is calculated as CuO. Bull’755 ¶¶ 73– 75, 122. This appears to be inconsistent with how the Specification discusses the in situ transition metal recited in claim 1 as discussed above. In the obviousness context, inherency renders a claimed limitation obvious only if the limitation is “necessarily present,” or is “the natural result of the combination of elements explicitly disclosed by the prior art.” Persion Pharm. LLC v. Alvogen Malta Operations Ltd., 945 F.3d 1184, 1191 (Fed. Cir. 2019) (quoting PAR Pharm., Inc. v. TWI Pharm., Inc., 773 F.3d 1186, 1195–96 (Fed. Cir. 2014)). In this case, we are of the view that because of the discrepancies discussed above between the components and methods used to produce the CHA zeolites in the prior art combination and the components and methods described in the Specification as necessary to produce CHA zeolites having a unit cell volume recited in claim 1, the Examiner’s position that a zeolite having the recited unit cell volume would necessarily be present is not sufficiently supported. Accordingly, we reverse the Examiner’s rejection of claim 1, 3, and 5. Appeal 2021-000117 Application 14/558,041 7 Rejections 2 and 3 Claims 6–9, the subject of Rejections 2 and 3, depend either directly or indirectly from claim 1. The Examiner’s further reliance on either Mohanan or Ballinger does not remedy the deficiencies discussed above with respect to Bull’168 and Bull’755. See Final Act. 6–9. Accordingly, we reverse Rejections 2 and 3 for similar reasons as discussed above for Rejection 1. DECISION SUMMARY In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 3, 5 103 Bull’186, Bull’755 1, 3, 5 6, 7 103 Bull’186, Bull’755, Mohanan 6, 7 8, 9 103 Bull’186, Bull’755, Ballinger 8, 9 Overall Outcome 1, 3, 5–9 REVERSED