Trials@uspto.gov
`571-272-7822
`
`Paper No. 9
`
` Entered: October 29, 2015
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`
`
`
`
`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.
`
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`571-272-7822
`
`Paper No. 9
`
` Entered: October 29, 2015
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`UMICORE AG & CO. KG,
`Petitioner,
`
`v.
`
`BASF CORPORATION,
`Patent Owner.
`
`____________
`
`Case IPR2015-01125
`Patent 7,601,662
`____________
`
`Before CHRISTOPHER L. CRUMBLEY, JO-ANNE M. KOKOSKI, and
`JEFFREY W. ABRAHAM, Administrative Patent Judges.
`
`ABRAHAM, Administrative Patent Judge.
`
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`IPR2015-01125
`Patent 7,601,662
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`
`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 Patent Owner preliminary
`response to the Petition. Paper 7 (“Prelim. Resp.”). Applying the standard
`set forth in 35 U.S.C. § 314(a), which requires demonstration of a reasonable
`likelihood that Petitioner would prevail with respect to at least one
`challenged claim, we institute an inter partes review of claims 1, 2, 5, 6, 12–
`24, 30, and 32–38 as discussed below.
`Our findings of fact and conclusions of law are based on the record
`developed thus far, prior to the Patent Owner’s Response. This is not a final
`decision as to the patentability of any challenged claim. Any final decision
`will be based on the full record developed during trial.
`
`
`II. BACKGROUND
`A. Related Proceedings
`Petitioner identifies pending inter partes review petition No.
`IPR2015-01121, also pertaining to the ’662 patent. Pet. 1. In addition to
`IPR2015-01121, Patent Owner identifies pending inter partes review
`petition Nos. IPR2015-01123 and IPR2015-01124, pertaining to U.S. Patent
`No. 8,404,203 B2, which issued from a divisional of the application that
`issued as the ’662 patent. Paper 6, 2.
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`B. The ’662 Patent
`The ’662 patent, titled “Copper CHA Zeolite Catalysts,” originally
`issued on October 13, 2009, with an ex parte reexamination certificate
`issuing on June 7, 2013. The ’662 patent discloses catalysts that comprise
`zeolites having a CHA crystal structure, which may be part of an exhaust gas
`treatment system. Ex. 1101, 1:55–61. 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). Id. at 4:24–29. 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.
`The ’662 patent explains that
`As is known in the art, to reduce the emissions of nitrogen
`oxides from flue and exhaust gases, ammonia is added to the
`gaseous stream containing the nitrogen oxides and the gaseous
`stream is then contacted with a suitable catalyst at elevated
`temperatures in order to catalyze the reduction of nitrogen
`oxides with ammonia.
`. . .
`Metal-promoted zeolites have been used to promote the reaction
`of ammonia with nitrogen oxides to form nitrogen and H2O
`selectively over the competing reaction of oxygen and
`ammonia. The catalyzed reaction of ammonia and nitrogen
`oxides is therefore sometimes referred to as the selective
`catalytic reduction (“SCR”) of nitrogen oxides or, as sometimes
`herein, simply as the “SCR process”.
`Id. at 8:14–19 and 38–44.
`According to the Specification, the CuCHA zeolite catalysts disclosed
`therein “yield improved activity in the selective catalytic reduction of NOx
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`with ammonia.” Id. at 5:4–6. Additionally, 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.
`C. Illustrative Claim
`Petitioner challenges claims 1–24, 30, and 32–50 of the ’662 patent.
`
`Claim 1 is the only independent claim challenged, and is reproduced 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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`References
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`Claims Challenged
`
`E. The Asserted Grounds
`Petitioner asserts the following grounds of unpatentability:
`Statutory
`Basis
`§ 103
`
`1–11 and 30
`
`Maeshima and Breck
`Maeshima, Breck, and
`Patchett
`Dedecek and Breck
`Dedecek, Breck, and
`Patchett
`
`Petitioner also relies on declarations from Dr. Johannes A. Lercher
`(Ex. 1108) and Dr. Frank-Walter Schütze (Ex. 1115).
`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); In
`re Cuozzo Speed Techs., LLC, 793 F.3d 1268, 1276–79 (Fed. Cir. 2015).
`We determine that no express claim construction is required for purposes of
`this decision.1
`
`§ 103
`
`§ 103
`
`§ 103
`
`12–24 and 32–50
`
`1–11 and 30
`
`12–24 and 32–50
`
`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
`
`
`1 We note that the parties agree that zeolites having the CHA crystal
`structure are also known as “chabazite.” Pet. 5; Prelim. Resp. 13.
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`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
`ratio is not particularly critical, but it is generally preferred that the ion
`exchange ratio be about 60 to about 100%” (id. at 4:44–52), and also
`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 a function of the
`SiO2/Al2O3 ratio (id. at 3:9–10), and that:
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`[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
`NOx abatement technology applied to stationary sources with lean exhaust
`conditions is Selective Catalytic Reduction (SCR) using ammonia (NH3) or
`an NH3 precursor.” Id. ¶ 3.
`Patchett discloses one embodiment of an emissions treatment system
`that includes an injector for inserting ammonia into an exhaust stream
`upstream from a first substrate with an SCR catalyst composition and an
`NH3 destruction catalyst composition (comprising a platinum group metal
`component) disposed thereon. Id. ¶¶ 18–19. Patchett teaches that the SCR
`catalyst composition can contain a copper-exchanged zeolite and the
`substrate may be a honeycomb flow-through substrate. Id. at ¶¶ 21, 23.
`4. Dedecek
`Dedecek generally relates to a study of the siting and coordination of
`Cu+ ions in zeolites. 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
`%, including examples of chabazites having Cu/Al ratios ranging from 0.01
`to 0.38. Id. at 64–66.
`C. Analysis of Grounds of Unpatentability
`1. Claims 1–11 and 30 over Maeshima and Breck
`Petitioner argues that that the subject matter of claims 1–11 and 30
`would have been obvious over Maeshima in view of Breck.
`Claim 1, the only independent claim challenged by Petitioner, requires
`an aluminosilicate zeolite having the CHA crystal structure, an SAR from
`about 15 to about 150, and a Cu/Al ratio from about 0.25 to about 1. Ex.
`1101, Reexam Cert. 1:56–2:1.
`Petitioner argues that Maeshima describes the use of chabazite, which
`is an aluminosilicate zeolite with the CHA crystal structure. Pet. 11. With
`regard to the claimed SAR value, Petitioner notes that Maeshima teaches
`that the zeolite catalysts employed therein should have an SAR value greater
`than 2 and argues that Breck teaches that the SAR of aluminosilicate
`zeolites, such as chabazites, can be beneficially increased to fall within the
`range of 8–20. Id. at 12. As to the claimed copper to aluminum ratio,
`Petitioner argues that applying Maeshima’s teachings regarding
`incorporation of copper (i.e., that the catalyst should “incorporate a
`sufficient amount of active metal such that [the] resulting ‘ion exchange
`ratio’ is ‘about 60 to about 100%’” or should be impregnated with a
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`“catalytically effective amount” of a metal such as copper, preferably about
`2 to about 10% by weight) to Breck’s chabazite catalyst with an SAR of 20
`would result in a CHA zeolite with a Cu/Al ratio of 0.3 or 0.5. Id. (citing
`Ex. 1108 ¶¶ 83–87, 94–105).
`Claim 1 further requires that the catalyst is “effective to promote the
`reaction of ammonia with nitrogen oxides to form nitrogen and H2O
`selectively,” i.e., that it is an SCR catalyst. Ex. 1101, Reexam. Cert. 2:1–3;
`Pet. 6; Prelim. Resp. 12. Petitioner argues that Maeshima expressly
`discloses that its catalysts may be used in an SCR process to selectively
`reduce nitrogen oxides. Pet. 11–12 (citing Ex. 1102, 2:4–8).
`Petitioner argues that “[o]ne of ordinary skill in the art as of February
`2007 would have been 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
`contends 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, according to Petitioner, 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. 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
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`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. at 17.
`Petitioner also argues that Maeshima and Breck are in the same technical
`field and directed to solving the same technical problem—catalyzing the
`reduction of nitrogen oxides—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 utility of that zeolite in catalytic processes for which it
`had previously been used. Id. (citing Ex. 1103, 47:44–47). 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).
`
`Claim 2 depends from claim 1, and limits the SAR of the catalyst to
`the range of about 15 to about 100. Ex. 1001, Reexam. Cert., 2:4–6.
`Petitioner relies on arguments similar to those made with regard to claim 1,
`emphasizing that Maeshima and Breck disclose a zeolite having an SAR up
`to 20. Pet. 13.
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`Claims 3 and 4 depend from claim 2, and further limit the SAR of the
`catalyst to the range of about 25 to about 40 (claim 3) and about 30 (claim
`4). Ex. 1001, 23:23–26. Petitioner again relies on arguments similar to
`those offered in challenging claim 1, but further contends that a person of
`ordinary skill in the art “would not consider zeolites with SAR of 25 or 30 to
`provide any non-obvious performance benefit over, a zeolite with a SAR of
`20.” Pet. 13. Petitioner further contends that a person of ordinary skill in
`the art would have been motivated to use zeolites with SAR values greater
`than those disclosed in Breck since it was well known in the art that
`increasing silica content in a zeolite would enhance stability and resistance
`to poisoning. Id.
`Claims 5 and 6 depend from claim 2 and further limit the Cu/Al ratio
`of the catalyst to the range of about 0.3 to about 0.5 (claim 5) and about 0.4
`(claim 6). Ex. 1001, 23:27–30. As to these claims, Petitioner relies on the
`same arguments discussed above with regard to claim 1, emphasizing that
`combining Maeshima and Breck would result in zeolites having Cu/Al ratios
`of 0.3 to 0.5. Pet. 13.
`Claim 7 depends from claim 2, and further limits the SAR value to the
`range of about 25 to about 40 and the Cu/Al ratio to the range of about 0.30
`to about 0.50. Ex. 1001, 23:31–33. Claim 8 also depends from claim 2 and
`further limits the SAR value to about 30 and the Cu/Al ratio to about 0.40.
`Id. at 34–36. As to these claims, Petitioner relies on the same arguments
`discussed above with regard to claims 1, 3, and 4. Pet. 13.
` Claim 9 depends from claim 2, and requires that the catalyst contains
`ion-exchanged copper and non-exchanged copper. Ex. 1101, Reexam. Cert.
`2:7–11. Petitioner argues that Maeshima teaches that copper can be
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`incorporated into zeolites using customary methods, and a person of
`ordinary skill in the art would have understood that using said customary
`methods of copper incorporation would result in the formation of non-
`exchanged copper deposits. Pet. 14 (citing Ex. 1108 ¶¶ 142–144).
`Claim 10 depends from claim 9, and requires that “the NOx
`conversion performance of the catalyst at about 200oC after aging is at least
`90% of the NOx conversion performance of the catalyst at about 200oC prior
`to aging.” Ex. 1101, 23:42–45. Petitioner contends that Maeshima discloses
`a catalyst and SCR process intended to be effective at a reaction temperature
`between 200 and 500oC, and therefore a person of ordinary skill in the art, as
`a result of routine, obvious design work, would have optimized the catalyst
`and other reaction conditions so that the catalyst would retain 90% of its
`performance after aging. Pet. 14.
`Dependent Claim 30 is directed to an exhaust gas treatment system
`comprising a catalyst as recited in claim 2. Ex. 1101, 24:40–44. Petitioner
`relies on the arguments offered with regard to claim 2, and adds that
`Maeshima discloses an SCR process for the reduction of nitrogen oxides in a
`gaseous stream. Pet. 15.
`Petitioner also addresses the topic of secondary considerations of non-
`obviousness based on the evidence and arguments regarding secondary
`considerations that Patent Owner presented during reexamination of the ’662
`patent. Id. at 54–60. Petitioner argues that Patent Owner’s evidence of
`secondary considerations is not commensurate in scope with the claimed
`subject matter because the evidence relates to a limited subset of catalysts
`and not catalysts with SAR values and Cu/Al ratios spanning the claimed
`ranges. Id. at 55. Petitioner also argues that “there is nothing unexpected
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`about the resulting properties from the claimed Cu/Al ratios and SARs,” and,
`therefore, “the claimed Cu/Al ratios and SARs are not critical and do not
`distinguish the ’662 patent’s claims from the prior art.” Id. at 59.
`Patent Owner argues that Petitioner has failed to show that a person of
`ordinary skill in the art reading Maeshima and Breck would have selected a
`Cu-zeolite having the CHA structure as a lead compound for the SCR of
`NOx in the presence of ammonia. Prelim. Resp. 16–17. In particular, Patent
`Owner contends that Maeshima provides a list of five natural zeolites and
`four synthetic zeolites, but contains only a single reference to a zeolite
`having a CHA crystal structure (a chabazite), and does not otherwise discuss
`or provide specific examples of, or data relating to, a chabazite. Id. at 17.
`Patent Owner further contends that although Maeshima states that zeolites
`can be ion exchanged with a metal, it provides a list of eleven metals that
`can be employed. Id. at 17–18. Patent Owner also argues that the preferred
`zeolite in Maeshima is a faujasite, which does not have the CHA crystal
`structure. Id. at 18. In view of this, Patent Owner contends that Petitioner
`did not provide any explanation for why a person of ordinary skill in the art
`would having singled out a Cu-CHA zeolite when presented with the various
`possible zeolites and metals disclosed in Maeshima.
`Patent Owner argues that Breck likewise identifies chabazite as one of
`several possible zeolite starting materials, and that only one of nineteen
`examples in Breck has the CHA structure. Id. at 18–19. Additionally,
`Patent Owner argues that Breck does not disclose a copper zeolite having the
`CHA structure in general, or specifically for the reduction of oxides of
`nitrogen. Id. at 19.
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`According to Patent Owner, the failure of Maeshima and Breck to
`provide examples or data regarding a Cu-zeolite having the CHA structure
`for use in the SCR of NOx is particularly significant in view of a prior art
`reference that indicates a CuCHA zeolite was inactive for the decomposition
`of NO. Id. at 19–20 (citing Ex. 2006, .027–028; Ex. 2015).
`Patent Owner further argues that a person of ordinary skill in the art
`would not have been motivated to increase the SAR of a CuCHA zeolite in
`view of Maeshima and Breck. Id. at 23–25. Patent Owner contends that the
`preferred SAR in Maeshima is 2 to 6, and although Breck generally
`discloses zeolites having an SAR between 8 and 20, it does not disclose an
`example of a zeolite having a CHA structure with an SAR greater than 15.
`Id. at 24. Instead, according to Patent Owner, the only example of a CHA
`zeolite in Breck has an SAR of 11.13. Id. Therefore, according to Patent
`Owner, a person of ordinary skill in the art “would not expect to use the
`methods described in Breck to increase the SAR of a CHA zeolite from
`between 2 and 6 (the preferred SAR disclosed in Maeshima) to above 15.”
`Id.
`As to claims 3, 4, 7, and 8, Patent Owner contends that neither Breck
`nor Maeshima discloses an SAR greater than 25, as required by these claims.
`Id. at 40. According to Patent Owner, the highest SAR value recited in
`Maeshima is 6, and the highest in Breck is 20, and Petitioner fails to provide
`any evidence supporting the conclusion that it would have been obvious to
`exceed an SAR of 20 as stated in Breck. Id.
`With regard to claims 9 and 10, Patent Owner contends that Petitioner
`failed to present adequate evidence demonstrating that Maeshima and/or
`Breck disclose a CHA zeolite having both ion-exchanged and non-
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`exchanged copper as required by claim 9 that also meets the performance
`characteristics recited in claim 10. Id. at 40–41. Patent Owner argues that
`Petitioner, instead of providing actual evidence, relied on bare conclusions
`from its expert. Id.
` Additionally, Patent Owner argues that there is substantial evidence
`that the claimed invention in the ’662 patent provided unexpected results.
`Prelim. Resp. 26–28. Patent Owner contends that the data shown for
`Examples 2, 3, and 4 in Table 1 of the ’662 patent demonstrates that the
`claimed CuCHA zeolite catalyst exhibits improved hydrothermal stability as
`compared to other types of zeolite materials. Id. at 26 (citing Ex. 1101,
`14:52–57). Patent Owner also refers to statements appearing in a paper
`authored by the Ford Motor Company in 2008 (Ex. 2002, “Ford Paper”).
`According to Patent Owner, the Ford Paper compares a CuCHA material
`having an SAR of 30 and copper to aluminum ratio of 0.45 with other SCR
`catalyst formulations, and describes the CuCHA zeolite as “remarkable” and
`having enhanced durability. Prelim. Resp. 27 (citing Ex. 2002, .011). Patent
`Owner relies on a declaration submitted in connection with the
`reexamination of the ’662 patent comparing CuCHA zeolites that fall within
`the scope of the claims to examples disclosed in a prior art reference
`(Dedecek, discussed in more detail below). Id. at 27–28 (citing Ex. 2011).
`Patent Owner notes that, according to the declaration, the prior art samples
`exhibited nearly zero NOx conversion after aging, whereas the claimed
`catalysts showed “excellent” performance. Id. Patent Owner further
`contends that the claimed invention of the ’662 patent was the subject of
`skepticism, addressed a long-felt, but unresolved need, and received praise.
`Id. at 33–38.
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`We are not persuaded by Patent Owner’s arguments that Petitioner
`failed to properly apply the “lead compound” analysis with regard to the
`combination of Maeshima and Breck. Nor are we persuaded, based on the
`present record, by Patent Owner’s arguments that a person of ordinary skill
`would not have had a reasonable expectation of success in applying the
`teachings of Breck to Maeshima.
`Maeshima describes chabazite as a suitable catalyst for the selective
`catalytic reduction of nitrogen oxides in the presence of ammonia. Ex. 1102,
`2:4–9, 4:6–11. Maeshima lists copper as an especially preferred “active
`metal component having an activity of reducing nitrogen oxides” (id. at 6:1–
`4), and further describes a generally preferred ion exchange ratio and
`“catalytically effective” weight percent amount of the active metal
`component (id. at 4:48–50, 6:13–17).
`Breck teaches increasing the SAR value of zeolites including
`chabazites, and that these zeolites can be ion exchanged. Ex.1103, 4:50–52,
`60–63. Despite Patent Owner’s contention that Breck does not disclose a
`specific example of a zeolite having a CHA structure with an SAR greater
`than 15, it is uncontested that Breck generally discloses zeolites having an
`SAR value as high as 20. Prelim. Resp. 24. Breck also teaches that its
`zeolite catalysts are useful in “catalytic processes in which their less
`siliceous precursors have heretofore been suitably employed,” and provide
`increased thermal stability and resistance to acidic agents. Id. at 47:44–53.
`Nor are we persuaded by Patent Owner’s arguments regarding
`secondary considerations.2 The issue of secondary considerations is highly
`
`
`2 Our determination in that regard does not prevent Patent Owner from
`further developing such evidence during trial.
`
`
`
`16
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`
`fact-specific. At this stage of the proceeding, the record regarding such
`secondary considerations is incomplete, and the Petitioner has not had the
`ability to fully respond to the specific arguments raised by Patent Owner in
`the Preliminary Response.
`Taking into account the information and arguments provided by
`Petitioner and Patent Owner, including Petitioner’s claim charts and the
`Lercher and Schütze Declarations, we determine, on this record, that
`Petitioner has identified where each claim element of claims 1, 2, 5, 6, and
`30 is allegedly disclosed in, or suggested by, Maeshima and Breck, and also
`has provided a credible rationale to support the proposed combination of the
`prior art references with a reasonable expectation of success. See KSR Int’l
`v. Teleflex, Inc., 550 U.S. 398, 416 (2007) (“The combination of familiar
`elements according to known methods is likely to be obvious when it does
`no more than yield predictable results.”). In view of this, we are persuaded
`that Petitioner has demonstrated a reasonable likelihood that the subject
`matter of claims 1, 2, 5, 6, and 30 would have been obvious over the
`combination of Maeshima and Breck.
`As to claims 3, 4, 7, and 8, we agree with Patent Owner that Petitioner
`has not offered adequate evidence demonstrating that Maeshima and/or
`Breck disclose or otherwise suggest a zeolite having an SAR value above 20.
`It is uncontested that Breck does not expressly disclose an SAR value above
`20, and Petitioner’s arguments and conclusory statements by Dr. Lercher do
`not demonstrate sufficiently that the higher SAR values required in these
`claims would have been obvious to a person of ordinary skill in the art. See,
`e.g., Pet. 13; Ex. 1108 ¶¶ 116, 118, 119. Accordingly, we are not persuaded
`that Petitioner has demonstrated a reasonable likelihood that the subject
`
`
`
`17
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`IPR2015-01125
`Patent 7,601,662
`
`matter of claims 3, 4, 7, and 8 would have been obvious over the
`combination of Maeshima and Breck.
`Similarly, with regard to claims 9 and 10, we agree with Patent Owner
`that Petitioner has not offered adequate evidence demonstrating that
`Maeshima and/or Breck disclose a CHA zeolite having both ion-exchanged
`and non-exchanged copper as required by claim 9 or the performance
`characteristics of claim 10. For example, the argument that Maeshima
`teaches “customary” methods of copper incorporation that would result in
`the formation of some non-exchanged copper deposits (Pet. 14) is supported
`only by the conclusory testimony of Dr. Lercher regarding these
`“customary” methods (Ex. 1108 ¶ 143), which is insufficient to support
`Petitioner’s conclusion that Maeshima and Zones teach a catalyst that would
`necessarily contain both ion-exchanged and non-exchanged copper. As a
`result, we are not persuaded, on this record, that Petitioner has demonstrated
`a reasonable likelihood that the subject matter of claim 9, and claims 10 and
`11 that depend from claim 9, would have been obvious over the combination
`of Maeshima and Breck.
`2.
`Claims 12–24 and 32–50 over Maeshima, Breck, and Patchett
`Claims 12–24 and 32–38 depend from claim 2, and recite additional
`limitations such as the catalyst being deposited on a honeycomb substrate
`(claim 12), the honeycomb substrate comprising a wall flow filter substrate
`(claim 13) or a flow through substrate (claim 14), coating a portion of the
`flow through or wall flow substrate with Pt and CuCHA adapted to oxidize
`ammonia in the exhaust gas stream (claims 16 and 17), placing the catalyst
`downstream from a diesel engine and an injector that adds a reductant to an
`exhaust gas stream (claims 21–24), and including a catalyzed soot filter
`
`
`
`18
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`(claim 32). Ex. 1101, 23:48–24:23, 24:49–65; Reexam. Cert. 2:12–13.
`Claims 39–50 depend from claim 3 and contain limitations similar to those
`in claims 12–24. Reexam. Cert. 2:14–59.
`Petitioner asserts that the subject matter of claims 12–24 and 32–50
`would have been obvious in view of Maeshima, Breck, and Patchett.
`Petitioner states that Patchett generally relates to an emissions treatment
`system and methods for reducing nitrogen oxides emissions, and contends
`that Patchett discloses the additional structural features recited in claims 12–
`24 and 32–50. Pet. 24–42. Petitioner also notes that Patchett discloses the
`use of a copper-exchanged zeolite for the selective catalytic reduction of
`nitrogen oxides in the presence of ammonia. Id. at 24, 29. Petitioner thus
`argues that it would have been obvious to a person of ordinary skill in the art
`to use the catalytic material disclosed by the combination of Maeshima and
`Breck in Patchett’s system and process. Id. at 29. Patent Owner did not
`address the combination of Maeshima, Breck, and Patchett in the
`Preliminary Response. Prelim. Resp. 42.
`We determine, based on the current record, that Petitioner’s
`supporting evidence regarding dependent claims 12–24 and 32–38
`demonstrates a reasonable likelihood that Petitioner would prevail on its
`assertion that the subject matter of these claims would have been obvious
`over the combination of Maeshima, Breck, and Patchett.
`Claims 39–50 depend from claim 3. As noted above, we determine
`that Petitioner has failed to demonstrate a reasonable likelihood that the
`subject matter of claim 3 would have been obvious over the combination of
`Maeshima and Breck, and Patchett
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