Ex Parte Bleys et al

Patent Trial and Appeal BoardMar 31, 2016

11292398 (P.T.A.B. Mar. 31, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 111292,398 12/01/2005 62068 7590 04/04/2016 HUNTSMAN INTERNATIONAL LLC LEGAL DEPARTMENT 10003 WOODLOCH FOREST DRIVE THE WOODLANDS, TX 77380 FIRST NAMED INVENTOR Gerhard Jozef Bleys 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 ATTORNEY DOCKET NO. CONFIRMATION NO. EU-50915 3323 EXAMINER SERGENT, RABON A ART UNIT PAPER NUMBER 1765 NOTIFICATION DATE DELIVERY MODE 04/04/2016 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): Martha_ Victory@Huntsman.com USPatents@Huntsman.com Joanne_Cutlip@Huntsman.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte GERHARD JOZEF BLEYS, JAN WILLEM LEENSLAG, and HANS GODELIEVE GUIDO VERBEKE Appeal2014-006416 Application 11/292,398 Technology Center 1700 Before ADRIENE LEPIANE HANLON, CATHERINE Q. TIMM, and JAMES C. HOUSEL, Administrative Patent Judges. PERCURIAM. DECISION ON APPEAL 1 STATEMENT OF THE CASE Appellants2 filed an appeal under 35 U.S.C. Â§ 134 from the Examiner's decision rejecting3 claims 1, 2, 11, and 13 under 35 U.S.C. Â§ 1 Our decision refers to the Final Office Action mailed Oct. 12, 2012 (Final Act.), Appellants' Appeal Brief filed Jan. 3, 2013 (Br.), and the Examiner's Answer mailed May 22, 2013 (Ans.). 2 Appellants identify the real party of interest as Huntsman International LLC. Appeal Br. 2. 3 Rejections of claims 1, 2, and 11 under 35 U.S.C. Â§ 112, second paragraph, have been withdrawn by the Examiner. Ans. 2. The Examiner states claim 14 remains rejected under 35 U.S.C. Â§ 112, second paragraph. Ans. 2 and 5. However, claim 14 was canceled via an amendment dated June 10, 2013. An Advisory Action dated Sept. 6, 2013 states the amendment canceling Appeal2014-006416 Application 11/292,398 103(a) over Bleys4 in view of Kondo, 5 Nomura,6 and Hom.7 We have jurisdiction under 35 U.S.C. Â§Â§ 6(b) and 134(a). We AFFIRM. The claims on appeal are directed to processes for preparing a solid, non-blown polyisocyanurate polyurethane material (see, e.g., claims 1 and 13) and polyisocyanurate polyurethane materials made by the processes. Appellants disclose polyisocyanurate polyurethane materials having a high modulus, high impact resistance, high temperature and flammability resistance, a short demold time, and high green strength. Spec. p. 2, 11. 7-9. The materials are also suitable for reinforcement via fillers and are made from ingredients that are easily processable. Spec. p. 2, 11. 11-17. Independent claim 1 is illustrative of the subject matter on appeal. Claim 1 is reproduced from the Claims Appendix of the Appeal Brief: 1. A process for preparing a solid, non-blown polyisocyanurate polyurethane material comprising reacting in the presence of a trimerization catalyst selected from the group consisting of tertiary amines, triazines, and alkali metal salts of organic carboxylic acids and in the absence of an internal mold release agent, a mixture comprising a polyisocyanate and an isocyanate-reactive composition, wherein the reaction is conducted at an isocyanate index of 150 to 1500, and wherein the polyisocyanate consists of a) 80-100% by weight of a diphenylmethane diisocyanate comprising at least 40% by weight of 4,4'-diphenylmethane diisocyanate and/or a variant of said diphenylmethane diisocyanate which variant is claim 14 was entered and the rejections of claim 14 under 35 U.S.C. Â§ 112, second paragraph, and prior art, were withdrawn. 4 Bleys et al., WO 02/06370 Al, published Jan. 24, 2002. 5 Kondo et al., US 5, 100,926 A, issued Mar. 31, 1992. 6 Nomura et al., US 4,299,924, issued Nov. 10, 1981. 7 Hom et al., US 6,169,124 Bl, issued Jan. 2, 2001. 2 Appeal2014-006416 Application 11/292,398 Br. 8. liquid at 25Â° C and has an NCO value of at least 20% by weight, and b) 20-0% by weight of another polyisocyanate, and wherein the isocyanate-reactive composition consists of i) 80-100% by weight of a polyether polyol having an average nominal functionality of 2-4, an average equivalent weight of 150-1000, an average molecular weight of 600-4000, and an oxyethylene (EO) content of 75-100% by weight, and ii) 20-0% by weight of one or more other isocyanate-reactive compounds excluding water, the amount of i) and ii) being calculated on the total amount of i) and ii); and wherein the one or more isocyanate-reactive compounds does not include an isocyanate reactive chain extender. OPINION The Examiner finds Bleys discloses the production of a non-cellular polyurethane elastomer by reacting an isocyanate reactant and a polyol component. Final Act. 3. In particular, Bleys discloses reacting a polyisocyanate and an isocyanate-reactive composition. Bleys, Abstract. The polyisocyanate consists of 80-100% by weight of a diphenylmethane diisocyanate and 0-20% by weight of another polyisocyanate. Id. The isocyanate-reactive composition consists of (a) 80-100% by weight of a polyetherpolyol, (b) an isocyanate-reactive chain extender, and (c) 0-20% by weight of one or more other isocyanate-reactive compounds excluding water. Id. The Examiner finds Bleys does not disclose the isocyanate index recited in claim 1 but finds the use of high isocyanate index ratios and trimerization catalysts was known, citing Kondo, Nomura, and Hom. Final Act. 3--4. The Examiner concludes it would have been obvious to modify 3 Appeal2014-006416 Application 11/292,398 Bleys in view of Kondo, N onmra, and Hom to use trimerization catalysts and high isocyanate index ratios to obtain a polyisocyanate based polymer having the advantages attributable to the presence of isocyanurate groups. Final Act. 4. In the Final Office Action, the Examiner further finds the chain extender in the isocyanate-reactive composition of Bleys is optional because Bleys discloses the content of polyether polyol can be as high as 100 wt% of the isocyanate-reactive composition. Final Act. 3. Appellants contend the disclosure of Bleys does not support the Examiner's finding that the chain extender is optional. According to Appellants, this is because Bleys discloses the amount of polyether polyol (a) and the amount of the other isocyanate-reactive compounds ( c) calculated based on the total amount of the polyether polyol (a) and the isocyanate-reactive compounds (c). Br. 4--5. Therefore, according to Appellants, Bleys does not disclose that the polyether polyol can comprise 100% of the isocyanate-reactive component, only that the polyether polyol can comprise 100% of the total of the sum of the polyether polyol (a) and the isocyanate-reactive compound ( c ); the isocyanate-reactive component must also contain the isocyanate-reactive chain extender (b ). In view of this, Appellants argue one of ordinary skill in the art would not have modified Bleys to exclude the chain extender. Br. 5. Appellants' arguments do not persuade us the Examiner reversibly erred. In the Answer, the Examiner concedes one cannot deduce the chain extender is optional in the isocyanate-reactive composition of Bleys solely based upon the disclosure that the polyether polyol can comprise 100 wt% of the isocyanate-reactive component. Ans. 5. The Examiner, however, 4 Appeal2014-006416 Application 11/292,398 concludes it would have been obvious to omit the chain extender from the isocyanate-reactive component of Bleys. Ans. 5. According to the Examiner, the relationship between the amount of chain extender used and the hard block content was known at the time of invention. This position is supported by the disclosure within page 5, line 29 through page 6, line 4 of [Bleys], wherein the disclosed calculation makes clear that a decrease in isocyanate-reactive materials having a molecular weight of at most 1,000 (the skilled artisan would understand this language to pertain to chain extenders) decreases hard block ratio or content. Furthermore, the reference discloses within the abstract; page 9, lines 3-5; and page 15, lines 25 and 26 that the amount of chain extender used is such that the hard block ratio (content) is less than 0.5 and preferably less than 0.45. Since the reference is concerned with reducing hard block content and since the reference has established that hard block content can be reduced by decreasing the amount of chain extender, the position is taken that the skilled artisan would have been motivated to delete chain extenders to further reduce the hard block content. Furthermore, given the language \'l1ithin the reference that the amount of chain extender used is such that the hard block ratio is reduced or limited, as opposed to increased, and the lack of any definitive disclosure requiring that a minimal amount of chain extender be used, it is by no means clear that the chain extender is a mandated component. Also, it is noted that it has been held that omission of an element and its function is obvious if the function of the element is not desired. See MPEP 2144.04(II)(A). In the instant case, the skilled artisan would have appreciated that the use of the extender would not have been required, since its function in increasing hard block content would not have been desired where a minimal hard block content was desired and since the reference provides a teaching to reduce hard block content. Ans. 3--4. 5 Appeal2014-006416 Application 11/292,398 The disclosure of Bleys supports the Examiner's findings and demonstrates one of ordinary skill in the art would have had a reason to modify Bleys, as concluded by the Examiner. Bleys discloses a hard block ratio, which includes isocyanate-reactive materials having a molecular weight of at most 1000 (chain extenders) in its numerator. Bleys p. 5, 1. 29 top. 6, 1. 4. Bleys also discloses the chain extender is used in an amount so the hard block ratio is less than 0.50, preferably less than 0.45. Bleys, Abstract and p. 3, 11. 3-5. Given that reducing the chain extender amount would be in keeping with minimizing the hard block ratio and there is no definitive disclosure in Bleys that chain extenders are required, the Examiner's finding of a reason to omit the chain extender is reasonable. Appellants have not responded to the findings or conclusion the Examiner sets forth in the Answer. A preponderance of the evidence supports the determination of the Examiner regarding the obviousness of omitting chain extender. Appellants further assert there would have been a lack of reason to modify Bleys in view of Kondo, Nomura, and Hom because Bleys does not disclose or suggest the use of a trimerization catalyst and Bleys discloses using an isocyanate index of 85 to 120, not 150 to 1500, as recited in claim 1. Br. 6. Appellants' arguments are unpersuasive. First, we note Bleys discloses the use of catalysts that include alkali metal or alkaline earth metal carboxylate salts. Bleys p. 12, 11. 1-5. Appellants disclose a trimerization catalyst can be, for example, an alkali metal salt of organic carboxylic acid. Spec. p. 9, 11. 16-17. Thus, Bleys' catalysts appear to be the same or similar to the trimerization catalysts contemplated by Appellants. Moreover, the 6 Appeal2014-006416 Application 11/292,398 references cited by the Examiner provide a reason to modify Bleys to use a higher isocyanate index. Nomura, for example, teaches the isocyanate index is a result-effective variable by disclosing higher isocyanate indexes increase heat stability and rigidity while decreasing impact resistance. Nomura col. 6, 11. 46-48. Therefore, the record supports the Examiner's findings and the conclusion that it would have been obvious to modify Bleys to use a higher isocyanate index, as recited in claim 1. Claims 2, 11, and 13 have not been argued separately and therefore fall with claim 1. For the reasons discussed above and those set forth in the Examiner's Answer, we sustain the Examiner'sÂ§ 103 rejection of claims 1, 2, 11, and 13 under 35 U.S.C. Â§ 103(a) as being unpatentable over Bleys in view of Kondo, Nomura, and Hom. DECISION The decision of the Examiner is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a)(l). AFFIRMED 7