UNITED STATES PATENT AND TRADEMARK OFFICE
`__________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________________________________________________________________
`
`UMICORE AG & CO. KG,
`
`Petitioner
`
`
`Patent No. 7,601,662
`Original Issue Date: Oct. 13, 2009
`Reexamination Certificated Issued: June 7, 2013
`Title: COPPER CHA ZEOLITE CATALYSTS
`_________________________________________________________________
`
`PETITION FOR INTER PARTES REVIEW
`OF U.S. PATENT NO. 7,601,662
`PURSUANT TO 35 U.S.C. § 312 and 37 C.F.R. § 42.104
`
`Case No. IPR2015-01121
`__________________________________________________________________
`
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`I.
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`TABLE OF CONTENTS
`Mandatory Notices (37 C.F.R. § 42.8) ..................................................................... 1
`
`A.
`
`B.
`
`C.
`
`Real Party-in-Interest (37 C.F.R. § 42.8(b)(1)) ............................................ 1
`
`Related Matters (37 C.F.R. § 42.8(b)(2)) ...................................................... 1
`
`Counsel (37 C.F.R. § 42.8(b)(3)) ................................................................... 2
`
`II.
`
`Payment of Fees (37 C.F.R. § 42.103) ..................................................................... 2
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`III. Requirements for IPR (37 C.F.R. § 42.104) ............................................................ 2
`
`A. Grounds for Standing (37 C.F.R. § 42.104(a)) ............................................ 2
`
`B.
`
`C.
`
`Identification of Challenge (37 C.F.R. § 42.104(b)(1)-(3)) and
`Relief Requested (37 C.F.R. § 42.22(a)(1)) .................................................. 3
`
`Claim Construction (37 C.F.R. § 42.104(b)(3)) ........................................... 4
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`1.
`
`2.
`
`3.
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`“catalyst” ................................................................................................ 4
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`“[Zeolite having the CHA crystal structure”............................................. 5
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`“[I]on-exchanged copper” and “non-exchanged copper” (claim 9) .............. 5
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`4.
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`“[T]he catalyst effective to promote the reaction of ammonia with
`nitrogen oxides to form nitrogen and H20 selectively” (claim 1) ................. 6
`Summary of the ’662 Patent ..................................................................................... 9
`
`IV.
`
`V. How Challenged Claims are Unpatentable (37 C.F.R. § 42.104(b)(4)-(5)) ....... 10
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`A. Ground 1: Claims 1-11 and 30 are obvious under 35 U.S.C.
`§ 103(a) over Zones or Zones in view of Maeshima ............................... 10
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`A. Ground 2: Claims 12-24 and 32-50 are obvious under 35 U.S.C.
`§ 103(a) over Zones and Maeshima in view of Patchett. ........................ 23
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`VI.
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`PURPORTED SECONDARY CONSIDERATIONS ..................................... 45
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`VII. CONCLUSION ....................................................................................................... 51
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`-i-
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`LISTING OF EXHIBITS
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`Exhibit 1001
`
`U.S. Patent No. 7,601,662 to Bull et al.
`
`Exhibit 1002
`
`U.S. Patent No. 4,046,888 to Maeshima et al.
`
`Exhibit 1003
`
`U.S. Patent No. 4,503,023 to Breck, deceased et al.
`
`Exhibit 1004
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` U.S. Patent No. 6,709,644 to Zones et al.
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`Exhibit 1005
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`Exhibit 1006
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`
`Exhibit 1007
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`Exhibit 1008
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`Exhibit 1009
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`Exhibit 1010
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`Exhibit 1011
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`Exhibit 1012
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`
`Exhibit 1013
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`Exhibit 1014
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`U.S. Patent Application Publication No. US 2006/0039843 to
`Patchett et al.
`
`U.S. Patent Application Publication No. US 2005/0031514 to
`Patchett et al.
`
`Dedecek et al., “Siting of the Cu+ Ions in Dehydrated Ion
`Exchanged Synthetic and Natural Chabasites: a Cu+
`Photoluminescence Study” Microporous and Mesoporous
`Materials, Vol. 32, pp. 63-74 (1999).
`
`Expert Declaration of Johannes A. Lercher, Ph.D
`
`Excerpts from File History of U.S. Patent No. 7,601,662 to Bull et
`al. and Reexamination No. 95/001,453
`
`U.S. Patent No. 4,961,917 to Byrne
`
`U.S. Patent No. 5,516,497 to Speronello et al.
`
`Ishihara et al., “Copper Ion-Exchanged SAPO-34 as a
`Thermostable Catalyst for Selective Reduction of NO with C3H6,”
`169 Journal of Catalysis 93-102 (1997)
`
`U.S. Patent No. 4,297,328 to Ritscher et al.
`
`Chung, S.Y. et al., “Effect of Si/Al Ratio of Mordenite and ZSM-
`5 Type Zeolite Catalysts on Hydrothermal Stability for NO
`Reduction by Hydrocarbons,” Studies in Surface Science and
`Catalysis, vol. 130, pp. 1511-1516 at 1513 (2000)
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`-ii-
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`Exhibit 1015
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`Declaration of Dr. Frank-Walter Schütze
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`Exhibit 1016
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`U.S. Patent No. 4,544,538 to Zones
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`-iii-
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`Pursuant to 35 U.S.C. §§ 311-319 and 37 C.F.R. § 42, real party-in-interest,
`
`Umicore AG & Co. KG (“Umicore” or “Petitioner”) respectfully requests inter partes
`
`review (“IPR”) of claims 1-24, 30, and 32-50 of U.S. Patent No. 7,601,662 (“the ’662
`
`patent”), to Ivor Bull et al., which was filed on February 27, 2008 and issued on Oct.
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`13, 2009. Reexamination of the ’662 patent commenced on November 16, 2011, and
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`a reexamination certificate issued on June 7, 2013. According to the U.S. Patent and
`
`Trademark Office (“USPTO”) assignment records, the ’662 patent is currently
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`assigned to BASF Corporation (“Patent Owner”). There is a reasonable likelihood
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`that Petitioner will prevail with respect to at least one claim challenged in this Petition.
`
`I. Mandatory Notices (37 C.F.R. § 42.8)
`A. Real Party-in-Interest (37 C.F.R. § 42.8(b)(1))
`Petitioner, Umicore, along with parent Umicore S.A. (also referred to as
`
`“Umicore NV”) and its wholly owned subsidiaries Umicore USA Inc., Umicore
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`Autocat Canada Corp., and Umicore Autocat USA Inc. are the real parties-in-interest.
`
`B. Related Matters (37 C.F.R. § 42.8(b)(2))
`Petitioner is not aware of any existing related matters. Petitioner is
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`concurrently filing IPR Petition No. IPR2015-01125, which also relates to the ’662
`
`patent. This petition focuses on a primary prior art reference that discloses
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`aluminosilicate CHA zeolite catalysts that are specifically intended for use in internal
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`combustion engines, and have a silica to alumina mole ratio within the claimed range.
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`The secondary reference discloses and provides a motivation to modify those catalysts
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`-1-
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`by adding copper, resulting in a copper to aluminum atomic ratio within the claimed
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`range. The -1125 petition focuses on the reverse: There, the primary prior art
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`references disclose aluminosilicate CHA catalysts with copper to aluminum atomic
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`ratios within the claimed range, and secondary references that disclose and provide
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`the motivation to modify the primary reference catalysts to use silica to alumina mole
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`ratios within the claimed range.
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`C.
`Counsel (37 C.F.R. § 42.8(b)(3))
`Lead Counsel: Elizabeth Gardner (Reg. No. 36,519)
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`Back-up Counsel: Richard L. DeLucia (Reg. No. 28,839)
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`Electronic Service information: egardner@kenyon.com; rdelucia@kenyon.com
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`Post and Delivery: Kenyon & Kenyon LLP, One Broadway, New York, NY 10004
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`Telephone: 212-425-7200 Facsimile: 212-425-5288
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`II.
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`Payment of Fees (37 C.F.R. § 42.103)
`The USPTO is authorized to charge the filing fee and any other fees that are
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`incurred by Petitioner to the deposit account of Kenyon & Kenyon LLP: 11-0600.
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`III. Requirements for IPR (37 C.F.R. § 42.104)
`A. Grounds for Standing (37 C.F.R. § 42.104(a))
`Petitioner certifies that the ’662 patent (Ex. 1001) is available for IPR and that
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`Petitioner is not barred or estopped from requesting an IPR challenging the patent
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`claims on the grounds identified in this petition.
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`-2-
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`
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`B.
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`Identification of Challenge (37 C.F.R. § 42.104(b)(1)-(3)) and Relief
`Requested (37 C.F.R. § 42.22(a)(1))
`Petitioner requests inter partes review of and challenges claims 1-24, 30, and 32-
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`50 of the ’662 patent. Each claim should be found unpatentable and cancelled. This
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`petition explains the reasons why the claims are unpatentable, includes a description
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`of the relevance of the prior art, and identifies where each claim element can be found
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`in that art. Detailed claim charts are provided, and additional explanation and support
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`is set forth in the attached Declarations of Johannes A. Lercher, Ph.D (Ex. 1008) and
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`Dr. Frank-Walter Schütze (Ex. 1015).
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`The ’662 patent was filed as U.S. App. 12/038,423 and claims priority to U.S.
`
`Prov. App. 60/891,835, filed Feb. 27, 2007. While Petitioner does not concede that
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`the ’662 patent is entitled to claim the benefit of this application, for purposes of this
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`petition it is assumed that the ’662 patent’s effective filing date is Feb. 27, 2007.
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`Petitioner relies on the following references: (1) U.S. 6,709,644, issued March
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`23, 2004 (“Zones,” Ex. 1004); (2) U.S. 4,046,888, issued September 6, 1977
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`(“Maeshima,” Ex. 1002); and (3) U.S. App. 2006/0039843, published Feb. 23, 2006
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`(“Patchett,” Ex. 1005). Zones, Maeshima and Patchett are prior art under 35 U.S.C. §
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`102(b).
`
` Petitioner requests cancellation on the following grounds:
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`Ground 1: Claims 1-11 and 30 are obvious under 35 U.S.C. § 103(a) over
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`Zones in view of Maeshima.
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`-3-
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`Ground 2: Claims 12-24 and 32-50 are obvious under 35 U.S.C. § 103(a) over
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`Zones and Maeshima in view of Patchett.
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`While certain of this prior art was individually cited during reexamination of the
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`’662 patent, none of the above grounds was considered or assessed by the examiner.
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`Additionally, this petition is accompanied by declarations discussing the testing of
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`catalytic materials both within and outside of the claimed ranges. These declarations
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`show that there is nothing critical or unexpected about the claimed ranges, and were
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`also not available to the examiner or considered during reexamination.
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`C.
`Claim Construction (37 C.F.R. § 42.104 (b)(3))
`A claim term subject to IPR is given its “broadest reasonable construction in
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`light of the specification.” 37 C.F.R. § 42.100(b). Terms are to be given their plain
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`meaning unless it is inconsistent with the specification. In re Zletz, 893 F.2d 319, 321-
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`22 (Fed. Cir. 1989). Petitioner contends that certain of the claim terms are indefinite
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`and render the claims invalid under 35 U.S.C. § 112. However, because indefiniteness
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`cannot be raised herein, Petitioner proposes the following in rendering the broadest
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`reasonable constructions:
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`“catalyst” (claim 1)
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`1.
`The “catalyst” of the claims is indefinite, as it is defined as having various
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`metrics and characteristics set forth in the body of the claim, but it is unclear whether
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`those recited features (such as mole ratios and atomic ratios) are those of the zeolite
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`alone, or whether they are of the entire catalyst in its broadest sense, which would
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`include a combination of the zeolite and binder, as well as the various substrates on
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`which the zeolite is deposited. (Ex. 1001, 2:56-3:2.) Accordingly, because these two
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`possibilities overlap in scope, with neither being necessarily broader than the other,
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`the broadest reasonable interpretation of the “catalyst” would embrace both a zeolite
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`alone and the zeolite in combination with a binder well and substrate on which the
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`zeolite and binder are deposited. (See Ex. 1008, Lercher Dec. at ¶¶ 42-45.)
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`“[Z]eolite having the CHA crystal structure” (claim 1)
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`2.
`The ’662 patent’s specification provides that the “CHA crystal structure” is
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`“defined by the International Zeolite Association.” (Ex. 1001, ’662 patent, at 1:55-
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`57.) According to that definition, zeolites with this particular crystal structure are also
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`known as “chabazite.” (Ex. 1008, Lercher Dec. at ¶¶ 47-51.)
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`3.
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`“[I]on-exchanged copper” and “non-exchanged copper” (claim 9)
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`All of the ’662 patent’s claims require a catalyst that includes “copper.” Claim
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`9 requires both “ion-exchanged copper” and “non-exchanged copper.” The term
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`“ion-exchanged copper” is used in accordance with its ordinary meaning to refer to
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`copper ions that bind, by ion exchange, to exchange sites on the zeolite structure
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`itself. (Id. at 5:31-44; see also Ex. 1008, Lercher Dec. at ¶¶ 58-61.) The term “non-
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`exchanged copper” is also used in accordance with its ordinary meaning. According
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`to the specification, “non-exchanged copper” includes copper that is not bound to the
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`zeolite structure by ion exchange but is instead present in salt form, for example as
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`CuSO4, which converts to “free” or “soluble” copper in the form of CuO after
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`-5-
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`
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`calcination of the zeolite during manufacturing. (Ex. 1001, ’662 patent, at 5:38-46.)
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`4.
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`“[T]he catalyst effective to promote the reaction of ammonia with nitrogen
`oxides to form nitrogen and H2O selectively” (claim 1)
` The claims also all require a “catalyst effective to promote the reaction of
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`ammonia with nitrogen oxides to form nitrogen and H2O selectively.” This claim
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`limitation should be interpreted to require only what it states, namely, that the catalyst
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`be able to promote the selective reaction of NH3 with NOx to form N2 and H2O, i.e.,
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`that it be an SCR catalyst. (Ex. 1008, Lercher Dec. at ¶¶ 52-57.)
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`Despite the straight-forward language of the claim, Patent Owner may argue
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`that this limitation should be interpreted narrowly to require very specific
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`performance characteristics. For instance, during reexamination, the Patent Owner
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`suggested that the catalysts of the ’662 patent purportedly have “excellent” catalytic
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`activity at low temperatures, including below 250 °C, and maintain this activity even
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`after exposure to extreme hydrothermal conditions. (See Ex. 1009, Inter Partes Reex.
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`No. 95/001,453, 10/12/12 Respondent Brief, at 7-8.) There is nothing, however, in
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`the claims requiring this type of performance. And, the ’662 patent’s specification
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`does not define any claim term to require, or disclaim coverage of materials that do
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`not possess, these performance characteristics. In fact, the specification shows that
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`the materials of the patent do not need to have excellent or improved activity. For
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`instance, the catalyst of Example 1 has the CHA crystal structure and the proportions
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`of silica, alumina, and copper required by claim 1. (Ex. 1001 at 10:48-50; Table 1.)
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`-6-
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`Yet, this catalyst “did not show enhanced resistance to thermal aging.” (Id. at 11:20-
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`25.) Accordingly, the claims cannot be properly limited to just catalytic materials that
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`exhibit excellent activity at certain temperatures, have improved resistance to
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`hydrothermal aging, or exhibit any of the other characteristics the Patent Owner has
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`attempted to highlight.
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`Patent Owner has also erroneously argued that In re Papesch, 315 F.2d 381, 391
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`(CCPA 1963) somehow requires limiting of the ’662 patent claims. According to the
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`Patent Owner, allegedly improved catalytic activity over a wide temperature range and
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`improved resistance to aging are “inseparable” from the claimed catalyst, and
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`therefore must have a bearing on claim scope. (Ex. 1009, Inter Partes Reex. No.
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`95/001,453, 12/19/11 Amend. , at p. 18.) The patent examiner accepted and relied
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`on this argument in the allowing the ’662 patent’s claims. (Id., at 5/11/12 Action
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`Closing Prosecution, at p. 36.) In re Papesh, however, has no applicability to the ’662
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`patent. In re Papesch involved claims directed to chemical compounds with structures
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`that were prima facie obvious in view of a prior art compound. 315 F.2d 381, 382-83
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`(CCPA 1963). The only difference between the two compounds was that the Papesch
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`compound had three ethyl groups while the prior art compound had three methyl
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`groups. Id. at 383. However, the Papesch’s compound’s slightly different structure
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`produced unexpected anti-inflammatory properties. Id. Because a chemical
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`compound and its properties are inseparable, the In re Papesch court held that the
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`difference between the properties of the claimed compound and the prior art
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`
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`compound was sufficient to demonstrate non-obviousness. Id. at 391. In other
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`words, In re Papesch relates to the obviousness of a chemical compound with a
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`particular structure that has inherent properties resulting from that structure. For
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`example, a boiling point of 100 °C is an inherent property of H2O.
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`Unlike In re Papesch, the ’662 patent does not claim a chemical compound with a
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`set structure and formula. Instead, its claims are directed to “catalysts” comprising a
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`zeolite with the CHA crystal structure, a mole ratio of silica to alumina falling
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`anywhere from 15 to 150, and various amounts of copper. Moreover, the claims are
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`open to the inclusion of additional unrecited elements. For instance, the catalyst will
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`be deposited on a substrate using a binder and can include both “ion-exchanged” and
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`“free” copper. In view of this, the “catalysts” of the ’662 patent’s claims do not
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`possess uniform, inherent properties like H2O or the compound at issue in In re
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`Papesch. Rather, each catalyst within the scope of the claims will have different
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`properties that will depend not only upon the structure of the zeolite, but also on the
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`proportions of silica, alumina, aluminum, and copper, whether the copper is ion-
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`exchanged or free, the type of binder used, other components present, and the
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`configuration of the catalyst on the substrate. Thus, In re Papesch does not apply.
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`“Excellent” low temperature performance, or resistance to hydrothermal aging are not
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`“inherent” properties of all the claimed catalysts, and the claims cannot be properly
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`interpreted to be limited. Confirming this, cases following In re Papesch have explicitly
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`held that that case is inapplicable to claims directed to zeolites. For instance, In re
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`-8-
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`
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`Grose, 592 F.2d 1161 (CCPA 1979), explains that “a zeolite . . . is not a compound
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`which is a homolog or isomer of another, but is a mixture of various compounds
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`related to each other by a particular crystal structure.” Id. at 1168. Thus, “[n]o reason
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`exists for applying the law relating to structural obviousness” set forth in In re Papesch.
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`Id. at 1167-68.
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`IV. Summary of the ’662 Patent
`The ’662 patent relates to aluminosilicate zeolite catalysts having the CHA
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`crystal structure. (Ex. 1001, ’662 patent, 1:13-15.) These catalysts incorporate copper
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`to facilitate their use in gas exhaust treatment systems to reduce nitrogen oxides. (Id.
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`at 1:15-18.) The ’662 patent acknowledges that both aluminosilicate and copper
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`promoted zeolites useful as nitrogen oxide reducing catalysts were known in the prior
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`art. (Id. at 1:30-34.) It was also known that zeolites can be used as part of a “selective
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`catalytic reduction,” or “SCR,” process to catalyze the selective reaction of ammonia
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`with nitrogen oxides to form nitrogen and water. (Id. at 8:38-44.)
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`The ’662 patent’s claims purport to be an advantage over the acknowledged
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`prior art due to recited ranges of mole ratios of silica to alumina (the “SAR”) and
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`atomic ratios of copper to aluminum (the “Cu/Al ratio”). Claim 1, the only
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`independent claim, requires a SAR from about 15 to about 150 and a Cu/Al ratio
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`from about 0.25 to about 1. This claim also calls for the catalyst to be “effective to
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`promote the reaction of ammonia with nitrogen oxides to form nitrogen and H2O
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`selectively.” The remaining claims are all dependent. Claims 25-29 and 31 were
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`-9-
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`cancelled during reexamination.
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`V. How Challenged Claims are Unpatentable (37 C.F.R. § 42.104(b)(4)-(5))
`A. Ground 1: Claims 1-11 and 30 are obvious under 35 U.S.C. § 103(a)
`over Zones or Zones in view of Maeshima
`Zones (Ex. 1004) is generally directed to an aluminosilicate zeolite, SSZ-62
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`which has the chabazite crystal structure, for use as a catalyst for the selective
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`reduction of oxides of nitrogen. Zones discloses reaction mixtures of zeolite catalysts
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`that have a SAR value greater than 10, ranging from 20-50, and more preferably
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`ranging from 25-40. (Ex. 1004 at 1:32-35; 2:30-38.) Example 1 of Zones describes
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`the preparation of a particular SSZ-62 chabazite zeolite having a SAR value of 22. (Id.
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`at 6:8-31.) Claim 3 describes a zeolite with a SAR of at least 30. (Id. at 7:34-35.)
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`Zones also teaches that the zeolite may be exchanged or impregnated to contain metal
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`or metal ions, and identifies copper as one such metal, to catalyze the reduction of
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`oxides of nitrogen. (Id. at 1:61-64; 5:25-28.) Zones does not place any limitation on
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`the amount of copper, but states that such a metal cation is preferably incorporated in
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`the range of from 0.05 to 5% by weight. (Id. at 5:25-28.)
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`Maeshima relates to zeolite catalysts that can be used in “a process wherein the
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`concentration of nitrogen oxides is reduced by catalytic reduction.” (Ex. 1002,
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`Maeshima, at 1:8-10.) This entails “contacting the … gaseous mixture with a catalyst
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`in the presence of ammonia to reduce the nitrogen oxides selectively.” (Id. at 2:4-8.)
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`Maeshima’s process is meant to be operable at a temperature range of 200 oC to about
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`-10-
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`500 oC. (Id. at 2:48-49, 3:20-32.) “[A] crystalline aluminosilicate” can be used as the
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`catalyst. (Id. at 3:33-35.) “Chabazite” is provided as an example of a “suitable …
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`zeolite.” (Id. at 4:6-12.) Maeshima states that the zeolite catalysts employed in its
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`process should have a SAR greater than 2. (Id. at 3:67-4:3.) Further, “at least one
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`metal cation having an activity of reducing nitrogen oxides” can be incorporated into
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`the zeolite. (Id. at 3:35-38.) Copper can be used for this purpose. (Id. at 4:51-54.)
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`According to Maeshima, zeolite catalysts should incorporate a sufficient amount of
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`active metal such that resulting “ion exchange ratio” is “about 60 to about 100%.”
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`(Id. at 4:44-54.) Maeshima also explains that the catalyst should be impregnated with a
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`“catalytically effective amount” of active metal, which is “preferably about 2 to about
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`10%” active metal by weight. (Id. at 6:1-18.) And, Maeshima includes an example of
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`zeolite catalyst that includes 3% copper by weight. (Id. at 9:10-12.)
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`Applying Maeshima’s teachings regarding copper addition to the Zones catalyst
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`results in a catalyst with the SAR value and Cu/Al ratio within the scope of claim 1.
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`Applying the teachings of the copper addition of Maeshima to, for example, to the
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`aluminosilicate chabazite zeolite of Example 1 of Zones, with a SAR value of 22, one
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`of ordinary skill in the art would incorporate from 60 to 100% of theoretical
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`maximum exchange amount of copper into Zones’s zeolite, resulting in a Cu/Al
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`atomic ratio of 0.3 – 0.5. (Id. at 4:44-45). Similarly, Zones teaches a preferred SAR
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`value of 25 - 40 and includes a claim 3 with a specifically recited SAR value of at least
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`30. (Ex. 1004 at 2:34; 7:34-35.) One seeking to incorporate copper into the
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`-11-
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`aluminosilicate chabazite zeolite of Zones with a SAR value of 30, for example, would
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`similarly incorporate between 60 and 100% of copper’s theoretical exchange amount
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`into Zones’s zeolite, resulting in a Cu/Al atomic ratio of 0.3 – 0.5. (See Ex. 1008,
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`Lercher Dec. at ¶¶ 94-100.) The catalysts would also respectively be approximately
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`2.0% and 3.2% Cu by weight (see id. at ¶ 108), which is within Maeshima’s acceptable
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`2% to 10% range. (See Ex. 1002, Maeshima at 6:1-18; see also Ex. 1004 at 5:24-28.)
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`The combination of Zones and Maeshima also teach a zeolite catalyst that is
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`effective to promote the reaction of ammonia with nitrogen oxides to form nitrogen
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`and H2O selectively, as required by claim 1. As taught by Zones, the Zones catalyst is
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`useful for reducing oxides of nitrogen. (Ex. 1004 at 1:54-57) Maeshima also expressly
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`provides that its catalysts can be used in an SCR process to selectively reduce nitrogen
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`oxides in a gas stream containing oxygen. (Ex 1002 at 2:4-8.) Accordingly, the
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`combination of Zones and Maeshima teaches a catalyst falling squarely within the
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`scope of claim 1 of the ’662 patent.
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`Claim 2 depends from claim 1 and requires a SAR of 15 to 100. Claims 3 and
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`4, which each depend from claim 2 and require SAR of 25 - 40 and SAR of 30,
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`respectively. As discussed above, the combination of Zones and Maeshima fall within
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`the scope of each limitation of claims 2, 3, and 4.
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`Claims 5 and 7 each depend from claim 2 and require a Cu/Al ratio of 0.3 - 0.5,
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`and claim 7 additionally requires a SAR of 25 - 40. Thus, the above combination of
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`Zones and Maeshima teach a catalyst that meets each limitation of claims 5 and 7.
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`-12-
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`Claim 6 depends from claim 2 and requires that the atomic ratio of Cu/Al is
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`about 0.4. Similarly, claim 8 depends from claim 2 to and requires a Cu/Al ratio of
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`0.4 and further requires an SAR of 30. As discussed above Zones teaches the claimed
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`zeolite with a SAR of 30. As taught by Maeshima, copper can be loaded from 60 –
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`100% of the ion exchange maximum. At 80% copper addition, the middle of the
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`range taught by Maeshima, the combination of Zones and Maeshima would result in a
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`Cu/Al ratio of 0.4. (Ex. 1002, Maeshima at 4:48-50.) One of ordinary skill in the art
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`as of February 2007 would consider an 80% ion exchange ratio to be readily
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`achievable and a highly obvious ratio consider and utilize when making the zeolite of
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`Zones. (See Ex. 1008, Lercher Dec. at ¶¶ 124-127.)
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`Claim 9 depends from claim 2 and recites that the catalyst contains ion-
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`exchanged copper and non-exchanged copper. Maeshima explains that copper can be
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`incorporated into zeolites using customary impregnation and ion-exchange methods,
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`including immersing the zeolite in an aqueous solution of a copper compound, and
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`then removing the catalyst from the solution so that it can be “calcined … to …
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`convert the metal compound to an oxide acting as an active metal component.” (Ex.
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`1002, Maeshima at 6:66-7:13.) One of ordinary skill in the art would understand that
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`this customary method of copper incorporation will result in the formation of some
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`non-exchanged copper deposits. (See Ex. 1008, Lercher Dec. at ¶¶ 134-138.) Thus
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`Zones and Maeshima teach all the limitations of dependent claim 9.
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`-13-
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`Claim 10, which depends from claim 9, recites that the “NOx conversion
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`performance of the catalyst at about 200 °C after aging is at least 90% of the NOx
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`conversion performance of the catalyst at about 200 °C prior to aging.” Maeshima
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`describes a catalyst and SCR process that is intended to be effective at a “reaction
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`temperature of about 200o to about 500o C….” (Ex. 1002, Maeshima at 3:20-24.)
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`One of ordinary skill would optimize the catalytic material—and other unclaimed
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`reaction conditions such reductant amount and timing, temperature, and presence of
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`binders and other gases—such that it retains 90% of its performance after aging is
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`nothing more than routine, obvious design work. (See Ex. 1008, Lercher Dec. at ¶¶
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`141-143.) Thus Zones and Maeshima teach all the limitations of dependent claim 10.
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`Claim 11 depends from claim 9 and recites that the catalyst contains at least
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`about 2.00 weight percent copper oxide. Zones teaches that copper can be
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`incorporated into the zeolite using standard ion exchange or impregnation
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`techniques and involve “contacting the synthetic zeolite with a solution containing
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`a salt of the desired replacing cation [such as] . . . halides. (Ex. 1004, Zones at
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`4:41-45.) Maeshima explains that a catalytic zeolite should include 2% to 10% by
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`weight of an active metal, like copper. (Ex. 1002, Maeshima at 6:1-18.) Maeshima
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`also explains that the process used to impregnate copper results in the formation of
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`“an oxide acting as an active metal component.” (Id. at 6:66-7:14.) Thus, copper will
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`be incorporated into Maeshima’s zeolite in the form of copper oxide. Since the
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`molecular weight of copper oxide is greater than that of copper, and the catalyst of
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`-14-
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`

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`
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`Maeshima includes at least 2% copper, that catalyst will also be more than 2% copper
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`oxide. (See Ex. 1008, Lercher Dec. at ¶¶ 146-147.) Thus Zones and Maeshima teach
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`all the limitations of dependent claim 11.
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`Claim 30, which depends from and includes all the limitations of claim 2,
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`recites that the catalyst is effective for selective catalytic reduction of at least one
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`component of NOx in the exhaust gas stream. Zones teaches a catalyst used in
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`an improved process for the reduction of oxides of nitrogen contained in the gas
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`stream in the presence of oxygen. (Ex. 1004, Zones at 1:54-56.) Maeshima discloses
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`an SCR process for the reduction of nitrogen oxides in a gaseous stream. (Ex. 1002,
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`Maeshima at 1:8-10; 2:4-8.)
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`One of ordinary skill in the art as of February 20071 would have been
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`motivated to combine Zones with Maeshima to arrive, with a reasonable expectation
`
`of success, at the subject matter of the claims. (See Ex. 1008, Lercher Dec. at ¶¶ 151-
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`160.) As explained above, while Zones discloses the use of aluminosilicate zeolites
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`with the CHA crystal structure and the incorporation of copper, it does not expressly
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`
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`1 For purposes of this Petition, one of ordinary skill in the art is assumed to hold at
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`least a Master’s degree in chemistry or a related discipline, and have knowledge of the
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`structure and chemistry of molecular sieves like zeolites, including factors that impact
`
`their stability and activity. (See Ex. 1008, Lercher Dec. at ¶ 66.)
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`-15-
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`

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`
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`place limitations on the copper content as recited in the claims of the ’662 patent. As
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`explained above, Maeshima discloses the incorporation of copper into aluminosilicate
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`zeolites with the CHA crystal structure. One of ordinary skill in the art, seeking to
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`obtain the benefit of copper loading as described by Maeshima would combine
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`Maeshima’s copper loading teaching with the zeolite catalyst of Zones. (Ex. 1008,
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`Lercher Dec. at ¶¶ 152-154.) Maeshima teaches loading an aluminosilcate chabazite
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`zeolite with copper in an amount of from 60 to 100% of its exchange capacity. Zones
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`and Maeshima together provide one of ordinary skill in the art with motivation to
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`increase the copper ion content of Zone’s aluminosilicate chabazite zeolites up to the
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`100% ion-exchange rate for use in SCR in the presence of ammonia. (Id at ¶¶ 152-
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`154.)
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`One of ordinary skill in the art would also have every reason to believe that
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`increasing the copper of Zone’s zeolites catalysts as instructed by Maeshima would
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`succeed. In fact, as acknowledged in the ’662 patent’s Background section “[m]etal-
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`promoted zeolite catalysts, including, among others, iron-promoted and copper-
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`promoted zeolite catalysts, for the selective catalytic reduction of nitrogen oxides with
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`ammonia are known.” (Ex. 1001 at 1:30-33.) Maeshima explains that “at least one
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`metal cation having an activity of reducing nitrogen oxides” should be incorporated
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`into the zeolite via ion exchange. (Ex. 1002, Maeshima at 3:35-38.) Copper can be
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`used for this purpose. (Id. at 4:51-54.) According to Maeshima, zeolite catalysts
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`should be ion exchanged with the active metal in the amount of 60% to 100%. (Id. at
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`-16-
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`

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`
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`4:44-54.) Maeshima also explains that the catalyst should be impregnated with 2% to
`
`10% active metal by weight. (Id. at 6:1-18.) And, Maeshima includes an example of
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`zeolite catalyst that includes 3% copper by weight. (Id. at 9:10-12.)
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`Zones and Maeshima are also in the same technical field (zeolite catalysts and
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`the use of these catalysts) and are directed to solving the same problem (catalyzing the
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`reduction of nitrogen oxides). (See Ex. 1008, Lercher Dec. at ¶ 158.) This would
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`further motivate the combination. (Id.) Additionally, the combination of Zones and
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`Maeshima amounts to nothing more than the application of one particular known
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`modification to catalytic zeolites with a known benefit—increasing the copper content
`
`of aluminosilicate chabazite zeolites to improve catalytic activity as taught by
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`Maeshima—to the very materials to which this modification is meant to be applied—
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`Zones high SAR copper-promoted aluminosilicate zeolites for use in SCR processes.
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`(Id. at ¶ 159.) Thus, application of Maeshima to Zones would be considered nothing
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`more than a routine optimization and an obvious design choice. (Id. at ¶ 160.)
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`The combination of Zones and Maeshima teach aluminosilicate zeolites of the
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`chabazite structure for use in SCR processes in the presence of ammonia, in other
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`words, “to promote the reaction of ammonia with nitro