Trials@uspto.gov
`571-272-7822
`
`Paper No. 35
`
` Entered: November 30, 2016
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`JOHNSON MATTHEY INC., and JOHNSON MATTHEY PLC,
`Petitioners,
`
`v.
`
`BASF CORPORATION,
`Patent Owner.
`
`____________
`
`Case IPR2015-01266
`Patent 9,039,982 B2
`____________
`
`
`
`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. 35
`
` Entered: November 30, 2016
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`JOHNSON MATTHEY INC., and JOHNSON MATTHEY PLC,
`Petitioners,
`
`v.
`
`BASF CORPORATION,
`Patent Owner.
`
`____________
`
`Case IPR2015-01266
`Patent 9,039,982 B2
`____________
`
`
`
`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
`
`
`
`IPR2015-01266
`Patent 9,039,982 B2
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`I. INTRODUCTION
`Johnson Matthey Inc., and Johnson Matthey Plc (collectively
`“Petitioner”) filed a Petition seeking inter partes review of claims 1–27 of
`U.S. Patent No. 9,039,982 B2 (Ex. 1001, “the ’982 patent”). Paper 1
`(“Pet.”). BASF Corporation (“Patent Owner”) filed a Preliminary Response
`to the Petition. Paper 7. On December 4, 2015, we instituted an inter partes
`review of claims 1–27. Paper 8 (“Dec. on Inst.”).
`After institution, Patent Owner filed a Patent Owner Response (Paper
`20, “PO Resp.”), and Petitioner filed a Reply (Paper 23, “Reply”). An oral
`hearing was held on August 23, 2016, and a transcript of the hearing has
`been entered into the record of the proceeding as Paper 34 (“Tr.”).
`Patent Owner filed a Motion to Exclude certain paragraphs of the
`Declaration of Dr. David L. Tennent (Ex. 1003, “the Tennent Declaration”).
`Paper 27. Petitioner filed an Opposition (Paper 29), and Patent Owner filed
`a Reply (Paper 31).
`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 failed to show
`by a preponderance of the evidence that claims 1–27 are unpatentable.
`II. BACKGROUND
`A. Related Proceedings
`Petitioner identifies pending inter partes review Cases IPR2015-
`01265 and IPR2015-01267, pertaining to U.S. Patent No. 8,899,023 (“the
`’023 patent”) and U.S. Patent No. 9,032,709 (“the ’709 patent”),
`respectively.
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`Petitioner indicates that the ’982 patent issued from Application No.
`14/497,454, which was a continuation of Application No. 13/274,635 (issued
`as the ’023 patent), which itself was a continuation of Application No.
`11/676,798 (issued as the ’709 patent), itself a divisional of Application No.
`10/634,659 (now issued as U.S. Patent No. 7,229,597). Pet. 2. Petitioner
`also identifies pending inter partes reexamination proceedings pertaining to
`U.S. Patent No. 7,229,597 (Reexam No. 95/001,745) and another patent in
`the same family, U.S. Patent No. 7,902,107 (Reexam No. 95/001,744). Id.
`B. The ’982 Patent
`The ’982 patent, titled “Catalyzed SCR Filter and Emission Treatment
`System,” issued on May 26, 2015. Ex. 1001, (54), (45). The ’982 patent
`discloses “a catalyst article for simultaneously remediating the nitrogen
`oxides (NOx), particulate matter, and gaseous hydrocarbons present in diesel
`engine exhaust streams.” Id. at (57).
`The ’982 patent teaches that several filter structures effective in
`physically removing particulate matter from diesel exhaust were known in
`the art. Id. at 2:13–29. According to the Specification, these filters were
`capable of removing over 90% of the particulate matter from diesel exhaust.
`Id. One example of these known filters, also suitable for use in the claimed
`invention, is a wall flow filter. Id. A wall flow filter is illustrated in Figures
`2 and 3 of the ’982 patent, reproduced below.
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`Figure 2 shows a “perspective view” of wall flow filter substrate 30,
`and Figure 3 shows a cross sectional view of the substrate shown in Figure
`2. Id. at 5:64–67, 9:10–20. As shown in these figures, substrate 30 has inlet
`end 54, outlet end 56, and a plurality of fine, substantially-parallel gas flow
`passages extending along the longitudinal axis of the substrate. Id. at 8:62–
`65, Figs. 2, 3. Alternate passages are plugged at the inlet end with plugs 58,
`and at the outlet end with plugs 60. Id. at 9:13–16. This forms a
`checkerboard pattern (as depicted in figure 2) at inlet end 54 and outlet end
`56. Id. In this configuration, a gas stream cannot enter and exit the substrate
`through the same passage. Id. at 9:16–20. Instead, a gas stream entering
`through an unplugged channel inlet (e.g., 64) is stopped by outlet plug 60 in
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`that passage, and must diffuse through a porous channel wall (e.g., 53) in
`order to exit out of channel outlet 66. Id. As the gas passes through the
`porous channel wall, particulate matter in the gas is trapped therein.
`The ’982 patent teaches that as particulate matter accumulates on the
`filter, the back pressure from the filter on the engine increases. Id. at 2:21–
`24. Therefore, these particles must be continuously or periodically burned
`out of the filter to maintain an acceptable back pressure. Id. at 2:24–26.
`This is referred to as filter regeneration. Id. at 2:38–39. Typically, a
`temperature in excess of 500 °C is required to burn the carbon soot particles,
`which is above the temperature normally present in diesel exhaust. Id. at
`2:26–29. Therefore, provisions, such as a catalyst, are generally introduced
`to lower the soot burning temperature to those present under normal diesel
`engine operating conditions. Id. at 2:30–39.
`The ’982 patent also describes Selective Catalytic Reduction (“SCR”),
`a process wherein NOx is reduced with ammonia to nitrogen in the presence
`of a catalyst typically composed of base metals, as a “proven NOx
`abatement technology applied to stationary sources,” and discloses that SCR
`is under development for mobile applications. Id. at 1:19–20, 2:40–50.
`The ’982 patent explains that a sufficient loading of SCR catalyst
`composition is required to achieve NOx reduction goals on a coated soot
`filter, but cautions that higher catalyst coatings can lead to unacceptable
`back pressure within the exhaust system. Id. at 3:4–6. The Specification
`also teaches that a durable SCR catalyst, e.g., one that maintains catalytic
`activity after exposure to high temperatures and has a wider operating
`temperature range, is desirable. Id. at 3:13–25.
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`According to the ’982 patent, “[i]ntegration of NOx reduction and
`particulate removal functions into a single catalyst article is accomplished
`using a wall flow substrate coated with an SCR catalyst composition.” Id. at
`6:30–32. The claimed invention requires wall flow substrates to be coated
`with practical levels of SCR catalyst to achieve desired NOx reduction levels
`and effectively remove particulate matter without causing excessive
`backpressure, while also lowering the combustion temperature of the soot
`fraction trapped on the filter. Id. at 6:33–48, 7:36–38. To achieve this,
`the ’982 patent teaches depositing SCR catalysts at a concentration of at
`least 1.3 g/in3, preferably between 1.6 and 2.4 g/in3 (id. at 8:54–61), and
`using a wall flow substrate having a preferred pore size of at least 5 microns
`and porosity of at least 50% (id. at 9:37–40).
`C. Illustrative Claim
`Claims 1, 16, and 22 are independent claims. Claim 1 is illustrative,
`
`and is reproduced below:
`1. A catalyst article consisting essentially of a wall flow
`monolith and a catalytic material, wherein the wall flow
`monolith has a plurality of longitudinally extending passages
`formed by longitudinally extending walls bounding and
`defining said passages, wherein the passages comprise inlet
`passages having an open inlet end and a closed outlet end,
`and outlet passages having a closed inlet end and an open
`outlet end, the wall flow monolith has a porosity of from
`50% to 60% and an average pore size of from 10 to 25
`microns, and the wall flow monolith contains the catalytic
`material;
`wherein the catalytic material comprises an SCR
`catalyst composition including a slurry-loaded
`washcoat of a zeolite and base metal selected from
`copper, the washcoat permeating the walls at a
`loading up to 2.4 g/in3, the wall flow monolith
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`having integrated, NOx and particulate removal
`efficiency in which presence of the catalytic
`material in the wall flow monolith catalyzes the
`oxidation of soot.
`Ex. 1001, 15:47–64. Independent claims 16 and 22 are substantially similar
`to claim 1, with claim 16 additionally reciting that “the washcoat permeating
`the walls at a loading up to 1.3 g/in3” (id. at 16:46–64), and independent
`claim 22 requiring only that the catalyst article contains a washcoat, without
`reciting a particular loading amount (id. at 17:13–18:5). The dependent
`claims of the ’982 patent recite further requirements of the wall flow filter or
`the SCR catalyst composition.
`D. References
`Petitioner relies on the following references:
`Speronello et al., US 5,516,497, issued May 14, 1996 (“Speronello,”
`Ex. 1008).
`Georg Hüthwohl et al., The SCRT® system – a combination particle
`filter with SCR catalyst – enables both particle and NOx emission to
`be reduced simultaneously in commercial vehicle diesel engines,
`Dresdner Motorkolloquium, May 20–21, 1999 at 129 (“Hüthwohl,”
`Ex. 1006; certified translation provided at Ex. 1005).
`S. Hashimoto et al., SiC and Cordierite Diesel Particulate Filters
`Designed for Low Pressure Drop and Catalyzed, Uncatalyzed
`Systems, Diesel Exhaust Emission Control 2002: Diesel Particulate
`Filters (SP-1673), reprinted in SAE Technical Paper Series 2002-01-
`0322 (“Hashimoto,” Ex. 1007).
`Yasutake Teraoka et al., Simultaneous Catalytic Removal of Nitrogen
`Oxides and Soot by Copper-Loaded MFI Zeolites, CHEMISTRY
`LETTERS 2001 at 604 (“Teraoka,” Ex. 1009).
`
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`E. The Instituted Grounds of Unpatentability
`The Board instituted trial to review the patentability of the challenged
`
`claims on the following ground:
`
`References
`Hüthwohl, Speronello,
`Hashimoto, and Teraoka
`
`
`Statutory Basis Claims Challenged
`§ 103
`1–27
`
`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). In the
`Decision on Institution, we determined that the terms in the challenged
`claims did not need to be construed expressly, and we see no reason to
`modify that determination in light of the record developed at trial. 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. Principles of Law
`To prevail in this inter partes review of the challenged claims,
`Petitioner must prove unpatentability by a preponderance of the evidence.
`35 U.S.C. § 316(e); 37 C.F.R. § 42.1(d).
`A patent claim is unpatentable under 35 U.S.C. § 103(a) if the
`differences between the claimed subject matter and the prior art are such that
`the subject matter, as a whole, would have been obvious at the time the
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`invention was made to a person having ordinary skill in the art to which said
`subject matter pertains. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 406
`(2007). The question of obviousness is resolved on the basis of underlying
`factual determinations, including: (1) the scope and content of the prior art;
`(2) any differences between the claimed subject matter and the prior art; (3)
`the level of skill in the art; and (4) objective evidence of nonobviousness.
`Graham v. John Deere Co., 383 U.S. 1, 17–18 (1966).
`“[A] patent composed of several elements is not proved obvious
`merely by demonstrating that each of its elements was, independently,
`known in the prior art.” KSR, 550 U.S. at 418. “[I]t can be important to
`identify a reason that would have prompted a person of ordinary skill in the
`relevant field to combine elements in the way the claimed new invention
`does.” Id. Moreover, a person of ordinary skill in the art must have had a
`reasonable expectation of success of doing so. PAR Pharm., Inc. v. TWi
`Pharms., Inc., 773 F.3d 1186, 1193 (Fed. Cir. 2014).
`Thus, a party that petitions the Board for a determination of
`obviousness must show that “‘a skilled artisan would have been motivated to
`combine the teachings of the prior art references to achieve the claimed
`invention, and that the skilled artisan would have had a reasonable
`expectation of success in doing so.’” Procter & Gamble Co. v. Teva Pharm.
`USA, Inc., 566 F.3d 989, 994 (Fed. Cir. 2009) (quoting Pfizer, Inc. v.
`Apotex, Inc., 480 F.3d 1348, 1361 (Fed. Cir. 2007)). “[C]ase law is clear
`that obviousness 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.” Pfizer, 480 F.3d at 1364 . Furthermore, “[t]here is no requirement
`that one of ordinary skill have a reasonable expectation of success in
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`developing [a commercial product] . . . [but] 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).
`In conducting an obvious analysis, it is important to “be aware . . . of
`the distortion caused by hindsight bias and . . . be cautious of arguments
`reliant upon ex post reasoning.” KSR, 550 U.S. at 421; see also In re Kubin,
`561 F.3d 1351, 1359 (Fed. Cir. 2009) (stating that “courts should not
`succumb to hindsight claims of obviousness”). In that regard, “[t]he
`expectation of success must be found in the prior art, not in the applicant’s
`disclosure.” In re Dow Chemical Co., 837 F.2d 469, 473 (Fed. Cir. 1988).
`Additionally, “patents are not barred just because it was obvious ‘to explore
`a new technology or general approach that seemed to be a promising field of
`experimentation, where the prior art gave only general guidance as to the
`particular form of the claimed invention or how to achieve it.’” Procter &
`Gamble, 566 F.3d at 997 (quoting In re O'Farrell, 853 F.2d 894, 903 (Fed.
`Cir. 1988)).
`We analyze the instituted grounds of unpatentability in accordance
`with the above-stated principles.
`C. Level of Ordinary Skill in the Art
`Petitioner’s declarants, Dr. Tennent and Dr. Harold, state that a person
`of ordinary skill in the art would have “at least a BS or MS in chemistry,
`chemical engineering, material science, or a related field and [at] least three
`years of experience or training in researching, studying, designing, or
`manufacturing diesel exhaust treatment systems.” Ex. 1003 ¶ 13; Ex. 1004
`(the “Harold Declaration”) ¶ 13. According to Patent Owner’s declarant,
`Dr. Crocker, a person of ordinary skill in the art would have had “at least a
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`Bachelor’s degree in chemical engineering or a related discipline, and would
`have been exposed to the basic concepts of diesel exhaust treatments through
`either a year of coursework or field research.” Ex. 2045 (the “Crocker
`Declaration”) ¶ 42. Dr. Crocker also identifies several specific “skills and
`beliefs” that a person of ordinary in the art would have possessed “as a result
`of his/her training and experience, and what was known in the art at the time
`of the BASF patents.” Id. at ¶¶ 42–46.
`Thus, at a minimum, the parties agree that a person of ordinary skill in
`the art would be a person with a bachelor’s degree in chemical engineering
`or a related field, and some experience or training in diesel exhaust systems.
`We find additional consistency between Petitioner’s position that a person of
`ordinary skill in the art would have at least three years of experience or
`training in researching, studying, designing, or manufacturing diesel exhaust
`treatment systems, and Patent Owner’s position that a person of ordinary
`skill in the art would have knowledge of certain “skills and beliefs as a result
`of his/her training and experience, and what was known in the art at the time
`of the BASF patents.” Accordingly, we hold that one of skill in the art
`would possess at least a bachelor’s degree in chemical engineering or a
`related discipline, and would have at least three years of experience or
`training in researching, studying, designing, or manufacturing diesel exhaust
`treatment systems. 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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`D. Overview of Prior Art References
`1. Hüthwohl
`Hüthwohl explains that, in 1998, the EU Environment Council agreed
`
`on new limits for nitrogen oxides and particle emissions for heavy
`commercial vehicles, such as city buses. Ex. 1005, 2.1 These new emission
`standards were scheduled to take effect in 2005 and 2008. Id. at 3.
`Hüthwohl describes a system introduced in 1995, referred to as the CRT
`system, which includes a highly active oxidation catalyst and a series-
`connected particle filter. Id. According to Hüthwohl, the CRT system was
`capable of achieving low emissions from an engine running on a certain type
`of fuel, but for diesel engines, excellent emission values “can only [be]
`achieved by combining a particle filter with an SCR catalyst. The
`combination of SCR catalyst and particle filter is known as the SCRT®
`system.” Id. at 4.
`
`In the SCRT system, the soot filter of the CRT system is impregnated
`with SCR-active material. Id. This combination aids in reducing the
`required physical volume of the system, and allows the system to be
`installed in a city bus. Id. Based on data from tests conducted on the SCRT
`system, Hüthwohl determines that the SCRT system “reduces the emission
`of carbon monoxide, particles, hydrocarbons and nitrogen oxides.” Id. at 9.
`Hüthwohl ultimately concludes that “[b]y further optimization of the system,
`a significant improvement of the NOx conversion can be expected, so that in
`[the] future it will be possible to comply with” the 2005 and 2008 European
`emission standards. Id. at 14.
`
`
`1 Citations to page numbers for this exhibit refer to those appearing at the
`bottom center of each page of the exhibit.
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`2. Speronello
`Speronello discloses, inter alia, a “catalyst composition effective for
`reducing nitrogen oxides with ammonia in a gaseous stream.” Ex. 1008,
`3:44–47. Included in this composition are zeolites that may contain iron
`and/or copper. Id. at 3:49–58. Speronello states that the zeolite catalysts
`described therein demonstrate sufficient thermal and hydrothermal stability,
`providing “an acceptably long life and efficiency of the catalysts” even after
`exposure to gaseous streams at temperatures up to about 600o C. Id. at 6:17–
`25. Speronello also describes zeolite catalysts that demonstrate resistance to
`sulfur poisoning and NOx reduction/conversion efficiencies around 90%.
`Id. at 6:34–7:3.
`Speronello teaches that “[a]ny suitable physical form of the catalyst
`may be utilized, such as a monolithic honeycomb-type body containing a
`plurality of fine, parallel gas flow passages extending therethrough, the walls
`of which are coated with the zeolite catalytic material.” Id. at 7:10–15.
`Speronello further states that:
`[t]he physical configuration of the catalyst used in a given case
`will depend on a number of factors such as the space available
`for the catalytic reactor . . . and the permitted or desired amount
`of pressure drop across the catalyst bed. When catalysts are
`used to treat engine exhausts . . . it is usually desired to
`minimize pressure drop in order to enhance the efficiency of the
`engine. In such cases, the preferred physical configuration of
`the catalyst is one which provides parallel flow passageways for
`the gas, such as those found in the above-described honey-
`comb-type catalysts.
`Id. at 7:30–41.
`In the Examples, Speronello describes coating a honeycomb ceramic
`support with a washcoat of synthetic zeolite by immersing the support in a
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`zeolite-containing slurry, resulting in loading amounts ranging from 1.5 g/in3
`to 2.0 g/in3. Id. at 8:18–12:48.
`
`3. Hashimoto
`Hashimoto relates to diesel particulate filters, noting that “[t]ighter
`PM emission regulations will be introduced in Europe, United States and
`Japan on passenger cars and trucks over the next 7 years. DPF (diesel
`particulate filter) has been the primary technology considered in meeting
`these tight PM emission limits.” Ex. 1007, 1.2 Hashimoto discloses that the
`addition of a DPF exhaust system increases back engine pressure, and the
`limited amount of space available for DPFs in automobiles makes it difficult
`to provide a sufficient filtration area. Id. Thus, according to Hashimoto,
`“optimizing pressure-drop and trapping efficiency simultaneously is a
`notable challenge for DPF systems.” Id. Hashimoto states that “[a]
`catalyzed DPF system has been proposed as a future PM emission control
`technology.” Id.
`Hashimoto studies the factors that influence pressure drop and
`filtration efficiency of a DPF, and seeks to develop a design and select
`materials for use in DPFs that will minimize pressure drop while
`maintaining the ability to trap particulate matter. See generally id.
`Based on tests conducted on uncatalyzed DPFs, Hashimoto states that
`“it was concluded that a material with high porosity and with high pore sizes
`is desirable to have low pressure drop performance.” Id. at 7. Specifically,
`Hashimoto concludes that the optimum pore size is between 10µm and
`
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`2 Consistent with the practice of the Petitioner regarding this reference, page
`numbers for this exhibit refer to those appearing at the top center of each
`page.
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`70µm. Id. Hashimoto discloses DPF filters having porosity values from
`53% to 65%, and mean pore sizes ranging from 15µm to 35µm. Id. at 10,
`Table 3 (reporting values for DHC-558 and DHC-611).
`
`With regard to catalyzed DPF systems, Hashimoto teaches that
`applying the catalyst washcoat inside the pores reduces the porosity of the
`DPF material and changes the post-coated pore size distribution. Id. at 12.
`Hashimoto measured the pressure-drop across two coated DPFs, DHC-558
`and DHC-611, with a washcoat loading of 100 g/L on each filter.
`Hashimoto compared the performance of the coated filters with the
`performance of the uncoated filters, and noted that the coated filters showed
`an increased pressure drop of 170% and 100%, respectively, over uncoated
`filters. Id. at 13. Because the filter with higher porosity (DHC-611) showed
`a smaller increase in pressure-drop, Hashimoto states that these test results
`“indicate[] that high porosity DPF material has an advantage for a catalyzed
`DPF system,” that “porosity and mean pore size of the DPF materials are
`critical for the catalyzed DPF system,” and that “high porosity material can
`be coated with significantly higher wash coat loading without adversely
`effecting pressure-drop.” Id. Ultimately, Hashimoto states that “SiC and
`Cordierite DPF designed for low pressure-drop are prime candidates for the
`catalyzed system.” Id.
`
`4. Teraoka
`Teraoka teaches that “Cu-loaded MFI zeolites showed the catalytic
`activity for the oxidation of soot and reduction of NOx simultaneously in the
`soot-NOx-O2 reaction system.” Ex. 1009, 604. Similar to the other
`references discussed herein, Teraoka begins by explaining that nitrogen
`oxides and soot particulates emitted from diesel exhaust contribute greatly to
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`environmental pollution, and notes the tightening regulation of diesel
`emissions with regard to NOx and particulate matters. Id. Teraoka
`describes studies regarding the simultaneous NOx–soot removal reaction,
`and reports on the “catalytic property of Cu-loaded MFI for the simultaneous
`NOx–soot removal reaction.” Id.
`Teraoka states that the catalytic activity for the simultaneous NOx–
`soot removal was evaluated by packing a mixture of catalyst and activated
`carbon in a reactor, heating the reactor while flowing NO-O2-He gas through
`it, and analyzing the outlet gas. Id. According to Teraoka, the soot that was
`pre-mixed with the catalyst was oxidized by either NOx or O2 to produce
`CO2, and the NOx was reduced by the soot into N2 and N2O. Id. Based on
`this study, Teraoka states that “Cu introduced in MFI zeolites effectively
`works as a catalyst for the simultaneous NOx–soot removal reaction.” Id.
`Teraoka concludes that a Cu MFI zeolite “is a promising NOx–soot
`removal catalyst showing medium soot ignition activity and high selectivity
`to N2 formation.” Id. at 605.
`E. Analysis of Grounds of Unpatentability
`Petitioner argues that the subject matter of claims 1–27 would have
`been obvious over Hüthwohl3 in view of Hashimoto and Speronello, and
`further in view of Teraoka. After considering the arguments and evidence
`presented in the Petition and the Preliminary Response, we instituted trial
`against claims 1–27, determining that Petitioner was reasonably likely to
`prevail in showing that the subject matter of the challenged claims would
`
`
`3 Petitioner contends that Hüthwohl was not relied upon during prosecution
`of the application leading to the ’982 patent or the related reexaminations.
`Pet. 17.
`
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`16
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`have been obvious over the combined teachings of Hüthwohl, Hashimoto,
`Speronello, and Teraoka. Dec. on Inst. 13–21.
`With the exception of claim 15, Patent Owner does not challenge
`Petitioner’s evidence and arguments that the combined teachings of
`Hüthwohl, Speronello, Hashimoto, and Teraoka disclose or suggest all of the
`limitations of the challenged claims. Thus, with respect to claims 1–14 and
`16–27, we are left to consider only the evidence of record as presented in the
`Petition. See Pet. 16–51.
`Based on the complete record, we find that Petitioner has presented
`sufficient evidence demonstrating that the combined teachings of Hüthwohl,
`Speronello, Hashimoto, and Teraoka disclose or suggest all of the limitations
`of claims 1–14 and 16–27. Generally, Petitioner directs us to specific
`portions of Hüthwohl, Hashimoto, and Speronello in arguing that the claims
`of the ’982 patent simply combine well-known elements of the prior art to
`yield predictable results. Pet. 1, 41–49. For example, Petitioner argues that
`the independent claims of the ’982 patent require a wall flow filter having an
`SCR catalyst composition permeating the walls of the filter. Id. at 12–13.
`Petitioner points out that the ’982 patent itself recognizes that DPFs were a
`“key technology” already in use, including wall flow filters (id. at 5, 13–14;
`Ex. 1001, 2:13–14, 20–21, 9:49–50; Ex. 1005 (describing CRT system using
`wall flow DPF)), and that SCR was a “proven NOx abatement technology”
`(Pet. 10, 13–14; Ex. 1001, 2:41–44, 8:1–4; Ex. 1005).
`Petitioner argues that Hüthwohl teaches loading an SCR catalyst onto
`a wall flow filter, but acknowledges that Hüthwohl is silent with regard to
`the details of the SCR catalyst and the filter. See Pet. 19, 23–24, 37, 41
`(claim chart). Petitioner, however, asserts that Hashimoto discloses a wall
`
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`17
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`flow monolith having a plurality of longitudinally extending passages where
`some passages are blocked at the upstream end and unblocked at the
`downstream end, and other passages are unblocked at the upstream end and
`blocked at the downstream end. Id. at 41. Petitioner further asserts that
`Hashimoto discloses filters with porosity and mean pore size values (e.g.,
`DHC-611 filter with 59% porosity and 25 µm pore size) that fall within the
`ranges required in the challenged claims. Id. at 42 (citing Ex. 1007, 13).
`With regard to the details of the SCR catalyst, Petitioner asserts that
`Speronello discloses a catalyst formed by dipping a substrate into an iron
`and/or copper-promoted zeolite slurry. Id. (citing Ex. 1008, 7:23–25).
`Petitioner further asserts that Speronello discloses the slurry permeating the
`walls at loadings ranging from 1.5 to 2.0 g/in3, which falls within the
`claimed ranges. Id. at 43 (citing Ex. 1008, 8:57–60, 9:26–29, 9:60–64,
`10:26–30, 10:64–67, 11:39–42, 12:45–48).
`Petitioner also asserts that Teraoka’s disclosure of Cu-loaded MFI
`zeolites having “catalytic activity for the oxidation of soot and reduction of
`NOx simultaneously” corresponds to the requirement that the claimed wall
`flow monolith has “integrated, NOx and particulate removal efficiency in
`which the presence of the catalytic material in the wall flow monolith
`catalyzes the oxidation of soot.” Id. at 44 (citing Ex. 1009, Abstract);
`Ex. 1001, 15:61–64.
`Accordingly, we find that the preponderance of the evidence supports
`a finding that Petitioner has demonstrated that all of the limitations of claims
`1–14 and 16–27 are disclosed or suggested by the combined teachings of
`
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`Hüthwohl, Speronello, Hashimoto, and Teraoka.4 As a result, we focus on
`the parties’ arguments directed to whether Petitioner has shown that a person
`of ordinary skill in the art would have had reason to combine the teachings
`of the prior art references, and whether, in doing so, a person of ordinary
`skill in the art would have had a reasonable expectation of success in
`arriving at the claimed subject matter. Pet. 16–37; PO Resp. 1–49; Reply 1–
`18.
`
`1. Petitioner’s Arguments
`According to Petitioner, the patentability of the challenged claims
`depends on whether it would have been obvious to select two well-known
`elements—a wall flow filter and a copper zeolite SCR catalyst—and
`combine them into a single unit. Pet. 14. Petitioner argues that there was a
`known problem that provided a reason for combining the claimed elements,
`namely the newly proposed emission standards. Id. at 22–23 (noting that
`“[t]here was a problem (the need to simultaneously lessen NOx and
`particulate matter emissions) and a ‘market pressure to solve [that] problem’
`(such an emission treatment system would be needed in every new
`commercial vehicle after 2008)”), 37. Petitioner argues that Hüthwohl
`expressly describes combining these claimed elements, noting that Hüthwohl
`states that reduced emission values can “only [be] achieved by combining a
`particle filter with an SCR catalyst” and that Hüthwohl discloses an emission
`treatment system that loads an SCR catalyst into the wall flow filter (the
`SCRT system). Id. at 19 (citing Ex. 1005, 3), 22–23 (noting that Hüthwohl
`teaches using “the volume of the soot filter for the SCR reaction”).
`
`
`4 Patent Owner presents separate arguments regarding claim 15. In view of
`our discussion below, however, we need not address those arguments.
`
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`Petitioner also contends that space constraints for exhaust systems on
`vehicles made combining an SCR and soot filter into one system the only
`feasible option. Id. at 23; Reply 4.
`Petitioner relies on the results disclosed in Hüthwohl, namely the
`system’s overall reduction of particulate matter emissions by over 90% and
`NOx emissions by over 47%, in asserting that Hüthwohl demonstrated its
`system worked, and, therefore, a person of ordinary skill in the art would
`have had a reasonable expectation of success in combining an SCR catalyst
`into a soot filter to simultaneously reduce NOx and particulate matter. Pet.
`24.
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