UNITED STATES PATENT AND TRADEMARK OFFICE
`__________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________________________________________________________________
`
`UMICORE AG & CO. KG
`
`Petitioner
`
`v.
`
`BASF CORPORATION
`
`Patent Owner
`
`Case IPR2015-01123
`U.S. Patent 8,404,203
`__________________________________________________________________
`
`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 Only 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 Alt Would Have a Reasonable
`Expectation of Success....................................................................... 22
`Expectation of Success ..................................................................... ..22
`B. Zones and Maeshima in Further View of Patchett...................................... 24
`CONCLUSION ........................................................................................................ 25
`
`CONCLUSION ...................................................................................................... ..25
`
`B. Zones and Maeshima in Further View of Patchett.................................... ..24
`
`-ii-
`
`

`
`INTRODUCTION
`
`Petitioner Umicore respectfully submits its reply in support of its Petition for
`
`IPR of the ’203 patent (Ex. 1001). 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
`
`’203 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 ’203 patent’s claims are directed to “a copper-
`
`exchanged aluminosilicate zeolite with the CHA structure type (‘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” “are pertinent to the evaluation of obviousness.” (Id. at 12.)
`
`BASF then criticizes the prior art for not expressly discussing the unclaimed
`
`enhanced properties. (See, e.g., id. at 25.) And, BASF further argues that the
`
`unclaimed properties of the ’203 patent’s materials overcame skepticism, provides
`
`evidence of unexpected results, and has allowed BASF’s catalyst product to be
`
`commercially successful. (See id. at 37-44.)
`
`BASF’s arguments ignore what the ’203 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 ’203 patent possesses 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 ’203
`
`patent’s claims are directed to a “process for the reduction of oxides of nitrogen
`
`contained in a gas stream in the presence of oxygen” using a catalyst with the CHA
`
`crystal structure, a SAR in the range of 15-150 (or 100), and a Cu/Al ratio in the
`
`range of 0.25-1 (or 0.5). This is all that is literally recited by the claims, and no
`
`further functional or performance properties are required. BASF conceded that
`
`this “process for…” language did “not require construction.” (BASF Opp. at 12.)
`
`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 claims
`
`such that the prior art must teach a process that works to reduce nitrogen oxides in
`
`all circumstances, including at very low temperatures. BASF further argues that
`
`the prior art must show improved resistance to hydrothermal degradation after
`
`aging. But, the claims are not so narrowly focused. Indeed, unlike the ’662 patent
`
`(the ’203 patent’s parent) the claims at issue in this IPR do not even require a
`
`catalyst that is “effective” for SCR.
`
`Importantly, the claims do not require that the catalyst be able to reduce
`
`nitrogen oxides any particular temperatures. (See Ex. 1019, Tsapatsis Depo. at
`
`-3-
`
`

`
`64:24-65:22.) Thus, the claims can cover a catalyst that reduces nitrogen oxides
`
`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 or durability. (See id. at 72:11-73:9.) None of the ’203
`
`patent’s claims even use the terms “hydrothermal” or “aging.” Thus, while the
`
`claims do embrace catalysts that can be used to reduce nitrogen oxides after
`
`extreme hydrothermal aging, they also include catalysts that can be used only when
`
`fresh, or when subjected to mild aging conditions.
`
`The ’203 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, ’203
`
`patent at 10:48-50; Table 1.) Thus, as confirmed by BASF’s expert, the example
`
`falls within the scope of all but the narrowest of the ’203 patent’s claims.1 (See Ex.
`
`1019, Tsapatsis Depo. at 57:6-25 (discussing claim 1 of the ’662 patent, which
`
`includes limitations tracking claim 26 of the ’203 patent).) Despite this, the ’203
`
`patent explains that Example 1 “did not show enhanced resistance to thermal
`
`1 Example 1 is not within the scope of claims 20 and 22. These claims simply
`
`narrow the claimed Cu/Al ratio range but add no other limitations calling for
`
`hydrothermal stability.
`
`-4-
`
`

`
`aging.” (Ex. 1001, ’203 patent at 11:21-26 (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 examples showing improved low
`
`temperature activity or hydrothermal stability (see, e.g., id. at 11:55-58; 12:4-8;
`
`14:37-39), there is no evidence that all the materials spanning the claimed ranges
`
`provide these unclaimed benefits. The following chart summarizes the SAR values
`
`and Cu/Al ratios of the patent’s examples:
`
`-5-
`
`

`
`(Ex. 1018; see also Ex. 1019, Tsapatsis Depo. at 99:3-103:9.) The broken line
`
`represents claim 26’s range of SAR values and Cu/Al ratios. The dots represent
`
`the examples. As can be seen, there is 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 test 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 is
`
`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 unexpected
`
`-6-
`
`

`
`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. (See Ex. 1019, Tsapatsis Depo. at 80:13-81:10 (discussing
`
`claims in the ’662 patent that are similar to those in the ’203 patent.) The ’203
`
`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, ’203 patent at 2:31-35; see also 2:59-67.) Indeed, the
`
`patent even unambiguously explains that it is the “free copper” that “prevents
`
`hydrothermal degradation.” (Id. at 2:67-3:3.) This same explanation is repeated in
`
`the “Detailed Description.” (See, e.g., id. at 5:33-41.) 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
`
`5:51-54.) The inclusion of “non-exchanged Cu” also “enhanced” a catalyst’s
`
`“ability to reduce NO with NH3 at low temperatures.” (Id. at 6:21-25.) The
`
`-7-
`
`

`
`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 11:34-37, 55-58; 12:5-8 with 11:21-26.) 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 ’203 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 Only An Optional
`Property
`
`The ’203 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, ’203 patent at 1:51-55 (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, claims 1 and 26 extend to catalysts that can be used
`
`in circumstances where low temperature activity and hydrothermal stability are
`
`irrelevant. According to the patent, while an “SCR catalyst downstream of a
`
`catalyzed soot filter” may “experience temperatures as high as 800 oC” making
`
`-8-
`
`

`
`“improved hydrothermal stability” important, “[n]ot all catalysts will experience
`
`such high temperatures.” (Ex. 1001, ’203 patent at 14:43-53.) 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 of matter relevant to patentability must be considered in evaluating
`
`whether that composition would have been obvious in light of the prior art.” Tyco
`
`Healthcare, 642 F.3d 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 art, cannot impart patentability to the known
`
`composition.” Id. (quoting In re Spada, 911 F.2d 705, 708 (Fed. Cir. 1990).)
`
`-9-
`
`

`
`Further, in In re Verbanc the court found 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 activity “over a wide temperature range”) that are not
`
`possessed by every claimed embodiment cannot differentiate the ’203 patent from
`
`prior art disclosing processes that employ CuCHA catalysts with SARs and Cu/Al
`
`ratios that overlap 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 35.) “For …
`
`objective evidence to be accorded substantial weight,” “its proponent must
`
`establish a nexus between the evidence and the merits of the claimed invention.” In
`
`-10-
`
`

`
`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. 2 Thus, BASF has failed to establish the
`
`required nexus. 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
`
`hydrothermal stability.” (BASF Opp. at 37-39.) But, none of the claims require a
`
`2 This distinguishes the ’203 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-
`
`

`
`commercially viable catalyst, or a catalyst that exhibits any particular degree of
`
`hydrothermal stability. The claims require only a CuCHA zeolite catalyst that can
`
`be used as part of a process for reducing nitrogen oxides. 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 37.) 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, 004, 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 38-39.) 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
`
`“investigation verifies that … zeolite based catalysts are very promising for the
`
`-12-
`
`

`
`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 37-38.) Dr. Roth 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 their 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 reviewer’s comments, these
`
`-13-
`
`

`
`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 40.) But, BASF only points to examples 2, 3, and 4 of
`
`the ’203 patent. (See id. at 39-40.) These examples have a SAR of 30 and a Cu/Al
`
`ratio in the range of 0.33-0.44. (See Ex. 1001, ’203 patent at 11:42-44, 62-65;
`
`12:12-15; Table 1.) The claims of the ’203 patent, however, extend to materials
`
`with SARs of 15-150 (or 100), and Cu/Al ratios of 0.25-1 (or 0.5). There is simply
`
`no evidence in the record establishing how catalysts spanning large swaths of the
`
`claimed ranges—including between and above SARs of 15 and 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 will behave in the same manner.” See In re Huai-Hung Kao, 639
`
`-14-
`
`

`
`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 points 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, ’203 patent at 13:49-50; 14:15-18), and testing of zeolites in Dr. Moini’s
`
`declaration with a SAR below 10 (see Ex. 2011). As of the ’203 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.) 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 within the range 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 importance of particular limitations” disclosed by that reference); In
`
`-15-
`
`

`
`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 in the
`
`art).
`
`Example 8 of the ’203 patent provides an indication of how such a catalyst
`
`of Zone performs. This example, like the catalysts of Zones, has the CHA crystal
`
`structure, a SAR of 50, and a low Cu/Al ratio of 0.089. (See Ex. 1001, ’203 patent
`
`at Table 2; 13:6-10.) 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; 12:35-37.) Thus, rather than showing “unexpected results”, the
`
`specification actually shows that the claimed catalysts are not meaningfully better
`
`than prior art materials.
`
`3.
`
`The Other Evidence of Record Also Does Not Establish
`Unexpected Results
`
` BASF then cites both the Byrne patent (Ex. 1010) and a 2015 journal
`
`article (Ex. 2020). Neither establishes that there is anything “unexpected” about
`
`the ’203 patent. Byrne—published in 1990—does note that natural chabazite,
`
`which has a SAR of 2-8 (see Ex. 1019, Tsapatsis Depo. at 140:1-11), can be
`
`poisoned when exposed to very high levels of sulfates. (See Ex. 1010, Byrne at
`
`4:57-5:17.) But, as of the ’203 patent’s filing date one of ordinary skill in the art
`
`-16-
`
`

`
`would not have expected diesel engine exhaust to contain anywhere near the level
`
`of sulfates as Byrne’s example gas stream. (See Ex. 1019, Tsapatsis Depo. at
`
`153:3-13.) Additionally, it was known that higher SAR zeolites, like that set forth
`
`in Zones, were less susceptible to sulfate poisoning. (See Ex. 1003, Breck at
`
`47:47-53.) Thus, when the ’203 patent was filed, Byrne’s concerns regarding
`
`sulfate poisoning were no longer applicable, and one of skill would not have found
`
`it unexpected that a CHA zeolite could be useful as a catalyst. Next, while the
`
`2015 article states that the ammonia SCR reaction mechanism is “complicated,”
`
`this statement was made eight years after the ’203 patent was filed and provides
`
`little insight into the state of the art in 2007. (See generally Ex. 2020 at 001.) It
`
`does illustrate, however, that the ’203 patent inventors did not solve any such
`
`reaction mechanism problems. Indeed, the SCR reaction mechanism itself is not
`
`recited in the patent claims.
`
`Further, the ’203 patent itself highlights that there is nothing about the
`
`claimed subject matter that gives rise to unexpected results. As noted above, the
`
`specification repeatedly explains that it is the inclusion of “free” copper that
`
`“[u]nexpectedly … impart[s] greater stability in catalysts subject to thermal aging.”
`
`(Ex. 1001, ’203 patent at 5:51-54; see also 2:31-35; 2:65-3:3; 5:33-39.) None of
`
`the claims at issue in this IPR require the inclusion of free copper.
`
`-17-
`
`

`
`Finally, as reflected in Dr. Schuetze’s declaration (Ex. 1015), the claimed
`
`subject matter actually produces expected results. As expected, as SAR increases,
`
`stability upon aging steadily increases. (See Ex. 1008, Lercher Dec. at ¶¶ 286-
`
`296.) As Cu/Al ratio increases, SCR activity steadily increases as expected. (See
`
`id. at ¶¶ 262-285.) While performance does improve somewhat as the claimed
`
`range is entered, mere improvement is not equivalent to unexpected results. See In
`
`re Soni, 54 F.3d 746, 751 (Fed. Cir. 1995); see also Golderma Lab., LP v. Tolmar,
`
`Inc., 737 F.3d 731, 739 (Fed. Cir. 2013).
`
`C.
`
`BASF Has Failed to Come Forward with Sufficient Evidence of
`Commercial Success
`
`BASF’s attempts to show commercial success also miss the mark.
`
`“Evidence of commercial success … is only significant if there is a nexus between
`
`the claimed invention and the commercial success.” See Ormco Corp. v. Align
`
`Tech., Inc., 463 F.3d 1299, 1312 (Fed. Cir. 2006). BASF has not drawn the
`
`necessary connection between the sales of its CuCHA product and the claims.
`
`All of BASF’s evidence limited to a single CuCHA catalyst with a specific
`
`SAR and Cu/Al ratio. (See generally Ex. 2019.) The ’203 patent’s claims,
`
`however, cover catalysts spanning broad ranges of SARs and Cu/Al ratios. As
`
`explained above, some of the claimed materials exhibit “enhanced resistance to
`
`thermal aging” and “higher low temperature activity,” but others do not. (See, e.g.,
`
`Ex. 1001, ’203 Patent at 11:21-26, 55-58; 12:4-8, 19-22.) According to BASF,
`
`-18-
`
`

`
`customers purchase the “claimed CuCHA catalyst” because of its “excellent
`
`activity over a wide temperature range and excellent hydrothermal stability.”
`
`(BASF Opp. at 42-43; see also Ex. 2019 at ¶ 11.) As a result, BASF has
`
`effectively admitted that unclaimed features are driving demand making BASF’s
`
`evidence of “commercial success” irrelevant. See Ormco, 463 F.3d at 1312 (Fed.
`
`Cir. 2006).
`
` Finally, even if it is assumed that customers are purchasing BASF’s
`
`CuCHA product for reasons associated solely with the ’203 patent, evidence of
`
`commercial success would still be lacking. BASF cites two declarations. One,
`
`signed by Dr. Ahmad Moini, discusses the SAR and Cu/Al ratio of BASF’s
`
`CuCHA product. (See Ex. 2019.) Another, signed by Olivia Schmidt, provides
`
`information regarding the total global market for SCR catalysts in “Units,” and
`
`then states the percentage of this market that is accounted for by both BASF’s
`
`CuCHA catalyst and the sales of “BASF licensees” own products. (Ex. 2034 at ¶¶
`
`6, 7; see also Ex. 1020, 4/29/16 Depo. of Olivia Schmidt at 14:17-15:6; 16:14-20;
`
`21:20-25.)) However, there is no evidence in the record that would allow one to
`
`determine whether the products sold by these “BASF licensees,” which are not
`
`supplied by BASF (see id. at), fall within the scope of the claims. And, BASF has
`
`refused to identify what percentage of the sales are attributable to BASF’s CuCHA
`
`catalyst as opposed to the products of the licensees. (See id. at 22:1-24:16.) In
`
`-19-
`
`

`
`view of this, it is impossible to determine from the evidence BASF has presented
`
`what percentage of the global SCR market is actually accounted for by claimed
`
`products. This was a showing that BASF was required and has failed to make. See
`
`In re Applied Materials, Inc., 692 F.3d 1289, 1300 (Fed. Cir. 2012).
`
`III. BASF Ignores the Teachings of the Prior Art
`
`BASF’s brief is also replete with other errors of analysis. Among other
`
`things, BASF considers each reference in isolation, ignores the collective teachings
`
`of the prior art, and ignores the knowledge of those of skill in the art as of 2007.
`
`A.
`
`Zones in view of Maeshima
`
`Zones discloses methods for making a zeolite with the CHA crystal structure
`
`with a SAR of 20-50 that can incorporate copper for purposes of “catalyz[ing] the
`
`reduction of the oxides of nitrogen.” (See Ex. 1004, Zones at 1:7-15, 61-65; Table
`
`1.) With the exception of the claimed Cu/Al ratio of 0.25-1 (or 0.5), this is all
`
`claims 1 and 26 require. Maeshima supplements Zones by explaining that a 60-
`
`100% ion exchange rate (corresponding to a Cu/Al ratio of 0.3-0.5) can be used
`
`when incorporating copper into a zeolite catalyst. (See Ex. 1002 at 4:44-54.)
`
`De