UNITED STATES PATENT AND TRADEMARK OFFICE
`__________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________________________________________________________________
`
`UMICORE AG & CO. KG,
`
`Petitioner
`
`
`Patent No. 8,404,203
`Issue Date: March 16, 2013
`Title: PROCESS FOR REDUCING NITROGEN OXIDES USING COPPER
`CHA ZEOLITE CATALYSTS
`_________________________________________________________________
`
`PETITION FOR INTER PARTES REVIEW
`OF U.S. PATENT NO. 8,404,203
`PURSUANT TO 35 U.S.C. § 312 and 37 C.F.R. § 42.104
`
`Case No. IPR2015-01123
`__________________________________________________________________
`
`
`
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`

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`
`
`Table of Contents
`
`I.
`
`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 Incurred in Connection with this Petition (37 C.F.R.
`§ 42.103) ...................................................................................................................... 2
`
`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)) .................................................. 2
`
`Claim Construction (37 C.F.R. § 42.104)(b)(3)) ......................................... 4
`
`1.
`
`2.
`
`3.
`
`“A process for the reduction of oxides of nitrogen contained in a gas
`stream in the presence of oxygen” .............................................................. 4
`
`“[C]atalyst” ............................................................................................ 7
`
`“[Z]eolite having the CHA crystal structure” ........................................... 8
`
`IV. Overview of the ’203 Patent ..................................................................................... 8
`
`V. How Challenged Claims are Unpatentable (37 C.F.R. § 42.104(b)(4)-(5)) ......... 9
`
`A. Ground 1: Claims 1, 14, 15, 17-22, 26, and 27 are obvious under
`35 U.S.C. § 103(a) over Zones in view of Maeshima. ................................ 9
`
`B.
`
`Ground 2: Claims 2-13, 16, 23-25, and 29-31 are obvious under
`35 U.S.C. § 103(a) over Zones, Maeshima, and Patchett. ....................... 20
`
`VI.
`
`PURPORTED SECONDARY CONSIDERATIONS ..................................... 38
`
`VII. CONCLUSION ....................................................................................................... 45
`
`-i-
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`LISTING OF EXHIBITS
`
`Exhibit 1001
`
`U.S. Patent No. 8,404,203 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
`
` U.S. Patent No. 6,709,644 to Zones et al.
`
`Exhibit 1005
`
`Exhibit 1006
`
`Exhibit 1007
`
`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).
`
`Exhibit 1008
`
`Expert Declaration of Johannes A. Lercher, Ph.D
`
`Exhibit 1009
`
`Excerpts from File History of U.S. Patent No. 8,404,203 to Bull et
`al., and Reexamination No. 95/001,453
`
`Exhibit 1010
`
`U.S. Patent No. 4,961,917 to Byrne
`
`Exhibit 1011
`
`U.S. Patent No. 5,516,497 to Speronello et al.
`
`Exhibit 1012
`
`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)
`
`Exhibit 1013
`
`U.S. Patent No. 4,297,328 to Ritscher et al.
`
`Exhibit 1014
`
`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)
`
`Exhibit 1015
`
`Declaration of Dr. Frank-Walter Schütze
`
`Exhibit 1016
`
`U.S. Patent No. 4,544,538 to Zones
`
`-ii-
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`
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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 1-31 of U.S. 8,404,203 (“the ’203 patent”) to Ivor Bull et al.,
`
`which was filed June 8, 2009 and issued March 26, 2013. According to U.S. Patent
`
`and Trademark Office (“US PTO”) assignment records, the ’203 patent is currently
`
`assigned to BASF Corporation (“Patent Owner”). There is a reasonable likelihood
`
`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
`
`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
`
`concurrently filing IPR Petition No. IPR2015-01124, which also relates to the ’203
`
`patent. This petition focuses on a primary prior art reference that discloses
`
`aluminosilicate CHA zeolite catalysts that are specifically intended for use in internal
`
`combustion engines, and have a silica to alumina mole ratio within the claimed range.
`
`The secondary reference discloses and provides a motivation to modify those catalysts
`
`by adding copper, resulting in a copper to aluminum atomic ratio within the claimed
`
`range. The -1124 petition focuses on the reverse: There, the primary prior art
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`-1-
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`
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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
`
`ratios within the claimed range.
`
`C.
`Counsel (37 C.F.R. § 42.8(b)(3))
`Lead Counsel: Elizabeth Gardner (Reg. No. 36,519)
`
`Back-up Counsel: Richard L. DeLucia (Reg. No. 28,839)
`
`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.
`
`Payment of Fees Incurred in Connection with this Petition (37 C.F.R.
`§ 42.103)
`The US PTO is authorized to charge the filing fee and any other fees incurred
`
`by Petitioner to the deposit account of Kenyon & Kenyon LLP: 11-0600.
`
`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 ’203 patent (Exhibit 1001) is available for IPR and
`
`that Petitioner is not barred or estopped from requesting an IPR challenging the
`
`patent’s claims on the grounds identified in this petition.
`
`B.
`
`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 1-31 of the ’203
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`-2-
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`
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`patent. Each claim should be found unpatentable and cancelled. This petition
`
`explains the reasons why the claims are unpatentable, includes a description of the
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`relevance of the prior art, and identifies where each claim element can be found in
`
`that art. Detailed claim charts are provided, and additional explanation and support is
`
`set forth in the attached Declarations of Johannes A. Lercher, Ph.D (Ex. 1008) and
`
`Dr. Frank-Walter Schütze (Ex. 1015).
`
`The ’203 patent claims priority back through U.S. App. Nos. 12/480,360 and
`
`12/038,423 to U.S. Prov. App. 60/891,835, which was filed February 27, 2007. While
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`Petitioner does not concede that the ’203 patent is entitled to claim the benefit of any
`
`of these applications, for purposes of this petition it is assumed that the patent has an
`
`effective filing date of February 27, 2007.
`
`Petitioner relies on the following references: (1) U.S. 6,709,644, issued March
`
`23, 2004 (“Zones,” Exhibit 1004); (2) U.S. 4,046,888, issued September 6, 1977
`
`(“Maeshima,” Exhibit 1002); and (3) U.S. App. 2006/0039843, published Feb. 23,
`
`2006 (“Patchett,” Exhibit 1005) Zones, Maeshima, and Patchett are prior art under 35
`
`U.S.C. § 102(b).
`
`Petitioner requests that claims 1-31 be cancelled on the following grounds:
`
`Ground 1: Claims 1, 14, 15, 17-22, 26, 27 are obvious under 35 U.S.C. § 103(a)
`
`over Zones in view of Maeshima.
`
`Ground 2: Claims 2-13, 16, 23-25, and 28-31 are obvious under 35 U.S.C. §
`
`103(a) over Zones and Maeshima in further view of Patchett.
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`-3-
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`
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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
`
`light of the specification.” 37 C.F.R. § 42.100(b). Terms are to be given their plain
`
`meaning unless it is inconsistent with the specification. In re Zletz, 893 F.2d 319, 321
`
`(Fed. Cir. 1989). Petitioner contends that certain of the claim terms are indefinite and
`
`render the claims invalid under 35 U.S.C. § 112. However, because indefiniteness
`
`cannot be raised herein, Petitioner proposes the following in rendering the broadest
`
`reasonable constructions:
`
`1.
`
`“A process for the reduction of oxides of nitrogen contained in a gas stream in
`the presence of oxygen”
`
`The preamble of independent claims 1 and 26 of the ’203 patent states that the
`
`claims are directed to a “process for the reduction of oxides of nitrogen contained in a
`
`gas stream in the presence of oxygen.” (Ex. 1001, 23:9-11, 24:29-31.) A preamble
`
`will not be limiting if it simply recites the purpose of the claimed subject matter and
`
`the body of the claim does not depend on the preamble for completeness. See in re
`
`Hirao, 535 F.2d 67, 70 (CCPA 1976). The preamble of claims 1 and 26 provides
`
`antecedent basis for the term “the gas stream” that appears later in the claim. In view
`
`of this, while the preamble may be a claim limitation, it is readily understood and can
`
`simply be afforded its plain and ordinary meaning.
`
`Despite the straight-forward language of the preamble, Petitioner anticipates
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`that Patent Owner may argue that the ’203 patent’s claims are limited to processes
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`-4-
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`
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`that have very specific performance characteristics. For instance, during prosecution
`
`the Patent Owner attempted to argue that the catalysts of the ’203 patent purportedly
`
`have the ability to “maintain NOx conversion across a broad temperature range after
`
`exposure to hydrothermal conditions.” (Ex. 1009, ’203 file history, 1/24/2011
`
`Amend., at p. 22.) It also argued that the catalysts exhibit “high NOx conversion in
`
`the low temperature range” of 200 oC to 350 oC. (Id. at pp. 24-25.) Likewise, the
`
`Patent Owner argued that it is not enough for a catalyst to simply have “some activity
`
`in the reduction of oxides of nitrogen.” Instead, the “claimed process” purportedly
`
`requires “excellent activity at temperatures below 350 oC that is maintained after
`
`hydrothermal aging.” (Id., 5/1/12 Amend., at p. 13.) The Patent Owner went on to
`
`argue that the claims require not only the “subject matter which is literally recited,”
`
`but also any “properties … which are inherent in the subject matter and are disclosed
`
`in the specification.” (Id. at pp. 13-14 (citing In re Antonie, 559 F.2d 618 (CCPA 1977)
`
`and In re Goodwin, 576 F.2d 375 (CCPA 1978)).)
`
`The ’203 patent’s claims should be interpreted to require only what they state,
`
`namely, a “process for the reduction of oxides of nitrogen.” The claims cannot
`
`properly be limited to only processes employing materials that exhibit “excellent
`
`activity,” including activity over a wide range of temperatures or resistance to
`
`hydrothermal aging. There is nothing in the claims that requires this type of
`
`performance. And, the ’203 patent’s specification does not define any claim term to
`
`require this functionality, or disclaim coverage of materials that do not possess these
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`-5-
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`
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`characteristics. In fact, the specification indicates that the materials of the patent do
`
`not need to have “excellent activity.” For instance, Example 1 employs the claimed
`
`zeolite, SAR, and Cu/Al ratio. (Ex. 1001, ’203 patent, 10:48-50, Table 1.) Yet, this
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`catalyst “did not show enhanced resistance to thermal aging.” (Id. at 11:21-26.)
`
`The prosecution history of the ’203 patent itself also serves to confirm that the
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`claims cannot be limited to only processes with “excellent” performance. When
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`originally filed, the ’203 patent included claims explicitly requiring that the catalyst
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`“prevent thermal degradation” and “maintain NOx conversion … after hydrothermal
`
`aging.” (Ex. 1009, ’203 patent file history, at 11/18/09 Prelim. Amend., pp. 4-5.)
`
`Other claims required that the “NOx conversion of the catalyst at about 200 oC after
`
`hydrothermal aging” be “at least 90% of the NOx conversion of the catalyst at about
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`200 oC prior to hydrothermal aging,” or that the catalyst be able to reduce “at least
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`about 90%” of nitrogen oxides “over the temperature range of about 250 oC to 450
`
`oC.” (Id. at p. 5) These claims were repeatedly rejected as not described or enabled.
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`(Id., 2/26/10 Office Action, at pp. 3-4; 2/1/12 Office Action, at pp. 5-6; 7/18/12
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`Office Action, at pp. 2-4.) In response, the Patent Owner cancelled the claims and
`
`proceeded with claims requiring only a “process for the reduction of oxides of
`
`nitrogen” without any performance requirements. (Id., 5/1/12 Amend., at p. 4.)
`
`Any argument on the part of the Patent Owner that the ’203 patent’s claims
`
`must be limited to processes that exhibit “excellent activity” across a wide range of
`
`temperatures and a high “hydrothermal stability” is also wrong as a matter of law.
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`-6-
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`
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`The two cases cited during prosecution—In re Antonie and In re Goodwin—simply stand
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`for the proposition that it may be possible to rebut a prima facie case of obviousness
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`by showing that selection and optimization of a particular claimed range produced
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`“unexpectedly good” results. In re Antonie, 559 F.2d at 620. This does not mean,
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`however, that performance characteristics allegedly possessed by certain embodiments
`
`in the specification should be read into the claims. Further, as discussed below in
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`Section VI, the ’203 patent’s specification fails to provide any basis for the contention
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`that use of the zeolites in the claimed range produces “unexpected” results. (See also
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`Ex. 1008, Lercher Dec. at ¶¶ 245-254.)
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`“[C]atalyst”
`
`2.
`The “catalyst” of the claims is indefinite, as it is defined as having various
`
`metrics and characteristics set forth in the body of the claim, but it is unclear whether
`
`those recited features (such as mole ratios and atomic ratios) are those of the zeolite
`
`alone, or whether they are of the entire catalyst in its broadest sense, which would
`
`include a combination of the zeolite and binder, as well as the various substrates on
`
`which the zeolite is deposited. (Ex. 1001, ’203 patent, at 2:59-3:5.) Accordingly,
`
`because these two possibilities overlap in scope, with neither being necessarily broader
`
`than the other, the broadest reasonable interpretation of the “catalyst” would embrace
`
`both a zeolite alone and the zeolite in combination with a binder well and substrate on
`
`which the zeolite and binder are deposited. (See Ex. 1008, Lercher Dec. at ¶¶ 42-45.)
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`-7-
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`

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` “[Z]eolite having the CHA crystal structure”
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`3.
`All of the claims of the ’203 patent require a “zeolite having the CHA crystal
`
`structure.” The patent’s specification provides that the “CHA crystal structure” is
`
`“defined by the International Zeolite Association.” (Ex. 1001, ’203 patent, 1:60-61.)
`
`According to that definition, zeolites with this particular crystal structure are also
`
`known as “chabazite.” (Ex. 1008, Lercher Dec. at ¶¶ 47-51.)
`
`IV. Overview of the ’203 Patent
`The ’203 patent relates to zeolite catalysts having the CHA crystal structure.
`
`(Ex. 1001, ’203 patent, 1:17-19.) These catalysts incorporate copper to facilitate their
`
`use in gas exhaust treatment systems to reduce nitrogen oxides. (Id. at 1:19-22.) The
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`’203 patent acknowledges that both aluminosilicate zeolites and copper promoted
`
`zeolites useful as nitrogen oxide reducing catalysts were known in the prior art. (Ex.
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`1001, 1:34-37.) It was also known that zeolites can be used as part of a “selective
`
`catalytic reduction,” or “SCR,” process to catalyze the selective reaction of ammonia
`
`with nitrogen oxides to form nitrogen and water. (Id. at 8:38-41.)
`
`The ’203 patent’s claims purport to be an advantage over the acknowledged
`
`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”). Independent claims 1 and
`
`26 requires a SAR from about 15 to about 100 or 150, and a Cu/Al ratio from about
`
`0.25 to about 0.50 or 1. The remaining claims are all dependent.
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`The ’203 patent also provides that its catalytic materials can be used as “part of
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`-8-
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`
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`an exhaust gas treatment system used to treat exhaust gas streams, especially those
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`emanating from gasoline or diesel engines.” (Id. at 1:62-65.) In this regard, the
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`specification discusses disposition of its catalysts on various prior art substrates,
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`including “wall flow” or “flow through” “honeycomb” substrates. (Id. at 2:41-45.)
`
`Various other prior art components of an exhaust gas treatment system are also
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`discussed, including an “oxidation catalyst,” a “soot filter,” and a device to add a
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`reductant like “ammonia” to an exhaust stream. (Id. at 5:65-6:5; 21:58-22:67.)
`
`V. How Challenged Claims are Unpatentable (37 C.F.R. § 42.104(b)(4)-(5))
`A. Ground 1: Claims 1, 14, 15, 17-22, 26, and 27 are obvious under 35
`U.S.C. § 103(a) over Zones in view of Maeshima.
` Zones (Ex. 1004) is generally directed to processes for using an
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`aluminosilicate zeolite, such as SSZ-62 which has the chabazite crystal structure, as a
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`catalyst for the selective reduction of oxides of nitrogen in the presence of a
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`stoichiometric excess of oxygen in the exhaust gas stream of an internal combustion
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`engine. (Ex. 1004, Zones at 1:7-15; 1:54-67.) Zones discloses reaction mixtures of
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`zeolite catalysts that have a SAR value greater than 10, ranging from 20-50, and more
`
`preferably ranging from 25-40. (Id. at 1:32-35; 2:30-38.) Example 1 of Zones
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`describes the preparation of a particular SSZ-62 chabazite zeolite having a SAR value
`
`of 22. (Id. at 6:8-31.) Claim 3 describes a zeolite with a SAR of at least 30. (Id. at
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`7:34-35.) Zones also teaches that the zeolite may be exchanged or impregnated to
`
`contain metal or metal ions, and identifies copper as one such metal, to catalyze the
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`-9-
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`
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`reduction of oxides of nitrogen. (Id. at 1:61-64; 5:25-28.) Zones does not place any
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`limitation on the amount of copper, but states that such a metal cation is preferably
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`incorporated in the range of from 0.05 to 5% by weight. (Id. at 5:25-28.)
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`Maeshima relates to materials for use in “a process wherein the concentration
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`of nitrogen oxides is reduced by catalytic reduction.” (Ex. 1002, Maeshima at 1:8-10.)
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`This entails “contacting the … gaseous mixture with a catalyst in the presence of
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`ammonia to reduce the nitrogen oxides selectively.” (Id. at 2:4-8.) Maeshima’s
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`process is meant to be operable at a temperature range of 200 oC to about 500 oC. (Id.
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`at 2:48-49, 3:20-32.) “[A] crystalline aluminosilicate” can be used as the catalyst. (Id.
`
`at 3:33-35.) “Chabazite” is provided as an example of a “suitable … zeolite” catalyst.
`
`(Id. at 4:6-12.) Maeshima states that the zeolite catalysts employed in its process
`
`should have a SAR ratio greater than 2. (Id. at 3:67-4:3.) Further, “at least one metal
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`cation having an activity of reducing nitrogen oxides” can be incorporated into the
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`zeolite. (Id. at 3:35-38.) Copper is identified as an active metal that can be used for
`
`this purpose. (Id. at 4:51-54.) According to Maeshima, zeolite catalysts should
`
`incorporate a sufficient amount of active metal such that resulting “ion exchange
`
`ratio” is “about 60 to about 100%.” (Id. at 4:44-54.) Maeshima also explains that the
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`catalyst should be impregnated with active metals in the amount of 2% to 10% by
`
`weight. (Id. at 6:1-18.) And, an example that includes 3% copper by weight is
`
`provided. (Id. at 9:10-12.)
`
`-10-
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`

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`
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`The combination of Zones and Maeshima teach all the limitations of claims 1,
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`14, 15, 17-22, 26, and 27 of the ’203 patent. Applying the teachings of the copper
`
`addition of Maeshima to the aluminosilicate chabazite zeolite of Example 1 of Zones,
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`with a SAR value of 22, one of ordinary skill in the art would incorporate copper in an
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`amount of between 60% to 100% of the maximum ion exchange capacity of Zones’s
`
`zeolite. This results in a Cu/Al ratio of 0.3- 0.5. (Ex. 1008, Lercher Dec. at ¶¶ 99-
`
`105.) Similarly, Zones teaches a preferred SAR value of 25-40 and includes a claim 2
`
`with a specifically recited SAR value of at least 30. (Ex. 1004, Zones at 2:34; 7:34-35.)
`
`Accordingly, the combination of Zones and Maeshima teach a catalyst falling within
`
`the scope of the SAR range of 15-100 and the Cu/Al range of 0.25-0.50 of claim 1.
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`The combination of Zones and Maeshima also teach a zeolite catalyst that is
`
`effective to promote the reaction of ammonia with nitrogen oxides to form nitrogen
`
`and H2O selectively, as required by claim 1. As taught by Zones, the Zones catalyst is
`
`useful for reducing oxides of nitrogen. (Ex. 1004, Zones at 1:54-57) Maeshima
`
`expressly provides that its catalysts can be used in an SCR process to selectively
`
`reduce nitrogen oxides in a gas stream containing oxygen. (Ex. 1002, Maeshima at
`
`2:4-8.) Accordingly, the combination of Zones and Maeshima teaches a process for
`
`the reduction of oxides of nitrogen contained in a gas stream falling squarely within
`
`the scope of claim 1 of the ’203 patent.
`
`Claims 14 and 26 require “adding a reductant to the gas stream.” Claims 15
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`and 27 specify that this reductant be “ammonia or an ammonia precursor.”
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`-11-
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`
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`Maeshima explains that “ammonia” should be added to a gas stream during the
`
`treatment process as a “reducing agent.” (Ex. 1002 at 2:9-64; 8:32-52.)
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`Claims 17-22 further limit the SAR and Cu/Al ratio of the claimed catalyst.
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`Claims 17 and 18 respectively require a SAR of “about 25 to about 40” or “about 30.”
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`Claims 19 and 20 respectively require a Cu/Al ratio of “0.30 to about 0.50” or “about
`
`0.4.” Claim 21 requires both a SAR “from about 25 to about 40” and a Cu/Al ratio
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`“from about 0.3 to about 0.5,” while claim 22 requires a SAR of “about 30” and a
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`Cu/Al ratio of “about 0.4.” The combination of Zones and Maeshima discloses a
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`copper-loaded chabazite zeolite with SARs of 25-40, as described in Zones as a
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`preferred SAR range, as well as an exemplary SAR of 30. Maeshima’s zeolites have
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`Cu/Al ratios of 0.3 to 0.5, which matches the claimed ranges. (Ex. 1002, Maeshima at
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`4:44-54; 6:1-18; 8:60-9:11.)
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`One of ordinary skill in the art as of February 20071 would have been
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`motivated to utilize copper exchanged zeolites in processes for SCR in the presence
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`of ammonia using Zones’ higher SAR chabazite zeolites to arrive, with a reasonable
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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
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`their stability and activity. (See Ex. 1008, Lercher Dec. at ¶ 69.)
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`expectation of success, at the subject matter of the claims. (Ex. 1008, Lercher Dec. at
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`¶¶ 145-154.) While Zones discloses all the other required claim limitations, including
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`the use of zeolites with the CHA crystal structure and the claimed SAR values in an
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`SCR process, it does not expressly reference zeolites with Cu/Al ratios within the
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`claimed ranges. Instead, it simply states that “the zeolite may contain a metal or metal
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`ions (such as . . . copper. . .)” without expressly stating an amount of copper to load.
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`(Ex. 1004, Zones at 1:61-63.) One of ordinary skill in the art would also understand
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`that it would be beneficial to follow Maeshima’s instruction to use a 60% to 100%
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`ion-exchange rate when adding copper to Zone’s zeolite. It was well known that
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`larger amounts of copper ions, including that achieved by copper loading up to the
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`100% ion-exchange rate, enhance the effectiveness of a zeolite when catalyzing the
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`reduction of nitrogen oxides. (See Ex. 1008, Lercher Dec. at ¶¶ 147-148.)
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`One of ordinary skill in the art would also have every reason to believe that use
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`of the copper content of Maeshima in the zeolites of Zones in an SCR process in the
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`presence of ammonia for treating combustion exhaust gases would succeed. (Id. at ¶
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`149.) In fact, as acknowledged in the ’203 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 1:34-37.) 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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`4:44-54.) Maeshima also explains that the catalyst should be impregnated with 2% to
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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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`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 ¶ 152.) 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
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`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 ¶ 153.) 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 ¶ 154.)
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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. The
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`combination of Zones and Maeshima also teach such a zeolite that falls within the
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`scope of the claimed ranges of SAR and Cu/Al ratio. While the particular limits of
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`those claimed SAR and Cu/Al ranges are not highlighted in the prior art, those
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`claimed ranges and the limits lend no patentable significance, but rather are either
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`insignificant or the obvious and natural result of routine design and optimization. As
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`shown in the attached declarations of Dr. Frank-Walter Schütze (Ex. 1015) and Dr.
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`Johannes Lercher (Ex. 1008), there is no criticality to the claimed SAR and Cu/Al
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`ranges, and the performance of zeolites falling both within the range and outside the
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`range are what would be fully expected by one of ordinary skill in the art from the
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`teachings of Zones and Maeshima. (See Ex. 1008, Lercher Dec. at ¶¶ 255-300.)
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`Claim charts further identifying the portions of Zones and Maeshima that
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`disclose the limitations of claims 1, 14, 15, 17-22, 26, and 27 are provided below:
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`Claim 1
`A process for the reduction of
`oxides of nitrogen contained in
`a gas stream in the presence of
`oxygen wherein said process
`comprises
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`contacting the gas stream with
`a catalyst comprising
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`Disclosure Zones and Maeshima
`E.g., Zones, 1:54-67 (“The zeolite . . . [is] capable
`of catalyzing the reduction of the oxides of
`nitrogen, and may be conducted in the presence of
`a stoichiometric excess of oxygen. In a preferred
`embodiment, the gas stream is the exhaust stream
`of an internal combustion engine.”).
` E.g., Maeshima, 1:6-13 (“[T]his invention relates
`to a process . . . wherein the concentration of
`nitrogen oxides is reduced by catalytic reduction.
`… Nitrogen oxides are, of course, generally
`present in significant quantities in gaseous
`mixtures such as flue gases.”); 2:4-8 (“[N]itrogen
`oxides are removed from a gas containing the
`nitrogen oxides and oxygen by contacting the
`resulting gaseous mixture with a catalyst in the
`presence of ammonia to reduce the nitrogen
`oxides selectively.”); see also 2:9-64; 3:20-27; 8:15-
`52.
`E.g., Zones, 1:54-60 (“Also provided . . . is an
`improved process for the reduction of oxides of
`nitrogen contained in a gas stream in the presence
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`a zeolite having the CHA
`crystal structure
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`and a mole ratio of silica to
`alumina from about 15 to
`about 100
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`of oxygen wherein said process comprises
`contacting the gas stream with a zeolite, the
`improvement comprising using as the zeolite a
`zeolite having a CHA crystal structure . . .”)
`E.g., Maeshima, 1:55-63 (“[T]he gaseous mixture
`is contacted with a zeolite catalyst….”); 2:4-8
`(“[N]itrogen oxides are removed from a gas
`containing the nitrogen oxides and oxygen by
`contacting the resulting gaseous mixture with a
`catalyst….”); see also 1:6-13; 2:9-64; 3:20-27; 7:20-
`27; 8:15-52.
`E.g., Zones, Abstract (“The present invention
`relates to zeolites having the crystal structure of
`chabazite (CHA) . . . to processes using the small
`crystallite CHA as a catalyst . . .); see also 1:7-15;
`1:18-23; 1:24-30; 1:31-37; 1:54-61; 6:9-31; 8:15-22.
`E.g., Maeshima, 3:33-35 (“As the catalyst that can
`be used for practicing the method of the present
`invention, there [is] . . .a crystalline aluminosilicate
`. . .”); 4:3-11 (“As the crystalline aluminosilicate,
`there may be used both natural and synthetic
`zeolites. … Suitable natural zeolites are: …
`Chabazite: (Ca, Na2) [Al2Si4O12].6H2O”); see also
`1:60-63; 3:44; 3:67-68; 4:36-50; 6:1-4; 7:28-30; 8:1-
`4; 8:14-19; 8:60-62; 9:14-17.
`E.g., Zones, 6:8-31 (“Example 1 Synthesis of SSZ-
`62 . . . The silica/alumina mole ratio [“SAR”] of
`the SSZ-62 product is 22.”); 2:30-34 (Table 1
`shows typical ratios of SiO2 to Al2O3 of 20-50 and
`preferred ratios of 25-40); 4:6-9 (“SSZ-62 as
`prepared has a mole ratio of silicon oxide to
`aluminum oxide of greater than 10. SSZ-62 can
`also be made with a mole ratio of silicon oxide to
`aluminum oxide of at least 30.”); see also 1:7-10;
`1:24-34; 1:46-67; 4:15-17.
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`E.g., Maeshima, 3:68-4:3 (“In the present
`invention, [crystalline aluminosilicates] having …
`SiO2/Al2O3 molar ratios of above about 2 are
`preferred.”).
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`and an atomic ratio of copper
`to aluminum from about 0.25
`to about 0.50.
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`E.g., Zones, 1:61-64 (“The 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 . . . .”); 4:36-40
`(“The hydrogen, ammonium, and metal
`components can be ion-exchanged into the SSZ-
`62. The zeolites can also be impregnated with
`metals, or the metals can be physically and
`intimately admixed with the zeolite using standard
`methods known to the art.”); see also 4:25-30.
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`E.g., Maeshima, 4:44-54 (“A zeolite catalyst
`having incorporated therein an active metal ion . . .
`it is generally preferred that the ion exchange ratio
`be about 60 to about 1