Trials@uspto.gov
`571-272-7822
`
`Paper 51
`Entered: October 31, 2016
`
`
`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
`Patent 8,404,203 B2
`____________
`
`
`
`
`Before CHRISTOPHER L. CRUMBLEY, JO-ANNE M. KOKOSKI, and
`JEFFREY W. ABRAHAM, Administrative Patent Judges.
`
`KOKOSKI, Administrative Patent Judge.
`
`
`
`FINAL WRITTEN DECISION
`35 U.S.C. § 318(a) and 37 C.F.R. § 42.73
`
`

`
`IPR2015-01123
`Patent 8,404,203 B2
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`
`I. INTRODUCTION
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`Umicore AG & Co. KG (“Petitioner”) filed a Petition (“Pet.”) to
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`institute an inter partes review of claims 1–31 of U.S. Patent No. 8,404,203
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`B2 (“the ’203 patent,” Ex. 1001). Paper 1. On November 2, 2015, we
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`instituted an inter partes review of claims 1–31 on two grounds of
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`unpatentability. (Paper 8, “Dec. on Inst.”). BASF Corporation (“Patent
`
`Owner”) filed a Patent Owner Response (Paper 24, “PO Resp.”). Petitioner
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`filed a Reply (Paper 34, “Reply”).
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`Petitioner supports its Petition with Declarations by Johannes A.
`
`Lercher, Ph.D. (“the Lercher Declaration,” Ex. 1008) and Dr. Frank-Walter
`
`Schütze (“the Schütze Declaration,” Ex. 1015). Patent Owner relies on
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`Declarations by Dr. Michael Tsapatsis (“the Tsapatsis Declaration,”
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`Ex. 2018), Dr. Ahmad Moini (“the Moini Declaration,” Ex. 2019), and
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`Olivia Schmidt (“the Schmidt Declaration,” Ex. 2034).
`
`Petitioner filed a Motion to Exclude (Paper 40) certain paragraphs of
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`the Tsapatsis Declaration, the Moini Declaration, and the Schmidt
`
`Declaration. Patent Owner filed an Opposition (Paper 44), and Petitioner
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`filed a Reply (Paper 45).
`
`An oral hearing was held on July 28, 2016. A transcript of the hearing
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`is included in the record (Paper 50, “Tr.”).
`
`We have jurisdiction under 35 U.S.C. § 6. This Final Written
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`Decision is issued pursuant to 35 U.S.C. § 318(a) and 37 C.F.R. § 42.73.
`
`For the reasons that follow, we determine that Petitioner has shown by a
`
`preponderance of the evidence that claims 1–31 of the ’203 patent are
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`2
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`unpatentable.
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`

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`IPR2015-01123
`Patent 8,404,203 B2
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`A.
`
`The ’203 Patent
`
`The ’203 patent, titled “Processes for Reducing Nitrogen Oxides
`
`Using Copper CHA Zeolite Catalysts,” is directed to methods of
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`manufacturing copper CHA1 zeolite catalysts and their use in exhaust gas
`
`treatment systems. Ex. 1001, 1:19–22. The Specification describes
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`embodiments where the “catalyst compris[es] a zeolite having the CHA
`
`crystal structure and a mole ratio of silica to alumina greater than about 15
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`and an atomic ratio of copper to aluminum exceeding about 0.25.” Id. at
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`2:13–16. The catalyst can be “deposited on a honeycomb substrate,” which
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`can comprise a wall flow substrate or a flow through substrate. Id. at 2:41–
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`45. The ’203 patent also describes embodiments where “at least a portion of
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`the flow through substrate is coated with CuCHA adapted to reduce oxides
`
`of nitrogen contained in a gas stream flowing through the substrate,” and
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`those where “at least a portion of the flow through substrate is coated with Pt
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`and CuCHA adapted to oxidize ammonia in the exhaust gas stream.” Id. at
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`2:45–51; see also id. at 2:53–58 (describing embodiments where at least a
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`portion of the wall flow substrate “is coated with CuCHA adapted to reduce
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`oxides of nitrogen contained in a gas stream flowing through the substrate,”
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`and those where “at least a portion of the wall flow substrate is coated with
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`Pt and CuCHA adapted to oxidize ammonia in the exhaust gas stream.”).
`
`The ’203 patent further describes “a process for the reduction of
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`oxides of nitrogen contained in a gas stream in the presence of oxygen
`
`wherein said process comprises contacting the gas stream with the catalyst
`
`
`1 The parties agree that CHA crystal structure is defined by the International
`Zeolite Association, and that zeolites having the CHA crystal structure are
`also known as “chabazite.” Pet. 8; PO Resp. 11.
`
`3
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`

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`IPR2015-01123
`Patent 8,404,203 B2
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`described above.” Id. at 3:8–11. Figure 10A of the ’203 patent is
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`reproduced below:
`
`
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`Figure 10A is a schematic depiction of an embodiment of the emissions
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`treatment system described in the ’203 patent. Id. at 4:11–13. Engine 19
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`emits an exhaust stream containing gaseous pollutants and particulate
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`matter, which is conveyed to a position downstream from engine 19 “where
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`a reductant, i.e., ammonia or an ammonia-precursor, is added to the exhaust
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`stream.” Id. at 21:61–66. Aqueous urea, for example, is an ammonia
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`precursor that enters mixing station 24 on line 25 along with air from line
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`26. Id. at 22:1–3. Valve 23 is used to meter precise amounts of aqueous
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`urea to be added to the exhaust stream; the aqueous urea is converted to
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`ammonia in the exhaust stream. Id. at 22:3–5. The exhaust stream
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`containing ammonia is then conveyed to “catalyst substrate 12 (also referred
`
`to herein including the claims as ‘the first substrate’) containing CuCHA in
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`accordance with one or more embodiments.” Id. at 22:6–9. “On passing
`
`through the first substrate 12, the NOx component of the exhaust stream is
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`converted through the selective catalytic reduction of NOx with NH3 to N2
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`and H2O.” Id. at 22:9–12.
`
`The ’203 patent also describes an embodiment that “contains a second
`
`substrate 27 interposed between the NH3 injector and the first substrate 12.”
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`4
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`IPR2015-01123
`Patent 8,404,203 B2
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`Id. at 22:18–21, Fig. 10B. The second substrate is coated with a catalyst
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`composition that can be the same as, or different from, that coated on the
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`first substrate. Id. at 22:21–24. In another embodiment, an oxidation
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`catalyst is included “upstream of the site of ammonia/ammonia precursor
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`injection.” Id. at 22:49–51, Fig. 10C. The “oxidation catalyst is disposed on
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`a catalyst substrate 34,” and the system can also include first substrate 12
`
`and second substrate 27. Id. at 22:51–54. In this embodiment, the exhaust
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`stream is conveyed first through catalyst substrate 34, “where at least some
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`of the gaseous hydrocarbons, CO and particulate matter are combusted to
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`innocuous components.” Id. at 22:54–57. According to the ’203 patent,
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`“the first substrate 12 could be a catalyzed soot filter” with the CuCHA
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`catalyst disposed thereon, and “the second substrate 27 comprising” a
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`CuCHA catalyst “may be located upstream from catalyst substrate 34.” Id.
`
`at 22:62–67.
`
`Claims 1 and 26 are independent claims. Claims 2–25 depend,
`
`directly or indirectly, from claim 1, which is reproduced below:
`
`A process for the reduction of oxides of nitrogen contained
`1.
`in a gas stream in the presence of oxygen wherein said process
`comprises contacting the gas stream with a catalyst comprising a
`zeolite having the CHA crystal structure and a mole ratio of silica
`to alumina from about 15 to about 100 and an atomic ratio of
`copper to aluminum from about 0.25 to about 0.50.
`
`Ex. 1001, 23:9–15.
`
`Claims 27–31 depend, directly or indirectly, from claim 26, which is
`
`reproduced below:
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`26. A process for the reduction of oxides of nitrogen contained
`in a gas stream in the presence of oxygen wherein said process
`comprises adding a reductant to the gas stream and contacting
`the gas stream containing the reductant with a catalyst
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`5
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`IPR2015-01123
`Patent 8,404,203 B2
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`comprising a 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.
`
`Id. at 24:29–36.
`
`B.
`
`The Prior Art
`
`The pending grounds of unpatentability in this inter partes review are
`
`based on the following prior art:
`
`Reference
`
`Publication
`
`Date
`
`Exhibit No.
`
`Maeshima
`
`US 4,046,888
`
`Sept. 6, 1977
`
`1002
`
`Zones
`
`US 6,709,644 B2 Mar. 23, 2004
`
`1004
`
`Patchett
`
`U.S. App.
`2006/0039843 A1
`
`Feb. 23, 2006
`
`1005
`
`
`
`C.
`
`Pending Grounds of Unpatentability
`
`This inter partes review involves the following grounds of
`
`unpatentability:
`
`References
`
`Basis
`
`Claims Challenged
`
`Zones and Maeshima
`
`§ 103(a)
`
`1, 14, 15, 17–22, 26, 27
`
`Zones, Maeshima, and
`Patchett
`
`Dec. on Inst. 17–18.
`
`
`
`A.
`
`Claim Interpretation
`
`§ 103(a)
`
`2–13, 16, 23–25, 28–31
`
`II. ANALYSIS
`
`We interpret claims of an unexpired patent using the “broadest
`
`reasonable construction in light of the specification of the patent in which
`
`[the claims] appear[].” 37 C.F.R. § 42.100(b); see also Cuozzo Speed
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`Techs., LLC v. Lee, 136 S. Ct. 2131, 2144–46 (2016) (“We conclude that
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`IPR2015-01123
`Patent 8,404,203 B2
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`[37 C.F.R. § 42.100(b)] represents a reasonable exercise of the rulemaking
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`authority that Congress delegated to the Patent Office.”). The Board,
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`however, may not “construe claims during IPR so broadly that its
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`constructions are unreasonable under general claim construction principles .
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`. . . ‘[T]he protocol of giving claims their broadest reasonable interpretation
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`. . . does not include giving claims a legally incorrect interpretation.’”
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`Microsoft Corp. v. Proxyconn, Inc., 789 F.3d 1292, 1298 (Fed. Cir. 2015)
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`(citation omitted). “Rather, ‘claims should always be read in light of the
`
`specification and teachings in the underlying patent’” and “[e]ven under the
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`broadest reasonable interpretation, the Board’s construction ‘cannot be
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`divorced from the specification and the record evidence.’” Id. (citations
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`omitted). Only those terms in controversy need to be construed, and only to
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`the extent necessary to resolve the controversy. See Vivid Techs., Inc. v. Am.
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`Sci. & Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir. 1999).
`
`In the Decision on Institution, we determined that the terms in the
`
`challenged claims did not need to be construed expressly, and we see no
`
`reason to modify that determination in light of the record developed at trial.
`
`B.
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`Level of Ordinary Skill in the Art
`
`The parties agree that a person having ordinary skill in the art would
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`have “at least a Master’s degree in chemistry or a related discipline, and
`
`have knowledge of the structure and chemistry of molecular sieves like
`
`zeolites, including factors that impact their stability and activity.” Pet. 12
`
`(citing Ex. 1008 ¶ 69); Ex. 2018 ¶¶ 21–22. This level of skill is consistent
`
`with the subject matter before us, the ’203 patent, and the prior art of record.
`
`Accordingly, we adopt the level of ordinary skill in the art as described by
`
`Petitioner and Dr. Lercher, and agreed to by Dr. Tsapatsis, as further
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`IPR2015-01123
`Patent 8,404,203 B2
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`explained by the references themselves. See Okajima v. Bourdeau, 261 F.3d
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`1350, 1355 (Fed. Cir. 2001) (the level of ordinary skill in the art is usually
`
`evidenced by the references themselves).
`
`C. Obviousness over Zones and Maeshima
`
`Petitioner contends that the subject matter of claims 1, 14, 15, 17–22,
`
`26, and 27 would have been obvious under 35 U.S.C. § 103(a) over the
`
`combination of Zones and Maeshima. Pet. 9–20. Petitioner provides claim
`
`charts and relies on the Lercher and Schütze Declarations in support of its
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`contentions. Id.
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`To prevail on its patentability challenge, Petitioner must establish
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`facts supporting its challenge by a preponderance of the evidence. 35 U.S.C.
`
`§ 316(e); 37 C.F.R. § 42.1(d). A claim is unpatentable under 35 U.S.C.
`
`§ 103 if the differences between the subject matter sought to be patented and
`
`the prior art are such that the subject matter as a whole would have been
`
`obvious to a person having ordinary skill in the art to which the subject
`
`matter pertains. KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 406 (2007). A
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`party that petitions the Board for a determination of obviousness must show
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`that “a skilled artisan would have been motivated to combine the teachings
`
`of the prior art references to achieve the claimed invention, and that the
`
`skilled artisan would have had a reasonable expectation of success in doing
`
`so.” Procter & Gamble Co. v. Teva Pharm. USA, Inc., 566 F.3d 989, 994
`
`(Fed. Cir. 2009) (quoting Pfizer, Inc. v. Apotex, Inc., 480 F.3d 1348, 1361
`
`(Fed. Cir. 2007)).
`
`1.
`
`Overview of Zones
`
`Zones is directed to crystalline zeolites that have the CHA structure
`
`and a mole ratio of silicon oxide to aluminum oxide greater than 10.
`
`8
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`IPR2015-01123
`Patent 8,404,203 B2
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`Ex. 1004, 1:7–10. Zones states that the zeolites “can also be made with a
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`mole ratio of silicon oxide to aluminum oxide of at least 30,” id. at 4:7–9,
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`and describes zeolites that are prepared from a reaction mixture having a
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`ratio of silicon oxide to aluminum oxide of 20–50. Id. at 2:24–34.
`
`Zones also describes “an improved process for the reduction of oxides
`
`of nitrogen contained in a gas stream in the presence of oxygen” using the
`
`described zeolites. Id. at 1:54–61. According to Zones, “[t]he zeolite may
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`contain a metal or metal ions (such as cobalt, copper or mixtures thereof)
`
`capable of catalyzing the reduction of the oxides of nitrogen, and may be
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`conducted in the presence of a stoichiometric excess of oxygen.” Id. at
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`1:61–65. Zones states that, “[i]n a preferred embodiment, the gas stream is
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`the exhaust stream of an internal combustion engine.” Id. at 1:65–67.
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`2.
`
`Overview of Maeshima
`
`Maeshima is directed to using catalytic reduction to reduce the
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`concentration of nitrogen oxide in a gaseous mixture. Ex. 1002, 1:6–10.
`
`According to Maeshima, “nitrogen 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
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`nitrogen oxides selectively.” Id. at 2:4–8. The gaseous mixture can be
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`exhaust gases from stationary sources, such as flue gases from combustion
`
`furnaces in power plants. Id. at 2:9–12.
`
`Maeshima describes a process where the catalyst “is contacted with
`
`ammonia in an amount excessive over the stoichiometric amount necessary
`
`for reduction of nitrogen oxides in an exhaust gas to thereby activate the
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`catalyst” before reducing the amount of ammonia to “a minimum amount
`
`necessary for reduction of the nitrogen oxides to thereby effect the catalytic
`
`9
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`IPR2015-01123
`Patent 8,404,203 B2
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`reduction.” Id. at 2:15–21. The catalyst can be a crystalline aluminosilicate
`
`having a ratio of silicon oxide to aluminum oxide above 2, and can be a
`
`chabazite zeolite. Id. at 3:67–4:11. The zeolite catalyst also can have an
`
`active metal ion, such as copper, incorporated therein, and although “[t]he
`
`ion exchange ratio is not particularly critical . . . it is generally preferred that
`
`the ion exchange ratio be about 60 to about 100%.” Id. at 4:44–52.
`
`3.
`
`Analysis
`
`In the Petition, Petitioner challenges the patentability of claims 1, 14,
`
`15, 17–22, 26, and 27 of the ’203 patent as obvious under 35 U.S.C. § 103(a)
`
`over the combined teachings of Zones and Maeshima. Pet. 9–20. After
`
`considering the arguments and evidence presented in the Petition and the
`
`Preliminary Response, we instituted trial against claims 1, 14, 15, 17–22, 26,
`
`and 27, determining that Petitioner was likely to prevail in showing that the
`
`subject matter of the challenged claims would have been obvious over the
`
`combined teachings of Zones and Maeshima. Dec. on Inst. 8–13, 17.
`
`Patent Owner, in its Patent Owner Response, does not challenge
`
`Petitioner’s arguments and evidence that Zones and Maeshima disclose or
`
`suggest all of the elements of the challenged claims. On the contrary, Patent
`
`Owner acknowledges that at least some of the limitations2 in the claims were
`
`known in the prior art, stating, for example, that “[t]here was certainly
`
`nothing new in 2004 about a zeolite having the CHA structure and a SAR up
`
`to 50,” and “[i]t was already well known that CHA zeolites can contain a
`
`metal or metal ions.” PO Resp. 18; see also id. at 22 (“[I]t was known
`
`decades earlier, in 1985, that a high SAR CHA zeolite can be metal
`
`
`2 As the parties do in their papers, we refer to the “mole ratio of silica to
`alumina” recited in claims 1 and 26 as “SAR” throughout this Decision.
`
`10
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`IPR2015-01123
`Patent 8,404,203 B2
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`exchanged.”), 30 (“It is undisputed that it was known that zeolites can be
`
`metal ion-exchanged at a ratio between 60–100%, and that metal-exchanged
`
`zeolites are catalytically active.”), 36 (“it is undisputed that a high SAR
`
`CHA zeolite and the ion-exchange of copper in zeolite catalysts were well
`
`known in the art since at least 1985”). Thus, with respect to whether Zones
`
`and Maeshima disclose or suggest all of the elements of the challenged
`
`claims, we are left to consider only the evidence of record as presented in the
`
`Petition. See Pet. 9–20.
`
`Based on the complete record, we find that Petitioner has presented
`
`sufficient evidence showing that Zones and Maeshima disclose or suggest all
`
`of the limitations of the challenged claims. For example, claim 1 recites that
`
`the zeolite having the CHA crystal structure has a mole ratio of silica to
`
`alumina of about 15 to about 100, and is used in a process for the reduction
`
`of nitrogen oxides in a gas stream. As Petitioner alleges, Zones describes
`
`“an aluminosilicate zeolite, such as SSZ–62 which has the chabazite crystal
`
`structure” and also describes “reaction mixtures of zeolite catalysts that have
`
`a SAR value greater than 10, ranging from 20–50, and more preferably
`
`ranging from 25–40.” Pet. 9. Also, Maeshima teaches crystalline
`
`aluminosilicate zeolite catalysts, including chabazites, for use in the catalytic
`
`reduction of nitrogen oxides in the presence of ammonia. Id. at 10. We also
`
`have reviewed Petitioner’s arguments and evidence for claims 14, 15, 17–22,
`
`26, and 27 (id. at 11–20), and find that Petitioner has met its burden of
`
`establishing that Zones and Maeshima disclose or suggest all of the
`
`limitations of those claims as well. Accordingly, we determine that the
`
`preponderance of the evidence supports a finding that Petitioner has
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`demonstrated that all of the limitations of claims 1, 14, 15, 17–22, 26, and 27
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`are disclosed or suggested by Zones and Maeshima.
`
`The parties focus their arguments on three main issues: (a) whether
`
`Petitioner has shown why a person having ordinary skill in the art would
`
`have had reason to combine the teachings of Zones and Maeshima (Pet. 12–
`
`15; PO Resp. 2–3, 24–30; Reply 21–22); (b) whether Petitioner has shown
`
`that a person having ordinary skill in the art would have a reasonable
`
`expectation of success in combining Zones and Maeshima (Pet. 12–15;
`
`PO Resp. 3–4, 44–52; Reply 22–23); and (c) whether the objective indicia of
`
`skepticism, unexpected results, and commercial success support a finding of
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`non-obviousness (PO Resp. 35–44; Reply 10–20). We address arguments
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`(a) and (b) in turn below, and address the parties’ arguments regarding
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`objective indicia of non-obviousness in Section II.E, infra.
`
`
`
`a.
`
`Reason to Combine Zones and Maeshima
`
`Petitioner contends that a person having ordinary skill in the art
`
`“would have been motivated to utilize copper exchanged zeolites in
`
`processes for SCR [selective catalytic reduction] in the presence of ammonia
`
`using Zones’ higher SAR chabazite zeolites to arrive, with a reasonable
`
`expectation of success, at the subject matter of the claims.” Pet. 12–13.
`
`Petitioner contends that “Zones discloses all the other required claim
`
`limitations” except “zeolites with Cu/Al ratios within the claimed ranges,”
`
`and states that
`
`[o]ne of ordinary skill in the art would also understand that it
`would be beneficial to follow Maeshima’s instruction to use a
`60% to 100% ion-exchange rate when adding copper to Zone[s’]
`zeolite. It was well known that larger amounts of copper ions,
`including that achieved by copper loading up to the 100% ion-
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`exchange rate, enhance the effectiveness of a zeolite when
`catalyzing the reduction of nitrogen oxides.
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`Id. at 13 (citing Ex. 1008 ¶¶ 147–148). According to Petitioner, “[b]y
`
`directing one of ordinary skill to include copper in its zeolites to render them
`
`able to reduce NOx in diesel exhaust, Zones sufficiently motivates those of
`
`skill to look to prior art references like Maeshima that discuss appropriate
`
`levels of copper loading to apply to an SCR catalyst.” Reply 22.
`
`Patent Owner argues that a person having ordinary skill in the art
`
`would not have been motivated to combine Zones and Maeshima “because
`
`neither reference provides any suggestion that doing so would improve the
`
`zeolite for the SCR of NOx.” PO Resp. 24. Patent Owner argues that “there
`
`is nothing in Zones that suggests to one of ordinary skill in the art that the
`
`CHA framework or the high SAR of SSZ-62 will improve the activity or
`
`stability of a zeolite for the SCR of NOx.” Id. at 25. Patent Owner further
`
`argues that, “[a]s further contrast to the silence in Zones regarding the
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`properties of a CHA zeolite for the NH3 SCR of NOx,” Byrne3 “teaches that
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`small pore zeolites, including a CHA zeolite, should not be used for the NH3
`
`SCR of NOx because of susceptibility to sulfate poisoning.” Id. (citing
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`Ex. 1010, 4:57–5:26; Ex. 2018 ¶¶ 75, 105).
`
`Patent Owner also argues that Maeshima “does not include any
`
`teachings about the properties of a CuCHA with regard to the SCR of NOx,”
`
`and that it “points to a low SAR (2–6), large pore size (6–13 Angstroms)
`
`zeolite, such as zeolite Y, and only provides examples of that type of metal-
`
`exchanged zeolite for the NH3 SCR of NOx.” Id. at 26 (citing Ex. 1002,
`
`4:36–43, 8:11–10:2). Patent Owner argues that neither Zones nor Maeshima
`
`
`3 Byrne, U.S. Patent No. 4,961,917, issued Oct. 9, 1990 (Ex. 1010).
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`“suggests that the CHA structure, high SAR, or ion-exchange ratio will
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`improve the activity or stability of the zeolite for the NH3 SCR of NOx.” Id.
`
`at 27 (citing Ex. 2018 ¶¶ 110–11). Thus, according to Patent Owner,
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`there is no explanation, other than hindsight, for why a person of
`ordinary skill in the art would have selected the small pore size
`CHA structure and high SAR from Zones, disregarded the
`teachings for a low SAR and large pore size in Maeshima, and
`applied the ion-exchange ratio disclosed in Maeshima.
`
`Id.
`
`The Supreme Court requires an expansive and flexible approach in
`
`determining whether a patented invention would have been obvious at the
`
`time it was made. See KSR, 550 U.S. at 415 (2007). The existence of a
`
`reason for a person having ordinary skill in the art to modify a prior art
`
`reference is a question of fact. See In re Constr. Equip. Co., 665 F.3d 1254,
`
`1255 (Fed. Cir. 2011). In an obviousness analysis, some kind of reason
`
`must be shown as to why a person having ordinary skill in the art would
`
`have thought of combining or modifying the prior art to achieve the patented
`
`invention. See Innogenetics, N.V. v. Abbott Labs., 512 F.3d 1363, 1374
`
`(Fed. Cir. 2008). A reason to combine or modify the prior art may be found
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`explicitly or implicitly in market forces, design incentives, the “‘interrelated
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`teachings of multiple patents’; ‘any need or problem known in the field of
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`endeavor at the time of invention and addressed by the patent’; and the
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`background knowledge, creativity, and common sense of the person of
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`ordinary skill.” Perfect Web Techs., Inc. v. InfoUSA, Inc., 587 F.3d 1324,
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`1329 (Fed Cir. 2009) (quoting KSR, 550 U.S. at 418–21).
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`Based on our review of the complete record, we find that a person
`
`having ordinary skill in the art would have looked to use the copper ion
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`exchange ratios in Maeshima in the CHA zeolites of Zones in a process for
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`the reduction of nitrogen oxides in a gas stream in the presence of oxygen.
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`Zones describes “an improved process for the reduction of oxides of
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`nitrogen contained in a gas stream in the presence of oxygen” with a zeolite,
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`where the zeolite is “a zeolite having the CHA crystal structure” and a SAR
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`“greater than about 10,” which “may contain a metal or metal ions” such as
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`copper. Ex. 1004, 1:54–62. Zones also states that the zeolite is “capable of
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`catalyzing the reduction of oxides of nitrogen,” and describes a preferred
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`embodiment where “the gas stream is the exhaust stream of an internal
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`combustion engine.” Id. at 1:63–67.
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`Similarly, Maeshima describes removing nitrogen oxides from a gas
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`“by contacting the resulting gaseous mixture with a catalyst in the presence
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`of ammonia to reduce the nitrogen oxides, selectively.” Ex. 1002, 2:4–8.
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`Maeshima teaches that the catalyst can be “a product obtained by
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`exchanging an alkali metal ion in a crystalline alumino-silicate with at least
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`one metal cation having an activity for reducing nitrogen oxides,” and that
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`the crystalline alumino-silicate can be a natural zeolite such as chabazite. Id.
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`at 3:35–38, 4:3–11. Maeshima further teaches preparing a zeolite catalyst
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`having an active metal incorporated therein “by contacting a crystalline
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`aluminosilicate with an aqueous or organic solution of an active metal
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`compound,” and that “it is generally preferred that the ion exchange ratio be
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`about 60% to about 100%.” Id. at 4:44–50. Copper is one example of an
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`active metal that can be incorporated in the zeolite catalyst. Id. at 4:51–52.
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`In light of these disclosures in Zones and Maeshima, we are persuaded
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`by Dr. Lercher’s testimony that
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`it was well known in the prior art that copper should be
`beneficially
`incorporated
`into a catalyst
`in an amount
`approaching a 100% ion-exchange rate. It was also well known
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`that up to a point, increased amounts of copper, including that
`achieved by utilizing a 100% ion-exchange ratio or rate, enhance
`the effectiveness of a zeolite when catalyzing the reduction of
`nitrogen oxides. This is stated in Maeshima, which explains that
`when incorporating copper into a zeolite, “it is generally
`preferred that the ion exchange ratio be about 60% to about
`100%.” Use of these known ion exchange ratios with Zones’
`zeolite produces a catalyst with the claimed CHA crystal
`structure, SAR, and Cu/Al ratio that can be used as part of a
`process to selectively reduce nitrogen oxides in a gas stream that
`contains oxygen.
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`Ex. 1008 ¶ 147 (internal citation omitted). Dr. Lercher’s testimony is
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`consistent with the disclosures in the prior art references. It is also
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`consistent with Dr. Tsapatsis’s testimony that it was well-known that metals,
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`such as copper, can be introduced into zeolites and make a zeolite active for
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`the SCR of NOx (Ex. 1019, 113:25–114:14; Ex. 2018 ¶ 94), and that a
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`person having ordinary skill in the art would have known that a 60% to
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`100% ion-exchange ratio could be used to incorporate copper into a zeolite
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`(Ex. 1019, 114:23–115:19). Consequently, we find that the prior art
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`references themselves, as well as the knowledge of a person of ordinary skill
`
`in the art, provide adequate reasons to combine Zones and Maeshima.4
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`We are not persuaded by Patent Owner’s argument that a person
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`having ordinary skill in the art would not be motivated to combine the high
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`SAR and CHA framework of Zones with the ion exchange ratio of
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`
`4 We are not persuaded by Patent Owner’s argument that Petitioner does not
`explain “what a person of ordinary skill in the art would be attempting to
`achieve in combining Zones and Maeshima.” PO Resp. 28. Patent Owner
`cites to no legal authority establishing that this particular question, separate
`and apart from the question of whether Petitioner has established a reason to
`combine the prior art references, is part of an obviousness inquiry under 35
`U.S.C. § 103.
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`Maeshima because “neither reference provides any suggestion that doing so
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`would improve the zeolite for the SCR of NOx.” PO Resp. 24. As
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`Petitioner notes, “[t]he ’203 patent’s claims are directed to a ‘process for the
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`reduction of oxides of nitrogen contained in a gas stream in the presence of
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`oxygen’ using a catalyst with the CHA structure, a SAR in the range of 15–
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`150 (or 100), and a Cu/Al ratio in the range of 0.25–1 (or 0.5),” and “no
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`further functional or performance properties are required.” Reply 3.
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`Moreover, even if the problem the inventors of the ’203 patent were trying
`
`to solve was improving zeolites for the SCR of NOx, “[t]he skilled artisan
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`need not be motivated to combine [the prior art] for the same reason
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`contemplated by the [inventors].” In re Kahn, 441 F.3d 977, 990 (Fed. Cir.
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`2006); see also KSR, 550 U.S. at 420 (stating that it is error to look “only to
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`the problem the patentee was trying to solve”).
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`Patent Owner’s argument that Maeshima points a person having
`
`ordinary skill in the art to low SAR (2–6), large pore size (6–13 Angstroms)
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`zeolites, and not to the small pore size, high SAR zeolites described in
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`Zones, is similarly unavailing. PO Resp. 26 (citing Ex. 1002, 4:36–43,
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`8:11–10:2). In making this argument, Patent Owner ignores the complete
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`disclosure of Maeshima, which teaches the use of chabazites for the SCR of
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`NOx using zeolites with a SAR values greater than 2. Ex. 1002, 3:68–4:11
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`(crystalline aluminosilicates, such as chabazite, “having pore diameters in
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`the range of about 3–15 A and SiO2/Al2O3 molar ratios of above about 2 are
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`preferred”); see also Medichem, S.A. v. Rolabo, S.L., 437 F.3d 1157, 1166
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`(Fed. Cir. 2006) (explaining that in an obviousness analysis, “the prior art
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`must be considered as a whole for what it teaches”); Merck & Co. v.
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`Biocraft Labs. Inc., 874 F.2d 804, 807 (Fed. Cir. 1989) (“[I]n a section 103
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`inquiry, ‘the fact that a specific [embodiment] is taught to be preferred is not
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`controlling, since all disclosures of the prior art, including unpreferred
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`embodiments, must be considered.’” (quoting In re Lamberti, 545 F.2d 747,
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`750 (CCPA 1976))). Thus, contrary to Patent Owner’s argument, the
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`combined teachings of Zones and Maeshima disclose using a high SAR
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`chabazite for ammonia SCR.
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`With respect to Patent Owner’s contention that Byrne teaches “that
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`small pore size zeolites, such as a CHA zeolite, should not be used for the
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`NH3 SCR of NOx because of the susceptibility to sulfate poisoning” (PO
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`Resp. 16), we note that Byrne also states that “the utilization of high ratios
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`of silica to alumina is known to enhance acid resistance of the zeolite and to
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`provide enhanced resistance of the zeolite to acid sulfur poisoning”
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`(Ex. 1010, 5:39–44). See also id. at 5:48–50 (“A conversion efficiency of
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`77% was attained by a fresh copper promoted ZSM-5 zeolite having a silica
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`to alumina ratio of 46.”). We further note that Breck,5 also a prior art
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`reference, discloses silicon substituted zeolites (including chabazites) that
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`“have increased resistance toward acidic agents such as mineral and organic
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`acids, SO2, SO3, NOx and the like” by being “more highly siliceous than
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`their precursors.” Ex. 1003, 47:44–53; see also id. at 4:50–63 (identifying
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`chabazite in a list of “[e]specially preferred zeolite species” that are “used as
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`starting materials in the present process”).6 In any event, “[a] known or
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`5 Breck, U.S. Patent No. 4,503,023, issued March 5, 1985 (Ex. 1003).
`6 Patent Owner argues that “[y]ou cannot translate what was taught in Breck
`to catalytic activity, because that’s not what is said in Breck.” Tr. 69:24–25.
`Breck, however, states that “[t]he novel zeolite compositions of the present
`invention are useful in all adsorption, ion-exchange and catalytic processes
`in which their less siliceous precursors have heretofore been suitably
`employed.” Ex. 1003, 47:44–47 (emphasis added).
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`obvious composition does not become patentable simply because it has been
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`de