Homework 3: Using the patent found in HW2 and comparing it to Hotchkiss, A&P Tea, and Lyons

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'Patent No: 5,582,711 Integrated Staged Catalytic Cracking and Hydroprocessing Process

Exxon Research and Engineering Company filed this patent in August 17, 1994. This patent is use in crude oil refining in the Fluidized Catalytic Cracker units. This patent is valid for an invention that consists of having a two-phased catalytic cracking process that includes a hydroprocessing step in the middle of the two runs of catalytic cracking. The inventors noted that prior art does exist that utilizes a two-step catalytic cracker process with an intermittent hydroprocessing step. However, this process fails in maintaining the quality of the distillate, which is important in producing diesel and heating oil. This more innovative patent succeeded in maintaining the quality of the distillate, increasing the octane level, and maximizing the number of olefins.

The process flow diagram attached to this patent describes a system that starts with the input of hydrocarbons to be fed in the reactor to undergo catalytic cracking. The products are then separated with the bottom fractions being led to the intermittent step of being hydroprocessed. In the hydroprocessing step, the heavier fractions are hydrotreated by saturating the aromatics to allow cracking to occur easier. In addition, heavier elements such as sulfur, nitrogen, oxygen, and halides are removed from the process. Following the hydroprocessing step, the light end fraction that was mildly hydrocracked and a mid distillate fraction are removed in this step. The rest of the hydrocarbons are led back to the riser to enter the catalytic cracking step again to be cracked for a second time. The light ends and mid distillate fractions are not lost in this invention thanks to the intermittent hydroprocessing step and separator.

Patent No: 5,152,883 Process For the production of Improved Octane Numbers Gasolines (REFERENCE)

The patent mentioned above called ‘Integrated Staged Catalytic Cracking and Hydroprocessing Process’ cite patent No. 5,152,883 in their patent application. Fina Research developed a patent that improves the octane number of gasolines on October 6, 1992. The inventors found a way to change the process to produce more octanes in the FCC units of the refinery. Similarly, to the Exxon case and the other reference case mentioned next, the process includes having a step between two-phase catalyst-cracking units where some sort of hydroprocessing occurs in the middle. The hydroprocessing done in this invention is hydrogenation. The LCO, HCO, and CLO that leaves the cat cracker in the first phase are sent to a hydrogenation unit. Once saturated, the feed is sent back to the cat cracker and the hydrocarbons used for gasoline is collected. The inventor “unexpectedly” found that if all of these hydrogenated products have a boiling point above 221 degC, and are then cracked, then the gasoline collected would have an increased RON and MON value. The difference with this invention compared to the other two, is that two catalyst crackers are needed to have a significant increase in the octane numbers. Recycling the products of the hydroprocessing step back into the first catalyst cracker will increase the RON and MON value, but not as significantly when using two catalyst crackers. The reason behind why this process causes an increase in the octane number is unknown (or not illustrated in this patent).

Patent No: 4,565,620 Crude Oil Refining (REFERENCE)

Exxon cited this patent filed by Phillips Petroleum Company in January 21, 1986 in their patent, 'Integrated Staged Catalytic Cracking and Hydroproccessing Process'. The main difference between these two patents is that Exxon's patent builds on the prior art created by Phillips, by having a more sophisticated hydrofining step. Exxon’s hydroprocessing step didn't just remove unwanted materials in the product stream like Phillips’ invention, but rather hydrotreated the hydrocarbons to allow catalytic cracking to be easier, mildly cracking the hydrocarbons, and separating the light to mid-end distillates from the stream to not be wasted. (The full summary to this patent is found on the link to homework 2)

Patentability of the 'Integrated Staged Catalytic Cracking and Hydroprocessing' patent to the 'Crude Oil Refining Patent' and ‘Process For the production of Improved Octane Numbers Gasolines’ as related to the analysis in Hotchkiss v Greenwood:

The patent analyzed in Hotchkiss v. Greenwood was an invention of a knob made out of clay or porcelain. Prior to the patent, doorknobs were created from mainly metal and wood. The question posed in this patent was whether there was “no more ingenuity and skill necessary to construct the new knob than was possessed by an ordinary mechanic acquainted with the business.” (John McLean) The court found that the main difference between this patent and prior patents on doorknobs were the difference in material used to create the device. The superiority of the material is not a substantial claim for a patent. This patent lacked, “a degree of skill and ingenuity which constitute essential elements of every invention.” (Justice Nelson)

The Exxon patent compared to its reference patent by Phillips both use some sort of hydroprocessing after the hydrocarbon feed is fed to the FCC to allow better separation of the feed before re-feeding it back into the FCC. If the only difference between these two patents were the location of the hydroprocessing element, then according to the decision made in Hotchkiss v. Greenwood in 1850 would make this patent invalid. The crude oil refining patent has the hydroprocessing unit right after the main distillation unit, while the more recent patent has the hydroprocessing unit in a process loop with the FCC riser. Changing the location of this unit that provides a more efficient refinery is similar to just changing a material. The unit performs the same tasks and is still located in between a two phase catalytic cracker run; therefore, no “degree of skill or ingenuity is present in the change.” Therefore, if this patent were just judged on that account, this patent would be rejected. However, since it was more than just a location change and the performance of the hydroprocessing unit changed to include a more thorough separation of products to allow an even more efficient refinery, this is a valid patent nowadays following 35 USC 103. Developing the correct temperature, catalyst, and separator in this hydroprocessing unit created by Exxon shows the innovation produced by their engineers.

The patent developed by Fina Research to increase the Octane number would make the patent developed by Exxon valid because unlike the Phillips case, the differences between the Fina patent and the Exxon patent is not an adjustment of the hydroprocessing unit. The hydroprocessing unit in the Fina required four different units to hydrogenate different hydrocarbons causing the process flow to be very different from the newly developed hydroprocessing unit developed by Exxon. Both inventions perform completely different functions, because the hydroprocessing unit in Exxon focuses a great deal on mild hydrocracking and hydrofining. The Hotchkiss analysis emphasizes needing skill and ingenuity in the new invention, which Exxon’s clearly shows compared to the prior art created by the Fina invention.

Patentability of the 'Integrated Staged Catalytic Cracking and Hydroprocessing' patent to the 'Crude Oil Refining Patent' and ‘Process for the production of Improved Octane Numbers Gasolines’ as related to the analysis in A&P. Tea Co. v. Supermarket Corp., 340 U.S. 147 (1950):

The patent evaluated in A&P Tea Co v. Supermarket Corp in 1950 was a cashier's counter that was made from prior art, but contained an extension that would allow the cashiers to be more efficient when customers purchase products at the grocery store. The issue in this case was whether combining prior art to create an article could be patentable. The Supreme Court ruled that combining prior art to perform no new function is not patentable. The possibility of prior art combined obtaining a patent is possible, as long as the creation is innovative, and the “whole in some way exceeds the sum of its parts” (Justice Jackson), will this invention be patentable.

The Exxon patent compared to the Phillips invention can be seen as a case where prior art is combined to form something new. Exxon's invention is based on Phillips invention through rearranging the process line to serve a superior purpose in oil refining. A great deal of the mechanical instruments used in the Exxon process was used in the Phillips process. For example, a two phase catalytic cracker unit, hydroprocessing, and separators. However, in Exxon's creation the hydroprocessing unit is more advanced and performs more functions, which makes Exxon’s invention inherently different from Phillips. If there were no difference in the hydroprocessing unit, A&P Tea's case analysis would make Exxon's patent invalid because it would just be prior art combined in a different way to perform the same function.

Comparing the Exxon invention with its cited reference of an invention created by Fina Research, the decision made for A&P Tea would make this invention valid similar to reasons comparing the Phillips invention to the Exxon invention. Exxon used the prior art from Fina Research to increase the Octane number, however it went beyond just combing prior art and was able to add its own innovative component. The Fina Research invention increases octane at the price of the quality of the distillates. Exxon was able to solve this problem in its process by creating a hydroprocessing step more diverse than both Fina and Phillips. Since Exxon is not just using prior art from Fina and Phillips and inserted its own very important innovation to the process, this patent would be valid for both references under the analysis of A&P Tea Co. vs. Supermarket Corp.

Patentability of the 'Integrated Staged Catalytic Cracking and Hydroprocessing' patent to the 'Crude Oil Refining Patent' and ‘Process For the production of Improved Octane Numbers Gasolines’ as related to the analysis in Lyon v. Bausch & Lomb (1955):

The patent in question in the case of Lyon v. Bausch & Lomb in 1955 was on creating a strong enough coating on optical surfaces that would not rub off easily. The inventor created a coating that had only one-step in his process that was different from other inventors. This step was pre-heating where when the glass is coated in a vacuum that the system remains heated. All of the other steps in the process was known as prior art. This patent remained valid because it was filed prior to the Act of 1952, which created 35 USC 103. In this statute, it states “if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains,” (35 USC 103) then a patent will not be granted. The question of obviousness in the pre-heating step was questioned in Lyons, but since a patent was granted prior to the change, the inventor was able to keep the patent.

The Exxon patent's adaptation to the Phillip's patent meets the requirements specified in 35 USC 103. The adjustment made by Exxon in hydrotreating the products of the catalyst cracking unit to be re-feed into the cracking unit again were changes that an ordinary person would not have been able to come up with. For example the adjustments needed to be performed in the hydroprocessing unit to create a mild hydrocracking process that would allow light ends and mid-light ends to be separated and not wasted requires finding a suitable reaction temperature and catalyst is not a process that would have easily been thought up of. Thus, Exxon's patent satisfies 35 USC 103.

Similarly, the Exxon patent’s adaptation to the Fina Research patent meets the requirements specified in 35 USC 103. The adjustments made of creating a hydroprocessing unit that would succeed at increasing the Octane number like their prior art, but not lose the quality of the distillates, which was the problem with the Fina research was a task that no ordinary person with background on this info could have easily come up with. Fina research new that there was a fault in their process and since their patent did not have a way to fix that error since it was minor compared to the advantage of increasing the octane number, Exxon’s ability to find a solution is definitely innovative.

The nonobviousness requirements for Hotchkiss, A&P Tea, and Lyons were all different. Hotchkiss dealt with the changes from prior art being inventive, A&P dealt with the issue of combining prior arts and creating patentable inventions, and lastly Lyon's dealt with the ordinary skill required to create this invention. The addition of 35 USC 103 to the constitution in the 1950's did not change the laws on patents decided in previous cases like Hotchkiss and A&P Tea, but instead included the decisions made in these cases. If a person of ordinary skill in that subject matter is able to foresee that invention, then it can be assumed that the invention was not 'inventive' enough. Hence, in Hotchkiss the question was the inventiveness of the prior art, this question will be answered in 35 USC 103. In addition this statute protects the decision made in A&P Tea on whether combining prior arts is patentable. The question that needs to be answered is if this new art performs a new and innovative function that is dissimilar from its prior art, if so, then the article is patentable. If the function were not new, then a person with ordinary skill would have easily been able to foresee this invention and is thus not valid under 35 USC 103. This evolution in creating 35 USC 103, allowed congress to have one line that will suffice with all of the various situations that may arise on the 'inventiveness' of the article in comparison to prior art. However, having a broad definition to cover all forms of nonobviousness issues, allows the government the ability not to be as strict when allowing patents through nowadays. The line is a very vague statement and can be used to support Hotchkiss, A&P Tea, and Lyons, but it also can be left up to the courts in the end what they want to do for that particular case. This is why it was harder for the Exxon patent to pass the criteria for earlier cases, because the criteria for a patent were more specific then they are now. 35 USC 103 leaves it more up to the court’s judgment of obviousness.