Chevron Phillips Chemical Company LP

Patent Trials and Appeals BoardMay 26, 2021

2020004195 (P.T.A.B. May. 26, 2021)

UNITED STATES PATENT AND TRADEMARK OFFICE UNITED STATES DEPARTMENT OF COMMERCE United States Patent and Trademark Office Address: COMMISSIONER FOR PATENTS P.O. Box 1450 Alexandria, Virginia 22313-1450 www.uspto.gov APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 14/278,303 05/15/2014 Mark L. Hlavinka 211661US01 (4081-25801) 9880 37814 7590 05/26/2021 CHEVRON PHILLIPS CHEMICAL COMPANY 4965 Preston Park Blvd, Suite 195E PLANO, TX 75093 EXAMINER FITZHUGH, JULIUS ART UNIT PAPER NUMBER 1782 NOTIFICATION DATE DELIVERY MODE 05/26/2021 ELECTRONIC Please find below and/or attached an Office communication concerning this application or proceeding. The time period for reply, if any, is set in the attached communication. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address(es): eshek@dfw.conleyrose.com lwilliams@conleyrose.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte MARK L. HLAVINKA, GUYLAINE ST. JEAN, QING YANG, and DELORIS R. GAGAN ____________ Appeal 2020-004195 Application 14/278,303 Technology Center 1700 ____________ Before BEVERLY A. FRANKLIN, MERRELL C. CASHION, JR., and JANE E. INGLESE, Administrative Patent Judges. INGLESE, Administrative Patent Judge. DECISION ON APPEAL Appellant1 requests review under 35 U.S.C. § 134(a) of the Examiner’s final rejection of claims 1, 3, and 8–29.2 We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 “Appellant” refers to the “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies Chevron Phillips Chemical Company LP as the real party in interest. Appeal Brief filed September 12, 2019 (“Appeal Br.”), 4. 2 Final Office Action entered March 25, 2019 (“Final Act.”), 1. Appeal 2020-004195 Application 14/278,303 2 CLAIMED SUBJECT MATTER Claim 1 illustrates the subject matter on appeal, and reads as follows: 1. A metallocene-catalyzed polyethylene copolymer comprising an alpha olefin comonomer, the copolymer having a zero shear viscosity (ηo) of from about 1x102 Pa·s to about 5x103 Pa·s, a z-average molecular weight (Mz) of from equal to or greater than about 75 kg/mol to less than about 250 kg/mol, and a ratio of a z-average molecular weight to a number average molecular weight (Mz/Mn) of from about 4 to about 15, and when tested in accordance with ASTM F1249 displays a moisture vapor transmission rate of less than or equal to about 0.9 g-mil/100 in2/day, wherein the alpha olefin comonomer comprises 1-hexene, and wherein the copolymer has a butyl branching content of greater than about 0.1 butyl branches per 1,000 carbon atoms. Appeal Br. 25 (Claims Appendix) (emphasis and spacing added). REJECTIONS The Examiner maintains the following rejections in the Examiner’s Answer entered March 24, 2020 (“Ans.”): I. Claims 1, 3, 8–22, and 24–293 under 35 U.S.C. § 103 as unpatentable over Bamberger4 in view of Fukushima5; and 3 Although the Examiner lists claim 23 in the heading for this rejection, the Examiner does not address claim 23 in the body of the rejection, and enters a separate rejection against claim 23 (Rejection II). Final Act. 3–7. We, therefore, consider the listing of claim 23 in heading of Rejection I as a harmless, inadvertent error. 4 US 6,608,000 B1; issued August 19, 2003. 5 US 4,438,238; issued March 20, 1984. Appeal 2020-004195 Application 14/278,303 3 II. Claim 23 under 35 U.S.C. § 103 as unpatentable over Bamberger in view of Fukushima and Bando6. FACTUAL FINDINGS AND ANALYSIS Upon consideration of the evidence relied upon in this appeal and each of Appellant’s contentions, we affirm the Examiner’s rejections of claims 1, 3, and 8–29 under 35 U.S.C. § 103 for reasons set forth in the Final Action, the Answer, and below. We review appealed rejections for reversible error based on the arguments and evidence the Appellant provides for each issue the Appellant identifies. 37 C.F.R. § 41.37(c)(1)(iv); Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential) (cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) (explaining that even if the Examiner had failed to make a prima facie case, “it has long been the Board’s practice to require an applicant to identify the alleged error in the examiner’s rejections”)). Rejection I We turn first to the Examiner’s rejection of claims 1, 3, 8–22, and 24– 29 under 35 U.S.C. § 103 as unpatentable over Bamberger in view of Fukushima. Appellant presents arguments directed to independent claims 1 and 24, which Appellant argues together. Appeal Br. 8–22. We, therefore, select claim 1 as representative, and decide the appeal as to the rejection of claims 1, 3, 8–22, and 24–29 based on claim 1 alone. 37 C.F.R. § 41.37(c)(1)(iv). 6 US 2010/0292421 Al; published November18, 2010. Appeal 2020-004195 Application 14/278,303 4 Bamberger discloses an ethylene-α-olefin copolymer used for making films, which is produced by metallocene-catalyzed copolymerization of an ethylene monomer and an α-olefin comonomer, such as 1-hexene. Final Act. 3; Bamberger col. 2, ll. 21–31; col. 2, l. 66–col. 3, l. 3; col. 6, l. 65–col. 7, l. 4; col. 7, ll. 11–13. Bamberger discloses an exemplary ethylene-hexene copolymer produced using a metallocene catalyst and having a z-average molecular weight (Mz) of 221.1 kg/mol, a number average molecular weight (Mn) of 35.6 kg/mol, and a ratio of z-average molecular weight to number average molecular weight (Mz/Mn) of 6.21. Final Act. 3–4; Bamberger col. 28, ll. 47–52 (Example 66); col. 33 (Table 4). The Examiner finds that Bamberger does not disclose the butyl branching content of Bamberger’s ethylene-α-olefin copolymer, and the Examiner relies on Fukushima for suggesting incorporation of 0.1 butyl branches per 1,000 carbon atoms into Bamberger’s copolymer, as recited in claim 1. Final Act. 4–5. Fukushima discloses a composition used for producing films that includes an ethylene-α-olefin copolymer produced by Ziegler-catalyzed copolymerization of an ethylene monomer and an α-olefin comonomer, such as 1-hexene. Final Act. 4; Fukushima col. 6, ll. 38–54; col. 6, l. 63–col. 7, l. 3; col. 7, ll. 53–61; col. 9, ll. 1–7, 49–59. Fukushima discloses that including 5 to 45 short-chain branches per 1000 carbon atoms (referred to as “S.C.B”) in the ethylene-α-olefin copolymer provides “extremely good properties such as tensile strength, impact strength, environmental stress cracking resistance, low temperature resistance, creep characteristics, chemicals resistance, transparency[,] and heat-sealing characteristics.” Final Appeal 2020-004195 Application 14/278,303 5 Act. 4; Fukushima col. 6, ll. 4–12, 44–45. In view of these disclosures in Fukushima, the Examiner concludes that it would have been obvious to one of ordinary skill in the art “to have utilized a SCB of 5 to 45 in the ethylene-hexene copolymer of Bamberger as taught by Fukushima motivated by the expectation of extremely good properties such as tensile strength, impact strength, environmental stress cracking resistance (ESCR), low temperature resistance, creep characteristics, chemicals resistance, transparency, and heat-sealing characteristics.” Final Act. 4–5. The Examiner further finds that because “the ethylene copolymer of Bamberger in view of Fukushima is identical or substantially identical to the metallocene-catalyzed polyethylene copolymer claimed . . . there is a reasonabl[e] expectation that the ethylene copolymer of Bamberger in view of Fukushima would have intrinsically exhibited” a moisture vapor transmission rate (MVTR) and zero shear viscosity as recited in claim 1. Final Act. 5. Appellant argues, relying on Ex parte Vigano, 2011 WL6960346, 5–6 (BPAI December 30, 2011), that “[t]he claimed values for zero shear viscosity and MVTR cannot be necessarily present in or a natural result of the Examiner’s hypothetical ethylene-hexene copolymer [formed by Bamberger in view of Fukushima] because the hypothetical values for zero shear viscosity and MVTR of the Examiner’s hypothetical ethylene-hexene copolymer are not known.” Appeal Br. 10–11. Appellant argues that the Examiner’s conclusion of obviousness “is in legal error” because “[i]t is legal error to find that a property is inherent in a hypothetical composition” made by combining two different references. Appeal Br. 18–19. Appellant argues that “it is unknown what effect, if any, modifying Bamberger’s Appeal 2020-004195 Application 14/278,303 6 metallocene-catalyzed copolymer to have the short chain branching of Fukushima’s Ziegler-catalyzed ethylene-hexene polymer would have on the other properties of the resulting hypothetical ethylene-hexene copolymer, including the zero shear viscosity and MVTR.” Appeal Br. 20–21. Appellant argues that “[t]he Examiner has no proof” that modifying Bamberger’s copolymer in view of Fukushima as proposed “would necessarily produce or naturally result in a hypothetical polyethylene copolymer having values of MVTR and zero shear viscosity” as recited in claim 1. Appeal Br. 21. Appellant’s arguments do not identify reversible error in the Examiner’s rejection, for reasons that follow. We point out initially that “inherency may supply a missing claim limitation in an obviousness analysis.” PAR Pharm., Inc. v. TWI Pharms., Inc., 773 F.3d 1186, 1194–95 (Fed. Cir. 2014); In re Napier, 55 F.3d 610, 613 (Fed. Cir. 1995) (“[t]he inherent teaching of a prior art reference, a question of fact, arises both in the context of anticipation and obviousness.”). “[T]o rely on inherency to establish the existence of a claim limitation in the prior art in an obviousness analysis[,] the limitation at issue necessarily must be present, or the natural result of the combination of elements explicitly disclosed by the prior art.” Id. at 1195–96. “Where . . . the claimed and prior art products are identical or substantially identical, or are produced by identical or substantially identical processes, the PTO can require an applicant to prove that the prior art products do not necessarily or inherently possess the characteristics of his claimed product. Whether the rejection is based on ‘inherency’ under 35 U.S.C. § 102, on ‘prima facie obviousness’ under 35 U.S.C. § 103, jointly or Appeal 2020-004195 Application 14/278,303 7 alternatively, the burden of proof is the same, and its fairness is evidenced by the PTO’s inability to manufacture products or to obtain and compare prior art products.” In re Best, 562 F.2d 1252, 1255 (CCPA 1977) (citations omitted); see also In re Spada, 911 F.2d 705, 709 (Fed. Cir. 1990) (explaining that a chemical composition and its properties are inseparable.). Contrary to Appellant’s arguments, under this well-established authority, it is not legal error to find a property inherent in a hypothetical composition made by combining elements from two different prior art references, where the property is the natural result of the combination of elements explicitly disclosed in the references. Appellant’s reliance on Ex parte Vigano is misplaced because the factual situation in Vigano differs in critical ways from that of the present case for reasons well-expressed by the Examiner in the Answer (Ans. 14), and because Vigano is not a precedential decision of the Board. Fukushima’s disclosure of including 5 to 45 short-chain (butyl) branches per 1000 carbon atoms in an ethylene-α-olefin copolymer for producing films to impart numerous “extremely good” properties to the copolymer reasonably would have led one of ordinary skill in the art to incorporate short-chain (butyl) branches in an amount as disclosed in Fukushima into Bamberger’s ethylene-α-olefin copolymer to impart the numerous advantageous properties disclosed in Fukushima to Bamberger’s ethylene-α-olefin copolymer used for producing films. The copolymer resulting from such modification reasonably would have been expected to possess all the structural features recited in claim 1, because it would be a copolymer of polyethylene and 1-hexene having a z-average molecular weight (Mz), a ratio of z-average molecular weight to number average Appeal 2020-004195 Application 14/278,303 8 molecular weight (Mz/Mn), and a butyl branching content per 1,000 carbon atoms falling within the respective ranges recited in claim 1. Because Bamberger’s ethylene-α-olefin copolymer modified as suggested by Fukushima thus appears to be the same as, or substantially similar to, the polyethylene copolymer recited in claim 1, and is produced using a metallocene catalyst as recited in claim 1, a reasonable basis exists for one skilled in the art to have expected Bamberger’s modified ethylene-α-olefin copolymer to have a moisture vapor transmission rate and zero shear viscosity as recited in claim 1. The burden, therefore, shifts to Appellant to show otherwise. Best, 562 F.2d at 1255. On this record, Appellant does not meet this burden because Appellant does not provide any evidence or reasoning establishing an unobvious difference between Bamberger’s ethylene-α-olefin copolymer modified to incorporate short-chain (butyl) branches in an amount as suggested by Fukushima and a polyethylene copolymer as recited in claim 1. Further, the discovery of a previously unappreciated property of a known or obvious composition is not a sufficient basis for patentability. Cf. In re Dillon, 919 F.2d 688, 693 (Fed. Cir. 1990) (en banc) (“In particular, the statement [in In re Wright] that a prima facie obviousness rejection is not supported if no reference shows or suggests the newly-discovered properties and results of a claimed structure is not the law.”) (overruling-in-part In re Wright, 848 F.2d 1216 (Fed. Cir. 1988)); also Dillon, 919 F.2d at 692 (explaining that where the prior art gives reason or motivation to make the claimed invention, the burden and opportunity to produce evidence such as unexpected results then falls on an applicant to rebut that prima facie case). Appeal 2020-004195 Application 14/278,303 9 Thus, the fact that Appellant discovered new properties (moisture vapor transmission rate and zero shear viscosity) of a polyethylene copolymer taught by the combined teachings of Bamberger and Fukushima does not impart patentability to the copolymer, even though the discovered properties may not be disclosed in either Bamberger or Fukushima. Appellant argues that “Bamberger and Fukushima use different catalysts to produce ethylene alpha olefin copolymers, which means that the properties of the polymers in Bamberger are not predictive of any of the properties of the polymers in Fukushima, and vice-versa.” Appeal Br. 15– 16. Citing In re Angstadt and In re Mercier,7 Appellant argues that transition-metal catalyzed polymerization of olefins is legally recognized as unpredictable, and the Examiner, therefore, “is in clear legal error to base a rejection on any degree of predictability between the properties of Fukushima’s Ziegler-catalyzed copolymer and the properties of Bamberger’s metallocene-catalyzed copolymer.” Appeal Br. 16–18. Appellant’s arguments again do not identify reversible error in the Examiner’s rejection. Although, as discussed above, Bamberger’s ethylene-α-olefin copolymer is produced using a metallocene catalyst, while Fukushima’s ethylene-α-olefin copolymer is produced using a Ziegler catalyst, the Examiner provides evidence demonstrating that incorporating short-chain branches into ethylene copolymers using either Ziegler-catalyzed or metallocene-catalyzed copolymerization of polyethylene with a 1-hexene comonomer yields copolymers that exhibit the same property improvements. 7 In re Angstadt, 537 F2d 498, 503 (CCPA 1976); In re Mercier, 515 F2d 1161, 1168 (CCPA 1975). Appeal 2020-004195 Application 14/278,303 10 Ans. 11 (explaining that “[a]s evidenced by Krishnaswamy8 both Ziegler- Natta and metallocene catalyst increase SCB, which enhances resistance to slow crack growth (SCG)). Even if modifying Bamberger’s ethylene-α-olefin copolymer with the teachings of Fukushima as proposed by the Examiner would have involved some degree of unpredictability, it is well-settled that, even in unpredictable arts, “[o]bviousness does not require absolute predictability of success . . . all that is required is a reasonable expectation of success.” In re Kubin, 561 F.3d 1351, 1360 (Fed. Cir. 2009) (emphasis omitted) (quoting In re O’Farrell, 853 F.2d 894, 903‒04 (Fed. Cir. 1988)). The Examiner provides a sound factual basis for why one of ordinary skill in the art reasonably would have expected that modifying Bamberger’s ethylene-α-olefin copolymer to include short-chain branches in an amount as disclosed in Fukushima would impart numerous advantageous properties to Bamberger’s copolymer. Appellant’s unsupported argument that the properties of Fukushima’s copolymers are not predictive of the properties of Bamberger’s copolymers does not constitute the requisite objective evidence necessary to establish that one of ordinary skill in the art would not have had a reasonable expectation that modifying Bamberger’s ethylene-α-olefin copolymer to incorporate short-chain (butyl) branches in an amount as disclosed in Fukushima would successfully impart numerous advantageous properties as 8 Krishnaswamy et al., Effect of the Distribution of Short Chain Branches on Crystallization Kinetics and Mechanical Properties of High-Density Polyethylene, 41 Macromolecules, 1693 (2008). The Examiner entered Krishnaswamy into the record on March 25, 2019. Appeal 2020-004195 Application 14/278,303 11 disclosed in Fukushima to Bamberger’s ethylene-α-olefin copolymer. In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997) (“An assertion of what seems to follow from common experience is just attorney argument and not the kind of factual evidence that is required to rebut a prima facie case of obviousness.”); Icon Health & Fitness, Inc. v. Strava, Inc., 849 F.3d 1034, 1043 (Fed. Cir. 2017) (“[a]ttorney argument is not evidence” and cannot rebut other admitted evidence). Appellant argues that the Examiner uses his own understanding or experience to make an assumption that the hypothetical copolymer formed by Bamberger in view of Fukushima has a MVTR and zero shear viscosity as recited in claim 1 based on a general relationship between molecular weight and MVTR/zero shear viscosity discussed in Godshall and Locati. Appeal Br. 12–13. Appellant argues that “the Examiner has not shown that Godshall and Locati disclose that molecular weight predicts the exact value of the zero shear viscosity or MVTR such that the hypothetical molecular weight of a hypothetical polymer can predict the hypothetical values for MVTR and zero shear viscosity.” Appeal Br. 13. As the Examiner explains in the Answer, however, “Godshall9 or Locati10 are not relied upon as a basis for the rejection to teach the values of the zero shear viscosity or the MVTR.” Ans. 15. Rather, as the Examiner explains, “Godshall and Locati provide evidence of a relationship between 9 Godshall, et al., Influence of Resin Molecular Weight on the Moisture Permeability of HDPE Brown Films, 19 J. Plastic Film & Sheeting, 197 (2003). The Examiner entered Godshall into the record on March 25, 2019. 10 Locati, Dependence of Zero-Shear Viscosity on Molecular Weight Distribution, 11 Polymer Letters 95–101 (1973). The Examiner entered Locati into the record on March 25, 2019. Appeal 2020-004195 Application 14/278,303 12 the molecular weight, and the MVTR and zero shear viscosity properties for polyethylenes . . . [and] Godshall and Locati provide further support that the molecular weight of polyethylene is connected to both the MVTR and zero shear viscosity properties and cannot be separated,” such that if the Mz and Mz/Mn “values fall in the claimed range, there is a reasonable expectation that the MVTR and zero shear viscosity would also fall in the claimed range.” Id. The Examiner adds that “Bamberger in view of Fukushima is sufficient alone to meet the inherency rejection set forth in the Final Office Action.” Id. Contrary to Appellant’s arguments, the Examiner’s finding that Bamberger’s polyethylene copolymer modified to have a short-chain (butyl) branching content as suggested by Fukushima would have “intrinsically exhibited” a moisture vapor transmission rate (MVTR) and zero shear viscosity as recited in claim 1, therefore, is not based on an assumption stemming from the Examiner’s own understanding or experience. Rather, as discussed above, the Examiner’s reasoning stems from the substantial similarity between Bamberger’s modified polyethylene copolymer and the polyethylene copolymer recited in claim 1, and the reasonable expectation that due to such substantial similarity, the copolymers would exhibit the same properties, including a moisture vapor transmission rate (MVTR) and zero shear viscosity as recited in claim 1. We, accordingly, sustain the Examiner’s rejection of claims 1, 3, 8– 22, and 24–29 under 35 U.S.C. § 103. Rejection II We turn now to the Examiner’s rejection of claim 23 under 35 U.S.C. § 103 as unpatentable over Bamberger in view of Fukushima and Bando. Appeal 2020-004195 Application 14/278,303 13 To address this rejection, Appellant relies on the arguments Appellant presents for claim 1 (discussed above), and argues that Bando does not cure the deficiencies of Bamberger and Fukushima. Appeal Br. 22. Because Appellant’s arguments do not identify reversible error in the Examiner’s rejection of claim 1 for the reasons discussed above, Appellant’s arguments also do not identify reversible error in the Examiner’s rejection of claim 23, which we accordingly sustain. CONCLUSION Claims rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 3, 8–22, 24–29 103 Bamberger, Fukushima 1, 3, 8–22, 24–29 23 103 Bamberger, Fukushima, Bando 23 Overall Outcome 1, 3, 8–29 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED