NESTE OYJ

Patent Trials and Appeals Board

Oct 30, 2020

2020004660 (P.T.A.B. Oct. 30, 2020)

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.
15/876,426 01/22/2018 Markku KURONEN 0088771-000006 1034
21839 7590 10/30/2020
BUCHANAN, INGERSOLL & ROONEY PC
POST OFFICE BOX 1404
ALEXANDRIA, VA 22313-1404
EXAMINER
MCAVOY, ELLEN M
ART UNIT PAPER NUMBER
1771
NOTIFICATION DATE DELIVERY MODE
10/30/2020 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):
ADIPDOC1@BIPC.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MARKKU KURONEN and ULLA KIISKI
Appeal 2020-004660
Application 15/876,426
Technology Center 1700
Before ADRIENE LEPIANE HANLON, JAMES C. HOUSEL, and
BRIAN D. RANGE, Administrative Patent Judges.
HOUSEL, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–33. An oral hearing was held on
October 20, 2020. A copy of the transcript will be made of record upon its
availability. We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.2

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42(a). Appellant identifies the real party in interest as Neste Oyj. Appeal
Brief (“Appeal Br.”) filed February 11, 2020, p. 1.
2 This Decision also cites to the Specification (“Spec.”) filed January 22,
2018, the Final Office Action (“Final Act.”) dated September 18, 2019, the
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Application 15/876,426

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CLAIMED SUBJECT MATTER
The invention relates to diesel fuel compositions having enhanced
cold properties comprising blends of mineral middle distillate fuels and
renewable fuels, and methods for making such compositions. Spec. 1: 4–6.
Appellant discloses that middle distillate fuels are blended to minimize cold
weather problems such as crystallization and solidification which affects fuel
viscosity and volatility, and its ability to pass through fuel filters. Id. at 1:9–
12. One important fuel property related to cold temperature operability,
cloud point, is the temperature at which paraffin wax falls out of solution
and starts to form wax crystals in the fuel. Id. at 1:13–16. Other important
properties related to cold temperature operability include pour point, the
temperature at which the fuel no longer flows, and cold filter plugging point
(“CFPP”), the lowest temperature at which the fuel is filterable. Id. at 1:17–
21. To improve a diesel fuel’s cold properties that is less expensive to
produce, Appellant discloses certain blends of a mineral middle distillate
fuel with a renewable fuel whose cloud point and cold filter plugging point
are lower than either fuel component. Id. at 3:15–18
Claim 1, reproduced below from the Claims Appendix to the Appeal
Brief, is illustrative of the claimed subject matter:
1. A diesel fuel blend comprising:
a diesel fuel blend of a renewable fuel component and a
mineral middle distillate fuel component in which the
renewable fuel component and mineral middle distillate fuel
component are present in a ratio of amounts by volume of from
10:90 to 90:10; and

Examiner’s Answer (“Ans.”) dated April 28, 2020, and the Reply Brief
(“Reply Br.”) filed June 2, 2020.
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Application 15/876,426

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the diesel fuel blend of the renewable fuel component
and the mineral middle distillate fuel component contains 10–
25 wt% n-paraffins in a C14–C20 range and an amount of
isoparaffins in the C14–C20 range, such that a ratio of a sum of
wt% amounts of isoparaffins in the C14–C20 range to a sum of
wt% amounts of the n-paraffins in the C14–C20 range is less
than 2.2.
Independent claim 10 recites a method of making a diesel fuel
blend having the same properties as the blend of claim 1, by selecting
the renewable fuel component and the mineral middle distillate fuel
component having cloud points that differ by no more than 17°C, such
that the blend has a cloud point lower than a weighted mean of the
cloud points of each of the components.
Independent claim 17 recites a method of lowering a cloud
point of a mineral middle distillate fuel component using a renewable
fuel component to produce a blend substantially the same as the blend
of claim 1 with a cloud point that is lower than that of the mineral
middle distillate fuel component.
Independent claim 18 recites a method of lowering a cloud
point of a renewable fuel component using a mineral middle distillate
fuel component to produce a blend substantially the same as the blend
of claim 1 with a cloud point that is lower than that of the renewable
fuel component.
REFERENCES
The Examiner relies on the following prior art:
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Application 15/876,426

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Name Reference Date
Marker et al. (“Marker”) US 2011/0105812 A1 May 5, 2011
Baldiraghi et al.
(“Baldiraghi”)
US 2011/0239532 A1 Oct. 6, 2011

REJECTIONS
The Examiner maintains, and Appellant requests our review of, the
following rejections under 35 U.S.C. § 103:
1. Claims 1–33 as unpatentable over Baldiraghi;
2. Claims 1–33 as unpatentable over Baldiraghi in view of Marker.
OPINION
We review the appealed rejections for error based upon the issues
Appellant identifies, and in light of the arguments and evidence produced
thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential)
(cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011)
(“[I]t has long been the Board’s practice to require an applicant to identify
the alleged error in the examiner’s rejections.”). After considering the
argued claims and each of Appellant’s arguments, we are persuaded of
reversible error in the appealed rejections.
The Examiner finds that Baldiraghi discloses a diesel fuel blend
comprising a petroleum component (A), including all known diesel cuts,
such as medium distillates having boiling points (“BP”) ranging from 180–
380°C, and up to 75 vol% of a biological origin component (B, or renewable
fuel component), particularly to improve cold flow behavior. Ans. 3. The
Examiner also finds that Baldiraghi discloses that component B provides
Blend[s] of n-paraffins and iso-paraffins, containing a higher
amount of iso-paraffins than normal paraffins [0089]–[0090],
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even at low concentrations in the order of only a few units
percentage, is unexpectedly capable of improving not only the
CFPP (cold filter plugging point), but also the cloud point and
pour point of the diesel fuel composition. . . .
Id. at 4. Further, the Examiner finds that Baldiraghi discloses that
component B may be produced by hydrodeoxygenation, hydroisomerization,
and distillation of a biological origin hydrocarbon source, such as soya or
palm oil, to increase the isoparaffin content to greater than 70 wt%. Id. The
Examiner determines that Baldiraghi recognizes that isoparaffins, when
added to component A, improve the blend’s cold properties. Id. at 4–5.
However, the Examiner acknowledges that “Baldiraghi [fails to] specifically
set forth the amount of n-paraffins and iso-paraffins in the diesel fuel blend.”
Id. at 5. Instead, the Examiner notes that the amount of isoparaffins and n-
paraffins present in the Baldiraghi’s diesel fuel blends varies depending on
the amount of component B, up to 75 vol%, added to component A, wherein
component B contains greater than 70% isoparaffins and less than 30% n-
paraffins. Id.
Although the Examiner maintains that the claims would have been
obvious over Baldiraghi’s teachings alone, the Examiner alternatively relies
further on Marker for teaching that paraffin isomerization improves cold
flow properties of diesel fuel hydrocarbon sources and that isomerization
conditions may be optimized to produce the desired amount of isoparaffins.
Ans. 6. As such, the Examiner concludes that it would have been obvious to
have provided a desired amount of isoparaffins to n-paraffins from a
renewable feedstock to improve the cold flow properties of petroleum based
diesel fuel compositions following the teachings of Baldiraghi and Marker.
Id.
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Appellant argues that the rejection relies solely on Baldiraghi’s
component B to support the rejection without considering the contribution of
component A to the blend’s amount of n-paraffins in the C14–C20 range and
the blend’s ratio of isoparaffins to n-paraffins in this range. Appeal Br. 15–
23. Appellant contends that Baldiraghi’s component B has a very low n-
paraffin content (id. at 17–18), the paraffin content of Baldiraghi’s
component A is unknown (id. at 19–20) and, as a result, Baldiraghi fails to
teach the composition of the blend (id. at 20–21). In addition, Appellant
argues that Marker teaches that a greater amount of isomerization is desired
so as to overcome cold flow properties of n-paraffins. Id. at 24. Appellant
contends that there is no disclosure or suggestion in the prior art that routine
optimization could occur by which all known diesel cuts could be evaluated
for use with Baldiraghi’s component B that would result in a diesel fuel
blend having the recited properties. Id. at 29–30.
Appellant’s arguments are persuasive of reversible error in the
Examiner’s obviousness rejections because the Examiner fails to adequately
explain how the composition of a blend of two components would have the
recited paraffin amounts where the composition of one of these two
components, Baldiraghi’s component A, is undisclosed. Merely indicating
that component A could be any known diesel cut is insufficient to
demonstrate that the diesel blend of claim 1, and the methods for producing
diesel blends of claims 10, 17, and 18, would have been obvious to one of
ordinary skill in the art. Presumably, the Examiner’s rejection relies on
optimizing the isomerization degree of Baldiraghi’s component B such that,
when blended with an appropriate amount by volume of any known diesel
cut, one skilled in the art would have arrived at a blend having 10–25 wt%
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n-paraffins in the C14–C20 range and a ratio of the isoparaffins to the n-
paraffins in this range that is less than 2.2. However, other than finding that
the prior art teaches isomerization of n-paraffins improves cold flow
properties and that isomerization degree can be controlled to the desired
level, the Examiner fails to direct our attention to any evidentiary teaching or
persuasive technical reasoning that the ordinary artisan would have
performed routine optimization of the isomerization degree of Baldiraghi’s
component B so as to provide, when blended with any particular known
diesel cut, the recited amounts of isoparaffins and n-paraffins in the C14–
C20 range.
The Examiner has the initial burden of establishing a prima facie case
of obviousness. See In re Piasecki, 745 F.2d 1468, 1472 (Fed. Cir. 1984); In
re Rinehart, 531 F.2d 1048, 1051 (CCPA 1976). Meeting that burden
requires establishing that the applied prior art would have provided one of
ordinary skill in the art with an apparent reason to modify the prior art to
arrive at the claimed invention. See KSR Int’l Co. v. Teleflex Inc., 550 U.S.
398, 418 (2007). Here, we are persuaded that the Examiner has not provided
an apparent reason to modify Baldiraghi alone, or further in view of Marker,
to arrive at the invention recited in claims 1, 10, 17, and 18. Accordingly, we
do not sustain the Examiner’s obviousness rejections of these claims, nor
their dependent claims.
CONCLUSION
Upon consideration of the record and for the reasons set forth above
and in the Appeal and Reply Briefs, the Examiner’s decision to reject claims
1–33 under 35 U.S.C. § 103 as unpatentable over Baldiraghi alone, or
further in view of Marker, is reversed.
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DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1–33 103 Baldiraghi 1–33
1–33 103 Baldiraghi, Marker 1–33
Overall
Outcome
1–33

REVERSED