Trials@uspto.gov
`571-272-7822
`
`Paper 8
`Entered: November 2, 2015
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`
`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.
`
`
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`571-272-7822
`
`Paper 8
`Entered: November 2, 2015
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`UMICORE AG & CO. KG,
`Petitioner,
`
`v.
`
`BASF CORPORATION,
`Patent Owner.
`____________
`
`Case IPR2015-01123
`Patent 8,404,203 B2
`____________
`
`
`
`Before CHRISTOPHER L. CRUMBLEY, JO-ANNE M. KOKOSKI, and
`JEFFREY W. ABRAHAM, Administrative Patent Judges.
`
`KOKOSKI, Administrative Patent Judge.
`
`
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`IPR2015-01123
`Patent 8,404,203 B2
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`I. INTRODUCTION
`Umicore AG & Co. KG (“Petitioner”) filed a Petition (“Pet.”) to
`institute an inter partes review of claims 1–31 of U.S. Patent No. 8,404,203
`B2 (“the ’203 patent,” Ex. 1001). Paper 1. BASF Corporation (“Patent
`Owner”) filed a Preliminary Response (“Prelim. Resp.”). Paper 7. We have
`jurisdiction under 35 U.S.C. § 314.
`Upon consideration of the Petition, Preliminary Response, and the
`evidence of record, we determine that Petitioner has established a reasonable
`likelihood of prevailing with respect to the unpatentability of claims 1–31 of
`the ’203 patent. Accordingly, we institute an inter partes review of those
`claims.
`A.
`Related Proceedings
`Petitioner indicates that the ’203 patent is the subject of IPR2015-
`01124, also filed by Petitioner. Pet. 1.
`B.
`The ’203 Patent
`The ’203 patent, titled “Process for Reducing Nitrogen Oxides Using
`Copper CHA Zeolite Catalysts,” is directed to methods of manufacturing
`copper CHA1 zeolite catalysts and their use in exhaust gas treatment
`systems. Ex. 1001, 1:19–22. The Specification describes 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 and an atomic
`ratio of copper to aluminum exceeding about 0.25.” Id. at 2:13–16. The
`catalyst can be “deposited on a honeycomb substrate,” which can comprise a
`wall flow substrate or a flow through substrate. Id. at 2:41–45. The ’203
`
`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; Prelim. Resp. 15.
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`patent also describes embodiments where “at least a portion of the flow
`through substrate is coated with CuCHA adapted to reduce oxides of
`nitrogen contained in a gas stream flowing through the substrate,” and those
`where “at least a portion of the flow through substrate is coated with Pt and
`CuCHA adapted to oxidize ammonia in the exhaust gas stream.” Id. at
`2:45–51; see also id. at 2:53–58 (describing embodiments where at least a
`portion of the wall flow substrate “is coated with CuCHA adapted to reduce
`oxides of nitrogen contained in a gas stream flowing through the substrate,”
`and those where “at least a portion of the wall flow substrate is coated with
`Pt and CuCHA adapted to oxidize ammonia in the exhaust gas stream.”).
`The ’203 patent further describes “a process for the reduction of
`oxides of nitrogen contained in a gas stream in the presence of oxygen
`wherein said process comprises contacting the gas stream with the catalyst
`described above.” Id. at 3:8–11. Figure 10A of the ’203 patent is
`reproduced below:
`
`
`Figure 10A is a schematic depiction of an embodiment of the emissions
`treatment system described in the ’203 patent. Id. at 4:11–13. Engine 19
`emits an exhaust stream containing gaseous pollutants and particulate
`matter, which is conveyed to a position downstream from engine 19 “where
`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
`precursor that enters mixing station 24 on line 25 along with air from line
`26. Id. at 22:1–3. Valve 23 is used to meter precise amounts of aqueous
`urea to be added to the exhaust stream; the aqueous urea is converted to
`ammonia in the exhaust stream. Id. at 22:3–5. The exhaust stream
`containing ammonia is then conveyed to “catalyst substrate 12 (also referred
`to herein including the claims as ‘the first substrate’) containing CuCHA in
`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
`converted through the selective catalytic reduction of NOx with NH3 to N2
`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.”
`Id. at 22:18–21, Fig. 10B. The second substrate is coated with a catalyst
`composition that can be the same as, or different from, that coated on the
`first substrate. Id. at 22:21–24. In another embodiment, an oxidation
`catalyst is included “upstream of the site of ammonia/ammonia precursor
`injection.” Id. at 22:49–51, Fig. 10C. The “oxidation catalyst is disposed on
`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
`stream is conveyed first through catalyst substrate 34, “where at least some
`of the gaseous hydrocarbons, CO and particulate matter are combusted to
`innocuous components.” Id. at 22:54–57. According to the ’203 patent,
`“the first substrate 12 could be a catalyzed soot filter” with the CuCHA
`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.
`C.
`Illustrative Claims
`Petitioner challenges claims 1–31 of the ’203 patent. Claims 1 and 26
`are independent, and read as follows:
`1.
`A process for the reduction of oxides of nitrogen
`contained 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.
`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 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.
`D.
`The Prior Art
`Petitioner relies on the following prior art references:
`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.
`Feb. 23, 2006
`1005
`2006/0039843 A1
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`E.
`
`§ 103(a)
`
`2–13, 16, 23–25, 28–31
`
`The Asserted Grounds of Unpatentability
`Petitioner challenges the patentability of claims 1–31 of the
`’203 patent on the following grounds:
`References
`Basis
`Zones and Maeshima
`§ 103(a)
`Zones, Maeshima, and
`Patchett
`
`Claims Challenged
`1, 14, 15, 17–22, 26, 27
`
`
`
`II. ANALYSIS
`
`A.
`
`Claim Interpretation
`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). For purposes of this
`Decision, based on the record before us, we determine that none of the claim
`terms requires an explicit construction.
`B.
`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 Declarations by Johannes A. Lercher, Ph.D. (“the
`Lercher Declaration,” Ex. 1008) and Dr. Frank-Walter Schütze (“the
`Schütze Declaration,” Ex. 1015) in support of its contentions. Id.
`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.
`Ex. 1004, 1:7–10. Zones states that the zeolites “can also be made with a
`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
`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
`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
`conducted in the presence of a stoichiometric excess of oxygen.” Id. at
`1:61–65. Zones states that, “[i]n a preferred embodiment, the gas stream is
`the exhaust stream of an internal combustion engine.” Id. at 1:65–67.
`2.
`Overview of Maeshima
`Maeshima is directed to using catalytic reduction to reduce the
`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
`nitrogen oxides selectively.” Id. at 2:4–8. The gaseous mixture can be
`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
`catalyst” before reducing the amount of ammonia to “a minimum amount
`necessary for reduction of the nitrogen oxides to thereby effect the catalytic
`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
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`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
`Petitioner contends that the combination of Zones and Maeshima
`discloses all of the elements of claim 1. Pet. 9–11, 15–17. Zones is said to
`teach processes that use an aluminosilicate zeolite with the chabazite crystal
`structure as a catalyst in the presence of a stoichiometric excess of oxygen to
`selectively reduce oxides of nitrogen in the exhaust gas stream generated by
`an internal combustion engine. Id. at 9. Petitioner contends that Zones also
`teaches that the zeolites have a silica to alumina ratio greater than 10 and
`“may be exchanged or impregnated to contain metal or metal ions,”
`including copper, “to catalyze the reduction of oxides of nitrogen.” Id. at 9–
`10. Petitioner further contends that 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.
`According to Petitioner, the Maeshima zeolite catalysts have silica to
`alumina ratios greater than 2 and “should incorporate a sufficient amount of
`active metal such that [the] resulting ‘ion exchange ratio’ is ‘about 60 to
`about 100%.’” Id. Petitioner also contends that Maeshima identifies copper
`“as an active material that can be used for this purpose.” Id.
`According to Petitioner, it would have been obvious “to utilize copper
`exchanged zeolites in processes for SCR [selective catalytic reduction] in the
`presence of ammonia using Zones’ higher SAR [silica to alumina ratio]
`chabazite zeolites to arrive, with a reasonable expectation of success, at the
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`subject matter of the claims.” Id. at 12–13. Petitioner contends “Zones
`discloses all the other required claim limitations” except “zeolites with
`Cu/Al ratios within the claimed ranges” and states that:
`One 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-exchange rate, enhance the effectiveness of a zeolite
`when catalyzing the reduction of nitrogen oxides.
`Id. at 13 (citing Ex. 1008 ¶¶ 147–148). Petitioner further contends that a
`person having ordinary skill in the art would have had a reasonable
`expectation “that use of the copper content of Maeshima in the zeolites of
`Zones in an SCR process in the presence of ammonia for treating
`combustion exhaust gases would succeed” because “Maeshima explains that
`‘at least one metal cation having an activity of reducing nitrogen oxides’
`should be incorporated into the zeolite via ion exchange” and “[c]opper can
`be used for this purpose.” Id. at 13–14.
`Patent Owner argues that the Petition does not include “an analysis as
`to why a person of ordinary skill in the art reading Zones would have
`selected a Cu-zeolite having the CHA structure as a lead compound with
`regard to the reduction of NOx in a gas stream.” Prelim. Resp. 17.
`According to Patent Owner, Zones does not disclose a specific example of a
`Cu-zeolite, specific reactions for the reduction of oxides of nitrogen, or the
`amount of copper to be used in a zeolite having the CHA structure for the
`reduction of oxides of nitrogen. Id. at 18. Patent Owner argues that “the
`failure of Zones to report any activity data for a Cu-zeolite is particularly
`significant because of the existence of other prior art disclosing experimental
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`results that a Cu-zeolite having the CHA structure was inactive for the
`decomposition of NO.” Id. at 18–19.
`Patent Owner further argues that “Maeshima does not provide a
`reason to modify a zeolite having the CHA structure to make the claimed
`compound, or show that one of ordinary skill would have a reasonable
`expectation of success in doing so.” Id. at 24. Patent Owner argues that
`Maeshima includes a list of natural and synthetic zeolites, one of which is
`chabazite, but “does not otherwise discuss chabazite” or provide examples or
`data regarding a chabazite. Id. at 25. Patent Owner also argues that
`Maeshima does not describe “the benefits of loading copper on a chabazite
`zeolite” or draw a correlation “between the ‘not particularly critical’ ion
`exchange ratio and catalytic activity of a CuCHA.” Id. at 26–27.
`Based on the current record, we are persuaded that Petitioner’s
`substantive arguments (Pet. 9–11, 15–17) and the Lercher and Schütze
`Declarations are sufficient to establish a reasonable likelihood that Petitioner
`would prevail in showing that claim 1 would have been obvious over the
`combination of Zones and Maeshima. 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. 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.
`We are not persuaded, on this record, by Patent Owner’s arguments
`that Petitioner did not properly apply the “lead compound” analysis, and that
`Zones “does not teach or suggest that a Cu-zeolite having the CHA crystal
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`structure warrants further investigation.” Prelim. Resp. 17. Although Patent
`Owner identifies things that Zones does not disclose, we note that Zones
`does describe aluminosilicate zeolites that have the CHA structure that also
`have an SAR value greater than 10, contain copper, and can be used in a
`process for the reduction of oxides of nitrogen contained in a gas stream,
`such as an exhaust stream of an internal combustion engine. Ex. 1004,
`1:31–34, 1:54–67. Moreover, the reference Patent Owner contends
`“disclos[es] experimental results that a Cu-zeolite having the CHA structure
`was inactive for the decomposition of NO” (Prelim. Resp. 18–19) refers to a
`single synthetic CuCHA zeolite, whereas Petitioner points to the ’203 patent,
`Zones, Maeshima, and other prior art references that arguably suggest that,
`in general, CuCHA zeolite catalysts were known to be used for SCR of
`nitrogen oxides in the presence of ammonia (Pet. 8–11, 41–42). See
`Ex. 1001, 1:34–37; Ex. 1002, 2:4–8, 3:33–43, 4:11; Ex. 1004, 1:18–30,
`1:61–67; Ex. 1007.
`Additionally, we do not find Patent Owner’s argument that Maeshima
`does not provide a reason to modify the Zones zeolites, or shows that a
`person having ordinary skill in the art would not have had a reasonable
`expectation of success in doing so, to be persuasive on this record.
`Petitioner relies on Dr. Lercher’s testimony to support its contentions that it
`would have been obvious to use the copper content described in Maeshima
`in the zeolites described in Zones. Pet. 12–15; Ex. 1008 ¶¶ 145–154. For
`example, Dr. Lercher states that:
`As recognized in the ’203 patent, “[m]etal-promoted zeolite
`catalysts, including, among others, iron-promoted and copper-
`promoted zeolite catalysts, for the selective catalytic reduction
`of nitrogen oxides with ammonia are known.” Both Zones and
`Maeshima disclose these types of zeolite catalysts. Zones
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`discloses zeolites with the CHA crystal structure and explains
`that these zeolites can be ion-exchanged or impregnated with
`metals like copper. Zones also states that a zeolite may contain
`0.05–5% metal cation by weight. Maeshima likewise discloses
`zeolites with the CHA crystal structure that can be ion-
`exchanged or impregnated with copper. And, Maeshima states
`that copper can be incorporated into a zeolite to achieve a 60–
`100% ion-exchange rate. The overlap in these two references’
`disclosures would not only motivate one of ordinary skill in the
`art to combine Zones and Maeshima, but would also lead them
`to believe the combination to be successful.
`Ex. 1008 ¶ 151 (internal citation omitted). Dr. Lercher further states that the
`combination of Zones and Maeshima “also amounts to the simple and
`straight forward application of one particular known modification to
`catalytic zeolites that provides a known benefit . . . to the exact type of
`material this modification is meant to be applied,” i.e., increasing the amount
`of copper contained in “Zones’ high silica, copper-exchanged chabazite
`zeolites intended for use in an SCR process” to improve its catalytic activity.
`Id. ¶ 153. We are persuaded, based on the current record, that Petitioner has
`provided sufficient reasoning with rational underpinning to support a reason
`to combine Zones and Maeshima. See KSR Int’l Co. v. Teleflex, Inc., 550
`U.S. 398, 418 (2007) (citing In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)
`(“[R]ejections on obviousness grounds cannot be sustained by mere
`conclusory statements; instead, there must be some articulated reasoning
`with some rational underpinning to support the legal conclusion of
`obviousness.”)).
`Accordingly, we determine that the record before us establishes a
`reasonable likelihood that Petitioner would prevail in showing that the
`subject matter of claim 1 would have been obvious over the combination of
`Zones and Maeshima. We also have considered the arguments and evidence
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`with respect to dependent claims 14, 15, and 17–22, and likewise are
`persuaded, based on the current record, that Petitioner has demonstrated a
`reasonable likelihood that it would prevail as to those claims as well.
`Petitioner also contends that the combination of Zones and Maeshima
`discloses all of the limitations of independent claim 26, and provides
`arguments and claim charts setting forth where each of the limitations can be
`found. Pet. 11–12, 19. For example, Petitioner contends that Maeshima
`discloses “adding a reductant to the gas stream” because “Maeshima
`explains that ‘ammonia’ should be added to a gas stream during the
`treatment process as a ‘reducing agent.’” Id. at 11–12 (citing Ex. 1002, 2:9–
`64, 8:32–52). Based on this record, we are persuaded that Petitioner’s
`discussion of Zones and Maeshima in the Petition, along with the Lercher
`and Schütze Declarations, are sufficient to establish a reasonable likelihood
`that the subject matter of claim 26, and claim 27 that depends therefrom,
`would have been obvious over the combination of Zones and Maeshima.
`C. Obviousness over Zones, Maeshima, and Patchett
`Petitioner contends that claims the subject matter of 2–13, 16, 23–25,
`and 28–31 would have been obvious under 35 U.S.C. § 103(a) over the
`combination of Zones, Maeshima, and Patchett. Pet. 20–38. Petitioner
`relies on the Lercher and Schütze Declarations in support of its contentions.
`Id.
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`Overview of Patchett
`1.
`Patchett is directed to an emissions treatment system and method for
`reducing nitrogen oxides in an exhaust stream produced by an internal
`combustion engine. Ex. 1005 ¶ 1. According to Patchett, “Selective
`Catalytic Reduction (SCR) using ammonia (NH3) or an NH3 precursor” is
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`“[a] proven NOx abatement technology applied to stationary sources with
`lean exhaust conditions.” Id. ¶ 3. Patchett also states that “SCR is under
`development for mobile applications, with urea (typically present in an
`aqueous solution) as the source of ammonia.” Id.
`The Patchett treatment system includes “an injector for periodically
`metering ammonia or an ammonia precursor into an exhaust stream” and “a
`first substrate with a first SCR catalyst composition” positioned downstream
`from the injector. Id. ¶ 18. The first substrate has an inlet end and an outlet
`end, with the first SCR catalyst composition being “disposed on the wall
`elements from the inlet end toward the outlet end to a length that is less than
`the substrate’s axial length to form an inlet zone.” Id. The first SCR
`catalyst composition can be a copper-exchanged zeolite. Id. ¶ 21. An
`ammonia destruction catalyst composition, preferably containing a platinum
`component, is disposed on the wall elements of the first substrate from the
`outlet end toward the inlet end, forming an outlet zone. Id. ¶¶ 19–20.
`Patchett states that the first substrate can be a honeycomb flow-through
`substrate or a honeycomb wall flow substrate. Id. ¶ 23.
`Patchett also teaches that the described treatment system can have “a
`second substrate interposed and in fluid communication with the injector and
`the first substrate.” Id. ¶ 25. The second substrate can be “selected from the
`group consisting of a honeycomb flow-through substrate, an open-cell foam
`substrate and a honeycomb wall flow substrate,” but preferably “is a
`honeycomb flow-through substrate with a second SCR catalyst
`composition.” Id. The first and second SCR catalyst compositions may be
`the same or different, but are the same in a preferred embodiment. Id.
`Patchett also describes an embodiment with an oxidation catalyst, disposed
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`on a catalyst substrate, located upstream of the site of the ammonia/ammonia
`precursor injection. Id. ¶ 64. In this embodiment, the exhaust stream first
`contacts the oxidation catalyst substrate “where at least some of the gaseous
`hydrocarbons, CO and particulate matter are combusted to innocuous
`components” before the exhaust stream is conveyed to the
`ammonia/ammonia precursor injection site and the first and second catalyst
`substrates. Id.
`2.
`Analysis
`Petitioner argues that, although “Zones states a preference for use of
`its catalyst in a process to treat the exhaust of an internal combustion engine,
`Zones and Maeshima do not make explicit reference to various other engine
`use limitations required by claims 2–13, 16, 23–25, and 28–31.” Pet. 22.
`Petitioner argues that Patchett describes these additional limitations. Id. For
`example, Petitioner argues that Patchett teaches the use of a honeycomb
`flow through substrate coated with an SCR catalyst as required by claims 2,
`23, and 29. Id. at 23. Petitioner also argues that Patchett teaches a “flow
`through substrate” with portions “coated with Pt and CuCHA” as required
`by claim 4 because “Patchett’s system employs a ‘first substrate’ that can be
`a flow-through substrate” with an inlet zone coated with an SCR catalyst
`such as a copper-exchanged zeolite, and an outlet zone coated with an
`ammonia destruction catalyst such as platinum. Id. (citing Ex. 1005 ¶¶ 19–
`21). According to Petitioner, Patchett describes using a copper-exchanged
`zeolite to catalyze an SCR process to reduce nitrogen oxides in a diesel
`exhaust engine, and identifies the characteristics of the zeolite that should be
`used. Id. at 26–27. Petitioner argues that the combination of Zones and
`Maeshima teaches catalysts with the characteristics described in Patchett,
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`and that “one of ordinary skill in the art would be directed to the catalytic
`material of Zones and Maeshima when attempting to implement Patchett’s
`process, rendering the combination of these references particularly obvious
`and straight forward.” Id. at 27 (citing Ex. 1008 ¶¶ 232–237). Patent Owner
`does not make any arguments with respect to these claims other than those
`set forth above with respect to the combination of Zones and Maeshima.
`We are persuaded, based on the current record, that Petitioner’s
`arguments and claim charts (Pet. 20–38) and the Lercher and Schütze
`Declarations are sufficient to establish a reasonable likelihood that Petitioner
`would prevail in showing that claims 2–13, 16, 23–25, and 28–31 are
`unpatentable over the combination of Zones, Maeshima, and Patchett.
`D.
`Secondary Considerations of Nonobviousness
`Petitioner also addresses secondary considerations of nonobviousness
`that Patent Owner identified during an inter partes reexamination of U.S.
`Patent No. 7,601,662 (“the ’662 patent”).2 Pet. 38–40. Petitioner contends
`that “none of [Patent Owner’s] evidence of ‘secondary considerations’ is
`commensurate in scope with the claimed subject matter,” and that the
`claimed processes do not achieve unexpected results or fill a long-standing,
`unmet need. Id. at 39–40. Patent Owner argues the ’203 patent “provides
`evidence of the unexpected results,” and points to a paper authored by Ford
`Motor Company in 2008 as “[a]dditional objective evidence of unexpected
`results.” Prelim. Resp. 28–29. Patent Owner also argues that the invention
`claimed in the ’203 patent “was the subject of skepticism by experts in the
`field,” solved a long-felt need for “a Cu-zeolite catalyst that exhibited
`
`
`2 The ’203 patent issued from a divisional of the application that issued as
`the ’662 patent. See Ex. 1001; Prelim. Resp. 4.
`16
`
`
`
`
`
`IPR2015-01123
`Patent 8,404,203 B2
`
`excellent NOx conversion at low temperatures and exhibited good
`hydrothermal stability,” and “received praise from the relevant community.”
`Id. at 35–40.
`The issue of secondary considerations is highly fact-specific. At this
`stage of the proceeding, the record regarding such secondary considerations
`is incomplete, and Petitioner has not had the ability to fully respond to the
`specific arguments raised by Patent Owner in the Preliminary Response.
`Our final decision will consider the parties’ full record of secondary
`considerations evidence developed during trial as part of our obviousness
`analysis.
`
`
`III. CONCLUSION
`For the foregoing reasons, we conclude that, on the present record,
`Petitioner has established a reasonable likelihood that it would prevail on its
`challenge that claims 1–31 of the ’203 patent are unpatentable.
`The Board has not made a final determination as to the patentability of
`any challenged claim.
`
`
`IV. ORDER
`In consideration of the foregoing, it is hereby:
`ORDERED that, pursuant to 35 U.S.C. § 314(a), an inter partes
`review is hereby instituted as to claims 1–31 of the ’203 patent with respect
`to the following grounds:
`Whether claims 1, 14, 15, 17–22, 26, and 27 are unpatentable under
`35 U.S.C. § 103(a) as obvious over the combination of Zones and
`Maeshima; and
`
`17
`
`
`
`
`
`IPR2015-01123
`Patent 8,404,203 B2
`
`
`Whether claims 2–13, 16, 23–25, and 28–31are unpatentable under
`35 U.S.C. § 103(a) as obvious over the combination of Zones, Maeshima,
`and Patchett;
`FURTHER ORDERED that, pursuant to 35 U.S.C. § 315(c) and
`37 C.F.R. § 42.4, notice is hereby given of the institution of a trial
`commencing on the entry date of this Decision; and
`FURTHER ORDERED that no ground other than those specifically
`granted above is authorized for inter partes review as to the claims of the
`’203 patent.
`
`
`
`
`
`PETITIONER:
`
`Elizabeth Gardner
`Richard L. DeLucia
`KENYON & KENYON LLP
`egardner@kenyon.com
`rdelucia@kenyon.com
`
`
`
`PATENT OWNER:
`
`Brian E. Ferguson
`Anish R. Desai
`WEIL, GOTSCHAL & MANGES LLP
`brian.ferguson@weil.com
`anish.desai@weil.com
`
`18
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