`
`
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`
`
`
`UMICORE AG & CO. KG,
`Petitioner,
`
`
`
`v.
`
`BASF CORPORATION,
`Patent Owner.
`
`
`Case IPR2015-01123
`Patent No. 8,404,203
`
`
`PATENT OWNER BASF CORPORATION’S NOTICE OF APPEAL
`UNDER 37 C.F.R. § 90.2(a)
`
`
`
`
`
`
`
`
`
`Pursuant to 37 C.F.R. § 90.2(a), notice is hereby given that Patent Owner
`
`BASF Corporation (“BASF”) appeals to the United States Court of Appeals for the
`
`Federal Circuit from the Final Written Decision (Paper No. 51) (the “Final Written
`
`Decision”), in IPR2015-01123, entered on October 31, 2016, by the United States
`
`Patent and Trademark Office, Patent Trial and Appeal Board (“PTAB”), and from
`
`all underlying orders, decisions, rulings, and opinions. A copy of the Final Written
`
`Decision is attached hereto as Exhibit A.
`
`In accordance with 37 C.F.R. § 90.2(a)(3)(ii), BASF further indicates that
`
`the issues on appeal may include, but are not limited to, the PTAB’s determination
`
`that claims 1-31 of U.S. Patent Number 8,404,203 have been shown to be
`
`unpatentable under 35 U.S.C. § 103 in view of the grounds of unpatentability
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`identified in the Board’s Final Written Decision, challenges to any findings
`
`supporting the determination, the Board’s failure to properly consider evidence of
`
`record, the Board’s legal errors in undertaking the obviousness analysis, the
`
`Board’s finding that conflict with the evidence of record and are not supported by
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`substantial evidence, and other issues decided adversely to Patent Owner.
`
`Simultaneous with this submission, a copy of this Notice of Appeal is being
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`filed with the PTAB through the Patent Trial and Appeal Board End to End
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`(“PTAB E2E”) System. In addition, a copy of the Notice of Appeal, along with the
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`
`
`
`
`required docketing fee, are being filed with the Clerk’s office for the United States
`
`Court of Appeals for the Federal Circuit.
`
`
`
` Respectfully submitted,
`
`
`
`/ Anish R. Desai /
`Anish R. Desai (Reg. No. 73,760)
`Brian E. Ferguson (Reg No. 36,801)
`Weil, Gotshal & Manges LLP
`1300 Eye Street NW, Suite 900
`Washington, DC 20005
`T: 202-682-7000
`anish.desai@weil.com
`brian.ferguson@weil.com
`
`
`
`
`
`
`Dated: December 27, 2016
`
`
`
`
`
`
`
`
`
`
`
`
`CERTIFICATE OF FILING
`
`It is certified that, in addition to being filed electronically through the PTAB
`
`E2E System, the original version of Patent Owner BASF Corporation’s Notice of
`
`Appeal has been sent via priority mail on December 27, 2016 with the Director of
`
`the United States Patent and Trademark Office, at the following address:
`
`Office of the General Counsel
`United States Patent and Trademark Office
`Madison Building East, Room 10B20
`600 Dulany Street
`Alexandria, VA 22314-5793
`
`CERTIFICATE OF FILING
`
`It is certified that a true and correct copy of Patent Owner BASF
`
`
`
`
`
`
`
`
`
`
`Corporation’s Notice of Appeal has been filed via CM/ECF on December 27,
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`2016, with the Clerk’s Office of the United States Court of Appeals for the Federal
`
`Circuit.
`
`
`
`
`
`
`
`CERTIFICATE OF SERVICE
`
`The undersigned hereby certifies that on December 27, 2016, the foregoing
`
`PATENT OWNER BASF CORPORATION’S NOTICE OF APPEAL was
`
`served via electronic mail, upon the following:
`
`Elizabeth Gardner
`Richard L. DeLucia
`K. Patrick Herman
`A. Anthony Pfeffer
`Orrick, Herrington & Sutcliffe LLP
`51 West 52nd Street
`New York, NY 10019-6142
`egardner@orrick.com
`rdelucia@orrick.com
`pherman@orrick.com
` apfeffer@orrick.com
`
`
`
`
`
`
`
`
`
`/ Timothy J. Andersen /
`Timothy J. Andersen
`Weil, Gotshal & Manges LLP
`1300 Eye Street NW, Suite 900
`Washington, DC 20005
`timothy.andersen@weil.com
`
`
`
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`
`
`EXHIBIT A
`
`EXHIBIT A
`
`
`
`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
`
`
`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. On November 2, 2015, we
`
`instituted an inter partes review of claims 1–31 on two grounds of
`
`unpatentability. (Paper 8, “Dec. on Inst.”). BASF Corporation (“Patent
`
`Owner”) filed a Patent Owner Response (Paper 24, “PO Resp.”). Petitioner
`
`filed a Reply (Paper 34, “Reply”).
`
`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
`
`Declarations by Dr. Michael Tsapatsis (“the Tsapatsis Declaration,”
`
`Ex. 2018), Dr. Ahmad Moini (“the Moini Declaration,” Ex. 2019), and
`
`Olivia Schmidt (“the Schmidt Declaration,” Ex. 2034).
`
`Petitioner filed a Motion to Exclude (Paper 40) certain paragraphs of
`
`the Tsapatsis Declaration, the Moini Declaration, and the Schmidt
`
`Declaration. Patent Owner filed an Opposition (Paper 44), and Petitioner
`
`filed a Reply (Paper 45).
`
`An oral hearing was held on July 28, 2016. A transcript of the hearing
`
`is included in the record (Paper 50, “Tr.”).
`
`We have jurisdiction under 35 U.S.C. § 6. This Final Written
`
`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
`
`2
`
`unpatentable.
`
`
`
`
`
`IPR2015-01123
`Patent 8,404,203 B2
`
`A.
`
`The ’203 Patent
`
`The ’203 patent, titled “Processes 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 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
`
`
`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
`
`
`
`
`
`IPR2015-01123
`Patent 8,404,203 B2
`
`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
`
`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
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`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.”
`
`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
`
`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
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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
`
`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,
`
`“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:
`
`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
`
`5
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`
`
`IPR2015-01123
`Patent 8,404,203 B2
`
`
`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
`
`6
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`
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`IPR2015-01123
`Patent 8,404,203 B2
`
`[37 C.F.R. § 42.100(b)] represents a reasonable exercise of the rulemaking
`
`authority that Congress delegated to the Patent Office.”). The Board,
`
`however, may not “construe claims during IPR so broadly that its
`
`constructions are unreasonable under general claim construction principles .
`
`. . . ‘[T]he protocol of giving claims their broadest reasonable interpretation
`
`. . . does not include giving claims a legally incorrect interpretation.’”
`
`Microsoft Corp. v. Proxyconn, Inc., 789 F.3d 1292, 1298 (Fed. Cir. 2015)
`
`(citation omitted). “Rather, ‘claims should always be read in light of the
`
`specification and teachings in the underlying patent’” and “[e]ven under the
`
`broadest reasonable interpretation, the Board’s construction ‘cannot be
`
`divorced from the specification and the record evidence.’” Id. (citations
`
`omitted). Only those terms in controversy need to be construed, and only to
`
`the extent necessary to resolve the controversy. See Vivid Techs., Inc. v. Am.
`
`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.
`
`Level of Ordinary Skill in the Art
`
`The parties agree that a person having ordinary skill in the art would
`
`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
`
`7
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`
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`IPR2015-01123
`Patent 8,404,203 B2
`
`explained by the references themselves. See Okajima v. Bourdeau, 261 F.3d
`
`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
`
`contentions. Id.
`
`To prevail on its patentability challenge, Petitioner must establish
`
`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
`
`party that petitions the Board for a determination of obviousness must show
`
`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
`
`
`
`
`
`IPR2015-01123
`Patent 8,404,203 B2
`
`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,
`
`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
`
`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
`
`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
`
`11
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`IPR2015-01123
`Patent 8,404,203 B2
`
`demonstrated that all of the limitations of claims 1, 14, 15, 17–22, 26, and 27
`
`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
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`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.
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`a.
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`Reason to Combine Zones and Maeshima
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`Petitioner contends that a person having ordinary skill in the art
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`“would have been motivated to utilize copper exchanged zeolites in
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`processes for SCR [selective catalytic reduction] in the presence of ammonia
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`using Zones’ higher SAR chabazite zeolites to arrive, with a reasonable
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`expectation of success, at the subject matter of the claims.” Pet. 12–13.
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`Petitioner contends that “Zones discloses all the other required claim
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`limitations” except “zeolites with Cu/Al ratios within the claimed ranges,”
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`and states that
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`[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
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`directing one of ordinary skill to include copper in its zeolites to render them
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`able to reduce NOx in diesel exhaust, Zones sufficiently motivates those of
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`skill to look to prior art references like Maeshima that discuss appropriate
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`levels of copper loading to apply to an SCR catalyst.” Reply 22.
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`Patent Owner argues that a person having ordinary skill in the art
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`would not have been motivated to combine Zones and Maeshima “because
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`neither reference provides any suggestion that doing so would improve the
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`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
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`CHA framework or the high SAR of SSZ-62 will improve the activity or
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`stability of a zeolite for the SCR of NOx.” Id. at 25. Patent Owner further
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`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
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`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).
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`Patent Owner also argues that Maeshima “does not include any
`
`teachings about the properties of a CuCHA with regard to the SCR of NOx,”
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`and that it “points to a low SAR (2–6), large pore size (6–13 Angstroms)
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`zeolite, such as zeolite Y, and only provides examples of that type of metal-
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`exchanged zeolite for the NH3 SCR of NOx.” Id. at 26 (citing Ex. 1002,
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`4:36–43, 8:11–10:2). Patent Owner argues that neither Zones nor Maeshima
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`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.
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`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.
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`The Supreme Court requires an expansive and flexible approach in
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`determining whether a patented invention would have been obvious at the
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`time it was made. See KSR, 550 U.S. at 415 (2007). The existence of a
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`reason for a person having ordinary skill in the art to modify a prior art
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`reference is a question of fact. See In re Constr. Equip. Co., 665 F.3d 1254,
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`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
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`invention. See Innogenetics, N.V. v. Abbott Labs., 512 F.3d 1363, 1374
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`(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.
`
`Ex. 1008 ¶ 147 (internal citation omitted). Dr. Lercher’s testimony is
`
`consistent with the disclosures in the prior art references. It is also
`
`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
`
`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
`
`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