Thursday, July 19, 2018

BASF loses on jurisdictional argument in NOx case

The issue in BASF was jurisdictional:

BASF now asks this court to vacate and remand the
two ’662 Patent IPR appeals on jurisdictional SAS
grounds.5 Specifically, BASF argues that “the Board’s
decisions with respect to at least the 662 patent are
improper, i.e., ultra vires, as they are not final decisions
as required by § 318(a)” and as such, “appellate review by
this Court of those decisions pursuant to § 319 is no
longer available.” Appellant’s Supp. Br. at 8. Therefore,
BASF asks this Court to “dismiss the [’662 IPR appeals]
as moot” and “direct the Board to vacate those decisions
on remand” on the sole ground that “reviewable, final
written decisions by the Board do not exist” in the two
’662 IPR proceedings. Appellant’s Supp. Br. at 9, 11.
Importantly, BASF does not seek the Board’s evaluation
of the non-instituted claims.


In short, BASF provides no substantive
reason to warrant remand.6 It argues only jurisdictional
For this important reason, BASF’s request is controlled
by PGS Geophysical AS v. Iancu, where this court
rejected the jurisdictional challenge and proceeded to
review the merits of the Board’s decision. This case—like
PGS Geophysical—is a straight challenge to this court’s
authority to hear the appeal. In PGS Geophysical, we
specifically held that “the combination of the noninstitution
decisions and the final written decisions on the
instituted claims and grounds ‘terminated the IPR proceeding[s]’”
such that those decisions were final and
reviewable for purposes of this court’s jurisdiction. 891
F.3d at 1361 (citing Arthrex, Inc. v. Smith & Nephew, Inc.,
880 F.3d 1345, 1348 (Fed. Cir. 2018)). The same reasoning
applies here.
This court further held in PGS Geophysical that a
partial institution error is not one we are required to “act
on in the absence of an appropriate request for relief on
that basis.” Id. at 1362 (emphasis added). Such a request
should include a substantive claim of harmful error,
which is absent here. Id. (“Moreover, the Supreme Court
in SAS characterized the error at issue here as an error
under 5 U.S.C. § 706, but errors under that provision are
generally subject to a traditional harmless-error analysis,
with challengers of the agency action having the burden
of showing prejudice”) (citing Shinseki v. Sanders, 556
U.S. 396, 406, 409 (2009) and Suntec Indus. Co. v. United
States, 857 F.3d 1363, 1368 (Fed. Cir. 2017)). BASF has
not argued prejudice at all; it does not request to have the
Board address the non-instituted claims. Thus, we see no
reason to vacate and remand on the ’662 Patent IPR

Of some text about NO reduction:

Zones discloses using a copper-based CHA zeolite for
the “reduction of oxides of nitrogen contained in a gas
stream in the presence of oxygen.” Zones, col. 1 ll. 55–56,
col. 8 ll. 16–17. Zones Inventor Dr. Stacey Zones stated
that this phrase “refers to and teaches a number of different
reactions, including . . . the selective catalytic reduction
of NO in the presence of an ammonia reducing agent
and oxygen.” Appx3033. Umicore expert Dr. Lercher
testified to the same. Appx3389 (36:16–37:25). BASF
agreed in its Patent Owner’s Preliminary Response that
“reduction of oxides of nitrogen” in Zones “encompasses a
number of reactions,” including ammonia SCR, and again
agreed in oral argument before the Board that the ammonia
SCR reaction is “encompassed within that phrase.”
Appx541, n.5; Appx202 (46:6–23).

Maeshima explains that zeolite catalysts can be used
with either hydrocarbons or ammonia as the reducing
agent. Maeshima, col. 1 ll. 15–21, col. 2 ll. 4–8. Maeshima
teaches that ammonia SCR is preferred because less
of the reducing agent can be used and “nitrogen oxides
can be removed at a high ratio.” Id. at col. 1 ll. 21–24.


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