Patent Owner’s Response (IPR2015-01125)
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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`UMICORE AG & CO. KG,
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`Petitioner,
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`v.
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`BASF CORPORATION
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`Patent Owner.
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`IPR2015-01125
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`U.S. Patent 7,601,662
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`PATENT OWNER’S RESPONSE TO PETITION
`FOR INTER PARTES REVIEW OF U.S. PATENT NO. 7,601,662
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`Patent Owner’s Response (IPR2015-01125)
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`Table of Contents
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`I. 
`II. 
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`INTRODUCTION ........................................................................................... 1 
`THE 662 PATENT .......................................................................................... 6 
`A.  Overview of Zeolites ............................................................................. 6 
`B. 
`The Claimed Invention .......................................................................... 9 
`C. 
`The Outstanding Properties of the Claimed CuCHA Catalyst ............ 11 
`D. 
`Claim Construction ............................................................................. 12 
`1. 
`“[C]atalyst” (claim 1) ................................................................ 12 
`2. 
`“[Z]eolite having the CHA crystal structure” (claim 1) ........... 12 
`3. 
`[T]he catalyst effective to promote the reaction of
`ammonia with nitrogen oxides to form nitrogen and H2O
`selectively” (claim 1) ................................................................ 13 
`III.  SCOPE AND CONTENT OF THE PRIOR ART ......................................... 15 
`A. 
`The Known Problem with Metal-Exchanged Zeolites ........................ 16 
`B. 
`Zeolite Frameworks for the SCR of NOx ........................................... 18 
`C. 
`Prior Art in the IPR Grounds ............................................................... 20 
`1. 
`U.S. 4,046,888 to Maeshima (Exhibit 1102) ............................ 20 
`2. 
`Dedecek (Exhibit 1107) ............................................................ 22 
`3. 
`U.S. 4,503,023 to Breck (Exhibit 1103) ................................... 23 
`4. 
`U.S. 2006/0039843 to Patchett (Exhibit 1105) ......................... 25 
`IV.  THE CHALLENGED CLAIMS ARE NOT OBVIOUS IN VIEW OF
`MAESHIMA, DEDECEK, BRECK AND PATCHETT 843 ....................... 26 
`A.  Maeshima in view of Breck (Ground 1 – Claims 1, 2, 5, 6, 30) ......... 28 
`B.  Dedecek in view of Breck (Ground 3 – Claims 1, 2, 5, 6, 30) ............ 30 
`C.  Maeshima and Breck in view of Patchett 843 (Ground 2 –
`Claims 12-24, 32-38) ........................................................................... 32 
`D.  Dedecek and Breck in view of Patchett 843 (Ground 4 – Claims
`12-24, 32-38) ....................................................................................... 36 
`V.  OBJECTIVE INDICIA STRONGLY SUPPORT A FINDING OF
`NONOBVIOUSNESS ................................................................................... 38 
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`Patent Owner’s Response (IPR2015-01125)
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`Skepticism of Experts .......................................................................... 40 
`A. 
`B.  Unexpected Results ............................................................................. 42 
`C. 
`Commercial Success............................................................................ 45 
`VI.  PETITIONER’S CLAIMS OF PREDICTABILITY ARE WITHOUT
`MERIT ........................................................................................................... 47 
`D. 
`Criticality of the Claimed Ranges ....................................................... 49 
`E. 
`Predictability of Increasing Cu/Al Ratio ............................................. 52 
`F. 
`Predictability of Increasing SAR ........................................................ 54 
`VII.  CONCLUSION .............................................................................................. 56 
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`ii
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`Exhibit 1101
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`Exhibit 1102
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`Exhibit 1103
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`Exhibit 1104
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`Exhibit 1105
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`Exhibit 1106
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`Exhibit 1107
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`Exhibit 1108
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`Exhibit 1110
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`Exhibit 1111
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`Exhibit 1112
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`Exhibit 1113
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`Exhibit 1114
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`Exhibit 1115
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`Patent Owner’s Response (IPR2015-01125)
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`Petitioner’s Table of Exhibits
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`U.S. 7,601,662
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`U.S. 4,046,888 to Maeshima
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`U.S. 4,503,023 to Breck
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`U.S. 6,709,644 to Zones
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`U.S. Pat. App. Pub. 2006/0039843 to Patchett
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`U.S. Pat. App. Pub. 2005/0031514 to Patchett
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`Dedecek et al., “Siting of the Cu+ Ions in Dehydrated Ion
`Exchanged Synthetic and Natural Chabasites: a Cu+
`Photoluminescence Study,” Microporous and Mesoporous
`Materials, Vol. 32, pp. 63-74 (1999).
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`Expert Declaration of Dr. Lercher
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`U.S. 4,961,917 to Byrne
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`U.S. 5,516,497 to Speronello
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`Ishihara et al., “Copper Ion-Exchanged SAPO-34 as a
`Thermostable Catalyst for Selective Reduction of NO with
`C3H6,”169 Journal of Catalysis 93-102 (1997)
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`U.S. 4,297,328 to Ritscher
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`Chung, S.Y. et al., “Effect of Si/Al Ratio of Mordenite and
`ZSM-5 Type Zeolite Catalysts on Hydrothermal Stability for
`NO Reduction by Hydrocarbons,” Studies in Surface Science
`and Catalysis, vol. 130, pp. 1511-1516 at 1513 (2000)
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`Declaration of Dr. Frank-Walter Schutze
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`iii
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`Exhibit 2001
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`Exhibit 2002
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`Exhibit 2003
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`Exhibit 2004
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`Exhibit 2005
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`Exhibit 2006
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`Exhibit 2007
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`Exhibit 2008
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`Exhibit 2009
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`Exhibit 2010
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`Exhibit 2011
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`Exhibit 2012
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`Patent Owner’s Response (IPR2015-01125)
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`Patent Owner’s Table of Exhibits
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`Declaration of Stanley Roth in the Inter Partes
`Reexamination of U.S. Patent No. 7,601,662
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`Cavataio, G., et. al., “Enhanced Durability of a Cu/Zeolite
`Based SCR Catalyst.” SAE Int. J. Fuels. Lubr., Vol. 1, Issue
`1 (2008).
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`Declaration of Ahmad Moini in the Inter Partes
`Reexamination of U.S. Patent No. 7,601,662
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`Second Declaration of Pramod Ravindran in the Inter Partes
`Reexamination of U.S. Patent No. 7,601,662
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`Third Party Comments After Patent Owner’s Response After
`ACP in the Inter Partes Reexamination of U.S. Patent No.
`7,601,662
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`USPTO Right of Appeal Notice for Reexamination of U.S.
`Patent No. 7,601,662
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`Request for Inter Partes Reexamination in the proceedings of
`U.S. Patent No. 7,601,662
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`Order Granting/Denying Request for Inter Partes
`Reexamination of U.S. Patent No. 7,601,662
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`Declaration of Stacey I. Zones in the Inter Partes
`Reexamination of U.S. Patent No. 7,601,662
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`Declaration of Gary L. Haller in the Inter Partes
`Reexamination of U.S. Patent No. 7,601,662
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`Second Declaration of Ahmad Moini in the Inter Partes
`Reexamination of U.S. Patent No. 7,601,662
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`Centi, G., et. al., “Nature of Active Species in Copper-Based
`Catalysts and their Chemistry of Transformation of Nitrogen
`Oxides,” Applied Catalysis A: General, Vol. 132, Issue 2
`(1995)
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`Exhibit 2013
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`Exhibit 2014
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`Exhibit 2015
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`Exhibit 2016
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`Exhibit 2017
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`Exhibit 2018
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`Exhibit 2019
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`Exhibit 2020
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`Exhibit 2021
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`Exhibit 2022
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`Exhibit 2023
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`Exhibit 2024
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`Patent Owner’s Response (IPR2015-01125)
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`Second Declaration of Stanley Roth in the Inter Partes
`Reexamination of U.S. Patent No. 7,601,662
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`Kwak, J., et. al., “Excellent Activity and Selectivity of Cu-
`SSZ-13 in the Selective Catalytic Reduction of NOx with
`NH3,” Journal of Catalysis (2010)
`Dedecek, J., et. al., “Effect of Framework Charge Density on
`Catalytic Activity of Copper Loaded Molecular Sieves on
`Chabazite Structure in Nitrogen (II) Oxide Decomposition,”
`Collect. Czech. Chem. Commun., Vol. 65 (2000)
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`Biography of Gary Coad (not used)
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`Blakeman, P., “The role of pore size on thermal stability of
`zeolite supported Cu SCR catalysts,” Catalysis Today (2014)
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`Expert Declaration of Dr. Michael Tsapatsis (February 12,
`2016)
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`Declaration of Dr. Ahmad Moini (February 12, 2016)
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`Gao, F., et. al., “Effects of Si/Al ratio on Cu/SSZ-13 NH3-
`SCR catalysts: Implications for the active species and the
`roles of Bronsted acidity,” Journal of Catalysis (2015)
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`Tolonen, K., “The effect of NO2 on the activity of fresh and
`aged zeolite catalysts in the NH3-SCR reaction,” Catalysis
`Today (2005)
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`Brandenberger, S., “The State of the Art in Selective
`Catalytic Reduction of NOx by Ammonia Using Metal-
`Exchanged Zeolite Catalysts,” Catalysis Reviews (2008)
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`Sjovall, H., “Selective catalytic reduction NOx with NH3
`over Cu-ZSM-5—The effect of changing the gas
`composition,” Applied Catalysis B (2006)
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`Park, J., “Hydrothermal stability of CuZSM5 catalyst in
`reducing NO by NH3 for the urea selective catalytic
`reduction process,” Journal of Catalysis (2006)
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`Patent Owner’s Response (IPR2015-01125)
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`Andersson, L., “Selective Catalytic Reduction of NOx Over
`Acid-Leached Mordenite Catalysts,” Catalysis Today (1989)
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`Gabrielsson, P., “Urea-SCR in automotive applications,”
`Topics in Catalysis, Vol. 28, Nos. 1-4 (April 2004)
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`Deposition of Dr. Johannes Lercher (January 18, 2016)
`(mini-transcript)
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`Request to Dismiss Appeal by Johnson Matthey Inc., filed in
`Reexamination Control No. 95/001,453 (dated February 27,
`2013)
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`Wichertlova, B., “Differences in the structure of copper
`active sites for decomposition and selective reduction of
`nitric oxide with hydrocarbons and ammonia,” Catalysis
`Today (1996)
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`Komatsu, T., “Kinetic Studies of Reduction of Nitric Oxide
`with Ammonia and Cu2+-Exchanged Zeolites,” Journal of
`Catalysis (1994)
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`Sullivan, J., “Conditions in which Cu-ZSM-5 outperforms
`supported vanadia catalysts in SCR of NOx by NH3,”
`Applied Catalysis (1995).
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`Krocher, O., “Investigation of the selective catalytic
`reduction of NO by NH3 on Fe-ZSM5 monolith catalysts,”
`Applied Catalysis (2006)
`Baerlocher, “Atlas of Zeolite Framework Types,” 6th Ed.
`(2007) (excerpts)
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`Declaration of Olivia Schmidt (February 12, 2016)
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`U.S. 4,544,538 to Zones
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`Exhibit 2025
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`Exhibit 2026
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`Exhibit 2027
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`Exhibit 2028
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`Exhibit 2029
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`Exhibit 2030
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`Exhibit 2031
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`Exhibit 2032
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`Exhibit 2033
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`Exhibit 2034
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`Exhibit 2035
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`I.
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`Patent Owner’s Response (IPR2015-01125)
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`INTRODUCTION
`The 662 Patent claims a copper-exchanged aluminosilicate CHA1 zeolite
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`(“CuCHA”) having a silica-to-alumina ratio (“SAR”) between 15 and 150 and
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`copper to aluminum ratio (“Cu/Al ratio”) between 0.25 and 1 that is effective for
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`the selective catalytic reduction of nitrogen oxides in the presence of ammonia
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`(“NH3 SCR of NOx”). Prior to the 662 invention it was well known that the
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`usefulness of metal-exchanged zeolite catalysts was limited due to low
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`hydrothermal stability—meaning the catalytic activity degrades significantly after
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`aging in high temperature aqueous environments. The inventors of the 662 Patent
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`undertook extensive experimentation to solve this problem. The excellent
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`properties of the claimed CuCHA catalyst, including activity over a wide
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`temperature range and enhanced hydrothermal stability, are undisputed and were
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`also unexpected. Patent Owner submits that upon review of the full record, it will
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`be clear that Petitioner has ignored the state of the art, which shows that the
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`technology at issue is complex and unpredictable, and has improperly cherry
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`picked selected portions of select prior art using the patent claims as a roadmap. In
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`1 Zeolites are classified by frameworks (i.e., structure). There are 231 currently
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`identified zeolite frameworks, one of which is the CHA framework. Exhibit 2018
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`(hereinafter “Tsapatsis Decl.”) at ¶ 57.
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`re Fritch, 972 F.2d 1260, 1266 (Fed. Cir. 1992) (“It is impermissible to use the
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`Patent Owner’s Response (IPR2015-01125)
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`claimed invention as an instruction manual or ‘template’ to piece together the
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`teachings of the prior art so that the claimed invention is rendered obvious.”); Novo
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`Nordisk A/S v. Caraco Pharm. Labs., Ltd., 719 F.3d 1346, 1365 (Fed. Cir. 2013)
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`(“In the search for scientific truth ‘[o]ne cannot ... pick and choose among isolated
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`disclosures in the prior art to deprecate the claimed invention;…it is necessary to
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`consider prior art that supports unobviousness of the claimed invention, as well as
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`that which weighs against it.”) (internal citations omitted).
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`Grounds 1 and 3 of the Petition assert the combination of Maeshima (U.S.,
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`4,046,888) (Exhibit 1102) or Dedecek (Exhibit 1107) in view of Breck (U.S.
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`4,503,023) (Exhibit 1103). First, Petitioner’s contention that there would be a
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`reasonable expectation of success in combining these references is based on the
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`conclusion, which is also copied in the Institution Decision (Paper No.9, at p. 10,
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`21), that increasing SAR as taught by Breck “does not have a significant
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`detrimental effect on the ability to ion-exchange zeolites, or the utility of the
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`zeolites in the catalytic process in which lower silica precursors have been
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`employed.” Petition at 47. This conclusion disregards the chemistry of the de-
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`alumination technique disclosed in Breck, and is contradicted by the expert opinion
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`of Dr. Tsapatsis, as well as the deposition testimony of Petitioner’s own expert.
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`Both experts agree that the de-alumination process disclosed in Breck for
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`increasing SAR negatively impacts the ability to ion-exchange zeolites, and while
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`it may improve stability, comes at the cost of catalytic activity. Accordingly, there
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`is a detrimental effect of increasing SAR, and Petitioner simply ignored this effect
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`when asserting that the 662 claims are obvious based on Maeshima or Dedecek in
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`view of Breck.
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`Second, the Petitioner’s combination of Maeshima or Dedecek with Breck
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`simply presumes that a person of ordinary skill in the art would select a CuCHA
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`zeolite for improvement with respect to the NH3 SCR of NOx. Maeshima
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`discloses nine zeolites, and points a person of ordinary skill in the art to large pore
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`size2 zeolites. As admitted by Petitioner’s expert, there is no example of a CuCHA
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`catalyst in Maeshima. Breck discloses ten zeolites, notes that the de-alumination
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`process is inefficient for the CHA framework as compared to other zeolites, and
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`does not include any teachings regarding the NH3 SCR of NOx. Dedecek discloses
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`CuCHA compositions but, as conceded by Petitioner’s expert, it also includes no
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`teachings regarding the NH3 SCR of NOx.
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`While Maeshima, Dedecek and Breck are silent about the properties of a
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`CuCHA zeolite for the SCR of NOx, another prior art patent, U.S. 4,961,917
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`(“Byrne”) (Exhibit 1110), which issued in 1990 and is cited by Petitioner,
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`2 CHA zeolites have a small pore size (~3.8 Angstroms). Tsapatsis Decl. at ¶ 59.
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`explicitly teaches that small pore size zeolites, such as copper-exchanged naturally
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`Patent Owner’s Response (IPR2015-01125)
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`occurring chabazite (which has the CHA structure), should not be used for the SCR
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`of NOx because of susceptibility to sulfate poisoning. Byrne is the only prior art
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`cited by Petitioner that actually discusses the properties of a CHA zeolite for the
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`NH3 SCR of NOx and it teaches away from using a CHA zeolite. Accordingly, the
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`prior art cited in the Petition does not show that the pertinent properties of the
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`CHA zeolite would have led a person of ordinary skill to select that framework for
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`further improvement. See Otsuka Pharmaceutical Co., Ltd. v. Sandoz, Inc., 678
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`F.3d 1280, 1292 (Fed. Cir. 2012) (“With respect to claims of obviousness in
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`patents involving chemical compounds, in determining whether a chemist would
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`have selected a prior art compound as a lead, the analysis is guided by evidence of
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`the compound’s pertinent properties. Such properties may include positive
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`attributes such as activity and potency, adverse effects such as toxicity, and other
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`relevant characteristics in evidence. Absent a reason or motivation based on such
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`prior art evidence, mere structural similarity between a prior art compound and the
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`claimed compound does not inform the lead compound selection. Were it
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`otherwise, the analysis would impermissibly rely upon ex post reasoning.”).
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`Third, the additional combination of Maeshima and Breck or Dedecek and
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`Breck with Patchett 843 (Exhibit 1105) in Grounds 2 and 4 for the dependent
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`claims fares no better. Petitioner argues that one of ordinary skill in the art would
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`have had a reasonable expectation of success inserting a CuCHA zeolite into the
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`Patent Owner’s Response (IPR2015-01125)
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`exhaust treatment system disclosed in Patchett 843. However, Petitioner fails to
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`reconcile this argument with the fact that Patchett 843 teaches that the system
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`should use a large pore size zeolite—i.e., a pore diameter of at least 7 Angstroms.
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`CHA zeolites are small pore size zeolites having a pore diameter half that size
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`(~3.8 Angstroms). Moreover, Patchett 843 incorporates Byrne (Exhibit 1110) and
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`Speronello (Exhibit 1111) for their disclosure of “suitable SCR catalyst
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`compositions.” Speronello requires the use of medium and large pore size zeolites,
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`while Byrne requires the use of large pore size zeolites and also teaches away from
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`using small pore size zeolites, such as a CHA zeolite, because of susceptibility to
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`sulfate poisoning.
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`Finally, Petitioner’s theory of obviousness is in direct conflict with the fact
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`that there was a known and longstanding problem that limited the usefulness of
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`metal-exchanged zeolites for the selective catalytic reduction of nitrogen oxides in
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`the presence of ammonia (“NH3 SCR of NOx”). Metal-exchanged zeolites
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`suffered from low hydrothermal stability—meaning the catalytic activity degrades
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`significantly after aging in high temperature water environments. There is an
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`abundance of literature between 1995 and 2008 (but not found anywhere in the
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`Petition or Petitioner’s expert declaration) describing the problem with metal-
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`exchanged zeolites, but no solution. It is undisputed that the claimed CuCHA
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`catalyst is a solution to this problem. This invention has since led to significant
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`commercial success. Petitioner, now wanting to reap the benefits of Patent
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`Owner’s labors, makes the contrived argument that the claimed invention was
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`nothing more than “routine optimization.” However, Petitioner’s argument that
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`this solution was “routine” based on prior art from the 1970s and 1980s simply
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`cannot be reconciled with the fact that, between 1995 and 2008, numerous
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`researchers acknowledged the existence of a critical problem with metal-
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`exchanged zeolites for the SCR of NOx, but no solution.
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`The hindsight reasoning that is employed throughout the Petition should be
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`rejected. Oracle Corp., et al., v. Crossroads Systems, Inc., IPR2014-01207, Paper
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`78 at 37 (Jan. 29, 2016) (“This type of reasoning—where relevant parts of the
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`reference are disregarded for the proposed combination without sufficient
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`explanation of why a person of ordinary skill would do so—is precisely the type of
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`hindsight reasoning that must be rejected.”). For the reasons stated more fully
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`herein, Patent Owner respectfully requests that the Board confirm the patentability
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`of all challenged claims of the 662 Patent.
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`II. THE 662 PATENT
`A. Overview of Zeolites
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`Zeolites are crystalline framework materials that contain pores of a
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`molecular size. Tsapatsis Decl. at ¶ 56. The technical definition of a zeolite has
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`traditionally only referred to porous aluminosilicate materials. However, over the
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`past twenty years the traditional definition has loosened in the art and now refers to
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`porous molecular sieves, which includes non-aluminosilicate materials such as
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`silico-aluminophosphates. Id.
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`The International Zeolite Association currently recognizes 231 different
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`zeolite framework (i.e., structure) types. Id. at ¶ 57. The 662 Patent claim a
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`zeolite catalyst having the CHA framework. Each zeolite framework has its own
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`structural characteristics, such as the pore size, pore shape, and pore connectivity.
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`See id. at ¶ 58. As shown in the figures below, the structure of a zeolite differs
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`dramatically between zeolite frameworks:
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`CHA
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`FAU
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`There are four basic pore size classifications for zeolites: small, medium, large, and
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`extra-large. For example, the CHA framework is a small pore size zeolite, having
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`a pore diameter of approximately 3.8 Angstroms, while the FAU framework is a
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`large pore size zeolite, having a pore diameter of approximately 7.4 Angstroms.
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`Patent Owner’s Response (IPR2015-01125)
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`Id. at ¶ 59.
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`The crystal structures of aluminosilicate zeolites are built of AlO4 and SiO4
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`tetrahedra that are linked by the sharing of oxygen atoms. Id. at ¶ 60. The
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`tetrahedron containing the aluminum atom is charge balanced by association with a
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`cation, which is most commonly Na+ or K+. Id. It is well known that metals can
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`be introduced into the zeolite by replacing some of the cations in the zeolite with
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`metal cations, such as copper (Cu2+), iron (Fe3+), or any other suitable alternative
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`metal ion. Id. There are a near-limitless number of zeolite compositions that can
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`be made through combination of different framework types and metal-exchange
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`ions. Id.
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`The behavior of a zeolite for a particular process, such as the NH3 SCR of
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`NOx, is complex. Id. at ¶ 61. The fact that one zeolite framework behaves in a
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`certain way for a particular reaction does not mean that other frameworks will
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`perform in the same manner. This is because the behavior of a zeolite for a
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`particular process depends on a variety of factors, including framework type,
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`Bronsted acidity, SAR, the type, concentration, and siting of metal exchange ions,
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`and of course, the nature and conditions of the process itself. Id. The complex
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`nature of zeolite catalysis is exemplified by a publication in the Journal of
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`Catalysis3 in 2015 by authors from the Institute for Integrated Catalysis. This
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`paper examined the claimed CuCHA catalyst and explains that “[t]he mechanism
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`for ammonia selective catalytic reduction (NH3-SCR) over Cu ion exchanged
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`zeolite catalysts is still widely debated.” Exhibit 2020.001.4 Thus, despite the fact
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`that the invention occurred nearly a decade earlier, researchers in the field are still
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`trying explain why the claimed CuCHA catalyst works as well as it does.
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`Tsapatsis Decl. at ¶ 172. The paper further notes that:
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`Overall, the interplay between Cu ion loading, Cu ion mobility and
`reaction temperature makes the entire NH3-SCR reaction network
`quite complicated. Indeed, SCR catalysis is further influenced by
`CHA zeolite Si/Al ratios, and the effects are at least twofold: Si/Al
`ratios affect Cu ion locations as briefly discussed above, as well as
`significantly altering Brønsted acidity and, therefore, NH3 storage of
`the catalysts.
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`Exhibit 2020.002. In sum, the properties of a zeolite catalyst for the NH3-SCR of
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`NOx are unpredictable.
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`B.
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`The Claimed Invention
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`Before the invention of the 662 Patent, it was well known in the art that
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`metal-exchanged zeolite catalysts for the NH3 SCR of NOx exhibited poor
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`3 Petitioner’s expert is the editor-in-chief of the Journal of Catalysis.
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`4 All emphasis herein is added unless otherwise specified.
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`hydrothermal stability—that is they exhibited a significant decline in catalytic
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`activity after exposure to high temperatures (e.g., above 500º C) and water vapor.
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`See Exhibit 1101 at 1:35-38, 1:47-51. In an effort to solve this well known
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`problem, the inventors of the 662 Patent undertook an extensive examination of
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`over 900 zeolites, including twelve different framework types, different silica-to-
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`alumina ratios, different metal ions, and different metal ion concentrations.
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`Exhibit 2003 at ¶¶ 4-5. Ultimately, the inventors of the 662 Patent determined that
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`a copper-exchanged aluminosilicate zeolite with the CHA structure type (i.e.,
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`CuCHA) exhibited excellent NOx conversion over a wide temperature range and
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`excellent hydrothermal stability. Id. The 662 Patent claims precisely this
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`invention.
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`Claim 1 requires a catalyst comprising a CuCHA zeolite with a SAR
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`between about 15 and about 150, and a Cu/Al ratio from about 0.25 to about 1, the
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`catalyst being effective to promote the reaction of ammonia with NOx to form
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`nitrogen and water, selectively (i.e., NH3 SCR of NOx).
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`Dependent claims 2-8 include narrower ranges for the SAR (15-100, 25-40,
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`about 30) and Cu/Al ratio (0.30-0.50, about 0.40). Claim 30 requires an exhaust
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`gas treatment system utilizing a catalyst in accordance with claim 2.
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`Dependent claims 12-14, 32, 39, and 40 require the catalyst to be deposited
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`on a honeycomb substrate, which is either a wall flow filter, flow through
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`substrate, or high efficiency open cell foam filter.
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`Dependent claims 15-20 and 41-46 require that at least a portion of the
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`substrate is coated with CuCHA to reduce oxides of nitrogen, or coated with Pt and
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`CuCHA to oxidize ammonia.
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`Dependent claims 21-24 and 47-50 require that the catalyst is disposed
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`downstream of a diesel engine and an injector that adds a reductant to the exhaust
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`gas stream from the engine.
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`Dependent claims 33-38 are directed to an exhaust gas treatment system
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`including a catalyzed soot filter and a diesel oxidation catalyst that are located
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`upstream of the CuCHA catalyst.
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`C. The Outstanding Properties of the Claimed CuCHA Catalyst
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`Petitioner has not contested that the claimed CuCHA catalyst exhibits
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`excellent activity for the NH3 SCR of NOx at low to high temperatures, and
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`superior hydrothermal stability in comparison to the prior art. The “remarkable”
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`and “superior” properties of the claimed CuCHA catalyst have been confirmed by
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`third party publications.
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`In 2006, BASF supplied to the Ford Motor Company samples of the CuCHA
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`catalyst for evaluation. See Exhibit 2004 at ¶¶ 3-8. Ford published the results of
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`the evaluation in a 2008 journal paper, which describes the CuCHA catalyst as
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`having “remarkable high temperature hydrothermal stability up to 950° C while
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`maintaining low temperature NOx activity.” Exhibit 2002.001; Exhibit 2004 at ¶
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`8. Additionally, in 2010, a paper published in the Journal of Catalysis also
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`confirmed the properties of the claimed CuCHA catalyst. Exhibit 2014. This
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`paper notes that “[i]n the very recent patent literature, Cu2+ ion-exchanged SSZ-13
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`(Cu-SSZ-13) has been reported to exhibit NOx conversions of 90-100% over a
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`wide temperature range in the NH3-SCR process, and its activity exceeded 80%
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`even after extensive high-temperature hydrothermal aging…Our results confirm
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`that the activity and selectivity of the Cu-SSZ-13 catalyst for both NOx SCR with
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`NH3 and NH3 oxidation are superior to those of both Cu-beta and Cu-ZSM-5.”
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`Exhibit 2014.001.
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`D. Claim Construction
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`1.
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`“[C]atalyst” (claim 1)
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`The term “catalyst” is not indefinite. Tsapatsis Decl. at ¶ 51. This term also
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`does not require construction, as the plain words of the claim are clear as to what
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`the catalyst comprises.
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`2.
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`“[Z]eolite having the CHA crystal structure” (claim 1)
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`The 662 Patent defines the CHA structure as “defined by the International
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`Zeolite Association.” Exhibit 1101 at 1:55-57. Chabazite is a naturally occurring
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`zeolite that has the CHA framework, however, there are other zeolites that also
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`have the CHA structure, such as SSZ-13, described in U.S. 4,544,538 (Exhibit
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`2035), and SSZ-62, described in U.S. 6,709,644 (Exhibit 1104). Tsapatsis Decl. at
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`¶ 52. Accordingly, “a zeolite having the CHA crystal structure” means a zeolite
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`having the crystal structure as set forth in the IZA’s data sheet for the CHA
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`framework. Id.
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`3.
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`[T]he catalyst effective to promote the reaction of ammonia
`with nitrogen oxides to form nitrogen and H2O selectively”
`(claim 1)
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`Petitioner claims this phrase “should be interpreted to require only what it
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`states.” Petition at 6. Patent Owner agrees, and therefore, the phrase does not
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`require construction. Petitioner, however, uses the section for claim construction
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`of this phrase to apparently argue that the properties of the claimed invention
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`should not be considered in evaluating the question of obviousness. This is
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`incorrect.
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`While the 662 Patent claims at issue do not specifically recite temperature or
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`hydrothermal aging, the claims nonetheless cover a catalyst composition that
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`exhibits certain enhanced properties. Tsapatsis Decl. at ¶¶ 53-55. These properties
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`must be considered in the evaluation of obviousness of the claimed compound. In
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`re Papesch, 315 F.2d 381, 391 (CCPA 1963) (“From the standpoint of patent law,
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`a compound and all of its properties are inseparable; they are one and the same
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`thing.”); see also Sanofi-Synthelabo v. Apotex, Inc., 550 F.3d 1075, 1086 (Fed. Cir.
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`2008) (“For chemical compounds, the structure of the compound and its properties
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`are inseparable considerations in the obviousness determination.”).
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`Second, Petitioner appears to suggest that the holding in In re Grose means
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`that consideration of a compound’s properties in the obviousness analysis is not
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`applicable to zeolite compositions. See Petition at 8-9. This too would be
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`incorrect. In that case, an applicant appealed the rejection of his patent application
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`when the Examiner concluded that applicant’s zeolite was the same chemically as
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`the prior art (zeolite R) and there was insufficient evidence the zeolites had a
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`different crystal structure. In re Grose, 592 F.2d 1161, 1164 (CCPA. 1979). The
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`Board affirmed the rejection under a chemical theory of structural obviousness that
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`the claimed zeolites are the same chemically, “no unexpected advantages were
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`evident… [and] the different diffraction pattern[] had not been shown to be useful
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`in any manner.” Id. at 1164-65; see In re Mills, 281 F.2d 218, 222 (C.C.P.A. 1960)
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`(“The burden is on the applicant to rebut that presumption by showing that the
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`claimed compound possesses unobvious or unexpected beneficial properties not
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`actually possessed by the prior art homologue.”). The Court of Customs and Patent
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`Appeals affirmed the rejection, but disagreed with the Board’s reasoning. The
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`CCPA concluded, under the specific facts in that case, that since the zeolites were
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`the same in chemical composition and structure, there was no need to require that
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`the applicant show the claimed compound possessed non-obvious or unexpected
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`beneficial properties. Id. at 1167-68. Thus, it cannot be said that In re Grose stands
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`for the proposition that a zeolite’s properties are irrelevant to an obviousness
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`inquiry.
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`III. SCOPE AND CONTENT OF THE PRIOR ART
`As is evident from the literature discussed in this section, the invention
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`claimed in the 662 Patent was plainly not the result of “routine optimization” as
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`Petitioner suggests. The state of the prior art at the time of the 662 invention
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`clearly evidenced a known problem with metal-exchanged zeolite catalysts, as well
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`as substantial efforts to resolve that problem without success. Furthermore, the use
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`of the CHA structure for the SCR of NOx is a key aspect of the 662 invention, yet
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`Petitioner and its expert simply presume that a person of ordinary skill in the art
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`would have selected and modified a CHA zeolite for the NH3 SCR of NOx.
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`However, contrary to Petitioner’s presumption, the prior art literature plainly
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`disfavored CHA zeolites for the NH3 SCR of NOx.
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`The sub-sections below address the general state of the art and provide an
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`overview of the specific prior art references relied on in the grounds asserted by
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`Petitioner.
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`A. The Known Problem with Metal-Exchanged Zeolites
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`It is beyond dispute that there was a known problem with metal-exchanged
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`zeolites, which is described in research papers at least as early as 1995 and
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`continuing up to the time of the inve