UNITED STATES PATENT AND TRADEMARK OFFICE
`__________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________________________________________________________________
`
`UMICORE AG & CO. KG
`
`Petitioner
`
`v.
`
`BASF CORPORATION
`
`Patent Owner
`
`Case IPR2015-01124
`U.S. Patent 8,404,203
`__________________________________________________________________
`
`PETITIONER’S REPLY BRIEF IN SUPPORT OF ITS PETITION FOR INTER
`PARTES REVIEW
`__________________________________________________________________
`
`

`
`TABLE OF CONTENTS
`
`INTRODUCTION ..................................................................................................... 1
`ARGUMENT ............................................................................................................. 1
`I. BASF’S IMPROPER FOCUS ON “HYDROTHERMAL STABILITY” AND
`“LOW TEMPERATURE” PERFORMANCE .................................................... 3
`A. BASF Ignores the Claims.............................................................................. 3
`B. BASF Ignores the Specification .................................................................... 5
`
`1. The Specification Fails to Describe the Properties of All the Claimed
`Catalysts ................................................................................................ 5
`2. The Specification Explains that It Is “Free Copper” That Provides
`“Improved Hydrothermal Stability” ...................................................... 7
`“Improved Hydrothermal Stability” Is an Optional Property ............... 8
`3.
`C. The Unclaimed Feature of “Hydrothermal Stability” and “Low
`Temperature” Performance Not Shared by All the Claimed Catalysts
`Cannot Serve as a Basis to Distinguish the Prior Art ................................... 9
`II. THERE IS NO NEXUS BETWEEN BASF’S “SECONDARY
`CONSIDERATIONS” AND THE CLAIMS. ................................................... 10
`A. There Was No Skepticism in the Art .......................................................... 11
`B. BASF Has Failed to Establish that the Claimed Subject Matter Gives Rise
`to Unexpected Results ................................................................................. 14
`
`1. The Examples in the Specification Do Not Show Unexpected Results
`Across the Claimed Ranges ................................................................. 14
`2. The Other Evidence of Record Also Does Not Establish Unexpected
`Results ................................................................................................. 15
`C. BASF Has Failed to Come Forward with Sufficient Evidence of
`Commercial Success ................................................................................... 17
`III. BASF IGNORES THE TEACHINGS OF THE PRIOR ART ......................... 19
`A. Maeshima in view of Breck ........................................................................ 19
`B. Dedecek in view of Breck ........................................................................... 23
`
`-i-
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`

`
`C. Maeshima/Dedecek and Breck in Further View of Patchett ..................... ..23
`
`C. Maeshima/Dedecek and Breck in Further View of Patchett ....................... 23
`CONCLUSION ........................................................................................................ 25
`
`CONCLUSION ...................................................................................................... ..25
`
`-ii-
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`

`
`INTRODUCTION
`
`Petitioner Umicore respectfully submits its reply in support of its Petition for
`
`IPR of the ’203 patent. BASF has failed to identify any claim limitations missing
`
`from the prior art. Instead, it argues that the claims are patentable because a single,
`
`specific commercial embodiment purportedly produces better low temperature
`
`SCR performance and hydrothermal durability than prior art compositions.
`
`Neither property, however, is a claim limitation. Nor are the claims otherwise
`
`restricted to just compositions that have these qualities. In fact, the patent
`
`specification itself establishes that these properties are not possessed by all the
`
`claimed compositions. As a result, the prior art, which discloses catalysts
`
`overlapping the claimed composition ranges and explains that those catalysts can
`
`be used as SCR catalysts to reduce nitrogen oxides, renders the ’203 patent’s
`
`claims obvious and unpatentable.
`
`ARGUMENT
`
`As set forth in the petition, every claim element is found in the prior art and
`
`one of ordinary skill in the art would have been motivated to combine that art with
`
`an expectation of success. BASF has failed to meet its burden of establishing the
`
`existence of secondary considerations sufficient to overcome this strong prima
`
`facie case of obviousness.
`
`-1-
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`

`
`According to BASF, the ’203 patent’s claims are directed to “a copper-
`
`exchanged aluminosilicate zeolite with the CHA structure type (‘CuCHA’)” that
`
`purportedly “exhibit[s] excellent NOx conversion over a wide temperature range
`
`and excellent hydrothermal stability.” (BASF Opp. at 10.) But, neither “improved
`
`hydrothermal stability” nor catalytic activity “over a wide temperature range” is
`
`required by the claims. Nonetheless, BASF asserts that these unclaimed “enhanced
`
`properties” “are pertinent to the evaluation of obviousness.” (Id. at 12-13.) BASF
`
`then criticizes the prior art for not expressly discussing the unclaimed enhanced
`
`properties. (See, e.g., id. at 28.) And, BASF further argues that the unclaimed
`
`“improved hydrothermal stability” of the ’203 patent’s materials overcame
`
`skepticism, provides evidence of unexpected results, and has allowed BASF’s
`
`catalyst product to be commercially successful. (See id. at 38-45.)
`
`BASF’s arguments ignore what the ’203 patent actually describes and
`
`claims. Again, the “enhanced properties” are not required by the claims. And,
`
`both the specification and BASF’s expert Dr. Tsapatsis have made clear that they
`
`are not inherent properties of the claimed catalysts. As a result, whether a limited
`
`subset of catalysts in the ’203 patent possess these unclaimed properties is simply
`
`not relevant to the obviousness inquiry.
`
`-2-
`
`

`
`I.
`
`BASF’s Improper Focus on “Hydrothermal Stability” and “Low
`Temperature” Performance
`
`A.
`
`BASF Ignores the Claims
`
`The focus of an obviousness analysis is on the claims. The ’203 patent’s
`
`claims are directed to a “process for the reduction of oxides of nitrogen contained
`
`in a gas stream in the presence of oxygen” using a catalyst with the CHA crystal
`
`structure, a SAR of 15-150 (or 100), and a Cu/Al ratio of 0.25-1 (or 0.5). This is
`
`all that is literally recited by the claims, and no further functional or performance
`
`properties are required. BASF conceded that this “process for…” language did
`
`“not require construction.” (BASF Opp. at 12-13.) And, it does not point to any
`
`other claim language that would require the grafting of the specific catalyst
`
`performance properties it repeatedly discusses onto the claims. Regardless, for
`
`validity purposes, BASF seeks to unduly narrow the claims such that the prior art
`
`must teach catalysts that can be used in a process that works to reduce nitrogen
`
`oxides in all circumstances, including at very low temperatures. BASF further
`
`argues that the prior art must also show improved resistance to hydrothermal
`
`degradation after aging. But, the claims are not so narrowly focused. Indeed,
`
`unlike the ’662 patent (the ’203 patent’s parent), the claims at issue in this IPR do
`
`not even require a catalyst that is “effective” for SCR.
`
`Importantly, the claims do not require that the catalyst be able to reduce
`
`nitrogen oxides at any particular temperatures. (See Ex. 1119, Tsapatsis Depo. at
`
`-3-
`
`

`
`64:24-65:22.) Thus, the claims can cover a catalyst that reduces nitrogen oxides
`
`only at one temperature (i.e., around 500 oC), but not at another (i.e., around 200
`
`oC). The claims also do not require that the catalyst possess any particular degree
`
`of hydrothermal stability. (See id. at 72:11-73:9.) None of the ’203 patent’s
`
`claims even use the terms “hydrothermal” or “aging.” Thus, while the claims do
`
`embrace catalysts that can be used to reduce nitrogen oxides after extreme
`
`hydrothermal aging, they also include catalysts that can be used only when fresh or
`
`when subjected to more mild aging conditions.
`
`The ’203 patent’s examples confirm that the claims do not require a catalyst
`
`with improved “hydrothermal stability.” Example 1 has a SAR of 30, a Cu/Al
`
`ratio of 0.3, and is able to reduce at least some NOx in an exhaust gas stream. (See
`
`Ex. 1101, ’203 patent at 10:48-50; Table 1.) Thus, as confirmed by BASF’s
`
`expert, the example can be used in a process for reducing nitrogen oxides and falls
`
`within the scope of all but the narrowest of the ’203 patent’s claims. 1 (See Ex.
`
`1119, Tsapatsis Depo. at 57:6-25 (discussing claim 1 of the ’662 patent, which
`
`includes limitations tracking claim 26 of the ’203 patent).) Despite this, the ’203
`
`1 Example 1 is not within the scope of claims 20 and 22. But, these claims simply
`
`narrow the claimed Cu/Al ratio range, adding no other limitations that would call
`
`for any particular amount of hydrothermal stability.
`
`-4-
`
`

`
`patent explains that Example 1 “did not show enhanced resistance to thermal
`
`aging.” (Ex. 1101, ’203 patent at 11:21-26 (emphasis added).) In other words, by
`
`extending to Example 1, the claims admittedly embrace catalysts that lack the
`
`unclaimed property of improved hydrothermal stability.
`
`B.
`
`BASF Ignores the Specification
`
`BASF’s arguments regarding alleged “enhanced properties” of the claimed
`
`subject matter are not supported by the specification.
`
`1.
`
`The Specification Fails to Describe the Properties of All the
`Claimed Catalysts
`
`While the specification does include some examples showing improved low
`
`temperature activity or hydrothermal stability (see, e.g., id. at 11:55-58; 12:4-8;
`
`14:37-39), there is no evidence that these unclaimed benefits are provided by all
`
`the materials spanning the claimed ranges. The following chart summarizes the
`
`SAR values and Cu/Al ratios of the patent’s examples:
`
`-5-
`
`

`
`(Ex. 1118; see also Ex. 1119, Tsapatsis Depo. at 99:3-103:9.) The broken line
`
`represents claim 26’s range of SAR values and Cu/Al ratios. The dots represent
`
`the examples. As can be seen, there is only test data for claimed materials with
`
`SAR of 15 and 30, but nothing between or above. (See id. at 103:10-105:19.)
`
`Further, there is no data for claimed materials with Cu/Al ratios at or above 0.5.
`
`(See id. at 105:20-107:16.) Thus, there is nothing in the patent that would allow
`
`one to determine that improved low temperature activity and hydrothermal stability
`
`is provided across the entire claimed range. In re Harris, 409 F.3d 1339, 1344
`
`(Fed. Cir. 2005) (improved performance of one embodiment did not prove
`
`-6-
`
`

`
`unexpected results, as there was no showing of similar performance across the
`
`entire range); In re Boesch, 617 F.2d 272, 277 (C.C.P.A. 1980) (similar).
`
`2.
`
`The Specification Explains that It Is “Free Copper” That
`Provides “Improved Hydrothermal Stability”
`
`None of the claims at issue in this IPR include limitations regarding how
`
`copper is incorporated into the catalyst—they extend to both “free” and ion-
`
`exchanged copper. (See Ex. 1119, Tsapatsis Depo. at 80:13-81:10 (discussing
`
`similar claims in the ’662 patent).) The ’203 patent specification, however,
`
`repeatedly states that it is the presence of “free” or “non-exchanged” copper that
`
`provides the catalysts described in the specification with improved hydrothermal
`
`stability. For instance, in its “Summary” section, the patent states that “non-
`
`exchanged copper” can be included in a catalyst to “maintain NOx conversion
`
`performance of the catalyst in an exhaust gas stream containing nitrogen oxides
`
`after hydrothermal aging of the catalyst.” (Ex. 1101, ’203 patent at 2:31-35; see
`
`also 2:59-67.) Indeed, the patent even unambiguously explains that it is “free
`
`copper” that “prevents hydrothermal degradation.” (Id. at 2:67-3:3.) This same
`
`explanation is repeated in the patent’s “Detailed Description.” (See, e.g., id. at
`
`5:33-41.) And, the patent states that “[u]nexpectedly, this ‘free’ Cu has been found
`
`to impart greater stability in catalysts subjected to thermal aging at temperatures up
`
`to about 800 oC.” (Id. at 5:51-54.) The inclusion of “non-exchanged Cu” also
`
`“enhanced” a catalyst’s “ability to reduce NO with NH3 at low temperatures.” (Id.
`
`-7-
`
`

`
`at 6:21-25.) The patent’s examples are consistent, with the examples that contain
`
`“free copper” characterized as “exhibit[ing] improved hydrothermal stability”
`
`while the examples that lack “free copper” are noted to “not show enhanced
`
`resistance to thermal aging.” (Compare 11:34-37, 55-58; 12:5-8 with 11:21-26.)
`
`In other words, any “unexpected” performance benefit provided by the patent’s
`
`catalysts are purported to result from the inclusion of “free” copper (which is
`
`unclaimed), and not from any of the limitations of claims—like those of the ’203
`
`patent—that extend to catalysts that lack “free” or “non-exchanged copper. (See
`
`Ex. 1119, Tsapatsis Depo. at 80:13-81:10.).
`
`3.
`
`“Improved Hydrothermal Stability” Is an Optional
`Property
`
`The ’203 patent states that it is meant to meet “a desire to prepare materials
`
`which offer low temperature SCR activity and/or improved hydrothermal
`
`durability over existing zeolites….” (Ex. 1101, ’203 patent at 1:51-55 (emphasis
`
`added.) In other words, the patent’s catalysts can offer either low temperature
`
`SCR activity or improved hydrothermal stability. A catalyst according to the
`
`specification need not provide both, as BASF appears to argue the claims require.
`
`If this were not enough, claims 1 and 26 extend to catalysts intended for use
`
`in circumstances where low temperature activity and hydrothermal stability are
`
`irrelevant. According to the patent, while an “SCR catalyst downstream of a
`
`catalyzed soot filter” may “experience temperatures as high as 800 oC” making
`
`-8-
`
`

`
`“improved hydrothermal stability” important, “[n]ot all catalysts will experience
`
`such high temperatures.” (Ex. 1101, ’203 patent at 14:43-53.) The patent’s claims
`
`cover not only catalysts disposed on a soot filter, but also catalysts not subject to
`
`high temperatures, such as catalysts for treating power plant exhaust or catalysts
`
`applied to a flow-through monolith. (See Ex. 1119, Tsapatsis Depo. at 84:14-
`
`85:22; 87:12-17; 88:6-10.)
`
`C.
`
`The Unclaimed Feature of “Hydrothermal Stability” and “Low
`Temperature” Performance Not Shared by All the Claimed
`Catalysts Cannot Serve as a Basis to Distinguish the Prior Art
`
`An unclaimed feature or property “is immaterial to obviousness of [a]
`
`composition … in light of the prior art showing general efficacy for the same use.”
`
`Tyco Healthcare Grp. v. Mut. Pharm. Co., 642 F.3d 1370, 1374 (Fed. Cir. 2011).
`
`In Tyco, as BASF does here, the patentee pointed to an “unclaimed property of
`
`effectiveness in treating insomnia” and argued that “all the properties of a
`
`composition of matter relevant to patentability must be considered in evaluating
`
`whether that composition would have been obvious in light of the prior art.” Tyco
`
`Healthcare, 642 F.3d at 1373. This argument was rejected: “discovery of a new
`
`property or use of a previously known composition, even when that property and
`
`use are unobvious from the prior art, cannot impart patentability to the known
`
`composition.” Id. (quoting In re Spada, 911 F.2d 705, 708 (Fed. Cir. 1990).)
`
`-9-
`
`

`
`Further, in In re Verbanc, the court held that “unexpected” properties not
`
`shared by all the claimed materials do not render the claims non-obvious. See 404
`
`F.2d 378, 380-81 (C.C.P.A. 1968). There, the patent claimed a curable
`
`composition of a butadiene-styrene copolymer and a specific monosulfide
`
`vulcanization accelerator. Id. at 379. The prior art disclosed processes for
`
`vulcanizing rubber, and explained that monosulfides are “‘safe’ super-accelerators
`
`for rubber.” Id. at 380. The inventors argued that “their invention is patentable
`
`because of unexpectedly improved curing results.” Id. The court rejected this
`
`argument because the evidence did not show that all the claimed compositions
`
`possessed this unexpected improvement. Id. at 381.
`
`Just as in Tyco and Verbanc, unclaimed properties (such as “improved
`
`hydrothermal stability” and catalytic activity “over a wide temperature range”) that
`
`are not possessed by every claimed embodiment cannot differentiate the ’203
`
`patent from prior art disclosing CuCHA catalysts with SARs and Cu/Al ratios
`
`overlapping the claimed ranges.
`
`II.
`
`There Is No Nexus Between BASF’s “Secondary Considerations” and
`the Claims.
`
`BASF argues that “objective indicia of skepticism, unexpected results, and
`
`commercial success support nonobviousness…” (BASF Opp. at 36.) “For …
`
`objective evidence to be accorded substantial weight,” however, “its proponent
`
`must establish a nexus between the evidence and the merits of the claimed
`
`-10-
`
`

`
`invention.” In re GPAC Inc., 57 F.3d 1573, 1580 (Fed. Cir. 1995). The evidence
`
`“must be reasonably commensurate with the scope of the claims.” See In re Huai-
`
`Hung Kao, 639 F.3d 1057, 1068 (Fed. Cir. 2011). BASF has not met this burden.
`
`Here, BASF’s evidence relates to a single commercial product that allegedly
`
`provides unclaimed performance benefits. 2 Thus, BASF has failed to establish the
`
`required nexus. And, even if it were related to the claims, the minor secondary
`
`considerations pointed to by BASF do not overcome the strong prima facie case of
`
`obviousness discussed in the Petition. See Asyst Techs., Inc. v. Emtrak, Inc., 544
`
`F.3d 1310, 1316 (Fed. Cir. 2008).
`
`A.
`
`There Was No Skepticism in the Art
`
`BASF cites to several papers that purportedly show skepticism regarding the
`
`“commercial use” of “[c]opper-based catalysts” in view of their purportedly “low
`
`hydrothermal stability.” (See BASF Opp. at 38-40.) But, none of the claims at
`
`2 This distinguishes the ’203 patent from US v. Adams, 383 U.S. 39 (1966). In
`
`Adams, the patent was directed to a battery with specific types of electrodes that
`
`allowed use of water as an electrolyte. Id. 42-43. And, unlike in this case where
`
`BASF points only to unclaimed performance properties, it was the use of the
`
`claimed electrodes and electrolyte in Adams that gave rise to skepticism,
`
`unexpected results, and success. See id. at 51-52.
`
`-11-
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`

`
`issue in this IPR require a commercially viable catalyst, let alone a catalyst that
`
`exhibits any particular degree of hydrothermal stability. The claims require only a
`
`CuCHA catalyst that can be used as part of a process for reducing nitrogen oxides.
`
`And, there is no indication in the record of skepticism regarding the use of CuCHA
`
`catalysts for such purposes. In fact, when viewed in light of what BASF actually
`
`claimed, the articles show that the art was actually optimistic about the use of
`
`zeolite catalysts.
`
`BASF first cites a 1995 paper as purportedly showing skepticism. (BASF
`
`Opp. at 38.) While the paper does reference “low hydrothermal stability,” it also
`
`explains that “[c]opper-based catalysts are active in a wide range of reactions of
`
`transformation of nitrogen oxides.” (Ex. 2012 at 001, 004, 005 (emphasis added).)
`
`Numerous papers reporting on the “excellent … catalytic activities” of copper-
`
`exchanged zeolites are listed. (Id.) BASF additionally cites 2004 and 2006
`
`publications. (BASF Opp. at 39-40.) The 2004 publication explains that “SCR
`
`has for more than a decade been mentioned as a promising technology to reduce
`
`NOx on diesel engines.” (Ex. 2026 at 001 (emphasis added).) The paper
`
`references a number of different catalytic materials, including zeolites, and
`
`concludes by stating that “urea-SCR technology has a great potential.” (Id. at 005,
`
`007 (emphasis added).) The 2006 paper similarly explains both that “[u]rea-
`
`selective catalytic reduction (SCR) is an attractive and proven after-treatment
`
`-12-
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`

`
`method,” and that its “investigation verifies that … zeolite based catalysts are very
`
`promising for the ammonia SCR reaction.” (Ex. 2021 at 001.) Far from showing
`
`skepticism, these papers establish that copper-exchanged zeolites were looked on
`
`as a viable and promising SCR catalysts.
`
`BASF also submits the “Declaration of Stanley Roth, Ph.D” (Ex. 2001) in
`
`support of its argument that there was “skepticism” in the art. (See BASF Opp. at
`
`38-39.) Dr. Roth’s declaration references a 2005 email chain between an
`
`unidentified university professor and a DOE researcher that purportedly represents
`
`“the view of … those skilled in the art that Cu-Zeolites could not be used as
`
`catalysts for the SCR of NOx because of the inability to maintain NOx conversion
`
`upon exposure to hydrothermal conditions.” (Ex. 2001 at 003.) As discussed
`
`above, hydrothermal stability is not relevant to the claims. Moreover, Dr. Roth
`
`himself explains in the chain that “[i]n the zeolite literature there are probably
`
`many examples of structures with hydrothermal durability to the 700-800 oC range.
`
`The big issue appears to be your DOE reviewers that have experience limited to
`
`the Cu-ZSM5 HC-SCR example, where catalytic performance quickly died after
`
`modest hydrothermal aging.” (Id. at 007.) In other words, any skepticism
`
`expressed by the DOE reviewers was the result of the narrow consideration of only
`
`a subset of available art, and unawareness of other art (like Breck, for instance)
`
`that shows that CHA zeolite structures can be rendered more hydrothermally
`
`-13-
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`

`
`stable. While BASF attributes a different significance to the DOE reviewer’s
`
`comments, these attempts to retroactively put words in unknown and unavailable
`
`witnesses’ mouths are exactly what the hearsay rules are designed to prevent.
`
`B.
`
`BASF Has Failed to Establish that the Claimed Subject Matter
`Gives Rise to Unexpected Results
`
`BASF has not met its burden to establish unexpected results.
`
`1.
`
`The Examples in the Specification Do Not Show
`Unexpected Results Across the Claimed Ranges
`
`BASF argues that “[a] comparison of the claimed CuCHA catalyst to the
`
`closest prior art” “shows that the properties of the claimed catalyst are quite
`
`unexpected” in that they “perform over a wide range of temperatures when fresh
`
`and aged.” (BASF Opp. at 41.) But, BASF only points to examples 2, 3, and 4.
`
`(See id. at 40.) These examples all have a SAR of 30 and a Cu/Al ratio in the
`
`range of 0.33-0.44. (See Ex. 1101, ’203 patent at 11:42-44, 62-65; 12:12-15; Table
`
`1.) The claims of the ’203 patent, however, extend to materials with SARs of 15-
`
`150 (or 100), and Cu/Al ratios of 0.25-1 (or 0.5). There is simply no evidence in
`
`the record establishing how catalysts spanning large swaths of the claimed
`
`ranges—including between a SAR of 15-30, above a SAR of 30, or above a Cu/Al
`
`ratio of 0.5—would perform. (See Ex. 1119, Tsapatsis Depo. at 103:10-107:16;
`
`Ex. 1118.) Thus, BASF has failed to meet its burden to establish that there is “an
`
`adequate basis to support the conclusion that other embodiments falling within the
`
`-14-
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`

`
`claim will behave in the same manner.” See In re Huai-Hung Kao, 639 F.3d at
`
`1068; In re Greenfield, 571 F.2d 1185, 1189 (C.C.P.A. 1978) (holding that testing
`
`relating to a single compound was insufficient to show unexpected results).
`
`2.
`
`The Other Evidence of Record Also Does Not Establish
`Unexpected Results
`
`BASF then goes on to cite the Moini declaration (Ex. 2011), the Byrne
`
`patent (Ex. 1110), and a 2015 journal article (Ex. 2020). None establish that there
`
`is anything unexpected about the claimed catalyst. The Moini declaration
`
`discusses the testing of very low SAR chabazites subjected to extreme aging
`
`conditions and a higher SAR zeolite that does not include copper. (See Ex. 2011).
`
`Unsurprisingly, none of these samples performed well. But, given that one of
`
`ordinary skill in the art as of 2007 was aware that high SAR zeolites are more
`
`hydrothermally stable and that loading a zeolite with copper can make it active for
`
`SCR (see Ex. 1119, Tsapatsis Depo. at 113:25-114:14, 125:12-126:4.)), these
`
`results would not have been considered out of the ordinary. Next, the Byrne
`
`reference—published in 1990—does note that natural chabazite, which has a SAR
`
`in the range of 2-8 (see id. at 140:1-11), can be poisoned when exposed to very
`
`high levels of sulfates. (See Ex. 1110, Byrne at 4:57-5:17.) But, as of the ’203
`
`patent’s filing date, one of ordinary skill in the art would not have expected diesel
`
`engine exhaust to contain anywhere near the level of sulfates as Byrne’s example
`
`gas stream. (See Ex. 1119, Tsapatsis Depo. at 153:3-13.) Additionally, it was
`
`-15-
`
`

`
`known that higher SAR zeolites were less susceptible to sulfate poisoning. (See
`
`Ex. 1103, Breck at 47:47-53.) Thus, as of 2007, one of skill would have considered
`
`Byrne’s concerns regarding sulfate poisoning to be no longer applicable, and
`
`would not have found it unexpected that a CHA zeolite could be useful as a
`
`catalyst. Next, while the 2015 article states that the ammonia SCR reaction
`
`mechanism is “complicated,” this statement was made eight years after the ’203
`
`patent was filed and provides no insight into the thinking of those of skill as of
`
`2007. (See generally Ex. 2020 at 001.) It does illustrate, however, that the ’203
`
`patent inventors did not solve any such reaction mechanism problems. Indeed, the
`
`SCR reaction mechanism itself is not recited in the patent claims.
`
`Further, the ’203 patent itself also highlights that there is nothing about the
`
`claimed subject matter that gives rise to unexpected results. As noted above, the
`
`specification repeatedly explains that it is the inclusion of “free” copper that
`
`“[u]nexpectedly … impart[s] greater stability in catalysts subject to thermal aging.”
`
`(Ex. 1101, ’203 patent at 5:51-54; see also 2:31-35; 2:65-3:3; 5:33-39.) None of
`
`the claims at issue in this IPR require the inclusion of free copper.
`
`Finally, as reflected in Dr. Schuetze’s declaration (Ex. 1115), the claimed
`
`subject matter actually produces expected results. As expected, as SAR increases,
`
`stability upon aging steadily increases. (See Ex. 1108, Lercher Dec. at ¶¶ 395-
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`405.) As Cu/Al ratio increases, SCR activity steadily increases as expected. (See
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`-16-
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`

`
`id. at ¶¶ 371-394.) While performance does improve somewhat as the claimed
`
`range is entered, mere improvement is not equivalent to unexpected results. See In
`
`re Soni, 54 F.3d 746, 751 (Fed. Cir. 1995); see also Golderma Lab., LP v. Tolmar,
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`Inc., 737 F.3d 731, 739 (Fed. Cir. 2013).
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`C.
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`BASF Has Failed to Come Forward with Sufficient Evidence of
`Commercial Success
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`BASF’s attempts to show commercial success of the claimed subject matter
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`also miss the mark. “Evidence of commercial success … is only significant if
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`there is a nexus between the claimed invention and the commercial success.” See
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`Ormco Corp. v. Align Tech., Inc., 463 F.3d 1299, 1312 (Fed. Cir. 2006). BASF
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`has not drawn the necessary connection between the sales of its CuCHA product
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`and the claims.
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`All of BASF’s evidence is limited to a single CuCHA catalyst with a
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`specific SAR and Cu/Al ratio. (See generally Ex. 2019.) The ’203 patent’s claims,
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`however, cover catalysts spanning broad ranges of SARs and Cu/Al ratios. As
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`explained above, some of the materials within the scope of the claims exhibit
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`“enhanced resistance to thermal aging” and “higher low temperature activity,” but
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`others do not. (See, e.g., Ex. 1101, ’203 Patent at 11:21-26, 55-58; 12:4-8, 19-22.)
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`According to BASF, customers purchase the “claimed CuCHA catalyst” because
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`of its “excellent activity over a wide temperature range and excellent hydrothermal
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`stability.” (BASF Opp. at 43-44; see also Ex. 2019 at ¶ 11.) As a result, BASF
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`-17-
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`

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`has effectively admitted that an unclaimed feature is driving demand making its
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`evidence of “commercial success” irrelevant. See Ormco, 463 F.3d at 1312 (Fed.
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`Cir. 2006).
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` Finally, even if it is assumed that customers are purchasing BASF’s
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`CuCHA product for reasons associated solely with the ’203 patent, evidence of
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`commercial success would still be lacking. BASF cites two declarations. One,
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`signed by Dr. Ahmad Moini, discusses the SAR and Cu/Al ratio of BASF’s
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`CuCHA product. (See Ex. 2019.) Another, signed by Olivia Schmidt, provides
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`information regarding the total global market for SCR catalysts in “Units,” and
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`then states the percentage of this market that is accounted for by both BASF’s
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`CuCHA catalyst and the sales of “BASF licensees” own products. (Ex. 2034 at ¶¶
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`6, 7; see also Ex. 1120, 4/29/16 Depo. of Olivia Schmidt at 14:17-15:6; 16:14-20;
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`21:20-25.) However, there is no evidence in the record that would allow one to
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`determine whether the products sold by these “BASF licensees” fall within the
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`scope of the claims. And, BASF has refused to identify what percentage of the
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`sales discussed in Ms. Schmidt’s declaration are attributable to BASF’s CuCHA
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`catalyst as opposed to the products of the licensees. (See id. at 22:1-24:16.) In
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`view of this, it is impossible to determine from the evidence BASF has presented
`
`what percentage of the global SCR market is actually accounted for by claimed
`
`-18-
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`

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`products. This was a showing that BASF was required and has failed to make. See
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`In re Applied Materials, Inc., 692 F.3d 1289, 1300 (Fed. Cir. 2012).
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`III. BASF Ignores the Teachings of the Prior Art
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`BASF’s brief is also replete with other errors of analysis. Among other
`
`things, BASF considers each prior art reference in isolation, ignores the collective
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`teachings of the prior art, and ignores the knowledge of those of skill in the art as
`
`of 2007.
`
`A. Maeshima in view of Breck
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`Maeshima discloses an ammonia SCR process to reduce nitrogen oxides in
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`an exhaust gas stream. (Ex. 1102, Maeshima, at 1:8-10, 2:4-8.) “[A] crystalline
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`aluminosilicate” zeolite, including a zeolite with the CHA crystal structure, can be
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`used as a catalyst. (Id. at 3:33-35; 4:6-12.) Maeshima further explains that a
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`“metal cation having an activity of reducing nitrogen oxides” like copper should be
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`incorporated into the zeolite at a 60% to 100% ion exchange rate. (Id. at 3:35-38;
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`4:44-54.) This corresponds to a Cu/Al ratio of 0.3-0.5. With the exception of the
`
`claimed SAR, this is all claims 1 and 26 of the ’203 patent require. Breck
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`supplements Maeshima by explaining that increasing the SAR of a zeolite
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`improves its hydrothermal stability and resistance to sulfur poisoning. (Ex. 1103,
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`Breck at 47:44-53.) Breck also discloses zeolites with the CHA crystal structure
`
`and SARs in the range of 8-20. (Id. at 18:3-15.)
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`-19-
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`

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`Despite the clear disclosures of these references, BASF wrongly argues that
`
`one of ordinary skill in the art would have been unable to combine the teachings of
`
`Maeshima and Breck, and would not have a reasonable expectation of success
`
`when doing so.
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`BASF first attempts to differentiate Maeshima and Breck from the ’203
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`patent on the grounds that they disclose not only zeolites with the CHA crystal
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`structure, but also other zeolites with different crystal structures. (See BASF Opp.
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`at 26.) The mere fact, however, that both Maeshima and Breck reference multiple
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`types of zeolites does not serve to negate the fact that they expressly identify
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`chabazite as an acceptable SCR catalyst. See Merck & Co. v. Biocraft Labs., Inc.,
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`874 F.2d 804, 807 (Fed. Cir. 1989) (“[t]hat the [prior art] discloses a multitude of
`
`effective combinations does not render any particular formulation less obvious”);
`
`see also In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004). Moreover, the total
`
`number of zeolites disclosed by Maeshima and Breck is relatively small. And,
`
`when “there are a finite number of identified, predictable solutions, a person of
`
`ordinary skill has good reason to pursue the known options within his or her
`
`technical grasp.” KSR Int’l Co. v. Teleflex Inc., 127 S.Ct. 1727, 1742 (2007).
`
`BASF next argues that one of skill would not have a reasonable expectation
`
`of success when combining Maeshima and Bre