UNITED STATES PATENT AND TRADEMARK OFFICE
`__________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________________________________________________________________
`
`UMICORE AG & CO. KG
`
`Petitioner
`
`v.
`
`BASF CORPORATION
`
`Patent Owner
`
`Case IPR2015-01121
`U.S. Patent 7,601,662
`__________________________________________________________________
`
`PETITIONER’S REPLY BRIEF IN SUPPORT OF ITS PETITION FOR INTER
`PARTES REVIEW
`__________________________________________________________________
`
`

`
`TABLE OF CONTENTS
`
`INTRODUCTION ..................................................................................................... 1
`ARGUMENT ............................................................................................................. 1
`I. BASF’S IMPROPER FOCUS ON “HYDROTHERMAL STABILITY” AND
`“LOW TEMPERATURE” PERFORMANCE .................................................... 3
`A. BASF Ignores the Claims.............................................................................. 3
`B. BASF Ignores the Specification .................................................................... 5
`
`1. The Specification Fails to Describe the Properties of All the Claimed
`Catalysts ................................................................................................ 5
`2. The Specification Explains that It Is “Free Copper” That Provides
`“Improved Hydrothermal Stability” ...................................................... 7
`“Improved Hydrothermal Stability” Is an Optional Property ............... 8
`3.
`C. The Unclaimed Features of “Hydrothermal Stability” and “Low
`Temperature” Performance Not Shared by All the Claimed Catalysts
`Cannot Serve as a Basis to Distinguish the Prior Art ................................... 9
`II. THERE IS NO NEXUS BETWEEN BASF’S “SECONDARY
`CONSIDERATIONS” AND THE CLAIMS. ................................................... 10
`A. There Was No Skepticism in the Art .......................................................... 11
`B. BASF Has Failed to Establish that the Claimed Subject Matter Gives
`Rise to Unexpected Results......................................................................... 14
`
`1. The Examples in the Specification Do Not Show Unexpected
`Results Across the Claimed Ranges .................................................... 14
`2. BASF Misidentifies the “Closest Prior Art” ....................................... 15
`3. The Other Evidence of Record Also Does Not Establish Unexpected
`Results ................................................................................................. 16
`C. BASF Has Failed to Come Forward with Sufficient Evidence of
`Commercial Success ................................................................................... 18
`III. BASF IGNORES THE TEACHINGS OF THE PRIOR ART ......................... 20
`A. Zones in view of Maeshima ........................................................................ 20
`
`-i-
`
`

`
`1. Zones and Maeshima Supply Adequate Motivation to Combine ....... 21
`1.
`Zones and Maeshima Supply Adequate Motivation to Combine ..... ..2l
`2. One of Ordinary Skill in the Art Would Have a Reasonable
`2. One of Ordinary Skill in the Art Would Have a Reasonable
`Expectation of Success ........................................................................ 22
`Expectation of Success ...................................................................... ..22
`B. Zones and Maeshima in Further View of Patchett...................................... 23
`CONCLUSION ........................................................................................................ 25
`
`CONCLUSION ...................................................................................................... ..25
`
`B. Zones and Maeshima in Further View of Patchett.................................... ..23
`
`-ii-
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`

`
`INTRODUCTION
`
`Petitioner Umicore respectfully submits its reply in support of its Petition for
`
`IPR of the ’662 patent. BASF has failed to identify any claim limitations missing
`
`from the prior art. Instead, it argues that the claims are patentable because a single,
`
`specific commercial embodiment purportedly produces better low temperature
`
`SCR performance and hydrothermal durability than prior art compositions.
`
`Neither property, however, is a claim limitation. Nor are the claims otherwise
`
`restricted to just compositions that have these properties. In fact, the patent
`
`specification itself establishes that these properties are not possessed by all the
`
`claimed compositions. As a result, the prior art, which discloses catalysts
`
`overlapping the claimed composition ranges and explains that those catalysts can
`
`be used as SCR catalysts to reduce nitrogen oxides, renders the ’662 patent’s
`
`claims obvious and unpatentable.
`
`ARGUMENT
`
`As set forth in the petition, every claim element is found in the prior art and
`
`one of ordinary skill in the art would have been motivated to combine that art with
`
`an expectation of success. BASF has failed to meet its burden of establishing the
`
`existence of secondary considerations sufficient to overcome this strong prima
`
`facie case of obviousness.
`
`-1-
`
`

`
`According to BASF, the ’662 patent’s claims are directed to “a copper-
`
`exchanged aluminosilicate zeolite with the CHA structure type (i.e., CuCHA)” that
`
`purportedly “exhibit[s] excellent NOx conversion over a wide temperature range
`
`and excellent hydrothermal stability.” (BASF Opp. at 9-10.) But, neither
`
`“improved hydrothermal stability” nor catalytic activity “over a wide temperature
`
`range” is required by the claims. Nonetheless, BASF asserts that these unclaimed
`
`“enhanced properties” “must be considered in the evaluation of obviousness.” (Id.
`
`at 13.) BASF then criticizes the prior art for not expressly discussing the
`
`unclaimed properties. (See, e.g., id. at 27.) And, BASF further argues that the
`
`unclaimed properties overcame skepticism, provides evidence of unexpected
`
`results, and has allowed BASF’s catalyst product to be commercially successful.
`
`(See id. at 39-45.)
`
`BASF’s arguments ignore what the patent actually describes and claims.
`
`Again, the “enhanced properties” are not required by the claims. And, both the
`
`specification and BASF’s expert have made clear that they are not inherent
`
`properties of the claimed catalysts. As a result, whether a limited subset of
`
`catalysts in the ’662 patent possess these unclaimed properties is simply not
`
`relevant to the obviousness inquiry.
`
`-2-
`
`

`
`I.
`
`BASF’s Improper Focus on “Hydrothermal Stability” and “Low
`Temperature” Performance
`
`A.
`
`BASF Ignores the Claims
`
`The focus of an obviousness analysis must be on the claims. The ’662
`
`patent’s claims require a catalyst with the CHA crystal structure, a SAR of 15-150,
`
`and a Cu/Al ratio of 0.25-1 that is “effective to promote the reaction of ammonia
`
`with nitrogen oxides to form nitrogen and H2O selectively.” BASF conceded that
`
`this “effective to…” language did “not require construction.” (BASF Opp. at 12-
`
`13.) And, it does not point to any other claim language that would require the
`
`grafting of the specific catalyst performance properties it repeatedly discusses onto
`
`the claims. Regardless, for validity purposes, BASF seeks to unduly narrow the
`
`claims such that the prior art must teach a catalyst that is not just “effective” for
`
`SCR, but effective under all circumstances, including at very low temperatures.
`
`BASF further argues that the prior art must also show improved resistance to
`
`hydrothermal degradation after aging. But, the claims are not so narrowly focused.
`
`Indeed, as stated by BASF’s expert, for a catalyst to be “effective” for SCR, it
`
`must simply “be able to promote the reaction of ammonia with NOx to form
`
`nitrogen and water.” (See Ex. 1019, 4/12/16 Deposition of Michael Tsapatsis
`
`(“Tsapatsis Depo.”) at 184:21-185:5; see also 64:8-18.) This is all that is literally
`
`recited by the claims, and no further functional or performance properties are
`
`required.
`
`-3-
`
`

`
`Importantly, the claims do not require that the catalyst be “effective” at any
`
`particular temperatures. (See id. at 64:24-65:22.) Thus, the claims can cover a
`
`catalyst that is “effective” only at one temperature (i.e., around 500 oC), but not at
`
`another (i.e., around 200 oC). The claims also do not require that the catalyst
`
`possess any particular degree of hydrothermal stability. (See id. at 72:11-73:9.)
`
`With the exception of dependent claim 10 (not at issue in this IPR), none of the
`
`’662 patent’s claims even use the term “hydrothermal” or “aging.”1 Thus, while
`
`the claims do embrace catalysts that are “effective” after extreme hydrothermal
`
`aging, they also include catalysts that are effective for SCR only when fresh or
`
`when subjected to mild aging conditions.
`
`The ’662 patent’s examples confirm that the claims do not require improved
`
`“hydrothermal stability.” Example 1 has a SAR of 30, a Cu/Al ratio of 0.3, and is
`
`able to reduce at least some NOx in an exhaust gas stream. (See Ex. 1001, ’662
`
`patent at 10:48-50; Table 1.) Thus, as confirmed by BASF’s expert, the example is
`
`“effective” for SCR and falls within the scope of all but the narrowest of the
`
`1 Claim 10 does require a catalyst that maintains a certain level of performance
`
`after aging. Independent claim 1 is necessarily broader and is not limited with
`
`respect to performance after aging. See Wright Med. Tech., Inc. v. Osteonics
`
`Corp., 122 F.3d 1440, 1445 (Fed. Cir. 1997).
`
`-4-
`
`

`
`claims.2 (See Ex. 1019, Tsapatsis Depo. at 57:6-25.) Despite this, the ’662 patent
`
`explains that Example 1 “did not show enhanced resistance to thermal aging.”
`
`(Ex. 1001, ’662 patent at 11:20-25 (emphasis added).) In other words, by
`
`extending to Example 1, the claims admittedly embrace catalysts that lack the
`
`unclaimed property of improved hydrothermal stability.
`
`B.
`
`BASF Ignores the Specification
`
`BASF’s arguments regarding the alleged “enhanced properties” of the
`
`claimed subject matter are also not supported by the specification.
`
`1.
`
`The Specification Fails to Describe the Properties of All the
`Claimed Catalysts
`
`While the specification does include some examples showing low
`
`temperature activity or hydrothermal stability (see, e.g., id. at 11:52-55; 12:1-5;
`
`14:34-36), there is no evidence that these unclaimed benefits are provided by all
`
`the materials spanning the claimed ranges. The following chart summarizes the
`
`SAR values and Cu/Al ratios of the patent’s examples:
`
`2 Example 1 is not within the scope of claims 6 and 8 which simply narrow the
`
`claimed Cu/Al ratio range but add no other limitations calling for hydrothermal
`
`stability.
`
`-5-
`
`

`
`(Ex. 1018; see also Ex. 1019, Tsapatsis Depo. at 99:3-103:9.) The broken line
`
`represents claim 1’s range of SAR values and Cu/Al ratios. The dots represent the
`
`examples. As can be seen, there is only test data for claimed materials with SARs
`
`of 15 and 30, but nothing between or above. (See id. at 103:10-105:19.) Further,
`
`there is no data for claimed materials with Cu/Al ratios at or above 0.5. (See id. at
`
`105:20-107:16.) Thus, there is nothing in the patent that would allow one to
`
`determine whether improved low temperature activity and hydrothermal stability
`
`are provided across the entire claimed range. In re Harris, 409 F.3d 1339, 1344
`
`(Fed. Cir. 2005) (improved performance of one embodiment did not prove
`
`-6-
`
`

`
`unexpected results, as there was no showing of similar performance across the
`
`entire range); In re Boesch, 617 F.2d 272, 277 (C.C.P.A. 1980) (similar).
`
`2.
`
`The Specification Explains that It Is “Free Copper” That
`Provides “Improved Hydrothermal Stability”
`
`None of the claims at issue in this IPR include limitations regarding how
`
`copper is incorporated into the catalyst—they extend to both “free” and ion-
`
`exchanged copper.3 (See Ex. 1019, Tsapatsis Depo. at 80:13-81:10.) The ’662
`
`patent specification, however, repeatedly states that it is the presence of “free” or
`
`“non-exchanged” copper that provides the catalysts described in the specification
`
`with improved hydrothermal stability. For instance, in its “Summary” section, the
`
`patent states that “non-exchanged copper” can be included in a catalyst to
`
`“maintain NOx conversion performance of the catalyst … after hydrothermal aging
`
`of the catalyst.” (Ex. 1001, ’662 patent at 2:27-32; see also 2:61-64.) Indeed, the
`
`patent unambiguously explains that it is the “free copper” that “prevents
`
`hydrothermal degradation.” (Id. at 2:64-66.) This same explanation is repeated in
`
`the “Detailed Description.” (See, e.g., id. at 5:31-37.) And, the patent states that
`
`“[u]nexpectedly, this ‘free’ Cu has been found to impart greater stability in
`
`catalysts subjected to thermal aging at temperatures up to about 800 oC.” (Id. at
`
`3 Claims 9 to 11 of the ’662 patent, which are not at issue, are the only claims that
`
`require a catalyst that includes “non-exchanged” copper.
`
`-7-
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`

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`5:49-52.) The inclusion of “non-exchanged Cu” also “enhanced” a catalyst’s
`
`“ability to reduce NO with NH3 at low temperatures.” (Id. at 6:19-23.) The
`
`patent’s examples are consistent, with the examples that contain “free copper”
`
`characterized as “exhibit[ing] improved hydrothermal stability” while the
`
`examples that lack “free copper” are noted to “not show enhanced resistance to
`
`thermal aging.” (Compare id. at 11:34-36, 11:53-55, 12:2-5 with 11:22-25.) In
`
`other words, any “unexpected” performance benefit provided by the patent’s
`
`catalysts are purported to result from the inclusion of “free” copper (which is
`
`unclaimed), and not from any of the limitations of claims—like those of the ’662
`
`patent—that extend to catalysts that lack “free” or “non-exchanged” copper. (See
`
`Ex. 1019, Tsapatsis Depo. at 80:13-81:10.)
`
`3.
`
`“Improved Hydrothermal Stability” Is an Optional
`Property
`
`The ’662 patent states that it is meant to meet “a desire to prepare materials
`
`which offer low temperature SCR activity and/or improved hydrothermal
`
`durability over existing zeolites….” (Ex. 1001, ’662 patent at 1:47-51 (emphasis
`
`added.) In other words, the patent’s catalysts can offer either low temperature
`
`SCR activity or improved hydrothermal stability. A catalyst according to the
`
`specification need not provide both, as BASF appears to argue the claims require.
`
`If this were not enough, claim 1 of the ’662 patent extends to catalysts
`
`intended for use in circumstances where low temperature activity and
`
`-8-
`
`

`
`hydrothermal stability are irrelevant. According to the patent, while an “SCR
`
`catalyst downstream of a catalyzed soot filter” may “experience temperatures as
`
`high as 800o C” making “improved hydrothermal stability” important, “[n]ot all
`
`catalysts will experience such high temperatures.” (Ex. 1001, ’662 patent at 14:41-
`
`57.) The claims cover not only catalysts disposed on a soot filter, but also catalysts
`
`not subjected to high temperatures, such as catalysts for treating power plant
`
`exhaust or catalysts applied to flow-through monoliths. (See Ex. 1019, Tsapatsis
`
`Depo. at 84:14-85:22; 87:12-17; 88:6-10.)
`
`C.
`
`The Unclaimed Features of “Hydrothermal Stability” and “Low
`Temperature” Performance Not Shared by All the Claimed
`Catalysts Cannot Serve as a Basis to Distinguish the Prior Art
`
`An unclaimed feature or property “is immaterial to obviousness of [a]
`
`composition … in light of the prior art showing general efficacy for the same use.”
`
`Tyco Healthcare Grp. v. Mut. Pharm. Co., 642 F.3d 1370, 1374 (Fed. Cir. 2011).
`
`In Tyco, as BASF does here, the patentee pointed to an “unclaimed property of
`
`effectiveness in treating insomnia” and argued that “all the properties of a
`
`composition … relevant to patentability must be considered in evaluating whether
`
`that composition would have been obvious in light of the prior art.” Id. at 1373.
`
`This argument was rejected: “discovery of a new property or use of a previously
`
`known composition, even when that property and use are unobvious from the prior
`
`-9-
`
`

`
`art, cannot impart patentability to the known composition.” Id. (quoting In re
`
`Spada, 911 F.2d 705, 708 (Fed. Cir. 1990).)
`
`Further, in In re Verbanc the court held that “unexpected” properties not
`
`shared by all the claimed materials do not render claims non-obvious. See 404
`
`F.2d 378, 380-81 (C.C.P.A. 1968). There, the patent claimed a curable
`
`composition of a butadiene-styrene copolymer and a specific monosulfide
`
`vulcanization accelerator. Id. at 379. The prior art disclosed processes for
`
`vulcanizing rubber, and explained that monosulfides are “‘safe’ super-accelerators
`
`for rubber.” Id. at 380. The inventors argued that “their invention is patentable
`
`because of unexpectedly improved curing results.” Id. The court rejected this
`
`argument because the evidence did not show that all the claimed compositions
`
`possessed this unexpected improvement. Id. at 381.
`
`Just as in Tyco and Verbanc, unclaimed properties (such as “improved
`
`hydrothermal stability” and catalytic activity “over a wide temperature range”) that
`
`are not possessed by every claimed catalyst cannot differentiate the ’662 patent
`
`from prior art disclosing CuCHA catalysts with SARs and Cu/Al ratios
`
`overlapping the claimed ranges.
`
`II.
`
`There is No Nexus Between BASF’s “Secondary Considerations” and
`the Claims.
`
`BASF argues that “objective indicia of skepticism, unexpected results, and
`
`commercial success support nonobviousness…” (BASF Opp. at 37.) “For …
`
`-10-
`
`

`
`objective evidence to be accorded substantial weight,” however, “its proponent
`
`must establish a nexus between the evidence and the merits of the claimed
`
`invention.” In re GPAC Inc., 57 F.3d 1573, 1580 (Fed. Cir. 1995). The evidence
`
`“must be reasonably commensurate with the scope of the claims.” See In re Huai-
`
`Hung Kao, 639 F.3d 1057, 1068 (Fed. Cir. 2011).
`
`Here, BASF’s evidence relates to a single commercial product that allegedly
`
`provides unclaimed performance benefits.4 Thus, the required nexus is lacking.
`
`And, even if it were related to the claims, BASF’s minor secondary considerations
`
`evidence does not overcome the strong prima facie case of obviousness. See Asyst
`
`Techs., Inc. v. Emtrak, Inc., 544 F.3d 1310, 1316 (Fed. Cir. 2008).
`
`A.
`
`There Was No Skepticism in the Art
`
`BASF cites to several papers that purportedly show skepticism regarding the
`
`“commercial use” of “[c]opper-based catalysts” in view of their purportedly “low
`
`4 This distinguishes the ’662 patent from US v. Adams, 383 U.S. 39 (1966). In
`
`Adams, the patent was directed to a battery with specific types of electrodes that
`
`allowed use of water as an electrolyte. Id. 42-43. And, unlike in this case where
`
`BASF points only to unclaimed performance properties, it was the use of the
`
`claimed electrodes and electrolyte in Adams that gave rise to skepticism,
`
`unexpected results, and success. See id. at 51-52.
`
`-11-
`
`

`
`hydrothermal stability.” (BASF Opp. at 39-41.) But, none of the claims require a
`
`commercially viable catalyst, let alone a catalyst that exhibits any particular degree
`
`of hydrothermal stability. The claims require only a CuCHA catalyst that is
`
`“effective” for SCR. And, there is no indication in the record of skepticism
`
`regarding the use of CuCHA catalysts for such purposes. In fact, when viewed in
`
`light of what BASF actually claimed, the papers show that the art was actually
`
`optimistic about the use of zeolite catalysts.
`
`BASF first cites a 1995 paper as purportedly showing skepticism. (BASF
`
`Opp. at 39.) While the paper does reference “low hydrothermal stability,” it also
`
`explains that “[c]opper-based catalysts are active in a wide range of reactions of
`
`transformation of nitrogen oxides.” (Ex. 2012 at 001-005 (emphasis added).)
`
`Numerous papers reporting on the “excellent … catalytic activities” of copper-
`
`exchanged zeolites are listed. (Id.) BASF additionally cites 2004 and 2006
`
`publications. (BASF Opp. at 40-41.) The 2004 publication explains that “SCR
`
`has for more than a decade been mentioned as a promising technology to reduce
`
`NOx on diesel engines….” (Ex. 2026 at 001 (emphasis added).) The paper
`
`references different catalytic materials, including zeolites, and concludes by stating
`
`that “urea-SCR technology has a great potential.” (Id. at 005, 007 (emphasis
`
`added).) The 2006 paper similarly explains both that “[u]rea-selective catalytic
`
`reduction (SCR) is an attractive and proven after-treatment method,” and that its
`
`-12-
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`

`
`“investigation verifies that … zeolite based catalysts are very promising for the
`
`ammonia SCR reaction.” (Ex. 2021 at 001.) Far from showing skepticism, these
`
`papers establish that copper-exchanged zeolites were considered viable and
`
`promising SCR catalysts.
`
`BASF also submits the “Declaration of Stanley Roth, Ph.D” (Ex. 2001).
`
`(See BASF Opp. at 39-40.) Dr. Roth’s declaration references a 2005 email chain
`
`between an unidentified university professor and a DOE researcher that
`
`purportedly represents “the view of … those skilled in the art that Cu-Zeolites
`
`could not be used as catalysts for the SCR of NOx because of the inability to
`
`maintain NOx conversion upon exposure to hydrothermal conditions.” (Ex. 2001
`
`at 003.) As discussed above, hydrothermal stability is not relevant to the claims.
`
`Moreover, Dr. Roth himself explains that “[i]n the zeolite literature there are
`
`probably many examples of structures with hydrothermal durability to the 700-800
`
`oC range. The big issue appears to be your DOE reviewers that have experience
`
`limited to the Cu-ZSM5 HC-SCR example, where catalytic performance quickly
`
`died after modest hydrothermal aging.” (Id. at 007.) In other words, any
`
`skepticism expressed by the DOE reviewer appears to be the result of the narrow
`
`consideration of only a subset of available art, and unawareness of other art (like
`
`Breck, for instance) that shows that CHA zeolites can be rendered more
`
`hydrothermally stable. While BASF attributes a different significance to the DOE
`
`-13-
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`

`
`reviewer’s comments, these attempts to retroactively put words in unknown and
`
`unavailable witnesses’ mouths are exactly what the hearsay rules are designed to
`
`prevent.
`
`B.
`
`BASF Has Failed to Establish that the Claimed Subject Matter
`Gives Rise to Unexpected Results
`
`BASF has not met its burden to establish unexpected results.
`
`1.
`
`The Examples in the Specification Do Not Show
`Unexpected Results Across the Claimed Ranges
`
`BASF argues that “[a] comparison of the claimed CuCHA catalyst to the
`
`closest prior art shows that the properties of the claimed catalyst are quite
`
`unexpected” in that they “perform over a wide range of temperatures when fresh
`
`and aged.” (BASF Opp. at 42.) But, BASF only points to examples 2, 3, and 4 of
`
`the ’662 patent. (See id.) These examples all have a SAR of 30 and a Cu/Al ratio
`
`in the range of 0.33-0.44. (See Ex. 1001, ’662 patent at 11:39-40, 59-61; 12:11-14;
`
`Table 1.) The claims of the ’662 patent, however, extend to materials with SARs
`
`of 15-150, and Cu/Al ratios of 0.25-1. There is simply no evidence in the record
`
`establishing how catalysts spanning large swaths of the claimed ranges—including
`
`between a SAR of 15-30, above a SAR of 30, or above a Cu/Al ratio of 0.5—
`
`would perform. (See Ex. 1019, Tsapatsis Depo. at 103:10-107:16; Ex. 1018.)
`
`Thus, BASF has failed to meet its burden to establish that there is “an adequate
`
`basis to support the conclusion that other embodiments falling within the claim
`
`-14-
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`

`
`will behave in the same manner.” See In re Huai-Hung Kao, 639 F.3d at 1068; In
`
`re Greenfield, 571 F.2d 1185, 1189 (C.C.P.A. 1978) (holding that testing relating
`
`to a single compound was insufficient to show unexpected results).
`
`2.
`
`BASF Misidentifies the “Closest Prior Art”
`
`In arguing unexpected results, BASF also fails to compare the claimed
`
`subject matter with what is actually the “closest prior art”: the catalysts disclosed
`
`by Zones. BASF looks only to comparative examples 10 and 11, which are Cu-
`
`beta and Cu-Y zeolites and do not employ the CHA crystal structure, (see Ex.
`
`1001, ’662 patent at Table 1), and testing of zeolites in Dr. Moini’s declaration
`
`with a SAR below 10 (see Ex. 2011). As of the ’662 patent’s filing, copper-
`
`exchanged zeolites with the CHA crystal structure were known. (See Ex. 1019,
`
`Tsapatsis Depo. at 110:19-22; 111:15-112:1.) Further, it was also known that
`
`CHA zeolites with a SAR in the range of 20-50 could be obtained (see id. at 11:2-
`
`25), and that these materials could include copper ions to make them useful as SCR
`
`catalysts (see Ex. 1004, Zones at 1:54-67; Table 1). Thus, the “closest prior art” is
`
`not a beta zeolite, zeolite Y, or a CHA zeolite with a very low SAR. Instead, it is a
`
`catalyst with the CHA crystal structure, a SAR of 20-50, and some amount of
`
`exchanged copper like that set forth in Zones. See In re Merchant, 575 F.2d 865,
`
`868 (C.C.P.A. 1978) (noting the “closest … prior art reference” is determined by
`
`assessing “the number of claim limitations in common,” along with the “relative
`
`-15-
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`

`
`importance of particular limitations” disclosed by that reference); In re Baxter
`
`Travenol Labs, 952 F.2d 388, 390, 392 (Fed. Cir. 1991) (explaining that the closest
`
`prior art is not limited only to what was expressly stated in a reference, but also
`
`includes a key feature that would have been obvious to one of skill).
`
`Example 8 of the ’662 patent itself provides an indication of how such a
`
`catalyst of Zones performs. This example, like the catalysts of Zones, has the
`
`CHA crystal structure, a SAR of 50, and a Cu/Al ratio of 0.089. (See Ex. 1001,
`
`’662 patent at Table 2; 13:3-7.) As shown by the testing data in the specification,
`
`Example 8, which is outside the claimed range, performs equivalently or slightly
`
`better than Example 6, which has a SAR and Cu/Al ratio within the range of claim
`
`1. (See id. at Table 2; 12:33-35.) Thus, rather than showing unexpected results,
`
`the specification actually shows that the claimed catalysts are not meaningfully
`
`better than prior art materials.
`
`3.
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`The Other Evidence of Record Also Does Not Establish
`Unexpected Results
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`BASF then cites both the Byrne patent (Ex. 1010) and a 2015 journal article
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`(Ex. 2020). Neither establishs that there is anything unexpected about the claimed
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`catalysts. Byrne—published in 1990—does note that natural chabazite, which has
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`a SAR in the range of 2-8 (see Ex. 1019, Tsapatsis Depo. at 140:1-11), can be
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`poisoned when exposed to very high levels of sulfates. (See Ex. 1010, Byrne at
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`4:57-5:17.) But, as of the ’662 patent’s filing date, one of ordinary skill in the art
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`would not have expected diesel engine exhaust to contain anywhere near the level
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`of sulfates as Byrne’s example gas stream. (See Ex. 1019, Tsapatsis Depo. at
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`153:3-13.) Additionally, it was known that higher SAR zeolites, like that set forth
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`in Zones, were less susceptible to sulfate poisoning. (See Ex. 1003, Breck at
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`47:47-53.) Thus, when the ’662 patent was filed, Byrne’s concerns regarding
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`sulfate poisoning were no longer applicable, and one of skill would not have found
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`it unexpected that a CHA zeolite could be useful as a catalyst. Next, while the
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`2015 article states that the ammonia SCR reaction mechanism is “complicated,”
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`this statement was made eight years after the ’662 patent was filed and provides
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`little insight into the state of the art in 2007. (See generally Ex. 2020 at 001.) It
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`does illustrate, however, that the ’662 patent inventors did not solve any such
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`reaction mechanism problems. Indeed, the SCR reaction mechanism itself is not
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`recited in the patent claims.
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`Further, the ’662 patent itself also highlights that there is nothing about the
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`claimed subject matter that gives rise to unexpected results. As noted above, the
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`specification repeatedly explains that it is the inclusion of “free” copper that
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`“[u]nexpectedly … impart[s] greater stability in catalysts subject to thermal aging.”
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`(Ex. 1001, ’662 patent at 5:49-52; see also 2:27-32; 2:63-67; 5:31-36.) None of
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`the claims at issue in this IPR require the inclusion of free copper.
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`Finally, as reflected in Dr. Schuetze’s declaration (Ex. 1015), the claimed
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`subject matter actually produces expected results. As expected, as SAR increases,
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`stability upon aging steadily increases. (See Ex. 1008, Lercher Dec. at ¶¶ 300-
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`310.) As Cu/Al ratio increases, SCR activity steadily increases as expected. (See
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`id. at ¶¶ 276-299.) While performance does improve somewhat as the claimed
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`range is entered, mere improvement is not equivalent to unexpected results. See In
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`re Soni, 54 F.3d 746, 751 (Fed. Cir. 1995); see also Golderma Lab., LP v. Tolmar,
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`Inc., 737 F.3d 731, 739 (Fed. Cir. 2013).
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`C.
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`BASF Has Failed to Come Forward with Sufficient Evidence of
`Commercial Success
`
`BASF’s attempts to show commercial success also miss the mark.
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`“Evidence of commercial success … is only significant if there is a nexus between
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`the claimed invention and the commercial success.” See Ormco Corp. v. Align
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`Tech., Inc., 463 F.3d 1299, 1312 (Fed. Cir. 2006). BASF has not drawn the
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`necessary connection between the sales of its CuCHA product and the claims.
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`All of BASF’s evidence is limited to a single CuCHA catalyst with a
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`specific SAR and Cu/Al ratio. (See generally Ex. 2019.) The ’662 patent’s claims,
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`however, cover catalysts spanning broad ranges of SARs and Cu/Al ratios. Some
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`of these claimed materials may exhibit “enhanced resistance to thermal aging” and
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`“higher low temperature activity,” but others do not. (See, e.g., Ex. 1001, ’662
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`patent at 11:20-25, 52-55; 12:1-5, 16-19.) According to BASF, customers
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`purchase the “claimed CuCHA catalyst” because of its “excellent activity over a
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`wide temperature range and excellent hydrothermal stability.” (BASF Opp. at 44-
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`45; see also Ex. 2019 at ¶ 11.) As a result, BASF has effectively admitted that
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`unclaimed features are driving demand making its evidence of “commercial
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`success” irrelevant. See Ormco, 463 F.3d at 1312 (Fed. Cir. 2006).
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`Finally, even if it is assumed that customers are purchasing BASF’s CuCHA
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`product for reasons associated solely with the ’662 patent, evidence of commercial
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`success would still be lacking. BASF cites two declarations. One, signed by Dr.
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`Ahmad Moini, discusses the SAR and Cu/Al ratio of BASF’s CuCHA product.
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`(See Ex. 2019.) Another, signed by Olivia Schmidt, provides information
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`regarding the total global market for SCR catalysts in “Units,” and then states the
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`percentage of this market that is accounted for by both BASF’s CuCHA catalyst
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`and the sales of “BASF licensees” own products. (Ex. 2034 at ¶¶ 6, 7; see also Ex.
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`1020, 4/29/16 Depo. of Olivia Schmidt at 14:17-15:6, 16:14-20; 21:20-25.)
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`However, there is no evidence in the record that would allow one to determine
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`whether the products sold by these “BASF licensees” fall within the scope of the
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`claims. And, BASF has refused to identify what percentage of the sales are
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`attributable to BASF’s CuCHA catalyst as opposed to the products of the licensees.
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`(See id. at 22:1-24:16.) In view of this, it is impossible to determine from the
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`evidence BASF has presented what percentage of the global SCR market is
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`actually accounted for by claimed products. This was a showing that BASF was
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`required and has failed to make. See In re Applied Materials, Inc., 692 F.3d 1289,
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`1300 (Fed. Cir. 2012).
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`III. BASF Ignores the Teachings of the Prior Art
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`BASF’s brief is also replete with other errors of analysis. Among other
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`things, BASF considers each prior art reference in isolation, ignores the collective
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`teachings of the prior art, and ignores the knowledge of those of skill in the art as
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`of 2007.
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`A.
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`Zones in view of Maeshima
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`Zones discloses methods for making a zeolite with the CHA crystal structure
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`with a SAR of 20-50 that can incorporate copper for purposes of “catalyz[ing] the
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`reduction of the oxides of nitrogen.” (See Ex. 1004, Zones at 1:7-15, 61-65; Table
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`1.) With the exception of the claimed Cu/Al ratio of 0.25-1, this is all the claims
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`require. Maeshima supplements Zones by explaining that a 60-100% ion exchang