UNITED STATES PATENT AND TRADEMARK OFFICE
`__________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________________________________________________________________
`
`UMICORE AG & CO. KG,
`
`Petitioner
`
`
`Patent No. 7,601,662
`Original Issue Date: Oct. 13, 2009
`Reexamination Certificated Issued: June 7, 2013
`Title: COPPER CHA ZEOLITE CATALYSTS
`_________________________________________________________________
`
`PETITION FOR INTER PARTES REVIEW
`OF U.S. PATENT NO. 7,601,662
`PURSUANT TO 35 U.S.C. § 312 and 37 C.F.R. § 42.104
`
`Case No. IPR2015-01125
`__________________________________________________________________
`
`
`
`
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`
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`

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`TABLE OF CONTENTS
`
`I.
`
`Mandatory Notices (37 C.F.R. § 42.8) ..................................................................... 1
`
`A.
`
`B.
`
`C.
`
`Real Party-in-Interest (37 C.F.R. § 42.8(b)(1)) ............................................ 1
`
`Related Matters (37 C.F.R. § 42.8(b)(2)) ...................................................... 1
`
`Counsel (37 C.F.R. § 42.8(b)(3)) ................................................................... 2
`
`II.
`
`Payment of Fees (37 C.F.R. § 42.103) ..................................................................... 2
`
`III. Requirements for IPR (37 C.F.R. § 42.104) ............................................................ 2
`
`A. Grounds for Standing (37 C.F.R. § 42.104(a)) ............................................ 2
`
`B.
`
`C.
`
`Identification of Challenge (37 C.F.R. § 42.104(b)(1)-(3)) and
`Relief Requested (37 C.F.R. § 42.22(a)(1)) .................................................. 3
`
`Claim Construction (37 C.F.R. § 42.104)(b)(3)) ......................................... 4
`
`1.
`
`2.
`
`3.
`
`“Catalyst” (claim 1) .............................................................................. 5
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`“[Z]eolite having the CHA crystal structure” (claim 1) ........................... 5
`
`“[I]on-exchanged copper” and “non-exchanged copper” (claim 9) .............. 6
`
`4.
`
`“[T]he catalyst effective to promote the reaction of ammonia with
`nitrogen oxides to form nitrogen and H20 selectively” (claim 1) ................. 6
`Summary of the ’662 Patent ..................................................................................... 9
`
`IV.
`
`V. How Challenged Claims are Unpatentable (37 C.F.R. § 42.104(b)(4)-(5)) ....... 10
`
`A. Ground 1: Claims 1-11 and 30 are obvious under 35 U.S.C.
`§ 103(a) over Maeshima in view of Breck. ................................................ 10
`
`B.
`
`Ground 2: Claims 12-24 and 32-50 are obvious under 35 U.S.C.
`§ 103(a) over Maeshima and Breck in view of Patchett. ......................... 24
`
`C. Ground 4: Claims 1-11 and 30 are obvious under 35 U.S.C.
`§ 103(a) over Dedecek in view of Breck. ................................................... 42
`
`D. Ground 4: Claims 12-24 and 32-50 are obvious under 35 U.S.C.
`§ 103(a) over Dedecek and Breck in view of Patchett. ............................ 51
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`-i-
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`

`

`VI.
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`PURPORTED SECONDARY CONSIDERATIONS ..................................... 54
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`VII. CONCLUSION ....................................................................................................... 60
`
`
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`-ii-
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`
`LISTING OF EXHIBITS
`
`Exhibit 1101
`
`U.S. Patent No. 7,601,662 to Bull et al.
`
`Exhibit 1102
`
`U.S. Patent No. 4,046,888 to Maeshima et al.
`
`Exhibit 1103
`
`U.S. Patent No. 4,503,023 to Breck et al.
`
`Exhibit 1104
`
`U.S. Patent No. 6,709,644 to Zones et al.
`
`Exhibit 1105
`
`Exhibit 1106
`
`Exhibit 1107
`
`U.S. Patent Application Publication No. US 2006/0039843 to
`Patchett et al.
`
`U.S. Patent Application Publication No. US 2005/0031514 to
`Patchett et al.
`
`Dedecek et al., “Siting of the Cu+ Ions in Dehydrated Ion
`Exchanged Synthetic and Natural Chabasites: a Cu+
`Photoluminescence Study” Microporous and Mesoporous
`Materials, Vol. 32, pp. 63-74 (1999).
`
`Exhibit 1108
`
`Expert Declaration of Johannes A. Lercher, Ph.D
`
`Exhibit 1109
`
`Excerpts from the File History of U.S. Patent No. 7,601,662 to
`Bull et al. and Reexamination No. 95/001,453
`
`Exhibit 1110
`
`U.S. Patent No. 4,961,917 to Byrne
`
`Exhibit 1111
`
`U.S. Patent No. 5,516,497 to Speronello et al.
`
`Exhibit 1112
`
`Ishihara et al., “Copper Ion-Exchanged SAPO-34 as a
`Thermostable Catalyst for Selective Reduction of NO with C3H6,”
`169 Journal of Catalysis 93-102 (1997)
`
`Exhibit 1113
`
`U.S. Patent No. 4,297,328 to Ritscher et al.
`
`Exhibit 1114
`
`Chung, S.Y. et al., “Effect of Si/Al Ratio of Mordenite and ZSM-
`5 Type Zeolite Catalysts on Hydrothermal Stability for NO
`Reduction by Hydrocarbons,” Studies in Surface Science and
`Catalysis, vol. 130, pp. 1511-1516 (2000)
`
`Exhibit 1115
`
`Declaration of Dr. Frank-Walter Schütze
`
`
`
` -iii-
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`

`

`
`
`Pursuant to 35 U.S.C. §§ 311-319 and 37 C.F.R. § 42, real party-in-interest,
`
`Umicore AG & Co. KG (“Umicore” or “Petitioner”) respectfully requests inter partes
`
`review (“IPR”) of claims 1-24, 30, and 32-50 of U.S. 7,601,662 (“the ’662 patent”) to
`
`Ivor Bull et al., which was filed February 27, 2008 and issued October 13, 2009. The
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`’662 patent was subject to a reexamination that commenced on November 16, 2011.
`
`A reexamination certificate issued on June 7, 2013. According to the U.S. Patent and
`
`Trademark Office (“US PTO”) assignment records, the ’662 patent is currently
`
`assigned to BASF Corporation (“Patent Owner”). There is a reasonable likelihood
`
`that Petitioner will prevail with respect to at least one claim challenged in this Petition.
`
`I. Mandatory Notices (37 C.F.R. § 42.8)
`A. Real Party-in-Interest (37 C.F.R. § 42.8(b)(1))
`Petitioner, Umicore, along with parent Umicore S.A. (also referred to as
`
`“Umicore NV”) and its wholly owned subsidiaries Umicore USA Inc., Umicore
`
`Autocat Canada Corp., and Umicore Autocat USA Inc. are the real parties-in-interest.
`
`B. Related Matters (37 C.F.R. § 42.8(b)(2))
`Petitioner is not aware of any existing related matters. Petitioner is
`
`concurrently filing IPR Petition No. IPR2015-01121, which also relates to the ’662
`
`patent. This petition focuses on primary prior art references that disclose
`
`aluminosilicate CHA catalysts with copper to aluminum atomic ratios within the
`
`claimed range, and secondary references that disclose and provide the motivation to
`
`modify the primary reference catalysts to use silica to alumina mole ratios within the
`
` -1-
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`

`

`
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`claimed range. The -1121 petition focuses on the reverse: There, the primary prior art
`
`reference discloses aluminosilicate CHA catalysts (that are specifically intended for use
`
`in internal combustion engines) that have a silica to alumina mole ratio within the
`
`claimed range. The secondary reference discloses and provides a motivation to
`
`modify those catalysts by adding copper, resulting in a copper to aluminum atomic
`
`ratio within the claimed range.
`
`C.
`Counsel (37 C.F.R. § 42.8(b)(3))
`Lead Counsel: Elizabeth Gardner (Reg. No. 36,519)
`
`Back-up Counsel: Richard L. DeLucia (Reg. No. 28,839)
`
`Electronic Service information: egardner@kenyon.com; rdelucia@kenyon.com
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`Post and Delivery: Kenyon & Kenyon LLP, One Broadway, New York, NY 10004
`
`Telephone: 212-425-7200 Facsimile: 212-425-5288
`
`II.
`
`Payment of Fees (37 C.F.R. § 42.103)
`The US PTO is authorized to charge the filing fee and any other fees incurred
`
`by Petitioner to the deposit account of Kenyon & Kenyon LLP: 11-0600.
`
`III. Requirements for IPR (37 C.F.R. § 42.104)
`A. Grounds for Standing (37 C.F.R. § 42.104(a))
`Petitioner certifies that the ’662 patent (Ex. 1101) is available for IPR and that
`
`Petitioner is not barred or estopped from requesting an IPR challenging the patent’s
`
`claims on the grounds identified in this petition.
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` -2-
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`

`
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`B.
`
`Identification of Challenge (37 C.F.R. § 42.104(b)(1)-(3)) and Relief
`Requested (37 C.F.R. § 42.22(a)(1))
`Petitioner requests inter partes review of and challenges claims 1-24, 30, and 32-
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`50 of the ’662 patent, each of which should be found unpatentable and cancelled.
`
`The petition explains in detail why the claims are unpatentable under the relevant
`
`statutory grounds, includes a description of the relevance of the prior art, and
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`identifies where each claim element can be found in the art. Detailed claim charts are
`
`provided, and additional explanation and support is set forth in the Declarations of
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`Dr. Johannes A. Lercher (Ex. 1108) and Dr. Frank-Walter Schütze (Ex. 1115).
`
`Petitioner relies on the following references: (1) U.S. 4,046,888 (“Maeshima,”
`
`Ex. 1102); (2) U.S. 4,503,023 (“Breck,” Ex. 1103); (3) U.S. App. 2006/0039843
`
`(“Patchett,” Ex. 1105); and (4) 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) (“Dedecek,” Ex.
`
`1107).
`
`The ’662 patent makes a facial claim of priority back through U.S. App.
`
`12/038,423 to U.S. Prov. App. 60/891,835, filed Feb. 27, 2007. While Petitioner does
`
`not concede that the ’662 patent is entitled to claim the benefit of either application,
`
`for purposes of this petition it is assumed that the ’662 patent has an effective filing
`
`date of February 27, 2007. Maeshima issued September 6, 1977. Breck issued March
`
`5, 1985. Patchett published on February 23, 2006. Dedecek published in 1999. Thus,
`
` -3-
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`

`

`
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`all of these references are prior art under 35 U.S.C. §102(b).
`
` Petitioner requests cancellation on the following grounds:
`
`Ground 1: Claims 1-11 and 30 are obvious under 35 U.S.C. § 103(a) over
`
`Maeshima in view of Breck.
`
`Ground 2: Claims 12-24 and 32-50 are obvious under 35 U.S.C. § 103(a) over
`
`Maeshima and Breck in further view Patchett.
`
`Ground 3: Claims 1-11 and 30 are obvious under 35 U.S.C. § 103(a) over
`
`Dedecek in view of Breck.
`
`Ground 4: Claims 12-24 and 32-50 are obvious under 35 U.S.C. § 103(a) over
`
`Dedecek and Breck in further view Patchett.
`
`While certain of these prior art references were individually cited during
`
`reexamination of the ’662 patent, none of the above grounds were considered or
`
`assessed by the examiner. Additionally, this petition is accompanied by declarations
`
`discussing the testing of catalytic materials both within and outside of the claimed
`
`ranges. These declarations, which were not available during reexamination, show that
`
`there is nothing unexpected or critical about the claimed ranges.
`
`C.
`Claim Construction (37 C.F.R. § 42.104(b)(3))
`During IPR, claim terms are afforded their “broadest reasonable construction
`
`in light of the specification.” 37 C.F.R. § 42.100(b). Terms are to be given their plain
`
`meaning unless this is inconsistent with the specification. In re Zletz, 893 F.2d 319,
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`321 (Fed. Cir. 1989). Petitioner contends that certain of the terms of the ’662 patent’s
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` -4-
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`

`

`
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`claim are indefinite. This renders the claims invalid under 35 U.S.C. § 112. However,
`
`because indefiniteness cannot be raised herein, Petitioner proposes the following in
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`rendering the broadest reasonable constructions:
`
`“Catalyst” (claim 1)
`
`1.
`All of the ’662 patent’s claims call for a “catalyst.” This claim term is indefinite,
`
`as it is defined as having various metrics and characteristics set forth in the body of
`
`the claim, but it is unclear whether those recited features (such as mole ratios and
`
`atomic ratios) are those of the zeolite alone, or whether they are of the entire catalyst
`
`in its broadest sense, which would include a combination of the zeolite and binder, as
`
`well as the various substrates on which the zeolite is deposited. (Ex. 1101, ’662 patent,
`
`at 2:56-3:2.) Accordingly, because these two possibilities overlap in scope, with
`
`neither being necessarily broader than the other, the broadest reasonable
`
`interpretation of the “catalyst” would embrace both a zeolite alone and the zeolite in
`
`combination with a binder well and substrate on which the zeolite and binder are
`
`deposited. (Ex. 1108, Lercher Dec. at ¶¶ 42-45.)
`
`2.
`
`“[Z]eolite having the CHA crystal structure” (claim 1)
`
`The ’662 patent’s specification provides that the “CHA crystal structure” is
`
`“defined by the International Zeolite Association.” (Ex. 1101, ’662 patent, at 1:55-
`
`57.) According to that definition, zeolites with this particular crystal structure are also
`
`known as “chabazite.” (Ex. 1108, Lercher Dec. at ¶¶ 47-51.)
`
` -5-
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`

`

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`“[I]on-exchanged copper” and “non-exchanged copper” (claim 9)
`
`3.
`All of the ’662 patent’s claims require a catalyst that includes “copper.” Claim
`
`9 requires both “ion-exchanged copper” and “non-exchanged copper.” The term
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`“ion-exchanged copper” is used in accordance with its ordinary meaning to refer to
`
`copper ions that bind, by ion exchange, to exchange sites on the zeolite structure
`
`itself. (Ex. 1001 at 5:31-44; see also Ex. 1108, Lercher Dec. at ¶ 59.) The term “non-
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`exchanged copper” is also used in accordance with its ordinary meaning. According
`
`to the specification, “non-exchanged copper” includes copper that is not bound to the
`
`zeolite structure by ion exchange but is instead present in salt form, for example as
`
`CuSO4, which converts to “free” or “soluble” copper in the form of CuO after
`
`calcination of the zeolite during manufacturing. (Ex. 1101, ’662 patent, at 5:38-46.)
`
`4.
`
`“[T]he catalyst effective to promote the reaction of ammonia with nitrogen
`oxides to form nitrogen and H2O selectively” (claim 1)
` The claims also all require a “catalyst effective to promote the reaction of
`
`ammonia with nitrogen oxides to form nitrogen and H2O selectively.” This claim
`
`limitation should be interpreted to require only what it states, namely, that the catalyst
`
`be able to promote the selective reaction of NH3 with NOx to form N2 and H2O, i.e.,
`
`that it be an SCR catalyst. (Ex. 1108, Lercher Dec. at ¶¶ 53-57.)
`
`Despite the straight-forward language of the claims, Patent Owner may argue
`
`that this limitation should be interpreted narrowly to require very specific
`
`performance characteristics. For instance, during reexamination, the Patent Owner
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` -6-
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`

`
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`suggested that the catalysts of the ’662 patent purportedly have “excellent” catalytic
`
`activity at low temperatures, including below 250°C, and maintain this activity even
`
`after exposure to extreme hydrothermal conditions. (See Ex. 1109, Inter Partes Reex.
`
`No. 95/001,453, 10/12/12 Respondent Brief, at 7-8.) There is nothing in the claims
`
`requiring this type of performance. And, the ’662 patent’s specification does not
`
`define any claim term to require, or disclaim coverage of materials that do not
`
`possess, these performance characteristics. In fact, the specification shows that the
`
`materials of the patent do not need to have excellent or improved activity. For
`
`instance, the catalyst of Example 1 has the CHA crystal structure and the proportions
`
`of silica, alumina, and copper required by claim 1. (Ex. 1101, ’662 patent, 10:48-50,
`
`Table 1.) Yet, this catalyst “did not show enhanced resistance to thermal aging.” (Id.
`
`at 11:20-25.) Accordingly, the claims cannot be properly limited to just catalytic
`
`materials that exhibit excellent activity at certain temperatures, have improved
`
`resistance to hydrothermal aging, or exhibit any of the other characteristics the Patent
`
`Owner has attempted to highlight.
`
`Patent Owner has also erroneously argued that In re Papesch, 315 F.2d 381, 391
`
`(CCPA 1963) somehow requires limiting of the ’662 patent claims. According to the
`
`Patent Owner, allegedly improved catalytic activity over a wide temperature range and
`
`improved resistance to aging are “inseparable” from the claimed catalyst, and
`
`therefore must have a bearing on claim scope. (Ex. 1109, Inter Partes Reex. No.
`
`95/001,453, 12/19/11 Amend., at p. 18.) The patent examiner accepted and relied on
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` -7-
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`

`

`
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`this argument in the allowing the ’662 patent’s claims. (Id., at 5/11/12 Action Closing
`
`Prosecution, at p. 36.) In re Papesh, however, has no applicability to the ’662 patent. In
`
`re Papesch involved claims directed to chemical compounds with structures that were
`
`prima facie obvious in view of a prior art compound. 315 F.2d 381, 382-83 (CCPA
`
`1963). The only difference between the two compounds was that the Papesch
`
`compound had three ethyl groups while the prior art compound had three methyl
`
`groups. Id. at 383. However, the Papesch’s compound’s slightly different structure
`
`produced unexpected anti-inflammatory properties. Id. Because a chemical
`
`compound and its properties are inseparable, the In re Papesch court held that the
`
`difference between the properties of the claimed compound and the prior art
`
`compound was sufficient to demonstrate non-obviousness. Id. at 391. In other
`
`words, In re Papesch relates to the obviousness of a chemical compound with a
`
`particular structure with properties resulting from that structure. For example, a
`
`boiling point of 100°C is an inherent property of H2O.
`
`Unlike In re Papesch, the ’662 patent does not claim a chemical compound with a
`
`set structure and formula. Instead, its claims are directed to “catalysts” comprising a
`
`zeolite with the CHA crystal structure, a mole ratio of silica to alumina falling
`
`anywhere from 15 to 150, and various amounts of copper. Moreover, the claims are
`
`open to the inclusion of additional unrecited elements: the catalyst will be deposited
`
`on a substrate using a binder, and can include both “ion-exchanged” and “free”
`
`copper. In view of this, the “catalysts” of the ’662 patent’s claims do not possess
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` -8-
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`

`

`
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`uniform, inherent properties like H2O or the compound at issue in In re Papesch.
`
`Rather, each catalyst within the scope of the claims will have different properties that
`
`will depend not only upon the structure of the zeolite, but also on the proportions of
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`silica, alumina, and copper, whether the copper is ion-exchanged or free, the type of
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`binder used, other components present, and the configuration of the catalyst on the
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`substrate. Thus, In re Papesch does not apply. “Excellent” low temperature
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`performance, or resistance to hydrothermal aging are not “inherent” properties of all
`
`the claimed catalyst, and the claims cannot be properly interpreted to be limited. See,
`
`e.g., In re Grose, 592 F.2d 1161, 1167-68 (CCPA 1979) (explaining that “a zeolite . . . is a
`
`mixture of various compounds related to each other by a particular crystal structure,”
`
`not a single compound, and that “[n]o reason exists for applying” In re Papesh to such
`
`a material ).
`
`IV. Summary of the ’662 Patent
`The ’662 patent relates to aluminosilicate zeolite catalysts having the CHA
`
`crystal structure. (Ex. 1101, ’662 patent, 1:13-15.) These catalysts incorporate copper
`
`to facilitate their use in gas exhaust treatment systems to reduce nitrogen oxides. (Id.
`
`at 1:15-18.) The ’662 patent acknowledges that both aluminosilicate and copper
`
`promoted zeolites useful as nitrogen oxide reducing catalysts were known in the prior
`
`art. (Id. at 1:30-34.) It was also known that zeolites can be used as part of a “selective
`
`catalytic reduction,” or “SCR,” process to catalyze the selective reaction of ammonia
`
`with nitrogen oxides to form nitrogen and water. (Id. at 8:38-44.)
`
` -9-
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`

`

`
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`The ’662 patent’s claims purport to be an advantage over the acknowledged
`
`prior art due to recited ranges of mole ratios of silica to alumina (the “SAR”) and
`
`atomic ratios of copper to aluminum (the “Cu/Al ratio”). Claim 1, the only
`
`independent claim, requires a SAR from about 15 to about 150 and a Cu/Al ratio
`
`from about 0.25 to about 1. This claim also calls for the catalyst to be “effective to
`
`promote the reaction of ammonia with nitrogen oxides to form nitrogen and H2O
`
`selectively.” The remaining claims are all dependent. Claims 25-29 and 31 were
`
`cancelled during reexamination.
`
`V. How Challenged Claims are Unpatentable (37 C.F.R. § 42.104(b)(4)-(5))
`A. Ground 1: Claims 1-11 and 30 are obvious under 35 U.S.C. §103(a)
`over Maeshima in view of Breck.
`Maeshima relates to zeolite catalysts that can be used in “a process wherein the
`
`concentration of nitrogen oxides is reduced by catalytic reduction.” (Ex. 1102,
`
`Maeshima, at 1:8-10.) This entails “contacting the … gaseous mixture with a catalyst
`
`in the presence of ammonia to reduce the nitrogen oxides selectively.” (Id. at 2:4-8.)
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`Maeshima’s process is meant to be operable at a temperature range of 200 oC to about
`
`500 oC. (Id. at 2:48-49, 3:20-32.) “[A] crystalline aluminosilicate” zeolite can be used
`
`as the catalyst. (Id. at 3:33-35.) “Chabazite” is provided as an example of a “suitable
`
`… zeolite.” (Id. at 4:6-12.) Maeshima states that the zeolite catalysts employed in its
`
`process should have a SAR greater than 2. (Id. at 3:67-4:3.) Further, “at least one
`
`metal cation having an activity of reducing nitrogen oxides” should be incorporated
`
` -10-
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`

`

`
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`into the zeolite via ion exchange. (Id. at 3:35-38.) Copper can be used for this
`
`purpose. (Id. at 4:51-54.) According to Maeshima, zeolite catalysts should be ion
`
`exchanged with the active metal in the amount of 60% to 100%. (Id. at 4:44-54.)
`
`Maeshima also explains that the catalyst should be impregnated with 2% to 10%
`
`active metal by weight. (Id. at 6:1-18.) And, Maeshima includes an example of zeolite
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`catalyst that includes 3% copper by weight. (Id. at 9:10-12.)
`
`Breck sets forth methods for preparing zeolites that “have substantially greater
`
`SiO2/Al2O3 ratios than the heretofore known zeolite species.” (Ex. 1103, Breck at
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`1:9-17.) “[C]habazite” is identified as an “[e]specially preferred zeolite.” (Id. at 4:60-
`
`63.) Breck also provides a specific example, designated “LZ-218,” of a chabazite
`
`catalyst with a SAR “greater than 8, preferable in the range of 8 to 20.” (Id. at 18:3-
`
`15.) “LZ-218” is one of the preferred zeolite catalysts with the CHA crystal structure
`
`set forth in the ’662 patent. (Ex. 1101, ’662 patent, 4:31-33.) Breck explains that its
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`high silica zeolites are very stable, can be ion-exchanged, and can be used in catalytic
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`processes just like lower silica precursors. (Ex. 1103, Breck at 47:44-47.)
`
`Maeshima and Breck together teach all the limitations required by claims 1-11
`
`and 30 of the ’662 patent. Claim 1, the only independent claim, is directed to a
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`“catalyst” that comprises “an aluminosilicate zeolite having the CHA crystal
`
`structure.” Maeshima describes use of chabazite, an aluminosilicate zeolite with the
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`CHA crystal structure. (Ex. 1102, Maeshima, at 3:33-35, 4:6-12.) The claim also
`
`requires that the “catalyst” be “effective to promote the reaction of ammonia with
`
` -11-
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`

`
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`nitrogen oxides to form nitrogen and H2O selectively.” Maeshima expressly provides
`
`that its catalysts can be used in an SCR process to selectively reduce nitrogen oxides in
`
`a gas stream containing oxygen. (See id. at 2:4-8.)
`
`Claim 1 further requires that the zeolite have a SAR “from about 15 to about
`
`150” and a Cu/Al ratio “from about 0.25 to about 1.” Maeshima discusses the use of
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`zeolites with a SAR greater than 2. Breck, however, describes that the SAR of
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`aluminosilicate zeolites can be beneficially increased and provides an example of
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`chabazite with SAR in the range of 8 to 20. (See Ex. 1103, Breck, at 18:3-15.)
`
`Applying Breck’s teachings to Maeshima results in a catalyst with the claimed
`
`proportions of silica, alumina, and copper. Chabazite with a SAR of 20 is within the
`
`claimed range. With respect to the claimed Cu/Al ratio, Maeshima states that when
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`adding copper to zeolite catalysts, the ion-exchange rate should be from 60% to
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`100%. (Ex. 1102, Maeshima, at 4:44-54.) Applying a 100% or 60% ion-exchange
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`rate to Breck’s chabazite catalyst with a SAR of 20 respectively produces material with
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`a Cu/Al ratio of 0.5 or 0.3.1 (See Ex. 1108, Lercher Dec. at ¶¶ 83-87, 94-105.) These
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`ratios are both within the claimed range. The catalysts would also respectively be
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`1 The maximum amount of copper that can be incorporated into chabazite via ion
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`exchange is 1 mole of Cu per mole of Al2O3. (See Ex. 1108, Lercher Dec. at ¶¶ 96-
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`99.) Thus, at a 100% ion-exchange rate, the atomic ratio of Cu/Al will be 0.5. (Id.)
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`4.65% and 2.82% Cu by weight, which is within Maeshima’s acceptable 2% to 10%
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`range. (See Ex. 1102, Maeshima, at 6:1-18) And, if 3% Cu by weight is used (the
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`amount of copper used by Maeshima’s example), the Cu/Al ratio of the resulting
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`material will be 0.32. (See Ex. 1108, Lercher Dec. at ¶¶ 106-107.)
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`Claims 2-8 further limit the claimed catalyst’s SAR to either “from about 15 to
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`about 100,” “from about 25 to about 40,” or “about 30,” and the Cu/Al ratio to
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`either “about 0.30 to about 0.50” or “about 0.40.” Maeshima and Breck’s zeolites will
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`have Cu/Al ratios of 0.3 to 0.5, which matches the claimed ranges. The zeolite will
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`also have a SAR of 20. (See Ex. 1108, Lercher Dec. at ¶¶ 92-105, 110.) One of
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`ordinary skill in the art would not consider zeolites with a SAR of 25 or 30 to provide
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`any non-obvious performance benefit over, a zeolite with a SAR of 20. (Id. at ¶¶ 116-
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`123.) Instead, as evinced by Breck, it was well known in the art that increasing the
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`proportion of silica in a zeolite would enhance stability and resistance to poisoning
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`without compromising utility as a catalyst. (Id. at ¶ 117.) This common knowledge
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`would have motivated those of ordinary skill in the art to use zeolites with ratios even
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`greater than those explicitly set forth in Breck. (Id. at ¶ 118.) The obviousness of the
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`claimed SAR ranges is also confirmed by the ’662 patent. While some examples
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`employ a SAR of 30, zeolites “having a range of silica to alumina ratio between about
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`15 and 256 … exhibit acceptable low temperature NOx conversion” and “are within
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`the scope of the invention.” (Ex. 1101, ’662 patent, at 14:58-63.)
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`Claim 9 requires that the catalyst include “ion-exchanged” and “non-
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`exchanged” “copper.” Maeshima explains that copper can be incorporated into
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`zeolites using customary ion-exchange methods, including immersing the zeolite in an
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`aqueous solution of a copper compound and then “calcin[ing it] … to … convert the
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`metal compound to an oxide acting as an active metal component.” (Ex. 1102,
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`Maeshima, at 6:66-7:13.). One of ordinary skill in the art would understand that this
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`customary method of copper ion exchange will result in the formation of some non-
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`exchanged copper deposits. (See Ex. 1108, Lercher Dec. at ¶¶ 142-144.)
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`Claim 10 requires that “NOx conversion performance of the catalyst at about
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`200 oC after aging is at least 90% of the NOx conversion performance of the catalyst
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`at about 200 oC prior to aging.” Maeshima describes a catalyst and SCR process that
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`is intended to be effective at a “reaction temperature of about 200o to about 500
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`oC….” (Ex. 1102, Maeshima, at 3:20-24.) Further, use of Breck’s high-silica chabazite
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`results in a catalytic material that is “more thermally and hydrothermally stable.” (Ex.
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`1103, Breck, at 47:44-53.) Thus, together these two references disclose a catalyst that
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`is effective below 200 oC and resistant to hydrothermal aging. One of ordinary skill
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`would optimize the catalytic material—and other unclaimed reaction conditions such
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`as reductant amount and timing, temperature, and presence of binders and other
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`gases—such that it retains 90% of its performance after aging is nothing more than
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`routine, obvious design work. (See Ex. 1108, Lercher Dec. at ¶ 149.)
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`Claim 11 requires that the catalyst contain “at least about 2.00 weight percent
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`copper oxide.” Maeshima explains that a catalytic zeolite should include 2% to 10%
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`by weight of an active metal, like copper. (Ex. 1102, Maeshima, at 6:1-18.) Maeshima
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`also explains that the process used to impregnate copper results in the formation of
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`“an oxide acting as an active metal component.” (Ex. 1102, Maeshima, at 6:66-7:14.)
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`Thus, copper can be incorporated into Maeshima’s zeolite in the form of copper
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`oxide. Since the molecular weight of copper oxide is greater than that of copper, and
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`the catalyst of Maeshima includes at least 2% copper, that catalyst will also be more
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`than 2% copper oxide. (See Ex. 1108, Lercher Dec. at ¶ 152.)
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`Claim 30 is directed to an “exhaust gas treatment system” that comprises “an
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`exhaust gas stream containing NOx,” and “a catalyst in accordance with claim 2
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`effective for selective catalytic reduction of at least one component of NOx in the
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`exhaust gas stream.” As explained above, Maeshima and Breck teach the catalyst of
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`claim 2. Further, Maeshima discloses an SCR process for the reduction of nitrogen
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`oxides in a gaseous stream. (Ex. 1102, Maeshima, at 1:8-10; 2:4-8.)
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`One of ordinary skill in the art as of February 20072 would have been
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`
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`2 For purposes of this Petition, one of ordinary skill in the art is assumed to hold at
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`least a Master’s degree in chemistry or a related discipline, and have knowledge of the
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`motivated to combine Maeshima with Breck to arrive, with a reasonable expectation
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`of success, at the subject matter of the claims. (See Ex. 1108, Lercher Dec. at ¶¶ 156-
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`171.) While Maeshima discloses all the other required claim limitations, including the
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`use of aluminosilicate zeolites with the CHA crystal structure and the claimed
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`proportion of copper, it does not expressly state that its zeolites have a SAR in the
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`claimed ranges. (See., e.g., Ex. 1102, Maeshima, at 3:67-4:11.) Breck, however,
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`discloses that the SAR of a chabazite zeolite can be increased to within the claimed
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`range. (Ex. 1103, Breck, 18:3-15.) Maeshima and Breck together provide one of
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`ordinary skill in the art with motivation to increase the SAR of Maeshima’s zeolites.
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`Maeshima explains that an exhaust gas stream “generally contains … sulfur oxides
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`and oxygen in addition to nitrogen oxides” and it is “necessary to perform removal of
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`nitrogen oxides while eliminating influences” of these materials. (Ex. 1102,
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`Maeshima, at 2:34-38.) Breck accomplishes this. According to Breck, increasing the
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`proportion of silica in a zeolite provides it with “increased resistance” to acidic agents
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`like sulfur oxides. (Ex. 1103, Breck, at 47:47-52.) And, as an added benefit, Breck’s
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`higher silica zeolites are also “more thermally and hydrothermally stable.” (Id.) Thus,
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`one of ordinary skill in the art in February 2007 would readily appreciate that Breck’s
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`
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`structure and chemistry of molecular sieves like zeolites, including factors that impact
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`their stability and activity. (See Ex. 1108, Lercher Dec. at ¶ 66.)
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`increased SAR zeolites would be particularly well suited for use with Maeshima. (Ex.
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`1108, Lercher Dec. at ¶¶ 159-163.) This would render Maeshima’s catalysts and the
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`processes in which they are employed more resistant to sulfur oxides in a gas stream,
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`more effective across a broader temperature range, and more resistant to
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`hydrothermal aging. (See id. at ¶ 163.) One of ordinary skill in the art would also
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`understand that it would be beneficial to follow Maeshima’s instruction to use a 60%
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`to 100% ion-exchange rate when adding copper to higher silica zeolites like those set
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`forth in Breck. It was well known that larger amounts of copper ions, including that
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`achieved by approaching up to a 100% ion-exchange rate, enhance the effectiveness
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`of a zeolite when catalyzing the reduction of nitrogen oxides. (See id. at ¶¶ 164-165.)
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`And, Breck’s disclosure is itself consistent with this. According to Breck, the
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`“chemical composition” of LZ-218 “expressed in terms of mole ratios of oxides” is
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`0.9±0.1M2/nO:Al2O3:xSiO2. (Ex. 1103, Breck, at 18:8-11.) If copper is used as cation
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`“M,” a Cu/Al ratio of 0.4 to 0.5 will result. (Ex. 1108, Lercher Dec. at ¶ 109.)
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`One of ordinary skill in the art would also have every reason to believe that
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`increasing the SAR of Maeshima’s zeolites catalysts as instructed by Breck would
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`succeed. In fact, Breck itself explains that increasing the proportion of silica in a
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`zeolite does not