Ex Parte Bleys et al

Patent Trial and Appeal Board

Mar 20, 2018

12279903 (P.T.A.B. Mar. 20, 2018)

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 (Kevlarâ„¢) and polyethylene (Spectraâ„¢)"
(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 ).
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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
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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
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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
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