Trials@uspto.gov
`571-272-7822
`
`Paper 8
`Entered: November 2, 2015
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`UMICORE AG & CO. KG,
`Petitioner,
`
`v.
`
`BASF CORPORATION,
`Patent Owner.
`____________
`
`Case IPR2015-01124
`Patent 8,404,203 B2
`____________
`
`
`
`Before CHRISTOPHER L. CRUMBLEY, JO-ANNE M. KOKOSKI, and
`JEFFREY W. ABRAHAM, Administrative Patent Judges.
`
`KOKOSKI, Administrative Patent Judge.
`
`
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`571-272-7822
`
`Paper 8
`Entered: November 2, 2015
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`UMICORE AG & CO. KG,
`Petitioner,
`
`v.
`
`BASF CORPORATION,
`Patent Owner.
`____________
`
`Case IPR2015-01124
`Patent 8,404,203 B2
`____________
`
`
`
`Before CHRISTOPHER L. CRUMBLEY, JO-ANNE M. KOKOSKI, and
`JEFFREY W. ABRAHAM, Administrative Patent Judges.
`
`KOKOSKI, Administrative Patent Judge.
`
`
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`IPR2015-01124
`Patent 8,404,203 B2
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`
`I. INTRODUCTION
`Umicore AG & Co. KG (“Petitioner”) filed a Petition (“Pet.”) to
`institute an inter partes review of claims 1–31 of U.S. Patent No. 8,404,203
`B2 (“the ’203 patent,” Ex. 1101). Paper 1. BASF Corporation (“Patent
`Owner”) filed a Preliminary Response (“Prelim. Resp.”). Paper 7. We have
`jurisdiction under 35 U.S.C. § 314.
`Upon consideration of the Petition, Preliminary Response, and the
`evidence of record, we determine that Petitioner has established a reasonable
`likelihood of prevailing with respect to the unpatentability of claims 1–31 of
`the ’203 patent. Accordingly, we institute an inter partes review of those
`claims.
`A.
`Related Proceedings
`Petitioner indicates that the ’203 patent is the subject of IPR2015-
`01123, also filed by Petitioner. Pet. 1.
`B.
`The ’203 Patent
`The ’203 patent, titled “Process for Reducing Nitrogen Oxides Using
`Copper CHA Zeolite Catalysts,” is directed to methods of manufacturing
`copper 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 crystal structure
`and a mole ratio of silica to alumina greater than about 15 and an atomic
`ratio of copper to aluminum exceeding about 0.25.” Id. at 2:13–16. The
`catalyst can be “deposited on a honeycomb substrate,” which can comprise a
`wall flow substrate or a flow through substrate. Id. at 2:41–45. The ’203
`
`1 The parties agree that CHA crystal structure is defined by the International
`Zeolite Association, and that zeolites having the CHA crystal structure are
`also known as “chabazite.” Pet. 8; Prelim. Resp. 13.
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`patent also describes embodiments where “at least a portion of the flow
`through substrate is coated with CuCHA adapted to reduce oxides of
`nitrogen contained in a gas stream flowing through the substrate,” and those
`where “at least a portion of the flow through substrate is coated with Pt and
`CuCHA adapted to oxidize ammonia in the exhaust gas stream.” Id. at
`2:45–51; see also id. at 2:53–58 (describing embodiments where at least a
`portion of the wall flow substrate “is coated with CuCHA adapted to reduce
`oxides of nitrogen contained in a gas stream flowing through the substrate,”
`and those where “at least a portion of the wall flow substrate is coated with
`Pt and CuCHA adapted to oxidize ammonia in the exhaust gas stream.”).
`The ’203 patent further describes “a process for the reduction of
`oxides of nitrogen contained in a gas stream in the presence of oxygen
`wherein said process comprises contacting the gas stream with the catalyst
`described above.” Id. at 3:8–11. Figure 10A of the ’203 patent is
`reproduced below:
`
`
`Figure 10A is a schematic depiction of an embodiment of the emissions
`treatment system described in the ’203 patent. Id. at 4:11–13. Engine 19
`emits an exhaust stream containing gaseous pollutants and particulate
`matter, which is conveyed to a position downstream from engine 19 “where
`a reductant, i.e., ammonia or an ammonia-precursor, is added to the exhaust
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`stream.” Id. at 21:61–66. Aqueous urea, for example, is an ammonia
`precursor that enters mixing station 24 on line 25 and is mixed with air from
`line 26. Id. at 22:1–3. Valve 23 is used to meter precise amounts of aqueous
`urea to be added to the exhaust stream, and then the aqueous urea is
`converted to ammonia in the exhaust stream. Id. at 22:3–5. The exhaust
`stream containing ammonia is then conveyed to “catalyst substrate 12 (also
`referred to herein including the claims as ‘the first substrate’) containing
`CuCHA in accordance with one or more embodiments.” Id. at 22:6–9. “On
`passing through the first substrate 12, the NOx component of the exhaust
`stream is converted through the selective catalytic reduction of NOx with
`NH3 to N2 and H2O.” Id. at 22:9–12.
`The ’203 patent also describes an embodiment that “contains a second
`substrate 27 interposed between the NH3 injector and the first substrate 12.”
`Id. at 22:18–21, Fig. 10B. The second substrate is coated with a catalyst
`composition that can be the same as, or different from, that coated on the
`first substrate. Id. at 22:21–24. In another embodiment, an oxidation
`catalyst is included “upstream of the site of ammonia/ammonia precursor
`injection.” Id. at 22:49–51, Fig. 10C. The “oxidation catalyst is disposed on
`a catalyst substrate 34,” and the system can also include first substrate 12
`and second substrate 27. Id. at 22:51–54. In this embodiment, the exhaust
`stream is conveyed first through catalyst substrate 34, “where at least some
`of the gaseous hydrocarbons, CO and particulate matter are combusted to
`innocuous components.” Id. at 22:54–57. According to the ’203 patent,
`“the first substrate 12 could be a catalyzed soot filter” with the CuCHA
`catalyst disposed thereon, and “the second substrate 27 comprising” a
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`CuCHA catalyst “may be located upstream from catalyst substrate 34.” Id.
`at 22:62–67.
`C.
`Illustrative Claims
`Petitioner challenges claims 1–31 of the ’203 patent. Claims 1 and 26
`are independent, and read as follows:
`1.
`A process for the reduction of oxides of nitrogen
`contained in a gas stream in the presence of oxygen wherein
`said process comprises contacting the gas stream with a catalyst
`comprising a zeolite having the CHA crystal structure and a
`mole ratio of silica to alumina from about 15 to about 100 and
`an atomic ratio of copper to aluminum from about 0.25 to about
`0.50.
`Ex. 1101, 23:9–15.
`26. A process for the reduction of oxides of nitrogen
`contained in a gas stream in the presence of oxygen wherein
`said process comprises adding a reductant to the gas stream and
`contacting the gas stream containing the reductant with a
`catalyst comprising a zeolite having the CHA crystal structure
`and a mole ratio of silica to alumina from about 15 to about 150
`and an atomic ratio of copper to aluminum from about 0.25 to
`about 1.
`Id. at 24:29–36.
`D.
`The Prior Art
`Petitioner relies on the following prior art references:
`Reference Description
`Date
`Maeshima US 4,046,888
`Sept. 6, 1977
`Breck
`US 4,503,023
`Mar. 5, 1985
`Patchett
`US App. 2006/0039843 A1
`Feb. 23, 2006
`
`Exhibit No.
`1102
`1103
`1105
`
`5
`
`
`
`
`
`Date
`1999
`
`Exhibit No.
`1107
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`Reference Description
`Siting of the Cu+ ions in
`Dedecek
`dehydrated exchanged
`synthetic and natural
`chabasites: a Cu+
`photoluminescence study,
`MICROPOROUS AND
`MESOPOROUS MATERIALS 32:
`63–74
`
`
`E.
`
`The Asserted Grounds of Unpatentability
`Petitioner challenges the patentability of claims 1–31 of
`the ’203 patent on the following grounds:
`References
`Basis
`Maeshima and Breck
`§ 103(a)
`Maeshima, Breck, and
`Patchett
`Dedecek and Breck
`Dedecek, Breck, and
`Patchett
`
`Claims Challenged
`1, 14, 15, 17–22, 26, 27
`
`§ 103(a)
`
`2–13, 16, 23–25, 28–31
`
`§ 103(a)
`
`1, 14, 15, 17–22, 26, 27
`
`§ 103(a)
`
`2–13, 16, 23–25, 28–31
`
`
`
`II. ANALYSIS
`
`A.
`
`Claim Interpretation
`We interpret claims of an unexpired patent using the “broadest
`reasonable construction in light of the specification of the patent in which
`[the claims] appear[].” 37 C.F.R. § 42.100(b). For purposes of this
`Decision, based on the record before us, we determine that none of the claim
`terms requires an explicit construction.
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`B.
`
`Obviousness over Maeshima and Breck
`Petitioner contends that the subject matter of claims 1, 14, 15, 17–22,
`26, and 27 would have been obvious under 35 U.S.C. § 103(a) over the
`combination of Maeshima and Breck. Pet. 10–21. Petitioner provides claim
`charts and relies on Declarations by Johannes A. Lercher, Ph.D. (“the
`Lercher Declaration,” Ex. 1108) and Dr. Frank-Walter Schütze (“the
`Schütze Declaration,” Ex. 1115) in support of its contentions. Id.
`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
`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
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`ion exchange ratio is not particularly critical . . . it is generally preferred that
`the ion exchange ratio be about 60 to about 100%.” Id. at 4:44–52.
`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
`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
`crystal structure of chabazite.” Id. at 18:3–16. According to Breck, the
`described zeolites “have increased resistance toward acidic agents such as
`mineral and organic acids, SO2, SO3, NOx and the like” and “are thus highly
`useful as selective absorbents for these materials from, for example, gas
`streams containing same in contact sulfuric acid plants.” Id. at 47:47–56.
`3.
`Analysis
`Petitioner contends that the combination of Maeshima and Breck
`discloses all of the elements of claim 1. Pet. 10–12, 17–18. Maeshima is
`said to teach crystalline aluminosilicate zeolite catalysts, including
`chabazites, for use in the catalytic reduction of nitrogen oxides in the
`presence of ammonia. Id. at 10. Petitioner contends that the Maeshima
`zeolite catalysts have silica to alumina ratios greater than 2 and “‘at least one
`metal cation having an activity of reducing nitrogen oxides’ can be
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`incorporated into the zeolite via ion exchange.” Id. According to Petitioner,
`Maeshima teaches that the “zeolite catalysts should be ion exchanged with
`an active metal in the amount of 60% to 100%” and that copper is “an active
`metal that can be used for this purpose.” Id. Petitioner further contends that
`“Breck provides an example of [a] chabazite with a SAR [silica to alumina
`ratio] in the range of 8 to 20,” and incorporating “Breck’s chabazite zeolite
`into Maeshima results in a catalyst with the claimed proportions of silica,
`alumina, and copper.” Id. at 12.
`According to Petitioner, 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 a
`person having ordinary skill in the art would have a reasonable expectation
`“that use of Breck’s zeolites in Maeshima’s process would succeed” because
`Breck “explains that increasing the proportion of silica in its zeolites does
`not detrimentally effect the ability to ion-exchange the zeolites, or the utility
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`of the zeolites in catalytic processes in which lower silica precursors have
`been employed.” Id. at 16.
`Patent Owner argues that the Petition does not include “an analysis as
`to why a person of ordinary skill in the art reading Maeshima and Breck
`would have selected a Cu-zeolite having the CHA structure as a lead
`compound with regard to the reduction of oxides of nitrogen contained in a
`gas stream.” Prelim. Resp. 16. Patent Owner argues that “neither Maeshima
`nor Breck include any examples or report any data regarding a Cu-zeolite
`having the CHA structure for the reduction of oxides of nitrogen contained
`in a gas stream.” Id. at 19. Patent Owner further argues that “the failure of
`Maeshima and Breck to report any activity data for a Cu-zeolite having the
`CHA structure is particularly significant because of the existence of other
`prior art disclosing experimental results that [a] Cu-zeolite having the CHA
`structure was inactive for the decomposition of NO.” Id.
`Patent Owner also argues “neither Breck nor Maeshima provide
`adequate motivation to modify the silica to alumina ratio of a CHA zeolite
`with regard to reduction of oxides of nitrogen.” Id. at 23. Patent Owner
`argues that, although “Breck does include a single sentence that the SAR is
`preferably between 8 and 20, the actual example of LZ-218 given in Breck
`begins with a SAR of 8.52 and ends with an SAR of 11.13.” Id. at 24 (citing
`Ex. 1103, 18:3–15, 37:40–38:10). According to Patent Owner, this
`“suggest[s] that a person of ordinary skill in the art would not have had a
`reasonable expectation of success when attempting to increase the SAR of a
`zeolite from between 2 and 6 (the preferred SAR disclosed in Maeshima) to
`above 15.” Id.
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`Based on the current record, we are persuaded that Petitioner’s
`substantive arguments and claim charts (Pet. 10–12, 17–18) and the Lercher
`and Schütze Declarations are sufficient to establish a reasonable likelihood
`that Petitioner would prevail in showing that the subject matter of claim 1
`would have been obvious over the combination of Maeshima and Breck.
`For example, claim 1 recites contacting the gas stream with a catalyst
`comprising a zeolite having the CHA crystal structure. As Petitioner alleges,
`Maeshima describes the use of catalysts, including chabazite catalysts, in the
`selective catalytic reduction of nitrogen oxides in an oxygen-containing gas
`stream. Id. at 11.
`We are not persuaded, on this record, by Patent Owner’s arguments
`that Petitioner did not properly apply the “lead compound” analysis, and that
`“Maeshima and Breck do not teach or suggest to a person of ordinary skill in
`the art that a copper zeolite having the CHA crystal structure warrants
`further investigation.” Prelim. Resp. 16–17. Although Patent Owner
`identifies things that Maeshima and Breck do not disclose, we note that
`Maeshima does teach (1) that chabazites are suitable catalysts for the
`selective catalytic reduction of oxides of nitrogen, (2) that copper is a
`preferred active metal component having activity to reduce nitrogen oxides,
`and (3) a generally preferred ion exchange ratio and catalytically effective
`weight percent amount of the active component. Ex. 1102, 2:4–9, 4:6–11,
`4:48–50, 6:1–4, 6:13-17. We also note that Patent Owner does not contest
`that Breck generally discloses zeolites having an SAR value up to 20.
`Prelim. Resp. 24. Furthermore, the reference Patent Owner contends
`“disclos[es] experimental results that [a] Cu-zeolite having the CHA
`structure was inactive for the decomposition of NO” (id. at 19) refers to a
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`single synthetic CuCHA zeolite, whereas Petitioner points to the ’203 patent,
`Maeshima, and other prior art references that arguably suggest that, in
`general, CuCHA zeolite catalysts were known to be used for selective
`catalytic reduction (“SCR”) of nitrogen oxides in the presence of ammonia
`(Pet. 9–12, 57–58). See Ex. 1101, 1:34–37; Ex. 1102, 1:18–30, 1:61–67,
`Ex. 1107.
`Additionally, we do not find Patent Owner’s argument that Maeshima
`and Breck do not provide a reason to modify the SAR of CHA zeolites for
`use in the selective catalytic reduction of oxides of nitrogen to be persuasive,
`on this record. Petitioner relies on Dr. Lercher’s testimony to support its
`contentions that it would have been obvious to use the higher-silica zeolites
`described in Breck in the process described in Maeshima. Pet. 14–16;
`Ex. 1108 ¶¶ 153–168. For example, Dr. Lercher states that:
`As of February 2007 it was well known that increasing the SAR
`of a zeolite results in improved stability. This is explicitly
`recognized by Breck. In particular, Breck explains that
`“because [its zeolites] are more highly siliceous than their
`precursors they are not only more thermally and hydrothermally
`stable than those prior known materials but also have increased
`resistance toward acidic agents such as mineral and organic
`acids, SO2, SO3, NOx and the like.” In view of this, it would
`have been highly obvious for one of ordinary skill to consider,
`try, and utilize zeolites with SARs greater than 2, including
`zeolites with SARs of 20 as set forth in Breck, with
`Maeshima’s process.
`Ex. 1108 ¶ 157 (internal citation omitted). Dr. Lercher further states that the
`combination of Maeshima and Breck “also amounts to the simple and
`straight forward application of one particular known type of catalytic
`material with known benefits, the higher SAR chabazite zeolites of Breck, to
`a process that calls for the use of just this material, Maeshima’s process for
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`selectively reducing nitrogen oxides.” Id. ¶ 167. We are persuaded, based
`on the current record, that Petitioner has provided sufficient reasoning with
`rational underpinning to support a reason to combine Maeshima and Breck.
`See KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 418 (2007) (citing In re
`Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006) (“[R]ejections on obviousness
`grounds cannot be sustained by mere conclusory statements; instead, there
`must be some articulated reasoning with some rational underpinning to
`support the legal conclusion of obviousness.”)).
`Accordingly, we determine that the record before us establishes a
`reasonable likelihood that Petitioner would prevail in showing that claim 1
`would have been obvious over the combination of Maeshima and Breck.
`We also have considered the arguments and evidence with respect to
`dependent claims 14, 15, and 17–22, and likewise are persuaded, based on
`the current record, that Petitioner has demonstrated a reasonable likelihood
`that it would prevail as to those claims as well.
`Petitioner also contends that the combination of Maeshima and Breck
`discloses all of the limitations of independent claim 26, and provides
`arguments and a claim chart setting forth where each of the limitations can
`be found. Pet. 13, 20–21. For example, Petitioner contends that Maeshima
`discloses “adding a reductant to the gas stream” because “Maeshima
`explains that ‘ammonia’ should be added to a gas stream during the
`treatment process as a ‘reducing agent.’” Id. at 13 (citing Ex. 1102, 2:9–64,
`8:32–52). Based on this record, we are persuaded that Petitioner’s
`discussion of Maeshima and Breck in the Petition, along with the Lercher
`and Schütze Declarations, are sufficient to establish a reasonable likelihood
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`that the subject matter of claim 26, and claim 27 that depends therefrom,
`would have been obvious over the combination of Maeshima and Breck.
`C. Obviousness over Maeshima, Breck, and Patchett
`Petitioner contends that the subject matter of claims 2–13, 16, 23–25,
`and 28–31 would have been obvious under 35 U.S.C. § 103(a) over the
`combination of Maeshima, Breck, and Patchett. Pet. 22–41. Petitioner
`relies on the Lercher and Schütze Declarations in support of its contentions.
`Id.
`
`Overview of Patchett
`1.
`Patchett is directed to an emissions treatment system and method for
`reducing nitrogen oxides in an exhaust stream produced by an internal
`combustion engine. Ex. 1105 ¶ 1. According to Patchett, “Selective
`Catalytic Reduction (SCR) using ammonia (NH3) or an NH3 precursor” is
`“[a] proven NOx abatement technology applied to stationary sources with
`lean exhaust conditions.” Id. ¶ 3. Patchett also states that “SCR is under
`development for mobile applications, with urea (typically present in an
`aqueous solution) as the source of ammonia.” Id.
`The Patchett treatment system includes “an injector for periodically
`metering ammonia or an ammonia precursor into an exhaust stream” and “a
`first substrate with a first SCR catalyst composition” positioned downstream
`from the injector. Id. ¶ 18. The first substrate has an inlet end and an outlet
`end, with the first SCR catalyst composition being “disposed on the wall
`elements from the inlet end toward the outlet end to a length that is less than
`the substrate’s axial length to form an inlet zone.” Id. The first SCR
`catalyst composition can be a copper-exchanged zeolite. Id. ¶ 21. An
`ammonia destruction catalyst composition, preferably containing a platinum
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`component, is disposed on the wall elements of the first substrate from the
`outlet end toward the inlet end, forming an outlet zone. Id. ¶¶ 19–20.
`Patchett states that first substrate can be a honeycomb flow-through
`substrate or a honeycomb wall flow substrate. Id. ¶ 23.
`Patchett also teaches that the described treatment system can have “a
`second substrate interposed and in fluid communication with the injector and
`the first substrate.” Id. ¶ 25. The second substrate can be “selected from the
`group consisting of a honeycomb flow-through substrate, an open-cell foam
`substrate and a honeycomb wall flow substrate,” but preferably “is a
`honeycomb flow-through substrate with a second SCR catalyst
`composition.” Id. The first and second SCR catalyst compositions may be
`the same or different, but are the same in a preferred embodiment. Id.
`Patchett also describes an embodiment with an oxidation catalyst, disposed
`on a catalyst substrate, located upstream of the site of the ammonia/ammonia
`precursor injection. Id. ¶ 64. In this embodiment, the exhaust stream first
`contacts the oxidation catalyst substrate “where at least some of the gaseous
`hydrocarbons, CO and particulate matter are combusted to innocuous
`components” before the exhaust stream is conveyed to the
`ammonia/ammonia precursor injection site and on to the first and second
`catalyst substrates. Id.
`2.
`Analysis
`Petitioner argues that Maeshima and Breck do not “specifically
`mention internal combustion engines, or make explicit reference to various
`other limitations required by claims 2–13, 16, 23–25, and 28–31.” Pet. 24.
`Petitioner argues that Patchett describes these additional limitations. Id. For
`example, Petitioner argues that Patchett teaches a system that is designed to
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`treat diesel engine exhaust (id.), and also teaches the use of a honeycomb
`flow through substrate coated with an SCR catalyst as required by claims 2,
`23, and 29 (id. at 25). Petitioner also argues that Patchett teaches a “flow
`through substrate” with portions “coated with Pt and CuCHA” as required
`by claim 4 because “Patchett’s system employs a ‘first substrate’ that can be
`a flow-through substrate” with an inlet zone coated with an SCR catalyst
`such as a copper-exchanged zeolite, and an outlet zone coated with an
`ammonia destruction catalyst such as platinum. Id. (citing Ex. 1105 ¶¶ 19–
`21, 54). According to Petitioner, Patchett describes using a copper-
`exchanged zeolite to catalyze an SCR process to reduce nitrogen oxides in a
`diesel exhaust engine, and identifies the characteristics of the zeolite that
`should be used. Id. at 28–29. Petitioner argues that the combination of
`Maeshima and Breck teaches catalysts with the characteristics described in
`Patchett, and that “one of ordinary skill in the art would be directed to the
`catalytic material of Maeshima and Breck when attempting to implement
`Patchett’s process.” Id. at 29 (citing Ex. 1108 ¶¶ 246–251). Patent Owner
`does not make any arguments with respect to these claims other than those
`set forth above with respect to the combination of Maeshima and Breck.
`We are persuaded, based on the current record, that Petitioner’s
`arguments and claim charts (Pet. 22–41) and the Lercher and Schütze
`Declarations are sufficient to establish a reasonable likelihood that Petitioner
`would prevail in showing that claims 2–13, 16, 23–25, and 28–31 are
`unpatentable over the combination of Maeshima, Breck, and Patchett.
`D. Obviousness over Dedecek and Breck
`Petitioner contends that the subject matter of claims 1, 14, 15, 17–22,
`26, and 27 would have been obvious under 35 U.S.C. § 103(a) over the
`
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`combination of Dedecek and Breck. Pet. 41–50. Petitioner relies on the
`Lercher and Schütze Declarations in support of its contentions. Id.
`1.
`Overview of Dedecek
`Dedecek describes studies where “Cu+ emission spectra of Cu2+ ion
`exchanged and reduced natural and synthetic CuNa-, CuCa-, CuCs- and
`CuBa-chabasites were used to identify cationic sites of the Cu+ luminescence
`centres in this zeolite.” Ex. 1107, Abs. Dedecek states that zeolites
`containing copper ions have “high catalytic activity in NO and N2O
`decomposition and selective catalytic reduction (SCR) of NO with ammonia
`and hydrocarbons.” Id. at 63. Dedecek describes synthetic chabasite and
`natural sedimentary chabasite having 63.89 wt% SiO2 and 17.48 wt% Al2O3.
`Id. at 64. Dedecek also describes chemical compositions of Cu2+ chabasites
`having ratios of copper to aluminum of 0.28, 0.32, 0.34, and 0.38. Id. at 66,
`Table 3.
`Analysis
`2.
`Petitioner contends that the combination of Dedecek and Breck
`discloses all of the elements of claim 1. Pet. 42–43, 45–47. Petitioner
`contends that Dedecek teaches the use of chabazite zeolites in the SCR
`process, and includes “examples of chabazite zeolites with Cu/Al ratios of
`0.28, 0.32, 0.34, and 0.38, all of which are within the claimed ranges.” Id. at
`42 (internal citation omitted). Petitioner further contends that “Breck
`explains that chabazite with a SAR in the range of 8 to 20 can be prepared.”
`Id. According to Petitioner, “[i]ncorporation of Breck’s chabazite zeolite
`into Dedecek, while maintaining the Cu/Al ratios set forth in Dedecek,
`results in a catalyst with the claimed proportions of silica, alumina, and
`copper.” Id. at 42–43.
`
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`IPR2015-01124
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`
`Petitioner also contends that it would have been obvious “to apply
`Breck’s higher silica zeolites to Dedecek to arrive, with a reasonable
`expectation of success, at the claimed subject matter.” Pet. 43. Petitioner
`contends that “Dedecek discloses all the limitations of the claims except a
`‘mole ratio[s] of silica to alumina’ within the specified range,” and Breck
`“discloses that the SAR of a chabazite zeolite can be increased to 8–20.” Id.
`at 43–44. Petitioner goes on to state:
`According to Breck, higher proportions of silica in a zeolite
`result in “increased resistance” to acidic agents like sulfur
`oxides. Higher silica zeolites are also “more thermally and
`hydrothermally stable.” 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 with Dedecek since
`this would render Dedecek’s zeolites more resistant to sulfur
`oxides and allow them to be used across a broader temperature
`range.
`Id. at 44 (internal citations omitted). Petitioner further contends that a
`person having ordinary skill in the art would reasonably believe that
`increasing the proportion of silica in Dedecek’s zeolites would be successful
`because it would not “have a significant detrimental effect on the ability to
`ion-exchange the zeolites, or the utility of the zeolites in catalytic processes
`in which lower silica precursors have been employed.” Id. at 44–45.
`Patent Owner argues that Petitioner’s contention that Dedecek
`describes Cu-zeolites with high catalytic activity for the reduction of oxides
`of nitrogen was rejected by the Examiner during an inter partes
`reexamination of U.S. Patent No. 7,601,662 (“the ’662 patent”)2 and
`“Petitioner makes no attempt to rebut these findings.” Prelim. Resp. 41. In
`
`
`2 The ’203 patent issued from a divisional of the application that issued as
`the ’662 patent. See Ex. 1101; Prelim. Resp. 4.
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`particular, Patent Owner cites to the Examiner’s statement that “Dedecek
`never tests the catalytic activity of the natural and synthetic Cu-CHA taught
`therein” and that another reference by Dedecek, Dedecek 2, “prepared the
`same synthetic Cu-CHA material as in Dedecek” and “found that the catalyst
`was inactive for NO decomposition.” Id. (citing Ex. 2006, .031). Patent
`Owner also argues that “even though Breck does include one example of a
`zeolite having the CHA structure (and SAR of 11.13),” Breck “does not
`‘examine’ CHA catalysts” and there is “no example or data presented that
`would have motivated one of ordinary skill in the art seeking a catalyst for
`the reduction of oxides of nitrogen to increase the SAR of the CuCHA
`disclosed in Dedecek above 15 based on the disclosure in Breck.” Id. at 45.
` Based on the current record, we are persuaded that Petitioner’s
`substantive arguments and claim charts (Pet. 42–43, 45–47) and the Lercher
`and Schütze Declarations are sufficient to establish a reasonable likelihood
`that Petitioner would prevail in showing that the subject matter of claim 1
`would have been obvious over the combination of Dedecek and Breck. For
`example, claim 1 recites a catalyst comprising a zeolite having the CHA
`crystal structure and an atomic ratio of copper to aluminum from about 0.25
`to about 0.50. As Petitioner alleges, Dedecek describes chabazite zeolites
`having copper to aluminum ratios of 0.28, 0.32, 0.34, and 0.38 “that have
`‘high catalytic activity in NO . . . and N2O decomposition’ and can be used
`in the ‘selective catalytic reduction (SCR) of NO with ammonia.” Pet. 41.
`We are not persuaded, on this record, by Patent Owner’s arguments
`based on the Examiner’s findings in the reexamination of the ’662 patent
`with respect to Dedecek 2 as it relates to the catalytic activity of the z
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