DETAILED ACTION
Claims 1-2, 4-5, 7, 9, 14-19, 21-22, 24, and 26-31 are pending, of which claims 18-19, 21-22, 24, and 26-31 have been withdrawn.
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 .
Response to Arguments
Applicant's arguments filed 4/30/26 have been fully considered but they are not persuasive.
On pages 7-8 of the response, Applicant notes that claim 1 has been amended to recite that the ethylene selectivity of “about 95% to about 99% at a 35% ethane conversion temperature of between about 350°C and about 500°C”. Applicant argues that these limitations are not taught by US 20200024215 (“Gao”).
In arguing that the selectivity of the Gao catalyst is lower than the claimed range, Applicant points to paragraphs [0403] and [0404] of Gao. However, this is a single example provided by Gao. Examiner notes that Gao discloses catalysts with a higher selectivity than described in the specific passages cited by Applicant. For example, Gao discloses and claims a 35% conversion temperature from about 300° C. to about 400° C with a selectivity greater than 95% (see e.g. paragraphs [0020] and [0025] as well as claims 14-15).
Examiner also notes that the claims recite the term “about” with respect to each temperature and selectivity value. The term “about” is not defined in the instant specification. However, it is clear that “about 95%” would include values below 95%. For example Gao defines the term “about” as meaning ± 10% (see e.g. paragraph [0192]), which is not an unreasonably broad interpretation. Using the definition of “about” in Gao would result in the selectivity range including values less than 90% while the 35% conversion temperature could be as low as 315° C, and thus even the specific passages cited by Applicant would meet the limitations of claim 1.
On page 8, Applicant argues that the advantage of the catalyst material in claim 1 is that selectivity can be maintained at different activity levels by changing the amount of beryllium in the catalyst material. However, 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). Given that Gao specifically suggests adding beryllium to the mixed oxide catalyst, any advantage resulting from that addition would flow naturally from the prior art. Further, claim 1 recites a catalyst material. The fact that properties of the catalyst material can be changed by changing the material itself does not mean that the catalyst is novel or non-obvious when the prior art teaches the same material.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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.
Claims 1-2, 4-5, 9-10, and 14-17 are rejected under 35 U.S.C. 103 as being unpatentable over US20200024215 (“Gao”).
Regarding claim 1, Gao teaches a catalyst including molybdenum, vanadium, tellurium, niobium, and oxygen (see e.g. paragraph [0037]). The molar ratio of molybdenum to vanadium is from 1:0.05 to 1:0.60, the molar ratio of molybdenum to tellurium is from 1:0.01 to 1:0.30, and the molar ratio of molybdenum to niobium is from 1:0.01 to 1:0.40; all of which are within the claimed ranges (Id.). Gao further teaches that the composition can include up to 20% of beryllium oxide (see e.g. paragraph [0363]). When 20% beryllium oxide is included with the specific composition listed as reference 04-015-7475 in Table 7b, the molar ratio of Mo:Be is 1 : 1.9, which is within the claimed range (see e.g. Table 7b). Examiner notes that the claim is drawn to a composition rather than a method. As such, the specific recited method for determining the molar ratios is immaterial to patentability. However, Gao explicitly teaches that the molar ratios are determined using ICP-MS (see e.g. paragraph [0197]). Gao teaches that the selectivity of the catalyst for ethylene is between 65-95%, which overlaps with the claimed range (see e.g. paragraph [0025] and claim 15). Gao further teaches that the 35% ethane conversion temperature is between 300° C to about 425° C, which overlaps with the claimed range (see e.g. paragraph [0020] and claim 14). Although Gao does not provide a specific example using beryllium within the claimed ratio, given that the suggested range provided by Gao significantly overlaps with the claimed range, prior to the effective filing date it would have been obvious to one of ordinary skill in the art to use a beryllium amount within the claimed range.
Regarding claim 2, Gao teaches that the composition can include up to 20% of beryllium oxide (see e.g. paragraph [0363]). When 20% beryllium oxide is included with the specific composition listed as reference 04-015-7475 in Table 7b, the molar ratio of Mo : Be is 1 : 1.9, which is within the claimed range (see e.g. Table 7b).
Regarding claim 4, Gao teaches a specific composition listed as reference 04-015-7475 in Table 7b as NbV1.2Mo7.8Te0.937O28.9 (see e.g. Table 7b). This corresponds to a formula of Mo1.0V0.15Te0.12Nb0.13O3.70, which has all metal coefficients within the claimed ranges. As noted in Gao, the oxygen is present in an amount to satisfy the valence of the mixed metal oxide (see e.g. paragraph [0037]).
Regarding claim 5, Gao teaches that the catalyst can have a 35% conversion temperature of 300° C to about 425° C, which overlaps with the claimed range (see e.g. paragraph [0020] and claim 14).
Regarding claim 7, Gao teaches that the ratio of Mo:V can be at or above 1 : 0.49; the ratio of Mo:Te can be at or above 0.30; the ratio of Mo:Nb can be at or above 0.30 (see e.g. paragraph [0221]). This would correspond to a composition with a mixed metal oxide of formula MoV0.49Te0.3Nb0.3O6. Gao also teaches that the mixed metal oxide can be 20% of the catalyst composition, with 80% of the catalyst composition containing one or more adjuvants (see e.g. paragraphs [0351]-[0352]), of which up to 20% can be beryllium oxide (see e.g. paragraph [0363]). With this mixed metal oxide formula as 20% of the composition, beryllium oxide as 20% of the composition, and the remainder as a support or other adjuvant, the molar ratio of Mo : Be is 1 : 11.3, which is within the claimed range. Per MPEP 2144.05, in the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. Although Gao does not provide a specific example with a composition within the claimed range, as the ranges of Gao overlaps with claimed range, it would have been obvious to one of ordinary skill in the art to use such a composition.
Regarding claim 9, Gao teaches that the catalyst can have a 35% conversion temperature of 300° C to about 425° C, which overlaps with the claimed range (see e.g. paragraph [0020] and claim 14).
Regarding claim 14, Gao teaches that, in certain embodiments, the Mo:V ratio is 1 : 0.30-0.35; the Mo:Te ratio is 1 : 0.12-0.14; and the Mo:Nb ratio is 1 : 0.13-0.17, all of which are within the claimed ranges (see e.g. paragraph [0221]).
Regarding claim 15, Gao teaches that, in certain embodiments, the Mo:V ratio is 1 : 0.30-0.35; the Mo:Te ratio is 1 : 0.12-0.14; and the Mo:Nb ratio is 1 : 0.13-0.17, all of which are within the claimed ranges (see e.g. paragraph [0221]).
Regarding claim 16, Gao teaches that, in certain embodiments, the Mo:V ratio is 1 : 0.30-0.35; the Mo:Te ratio is 1 : 0.12-0.14; and the Mo:Nb ratio is 1 : 0.13-0.17, all of which are within the claimed ranges (see e.g. paragraph [0221]).
Regarding claim 17, Examiner notes that the claim is drawn to a composition rather than a method. As such, the specific recited method for determining the molar ratios is immaterial to patentability. However, Gao explicitly teaches that the molar ratios are determined using mass spectroscopy (see e.g. paragraph [0197]).
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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/E.S.S./Examiner, Art Unit 1736
/ANTHONY J ZIMMER/Supervisory Patent Examiner, Art Unit 1736
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