Trials@uspto.gov
`571-272-7822
`
`Paper 54
`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 IPR2015-01124
`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
`
`
`571-272-7822
`
`Paper 54
`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 IPR2015-01124
`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
`
`
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`IPR2015-01124
`Patent 8,404,203 B2
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`I. INTRODUCTION
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`Umicore AG & Co. KG (“Petitioner”) filed a Petition (“Pet.”) to
`
`institute an inter partes review of claims 1–31 of U.S. Patent No. 8,404,203
`
`B2 (“the ’203 patent,” Ex. 1101). Paper 1. On November 2, 2015, we
`
`instituted an inter partes review of claims 1–31 on four grounds of
`
`unpatentability. (Paper 8, “Dec. on Inst.”). On November 16, 2015, BASF
`
`Corporation (“Patent Owner”) filed a Request for Rehearing of our Decision
`
`to institute inter partes review as to claims 17, 18, 21, and 22 (Paper 11),
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`which we granted on December 7, 2015 (Paper 14, “Dec. on Reh’g”). Patent
`
`Owner filed a Patent Owner Response (Paper 26, “PO Resp.”). Petitioner
`
`filed a Reply (Paper 38, “Reply”).
`
`Petitioner supports its Petition with Declarations by Johannes A.
`
`Lercher, Ph.D. (“the Lercher Declaration,” Ex. 1108) and Dr. Frank-Walter
`
`Schütze (“the Schütze Declaration,” Ex. 1115). Patent Owner relies on
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`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 44) certain paragraphs of
`
`the Tsapatsis Declaration, the Moini Declaration, and the Schmidt
`
`Declaration. Patent Owner filed an Opposition (Paper 48), and Petitioner
`
`filed a Reply (Paper 49).
`
`An oral hearing was held on July 28, 2016. A transcript of the hearing
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`is included in the record (Paper 53, “Tr.”).
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`We have jurisdiction under 35 U.S.C. § 6. This Final Written
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`Decision is issued pursuant to 35 U.S.C. § 318(a) and 37 C.F.R. § 42.73.
`
`For the reasons that follow, we determine that Petitioner has shown by a
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`Patent 8,404,203 B2
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`preponderance of the evidence that claims 1–16, 19, 20, and 23–31 are
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`unpatentable.
`
`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 CHA zeolite1 catalysts and their use in exhaust gas
`
`treatment systems. Ex. 1101, 1:19–22. The Specification describes
`
`embodiments where the “catalyst compris[es] a zeolite having the CHA
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`crystal structure and a mole ratio of silica to alumina greater than about 15
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`and an atomic ratio of copper to aluminum exceeding about 0.25.” Id. at
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`2:13–16. The catalyst can be “deposited on a honeycomb substrate,” which
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`can comprise a wall flow substrate or a flow through substrate. Id. at 2:41–
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`45. The ’203 patent also describes embodiments where “at least a portion of
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`the flow through substrate is coated with CuCHA adapted to reduce oxides
`
`of nitrogen contained in a gas stream flowing through the substrate,” and
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`those where “at least a portion of the flow through substrate is coated with Pt
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`and CuCHA adapted to oxidize ammonia in the exhaust gas stream.” Id.
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`at 2:45–51; see also id. at 2:53–58 (describing embodiments where at least a
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`portion of the wall flow substrate “is coated with CuCHA adapted to reduce
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`oxides of nitrogen contained in a gas stream flowing through the substrate,”
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`and those where “at least a portion of the wall flow substrate is coated with
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`Pt and CuCHA adapted to oxidize ammonia in the exhaust gas stream.”).
`
`
`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. 12.
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`3
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`The ’203 patent further describes “a process for the reduction of
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`oxides of nitrogen contained in a gas stream in the presence of oxygen
`
`wherein said process comprises contacting the gas stream with the catalyst
`
`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
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`treatment system described in the ’203 patent. Id. at 4:11–13. Engine 19
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`emits an exhaust stream containing gaseous pollutants and particulate
`
`matter, which is conveyed to a position downstream from engine 19 “where
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`a reductant, i.e., ammonia or an ammonia-precursor, is added to the exhaust
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`stream.” Id. at 21:61–66. Aqueous urea, for example, is an ammonia
`
`precursor that enters mixing station 24 on line 25 and is mixed with air from
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`line 26. Id. at 22:1–3. Valve 23 is used to meter precise amounts of aqueous
`
`urea to be added to the exhaust stream, and then the aqueous urea is
`
`converted to ammonia in the exhaust stream. Id. at 22:3–5. The exhaust
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`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
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`stream is converted through the selective catalytic reduction of NOx with
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`NH3 to N2 and H2O.” Id. at 22:9–12.
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`The ’203 patent also describes an embodiment that “contains a second
`
`substrate 27 interposed between the NH3 injector and the first substrate 12.”
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`Id. at 22:18–21, Fig. 10B. The second substrate is coated with a catalyst
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`composition that can be the same as, or different from, that coated on the
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`first substrate. Id. at 22:21–24. In another embodiment, an oxidation
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`catalyst is included “upstream of the site of ammonia/ammonia precursor
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`injection.” Id. at 22:49–51, Fig. 10C. The “oxidation catalyst is disposed on
`
`a catalyst substrate 34,” and the system can also include first substrate 12
`
`and second substrate 27. Id. at 22:51–54. In this embodiment, the exhaust
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`stream is conveyed first through catalyst substrate 34, “where at least some
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`of the gaseous hydrocarbons, CO and particulate matter are combusted to
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`innocuous components.” Id. at 22:54–57. According to the ’203 patent,
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`“the first substrate 12 could be a catalyzed soot filter” with the CuCHA
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`catalyst disposed thereon, and “the second substrate 27 comprising” a
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`CuCHA catalyst “may be located upstream from catalyst substrate 34.” Id.
`
`at 22:62–67.
`
`Claims 1 and 26 are independent claims. Claims 2–16, 19, 20,
`
`and 23–25 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
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`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. 1101, 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
`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 Description
`
`Date
`
`Exhibit No.
`
`Maeshima US 4,046,888
`
`Sept. 6, 1977 1102
`
`Breck
`
`US 4,503,023
`
`Mar. 5, 1985
`
`1103
`
`Patchett
`
`US App. 2006/0039843 A1
`
`Feb. 23, 2006 1105
`
`1999
`
`1107
`
`Dĕdeček
`
`Siting of the Cu+ ions in
`dehydrated ion exchanged
`synthetic and natural
`chabasites: a Cu+
`photoluminescence study,
`MICROPOROUS AND
`MESOPOROUS MATERIALS 32:
`63–74
`
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`C.
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`Pending Grounds of Unpatentability
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`This inter partes review involves the following grounds of
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`unpatentability:
`
`References
`
`Basis
`
`Claims Challenged
`
`Maeshima and Breck
`
`§ 103(a)
`
`1, 14, 15, 19, 20, 26, 27
`
`Maeshima, Breck and
`Patchett
`
`§ 103(a)
`
`2–13, 16, 23–25, 28–31
`
`Dĕdeček and Breck
`
`§ 103(a)
`
`1, 14, 15, 19, 20, 26, 27
`
`Dĕdeček, Breck, and
`Patchett
`
`Dec. on Reh’g 3–4.
`
`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
`
`[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
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`specification and teachings in the underlying patent’” and “[e]ven under the
`
`broadest reasonable interpretation, the Board’s construction ‘cannot be
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`divorced from the specification and the record evidence.’” Id. (citations
`
`omitted). Only those terms in controversy need to be construed, and only to
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`the extent necessary to resolve the controversy. See Vivid Techs., Inc. v. Am.
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`Sci. & Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir. 1999).
`
`In the Decision on Institution, we determined that the terms in the
`
`challenged claims did not need to be construed expressly, and we see no
`
`reason to modify that determination in light of the record developed at trial.
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`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. 14 n.
`
`2 (citing Ex. 1108 ¶ 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
`
`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 Maeshima and Breck
`
`Petitioner contends that the subject matter of claims 1, 14, 15, 19, 20,
`
`26, and 27 would have been obvious under 35 U.S.C. § 103(a) over the
`
`combination of Maeshima and Breck. Pet. 10–21. Petitioner provides claim
`
`charts and relies on the Lercher and Schütze Declarations in support of its
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`contentions. Id.
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`8
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`To prevail on its patentability challenge, Petitioner must establish
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`facts supporting its challenge by a preponderance of the evidence. 35 U.S.C.
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`§ 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
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`matter pertains. KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 406 (2007). A
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`party that petitions the Board for a determination of obviousness must show
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`that “a skilled artisan would have been motivated to combine the teachings
`
`of the prior art references to achieve the claimed invention, and that the
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`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
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`(Fed. Cir. 2009) (quoting Pfizer, Inc. v. Apotex, Inc., 480 F.3d 1348, 1361
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`(Fed. Cir. 2007)).
`
`1.
`
`Overview of Maeshima
`
`Maeshima is directed to a process of using catalytic reduction to
`
`reduce the concentration of nitrogen oxide in a gaseous mixture. Ex. 1102,
`
`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 the
`
`combustion furnaces in power plants. Id. at 2:9–12.
`
`Maeshima describes a process where the catalyst “is contacted with
`
`ammonia in an amount excessive over the stoichiometric amount necessary
`
`for reduction of nitrogen oxides in an exhaust gas to thereby activate the
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`catalyst” before reducing the amount of ammonia to “a minimum amount
`
`necessary for reduction of the nitrogen oxides to thereby effect the catalytic
`
`reduction.” Id. at 2:15–21. The catalyst can be a crystalline aluminosilicate
`
`having a ratio of silicon oxide to aluminum oxides 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
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`the ion exchange ratio be about 60 to about 100%.” Id. at 4:44–52.
`
`2.
`
`Overview of Breck
`
`Breck is directed to zeolite compositions and methods for their
`
`preparation. Ex. 1103, 1:9–11. In particular, Breck describes “a method for
`
`removing framework aluminum from zeolites having SiO2/Al2O3 molar
`
`ratios of about 3 or greater and substituting therefor silicon from a source
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`extraneous to the starting zeolite.” Id. at 3:24–28. Breck teaches that
`
`synthetic analogs of chabazite are among the “[e]specially preferred zeolite
`
`species” used in the process. Id. at 4:60–63. Breck describes “novel zeolites
`
`denominated as LZ-218 [that] are the more siliceous forms of the prior
`
`known zeolite material chabazite” and have a SiO2/Al2O3 mole ratio “of
`
`greater than 8, preferably in the range of 8 to 20, and the characteristic
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`crystal structure of chabazite.” Id. at 18:3–16. According to Breck, the
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`described zeolites “have increased resistance toward acidic agents such as
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`mineral and organic acids, SO2, SO3, NOx and the like” and “are thus highly
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`useful as selective adsorbents for these materials from, for example, gas
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`streams containing same in contact sulfuric acid plants.” Id. at 47:47–56.
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`3.
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`Analysis
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`Patent Owner, in its Patent Owner Response, does not challenge
`
`Petitioner’s arguments and evidence that Maeshima and Breck disclose or
`
`suggest all of the elements of the challenged claims. On the contrary, Patent
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`Owner acknowledges that at least some of the limitations2 in the claims were
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`known in the prior art, stating, for example, that “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.” PO Resp. 37–38. Thus, with
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`respect to whether Maeshima and Breck 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. 10–21.
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`Based on the complete record, we find that Petitioner has presented
`
`sufficient evidence showing that Maeshima and Breck 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 an atomic ratio of copper to aluminum
`
`of about 0.25 to about 0.50. As Petitioner alleges, “Maeshima states that the
`
`zeolite catalysts employed in its process should have a SAR ratio greater
`
`than 2,” and identifies copper as a metal having an activity for reducing
`
`nitrogen oxides that “can be incorporated into the zeolite via ion exchange.”
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`Pet. 10. Also, Breck teaches chabazite zeolites that have greater SAR ratios
`
`“than the heretofore known zeolite species,” and “provides a specific
`
`example… of a chabazite catalyst with a SAR ratio ‘greater than 8,
`
`preferably in the range of 8 to 20.’” Id. at 11 (quoting Ex. 1103, 1:9–17,
`
`
`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.
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`11
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`18:3–15). We also have reviewed Petitioner’s arguments and evidence for
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`claims 14, 15, 19, 20, 26, and 27 (id. at 13–21), and find that Petitioner has
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`met its burden of establishing that Maeshima and Breck disclose or suggest
`
`all of the limitations of those claims as well. Accordingly, we determine that
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`the preponderance of the evidence supports a finding that Petitioner has
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`demonstrated that all of the limitations of claims 1, 14, 15, 19, 20, 26, and 27
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`are disclosed or suggested by Maeshima and Breck.
`
`Petitioner contends that it would have been obvious “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.”
`
`Pet. 14. Petitioner contends that “Maeshima discloses all the other required
`
`claim limitations” except “zeolites with a SAR within the claimed ranges”
`
`and states that:
`
`Breck discloses that the SAR of a chabazite zeolite can be
`increased to within the claimed range. Further, Maeshima and
`Breck together provide 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.
`Breck’s higher silica zeolites accomplish this.
`
`Id. at 14–15 (internal citations omitted). Petitioner further contends that
`
`Maeshima and Breck are “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),” which “would further motivate [the]
`
`combination.” Id. at 16. Petitioner also contends that a person having
`
`ordinary skill in the art would have a reasonable expectation “that use of
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`Breck’s zeolites in Maeshima’s process would succeed” because Breck
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`“explains that increasing the proportion of silica in its zeolites does not
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`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
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`employed.” Id.
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`Patent Owner argues that Petitioner “fails to explain why a person of
`
`ordinary skill in the art would start with a CuCHA zeolite for the SCR of
`
`NOx based on the teachings of Maeshima and Breck.” PO Resp. 26. Patent
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`Owner argues that Petitioner “presumes” that a person having ordinary skill
`
`in the art “would ignore the teaching in Maeshima of using a large pore size
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`zeolite for the SCR of NOx, and choose to modify a CuCHA zeolite from
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`among the nine zeolites and four preferred metals in Maeshima, and the ten
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`zeolites in Breck.” Id. (internal citations omitted). According to Patent
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`Owner, neither Maeshima nor Breck “provides any motivation to use a
`
`CuCHA zeolite for the NH3 SCR of NOx.” Id.
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`Patent Owner further argues that “Petitioner’s argument that success
`
`would be expected is based on the faulty premise that the de-alumination
`
`technique in Breck” does not detrimentally effect the ability to ion-exchange
`
`the zeolite, or the utility of the catalytic process. PO Resp. 26–27. Patent
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`Owner points to Dr. Tsapatsis’s testimony to support its contention that “de-
`
`aluminating a zeolite (i.e., removing aluminum and replacing with silicon)
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`will detrimentally impact the ability to ion-exchange, and while the removal
`
`of aluminum may improve stability, it comes at the cost of catalytic
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`activity.” Id. at 27 (citing Ex. 2018 ¶ 122). Patent Owner argues that
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`“Breck explicitly teaches that the de-alumination technique is not efficient
`
`for the CHA framework,” and that “there is no example [in Breck] of
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`increasing the SAR by de-alumination from a starting SAR below 8 to an
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`ending SAR above 15.” Id. According to Patent Owner, “combining the
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`teachings of Maeshima and Breck would not predictably enhance a zeolite,
`
`nor has Petitioner shown that a person of ordinary skill in the art would have
`
`a reasonable expectation of success in combining these references.” Id.
`
`at 27.
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`The Supreme Court requires an expansive and flexible approach in
`
`determining whether a patented invention would have been obvious at the
`
`time it was made. See KSR, 550 U.S. at 415 (2007). The existence of a
`
`reason for a person having ordinary skill in the art to modify a prior art
`
`reference is a question of fact. See In re Constr. Equip. Co., 665 F.3d 1254,
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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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`1328–29 (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
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`having ordinary skill in the art would have looked to use a high-SAR
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`CuCHA zeolite for the NH3 SCR of NOx based on the teachings in
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`Maeshima and Breck, and would have had a reasonable expectation of
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`14
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`success in combining the teachings of Maeshima and Breck to arrive at the
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`claimed subject matter. Maeshima teaches (1) that chabazites are suitable
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`catalysts for the NH3 SCR of NOx, (2) that copper is a preferred active metal
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`component having activity to reduce nitrogen oxides, and (3) a generally
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`preferred ion exchange ratio and catalytically effective weight percent
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`amount of the active metal. Ex. 1102, 2:4–9, 4:6–11, 4:48–50, 6:1–4, 6:13-
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`17. Breck describes chabazite zeolites having a SAR up to 20 that can be
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`ion-exchanged, and “have increased resistance toward acidic agents such as
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`mineral and organic acids, SO2, SO3, NOx and the like.” Ex. 1103, 4:56–63,
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`18:3–16, 47:47–53.
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`In light of these disclosures in Maeshima and Breck, the evidence of
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`record suggests that a person having ordinary skill in the art, upon reviewing
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`Maeshima and Breck, would have been motivated to use a CuCHA catalyst
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`for the NH3 SCR of NOx. That Maeshima and Breck disclose other types of
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`zeolites does not diminish the fact that they expressly identify chabazite as
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`an acceptable catalyst. See Allergan, Inc. v. Apotex Inc., 754 F.3d 952, 964
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`(Fed. Cir. 2014) (the “mere disclosure of alternative preferences does not
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`teach a person of ordinary skill away from the broad swath of compounds
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`within the scope of the [claims at issue]”); Medichem, S.A. v. Rolabo, S.L.,
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`437 F.3d 1157, 1166 (Fed. Cir. 2006) (explaining that in an obviousness
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`analysis, “the prior art must be considered as a whole for what it teaches”);
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`Merck & Co. v. Biocraft Labs. Inc., 874 F.2d 804, 807 (Fed. Cir. 1989)
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`(“[I]n a section 103 inquiry, ‘the fact that a specific [embodiment] is taught
`
`to be preferred is not controlling, since all disclosures of the prior art,
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`including unpreferred embodiments, must be considered.’” (quoting In re
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`Lamberti, 545 F.2d 747, 750 (CCPA 1976))).
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`15
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`We are not persuaded by Patent Owner’s argument that “combining
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`the teachings of Maeshima and Breck would not predictably enhance a
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`zeolite,” because the claims do not require enhancing a zeolite. PO Resp.
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`27; see Allergan, Inc. v. Sandoz Inc., 726 F.3d 1286, 1292 (Fed. Cir. 2013)
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`(“the person of ordinary skill need only have a reasonable expectation of
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`success of developing the claimed invention”). Claims 1, 14, 15, 19, 20, 26,
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`and 27 of the ’203 patent only require a CHA zeolite having a SAR value
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`and Cu/Al ratio falling within certain ranges that is used in 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, that, in certain claims, also includes adding a reductant to the gas
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`stream. Moreover, obviousness does not require absolute predictability. In
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`re Lamberti, 545 F.2d at 750. Only a reasonable expectation that a
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`beneficial result will be achieved is necessary to show obviousness. In re
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`Longi, 759 F.2d 887, 897 (Fed. Cir. 1985). Here, the “beneficial result,”
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`according to the claims of the ’203 patent, is a process for reducing NOx
`
`contained in a gas stream using a CHA zeolite with the recited SAR and
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`Cu/Al ratio.
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`Based on our review of the complete record, including Maeshima’s
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`teaching that CHA zeolites are suitable for the NH3 SCR of NOx and
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`Breck’s teaching that its highly siliceous catalysts “are useful in all . . . ion-
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`exchange and catalytic processes in which their less siliceous precursors
`
`have heretofore been suitably employed” (Ex. 1103, 47:44–47), we credit
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`Dr. Lercher’s testimony that “[i]ncreasing the SAR of the zeolite utilized by
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`Maeshima would not detrimentally impact the usefulness of that zeolite in a
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`process for reducing nitrogen oxides.” Ex. 1108 ¶ 164; see id. ¶ 165.
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`16
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`With respect to Patent Owner’s argument that Dr. Lercher “conceded
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`at his deposition that de-aluminating does have a detrimental effect on the
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`ability to ion-exchange and the activity of the zeolite” (PO Resp. 27), we
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`note that Dr. Lercher’s cited testimony, read in its entirety, reveals that he
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`acknowledged that de-alumination “impacts” both activity and stability of
`
`the zeolite, but agreed only that “de-[al]luminating the zeolite can decrease
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`the activity” (Ex. 2027, 94:23–95:25 (emphasis added)). This is consistent
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`with testimony from Dr. Tsapatsis that “the resulting properties of a
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`particular zeolite for a particular reaction after de-alumination are not
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`predictable” because of “the possible detrimental effect on ion-exchange
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`capacity and activity.” Ex. 2018 ¶ 94 (emphasis added). Obviousness,
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`however, “cannot be avoided simply by a showing of some degree of
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`unpredictability in the art so long as there was a reasonable probability of
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`success.” Allergan, 726 F.3d at 1292 (citing Pfizer, Inc. v. Apotex, Inc.,
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`480 F.3d 1348, 1364 (Fed. Cir. 2007)). Here, as Petitioner and Dr. Lercher
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`contend, Breck provides a reasonable probability that increasing the SAR of
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`Maeshima’s CHA zeolite in view of the teachings of Breck would result in a
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`high-SAR zeolite that is “useful in all . . . ion-exchange and catalytic
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`processes in which their less siliceous precursors have heretofore been
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`suitably employed,” which, according to Maeshima, includes NH3 SCR of
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`NOx. See Pet. 16; Ex. 1108 ¶¶ 163–165.
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`We do not agree with Patent Owner’s argument that “there is no
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`evidence that a zeolite having a SAR of 2–6, as disclosed in Maeshima,
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`could be de-aluminated to above 15 using the technique in Breck.”
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`PO Resp. 27–28. In making this argument, Patent Owner ignores the
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`complete disclosure of Maeshima, which teaches the use of chabazites for
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`17
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`the SCR of NOx using zeolites with a SAR values greater than 2. Ex. 1102,
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`3:68–4:11(crystalline aluminosilicates, such as chabazite, “having pore
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`diameters in the range of about 3–15 A and SiO2/Al2O3 molar ratios of
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`above about 2 are preferred”). Breck also teaches CHA zeolites having a
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`SAR greater than 8, and preferably in the range of 8–20. Ex. 1103, 18:3–16.
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`Furthermore, as Petitioner points out (Reply 22), Dr. Tsapatsis testified at
`
`his deposition that as of 2007, a person having ordinary skill in the art would
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`have known how to make synthetic CHA zeolites with SARs of 30–50.
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`Ex. 1119, 110:19–22, 111:15–112:25. Thus, contrary to Patent Owner’s
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`argument, the evidence of record demonstrates that the combined teachings
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`of Maeshima and Breck disclose using a chabazite having a SAR of about 15
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`or greater, which is all the challenged claims require.
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`With respect to Patent Owner’s argument regarding the relatively low
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`efficiency of Breck’s de-alumination method for CHA zeolites
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`(PO Resp. 27–28), we note that Breck indicates that “with chabazite, silicon
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`does replace the removed aluminum in the framework.” Ex. 1103, 38:48–
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`49. Thus, although it may be less efficient, the evidence of record suggests
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`that Breck’s de-alumination method does work for CHA zeolites, and
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`Breck’s preferred SAR for CHA zeolites after de-alumination is 8–20, which
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`overlaps the claimed range.
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`Patent Owner also argues that Maeshima and Breck are not directed to
`
`solving the same problem, because “Maeshima is about the NH3 SCR of
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`NOx in a stationary source” and “makes no reference to the issue of
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`hydrothermal stability,” and “Breck is about a process for de-aluminating a
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`zeolite to increase the SAR, but has no teachings regarding the NH3 SCR of
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`NOx.” PO Resp. 28. Breck, however, teaches that its highly siliceous
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`catalysts “are useful in all . . . ion-exchange and catalytic processes in which
`
`their less siliceous precursors have heretofore been suitably employed”
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`(Ex. 1103, 47:44–47), and, as Petitioner notes, both Maeshima and Breck
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`“discuss many of the same types of catalytic materials” (Reply 23). We
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`therefore agree with Petitioner that Maeshima and Breck are at least directed
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`to the same technical field, zeolite catalysts (including chabazites) and their
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`uses. Ex. 1102, Abstract, 1:55–63; Ex. 1103, 4:50–63, 47:44–47; Ex. 1108
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`¶ 166.
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`Accordingly, after considering Petitioner’s and Patent Owner’s
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`positions, as well as the evidence of record, we determine that Petitioner has
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`shown, by a preponderance of the evidence, that a person having ordinary
`
`skill in the art would have had a reason to combine the teachings of
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`Maeshima and Breck to arrive at the claimed subject matter, and would have
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`had a reasonable expectation of success in doing so.
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`D. Obviousness over Maeshima, Breck, and Patchett
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`Petitioner contends that the subject matter of claims 2–13, 16, 23–25,
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`and 28–31 would have been obvious under 35 U.S.C. § 103(a) over the
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`combination of Maeshima, Breck, and Patchett. Pet. 22–41. Petitioner
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`provides claim charts, and relies on the Lercher and Schütze Declarations in
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`support of its contentions. Id
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