Trials@uspto.gov
`571-272-7822
`
`Paper No. 8
`
` Entered: October 29, 2015
`
`
`
`
`
`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
`Patent 7,601,662
`____________
`
`Before CHRISTOPHER L. CRUMBLEY, JO-ANNE M. KOKOSKI, and
`JEFFREY W. ABRAHAM, Administrative Patent Judges.
`
`ABRAHAM, Administrative Patent Judge.
`
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`571-272-7822
`
`Paper No. 8
`
` Entered: October 29, 2015
`
`
`
`
`
`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
`Patent 7,601,662
`____________
`
`Before CHRISTOPHER L. CRUMBLEY, JO-ANNE M. KOKOSKI, and
`JEFFREY W. ABRAHAM, Administrative Patent Judges.
`
`ABRAHAM, Administrative Patent Judge.
`
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`IPR2015-01121
`Patent 7,601,662
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`
`I. INTRODUCTION
`Umicore AG & Co. KG (“Petitioner”) filed a Petition seeking inter
`partes review of claims 1–24, 30, and 32–50 of U.S. Patent No. 7,601,662
`B2 (Ex. 1001, “the ’662 patent”), as amended by Ex parte Reexamination
`Certificate No. US 7,601,662 C1 (“Reexam. Cert.”). Paper 1 (“Pet.”).
`BASF Corporation (“Patent Owner “) filed a Patent Owner preliminary
`response to the Petition. Paper 7 (“Prelim. Resp.”). Applying the standard
`set forth in 35 U.S.C. § 314(a), which requires demonstration of a reasonable
`likelihood that Petitioner would prevail with respect to at least one
`challenged claim, we institute an inter partes review of claims 1–8, 12–24,
`30, and 32–50 as discussed below.
`Our findings of fact and conclusions of law are based on the record
`developed thus far, prior to the Patent Owner’s Response. This is not a final
`decision as to the patentability of any challenged claim. Any final decision
`will be based on the full record developed during trial.
`
`
`II. BACKGROUND
`A. Related Proceedings
`Petitioner identifies pending inter partes review petition No.
`IPR2015-01125, also pertaining to the ’662 patent. Pet. 1. In addition to
`IPR2015-01125, Patent Owner identifies pending inter partes review
`petition Nos. IPR2015-01123 and -01124, pertaining to U.S. Patent No.
`8,404,203 B2, which issued from a divisional of the application that issued
`as the ’662 patent. Paper 5, 2.
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`B. The ’662 Patent
`The ’662 patent, titled “Copper CHA Zeolite Catalysts,” originally
`issued on October 13, 2009, with an ex parte reexamination certificate
`issuing on June 7, 2013. The ’662 patent discloses catalysts that comprise
`zeolites having a CHA crystal structure, which may be part of an exhaust gas
`treatment system. Ex. 1001, 1:55–61. Several embodiments described in
`the ’662 patent depict a catalyst comprising a zeolite having the CHA crystal
`structure, a specific mole ratio of silica to alumina (e.g., greater than about
`15), and a specific atomic ratio of copper to aluminum (e.g., greater than
`about 0.25). Id. at 4:24–29.1 The ’662 patent teaches that the catalyst
`compositions can be disposed on a substrate, which usually comprises a
`honeycomb structure. Id. at 6:55–59.
`The ’662 patent explains that
`As is known in the art, to reduce the emissions of nitrogen
`oxides from flue and exhaust gases, ammonia is added to the
`gaseous stream containing the nitrogen oxides and the gaseous
`stream is then contacted with a suitable catalyst at elevated
`temperatures in order to catalyze the reduction of nitrogen
`oxides with ammonia.
`. . .
`Metal-promoted zeolites have been used to promote the reaction
`of ammonia with nitrogen oxides to form nitrogen and H2O
`selectively over the competing reaction of oxygen and
`ammonia. The catalyzed reaction of ammonia and nitrogen
`oxides is therefore sometimes referred to as the selective
`catalytic reduction (“SCR”) of nitrogen oxides or, as sometimes
`herein, simply as the “SCR process”.
`
`Id. at 8:14–19 and 38–44.
`
`1 For purposes of this decision, we follow the parties’ convention of using
`“SAR” to refer to the mole ratio of silica to alumina, and “Cu/Al ratio” to
`refer to the atomic ratio of copper to aluminum required in the claims.
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`According to the Specification, the CuCHA zeolite catalysts disclosed
`therein “yield improved activity in the selective catalytic reduction of NOx
`with ammonia.” Id. at 5:4–6. Additionally, the CuCHA zeolite catalysts of
`the ’662 patent are said to have increased hydrothermal stability (i.e., greater
`stability when subjected to thermal aging) as compared to other Cu-zeolite
`catalysts. Id. at 5:1–16, 5:49–52.
`Illustrative Claim
`Petitioner challenges claims 1–24, 30, and 32–50 of the ’662 patent.
`
`Claim 1 is the only independent claim challenged, and is reproduced below:
`1. A catalyst comprising:
`an aluminosilicate zeolite having the CHA crystal structure
`and a mole ratio of silica to alumina from about 15 to about 150
`and an atomic ratio of copper to aluminum from about 0.25 to
`about 1, the catalyst effective to promote the reaction of ammonia
`with nitrogen oxides to form nitrogen and H2O selectively.
`Ex. 1001, Reexam. Cert. 1:56–2:3 (annotations and emphasis omitted).
`
`
`C. References
`Petitioner relies on the following references:
`Zones et al., US 6,709,644 B2, issued March 23, 2004
`(“Zones,” Ex. 1004).
`Maeshima et al., US 4,046,888, issued September 6, 1977
`(“Maeshima,” Ex. 1002).
`Patchett et al., US 2006/0039843 A1, published February 23,
`2006 (“Patchett,” Ex. 1005).
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`References
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`Claims Challenged
`
`D. The Asserted Grounds
`Petitioner asserts the following grounds of unpatentability:
`Statutory
`Basis
`§ 103
`
`1–11 and 30
`
`Zones and Maeshima
`Zones, Maeshima, and
`Patchett
`
`Petitioner also relies on declarations from Dr. Johannes A. Lercher
`(Ex. 1008) and Dr. Frank-Walter Schütze (Ex. 1015).
`III. ANALYSIS
`A. Claim Construction
`In an inter partes review, claim terms in an unexpired patent are
`interpreted according to their broadest reasonable construction in light of the
`specification of the patent in which they appear. 37 C.F.R. § 42.100(b); In
`re Cuozzo Speed Techs., LLC, 793 F.3d 1268, 1276–79 (Fed. Cir. 2015).
`We determine that no express claim construction is required for purposes of
`this decision.2
`
`§ 103
`
`12–24 and 32–50
`
`B. References
`1. Zones
`Zones discloses aluminosilicate zeolites having the CHA crystal
`
`structure. Ex. 1004, 1:7–23 and Abstract (referring specifically to the
`chabazite structure). Zones teaches that its zeolite may have an SAR greater
`than 10. Id. at 1:7–10. Zones further discloses that its zeolite may be
`prepared from a mixture of reactants having SAR values ranging from 20 to
`
`
`2 We note that the parties agree that zeolites having the CHA crystal
`structure are also known as “chabazite.” Pet. 5; Prelim. Resp. 13.
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`50, and preferably SAR values ranging from 25 to 40. Id. at 2:34 (Table 1);
`see also id at 7:34–35, claim 3 (reciting an SAR of at least 30). Zones also
`discloses that its zeolite “may contain a metal or metal ions (such as cobalt,
`copper, or mixtures thereof) capable of catalyzing the reduction of the
`oxides of nitrogen.” Id. at 1:61–64, 4:25–27.
`
`2. Maeshima
`
`Maeshima “relates to a method for selectively reducing nitrogen
`oxides contained in exhaust gases from stationary sources, such as flue gas
`from the combustion furnace of power plants, by using ammonia as a
`reducing agent.” Ex. 1002, 2:9–13. According to Maeshima, this is
`accomplished by contacting a gaseous exhaust mixture with a catalyst in the
`presence of ammonia. Id. at 2:6–8. Maeshima teaches that the catalyst can
`be a crystalline aluminosilicate or a “product obtained by exchanging an
`alkali metal ion in a crystalline alumino-silicate with at least one metal
`cation having an activity of reducing nitrogen oxides.” Id. at 3:33–38.
`Maeshima lists “Chabazite,” among others, as a suitable natural zeolite to be
`used in the described method. Id. at 4:6–12. Maeshima includes copper in
`its list of the most preferred metal components that can be incorporated into
`the zeolite catalysts (id. at 6:4, 4:51–52), noting that “[t]he ion exchange
`ratio is not particularly critical, but it is generally preferred that the ion
`exchange ratio be about 60 to about 100%” (id. at 4:44–52) and also
`disclosing that the amount of the active metal component in the catalyst may
`be a “catalytically effective amount,” ranging from about 1 to about 20% by
`weight, preferably about 2 to about 10 % by weight (id. at 6:13–17).
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`3. Patchett
`Patchett relates to an emissions treatment system and method for
`reducing nitrogen oxides emissions in the exhaust stream produced from an
`internal combustion engine. Ex. 1005 ¶ 1. Patchett teaches that “[a] proven
`NOx abatement technology applied to stationary sources with lean exhaust
`conditions is Selective Catalytic Reduction (SCR) using ammonia (NH3) or
`an NH3 precursor.” Id. ¶ 3.
`Patchett discloses one embodiment of an emissions treatment system
`that includes an injector for inserting ammonia into an exhaust stream
`upstream from a first substrate with an SCR catalyst composition and an
`NH3 destruction catalyst composition (comprising a platinum group metal
`component) disposed thereon. Id. ¶¶ 18–19. Patchett teaches that the SCR
`catalyst composition can contain a copper-exchanged zeolite and the
`substrate may be a honeycomb flow-through substrate. Id. at ¶¶ 21, 23.
`
`
`C. Analysis of Grounds of Unpatentability
`1. Claims 1–11 and 30
`Petitioner argues that that the subject matter of claims 1–11 and 30
`would have been obvious over Zones3 in view of Maeshima.
`Claim 1, the only independent claim challenged by Petitioner, requires
`an aluminosilicate zeolite having the CHA crystal structure, an SAR from
`about 15 to about 150 and a Cu/Al ratio from about 0.25 to about 1. Ex.
`1001, Reexam Cert. 1:56–2:1. According to Petitioner, both Zones and
`
`3 Petitioner acknowledges that Zones was cited and considered by the
`Examiner during reexamination of the ’662 patent, but points out that the
`combination of Zones and Maeshima was not before the Examiner in the
`reexamination. Pet. 4.
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`Maeshima disclose aluminosilicate zeolites having the CHA crystal
`structure. Pet. 10–11 (noting that both Zones and Maeshima disclose
`chabazites as suitable zeolites). Petitioner argues that “[a]pplying
`Maeshima’s teachings regarding copper addition to the Zones catalyst results
`in a catalyst with the SAR value and Cu/Al ratio within the scope of claim
`1.” Id. at 11.
`With regard to the claimed SAR value, Petitioner contends that Zones
`discloses chabazite zeolites having SAR values ranging from 20 to 50,
`including a particular example having an SAR value of 22. Id. at 10–11.
`Petitioner also notes that Maeshima teaches that the zeolite catalysts
`employed therein should have an SAR value greater than 2. Id. at 11.
`With regard to the claimed copper to aluminum ratio, Petitioner
`argues that applying Maeshima’s teachings regarding incorporation of
`copper (i.e., that the catalyst should “incorporate a sufficient amount of
`active metal such that [the] resulting ‘ion exchange ratio’ is ‘about 60 to
`about 100%’” or should be impregnated with a “catalytically effective
`amount” of a metal such as copper, preferably about 2 to about 10% by
`weight) to the catalyst of Zones would result in a CHA zeolite with a Cu/Al
`ratio of 0.3–0.5. Id.
`Claim 1 further requires that the catalyst is “effective to promote the
`reaction of ammonia with nitrogen oxides to form nitrogen and H2O
`selectively,” i.e., that it is an SCR catalyst. Ex. 1001, Reexam. Cert. 2:1–3;
`Pet. 6; Prelim. Resp. 13. Petitioner argues that the combination of Zones
`and Maeshima discloses this requirement, noting that Zones describes a
`catalyst useful for reducing oxides of nitrogen and Maeshima expressly
`discloses that its catalysts may be used in an SCR process to selectively
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`reduce nitrogen oxides. Pet. 12 (citing Ex. 1002, 2:4–8 and Ex. 1004, 1:54–
`57).
`
`Petitioner argues that “[o]ne of ordinary skill in the art as of February
`2007 would have been motivated to combine Zones with Maeshima to
`arrive, with a reasonable expectation of success, at the subject matter of the
`claims.” Id. at 15 (internal footnote omitted). Petitioner contends that Zones
`discloses zeolites with the CHA crystal structure and the incorporation of
`copper, and does not expressly limit the copper content. Id. at 15–16.
`Petitioner further contends that a person of ordinary skill in the art, “seeking
`to obtain the benefit of copper loading as described by Maeshima, would
`combine Maeshima’s copper loading with the zeolite catalyst of Zones.” Id.
`at 16 (citing Ex. 1008 at ¶¶ 152–154). Additionally, Petitioner argues that
`Zones and Maeshima are in the same technical field and directed to solving
`the same technical problem—catalyzing the reduction of nitrogen oxides—
`which would further motivate a person of ordinary skill in the art to combine
`the references. Id. at 17.
`As to an expectation of success, Petitioner contends that a person of
`ordinary skill in the art would have had “every reason to believe that
`increasing the copper of Zone’s [sic] zeolites catalysts as instructed by
`Maeshima would succeed.” Id. at 16. Petitioner points to the Specification
`of the ’662 patent, which states that “[m]etal-promoted zeolite catalysts,
`including, among others, iron-promoted and copper-promoted zeolite
`catalysts, for the selective catalytic reduction of nitrogen oxides with
`ammonia are known.” Ex. 1001, 1:30–33; Pet. 16. According to Petitioner,
`the combination of Zones and Maeshima amounts to nothing
`more than the application of one particular known modification
`to catalytic zeolites with a known benefit—increasing the
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`copper content of aluminosilicate chabazite zeolites to improve
`catalytic activity as taught by Maeshima—to the very materials
`to which this modification is meant to be applied—Zones high
`SAR copper-promoted aluminosilicate zeolites for use in SCR
`processes.
`Pet. 17 (citing Ex. 1008 ¶ 159).
`
`Petitioner presents similar arguments regarding the combination of
`Zones and Maeshima for dependent claims 2–8, 11, and 30 which recite
`narrowed ranges of SAR values and Cu/Al ratios, and (for claim 11) a
`specific amount of copper (by weight). See Ex. 1001, 23:23–36, 46–47; Ex.
`1001, Reexam. Cert., 2:4–6.
`Claim 9 depends from claim 2, and requires that the catalyst contains
`ion-exchanged copper and non-exchanged copper. Ex. 1001, Reexam. Cert.
`2:7–11. Petitioner argues that the combination of Maeshima and Zones
`teaches all limitations of claim 9 because Maeshima teaches that copper can
`be incorporated into zeolites using customary methods, and a person of
`ordinary skill in the art would have understood that using said customary
`methods of copper incorporation would result in the formation of non-
`exchanged copper deposits. Pet. 13 (citing Ex. 1008 ¶¶134–138).
`Claim 10 depends from claim 9, and requires that “the NOx
`conversion performance of the catalyst at about 200oC after aging is at least
`90% of the NOx conversion performance of the catalyst at about 200oC prior
`to aging.” Ex. 1001, 23:42–45. Petitioner contends that Maeshima discloses
`a catalyst and SCR process intended to be effective at a reaction temperature
`between 200 and 500oC, and therefore a person of ordinary skill in the art, as
`a result of routine, obvious design work, would have optimized the catalyst
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`and other reaction conditions so that the catalyst would retain 90% of its
`performance after aging. Pet. 14.
`Petitioner also addresses the issue of secondary considerations of non-
`obviousness based on the evidence and arguments regarding secondary
`considerations that Patent Owner presented during reexamination of the ’662
`patent. Id. at 45–51. Petitioner argues that Patent Owner’s evidence of
`secondary considerations is not commensurate in scope with the claimed
`subject matter because the evidence relates to a limited subset of catalysts
`and not catalysts with SAR values and Cu/Al ratios spanning the claimed
`ranges. Id. at 46. Petitioner also argues that “there is nothing unexpected
`about the resulting properties from the claimed Cu/Al ratios and SARs,” and,
`therefore, “the claimed Cu/Al ratios and SARs are not critical and do not
`distinguish the ’662 patent’s claims from the prior art.” Id. at 50.
`Patent Owner contends that Petitioner repeats arguments previously
`rejected in the reexamination of the ’662 patent, and argues that Petitioner
`has failed to show (1) that a person of ordinary skill in the art would have
`selected the Zones catalyst as a lead compound or starting point for further
`development efforts and (2) that there was a reason to modify the lead
`compound to make the claimed compound with a reasonable expectation of
`success. Prelim. Resp. 16–17.
`With regard to Zones, Patent Owner argues that Zones does not “teach
`or suggest that a Cu-zeolite having the CHA crystal structure warrants
`further investigation for the SCR of NOx.” Id. at 18. Specifically, Patent
`Owner contends that Zones does not disclose a specific example of a Cu-
`zeolite, any specific reactions for the reduction of nitrogen oxides, an
`amount of copper to be used in a zeolite having the CHA structure, or any
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`data pertaining to NOx reduction. Id. at 18–19. According to Patent Owner,
`the failure of Zones to provide data regarding NOx reduction is particularly
`significant in view of other prior art references that indicate a CuCHA
`zeolite was inactive for the decomposition of NO. Id. at 19–20 (citing Ex.
`2006, .027–028; Ex. 2015).
`Patent Owner further argues that Maeshima does not provide a reason
`to modify the Cu/Al ratio of a CuCHA zeolite with a reasonable expectation
`of success. Id. at 24–25. Patent Owner contends that Maeshima “is not
`directed to a zeolite having the CHA structure” because it contains only a
`single reference to a zeolite having a CHA crystal structure (a chabazite),
`and does not otherwise discuss or provide specific examples of, or data
`relating to, a chabazite containing copper. Id. at 25. Patent Owner notes
`that the one example disclosed in Maeshima is a faujasite, which does not
`have the CHA structure, and argues that Petitioner does not explain why a
`person of ordinary skill in the art would apply the teachings of Maeshima
`regarding a faujasite to the CHA zeolite disclosed in Zones. Id. at 25–26
`(citing Ex. 2008 at .010). Patent Owner also argues that Petitioner does not
`establish that a person of ordinary skill in the art would have had a
`reasonable expectation of success with respect to the SCR of nitrogen oxides
`in view of the difference in zeolite crystalline structures. Id.
`Patent Owner further argues that a person of ordinary skill in the art
`would not have been motivated to apply the copper ion exchange ratio
`disclosed in Maeshima to the Zones zeolite because Maeshima states that
`“[t]he ion exchange ratio is not particularly critical,” and there is no
`correlation between the ion exchange ratio and catalytic activity of CuCHA
`zeolites in Maeshima. Ex. 1002, 4:48–50; Prelim. Resp. 27.
`
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`With regard to claims 9 and 10, Patent Owner contends that Petitioner
`failed to present evidence demonstrating that Maeshima and/or Zones
`disclose a CHA zeolite having both ion-exchanged and non-exchanged
`copper as required by claim 9 that also meets the performance characteristics
`recited in claim 10. Prelim. Resp. 42–43. Patent Owner argues that
`Petitioner, instead of providing actual evidence, relied on inaccurate
`information and bare conclusions from its expert. Id.
`Additionally, Patent Owner argues that there is substantial evidence
`that the claimed invention in the ’662 patent provided unexpected results.
`Id. at 29–31. Patent Owner contends that the data shown for Examples 2, 3,
`and 4 in Table 1 of the ’662 patent demonstrates that the claimed CuCHA
`zeolite catalyst exhibits improved hydrothermal stability as compared to
`other types of zeolite materials. Id. at 29 (citing Ex. 1001, 14:52–57).
`Patent Owner also refers to statements appearing in a paper authored by the
`Ford Motor Company in 2008 (Ex. 2002, “Ford Paper”). According to
`Patent Owner, the Ford Paper compares a CuCHA material having an SAR
`of 30 and copper to aluminum ratio of 0.45 with other SCR catalyst
`formulations, and describes the CuCHA zeolite as “remarkable” and having
`enhanced durability. Prelim. Resp. 30 (citing Ex. 2002, .011). Patent Owner
`also relies on a declaration submitted in connection with the reexamination
`of the ’662 patent comparing CuCHA zeolites that fall within the scope of
`the claims to examples disclosed in a prior art reference. Id. at 30–31 (citing
`Ex. 2011). Patent Owner notes that, according to the declaration, the prior
`art samples exhibited nearly zero NOx conversion after aging, whereas the
`claimed catalysts showed “excellent” performance. Id. Patent Owner
`further contends that the claimed invention of the ’662 patent was the
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`subject of skepticism, addressed a long-felt, but unresolved need, and
`received praise. Id. at 36–40.
`We are not persuaded by Patent Owner’s arguments that Petitioner
`failed to properly apply the “lead compound” analysis with regard to the
`combination of Zones and Maeshima. Nor are we persuaded, based on the
`present record, by Patent Owner’s arguments that a person of ordinary skill
`would not have had a reasonable expectation of success in applying the
`teachings of Maeshima to Zones.
`Although Patent Owner directs us to certain things that Zones does
`not disclose, we note that Zones does disclose an aluminosilicate CHA
`zeolite catalyst and teaches that the zeolite may contain a metal, such as
`copper, capable of catalyzing the reduction of nitrogen oxides. Ex. 1004,
`1:21–22, 61–63. Patent Owner acknowledges that the “reduction of oxides
`of nitrogen” language in Zones refers to, inter alia, the selective catalytic
`reduction of NO in the presence of ammonia. Prelim. Resp., 21, n.5.
`Furthermore, despite Patent Owner’s contention that a certain prior art
`reference discloses “experimental results that a CuCHA zeolite was inactive
`for the decomposition of NO” (id. at 19), this reference refers to only a
`single synthetic CuCHA zeolite, and Petitioner points to the ’662 patent,
`Zones, Maeshima, and other prior art references that, on this record, suggest
`that, in general, CuCHA zeolite catalysts were known to be used for SCR of
`nitrogen oxides in the presence of ammonia (Pet. 9–11, 48). E.g., Ex. 1001,
`1:30–33; Ex. 1002, 2:1–8, 3:33–43, 4:11; Ex. 1004, 1:18–30, 61–67, Ex.
`1007.
` Furthermore, contrary to Patent Owner’s contentions that Maeshima
`is not directed to a zeolite having the CHA structure, Maeshima discloses
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`chabazite as a suitable catalyst for the selective catalytic reduction of
`nitrogen oxides in the presence of ammonia. Ex. 1002, 2:4–9, 4:6–11.
`Additionally, Maeshima, similar to the disclosure in Zones, lists copper as
`an especially preferred “active metal component having an activity of
`reducing nitrogen oxides” (id. at 6:1–4), and further discloses a generally
`preferred ion exchange ratio and “catalytically effective” weight percent
`amount of the active metal component (id. at 4:48–50, 6:13–17).
`
`Nor are we persuaded by Patent Owner’s arguments regarding
`secondary considerations.4 The issue of secondary considerations is highly
`fact-specific. At this stage of the proceeding, the record regarding such
`secondary considerations is incomplete, and the Petitioner has not had the
`ability to fully respond to the specific arguments raised by Patent Owner in
`the Preliminary Response.
`Taking into account the information and arguments provided by
`Petitioner and Patent Owner, including Petitioner’s claim charts and the
`Lercher and Schütze declarations, we determine that Petitioner has identified
`sufficiently where each claim element of claims 1–8 and 30 is allegedly
`disclosed in, or suggested by, Zones and Maeshima, and also has provided a
`credible rationale to support the proposed combination of the prior art
`references with a reasonable expectation of success. See KSR Int’l v.
`Teleflex, Inc., 550 U.S. 398, 416 (2007) (“The combination of familiar
`elements according to known methods is likely to be obvious when it does
`no more than yield predictable results.”). In view of this, we are persuaded
`that Petitioner has demonstrated a reasonable likelihood that the subject
`
`
`4 Our determination in that regard does not prevent Patent Owner from
`further developing such evidence during trial.
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`matter of claims 1–8 and 30 would have been obvious over the combination
`of Zones and Maeshima.
`With regard to claims 9 and 10, we agree with Patent Owner that
`Petitioner has not offered adequate evidence demonstrating that Maeshima
`and/or Zones disclose a CHA zeolite having both ion-exchanged and non-
`exchanged copper as required by claim 9 or the performance characteristics
`of claim 10. For example, the argument that Maeshima teaches “customary”
`methods of copper incorporation that would result in the formation of some
`non-exchanged copper deposits (Pet. 13) is supported only by the conclusory
`testimony of Dr. Lercher regarding these “customary” methods (Ex. 1008
`¶ 136), which is insufficient to support Petitioner’s conclusion that
`Maeshima and Zones teach a catalyst that would necessarily contain both
`ion-exchanged and non-exchanged copper. As a result, we are not
`persuaded, on this record, that Petitioner has demonstrated a reasonable
`likelihood that the subject matter of claim 9, and claims 10 and 11 that
`depend from claim 9, would have been obvious over Zones and Maeshima.
`2. Claims 12–24 and 32–50
`Claims 12–24 and 32–38 depend from claim 2, and recite additional
`limitations such as the catalyst being deposited on a honeycomb substrate
`(claim 12), the honeycomb substrate comprising a wall flow filter substrate
`(claim 13) or a flow through substrate (claim 14), coating a portion of the
`flow through or wall flow substrate with Pt and CuCHA adapted to oxidize
`ammonia in the exhaust gas stream (claims 16 and 17), placing the catalyst
`downstream from a diesel engine and an injector that adds a reductant to an
`exhaust gas stream (claims 21–24), and including a catalyzed soot filter
`(claim 32). Ex. 1001, 23:48–24:23, 24:49–65; Reexam. Cert. 2:12–13.
`
`
`
`16
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`IPR2015-01121
`Patent 7,601,662
`
`Claims 39–50 depend from claim 3 and contain limitations similar to those
`in claims 12–24. Reexam. Cert. 2:14–59.
`Petitioner asserts that the subject matter of claims 12–24 and 32–50
`would have been obvious in view of Zones, Maeshima, and Patchett.
`Petitioner states that Patchett generally relates to an emissions treatment
`system and methods for reducing nitrogen oxides emissions, and contends
`that Patchett discloses the additional structural features recited in claims 12–
`24 and 32–50. Pet. 23–45. Petitioner also notes that Patchett discloses the
`use of a copper-exchanged zeolite for the selective catalytic reduction of
`nitrogen oxides in the presence of ammonia. Id. at 24, 30. Petitioner thus
`argues that it would have been obvious to a person of ordinary skill in the art
`to use the catalytic material disclosed by the combination of Zones and
`Maeshima in Patchett’s system and process. Id. at 30. Patent Owner did not
`address the combination of Zones, Maeshima, and Patchett in the
`Preliminary Response.
`We determine, based on the current record, that Petitioner’s
`supporting evidence regarding dependent claims 12–24 and 32–50
`demonstrates a reasonable likelihood that Petitioner will prevail on its
`assertion that the subject matter of these claims would have been obvious
`over the combination of Zones, Maeshima, and Patchett.
`
`
`IV. CONCLUSION
`Based on the information presented, we conclude that Petitioner has
`demonstrated a reasonable likelihood of prevailing with respect to its
`challenge of claims 1–8, 12–24, 30, and 32–50 of the ’662 patent. Petitioner
`
`
`
`17
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`IPR2015-01121
`Patent 7,601,662
`
`has not demonstrated a reasonable likelihood of prevailing with respect to
`claims 9–11.
`The Board has not made a final determination as to the patentability of
`any challenged claim.
`
`V. ORDER
`For the reasons given, it is hereby
`ORDERED that pursuant to 35 U.S.C. §314(a), an inter partes review
`is hereby instituted as to claims 1–8, 12–24, 30, and 32–50 of the ’662 patent
`with respect to the following grounds:
`1. Whether claims 1–8 and 30 are unpatentable under 35 U.S.C.
`§ 103 as obvious over the combination of Zones and Maeshima;
`and
`2. Whether claims 12–24 and 32–50 are unpatentable under 35
`U.S.C. § 103 as obvious over the combination of Zones,
`Maeshima, and Patchett;
`FURTHER ORDERED that no ground other than those specifically
`granted above is authorized for the inter partes review as to the ’662 patent;
`and;
`
`FURTHER ORDERED that pursuant to 35 U.S.C. § 314(c) and
`37 C.F.R. § 42.4, notice is given of the institution of the trial.
`
`
`
`
`
`18
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`IPR2015-01121
`Patent 7,601,662
`
`
`
`PETITIONER:
`Elizabeth Gardner
`Richard L. DeLucia
`KENYON & KENYON LLP
`egardner@kenyon.com
`rdelucia@kenyon.com
`
`
`
`PATENT OWNER:
`Brian E. Ferguson
`Anish Desai
`WEIL GOTSHAL & MANGES LLP
`brian.ferguson@weil.com
`anish.desai@weil.com
`
`
`
`19
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