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Requirements for Patentability of Invention Defining Numerical Values, and Determination of the Patentability thereof

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KH

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2010-05-14

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Requirements for Patentability of Invention Defining Numerical Values, and Determination of the Patentability thereof


I. Appeal against Decision to Reject Korean Patent Application
No. 2006-7015546

Patent Court’s Decision No. 2007HEO12916 published on Dec. 17, 2008
쭯 finally decided

1. Gist of the present patent invention and cited invention

(1) Present patent invention (claim 1)

A process of producing propylene by catalytic cracking from an olefin-rich feedstock containing one or more olefins of C4 or greater,
the process comprising: a step of contacting the olefinic feedstock with a catalyst of an MFI-type at an inlet temperature of 500 to 600→ and at an olefin partial pressure of 0.1 to 2 bars,
wherein the catalyst of the MFI-type is prepared by crystallization using an organic template, it is not subjected to any steaming or de-aluminating process and it has a Si/Al atomic ratio of 300 to 1000,
the feedstock is passed over the catalyst at an LHSV of 10 to 30h-1, and
the propylene yield on an olefin basis is 30 to 50%, based on the olefinic content of the feedstock.

(2) Cited invention

The cited invention relates to a process of obtaining a high propylene yield by catalytic conversion reaction of a C4-C10 olefin-rich feedstock. A conversion catalyst uses ZSM5 zeolite having a SiO2/Al2O3 molar ratio of 350 or greater, or silicalite, among others. The process is performed at a reaction temperature is 400 to 600→, reaction pressure is 1 to 7.5 bars, and space velocity of 5 to 200 kg/h. The description of the cited invention discloses that, in example 36, the conversion rate decreases in an early stage (within twelve hours) of the process and again increases and the olefin conversion reaction itself accelerates and maintains the activity of the catalyst.

2. Patent Court’s decision (2007HEO12916)

(1) Criteria for judgment of requirements for patentability of a selection invention defining numerical values

Where the constitutional requisites are described as superordinate concepts in the prior or publicly known art and a so-called selection invention has only subordinate concepts included in the superordinate concepts as all or part of its constitutional requisites, the selection invention is patentable in the case where, first, the prior invention does not concretely disclose the subordinate concepts constituting the selection invention, and second, all of the subordinate concepts included in the selection invention have the effects being qualitatively different from the effects of the prior art, or even if the selection invention has no qualitative differences, it has quantitatively remarkable differences. Then, it is sufficient that the specification of the selection invention clearly describe that the selection invention has the aforementioned effects compared to the prior invention. It is not required that comparative experiment materials should be described, to specifically confirm the remarkability of the effect. If the effects are doubtful, an applicant may concretely assert and prove the effects by submitting specific comparative experiment materials after the filing of an application.

Where an invention filed in an application defines a numeral value within a range of a constituent of an invention which is publicly known before the filing of the application, unless the definition of numerical values is nothing but a supplementary matter since any other component that is considered as having an inventive step is added in the filed invention, and unless any differences of different and remarkable effects are generated within the range of the defined numerical values, the filed invention is regarded as a simple definition of numerical values to be suitably selected through ordinary and repetitive experiments by any person skilled in the art, and therefore, it is considered as having no inventive step. Thus, when the constitutional requisites are defined as a range of numerical values in the publicly known prior invention, another range of numerical values is included in the range of numerical values of the prior invention, and only the other range of numerical values is all or part of the constitutional requisites of the filed invention, the filed invention is patentable only if the range of numerical values is not specifically disclosed in the prior invention and qualitatively different or quantitatively remarkable effective differences are provided by comparing the effects within the full range of numerical values and out of the range, unless the definition of numerical values is nothing but the supplementary matter because any other constituent being able to be considered as having an inventive step(s) is added in the filed invention.

(2) Effects of the definition of numerical values

The plaintiff argues that the invention has the remarkable effects of improving the propylene yield and purity and increasing the stability of the catalyst, by defining numerical values of the Si/Al atomic ratio. The remarkable effects argued by the plaintiff will be reviewed:

↘ Regarding the question as to whether the improvement of propylene yield is remarkable:

In the example of the cited invention, a catalyst mixing silicalite-1 of 50 parts by weight and a binding agent, Al2O3 of 50 parts by weight is loaded in a micro reactor. When a mixture of trans-2-butene and cis-2-butene being mixed at 50:50 is supplied to the micro reactor at atmospheric pressure, at a temperature of 550→ and at a space velocity of 20kg/h, the conversion rate decreases within 12 hours at the early stage of the process and again increases, the olefin conversion reaction accelerates and maintains the activity of the catalyst. Fig. 1 illustrates the conversion rate of olefin by time. The conversion rate is about 60 to 82% and the selectivity of propylene is 26 to 32%. Therefore, no description or no proof is found to support that the propylene yield according to the present invention is remarkable, compared to the cited invention. Accordingly, the present invention described in claim 1 cannot be considered as having any remarkable effects regarding the propylene yield, compared to the cited invention.

♭ Regarding the question as to whether the improvement of propylene purity is remarkable:

The plaintiff argues that, based on example 16 of the present invention, when the Si/Al atomic ratio is 300, the propylene purity is 90% after 40 hours from reaction, 92% after 112 hours and 93.5% after 162 hours, whereas, in comparative example 1, the propylene purity is 84% after 5 hours from reaction and 92% after 97 hours. Thus, the plaintiff argues that, when the reaction is performed by using the catalysts having the range of numerical values such as the Si/Al atomic ratio according to the present invention described in claim 1, the propylene purity is high. However, in the above comparison, the propylene purity is not compared after the same reaction time. Further, in the table described in separate sheet no. 3, it cannot be concluded that when the reaction is performed by using the catalyst having the Si/Al atomic ratio of 120, the propylene purity according to the present invention described in claim 1 is higher. Therefore, since the present invention described in claim 1 cannot be considered as having the qualitatively different or quantitatively remarkable effective differences by comparing the effects within the full range of numerical values and out of the range, it cannot be patented.


II. Appeal against Decision to Reject Korean Patent Application
No. 1997-708184

Patent Court’s Decision No. 2006HEO3328 published on Feb. 7, 2007
Supreme Court’s Decision No. 2007HU1299 published on Nov. 16, 2007
- dismissed

1. Present patent invention (claim 3)

The present patent invention relates to a vaccine composition. The vaccine composition includes a live ‘swine infe  

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