Trials@uspto.gov
`571-272-7822
`
`Paper No. 53
`
` Entered: October 26, 2016
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`UMICORE AG & CO. KG,
`Petitioner,
`
`v.
`
`BASF CORPORATION,
`Patent Owner.
`
`____________
`
`Case IPR2015-01125
`Patent 7,601,662
`____________
`
`
`
`Before CHRISTOPHER L. CRUMBLEY, JO-ANNE M. KOKOSKI, and
`JEFFREY W. ABRAHAM, Administrative Patent Judges.
`
`
`ABRAHAM, Administrative Patent Judge.
`
`
`
`
`
`FINAL WRITTEN DECISION
`35 U.S.C. § 318 and 37 C.F.R. § 42.73
`
`
`571-272-7822
`
`Paper No. 53
`
` Entered: October 26, 2016
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`UMICORE AG & CO. KG,
`Petitioner,
`
`v.
`
`BASF CORPORATION,
`Patent Owner.
`
`____________
`
`Case IPR2015-01125
`Patent 7,601,662
`____________
`
`
`
`Before CHRISTOPHER L. CRUMBLEY, JO-ANNE M. KOKOSKI, and
`JEFFREY W. ABRAHAM, Administrative Patent Judges.
`
`
`ABRAHAM, Administrative Patent Judge.
`
`
`
`
`
`FINAL WRITTEN DECISION
`35 U.S.C. § 318 and 37 C.F.R. § 42.73
`
`
`
`IPR2015-01125
`Patent 7,601,662
`
`
`I. INTRODUCTION
`
`Umicore AG & Co. KG (“Petitioner”) filed a Petition seeking inter
`
`partes review of claims 1–24, 30, and 32–50 of U.S. Patent No. 7,601,662
`
`B2 (Ex. 1101, “the ’662 patent”), as amended by Ex parte Reexamination
`
`Certificate No. US 7,601,662 C1 (“Reexam. Cert.”). Paper 1 (“Pet.”).
`
`BASF Corporation (“Patent Owner “) filed a Preliminary Response to the
`
`Petition. Paper 8. On October 29, 2015, we instituted an inter partes review
`
`of claims 1, 2, 5, 6, 12–24, 30, and 32–38 as discussed below. Paper 9
`
`(“Dec. on Inst.”).
`
`After institution, Patent Owner filed a Patent Owner Response (Paper
`
`25, “PO Resp.”), and Petitioner filed a Reply (Paper 37, “Reply”). An oral
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`hearing was held on July 28, 2016, and a transcript of the hearing has been
`
`entered into the record of the proceeding as Paper 52 (“Tr.”).
`
`We have jurisdiction under 35 U.S.C. § 6. This Final Written
`
`Decision is issued pursuant to 35 U.S.C. § 318(a) and 37 C.F.R. § 42.73.
`
`For the reasons that follow, we determine that Petitioner has shown by a
`
`preponderance of the evidence that claims 1, 2, 5, 6, 12–24, 30, and 32–38
`
`are unpatentable.
`
`II. BACKGROUND
`
`A. Related Proceedings
`
`Petitioner identifies pending inter partes review Case IPR2015-01121,
`
`also pertaining to the ’662 patent. Pet. 1. In addition to IPR2015-01121,
`
`Patent Owner identifies pending inter partes review Cases IPR2015-01123
`
`and IPR2015-01124, pertaining to U.S. Patent No. 8,404,203 B2, which
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`issued from a divisional of the application that issued as the ’662 patent.
`
`Paper 6, 2.
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`2
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`Patent 7,601,662
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`B. The ’662 Patent
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`The ’662 patent states that “synthetic and natural Zeolites and their
`
`use in promoting certain reactions, including the selective reduction of
`
`nitrogen oxides with ammonia in the presence of oxygen, are well known in
`
`the art,” and that “[m]etal-promoted Zeolite catalysts including, among
`
`others, iron-promoted and copper-promoted Zeolite catalysts, for the
`
`selective catalytic reduction of nitrogen oxides with ammonia are known.”
`
`Ex. 1101, 1:26–33.
`
`The ’662 patent discloses catalysts that comprise zeolites having a
`
`CHA crystal structure and include copper, which may be part of an exhaust
`
`gas treatment system. Id. at 1:55–61. According to the ’662 patent, “novel
`
`copper chabazite catalysts are provided which exhibit improved NH3 SCR of
`
`NOx.” Id. at 1:64–66. Several embodiments described in the ’662 patent
`
`depict a catalyst comprising a zeolite having the CHA crystal structure, a
`
`specific mole ratio of silica to alumina (e.g., greater than about 15), and a
`
`specific atomic ratio of copper to aluminum (e.g., greater than about 0.25).
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`Id. at 4:24–29.1 The ’662 patent teaches that the catalyst compositions can
`
`be disposed on a substrate, which usually comprises a honeycomb structure.
`
`Id. at 6:55–59. According to the Specification, the CuCHA zeolite catalysts
`
`of the ’662 patent are said to have increased hydrothermal stability (i.e.,
`
`greater stability when subjected to thermal aging) as compared to other Cu-
`
`zeolite catalysts. Id. at 5:1–16, 5:49–52.
`
`
`1 For purposes of this decision, we follow the parties’ convention of using
`“SAR” to refer to the mole ratio of silica to alumina, and “Cu/Al ratio” to
`refer to the atomic ratio of copper to aluminum required in the claims.
`
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`Claim 1 is the only independent claim challenged, and is reproduced
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`C. Illustrative Claim
`
`below:
`
`1. A catalyst comprising:
`
`an aluminosilicate zeolite having the CHA crystal structure
`and a mole ratio of silica to alumina from about 15 to about 150
`and an atomic ratio of copper to aluminum from about 0.25 to
`about 1, the catalyst effective to promote the reaction of ammonia
`with nitrogen oxides to form nitrogen and H2O selectively.
`
`Ex. 1101, Reexam. Cert. 1:56–2:3 (annotations and emphasis omitted).
`
`D. References
`
`Petitioner relies on the following references:
`
`Maeshima et al., US 4,046,888, issued September 6, 1977
`(“Maeshima,” Ex. 1102).
`
`Breck, deceased et al., US 4,503,023, issued March 5, 1985
`(“Breck,” Ex. 1103).
`
`Patchett et al., US 2006/0039843 A1, published February 23,
`2006 (“Patchett,” Ex. 1105).
`
`Dedecek, et al., Siting of the Cu+ ions in dehydrated ion
`exchanged synthetic and natural chabasites: a Cu+
`photoluminescence study, 32 MICROPOROUS AND MESOPOROUS
`MATERIALS 63, (1999) (“Dedecek,” Ex. 1107).
`
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`E. Reviewed Grounds of Patentability
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`
`
`The Board instituted trial to review the patentability of the challenged
`
`claims on the following grounds:
`
`References
`
`Maeshima and Breck
`
`Maeshima, Breck, and
`Patchett
`
`Dedecek and Breck
`
`Dedecek, Breck, and
`Patchett
`
`
`Statutory
`Basis
`§ 103
`
`§ 103
`
`§ 103
`
`§ 103
`
`Claims Challenged
`
`1, 2, 5, 6, and 30
`
`12–24 and 32–38
`
`1, 2, 5, 6, and 30
`
`12–24 and 32–38
`
`F. Level of Ordinary Skill in the Art
`
`Petitioner’s declarant, Dr. Lercher, testifies that a person of ordinary
`
`skill in the art “would have at least a Master’s degree in chemistry or a
`
`related discipline, and have knowledge of the structure and chemistry of
`
`molecular sieves like zeolites, including factors that impact their stability
`
`and activity.” Ex. 1108 (“Lercher Declaration) ¶ 66. Patent Owner’s
`
`declarant, Dr. Tsapatsis, stated that he agrees with the level of ordinary skill
`
`in the art advanced by Dr. Lercher. Ex. 2018 (“Tsapatsis Declaration”) ¶ 22.
`
`We credit the testimony provided by the declarants for both parties
`
`and hold that one of skill in the art would possess at least a Master’s degree
`
`in chemistry or a related discipline, and have knowledge of the structure and
`
`chemistry of molecular sieves like zeolites, including factors that impact
`
`their stability and activity. This level of ordinary skill is reflected not only
`
`by the information presented by the parties, but also by the prior art of
`
`record. Okajima v. Bourdeau, 261 F.3d 1350, 1355 (Fed. Cir. 2001) (the
`
`prior art itself can reflect the appropriate level of ordinary skill in the art).
`
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`III. ANALYSIS
`
`A. Claim Construction
`
`In an inter partes review, claim terms in an unexpired patent are
`
`interpreted according to their broadest reasonable construction in light of the
`
`specification of the patent in which they appear. 37 C.F.R. § 42.100(b); see
`
`Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2131, 2144–46 (2016)
`
`(upholding the use of the broadest reasonable interpretation standard). We
`
`determine that no express claim construction is required for purposes of this
`
`Decision. See Vivid Techs., Inc. v. Am. Sci. & Eng’g, Inc., 200 F.3d 795,
`
`803 (Fed. Cir. 1999) (“[O]nly those terms need be construed that are in
`
`controversy, and only to the extent necessary to resolve the controversy.”).
`
`B. References
`
`1. Maeshima
`
`Maeshima “relates to a method for selectively reducing nitrogen
`
`oxides contained in exhaust gases from stationary sources, such as flue gas
`
`from the combustion furnace of power plants, by using ammonia as a
`
`reducing agent.” Ex. 1102, 2:9–13. According to Maeshima, this is
`
`accomplished by contacting a gaseous exhaust mixture with a catalyst in the
`
`presence of ammonia. Id. at 2:6–8. Maeshima teaches that the catalyst can
`
`be a crystalline aluminosilicate or a “product obtained by exchanging an
`
`alkali metal ion in a crystalline alumino-silicate with at least one metal
`
`cation having an activity of reducing nitrogen oxides.” Id. at 3:33–38.
`
`Maeshima lists “Chabazite,” among others, as a suitable natural zeolite to be
`
`used in the described method. Id. at 4:6–12. Maeshima includes copper in
`
`its list of the most preferred metal components that can be incorporated into
`
`the zeolite catalysts (id. at 6:4, 4:51–52), noting that “[t]he ion exchange
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`ratio is not particularly critical, but it is generally preferred that the ion
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`exchange ratio be about 60 to about 100%” (id. at 4:44–50), and also
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`disclosing that the amount of the active metal component in the catalyst may
`
`be a “catalytically effective amount,” ranging from about 1 to about 20% by
`
`weight, preferably about 2 to about 10 % by weight (id. at 6:13–17).
`
`2. Breck
`
`Breck relates to “zeolite compositions topologically related to prior
`
`known zeolites but which have substantially greater SiO2/Al2O3 molar
`
`ratios than the heretofore known zeolite species.” Ex. 1103, 1:11–14. Breck
`
`states that naturally-occurring or synthetic zeolites are well-known in the art
`
`and can be used as starting materials for the claimed process, and identifies
`
`chabazite as one of several especially preferred zeolite species. Id. at 4:50–
`
`63. Breck teaches that the stability of zeolites is partly a function of the
`
`SiO2/Al2O3 ratio (id. at 3:9–10), and that:
`
`[t]he novel zeolite compositions of the present invention are
`useful in all adsorption, ion-exchange and catalytic processes in
`which their less siliceous precursors have heretofore been
`suitably employed. In general, because they are more highly
`siliceous than their precursors they are not only more thermally
`and hydrothermally stable than those prior known materials but
`also have increased resistance toward acidic agents such as
`mineral and organic acids, SO2, SO3, NOx and the like.
`
`Id. at 47:44–53. Breck discloses examples of “more siliceous forms of the
`
`prior known zeolite mineral chabazite,” and describes these as having SAR
`
`values between 8 and 20. Id. at 18:3–15.
`
`3. Patchett
`
`Patchett relates to an emissions treatment system and method for
`
`reducing nitrogen oxides emissions in the exhaust stream produced from an
`
`internal combustion engine. Ex. 1105 ¶ 1. Patchett teaches that “[a] proven
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`NOx abatement technology applied to stationary sources with lean exhaust
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`conditions is Selective Catalytic Reduction (SCR) using ammonia (NH3) or
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`an NH3 precursor.” Id. ¶ 3.
`
`Patchett discloses one embodiment of an emissions treatment system
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`that includes an injector for inserting ammonia into an exhaust stream
`
`upstream from a first substrate with an SCR catalyst composition and an
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`NH3 destruction catalyst composition (comprising a platinum group metal
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`component) disposed thereon. Id. ¶¶ 18–19. Patchett teaches that the SCR
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`catalyst composition can contain a copper-exchanged zeolite and the
`
`substrate may be a honeycomb flow-through substrate. Id. ¶¶ 21, 23.
`
`According to Patchett, a copper-exchanged zeolite “typically [has] an
`
`effective SCR catalyst operating temperature range of from about 150 to 550
`
`oC.” Id. at ¶ 69.
`
`4. Dedecek
`
`Dedecek generally relates to a study of the siting and coordination of
`
`Cu+ ions in zeolites.2 In the section titled “Introduction,” Dedecek discloses
`
`that “[z]eolites containing Cu ions attract attention owing to their high
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`catalytic activity in NO and N2O decomposition and selective catalytic
`
`reduction (SCR) of NO with ammonia and hydrocarbons.” Ex. 1107, 63
`
`(internal citations omitted). Dedecek refers to previous studies conducted on
`
`aluminum-rich chabazites, and describes experiments conducted on
`
`chabazite materials having Cu concentrations ranging from 0.20 to 7.60 wt
`
`
`2 According to Dr. Lercher, “[s]iting of copper ions” means locating
`“[w]here in a zeolite lattice the copper ions are stabilized.” Ex. 2027,
`77:12–17.
`
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`%, including examples of chabazites having Cu/Al ratios ranging from 0.01
`
`to 0.38. Id. at 64–66.
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`C. Analysis of Grounds of Unpatentability
`
`1. Claims 1, 2, 5, 6, and 30 over Maeshima and Breck
`
`As noted above, independent claim 1 recites a catalyst having the
`
`CHA crystal structure and specific SAR (15–150) and Cu/Al values, which
`
`is effective to promote the reaction of ammonia with nitrogen oxides.
`
`Dependent claims 2, 5, and 6 recite narrowed SAR (15–100) and Cu/Al
`
`values, and dependent claim 30 recites an exhaust gas treatment system that
`
`comprises the catalyst of claim 2. Petitioner argues that the subject matter of
`
`claims 1, 2, 5, 6, and 30 would have been obvious over Maeshima in view of
`
`Breck.
`
`Petitioner provides detailed explanations and the declaration of Dr.
`
`Lercher to show how the references disclose or suggest each claim
`
`limitation. Pet. 10–23. In our Decision on Institution, we determined that
`
`Petitioner had made a threshold showing that the prior art discloses or
`
`suggests all limitations of claims 1, 2, 5, 6, and 30 sufficient for us to
`
`conclude that there was a reasonable likelihood that Petitioner would prevail
`
`in showing that the subject matter of these claims would have been obvious
`
`in view of Maeshima and Breck. Dec. on Inst. 8–18.
`
`In its Response, Patent Owner does not challenge Petitioner’s
`
`arguments and evidence demonstrating that the prior art discloses or
`
`suggests all limitations of the challenged claims. To the contrary, Patent
`
`Owner acknowledges that the limitations in the claims were well-known in
`
`the art. E.g., PO Resp. 39 (“[I]t is undisputed that a high SAR CHA zeolite
`
`and the ion-exchange of copper in zeolite catalysts were well known in the
`
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`art since at least 1985 . . . .”); Tr. 8:11–14, 38:9–14. Thus, the record
`
`contains the same arguments and evidence regarding whether the prior art
`
`discloses or suggests the limitations of claims 1, 2, 5, 6, and 30 as it did at
`
`the time of our Decision on Institution.
`
`Based upon our review of the totality of the record after trial, we agree
`
`with Petitioner’s arguments and evidence presented in the Petition regarding
`
`whether Maeshima and Breck disclose or suggest the limitations of claims 1,
`
`2, 5, 6, and 30. See Pet. 10–23. Thus, we determine that the preponderance
`
`of the evidence supports a finding that Petitioner has demonstrated that all
`
`limitations of claims 1, 2, 5, 6, and 30 are disclosed or suggested by
`
`Maeshima and Breck.
`
`In view of this, in our analysis below, we focus on the following
`
`issues disputed by the parties, namely (i) whether Petitioner has shown why
`
`one of ordinary skill in the art would have “start[ed] with a CuCHA zeolite
`
`for the NH3 SCR of NOx based on the teachings of Maeshima and Breck”
`
`(PO Resp. 28; Pet. 15–17) and (ii) whether Petitioner has shown that a
`
`person of ordinary skill in the art would have had a reasonable expectation
`
`of success in combining Maeshima and Breck (PO Resp. 28–30; Pet. 17–
`
`18).
`
`Petitioner argues that Maeshima discloses aluminosilicate zeolites
`
`with the CHA crystal structure, the claimed proportion of copper, and an
`
`SAR greater than 2, but does not explicitly state that its zeolites have a SAR
`
`in the claimed ranges. Pet. 1, 16. Petitioner contends that Breck “discloses
`
`that the SAR of a chabazite zeolite can be increased to within the claimed
`
`range.” Id. (citing Ex. 1103, 18:3–15). Petitioner further contends that
`
`“[o]ne of ordinary skill in the art as of February 2007 would have been
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`motivated to combine Maeshima with Breck to arrive, with a reasonable
`
`expectation of success, at the subject matter of the claims.” Id. at 15–16
`
`(internal footnote omitted).
`
`According to Petitioner, “Maeshima explains that an exhaust gas
`
`stream ‘generally contains . . . sulfur oxides and oxygen in addition to
`
`nitrogen oxides’ and it is ‘necessary to perform removal of nitrogen oxides
`
`while eliminating influences’ of these materials.” Id. at 16 (quoting Ex.
`
`1102, 2:34–38). In view of this, Petitioner asserts that a person of ordinary
`
`skill in the art would “readily appreciate that Breck’s increased SAR zeolites
`
`would be particularly well suited for use with Maeshima” because Breck
`
`teaches that increasing the proportion of silica in a zeolite increases its
`
`resistance to acidic agents such as sulfur oxides in addition to providing
`
`thermal and hydrothermal stability. Id. at 16–17. Petitioner notes that Breck
`
`discloses CHA zeolites with SARs ranging from 8–20. Id. at 11, 19; Reply
`
`20. Petitioner asserts that the combination of Maeshima and Breck “would
`
`render Maeshima’s catalysts and the processes in which they are employed
`
`more resistant to sulfur oxides in a gas stream, more effective across a
`
`broader temperature range, and more resistant to hydrothermal aging.” Pet.
`
`17 (citing Ex. 1108 ¶ 163).
`
`Petitioner further contends that it was well-known that larger amounts
`
`of copper ions enhance the effectiveness of a zeolite when catalyzing the
`
`reduction of nitrogen oxides, and, therefore, a person of ordinary skill in the
`
`art would have recognized the benefits of following Maeshima’s instructions
`
`regarding copper loading when adding copper to higher silica zeolites, such
`
`as those set forth in Breck. Id. (citing Ex. 1018 ¶¶ 164–165). Petitioner also
`
`argues that Maeshima and Breck are in the same technical field (zeolite
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`catalysts and the use of these catalysts) and directed to solving the same
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`technical problem (identifying effective materials for catalyzing the
`
`reduction of NOx), which would further motivate a person of ordinary skill
`
`in the art to combine the references. Id. at 17–18.
`
`As to an expectation of success, Petitioner contends that a person of
`
`ordinary skill in the art would have had “every reason to believe that
`
`increasing the SAR of Maeshima’s zeolites catalysts as instructed by Breck
`
`would succeed.” Id. at 17. Specifically, Petitioner argues that Breck
`
`explains that increasing the proportion of silica in a zeolite does not
`
`detrimentally affect the ability to ion-exchange the zeolite, or the utility of
`
`that zeolite in catalytic processes for which “lower silica precursors” had
`
`previously been used. Id. (citing Ex. 1103, 47:44–47; Ex. 1108 ¶¶ 166–
`
`168). Additionally, Petitioner argues that
`
`the combination of Maeshima and Breck amounts to nothing
`more than the application of one particular known modification
`to catalytic zeolites with a known benefit—increasing the silica
`of chabazite zeolites to improve stability as taught by Breck—
`to the very materials to which this modification is meant to be
`applied—Maeshima’s copper-promoted aluminosilicate zeolites
`for use in SCR processes.
`
`Id. at 18 (citing Ex. 1108 ¶ 170). Petitioner contends that a person of
`
`ordinary skill in the art would have been aware of various methods and
`
`techniques for making synthetic zeolites with SARs in the claimed range.
`
`Reply 22 (citing Ex. 1119 110:19–22, 111:15–112:25).
`
`Patent Owner argues that Petitioner has failed to explain why a person
`
`of ordinary skill in the art reading Maeshima and Breck would have started
`
`with a Cu-zeolite having the CHA structure for the SCR of NOx in the
`
`presence of ammonia. PO Resp. 28. Patent Owner argues that Maeshima
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`lists nine zeolites and four preferred metals, and teaches the use of a large
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`pore size zeolite for the NH3 SCR of NOx. Id. Patent Owner also argues
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`that Breck discloses ten different zeolites. Id. According to Patent Owner,
`
`neither Maeshima nor Breck “provides any motivation to use a CuCHA
`
`zeolite for the NH3 SCR of NOx.” Id. (citing Ex. 2018 ¶ 119).
`
`Patent Owner further argues that a person of ordinary skill in the art
`
`would not have had a reasonable expectation of success in combining the
`
`teachings of Maeshima and Breck. Id. Patent Owner contends that
`
`Petitioner’s argument is “based on the faulty premise that the de-alumination
`
`technique in Breck ‘does not detrimentally affect the ability to ion-exchange
`
`the zeolite, or the utility of the zeolite in catalytic processes in which lower
`
`silica precursors have been employed.’” Id. at 28–29 (quoting Pet. 17).
`
`Patent Owner contends that de-aluminating a zeolite will detrimentally
`
`impact the zeolite’s ability to ion-exchange and the zeolite’s catalytic
`
`activity. According to Dr. Tsapatsis,
`
`[a]lthough Breck does contend that higher SAR may improve
`stability, there is a diverging effect of de-alumination that is not
`addressed by Breck. Specifically, the removal of aluminum
`leaves fewer extra framework ions present in the catalyst,
`thereby reducing the catalytic activity of the zeolite. Thus,
`while de-alumination may improve stability, it can also destroy
`the catalytic activity of the zeolite.
`
`Ex. 2018 ¶ 122.
`
`Patent Owner also argues that Dr. Lercher conceded at his deposition
`
`that de-aluminating does have a detrimental effect on the ability of a zeolite
`
`to ion exchange and on the activity of the zeolite. PO Resp. 29 (citing Ex.
`
`2027, 94:23–95:25). Thus, according to Patent Owner, “combining the
`
`teachings of Maeshima and Breck would not predictably enhance a zeolite,
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`nor has Petitioner shown that a person of ordinary skill in the art would have
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`a reasonable expectation of success in combining these references.” Id.
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`Patent Owner points out that Breck discloses only a single example of
`
`increasing the SAR of a CHA zeolite, from 8.52 to 11.18, and argues that
`
`Breck “explicitly teaches that the de-alumination technique is not efficient
`
`for the CHA framework.” Id. Patent Owner also notes that Breck does not
`
`include an example of increasing SAR from below 8 to above 15, as
`
`required by the claims of the ’662 patent. Id. at 29–30. Therefore,
`
`according to Dr. Tsapatsis, “a person of ordinary skill in the art would have
`
`no expectation that the zeolites disclosed in Maeshima having a SAR
`
`between 2 and 6 could be de-aluminated to have a SAR greater than 15.”
`
`Ex. 2018 ¶ 121; Pet. 30.
`
`Patent Owner also disagrees that Maeshima and Breck are directed at
`
`solving the same problem. According to Patent Owner, Maeshima relates to
`
`the NH3 SCR of NOx in a stationary source, whereas Breck is about de-
`
`alumination of zeolites to increase SAR, and contains no teachings regarding
`
`NH3 SCR of NOx. PO Resp. 30; Ex. 2018 ¶ 124.
`
`After considering the record as a whole, we agree with Petitioner that
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`a person of ordinary skill in the art would have been motivated to use a
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`CuCHA zeolite for the NH3 SCR of NOx based on the teachings of
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`Maeshima and Breck, and would have had a reasonable expectation of
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`success in achieving the claimed invention.
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`As noted above, Maeshima describes chabazite as a suitable catalyst
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`for the selective catalytic reduction of nitrogen oxides in the presence of
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`ammonia. Ex. 1102, 2:4–9, 4:6–11. Maeshima lists copper as an especially
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`preferred “active metal component having an activity of reducing nitrogen
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`oxides” (id. at 6:1–4), and further describes a generally preferred ion
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`exchange ratio and “catalytically effective” weight percent amount of the
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`active metal component (id. at 4:48–50, 6:13–17). Maeshima also explains
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`that an exhaust gas stream “generally contains . . . sulfur oxides and oxygen
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`in addition to nitrogen oxides” and it is “necessary to perform removal of
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`nitrogen oxides while eliminating influences of sulfur oxides.” Id. at 2:34–
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`38).
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`Breck teaches increasing the SAR value of zeolites including
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`chabazites, and that these zeolites can be ion exchanged. Ex. 1103, 4:50–52,
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`60–63. Breck also teaches that its zeolite catalysts are useful in “catalytic
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`processes in which their less siliceous precursors have heretofore been
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`suitably employed” and “have increased resistance toward acidic agents such
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`as . . . SO2, SO3 . . . and the like.” Id. at 47:44–53. The evidence of record
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`thus suggests that a person of ordinary skill in the art, upon reviewing
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`Maeshima and Breck, would have been motivated to use a CuCHA catalyst
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`for the NH3 SCR of NOx. The fact that Maeshima and Breck disclose other
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`types of zeolites does not diminish the fact that they expressly identify
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`chabazite as an acceptable catalyst. See Allergan, Inc. v. Apotex Inc., 754
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`F.3d 952, 964 (Fed. Cir. 2014) (the “mere disclosure of alternative
`
`preferences does not teach a person of ordinary skill away from the broad
`
`swath of compounds within the scope of the [claims at issue]”); Merck &
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`Co. v. Biocraft Labs. Inc., 874 F.2d 804, 807 (Fed. Cir. 1989) (“[I]n a
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`section 103 inquiry, ‘the fact that a specific [embodiment] is taught to be
`
`preferred is not controlling, since all disclosures of the prior art, including
`
`unpreferred embodiments, must be considered.’” (quoting In re Lamberti,
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`545 F.2d 747, 750 (CCPA 1976))); see also In re Fulton, 391 F.3d 1195,
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`1201 (Fed. Cir. 2004) (“The prior art’s mere disclosure of more than one
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`alternative does not constitute a teaching away from any of these alternatives
`
`because such disclosure does not criticize, discredit, or otherwise discourage
`
`the solution claimed . . . .”).
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`As to an expectation of success, our reviewing court has held that “the
`
`person of ordinary skill need only have a reasonable expectation of success
`
`of developing the claimed invention.” Allergan, Inc. v. Sandoz Inc., 726
`
`F.3d 1286, 1292 (Fed. Cir. 2013) (emphasis added). Claims 1, 2, 5, 6, and
`
`30 require a CHA zeolite having a SAR value and Cu/Al ratio falling within
`
`certain ranges that is “effective to promote the reaction of ammonia with
`
`nitrogen oxides to form nitrogen and H2O selectively.” At his deposition,
`
`Dr. Tsapatsis stated that this means that the catalyst must be able to
`
`“promote the reaction of ammonia with NOx to form nitrogen and water”
`
`and does not require a particular amount of NOx conversion. Ex. 1119,
`
`184:21–185:12.
`
`In view of this, Patent Owner’s argument that “combining the
`
`teachings of Maeshima and Breck would not predictably enhance a zeolite”
`
`is unavailing, as the claims do not require enhancing a zeolite. PO Resp. 29.
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`Additionally, obviousness does not require absolute predictability. In re
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`Lamberti, 545 F.2d 747, 750 (CCPA 1976). Only a reasonable expectation
`
`that the beneficial result will be achieved is necessary to show obviousness.
`
`In re Longi, 759 F.2d 887, 897 (Fed. Cir. 1985). Here, the “beneficial
`
`result,” according to the claims of the ’662 patent, is a catalyst that can
`
`promote the reaction of ammonia with NOx to form water and nitrogen.
`
`In view of Maeshima’s teaching that chabazites are suitable catalysts
`
`for the NH3 SCR of NOx, coupled with Breck’s disclosure that its highly
`
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`siliceous catalysts “are useful in all . . . ion-exchange and catalytic processes
`
`in which their less siliceous precursors have heretofore been suitably
`
`employed” (Ex. 1103, 47:44–47), we credit Dr. Lercher’s testimony that
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`“[i]ncreasing the SAR of the zeolite utilized by Maeshima would not
`
`detrimentally impact the usefulness of that zeolite in a process for reducing
`
`nitrogen oxides.” Ex. 1108 ¶ 167–168.
`
`As to Patent Owner’s argument that Dr. Lercher offered contradictory
`
`testimony, where he allegedly “conceded at his deposition that de-
`
`aluminating does have a detrimental effect on the ability to ion-exchange
`
`and the activity of the zeolite,” (PO Resp. 29), we note that Dr. Lercher’s
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`deposition testimony reveals he acknowledged that de-alumination
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`“impacts” both activity and stability of the zeolite, but agreed only that “de-
`
`[al]uminating the zeolite can decrease the activity” (Ex. 2027, 94:23–95:25)
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`(emphasis added). This is consistent with testimony from Dr. Tsapatsis that
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`“the resulting properties of a particular zeolite for a particular reaction after
`
`de-alumination are not predictable” because of “the possible detrimental
`
`effect on ion-exchange capacity and activity.” Ex. 2018 ¶ 94 (emphasis
`
`added). Obviousness, however, “cannot be avoided simply by a showing of
`
`some degree of unpredictability in the art so long as there was a reasonable
`
`probability of success.” Allergan, 726 F.3d at 1292 (citing Pfizer, Inc. v.
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`Apotex, Inc., 480 F.3d 1348, 1364 (Fed. Cir. 2007)). Here, as Petitioner and
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`Dr. Lercher contend, Breck provides a reasonable probability that increasing
`
`the SAR of Maeshima’s CHA zeolite in view of the teachings of Breck
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`would result in a high-SAR zeolite that is “useful in all . . . ion-exchange and
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`catalytic processes in which their less siliceous precursors have heretofore
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`been suitably employed,” which, according to Maeshima, includes NH3 SCR
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`of NOx.
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`Patent Owner’s argument that “there is no evidence that a zeolite
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`having a SAR of 2–6, as disclosed in Maeshima, could be de-aluminated to
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`above 15 using the technique in Breck” is based, at least in part, on the
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`premise that Maeshima teaches using zeolites only having a SAR of 2–6.
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`PO Resp. 30. Maeshima, however, generally teaches that its zeolites
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`preferably have a SAR greater than 2.3 Ex. 1102, 3:67–4:3. It is only with
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`regard to “especially preferred” embodiments that Maeshima discusses the
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`specific SAR range of 2–6. Id. at 4:36–43. Moreover, Breck discloses CHA
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`zeolites having an SAR greater than 8, preferably in the range of 8–20. Ex.
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`1103, 18:4–16; Ex. 1108 ¶ 157. Neither Patent Owner nor Dr. Tsapatsis
`
`address adequately these portions of Breck and Maeshima in concluding that
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`Maeshima’s zeolites could not be de-aluminated to have a SAR above 15,
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`instead choosing to focus on the single example of a CHA zeolite discussed
`
`in Breck and the specific range of the “especially preferred” embodiments in
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`Maeshima. PO Resp. 29–30; Ex. 2018 ¶¶ 92–97; 121–122.
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`As to Patent Owner’s argument regarding the relatively low efficiency
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`of Breck’s de-alumination method for CHA zeolites, we note that Breck
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`indicates that “with chabazite, silicon does replace the removed aluminum in
`
`the framework.” Ex. 1103, 38:48–49. Thus, although it may be less
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`efficient for chabazite, the evidence of record suggests that Breck’s de-
`
`alumination method does work for CHA zeolites, and Breck’s preferred
`
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`3 As Petitioner points out, Dr. Tsapatsis testified at his deposition that as of
`2007, a person of ordinary skill in the art would have known how to make
`synthetic CHA zeolites with an SAR in the range of 30–50. Ex. 1119,
`111:23–112:25.
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`SAR for CHA zeolites after de-alumination is 8–20, which overlaps the
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`claimed range.
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`Furthermore, we agree with Petitioner that Maeshima and Breck are at
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`least directed to the same technical field, zeolite catalysts (including
`
`chabazites) and their uses. Ex. 1102, Abstract, 1:55–63; Ex. 1103, 4:50–63,
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`47:44–47; Ex. 1108 ¶ 169.4
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`For all of the foregoing reasons, based upon consideration of the
`
`evidence in this record, we determine that Petitioner has demonstrated, by a
`
`preponderance of the evidence, that a person of ordinary skill in the art
`
`would have had a reason to combine Maeshima and Breck, and would have
`
`had a reasonable expectation of successfully combining Maeshima and
`
`Breck to arrive at a high SAR CHA zeolite that can promote the NH3 SCR of
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`NOx.
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`2.
`
`Claims 12–24 and 32–38 over Maeshima, Breck, and Patchett
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`Claims 12–24 and 32–38 depend from claim 2, and recite additional
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`limitations such as the catalyst being deposited on a honeycomb substrate
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`(claim 12), the honeycomb substrate comprising a wall flow filter substrate
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`(claim 13) or a flow through substrate (claim 14), coating a portion of the
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`flow t
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