Ex Parte Bleys et alDownload PDFPatent Trial and Appeal BoardMar 20, 201812279903 (P.T.A.B. Mar. 20, 2018) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 12/279,903 08/19/2008 62068 7590 03/22/2018 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-50938 5964 EXAMINER SERGENT, RABON A ART UNIT PAPER NUMBER 1765 NOTIFICATION DATE DELIVERY MODE 03/22/2018 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): USPatents@Huntsman.com Diana_E_ Ortega@Huntsman.com sophie_bolt@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, ERIC HUYGENS, STUN ROEKAERTS, MARC VANDERVESSE, and HANS GODELIEVE GUIDO VERBEKE Appeal2017-006670 Application 12/279,903 Technology Center 1700 Before TERRY J. OWENS, BRIAND. RANGE, and MERRELL C. CASHION, JR., Administrative Patent Judges. OWENS, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE The Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's rejection of claims 23-26, 28-35, and 45--47. We have jurisdiction under 35 U.S.C. § 6(b). The Invention The Appellants claim a process for making a polyisocyanurate composite. Claim 23 is illustrative: 23. A process for making a polyisocyanurate composite compnsmg: Appeal2017-006670 Application 12/279,903 combining a polyisocyanate, a polyether polyol, a trimerization catalyst and a to-be-bonded material to form a reactive composite which is stable at room temperature, the polyether polyol having an average equivalent weight of 100- 2500 and an oxyethylene content of at least 65 % by weight based on the total weight of the polyol, the amount of the polyisocyanate and the polyether polyol is such that the index of the reactive binder composition is 150 - 10000 and wherein the amount of the polyisocyanate, polyether polyol and trimerization catalyst is 1 - 60 % by weight and the amount of the to-be-bonded material is 40-99 % by weight, both calculated on the amount of polyisocyanate, polyether polyol and trimerization catalyst plus the amount of to-be-bonded material; and forming the polyisocyanurate composite by elevating the temperature of the reactive composite above an initial temperature of 50°C. Cheolas Joshi Bleys The References US 2002/0045690 Al US 2003/0176561 Al WO 2004/111101 Al Oertel, Polyurethane Handbook 422-23 (Hanser 1985). The Rejections Apr. 18, 2002 Sept. 18, 2003 Dec. 23, 2004 The claims stand rejected as follows: claims 23-26, 28-35, and 45--47 under 35 U.S.C. § 103 over Bleys in view of Cheolas, Joshi and Oertel and claim 29 under 35 U.S.C. § 112, second and fourth paragraphs. 1 OPINION We affirm the rejections. 1 A rejection of claims 23-26, 28-35, and 45--47 under 35 U.S.C. § 112, first paragraph, written description requirement is withdrawn in the Examiner's Answer (Ans. 6-7). 2 Appeal2017-006670 Application 12/279,903 Rejection under 35 USC§ 103 The Appellants argue claims 23-26, 28-35, and 45--47 as a group (Br. 13-18). We therefore limit our discussion to one claim, i.e., claim 23, which is the sole independent claim. Claims 24--26, 28-35, and 45--47 stand or fall with that claim. See 37 C.F.R. § 41.37(c)(l)(iv) (2012). Bleys makes a polyisocyanurate polyurethane material from a polyisocyanate/polyether polyol/trimerization catalyst mixture (i1i12, 12, 29). The polyether polyol has an average equivalent weight of 150-1000 and an oxyethylene content of 75-100 wt% (i-f 12). The mixture's index is 150- 1500 (i-fi-f 12, 34). 2 "The materials are preferably made in a mould .... The ingredients used for making the material are fed into the mould at a temperature of from ambient temperature up to 80QC, the mould being kept at a temperature of from ambient temperature up to 150QC during the process" (i-f 36). In Bleys' examples "[t]he temperature of the chemicals and of the mould was 35 and 85QC, respectively" (i-f 43). "[T]he process is suitable to make reinforced materials by using fillers like organic particles and mineral particles like nanoclay particles, BaS04 and CaC03 and/or fibers like glass fibers, natural fibers like flax, hemp and sisal fibers, synthetic fibers like polyamides (Kevlar™) and polyethylene (Spectra™)" (i-f 9). Cheolas discloses a pultruded fiber-reinforced polyisocyanurate composite comprising "about 10-90%, preferably about 20-80%, more preferably about 30-75% of fibers based on the total weight of the 2 The Appellants' Specification indicates that the claim term "reactive binder" refers to the polyisocyanate/polyether polyol/trimerization catalyst mixture (Spec. 1: 18-21 ). 3 Appeal2017-006670 Application 12/279,903 composite" (i-fi-f 129, 134). "Fibers useful as reinforcements include glass fibers, aramid fibers such as nylon, Kevlar, carbonaceous fibers such as graphite fibers, metal fibers such as steel fibers, and natural fibers such as lignocellulosic fibers, hemp, and jute, preferably glass fibers" (i-f 129). The Appellants assert that "[ n ]either Bleys et al. nor Cheolas et al. (or Joshi et al. or Oertel) teaches or suggests a process which includes the step of combining a polyisocyanate, polyol, catalyst and 40-99 % by weight of to-be-bonded material to form a reactive composite that is stable prior to increasing the temperature of the reactive composite above 50QC to produce the polyisocyanurate composite" (Br. 16). Both Bleys and the Appellants make a polyisocyanurate by reacting a polyisocyanate and a polyether polyol in the presence of a trimerization catalyst (Bleys i-fi-f 12, 29; Spec. 1: 18-20). Both Bleys' and the Appellants' polyisocyanate consists of 80-100 wt% of diphenylmethane diisocyanate comprising at least 40 wt%, preferably at least 60 wt% and most preferably at least 85 wt% of 4,4'-diphenylmethane diisocyanate and/or a variant thereof which is liquid at 25 QC and has an NCO value of at least 20 wt%, and 0-20 wt% of another polyisocyanate (Bleys i-f 12; Spec. 4:29- 5:3). Bleys' polyether polyol has an average equivalent weight of 150-1000 (i-f 12) (compared to the Appellants' 100-2500 (Spec. 6:24)), an average nominal hydroxyl functionality of 2-6 (i-f 12) (compared to the Appellants' 2-8, preferably 2--4 (Spec. 6:24--29)), and an oxyethylene content of 7 5-100 wt% (compared to the Appellants' at least 50 wt%, preferably at least 65 wt% (Spec. 6:24--26)). Both Bleys' and the Appellants' polyisocyanurates have a low level of residual free NCO groups (Bleys i-f 11; Spec. 3: 1-2). In view of those similarities, it appears that Bleys 4 Appeal2017-006670 Application 12/279,903 would have suggested a polyisocyanurate which is the same or substantially the same to that of the Appellants and, therefore, has the same or substantially the same properties including temperature stability. See In re Papesch, 315 F.2d 381, 391(CCPA1963) ("From the standpoint of patent law, a compound and all of its properties are inseparable; they are one and the same thing"). Moreover, Bleys' examples indicate that the chemicals are stable at their temperature (35 QC) before being fed to the mold and are reactive at the mold temperature (85 QC, which is above the Appellants' claim 23 's initial temperature of 50 QC) (i-f 43). Bleys' polyisocyanurate composite' s fillers include many of the Appellants' to-be-bonded materials (glass fibers, nanoclay particles, mineral particles like BaS04 or CaC03 particles, synthetic fibers like polyamide or polyolefin fibers, and natural fibers like flax, hemp and sisal fibers) (Bleys i1 9; Spec. 8 :21 - 9: 11 ). Bleys does not disclose the percentage of filler in the polyisocyanurate composite. However, the Appellants' lack of disclosure of a particular polyisocyanurate composite product indicates that one of ordinary skill in the art would have considered the Appellants' and Bleys' polyisocyanurate composites to be useful for making polyisocyanurate composite products generally, including products containing filler within the Appellants' claim 23 's broad percentage range ( 40-99 wt%). Moreover, both Bleys and the Appellants use an amount of filler that provides good temperature stability and flame resistance (Bleys i18; Spec. 3:1-2). Also, Cheolas would have suggested polyisocyanurate composite filler contents within the Appellants' range (i-fi-f 129, 134). The Appellants assert that "Appellant has surprisingly found that the reactive composite according to claim 23 remains stable at temperatures up 5 Appeal2017-006670 Application 12/279,903 to 50QC for a long period of time allowing one to transfer the reactive composite to a mould or shape the reactive composite before final curing. See Application text at page 2, lines 20-30 and page 9, lines 25-28" (Br. 17). The relied-upon portion of Appellants' Specification does not provide evidence, let alone the required side-by-side comparison of the claimed invention with the closest prior art which is commensurate in scope with the claims, accompanied by an explanation of why the results would have been unexpected by one of ordinary skill in the art. See In re Baxter Travenol Labs., 952 F.2d 388, 392 (Fed. Cir. 1991); In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984); In re Grasselli, 713 F.2d 731, 743 (Fed. Cir. 1983); In re Clemens, 622 F.2d 1029, 1035 (CCPA 1980); In re Freeman, 474 F.2d 1318, 1324 (CCPA 1973); In re Klosak, 455 F.2d 1077, 1080 (CCPA 1972). For the above reasons we are not persuaded of reversible error in the rejections under 35 U.S.C. § 103. Rejections under 35 USC§ 112, second and fourth paragraphs The Appellants do not challenge the rejections under 35 U.S.C. § 112, second and fourth paragraphs (Br. 12). Accordingly, we summarily affirm those rejections. DECISION/ORDER The rejections of claims 23-26, 28-35, and 45--47 under 35 U.S.C. § 103 over Bleys in view of Cheolas, Joshi and Oertel and claim 29 under 35 U.S.C. § 112, second and fourth paragraphs are affirmed. It is ordered that the Examiner's decision is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). AFFIRMED 6 Copy with citationCopy as parenthetical citation