UNITED STATES PATENT AND TRADEMARK OFFICE
`__________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________________________________________________________________
`
`UMICORE AG & CO. KG,
`
`Petitioner
`
`
`Patent No. 8,404,203
`Issue Date: March 16, 2013
`Title: PROCESS FOR REDUCING NITROGEN OXIDES USING COPPER
`CHA ZEOLITE CATALYSTS
`_________________________________________________________________
`
`PETITION FOR INTER PARTES REVIEW
`OF U.S. PATENT NO. 8,404,203
`PURSUANT TO 35 U.S.C. § 312 and 37 C.F.R. § 42.104
`
`Case No. IPR2015-01124
`__________________________________________________________________
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`Table of Contents
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`I.
`
`Mandatory Notices (37 C.F.R. § 42.8) ..................................................................... 1
`
`A.
`
`B.
`
`C.
`
`Real Party-in-Interest (37 C.F.R. § 42.8(b)(1)) ............................................ 1
`
`Related Matters (37 C.F.R. § 42.8(b)(2)) ...................................................... 1
`
`Counsel (37 C.F.R. § 42.8(b)(3)) ................................................................... 2
`
`II.
`
`Payment of Fees Incurred in Connection with this Petition (37 C.F.R.
`§ 42.103) ...................................................................................................................... 2
`
`III. Requirements for IPR (37 C.F.R. § 42.104) ............................................................ 2
`
`A. Grounds for Standing (37 C.F.R. § 42.104(a)) ............................................ 2
`
`B.
`
`C.
`
`Identification of Challenge (37 C.F.R. § 42.104(b)(1)-(3)) and
`Relief Requested (37 C.F.R. § 42.22(a)(1)) .................................................. 2
`
`Claim Construction (37 C.F.R. § 42.104)(b)(3)) ......................................... 4
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`1.
`
`2.
`
`3.
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`“A process for the reduction of oxides of nitrogen contained in a gas
`stream in the presence of oxygen” .............................................................. 5
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`“[C]atalyst” ............................................................................................ 8
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`“[Z]eolite having the CHA crystal structure” ........................................... 8
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`IV. Overview of the ’203 Patent ..................................................................................... 9
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`V. How Challenged Claims are Unpatentable (37 C.F.R. § 42.104(b)(4)-(5)) ....... 10
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`A. Ground 1: Claims 1, 14, 15, 17-22, 26, and 27 are obvious under
`35 U.S.C. § 103(a) over Maeshima in view of Breck. ............................... 10
`
`B.
`
`Ground 2: Claims 2-13, 16, 23-25, and 28-31 are obvious under
`35 U.S.C. § 103(a) over Maeshima, Breck, and Patchett. ........................ 22
`
`C. Ground 3: Claims 1, 14, 15, 17-22, 26, and 27 are obvious under
`35 U.S.C. § 103(a) over Dedecek in view of Breck. ................................. 41
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`-i-
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`D. Ground 4: Claims 2-13, 16, 23-25, 28, 30, and 31 are obvious
`under 35 U.S.C. § 103(a) over Dedecek, Breck, and Patchett. ............... 50
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`VI.
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`PURPORTED SECONDARY CONSIDERATIONS ..................................... 54
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`VII. CONCLUSION ....................................................................................................... 60
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`-ii-
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`LISTING OF EXHIBITS
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`Exhibit 1101
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`U.S. Patent No. 8,404,203 to Bull et al.
`
`Exhibit 1102
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`U.S. Patent No. 4,046,888 to Maeshima et al.
`
`Exhibit 1103
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`U.S. Patent No. 4,503,023 to Breck, deceased et al.
`
`Exhibit 1104
`
`U.S. Patent No. 6,709,644 to Zones et al.
`
`Exhibit 1105
`
`Exhibit 1106
`
`Exhibit 1107
`
`U.S. Patent Application Publication No. US 2006/0039843 to
`Patchett et al.
`
`U.S. Patent Application Publication No. US 2005/0031514 to
`Patchett et al.
`
`Dedecek et al., “Siting of the Cu+ Ions in Dehydrated Ion
`Exchanged Synthetic and Natural Chabasites: a Cu+
`Photoluminescence Study” Microporous and Mesoporous
`Materials, Vol. 32, pp. 63-74 (1999).
`
`Exhibit 1108
`
`Expert Declaration of Johannes A. Lercher, Ph.D
`
`Exhibit 1109
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`Excerpts from File History of U.S. Patent No. 8,404,203 to Bull et
`al. and Reexamination No. 95/001,453
`
`Exhibit 1110
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`U.S. Patent No. 4,961,917 to Byrne
`
`Exhibit 1111
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`U.S. Patent No. 5,516,497 to Speronello et al.
`
`Exhibit 1112
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`Ishihara et al., “Copper Ion-Exchanged SAPO-34 as a
`Thermostable Catalyst for Selective Reduction of NO with C3H6,”
`169 Journal of Catalysis 93-102 (1997)
`
`Exhibit 1113
`
`U.S. Patent No. 4,297,328 to Ritscher et al.
`
`Exhibit 1114
`
`Chung, S.Y. et al., “Effect of Si/Al Ratio of Mordenite and ZSM-
`5 Type Zeolite Catalysts on Hydrothermal Stability for NO
`Reduction by Hydrocarbons,” Studies in Surface Science and
`Catalysis, vol. 130, pp. 1511-1516 (2000)
`
`Exhibit 1115
`
`Declaration of Dr. Frank-Walter Schütze
`
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`Pursuant to 35 U.S.C. §§ 311-319 and 37 C.F.R. § 42, real party-in-interest
`
`Umicore AG & Co. KG (“Umicore” or “Petitioner”) respectfully requests inter partes
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`review (“IPR”) of claims 1-31 of U.S. 8,404,203 (“the ’203 patent”) to Ivor Bull et al.,
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`which was filed June 8, 2009 and issued March 26, 2013. According to U.S. Patent
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`and Trademark Office (“US PTO”) assignment records, the ’203 patent is currently
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`assigned to BASF Corporation (“Patent Owner”). There is a reasonable likelihood
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`that Petitioner will prevail with respect to at least one claim challenged in this Petition.
`
`I. Mandatory Notices (37 C.F.R. § 42.8)
`A. Real Party-in-Interest (37 C.F.R. § 42.8(b)(1))
`Petitioner, Umicore, along with parent Umicore S.A. (also referred to as
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`“Umicore NV”) and its wholly owned subsidiaries Umicore USA Inc., Umicore
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`Autocat Canada Corp., and Umicore Autocat USA Inc. are the real parties-in-interest.
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`B. Related Matters (37 C.F.R. § 42.8(b)(2))
`Petitioner is not aware of any existing related matters. Petitioner is
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`concurrently filing IPR Petition No. IPR2015-01123, which also relates to the ’203
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`patent. This petition focuses on primary prior art references that disclose
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`aluminosilicate CHA catalysts with copper to aluminum atomic ratios within the
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`claimed range, and secondary references that disclose and provide the motivation to
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`modify the primary reference catalysts to use silica to alumina mole ratios within the
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`claimed range. The -1123 petition focuses on the reverse: There, the primary prior art
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`reference discloses aluminosilicate CHA catalysts (that are specifically intended for use
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`-1-
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`in internal combustion engines) that have a silica to alumina mole ratio within the
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`claimed range. The secondary reference discloses and provides a motivation to
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`modify those catalysts by adding copper, resulting in a copper to aluminum atomic
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`ratio within the claimed range.
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`C.
`Counsel (37 C.F.R. § 42.8(b)(3))
`Lead Counsel: Elizabeth Gardner (Reg. No. 36,519)
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`Back-up Counsel: Richard L. DeLucia (Reg. No. 28,839)
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`Electronic Service information: egardner@kenyon.com; rdelucia@kenyon.com
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`Post and Delivery: Kenyon & Kenyon LLP, One Broadway, New York, NY 10004
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`Telephone: 212-425-7200 Facsimile: 212-425-5288
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`II.
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`Payment of Fees Incurred in Connection with this Petition (37 C.F.R.
`§ 42.103)
`The US PTO is authorized to charge the filing fee and any other fees incurred
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`by Petitioner to the deposit account of Kenyon & Kenyon LLP: 11-0600.
`
`III. Requirements for IPR (37 C.F.R. § 42.104)
`A. Grounds for Standing (37 C.F.R. § 42.104(a))
`Petitioner certifies that the ’203 patent (Exhibit 1101) is available for IPR and
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`that Petitioner is not barred or estopped from requesting an IPR challenging the
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`patent’s claims on the grounds identified in this petition.
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`B.
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`Identification of Challenge (37 C.F.R. § 42.104(b)(1)-(3)) and Relief
`Requested (37 C.F.R. § 42.22(a)(1))
`Petitioner requests inter partes review of and challenges claims 1-31 of the ’203
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`patent, and requests that each of the claims be found unpatentable and cancelled.
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`This petition explains in detail the reasons why claims 1-31 are unpatentable under the
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`relevant statutory grounds, and includes a description of the relevance of the prior art
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`and an identification of where each claim element is found in the prior art. Detailed
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`claim charts are provided, and additional explanation and support for each ground of
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`challenge is set forth in the attached Declarations of Dr. Johannes A. Lercher (Ex.
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`1108) and Dr. Frank-Walter Schütze (Ex. 1115).
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`Petitioner relies on the following references: (1) U.S. 4,046,888 (“Maeshima,”
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`Exhibit 1102); (2) U.S. 4,503,023 (“Breck,” Exhibit 1103); (3) U.S. App.
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`2006/0039843 (“Patchett,” Exhibit 1105); and (4) Dedecek et al., “Siting of the Cu+
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`Ions in Dehydrated Ion Exchanged Synthetic and Natural Chabasites: a Cu+
`
`Photoluminescence Study” Microporous and Mesoporous Materials, Vol. 32, pp. 63-
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`74 (1999) (“Dedecek,” Exhibit 1107).
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`The ’203 patent makes a facial claim of priority back through U.S. App. Nos.
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`12/480,360 and 12/038,423 to U.S. Prov. App. 60/891,835, which was filed February
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`27, 2007. While Petitioner does not concede that the ’203 patent is entitled to claim
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`the benefit of any of these applications, for purposes of this petition it is assumed that
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`the patent has an effective filing date of February 27, 2007. Maeshima issued
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`September 6, 1977. Breck issued March 5, 1985. Patchett published on February 23,
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`2006. Dedecek published in 1999. Thus, all of these references are prior art under 35
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`U.S.C. § 102(b).
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`Petitioner requests that claims 1-31 be cancelled on the following grounds:
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`Ground 1: Claims 1, 14, 15, 17-22, 26, 27 are obvious under 35 U.S.C. § 103(a)
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`over Maeshima in view of Breck
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`Ground 2: Claims 2-13, 16, 23-25, and 28-31 are obvious under 35 U.S.C. §
`
`103(a) over Maeshima and Breck in further view of Patchett
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`Ground 3: Claims 1, 14, 15, 17-22, 26, 27 are obvious under 35 U.S.C. § 103(a)
`
`over Dedecek in view of Breck
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`Ground 4: Claims 2-13, 16, 23-25, and 28-31 areobvious under 35 U.S.C. §
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`103(a) over Dedecek and Breck in further view of Patchett
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`C.
`Claim Construction (37 C.F.R. § 42.104(b)(3))
`The terms of a claim subject to IPR have their “broadest reasonable
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`construction in light of the specification of the patent in which it appears.” 37 C.F.R.
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`§ 42.100(b). Claim terms are to be given their plain meaning unless it is inconsistent
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`with the specification. In re Zletz, 893 F.2d 319, 321 (Fed. Cir. 1989). Petitioner
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`contends that certain of the terms of the ’203 patent’s claims are indefinite and render
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`the claims invalid under 35 U.S.C. § 112. However, because indefiniteness cannot be
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`raised herein, Petitioner proposes the following in rendering the broadest reasonable
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`constructions:
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`1.
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`“A process for the reduction of oxides of nitrogen contained in a gas stream in
`the presence of oxygen”
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`The preamble of independent claims 1 and 26 of the ’203 patent states that the
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`claims are directed to a “process for the reduction of oxides of nitrogen contained in a
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`gas stream in the presence of oxygen.” (Ex. 1101, 23:9-11, 24:29-31.) A preamble
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`will not be limiting if it simply recites the purpose of the claimed subject matter and
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`the body of the claim does not depend on the preamble for completeness. See in re
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`Hirao, 535 F.2d 67, 70 (CCPA 1976). The preamble of claims 1 and 26 provides
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`antecedent basis for the term “the gas stream” that appears later in the claim. In view
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`of this, while the preamble may be a claim limitation, the preamble is readily
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`understood and can simply be afforded its plain and ordinary meaning.
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`Despite the straight-forward language of the preamble, Petitioner anticipates
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`that Patent Owner may argue that the ’203 patent’s claims are limited to processes
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`that have very specific performance characteristics. For instance, during prosecution
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`the Patent Owner attempted to argue that the catalysts of the ’203 patent purportedly
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`have the ability to “maintain NOx conversion across a broad temperature range after
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`exposure to hydrothermal conditions.” (Ex. 1109, ’203 file history, 1/24/2011
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`Amend., at p. 22.) It also argued that the catalysts exhibit “high NOx conversion in
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`the low temperature range” of 200 oC to 350 oC. (Id. at pp. 24-25.) Likewise, the
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`Patent Owner argued that it is not enough for a catalyst to simply have “some activity
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`in the reduction of oxides of nitrogen.” Instead, the “claimed process” purportedly
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`requires “excellent activity at temperatures below 350 oC that is maintained after
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`hydrothermal aging.” (Id., 5/1/12 Amend., at p. 13.) The Patent Owner went on to
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`argue that the claims require not only the “subject matter which is literally recited,”
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`but also any “properties … which are inherent in the subject matter and are disclosed
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`in the specification.” (Id. at pp. 13-14 (citing In re Antonie, 559 F.2d 618 (CCPA 1977)
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`and In re Goodwin, 576 F.2d 375 (CCPA 1978)).)
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`The ’203 patent’s claims should be interpreted to require only what they state,
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`namely, a “process for the reduction of oxides of nitrogen.” The claims cannot
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`properly be limited to only processes employing materials that exhibit “excellent
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`activity,” including activity over a wide range of temperatures or resistance to
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`hydrothermal aging. There is nothing in the claims that requires this type of
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`performance. And, the ’203 patent’s specification does not define any claim term to
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`require this functionality, or disclaim coverage of materials that do not possess these
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`characteristics. In fact, the specification indicates that the materials of the patent do
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`not need to have “excellent activity.” For instance, Example 1 employs the claimed
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`zeolite, SAR, and Cu/Al ratio. (Ex. 1101, ’203 patent, 10:48-50, Table 1.) Yet, this
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`catalyst “did not show enhanced resistance to thermal aging.” (Id. at 11:21-26.)
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`The prosecution history of the ’203 patent itself also serves to confirm that the
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`claims cannot be limited to only processes with “excellent” performance. When
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`originally filed, the ’203 patent included claims explicitly requiring that the catalyst
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`“prevent thermal degradation” and “maintain NOx conversion … after hydrothermal
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`aging.” (Ex. 1109, ’203 patent file history, at 11/19/09 Prelim. Amend., pp. 4-5.)
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`Other claims required that the “NOx conversion of the catalyst at about 200 oC after
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`hydrothermal aging” be “at least 90% of the NOx conversion of the catalyst at about
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`200 oC prior to hydrothermal aging,” or that the catalyst be able to reduce “at least
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`about 90%” of nitrogen oxides “over the temperature range of about 250 oC to 450
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`oC.” (Id. at p. 5) These claims were repeatedly rejected as not described or enabled.
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`(Id., 2/26/10 Office Action, at pp. 3-4; 2/1/12 Office Action, at pp. 5-6; 7/18/12
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`Office Action, at pp. 2-4.) In response, the Patent Owner cancelled the claims and
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`proceeded with claims requiring only a “process for the reduction of oxides of
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`nitrogen” without any performance requirements. (Id., 5/1/12 Amend., at p. 4.)
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`Any argument on the part of the Patent Owner that the ’203 patent’s claims
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`must be limited to processes that exhibit “excellent activity” across a wide range of
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`temperatures and a high “hydrothermal stability” is also wrong as a matter of law.
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`The two cases cited during prosecution—In re Antonie and In re Goodwin—simply stand
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`for the proposition that it may be possible to rebut a prima facie case of obviousness
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`by showing that selection and optimization of a particular claimed range produced
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`“unexpectedly good” results. In re Antonie, 559 F.2d at 620. This does not mean,
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`however, that performance characteristics allegedly possessed by embodiments in the
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`specification should be read into the claims. Further, as discussed in Section VI
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`below, the ’203 patent’s specification fails to provide any basis for the contention that
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`use of the zeolites in the claimed range produces “unexpected” results. (See Ex. 1108,
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`Lercher Dec. at ¶¶ 354-363.)
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`“Catalyst”
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`2.
`All of the ’203 patent’s claims call for a “catalyst.” This claim term is indefinite,
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`as it is defined as having various metrics and characteristics set forth in the body of
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`the claim, but it is unclear whether those recited features (such as mole ratios and
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`atomic ratios) are those of the zeolite alone, or whether they are of the entire catalyst
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`in its broadest sense, which would include a combination of the zeolite and binder, as
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`well as the various substrates on which the zeolite is deposited. (Ex. 1101, ’203 patent,
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`at 2:59-3:5.) Accordingly, because these two possibilities overlap in scope, with
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`neither being necessarily broader than the other, the broadest reasonable
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`interpretation of the “catalyst” would embrace both a zeolite alone and the zeolite in
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`combination with a binder well and substrate on which the zeolite and binder are
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`deposited. (See Ex. 1108, Lercher Dec. at ¶¶ 42-45.)
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`“[Z]eolite having the CHA crystal structure”
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`3.
`All of the claims of the ’203 patent require a “zeolite having the CHA crystal
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`structure.” The patent’s specification provides that the “CHA crystal structure” is
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`“defined by the International Zeolite Association.” (Ex. 1101, ’203 patent, 1:60-61.)
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`According to that definition, zeolites with this particular crystal structure are also
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`known as “chabazite.” (Ex. 1108, Lercher Dec. at ¶¶ 47-51.)
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`-8-
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`IV. Overview of the ’203 Patent
`The ’203 patent relates to zeolite catalysts having the CHA crystal structure.
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`(Ex. 1101, ’203 patent, 1:17-19.) These catalysts incorporate copper to facilitate their
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`use in gas exhaust treatment systems to reduce nitrogen oxides. (Id. at 1:19-22.) The
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`’203 patent acknowledges that both aluminosilicate zeolites and copper promoted
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`zeolites useful as nitrogen oxide reducing catalysts were known in the prior art. (Ex.
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`1101, 1:34-37.) It was also known that zeolites can be used as part of a “selective
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`catalytic reduction,” or “SCR,” process to catalyze the selective reaction of ammonia
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`with nitrogen oxides to form nitrogen and water. (Id. at 8:38-41.)
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`The ’203 patent’s claims purport to be an advantage over the acknowledged
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`prior art due to recited ranges of mole ratios of silica to alumina (the “SAR”) and
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`atomic ratios of copper to aluminum (the “Cu/Al ratio”). Independent claims 1 and
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`26 requires a SAR from about 15 to about 100 or 150, and a Cu/Al ratio from about
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`0.25 to about 0.50 or 1. The remaining claims are all dependent.
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`The ’203 patent also provides that its catalytic materials can be used as “part of
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`an exhaust gas treatment system used to treat exhaust gas streams, especially those
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`emanating from gasoline or diesel engines.” (Id. at 1:62-65.) In this regard, the
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`specification discusses disposition of its catalysts on various prior art substrates,
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`including “wall flow” or “flow through” “honeycomb” substrates. (Id. at 2:41-45.)
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`Various other prior art components of an exhaust gas treatment system are also
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`discussed, including an “oxidation catalyst,” a “soot filter,” and a device to add a
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`reductant like “ammonia” to an exhaust stream. (Id. at 5:65-6:5; 21:58-22:67.)
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`V. How Challenged Claims are Unpatentable (37 C.F.R. § 42.104(b)(4)-(5))
`A. Ground 1: Claims 1, 14, 15, 17-22, 26, and 27 are obvious under 35
`U.S.C. §103(a) over Maeshima in view of Breck.
` Maeshima relates to materials for use in “a process wherein the concentration
`
`of nitrogen oxides is reduced by catalytic reduction.” (Ex. 1102, Maeshima, at 1:8-10.)
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`This entails “contacting the … gaseous mixture with a catalyst in the presence of
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`ammonia to reduce the nitrogen oxides selectively.” (Id. at 2:4-8.) Maeshima’s
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`process is meant to be operable at a temperature range of 200 oC to about 500 oC. (Id.
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`at 2:48-49, 3:20-32.) “[A] crystalline aluminosilicate” can be used as the catalyst. (Id.
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`at 3:33-35.) “Chabazite” is provided as an example of a “suitable … zeolite” catalyst.
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`(Id. at 4:6-12.) Maeshima states that the zeolite catalysts employed in its process
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`should have a SAR ratio greater than 2. (Id. at 3:67-4:3.) Further, “at least one metal
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`cation having an activity of reducing nitrogen oxides” can be incorporated into the
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`zeolite via ion exchange. (Id. at 3:35-38.) Copper is identified as an active metal that
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`can be used for this purpose. (Id. at 4:51-54.) According to Maeshima, zeolite
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`catalysts should be ion exchanged with an active metal in the amount of 60% to
`
`100%. (Id. at 4:44-54.) Maeshima also explains that the catalyst should be
`
`impregnated with active metals in the amount of 2% to 10% by weight. (Id. at 6:1-18.)
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`And, an example that includes 3% copper by weight is provided. (Id. at 9:10-12.)
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`-10-
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`Breck sets forth methods for preparing zeolites that “have substantially greater
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`SiO2/Al2O3 ratios than the heretofore known zeolite species.” (Ex. 1103, Breck, at
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`1:9-17.) “[C]habazite” is identified as an “[e]specially preferred zeolite species.” (Id. at
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`4:60-63.) Breck also provides a specific example, designated “LZ-218,” of a chabazite
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`catalyst with a SAR ratio “greater than 8, preferable in the range of 8 to 20.” (Id. at
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`18:3-15.) “LZ-218” is one of the preferred zeolite catalysts with the CHA crystal
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`structure set forth in the ’203 patent. (Ex. 1101, ’203 patent, 4:33-35.) Breck explains
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`that its high silica zeolites are very stable, can be ion-exchanged, and can be used in
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`catalytic processes just like lower silica precursors. (Ex. 1103, Breck, at 47:44-47.)
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`Maeshima and Breck together teach all the limitations required by claims 1, 14,
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`15, 17-22, 26, and 27 of the ’203 patent. Maeshima relates to catalysts for use in a
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`SCR process to reduce nitrogen oxides in an oxygen containing gaseous stream. (Ex.
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`1102, Maeshima, at 1:8-10, 2:4-8.) Thus, it discloses the “process for the reduction of
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`oxides of nitrogen contained in a gas stream in the presence of oxygen” of claims 1
`
`and 26. Next, Maeshima describes use of a chabazite (id. at 4:6-12), which is a
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`“zeolite” catalyst “having the CHA crystal structure” as the claims require. This
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`catalyst must also have certain proportions of silica, alumina, and copper. Claim 1
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`requires a SAR “from about 15 to about 100” and a Cu/Al ratio “from about 0.25 to
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`about 0.5.” Claim 26 requires a SAR “from about 15 to about 150” and a Cu/Al ratio
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`“from about 0.25 to about 1.” While Maeshima discusses the use of zeolites with a
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`SAR greater than 2, as shown by Breck, it was well known in the prior art that the
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`SAR of a zeolite like chabazite could be beneficially increased. Breck provides an
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`example of chabazite with a SAR in the range of 8 to 20. Incorporation of Breck’s
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`chabazite zeolite into Maeshima results in a catalyst with the claimed proportions of
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`silica, alumina, and copper. A SAR of 20 is within the claimed range. With respect to
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`the Cu/Al ratio, Maeshima states that when adding copper to zeolite catalysts, the
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`ion-exchange rate should be from 60% to 100%. Applying a 100% ion-exchange rate1
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`to Breck’s chabazite catalyst with a SAR of 20 will produce a material with a Cu/Al
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`ratio of 0.5. (See Ex. 1108, Lercher Dec. at ¶¶ 99-104.) A 60% ion-exchange rate
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`produces a Cu/Al ratio of 0.3. (See id.). These Cu/Al ratios are within the claimed
`
`ranges. The catalysts would also respectively be 4.65% and 2.82% Cu by weight,
`
`which is in the acceptable range of 2% to 10% specified by Maeshima. (See id. at ¶¶
`
`108-110.) And, if 3% Cu by weight is used (this is the amount of copper used by an
`
`example in Maeshima), the Cu/Al ratio of the resulting material will be 0.3. (See id. at
`
`¶¶ 111-112.)
`
`
`
`1 The maximum amount of copper that can be incorporated into chabazite via ion
`
`exchange is 1 mole of Cu per mole of Al2O3. (See Ex. 1108, Lercher Dec. at ¶ 101.)
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`Thus, at a 100% ion-exchange rate, the atomic ratio of Cu/Al will be 0.5. (See id. at ¶
`
`104.)
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`-12-
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`

`

`
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`Claims 14 and 26 require “adding a reductant to the gas stream.” Claims 15
`
`and 27 specify that this reductant be “ammonia or an ammonia precursor.”
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`Maeshima explains that “ammonia” should be added to a gas stream during the
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`treatment process as a “reducing agent.” (Ex. 1102, Maeshima, at 2:9-64; 8:32-52.)
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`Claims 17-22 further limit the SAR and Cu/Al ratio of the claimed catalyst.
`
`Claims 17 and 18 respectively require a SAR of “about 25 to about 40” or “about 30.”
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`Claims 19 and 20 respectively require a Cu/Al ratio of “0.30 to about 0.50” or “about
`
`0.4.” Claim 21 requires both a SAR “from about 25 to about 40” and a Cu/Al ratio
`
`“from about 0.3 to about 0.5,” while claim 22 requires a SAR of “about 30” and a
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`Cu/Al ratio of “about 0.4.” Maeshima and Breck’s zeolites will have Cu/Al ratios of
`
`0.3 to 0.5, which matches the claimed ranges. The combination of Maeshima and
`
`Breck discloses a copper-loaded chabazite zeolite with a SAR of 20. One of ordinary
`
`skill in the art would not consider zeolites with a SAR of 25 to 40 or 30 to provide any
`
`non-obvious performance benefit over, a zeolite with a SAR of 20. (Id. at Ex. 1108,
`
`Lercher Dec. at ¶¶ 122-129.) Instead, as evinced by Breck, it was well known in the
`
`art that increasing the proportion of silica in a zeolite would increase its stability and
`
`resistance to poisoning without compromising its utility as a zeolite. (Id. at ¶ 123.)
`
`This common knowledge would have motivated those of ordinary skill in the art to
`
`use of zeolites with ratios even greater than those explicitly set forth in Breck. (Id. at ¶
`
`124.) The obviousness of the claimed SAR ranges is also confirmed by the ’203
`
`patent. While some examples with a SAR of 30 are referenced, the patent nonetheless
`
`-13-
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`

`

`
`
`explains that zeolites “having a range of silica to alumina ratio between about 15 and
`
`256 … exhibit acceptable low temperature NOx conversion” and “are within the
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`scope of the invention.” (Ex. 1101, ’203 patent, at 14:58-63.)
`
`One of ordinary skill in the art as of February 20072 would have been
`
`motivated to utilize Breck’s higher silica zeolites with Maeshima’s catalytic process to
`
`arrive, with a reasonable expectation of success, at the subject matter of the claims.
`
`(See Ex. 1108, Lercher Dec. at ¶¶ 153-168.) As explained above, while Maeshima
`
`discloses all the other required claim limitations, including the use of zeolites with the
`
`CHA crystal structure and the claimed proportion of copper in a SCR process, it does
`
`not expressly reference zeolites with a SAR within the claimed ranges. Instead, it
`
`simply states that “crystalline aluminosilicates … having … SiO2/Al2O3 molar ratios
`
`of above about 2,” including “chabazite,” are “preferred” for copper loading and
`
`catalyzing the reduction of nitrogen oxides. (Ex. 1102, Maeshima, at 3:67-11.) Breck
`
`discloses that the SAR of a chabazite zeolite can be increased to within the claimed
`
`range. (Ex. 1103, Breck, 18:3-15.) Further, Maeshima and Breck together provide
`
`
`
`2 For purposes of this Petition, one of ordinary skill in the art is assumed to hold 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. (See Ex. 1108, Lercher Dec. at ¶ 69.)
`
`-14-
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`

`

`
`
`one of ordinary skill in the art with motivation to use an increased silica zeolite in
`
`Maeshima’s process. Maeshima explains that an exhaust gas stream “generally
`
`contains … sulfur oxides and oxygen in addition to nitrogen oxides” and it is
`
`“necessary to perform removal of nitrogen oxides while eliminating influences” of
`
`these materials. (Ex. 1102, Maeshima, at 2:34-38.) Breck’s higher silica zeolites
`
`accomplish this. According to Breck, increasing the proportion of silica in a zeolite
`
`provides it with “increased resistance” to acidic agents like sulfur oxides. (Ex. 1103,
`
`Breck, at 47:47-52.) And, as an added benefit, Breck’s higher silica zeolites are also
`
`“more thermally and hydrothermally stable.” (Id.) Thus, one of ordinary skill in the
`
`art in February 2007 would readily appreciate that use of Breck’s zeolites would be
`
`particularly well suited for use in Maeshima’s process. (Ex. 1108, Lercher Dec. at ¶¶
`
`156-160.) They would render Maeshima’s process more resistant to sulfur oxides in a
`
`gas stream, and would also allow the process to be more effective across a broader
`
`temperature range and more resistant to hydrothermal aging. (See id. at ¶ 160.) 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 Breck’s zeolite. It was well known that larger amounts of copper ions, including
`
`that achieved by approaching up to a 100% ion-exchange rate, enhance the
`
`effectiveness of a zeolite when catalyzing the reduction of nitrogen oxides. (See id. at
`
`¶¶ 161-162.) And, Breck’s disclosure is itself consistent with this. According to
`
`Breck, the “chemical composition” of LZ-218 “expressed in terms of mole ratios of
`
`-15-
`
`

`

`
`
`oxides” is 0.9±0.1M2/nO:Al2O3:xSiO2. (Ex. 1103, Breck, at 18:8-11.) If copper is used
`
`as cation “M,” a Cu/Al ratio of 0.4 to 0.5 will result. (Ex. 1108, Lercher Dec. at ¶
`
`114.)
`
`One of ordinary skill in the art would also have every reason to believe that use
`
`of Breck’s zeolites in Maeshima’s process would succeed. (Id. at ¶ 163.) In fact,
`
`Breck itself explains that increasing the proportion of silica in its zeolites does not
`
`detrimentally effect the ability to ion-exchange the zeolites, or the utility of the
`
`zeolites in catalytic processes in which lower silica precursors have been employed.
`
`(Ex. 1103, Breck, at 47:44-47.)
`
`Maeshima and Breck are also in the same technical field (zeolite catalysts and
`
`the use of these catalysts) and are directed to solving the same problem (identifying
`
`materials that can be effectively used in a process for catalyzing the reduction of
`
`nitrogen oxides). (See Ex. 1108, Lercher Dec. at ¶ 166.) This would further motivate
`
`combination. (Id.) Additionally, the combination of Maeshima and Breck amounts to
`
`nothing more than the application of one particular known type of catalytic material
`
`with known benefits—the high silica chabazite zeolites of Breck—in a process that
`
`already employs the same type of material—Maeshima’s process for selectively
`
`reducing nitrogen oxides. (Id. at ¶ 167.) Thus, use of Breck’s zeolites, which had
`
`known benefits and applicability to catalytic processes, with Maeshima’s process
`
`would be considered nothing more than routine optimization and an obvious design
`
`choice. (Id. at ¶ 168.)
`
`-16-
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`

`

`
`
`Claim charts further identifying the portions of Maeshima and Breck that
`
`disclose the limitations of claims 1, 14, 15, 17-22, 26, and 27 are provided below:
`
`Claim 1
`A process for
`the reduction of
`oxides of
`nitrogen
`contained in a
`gas stream in
`the presence of
`oxygen wherein
`said process
`comprises
`
`contacting the
`gas stream with
`a catalyst
`comprising
`
`a zeolite having
`the CHA crystal
`structure
`
`and a mole ratio
`of silica to
`alumina from
`
`Disclosure in Maeshima and Breck
`E.g., Maeshima, 1:6-13 (“[T]his invention relates to a process . .
`. wherein the concentration of nitrogen oxides is reduced by
`catalytic reduction. … Nitrogen oxides are, of course, generally
`present in significant quantities in gaseous mixtures such as flue
`gases.”); 2:4-8 (“[N]itrogen oxides are removed from a gas
`containing the nitrogen oxides and oxygen by contacting the
`resulting gaseous mixture with a catalyst in the presence of
`ammonia to reduce the nitrogen oxides selectively.”); see also 2:9-
`64; 3:20-27; 8:15-52.
`E.g., Breck, 47:44-61 (“The 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.”); see also 1:9-14; 48:7-51:3.
`E.g., Maeshima, 1:55-63 (“[T]he gaseous mixture is contacted
`with a zeolite catalyst….”);2:4-8 (“[N]itrogen oxides are removed
`from a gas containing the nitrogen oxides and oxygen by
`contacting the resulting gaseous mixture with a catalyst….”); see
`als