Federal Circuit disposition — 24-1209

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
IN RE: LI LI, QUNZHU LI,
Appellants
______________________
2024-1209
______________________
Appeal from the United States Patent and Trademark
Office, Patent Trial and Appeal Board in No. 13/576,565.
______________________
Decided: April 8, 2025
______________________
L I L I, Luoyang, Henan, China, pro se.
Q UNZHU L I, Luoyang, Henan, China, pro se.
J USTIN BOVA, Office of the Solicitor, United States Pa-
tent and Trademark Office, Alexandria, VA, for appellee
Coke Morgan Stewart. Also represented by K AKOLI
CAPRIHAN, AMY J. N ELSON.
______________________
Before T ARANTO, CLEVENGER , and HUGHES , Circuit
Judges.
P ER CURIAM .
Li Li and Qunzhu Li (hereafter “applicants”) filed U.S.
Patent Application No. 13/576,565 on August 1, 2012. The
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IN RE: LI 2
’565 application relates to fluid catalytic cracking, a pro-
cess in which hydrocarbon materials react with a catalyst
to form oil and gas products that are then separated from
the catalyst. The assigned patent examiner in the United
States Patent and Trademark Office (PTO) rejected all
pending claims of the application for obviousness. Appli-
cants appealed to the PTO’s Patent Trial and Appeal Board
(Board), which affirmed the rejection of the claims. Ex
parte Li, No. 2023-000079, 2023 WL 3560449, at *1
(P.T.A.B. May 18, 2023) (Decision). Applicants appeal the
Board decision to this court. We now affirm.
I
Figure 2 of the ’565 application depicts the core of the
described processes. Applicants’ Appendix (Appx.) 212.
The described processes involve using a catalyst in oil
and gas production and then regenerating the catalyst for
further use. Raw hydrocarbon material reacts with a
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IN RE: LI 3
catalyst in one or more reaction zones of the riser reactor
(reference numerals 2 and 3 in figure 2) to form oil and gas.
’565 App. ¶¶ 92, 94.1 The resulting materials then enter a
disengager (1), which separates the catalyst from the oil
and gas. Id. at Abstract; id. ¶ 92. The catalyst is then
steam-stripped at the stripping section (1A) before entering
the regenerator (5). Id. at Abstract; id. ¶¶ 14, 92. In the
regenerator (5), the catalyst is burned in the presence of
oxygen-containing gas before being cooled by catalyst cool-
ers (8A and 8B). Id. at Abstract; id. ¶¶ 84–85, 92. After
the catalyst is cooled, it enters the mixing buffer space (9A
or 9B) in the lower part of the catalyst cooler before return-
ing to the riser reactor. Id. ¶¶ 84, 92.
The cooled catalyst can be used to control the tempera-
ture in the reactor “so as to promote hydrogen transfer,
isomerization, and aromatization reaction[s] and reduce
coke and gas yield.” Id. ¶¶ 10–11. When two catalyst cool-
ers are used, one catalyst cooler (8A) is connected to the
first reaction zone (3), where the catalyst’s temperature ad-
justs the reaction temperature in that zone, and the other
catalyst cooler (8B) is connected to the regenerator (5) and
regulates the temperature there. Id. ¶¶ 84–85, 95–96. Re-
action temperature can also be controlled by adjusting the
ratio of the catalyst to the raw hydrocarbon materials (or
“feed”), using “multi-point feeding technology,” and inject-
ing cooled catalyst downstream of the first reaction zone (3)
as a “cold shock agent” to control the temperature of the
second reaction zone (2). Id. ¶¶ 24, 101–02.
Independent claim 1 recites:
A method for circulating a cold regenerated cata-
lyst, comprising:
1 We cite the published ’565 application: Patent Ap-
plication Publication No. 2012/0298556. Appx. 210–24.
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IN RE: LI 4
reacting hydrocarbon materials with a catalyst in
a riser reactor to generate gas and oil products and
a reacted catalyst, wherein the one riser reactor
comprises only one reaction zone or at least two re-
action zones;
separating the gas and oil products from the re-
acted catalyst in a settler,
stripping the separated catalyst in a stripping sec-
tion;
burning and regenerating the stripped catalyst in
a regenerator to obtain a hot regenerated catalyst;
cooling the hot regenerated catalyst by a regener-
ated catalyst cooler to form a cooled regenerated
catalyst having a temperature in a range of 200°C
to 720°C, for cycling use;
wherein when the one riser reactor comprises at
least two reaction zones, the one regenerated
catalyst cooler is connected to the one riser re-
actor and is used to adjust the reaction tempera-
ture of each of the reaction zones of the one riser
reactor, so as to keep the reaction temperature of
each of the reaction zones in an optimal value, re-
spectively, or when the one riser reactor comprises
only one reaction zone, the one regenerated cat-
alyst cooler is connected to the one riser reac-
tor and is used to adjust the reaction temperature
of the only one reaction zone of the one riser reac-
tor, so as to keep the reaction temperature in an
optimal value.
Appx. 787 (emphases added); Decision, at *1.
Independent claim 13 recites the following limitation
in addition to those in claim 1 (among other limitations not
relevant here):
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IN RE: LI 5
blending and buffering the cooled regenerated cat-
alyst in a catalyst mixing buffer space being
disposed in the downstream location of the re-
generated catalyst cooler before the cooled re-
generated catalyst entering the riser reactor;
Appx. 789–90 (emphasis added).
Independent claim 20 recites a similar limitation in ad-
dition to those in claim 1 (among other limitations not rel-
evant here):
blending and buffering the cooled regenerated cat-
alyst in the catalyst mixing buffer space being
disposed underneath the heat-exchanging ele-
ment before the cooled regenerated catalyst enter-
ing the riser reactor, wherein the catalyst mixing
buffer space is independent and separate from
spaces taken by the heat-exchanging element;
Appx. 791–92 (emphasis added).
Claim 6 (dependent on claim 1) recites in relevant part:
controlling the reaction temperature in the reac-
tion zone of the riser reactor by adjusting a ratio of
the cooled regenerated catalyst that enters the
riser reactor and feed of the hydrocarbon materials
that enter the riser reactor, adjusting the temper-
ature of the cooled regenerated catalyst, using a
multi-point feeding technology, adding a quenching
agent to the riser reactor, or a combination thereof.
Appx. 788; Decision, at *5. Claims 16 and 22 (dependent
on claims 13 and 20, respectively) are materially identical
to claim 6. Appx 791, 793; Decision, at *5.
On December 24, 2021, the examiner issued a final re-
jection of all pending claims of the ’565 application: claims
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IN RE: LI 6
1–7, 10, 13–25, 27, 29, and 31–33. Appx. 159–60.2 The
examiner rejected all claims for obviousness under the ap-
plicable version of 35 U.S.C. § 103 (which, because of the
asserted priority date, was the version that pre-dates the
changes made by the Leahy-Smith America Invents Act,
Pub. L. No. 112-29, 125 Stat. 284 (2011)). The examiner
rejected all claims but claim 32 for obviousness over a sin-
gle reference—Chinese Patent Publication No. 1664074A
(“Li”), Appx. 700–62, which lists Li Li and Qunzhu Li as
inventors—and rejected claim 32 for obviousness over Li
plus another reference not at issue in this appeal.3 Appx.
163–66.
Li, like the ’565 application, describes methods for fluid
catalytic cracking. Appx. 700. In the process described in
Li, hydrocarbon materials react with a catalyst in a reactor
with a first reaction zone (3) and a second reaction zone (2).
Appx. 717. The reacted material flows into a settler (1),
which separates the catalyst from the oil and gas. Id. The
catalyst then flows into the regenerator (5) before entering
one or more catalyst coolers (8A and 8B) prior to being re-
cycled in the reactor. Id. at 717, 720. The structure used
for the process is depicted in Figure 1 of Li, Appx. 759:
2 Applicants assert that claims 32 and 33 were can-
celed “during the appeal to the Board,” Applicants Reply
Br. at 14; see also Applicants Opening Br. at 27 n.2,
whereas the PTO Director asserts that claims 32 and 33
were not canceled, PTO Response Br. at 12 n.4. The
Board’s decision and listing of pending claims support the
PTO’s view. See Decision, at *1; Appx. 787–95.
3 The other reference is U.S. Patent Application Pub-
lication No. 2010/0152515, but applicants do not separately
address that reference and instead “rely solely on their ar-
guments regarding . . . Li,” Applicants Opening Br. at 27
n.2.
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IN RE: LI 7
The examiner found that Li teaches using one catalyst
cooler (8A) with a plurality of outlets or multiple catalyst
coolers (8A and 8B) for recycling the catalyst to the reactors
and regenerator. Appx. 164 (citing Appx. 701–03). The ex-
aminer further found that Li describes a “mixing buffer
space” for the cooled catalyst, as Li’s catalyst coolers (8A
and 8B) have a lower portion in which a catalyst mixes with
fluidized media for further cooling. Appx. 161–62, 164 (cit-
ing Appx. 717, 759–62). The examiner also found that Li
discloses controlling the reaction-zone temperature by ad-
justing the ratio of hydrocarbon to oil, the amounts of cold
and hot catalyst, and the temperature of the cold catalyst
and by using multi-point feeding and cold-shock agents.
Appx. 165 (citing Appx. 700–01, 704–05, 707, 716, 719).
On March 24, 2022, applicants appealed the exam-
iner’s final rejection to the Board. They challenged the ex-
aminer’s determinations on three claim limitations
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IN RE: LI 8
relevant here: (1) “a regenerated catalyst cooler,” recited in
all pending claims; (2) “a catalyst mixing buffer space,” re-
cited in independent claims 13 and 20 and dependent
claims 14–19, 21–25, and 29–31; and (3) “controlling the
reaction temperature in the reaction zone,” recited in de-
pendent claims 6, 16, and 22.
After hearing a presentation from applicants’ counsel
on April 25, 2023, Appx. 17–35, the Board affirmed the ex-
aminer’s decision on May 18, 2023. Decision, at *1. First,
the Board rejected applicants’ argument that independent
claims 1, 13, and 20 require that only one catalyst cooler be
used to control the reaction temperature in one or two re-
action zones, whereas Li discloses using two catalyst cool-
ers, each to control the reaction temperature of a single
reaction zone. Id. at *2–3. The Board emphasized that the
at-issue claims use the open-ended term “comprising,”
meaning that the claims do not exclude the use of an addi-
tional catalyst cooler, and it agreed with the examiner that
Li itself teaches using a single catalyst cooler to adjust the
reaction temperature of two reaction zones. Id. at *3. Sec-
ond, the Board rejected applicants’ argument that the
claimed catalyst mixing buffer space must be separate and
independent from the catalyst cooler, explaining that the
’565 application does not define the term or require that a
particular structure be used “other than it being a lower
part of the catalyst cooler.” Id. at *3–4. Third, the Board
rejected applicants’ argument that Li did not teach control-
ling the reaction temperature. Id. at *5. Finally, having
determined that the examiner established a prima facie
case of obviousness for the pending claims, the Board eval-
uated applicants’ evidence of objective indicia of nonobvi-
ousness and found it insufficient to alter the conclusion
indicated by the prima facie case. Id. at *6–7 (citing In re
Kao, 639 F.3d 1057, 1068 (Fed. Cir. 2011); Newell Cos. v.
Kenney Manufacturing Co., 864 F.2d 757, 768 (Fed. Cir.
1988)).
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IN RE: LI 9
Applicants filed a request for rehearing, see 37 C.F.R.
§ 41.52, which the Board denied on October 4, 2023. Deci-
sion on Request for Rehearing at 1–13, Ex parte Li,
No. 2023-000079 (P.T.A.B. Oct. 4, 2023), Appx. 226–38 (Re-
hearing Decision). Applicants timely appealed to this court
on November 29, 2023, see 37 C.F.R. § 90.3(b)(1), and we
have jurisdiction under 28 U.S.C. § 1295(a)(4)(A).
II
The ultimate determination on obviousness is a legal
one made de novo on appeal, but it rests heavily on various
underlying facts, on which we accept the Board’s findings
if supported by substantial evidence. In re Gartside, 203
F.3d 1305, 1316 (Fed. Cir. 2000). As relevant here, what is
disclosed by the prior art and whether particular objective
indicia of nonobviousness exist are questions of fact. See,
e.g., Yita LLC v. MacNeil IP LLC, 69 F.4th 1356, 1363 (Fed.
Cir. 2023); Randall Manufacturing v. Rea, 733 F.3d 1355,
1362 (Fed. Cir. 2013); In re Mouttet, 686 F.3d 1322, 1330
(Fed. Cir. 2012); Gartside, 203 F.3d at 1319.
We decide issues of claim construction de novo, includ-
ing all intrinsic-evidence matters and the significance to
the proper construction of any findings on underlying facts,
but we accept such findings if supported by substantial ev-
idence. See, e.g., Wasica Finance GmbH v. Control Auto-
motive Systems, Inc., 853 F.3d 1272, 1278 (Fed. Cir. 2017).
“A finding is supported by substantial evidence if a reason-
able mind might accept the evidence as adequate to sup-
port the finding.” Yita, 69 F.4th at 1363 (citation omitted).
“During examination, claims are to be given their broadest
reasonable interpretation consistent with the specification,
and claim language should be read in light of the specifica-
tion as it would be interpreted by one of ordinary skill in
the art.” In re Montgomery, 677 F.3d 1375, 1379 (Fed. Cir.
2012) (cleaned up) (citing In re American Academy of Sci-
ence Tech Center, 367 F.3d 1359, 1364 (Fed. Cir. 2004)); see
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IN RE: LI 10
also In re Smith International, Inc., 871 F.3d 1375, 1381
(Fed. Cir. 2017).
Applicants challenge four aspects of the Board’s deci-
sion on appeal: (1) the Board’s construction of and finding
that Li discloses “a regenerated catalyst cooler”; (2) the
Board’s construction of and finding that Li discloses a “cat-
alyst mixing buffer space”; (3) the Board’s finding that Li
discloses controlling the reaction temperature in the reac-
tion zone; and (4) the Board’s conclusion that applicants’
evidence of objective indicia of nonobviousness was not per-
suasive. We address and affirm each aspect of the Board’s
decision in turn.
A
Applicants challenge the Board’s determinations re-
garding the required “regenerated catalyst cooler,” which
is recited in each rejected claim, either expressly or
through dependency. Applicants Opening Br. at 29–31,
47–59.
Because the independent claims recite “[a] method . . .
comprising . . . a regenerated catalyst cooler,” the Board
construed the claims as open-ended—requiring at least one
catalyst cooler that performs the recited function of adjust-
ing the reaction temperature in each of the reaction
zones—and, in addition, it determined that the “regener-
ated catalyst cooler” limitation was made obvious by Li’s
teaching of embodiments with one or more catalyst coolers.
Decision, at *3. Applicants argue that the claims are not
open-ended and should be read to require that only one cat-
alyst cooler be used, so that the claims cannot be made ob-
vious by prior art teaching use of multiple catalyst coolers
connected to a single reaction zone. See generally Appli-
cants Opening Br. at 29–31, 47–58.
We do not need to reach that claim-construction argu-
ment, however, because the Board reasonably found that
Li itself discloses a process that uses only one catalyst
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IN RE: LI 11
cooler to control the temperature of the reaction zone(s).
The examiner found, and the Board agreed, that Li teaches
“one catalyst cooler with a plurality of outlets for sending
catalyst to each of the desired riser reactors and regenera-
tor.” Appx. 164 (citing Appx. 701 (“The regenerator is pro-
vided with one or more inside or outside heat taking
apparatuses, that is, catalyst coolers.” (emphasis added)));
Decision, at *3. That determination is supported by sub-
stantial evidence. Li describes using two catalyst coolers
(8A and 8B) to control the temperatures of the first and
second reaction zones, respectively, but that catalyst cooler
8A “can be omitted.” Appx. 701–02. Figure 1 of Li supports
the Board’s finding that Li’s catalyst cooler has a plurality
of outlets for sending catalyst to each desired reactor and
regenerator: The flow of cooled catalyst through the first
reaction zone from catalyst cooler 8A “would also feed the
catalyst to [second] reaction zone 2 . . . and adjust the tem-
perature at some level within reaction zone 2.” Decision,
at *3 (citing Appx. 759).
Thus, even if applicants are right about their claim-
construction position on this claim limitation, which we
need not decide, the Board’s finding that Li teaches this
limitation must be affirmed.
B
Applicants challenge the Board’s determination re-
garding the “catalyst mixing buffer space” limitation of
claims 13 and 20 and their dependent claims. Applicants
Opening Br. at 59–66. The examiner found, and the Board
agreed, that Li discloses a catalyst mixing buffer space be-
cause it discloses “the space in the catalyst cooler in which
cooled catalyst and the fluidizing gas mix before leaving
the cooler.” Appx. 164 (citing Appx. 717, 759–62); Decision,
at *4. The Board’s finding rested on its construction of “cat-
alyst mixing buffer space” to mean “a lower region of the
catalyst cooler in which the catalyst is combined (mixed)
with the fluidizing media and withdrawn from the cooler.”
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IN RE: LI 12
Decision, at *4. Applicants challenge that construction,
Applicants Opening Br. at 59–66, asserting that the cata-
lyst mixing buffer space must be “independent and sepa-
rate from the catalyst cooler,” id. at 63–64. This claim-
construction argument is applicants’ sole challenge to the
Board’s finding that Li discloses this claim limitation.
We reject applicants’ challenge to the claim construc-
tion. The claims do not require the proposed independence
and separateness. Indeed, claim 20 suggests the absence
of such a requirement when it recites “the catalyst mixing
buffer space being disposed underneath the heat-exchang-
ing element,” as the heat-exchanging element “is mounted
inside the regenerated catalyst cooler.” Appx. 792 (empha-
sis added). The specification, moreover, repeatedly charac-
terizes the mixing buffer space simply as being “in the
lower part” of the catalyst cooler. See, e.g., ’565 App. ¶ 86
(“Leaving the catalyst cooler 8A (the mixing buffer space in
the lower part 9A) . . . .”); id. ¶ 84 (“The regenerator has
two inside or outside taking-heat equipments as the cata-
lyst coolers, including . . . the mixing buffer space in the
lower part.”); id. ¶ 86 (“The regenerator 5 is connected with
the catalyst cooler 8A through regenerator duct 10A and
the regenerated catalyst after cooling enters into the mix-
ing buffer space in the lower part.”). Each of the figures of
the ’565 application indicates that the mixing buffer space
is within the catalyst cooler, as reference numerals 9A and
9B point to locations within the catalyst coolers 8A and 8B.
See ’565 App., figs. 1–4. With all the foregoing, we do not
read a contrary requirement in language cited by appli-
cants, see Applicants Opening Br. at 62, from ’565 App.
¶¶ 16–17, which refer to mixing buffer space as being “in
the downstream” of the catalyst cooler (emphasis added)—
not “downstream of” the catalyst cooler.
C
Applicants challenge the Board’s finding that Li
teaches “controlling the reaction temperature in the
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IN RE: LI 13
reaction zone of the riser reactor,” as required by depend-
ent claims 6, 16, and 22. See Decision, at *5. Applicants
argue that “Li uses only single-parameter adjustment of
the catalyst-to-oil ratio” rather than “the combined control
of the multi-parameters.” Applicants Opening Br. at 66.
We see no reversible error in the Board’s finding on this
limitation.
The Board found that “Li teaches controlling the reac-
tion temperature in the reaction zones by using the cold
regenerated catalyst, hot regenerated catalyst, cold shock
agent 34, and the lifting medium 32.” Decision, at *5 (cit-
ing Appx. 718). The following disclosures in Li, among oth-
ers cited by the Board, support this finding:
In order to conveniently control the temperature of
the first reaction zone of the heavy oil riser reactor,
provided can be a hot regenerated catalyst trans-
porting pipe . . . that is directly connected to the
pre-lifting zone 4 of the heavy oil riser reactor. . . .
After the lifting mixing of the cold regenerated cat-
alyst and the hot regenerated catalyst by a lifting
medium 32 in the pre-lifting zone 4 of the heavy oil
riser reactor, the temperature reaches equilibrium.
Appx. 718.
The injection point of a gaseous or liquid cold shock
agent 34 may be upstream or downstream of the
injection point of the cold catalyst . . . in order to
conveniently control the temperatures of each of
the reaction zones.
Appx. 720.
Given what the above-quoted disclosures are reasona-
bly understood to mean, and because applicants do not cite
to any particular disclosure within Li as supporting their
argument, we do not discern any error in the Board’s deci-
sion as to claims 6, 16, and 22.
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IN RE: LI 14
D
Finally, applicants challenge the Board’s analysis of
their evidence of objective indicia of nonobviousness. Ap-
plicants Opening Br. at 40–46; see Decision, at *6–7; Re-
hearing Decision, at 6–10, Appx. 231–35. We agree with
the Board that this evidence is insufficient to overcome the
prima facie case of obviousness because it lacks nexus to
what is “claimed and novel.” See Kao, 639 F.3d at 1068
(emphasis omitted).
Applicants submitted five declarations and “volumi-
nous annexes,” Decision, at *6, to support their objective
indicia arguments. See Appx. 239–699. Two of the decla-
rations, as the Board noted, address “a claim that is not the
same scope as the claim on appeal.” Rehearing Decision, at
6, Appx. 231 (citing Appx. 242–43 ¶ 10; Appx. 248–50 ¶ 10).
Specifically, what the Zhang and Gao declarations refer to
as “[c]laim 1 of the present application” does not actually
correspond to the language of claim 1 before the Board.
Compare Appx. 242–43 ¶ 10 and Appx. 248–50 ¶ 10, with
Appx. 787. Rather, the listings in the Zhang and Gao dec-
larations include various unclaimed limitations. Thus, the
Board correctly reasoned that the declarations were insuf-
ficient to establish unexpected results and commercial suc-
cess because they “do[] not reproduce the claim that is
alleged to be the basis of unexpected result[s] and commer-
cial success.” Rehearing Decision, at 6, Appx. 231. Appli-
cants do not dispute the disparate-claims finding
underlying that determination. See Applicants Opening
Br. at 34–35, 41–42.
The three other declarations are from applicant Qun-
zhu Li. See Appx. 254–60 (January 2018); Appx. 261–64
(March 2018); Appx. 265–66 (August 2021). Applicants ar-
gue that these declarations, along with the annexes cited
in them, demonstrate unexpected results, commercial suc-
cess, long-felt but unmet need, and industry praise. Appli-
cants Opening Br. at 40–46.
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IN RE: LI 15
The Board rejected many of applicants’ objective-indi-
cia arguments resting on these declarations and annexes
due to lack of nexus because, as discussed supra parts II.A–
B, Li already disclosed the now-claimed invention (and spe-
cifically, the claimed catalyst cooler and mixing buffer
space). Decision, at *6 (“Li teaches the limitations on which
[applicants] rel[y] as critical or significant.”); Rehearing
Decision, at 9, Appx. 234. “For objective evidence of sec-
ondary considerations to be accorded substantial weight,
its proponent must establish a nexus between the evidence
and the merits of the claimed invention. Where the offered
secondary consideration actually results from something
other than what is both claimed and novel in the claim,
there is no nexus to the merits of the claimed invention.”
Kao, 639 F.3d at 1068 (internal quotation marks and cita-
tions omitted). Because the features that applicants rely
on to support their objective indicia arguments (the cata-
lyst cooler and mixing buffer space) are recited in Li, the
Board properly found no nexus between those features and
any unexpected results, commercial success, long-felt but
unmet need, or industry praise. See Newell, 864 F.2d at
768 (“[O]nce another supplied the key element, there was
no long-felt need or, indeed, a problem to be solved.”); In re
Baxter Travenol Laboratories, 952 F.2d 388, 392 (Fed. Cir.
1991) (“[W]hen unexpected results are used as evidence of
nonobviousness, the results must be shown to be unex-
pected compared with the closest prior art.”).
The other objective-indicia arguments made by appli-
cants relate to features not actually claimed (e.g., a cata-
lyst-to-oil ratio of 8.6 and reactor temperature of 525°C).
Applicants Opening Br. at 56–57; Rehearing Decision, at
8–9, Appx. 233–34 (“[T]he argued catalyst-to-oil ratio is not
recited in claim 1.”). Such unclaimed features cannot es-
tablish objective indicia of nonobviousness of what is
claimed. See Kao, 639 F.3d at 1068 (explaining that nexus
must be established between the evidence and “the merits
of the claimed invention”) (citation omitted). Because
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IN RE: LI 16
sufficient nexus is a “fundamental requirement that must
be met before secondary considerations can carry the day,”
see id., we discern no error in this aspect of the Board’s de-
cision.
III
We have reviewed the remainder of applicants’ argu-
ments and find them unpersuasive. We affirm the Board’s
decision that all pending claims of the ’565 application are
unpatentable for obviousness.
The parties shall bear their own costs.
AFFIRMED
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