DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Continued Examination Under 37 CFR 1.114
A request for continued examination (RCE) under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 10 July 2026 has been entered.
Status of the Claims
Claims 1-8, 10-16, and 19-23 are pending.
Claim 23 is new.
Claims 1, 4, 5, 7, 12, 16, and 19 are currently amended.
Claim 18 is currently cancelled.
Claims 9 and 17 were previously cancelled.
Response to Amendments
Applicant’s amendments filed on 10 July 2026 are acknowledged.
Claim Rejections - 35 USC § 103
Applicant’s amendment to claim 1 adding an aqueous solution comprising an inorganic compound at a specific concentration is taught by Welker-Nieuwoudt and Applicant’s amendment to claim 1 adding an aqueous solution of a sulfur-comprising inorganic compound at a specific concentration is taught by Eger; as a result, the amendments are not sufficient to overcome the rejections of:
Claims 1-8, 10-13, 15, 18, 19, 21 and 22 under 35 U.S.C. 103 as being unpatentable over Welker-Nieuwoudt et al. (US20140221683, published 07 August 2014, hereinafter Welker-Nieuwoudt) in view of Eger et al. (US20130172577, published 04 July 2013, hereinafter Eger);
Claim 16 under 35 U.S.C. 103 as being unpatentable over Welker-Nieuwoudt et al. (US20140221683, published 07 August 2014, hereinafter Welker-Nieuwoudt) in view of Eger et al. (US20130172577, published 04 July 2013, hereinafter Eger), as applied to claims 1-8, 10-13, 15, 18, 19, 21, and 22 in the 35 USC 103 rejection above, in further view of Mironov et al. (US20120168350, published 05 July 2012, hereinafter Mironov); and,
Claim 20 under 35 U.S.C. 103 as being unpatentable over Welker-Nieuwoudt et al. (US20140221683, published 07 August 2014, hereinafter Welker-Nieuwoudt) in view of Eger et al. (US20130172577, published 04 July 2013, hereinafter Eger), as applied to claims 1-8, 10-13, 15, 18, 19, 21, and 22 in the 35 USC 103 rejection above, in further view of Sugi et al. (US5959143, patented on 28 September 1999, hereinafter Sugi).
Due to the cancellation of claim 18 and the amendments to claim 1, the rejection of claims 1-8, 10-13, 15, 18, 19, 21 and 22 under 35 U.S.C. 103 as being unpatentable over Welker-Nieuwoudt et al. (US20140221683, published 07 August 2014, hereinafter Welker-Nieuwoudt) in view of Eger et al. (US20130172577, published 04 July 2013, hereinafter Eger) is modified and an additional modified ground(s) of rejection is/are provided below.
Due to the addition of new claim 23, the rejection of claim 16 under 35 U.S.C. 103 as being unpatentable over Welker-Nieuwoudt et al. (US20140221683, published 07 August 2014, hereinafter Welker-Nieuwoudt) in view of Eger et al. (US20130172577, published 04 July 2013, hereinafter Eger), as applied to claims 1-8, 10-13, 15, 18, 19, 21, and 22 in the 35 USC 103 rejection above, in further view of Mironov et al. (US20120168350, published 05 July 2012, hereinafter Mironov) is modified and an additional new ground(s) of rejection is/are provided below.
The rejection of claim 20 under 35 U.S.C. 103 as being unpatentable over Welker-Nieuwoudt et al. (US20140221683, published 07 August 2014, hereinafter Welker-Nieuwoudt) in view of Eger et al. (US20130172577, published 04 July 2013, hereinafter Eger), as applied to claims 1-8, 10-13, 15, 18, 19, 21, and 22 in the 35 USC 103 rejection above, in further view of Sugi et al. (US5959143, patented on 28 September 1999, hereinafter Sugi) is maintained in modified form due to the cancellation of claim 18.
Response to Arguments
Applicant’s arguments filed 10 July 2026 have been fully considered but they are not persuasive.
Applicant’s argue that Welker-Nieuwoudt, Eger, and Mironov or Sugi do not disclose the limitations as recited in currently amended claim 1. These arguments have been considered but are not persuasive for the reasons set forth in the new, modified, and maintained grounds of rejection below and the response to arguments below.
In response to Applicant’s arguments on pages 5-7 of the remarks filed on 10 July 2026 that “Eger is silent using an aqueous solution, nor the claimed amounts and concentrations of the claimed sulfur-comprising inorganic compound. Eger does not appear to contemplate these features because it seems that such modifications would be unsuitable for Eger's invention”; “[t]herefore, in the present invention, the amount of aqueous solution of sulfur-containing inorganic compound (molding aid) added to the powder is 10.26% or more, which is greater than the 10% disclosed by Eger.”
““The use of patents as references is not limited to what the patentees describe as their own inventions or to the problems with which they are concerned. They are part of the literature of the art, relevant for all they contain.” In re Heck, 699 F.2d 1331, 1332-33, 216 USPQ 1038, 1039 (Fed. Cir. 1983) (quoting In re Lemelson, 397 F.2d 1006, 1009, 158 USPQ 275, 277 (CCPA 1968)). A reference may be relied upon for all that it would have reasonably suggested to one having ordinary skill in the art, including nonpreferred embodiments. Merck & Co. v. Biocraft Labs., Inc. 874 F.2d 804, 10 USPQ2d 1843 (Fed. Cir. 1989), cert. denied, 493 U.S. 975 (1989).” ““Furthermore, “[t]he prior art’s mere disclosure of more than one 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….”. In re Fulton, 391 F.3d 1195, 1201, 73 USPQ2d 1141, 1146 (Fed. Cir. 2004)”, see MPEP 2123.
In this case, Applicant’s appear to have focused on only one embodiment of Eger. Eger also teaches “preference is given to effecting the intimate mixing of the sources in wet form. Typically, the starting compounds are mixed with one another, for example, in the form of an aqueous solution and/or suspension … . Particularly intimate shapeable mixtures are obtained when the starting materials are exclusively sources of the elemental constituents present in dissolved form. The solvent used is preferably water … If water was the basis of the liquid medium, the resulting spray powder will normally comprise not more than 20% of its weight, preferably not more than 15% of its weight and more preferably not more than 10% of its weight of water. … After addition (or else without such an addition) of the desired shaping assistants to the particular dry mass in pulverulent form, the pulverulent mixture, as a fine precursor mixture (pulverulent aggregate), can be compacted (shaped) in accordance with the invention to the desired shaped multimetal oxide unsupported catalyst precursor bodies. The fine shaping assistants may, however, also already be added beforehand to the spray slurry (partly or completely). Only partial removal of the solvent or suspension medium may also be appropriate when its additional use as a shaping assistant is intended”, see Paras. [0254]-[0255], where the shaping assistants are pore formers, such as NH4HSO4 aka ammonium bisulfate, (NH4)2SO4 aka ammonium sulfate, ammonium oxalate and/or hydrates of the aforementioned ammonium salts, and water, see Paras. [0229];[0254]-[0255], and “[b]ased on the total amount of the pulverulent aggregate to be compacted in accordance with the invention (of an aggregate O), the total amount of shaping assistants will generally not be more than 30% by weight, usually not more than 20% by weight and in many cases not more than 10% by weight”, see Para. [0232]. See also, pages 11-13 of the previous office action dated 12 May 2026 (hereinafter POA), where all of the above Eger paragraph citations are detailed in the POA.
Therefore, Eger specifically teaches mixing the catalyst sources in wet/aqueous form with not more than 20% water including NH4HSO4 aka ammonium bisulfate and/or (NH4)2SO4 aka ammonium sulfate added in a total amount of not be more than 30% by weight. Eger does not “criticize, discredit, or otherwise discourage” the use of an aqueous solution continuing sulfur-comprising inorganic compounds, see MPEP 2145 X.D.1. On the contrary, Eger specifically teaches “preference is given to effecting the intimate mixing of the sources in wet form”, see Paras. [0254]-[0255].
For the reasons indicated above, Applicant’s above arguments are not persuasive.
In response to Applicant’s arguments on pages 7-8 of the remarks filed on 10 July 2026 that “the applicant has already shown that the use of lower amounts of oxygen than air provides unexpectedly good results, which should evidence non-obviousness over Eger's apparent openness to all volume percentages of O2, in Comparative Example A.”
As stated on page 4 of the office action dated 12 December 2025, “Eger specifically teaches the powder mixture is molded to produce a catalysts precursor that is then fired/calcined/thermally treated at a temperature of 150 to 650° C or 500 to 800° C in an atmosphere of molecular oxygen of at least 0.1% by volume, frequently at least 0.2% by volume, in many cases at least 0.5% by volume, often at least 1% by volume, or at least 10% by volume, see Paras. [0121];[0235]-[0236];[0386]-[0396]. Since patents are part of the literature of the prior art relevant for all they contain, see MPEP 2123, Eger specifically teaches firing in atmospheres of reduced molecular oxygen as low as 0.1% by volume. For the reasons indicated above, applicant’s above arguments are not persuasive.”
The fact that the inventor has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious, see Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985). In addition, “[t]o establish unexpected results over a claimed range, applicants should compare a sufficient number of tests both inside and outside the claimed range to show the criticality of the claimed range” In re Hill, 284 F.2d 955, 128 USPQ 197 (CCPA 1960), see MPEP 716.02(d).
Instant application claim 1 states “firing the catalyst precursor in a firing atmosphere having an oxygen concentration of 10% by volume or less”. Applicant’s argue, as stated above, this oxygen concentration range “provides unexpectedly good results”; however, Applicant’s have not provided a proper comparison to the closest prior art and have not established test points inside and outside the claimed range of the oxygen concentration in the firing in order to support the argument of surprising and unexpected results, see MPEP 716.02(e).
The instant specification is relied upon for any comparison tests/examples. Applicant’s appear to compare the method of Eger to the Examples in the instant specification with an added Comparative Example A using air as the oxidant in the firing. As stated above, Eger teaches the catalyst thermal treatment is under an atmosphere with a content of molecular oxygen of “at least 0.1% by volume, frequently at least 0.2% by volume, in many cases at least 0.5% by volume, often at least 1% by volume, or at least 10% by volume”, see Eger, Para. [0235]. Instant Examples 1-5 and Instant Comparative Examples 1 and 2 all apply 2% by volume of oxygen. Eger teaches the oxygen concentration is within the concentration range as instantly claimed, in the Instant Examples, and in the Instant Comparative Examples 1 and 2. Therefore, the instant specification does not provide a comparison to the closest prior art and test points above the range of the oxygen content of air in order to support the argument of surprising and unexpected results due to the oxygen concentration of 10% by volume or less, see MPEP 716.02(e).
For the reasons indicated above, Applicant’s above arguments are not persuasive.
In response to Applicant’s arguments on pages 7-8 of the remarks filed on 10 July 2026 that “Welker and Eger's openness the lack of sulfur in its support, in Comparative Example 2, tabulated below” “provides unexpectedly good results”.
The fact that the inventor has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious, see Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985). In addition, “[t]o establish unexpected results over a claimed range, applicants should compare a sufficient number of tests both inside and outside the claimed range to show the criticality of the claimed range” In re Hill, 284 F.2d 955, 128 USPQ 197 (CCPA 1960), see MPEP 716.02(d).
The instant specification is relied upon for any comparison tests/examples. Instant application claim 1 states “wherein the sulfur-comprising inorganic compound is present in the aqueous solution is present in a range of from 5 to 35% by weight, based on total aqueous solution weight”. Instant Examples 1-5 only apply one of the claimed sulfur compounds, ammonium sulphate, all apply the same O2 concentration, and all apply within the claimed range of the sulfur compound. Comparative Example 2 applies zero sulfur containing compound. As a result, Applicant’s have not provided a proper comparison to the closest prior art and have not established test points inside and outside the claimed range of below and above the sulfur-compound concentration in the aqueous solution and have not established test points regarding the differing claimed sulfur compounds in order to support the argument of surprising and unexpected results relating to the addition of the sulfur containing compounds and the concentration of the sulfur containing compounds, see MPEP 716.02(e).
For the reasons indicated above, Applicant’s above arguments are not persuasive.
Claim Objections
Claim 1 is objected to because of the following informalities:
Claim 1, lines 10-11 appear to contain typographical mistakes. The claim states “wherein the sulfur-comprising inorganic compound is present in the aqueous solution is present in a range of from 5 to 35% by weight, based on total aqueous solution weight,”. The claim is interpreted to state “wherein the sulfur-comprising inorganic compound is present in the aqueous solution ”.
Appropriate correction is required.
Claim 14 is objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Claim 14 appears to lack prior art meeting wherein the powder has a formula Mo12V2.4Cu1.2Nb1Sb0.4 in instant application claim 14.
Regarding the limitations of instant application claim 14, Welker-Nieuwoudt (US20140221683, published 07 August 2014, hereinafter Welker-Nieuwoudt) teaches the catalytic powder composition has a variety of Mo12VCu configurations, see Paras. [0095]-[0135], where the catalyst of general formula I is Mo12 Va X1b X2c X3d X4e X5f X6g On, where Va is V1 to 6 or V2.5 to 5, X1b is Nbb or Nb0.5 to 2, X2c is Cuc or Cu0.5 to 3, X3d is Sbd or Sb0 to 2, e, f, and g are 0; therefore, X4e X5f X6g are absent, and On, where “n=a number which is determined by the valency and frequency of the elements in I other than oxygen”, see Paras. [0095]-[0124], i.e., the instantly claimed catalyst powder composition of Mo12 V1 to 6 or V2.5 to 5 Cu0.5 to 3 Nb0.5 to 2 Sb0 to 2. Welker-Nieuwoudt does not specifically teach the instantly claimed formula of Mo12V2.4Cu1.2Nb1Sb0.4.
In the Spirit of Compact Prosecution
While the examiner has attempted to identify all objections and clarity issues amongst the claims, applicant is advised that some objections and clarity issues may still remain. Going forward, the examiner respectfully requests applicant to perform a detailed review of the claims regarding clarity, grammar, antecedent basis, word spacing, and spelling issues.
New, Modified, and Maintained Rejections Based on Amendments to the Claims and the RCE filed on 10 July 2026
For clarity between the new, modified, and maintained rejections, the specific new and modified rejections below are in italics.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1-8, 10-13, 15, 19, 21, and 22 stand rejected in modified form under 35 U.S.C. 103 as being unpatentable over Welker-Nieuwoudt et al. (US20140221683, published 07 August 2014, hereinafter Welker-Nieuwoudt) in view of Eger et al. (US20130172577, published 04 July 2013, hereinafter Eger).
Welker-Nieuwoudt is in the known prior art field of “an improved process for producing a catalytically active composition being a mixture of a multielement oxide comprising the elements Mo and V” “(for example as an active composition shell of an eggshell catalyst, applied to the surface of a (preferably inert) geometric shaped support body), in the course of a heterogeneously catalyzed partial gas phase oxidation of acrolein to acrylic acid catalyzed thereby”, where “both the activity level exhibited and the selectivity of acrylic acid formation achieved are comparatively elevated”, see Abstract; Paras. [0031];[0095]-[0135].
Regarding the limitations of instant application claims 1 and 22, Welker-Nieuwoudt teaches a method of producing a catalyst by providing “the catalytically active composition” that is ground “to a finely divided form (for example comminuted to powder or spall (for example by grinding)), and this finely divided form will be applied as a shell of the catalytically active composition to the outer surface of a geometric shaped support body (to obtain what is called an eggshell catalyst)”, see Paras. [0174]-[0175];[0193]-[0197], meeting the catalyst powder and molding the powder to a shaped body to obtain the catalyst precursor in instant application claim 1;
The shaped body is then calcined/fired in an atmosphere where “the oxygen content (the content of molecular oxygen) in the calcination atmosphere is 0.5 to 10% by volume, more preferably 1 to 5% by volume”, see Paras. [0162]-[0175];[0193]-[0197], meeting the firing atmosphere, within the oxygen concentration range, and the method of producing a catalyst in instant application claim 1;
The catalytic powder composition has a variety of Mo12VCu configurations, see Paras. [0095]-[0135], where the catalyst of general formula I is Mo12 Va X1b X2c X3d X4e X5f X6g On, where Va is V1 to 6 or V2.5 to 5, X1b is Nbb or Nb0.5 to 2, X2c is Cuc or Cu0.5 to 3, X3d is Sbd or Sb0 to 2, e, f, and g are 0; therefore, X4e X5f X6g are absent, and On, where “n=a number which is determined by the valency and frequency of the elements in I other than oxygen”, see Paras. [0095]-[0124], i.e., the instantly claimed catalyst powder composition need only contain Mo12VaCucOn, meeting:
Within the ranges of the catalyst powder composition in instant application claim 1; and,
Where f is 0 in instant application claim 22.
Regarding the limitations of instant application claims 6-8, Welker-Nieuwoudt teaches incorporation of “other organic and/or inorganic materials which escape in gaseous form and/or decompose to give gaseous constituents in the course of the inventive thermal treatment of the geometric shaped precursor bodies”, see Para. [0090], where the shaping assistants include glycerol, see Paras. [0150]-[0158];[0328], and “wherein the mixture to be shaped to the geometric shaped precursor bodies, based on the total amount thereof, comprises 0.1 to 30% by weight of shaping assistants”, “comprises 0.2 to 20% by weight of shaping assistants”, and “comprises 0.5 to 10% by weight of shaping assistants”, see Paras. [0156];[0328]-[0332], meeting:
The organic compound in instant application claim 6;
The specific glycerol aka glycerin in instant application claim 7; and,
Within the weight range in instant application claim 8.
Regarding the limitations of instant application claim 10, Welker-Nieuwoudt teaches “the catalytically active composition obtainable in accordance with the invention will, however, be converted to a finely divided form (for example comminuted to powder or spall (for example by grinding)), and this finely divided form will be applied as a shell of the catalytically active composition to the outer surface of a geometric shaped support body (to obtain what is called an eggshell catalyst)”, see Paras. [0174]-[0175];[0193]-[0197] and MPEP 2144.04 IV.C., i.e., grinding to a powder and molding around an inert carrier, meeting the grinding and molding on a carrier in instant application claim 10.
Regarding the limitations of instant application claim 11, Welker-Nieuwoudt teaches “[t]he geometric shaped catalyst bodies which are obtained (are the result) within an inventive thermal treatment of geometric shaped precursor bodies can be used as such (as what are called unsupported catalysts) in the fixed catalyst bed for catalysis of the heterogeneously catalyzed partial gas phase oxidation of acrolein to acrylic acid”, where “a reaction gas mixture comprising the (meth)acrolein, molecular oxygen and at least one inert diluent gas is conducted at elevated temperature through a catalyst bed, the catalysts of which comprise, as the active composition, at least one catalytically active composition obtainable in accordance with the invention, and the conversion thereof to (meth)acrylic acid is effected during the residence time of the (meth)acrolein in the catalyst bed”, see Paras. [0172];[0174];[0196]-[0201], meeting the method for producing acrylic acid in instant application claim 11.
Regarding the limitations of instant application claim 19, Welker-Nieuwoudt teaches incorporation of “other organic and/or inorganic materials which escape in gaseous form and/or decompose to give gaseous constituents in the course of the inventive thermal treatment of the geometric shaped precursor bodies, for example stearic acid, … starches (e.g. potato starch and/or corn starch), cellulose, … and/or finely ground polymer (for example polyethylene, polypropylene etc.)”, see Para. [0090], meeting adding the specific organic compound to the powder in instant application claim 19.
Regarding the limitations of instant application claim 21, Welker-Nieuwoudt teaches “the inventive thermal treatment of the geometric shaped precursor bodies to form the catalytically active composition comprises (includes) such a drying operation (also referred to as calcination) at temperatures of 200 to 600° C., preferably of 300 to 450° C. or 300 to 400° C. (each material temperature)”, see Para. [0162], meeting within the range of the calcination/firing temperature in instant application claim 21.
Welker-Nieuwoudt does not teach:
The instant application claim 1 limitations of adding a sulfur-containing
compound in the instantly claimed range;
The limitations of instant application claims 2-5, 12, 13, and 15.
Welker-Nieuwoudt and Eger share the same applicant, BASF SE, and an inventor, Joachim Mueller-Engel.
Welker-Nieuwoudt is in the known prior art field of “an improved process for producing a catalytically active composition being a mixture of a multielement oxide comprising the elements Mo and V” “ for a catalytic partial oxidation of acrolein to acrylic acid”, where “both the activity level exhibited and the selectivity of acrylic acid formation achieved are comparatively elevated”, see Abstract; Paras. [0031];[0093]-[0135], and the incorporation of “inorganic materials which escape in gaseous form and/or decompose to give gaseous constituents in the course of the inventive thermal treatment of the geometric shaped precursor bodies”, see Para. [0090].
Eger is in the known prior art field of “processes for producing” “catalyst precursor bodies” of “multimetal oxide” “catalysts whose active multimetal oxide is a multimetal oxide comprising Mo, V and at least one of the elements Te and Sb” and Cu for the “partial gas phase oxidation” “of acrolein to acrylic acid” and “of methacrolein to methacrylic acid”, see Paras. [0260]-[0289];[0385]-[0386], where inorganic materials “which can decompose and/or be decomposed in the course of thermal treatment” are added to the precursor aggregate “as pore formers to give compounds which escape completely in gaseous form”, see Paras. [0227]-[0229];[0250].
Regarding the limitation of instant application claims 1-5, 12, 13, and 15, Eger teaches a method for producing a multimetal oxide unsupported or supported catalyst of general formula XII or XIII, with the elements Mo and V that are suitable for the heterogeneous catalyzed partial gas phase oxidation of acrolein to acrylic acid, in an atmosphere containing molecular oxygen, see Paras. [0239]-[0241];[0245]-[0250];[0260]-[0289];[0385]-[0389].
The catalysts is produced from a pulverulent aggregate metal oxide powder mixed with shaping assistants, such as pore-forming substances selected from NH4HSO4 aka ammonium bisulfate, (NH4)2SO4 aka ammonium sulfate, ammonium oxalate and/or hydrates of the aforementioned ammonium salts, starches, such as potato starch, corn starch, cellulose, stearic acid, salts of stearic acid, among other compounds, and lubricants selected from polyethylene glycol, water, glycerol aka glycerin, and/or cellulose ethers, where the total amount of shaping assistants will generally not be more than 30% by weight, usually not more than 20% by weight and in many cases not more than 10% by weight based on the total amount of the pulverulent aggregate to be compacted, i.e., the shaping assistant plus the pulverulent aggregate metal oxide powder, see Paras. [0227]-[0232];[0242], meeting:
The adding step and within the range of the sulfur-comprising compound in instant application claim 1;
The specific sulfur-comprising compound in instant application claim 2, in instant application claim 3, in instant application claim 4, and in instant application claim 15; and,
Within the range of the sulfur-comprising compound in instant application claim 5, in instant application claim 12, and in instant application claim 13.
Regarding the limitations of currently amended instant application claims 1, 5, and 12, and instant application claim 13, Welker-Nieuwoudt teaches “in the course of mixing of spray powder P and at least one pulverulent oxide S of molybdenum, to additionally incorporate assistants for the subsequent shaping (shaping assistants) (before, during and/or after the mixing of spray powder P and at least one pulverulent oxide S of molybdenum)”, see Para. [0150], “[t]o produce the spray powder P in the process according to the invention, suitable sources of the elemental constituents of the multielement oxide comprising the elements Mo and V are used to obtain an aqueous solution, or an aqueous suspension with the proviso that each of the sources passes through the state of an aqueous solution in the course of obtaining the aqueous suspension”, see Para. [0072]; Claim 1, where the “total water content of the resulting overall mixture may, for example, be 5 to 40% by weight”, “the total amount of shaping assistants present will generally not be more than 30% by weight, usually not more than 20% by weight and in many cases not more than 10% by weight … or ≧ 1% by weight”, and the shaping assistants are inorganic compounds, such as “graphite, carbon black”, “water, boron nitride, boron trifluoride”, “glass, asbestos, silicon carbide and/or potassium titanate”, see Paras. [0150]-[0158], meeting:
Within the range of adding an inorganic compound in an aqueous solution to the powder mass in instant application claim 1, in instant application claim 5, in instant application claim 12, and in instant application claim 13; and,
Within the range of an inorganic compound in an aqueous solution in instant application claim 1.
As stated above, Welker-Nieuwoudt does not teach:
The instant application claim 1 limitations of adding a sulfur-containing
compound in the instantly claimed range.
Regarding the limitations of currently amended instant application claims 1, 5, and 12, and instant application claim 13, Eger teaches “preference is given to effecting the intimate mixing of the sources in wet form. Typically, the starting compounds are mixed with one another, for example, in the form of an aqueous solution and/or suspension … . Particularly intimate shapeable mixtures are obtained when the starting materials are exclusively sources of the elemental constituents present in dissolved form. The solvent used is preferably water … If water was the basis of the liquid medium, the resulting spray powder will normally comprise not more than 20% of its weight, preferably not more than 15% of its weight and more preferably not more than 10% of its weight of water. … After addition (or else without such an addition) of the desired shaping assistants to the particular dry mass in pulverulent form, the pulverulent mixture, as a fine precursor mixture (pulverulent aggregate), can be compacted (shaped) in accordance with the invention to the desired shaped multimetal oxide unsupported catalyst precursor bodies. The fine shaping assistants may, however, also already be added beforehand to the spray slurry (partly or completely). Only partial removal of the solvent or suspension medium may also be appropriate when its additional use as a shaping assistant is intended”, see Paras. [0254]-[0255], where the shaping assistants are pore formers, such as NH4HSO4 aka ammonium bisulfate, (NH4)2SO4 aka ammonium sulfate, ammonium oxalate and/or hydrates of the aforementioned ammonium salts, and water, see Paras. [0229];[0254]-[0255], and “[b]ased on the total amount of the pulverulent aggregate to be compacted in accordance with the invention (of an aggregate O), the total amount of shaping assistants will generally not be more than 30% by weight, usually not more than 20% by weight and in many cases not more than 10% by weight”, see Para. [0232].
Therefore, Eger specifically teaches mixing the catalyst sources in wet/aqueous form with not more than 20% water including NH4HSO4 aka ammonium bisulfate and/or (NH4)2SO4 aka ammonium sulfate added in a total amount of not be more than 30% by weight with respect to the particular dry mass in pulverulent form. Eger does not “criticize, discredit, or otherwise discourage” the use of an aqueous solution continuing sulfur-comprising inorganic compounds, see MPEP 2145 X.D.1. On the contrary, Eger specifically teaches “preference is given to effecting the intimate mixing of the sources in wet form”, see Paras. [0254]-[0255], meeting:
Within the range of adding a sulfur-comprising inorganic compound in an aqueous solution to the powder mass in instant application claim 1, in instant application claim 5, in instant application claim 12, and in instant application claim 13; and,
Within the range of the sulfur-comprising inorganic compound in an aqueous solution in instant application claim 1.
In reference to the above claims, it would have been obvious to one of ordinary
skill in the art, before the effective filing date of the claimed invention, to have modified the aqueous solution of inorganic shaping assistant pore former of Welker-Nieuwoudt to use the aqueous solution of sulfur-containing inorganic shaping assistant pore formers as taught by Eger with a reasonable predictability of success for the purpose of efficiently performing a heterogeneously catalyzed partial gas phase oxidation of acrolein to acrylic acid with improved catalyst performance due to the creation of a catalyst with an optimal “pore structure”, see Eger, Paras. [0120];[0227]-[0229];[0240];[0246];[0254]-[0255];[0386].
A rationale to support a conclusion that the claim would have been obvious is that a particular known technique was recognized as part of the ordinary capabilities of one skilled in the art. Another rationale to support a conclusion that the claim would have been obvious is that the substitution of one known element for another yields predictable results to one of ordinary skill in the art. One of ordinary skill in the art would have been capable of modifying the aqueous solution of inorganic pore former of Welker-Nieuwoudt by applying the known aqueous solution of sulfur-containing inorganic shaping assistant pore formers as taught by Eger with a reasonable predictability of success for the purpose of efficiently performing a heterogeneously catalyzed partial gas phase oxidation of acrolein to acrylic acid with improved catalyst performance due to the creation of a catalyst with an optimal “pore structure”, see Eger, Paras. [0120];[0227]-[0229];[0240];[0246];[0254]-[0255];[0386]; and MPEP 2143 I. B-D.
The rationale to support a conclusion that the claim would have been obvious is that “a person of ordinary skill has good reason to pursue the known options within his or her technical grasp. If this leads to the anticipated success, it is likely that product [was] not of innovation but of ordinary skill and common sense”, see MPEP 2143 I.E. Since patents are part of the literature of the prior art relevant for all they contain, see MPEP 2123, and Welker-Nieuwoudt and Eger both teach the use of Mo, V, Cu catalysts with aqueous solution inorganic pore forming shaping assistants for the oxidation of acrolein to acrylic acid, a person of ordinary skill in the art has good reason to modify Welker-Nieuwoudt by relying upon Eger before the effective filing date of the claimed invention for knowledge generally available within the Mo, V, Cu catalytic oxidation of acrolein to acrylic acid art, see MPEP 2143 B & G and 2141, for the benefit of efficiently performing a heterogeneously catalyzed partial gas phase oxidation of acrolein to acrylic acid with improved catalyst performance due to the creation of a catalyst with an optimal “pore structure”, see Eger, Paras. [0120];[0227]-[0229];[0240];[0246];[0254]-[0255];[0386]; and, MPEP 2141 and 2143 I. B-D.
Furthermore, an “obvious to try” rationale may support a conclusion that a claim would have been obvious where one skilled in the art is choosing from a finite number of identified, predictable solutions, with a reasonable expectation of success, see MPEP 2145 X.B. Since both Welker-Nieuwoudt and Eger teach the use of Mo, V, Cu catalysts with aqueous solutions of inorganic pore forming shaping assistants for the oxidation of acrolein to acrylic acid, the prior art contains “detailed enabling methodology, a suggestion to modify the prior art to produce the claimed invention, and evidence suggesting the modification would be successful”, see MPEP 2145 X.B.; therefore, it would have been obvious for one of ordinary skill in the art at the time the invention was made to try the aqueous solution of sulfur-containing inorganic shaping assistant pore formers as taught by Eger as the aqueous solution of inorganic pore forming shaping assistants in the Mo, V, Cu catalytic oxidation of acrolein to acrylic acid of Welker-Nieuwoudt.
As stated in Sakraida v. Ag Pro, Inc., 425 U.S. 273, 189 USPQ 449, reh’g denied,
426 U.S. 955 (1976), “[w]hen a work is available in one field of endeavor, design
incentives and other market forces can prompt variations of it, either in the same field
or a different one. If a person of ordinary skill can implement a predictable variation, §103 likely bars its patentability. For the same reason, if a technique has been used to
improve one device, and a person of ordinary skill in the art would recognize that it
would improve similar devices in the same way, using the technique is obvious unless its actual application is beyond his or her skill”, see MPEP 2141.
“The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set
of percentage ranges”, such as the concentration of the sulfur-containing inorganic shaping assistant aqueous solution pore formers in the catalytic powder, “is the optimum combination of percentages.” In re Hoeschele, 406 F.2d 1403, 160 USPQ 809 (CCPA 1969), see MPEP 2144.05.
Selection of a known material, such as an aqueous solution sulfur-containing inorganic shaping assistant pore former, based on its suitability for its intended use supported a prima facie obviousness determination in Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945), see MPEP 2144.07.
In addition, “[i]t is a settled principle of law that a mere carrying forward of an original patented conception involving only change of form, proportions,” such as the concentration of the sulfur-containing inorganic shaping assistant aqueous solution pore formers in the catalytic powder, “or degree, or the substitution of equivalents doing the same thing as the original invention, by substantially the same means, is not such an invention as will sustain a patent, even though the changes of the kind may produce better results than prior inventions. In re Williams, 36 F.2d 436, 438, 4 USPQ 237 (CCPA 1929)”, see MPEP 2144.05.
Claim 16 stands rejected in modified form and Claim 23 is rejected under 35 U.S.C. 103 as being unpatentable over Welker-Nieuwoudt et al. (US20140221683, published 07 August 2014, hereinafter Welker-Nieuwoudt) in view of Eger et al. (US20130172577, published 04 July 2013, hereinafter Eger), as applied to claims 1-8, 10-13, 15, 19, 21, and 22 in the 35 USC 103 rejection above, in further view of Mironov et al. (US20120168350, published 05 July 2012, hereinafter Mironov).
Welker-Nieuwoudt and Eger do not disclose the limitations of instant application claims 16 and 23.
Mironov is in the known prior art field of the preparation of molybdenum and sulfiding agent containing catalysts, see Paras. [0006];[0008];[0118], “having improved properties including but not limited to high surface area and large pore volume”, see Paras. [0065];[0101].
Regarding the limitations of instant application claims 16 and 23, Mironov teaches the sulfiding agent is ammonium thiosulfate and/or ammonium sulfamate, see Claim 8; Paras. [0074];[0078];[0081];[0096];[0101];[0109];[0116];[0123], meeting:
The specific sulfur comprising compound in instant application claim 16 and in instant application claim 23.
In reference to the above claims, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified the inorganic shaping assistant pore former of Welker-Nieuwoudt to use the sulfurs and pore forming agents as taught by Mironov with a reasonable predictability of success for the purpose of improving catalytic morphology, structure, and performance, such as selectivity and activity, see Mironov, Paras. [0005];[0065];[0081];[0101];[0108]-[0109];[0115];[0131].
The rationale to support a conclusion that the claim would have been obvious is that “a person of ordinary skill has good reason to pursue the known options within his or her technical grasp. If this leads to the anticipated success, it is likely that product [was] not of innovation but of ordinary skill and common sense”, see MPEP 2143 I.E. Since patents are part of the literature of the prior art relevant for all they contain, see MPEP 2123, and both Welker-Nieuwoudt and Mironov teach adding inorganic shaping assistant pore formers to the catalyst, a person of ordinary skill in the art has good reason to produce a sulfurized porous catalyst, by pursuing the known options within their technical grasp before the effective filing date of the claimed invention for the benefit of improving catalytic morphology, structure, and performance, such as selectivity and activity, see Mironov, Paras. [0005];[0065];[0081];[0101];[0108]-[0109];[0115];[0131], and MPEP 2141.
As stated in Sakraida v. Ag Pro, Inc., 425 U.S. 273, 189 USPQ 449, reh’g denied,
426 U.S. 955 (1976), “[w]hen a work is available in one field of endeavor, design
incentives and other market forces can prompt variations of it, either in the same field
or a different one. If a person of ordinary skill can implement a predictable variation, §
103 likely bars its patentability. For the same reason, if a technique has been used to
improve one device, and a person of ordinary skill in the art would recognize that it
would improve similar devices in the same way, using the technique is obvious unless its
actual application is beyond his or her skill”, see MPEP 2141.
Selection of a known materials, such as sulfur comprising compounds, based on their suitability for their intended use supported a prima facie obviousness determination in Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945), see MPEP 2144.07.
In addition, “[i]t is a settled principle of law that a mere carrying forward of an original patented conception involving only change of form, proportions, or degree, or the substitution of equivalents doing the same thing as the original invention, by substantially the same means, is not such an invention as will sustain a patent, even though the changes of the kind may produce better results than prior inventions. In re Williams, 36 F.2d 436, 438, 4 USPQ 237 (CCPA 1929)”, see MPEP 2144.05.
Claim 20 stands rejected under 35 U.S.C. 103 as being unpatentable over Welker-Nieuwoudt et al. (US20140221683, published 07 August 2014, hereinafter Welker-Nieuwoudt) in view of Eger et al. (US20130172577, published 04 July 2013, hereinafter Eger), as applied to claims 1-8, 10-13, 15, 19, 21, and 22 in the 35 USC 103 rejection above, in further view of Sugi et al. (US5959143, patented on 28 September 1999, hereinafter Sugi).
Welker-Nieuwoudt and Eger do not disclose the limitations of instant application claim 20.
Welker-Nieuwoudt teaches “[t]he support materials may be porous or nonporous”, see Para. [0181].
Eger teaches the catalytic active metals are supported on a carrier/support such as aluminum silicate, see Paras. [0387]-[0398].
Sugi is in the known prior art field of (1) a catalyst in which a catalytically active component has a composition represented by the formula (1): Mo.sub.12 V.sub.a W.sub.b Cu.sub.c Sb.sub.d X.sub.e Y.sub.f Z.sub.g O.sub.h (1) for use in the production of acrylic acid by catalytically oxidizing acrolein in gas phase with molecular oxygen, see Col. 1, Ln. 59-Col. 2, Ln. 63.
Regarding the limitations of instant application claim 20, Sugi teaches shaping (c) by coating a carrier with the powder of catalytically active component using a tumble granulator, then calcination, where the carrier has a porosity of 30 to 50%, see Col. 2, Lns. 43-52; Col. 4, Lns. 37-47; Col. 5, Lns. 9-46; meeting:
Within the porosity range in instant application claim 20.
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified the method of supporting and molding of Welker-Nieuwoudt to use the tumble granulation and support porosity as taught by Sugi with a reasonable predictability of success for the purpose of producing acrylic acid by catalytically oxidizing acrolein in gas phase with molecular oxygen using a catalyst with a higher activity, higher mechanical strength, higher load conditions, and a higher selectivity toward acrylic acid, see Sugi, Col. 1, Lns. 59-64; Col. 4, Lns. 27-47; Col. 6, Lns. 18-24.
The rationale to support a conclusion that the claim would have been obvious is that “a person of ordinary skill has good reason to pursue the known options within his or her technical grasp. If this leads to the anticipated success, it is likely that product [was] not of innovation but of ordinary skill and common sense”, see MPEP 2143 I.E. Since patents are part of the literature of the prior art relevant for all they contain, see MPEP 2123, and both Welker-Nieuwoudt and Sugi teach producing acrylic acid by catalytically oxidizing acrolein in gas phase with molecular oxygen, a person of ordinary skill in the art has good reason to produce acrylic acid, by pursuing the known options within their technical grasp before the effective filing date of the claimed invention for the benefit of producing acrylic acid by catalytically oxidizing acrolein in gas phase with molecular oxygen using a catalyst with a higher activity, higher mechanical strength, higher load conditions, and a higher selectivity toward acrylic acid, see Sugi, Col. 1, Lns. 59-64; Col. 4, Lns. 27-47; Col. 6, Lns. 18-24, and MPEP 2141.
As stated in Sakraida v. Ag Pro, Inc., 425 U.S. 273, 189 USPQ 449, reh’g denied,
426 U.S. 955 (1976), “[w]hen a work is available in one field of endeavor, design
incentives and other market forces can prompt variations of it, either in the same field
or a different one. If a person of ordinary skill can implement a predictable variation, §
103 likely bars its patentability. For the same reason, if a technique has been used to
improve one device, and a person of ordinary skill in the art would recognize that it
would improve similar devices in the same way, using the technique is obvious unless its
actual application is beyond his or her skill”, see MPEP 2141.
Selection of a known material, such as a catalytic carrier, based on its suitability for its intended use supported a prima facie obviousness determination in Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945), see MPEP 2144.07.
“The normal desire of scientists or artisans to improve upon what is
already generally known provides the motivation to determine where in a disclosed set
of percentage ranges”, such as the carrier % porosity, “is the optimum combination of percentages.” In re Hoeschele, 406 F.2d 1403, 160 USPQ 809 (CCPA 1969), see MPEP 2144.05.
In addition, “[i]t is a settled principle of law that a mere carrying forward of an original patented conception involving only change of form, proportions, or degree, or the substitution of equivalents doing the same thing as the original invention, by substantially the same means, is not such an invention as will sustain a patent, even though the changes of the kind may produce better results than prior inventions. In re Williams, 36 F.2d 436, 438, 4 USPQ 237 (CCPA 1929)”, see MPEP 2144.05.
Conclusion
No claims are allowed.
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/YO/Examiner, Art Unit 1692
/FEREYDOUN G SAJJADI/Supervisory Patent Examiner, Art Unit 1699
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