Ranjit Kumar

Patent Trials and Appeals Board

Mar 12, 2021

2020002889 (P.T.A.B. Mar. 12, 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.
12/502,865 07/14/2009 Ranjit Kumar W9645-03 7013
30633 7590 03/12/2021
W.R. GRACE & CO.-CONN.
7500 GRACE DRIVE
COLUMBIA, MD 21044
EXAMINER
BOYER, RANDY
ART UNIT PAPER NUMBER
1771
MAIL DATE DELIVERY MODE
03/12/2021 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 RANJIT KUMAR
Appeal 2020-002889
Application 12/502,865
Technology Center 1700
Before LINDA M. GAUDETTE, MICHAEL P. COLAIANNI, and
SHELDON M. MCGEE, Administrative Patent Judges.
MCGEE, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 19–22, 24–29, 33, and 46–49.2 We
have jurisdiction. 35 U.S.C. § 6(b).
We affirm.

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies the real party in interest as W.R. Grace & Co.
Appeal Br. 2.
2 Claim 53 is indicated as allowable in the Non-Final Office Action dated
February 4, 2019 and is not before us on appeal. Non-Final Act. 6.
Appeal 2020-002889
Application 12/502,865
2
CLAIMED SUBJECT MATTER
The claims are directed to catalyst compositions comprising zeolite
and metal phosphate and methods of preparing such catalysts. Spec. ¶ 2;
Claims 19, 46.
Claim 19 is illustrative of the claimed subject matter, and is
reproduced below with a key limitation on appeal italicized:
19. A catalyst composition comprising
(a) zeolite selected from the group consisting of Beta,
ZSM-5, ZSM-11, ZSM-12, ZSM-20, ZSM-23, ZSM-35, ZSM-
38, ZSM-50, MCM-22, MCM-49, MCM-56 and cation,
exchanged derivatives thereof,
(b) metal phosphate and the metal is other than
aluminum, wherein the metal phosphate comprises at least 3%
by weight of the catalyst composition as measured by amount of
the metal’s corresponding oxide,
wherein the metal phosphate is distributed in the zeolite,
the catalyst composition is particulated and has a mean particle
size in the range of 20 to 150 microns, and wherein the catalyst
composition has a Davison Attrition Index in the range of 0 about
30.
STATEMENT OF THE CASE
The Examiner rejects all claims on appeal under 35 U.S.C. § 103(a)
over the combined disclosures of Eberly and Cody.3 Non-Final Act. 5–6.
The Examiner finds that Eberly discloses the claimed catalyst composition
but does not explicitly disclose the claimed mean particle size range of 20 to
150 microns. Id. at 5. To address this difference, the Examiner turns to
Cody, which the Examiner finds evinces how it was “known that such

3 The Examiner withdrew the rejection set forth at pages 3 and 4 of the Non-
Final Office Action dated February 4, 2019 (“Non-Final Act.”). Ans. 5.
Appeal 2020-002889
Application 12/502,865
3
(fluidizable) catalysts have a particle size in the range of 10 to 300 microns,
with an average particle diameter of about 60 microns.” Id. at 5–6.
Appellant argues on appeal that the relied upon prior art does not
teach or suggest a catalyst composition wherein a metal phosphate is
distributed in zeolite (claim 19) or a method of “combining” such a metal
phosphate with zeolite (claim 46). Appeal Br. 16–17; Reply Br. 2–4.
OPINION
We review the appealed rejection for reversible error based on the
arguments and evidence presented by Appellant. 37 C.F.R.
§ 41.37(c)(1)(iv); 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) (explaining that even if the Examiner had failed to make a prima
facie case, “it has long been the Board’s practice to require an applicant to
identify the alleged error in the examiner’s rejections”). Having reviewed
the appeal record, we affirm the obviousness rejection for the reasons
provided by the Examiner and below. Non-Final Act. 5–6; Ans. 5–7.
With respect to claim 19, Appellant attempts to distinguish the
claimed composition over that disclosed in the prior art by arguing Eberly’s
metal phosphate is not “distributed in” the zeolite. Appeal Br. 16; Reply Br.
2–4. Appellant, however, fails to provide sufficient explanation or evidence
to support that assertion.
As found by the Examiner (Ans. 6), Eberly expressly discloses the
direct addition of an alkaline earth phosphate to a catalyst composite which
may contain or be made entirely of “an active zeolite component.” Eberly
5:19–31. Appellant has not explained how such direct addition of the
alkaline earth phosphate to the zeolite does not fall within the scope of claim
Appeal 2020-002889
Application 12/502,865
4
19. Namely, Appellant does not point us to a specific definition that limits
“distributed in” to something other than its plain and ordinary meaning. See
Ans. 6 (“Among the commonly accepted definitions for ‘distribute’ is ‘to
spread throughout a space or over an area.’”).
Nor does Appellant persuasively argue that Eberly’s phosphate is
chemically incapable of being “distributed in” the zeolite. Reply Br. 3–4
(citing Eberly 4:21–31). The Eberly disclosure upon which Appellant relies
in support of that proposition merely indicates that “phosphate compounds
are sparingly soluble materials” and “will not tend to exchange with the
zeolite.” Eberly 4:27–31 (emphases added). This disclosure still allows for
some degree of solubility, and does not foreclose the possibility of exchange
between zeolite and alkaline earth phosphates.
Appellant’s assertions regarding the “combining” language in claim
46 fares no better. Appeal Br. 16–17. In addition to relying on the same
deficient arguments made for claim 19, Appellant also appears to assert that
Eberly’s disclosure fails to meet method step (a). See id. at 16 (underlining
step (a), but not step (b)). Appellant’s apparent assertion, however, lacks
sufficient explanation regarding precisely why Eberly fails to meet this
limitation. Rather, Appellant merely recites what the claim states, followed
by a one sentence assertion regarding Eberly’s disclosure. Id. Such
statements do not constitute the “type of separate, substantive argument
concerning the claim” required by our rules. In re Kao, 639 F.3d 1057, 1065
(Fed. Cir. 2011); 37 C.F.R. § 41.37(c)(1)(iv) (“The arguments shall explain
why the examiner erred as to each ground of rejection contested by
appellant.” (emphasis added)). In any event, Appellant does not directly
challenge the Examiner’s finding in the Answer that the limitations of claim
46 are met by Eberly. Ans. 6–7 (citing Eberly, 5:19–31); see Reply Br. 2–4
Appeal 2020-002889
Application 12/502,865
5
(addressing only the “distributed in” limitation of claim 19, but not the
“combining” limitation recited in step (a) of claim 46).
Therefore, because Appellant has not identified reversible error in the
rejection, we sustain it for the reasons expressed by the Examiner and those
provided supra.
CONCLUSION
The Examiner’s rejection is affirmed.
DECISION SUMMARY
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis  Affirmed Reversed
19–22, 24–
29, 33, 46–
49
103(a) Eberly, Cody 19–22, 24–
29, 33, 46–
49

TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).

AFFIRMED