Ex Parte Blizzard

Patent Trial and Appeal BoardMar 18, 2016

12930070 (P.T.A.B. Mar. 18, 2016)

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. 12/930,070 12/24/2010 John D. Blizzard MSH-636 5530 8131 7590 03/18/2016 MCKELLAR IP LAW, PLLC 784 SOUTH POSEYVILLE ROAD MIDLAND, MI 48640 EXAMINER POURBOHLOUL, SARIRA CAMILLA ART UNIT PAPER NUMBER 1765 MAIL DATE DELIVERY MODE 03/18/2016 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte JOHN D. BLIZZARD ____________________ Appeal 2014-009716 Application 12/930,070 Technology Center 1700 ____________________ Before CATHERINE Q. TIMM, LINDA M. GAUDETTE, and JENNIFER R. GUPTA, Administrative Patent Judges. GUPTA, Administrative Patent Judge. DECISION ON APPEAL Appeal 2014-009716 Application 12/930,070 2 Appellant appeals1 under 35 U.S.C. § 134 from the Examiner’s decision2 finally rejecting claims 1–4 and 6–7. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. The claims are directed to a method of encapsulating particulate materials. Claim 1, reproduced below, is illustrative of the claims on appeal. 1. A method of encapsulating particulate materials, the method comprising: a. providing acidified water at least sufficient for hydrolyzing a predetermined amount of alkoxysilane; b. dispersing at least one type of particulate material in the acidified water; c. slowly adding a predetermined amount of alkoxysilane having the general formula: RxSi(ORʹ)4-x wherein R is selected from the group consisting essentially of alkyl groups, substituted alkyl groups, aryl groups, substituted aryl groups, vinyl, allyl, and hydrogen, wherein the substituents are selected from the group consisting of fluorine, amino, hydroxy, and combinations thereof, and wherein Rʹ is selected from hydrogen and alkyl groups of 1 to 4 carbon atoms; d. allowing sufficient time for the alkoxysilane to hydrolyze and build a predetermined particle size. Br. 6 (Claims Appendix). Claims 1–4, 6, and 7 stand rejected under 35 U.S.C. §103(a) as being unpatentable over Wolter et al. (“Wolter”) (US 6,447,907 B1, issued 1 Appellant identifies the real party in interest as the inventor, John D. Blizzard. Brief filed March 10, 2014 (“Br.”), 1. 2 Final Office Action mailed October 9, 2013 (“Final”). Appeal 2014-009716 Application 12/930,070 3 September 10, 2002) in view of Yoerger et al. (“Yoerger”) (US 5,989,767, issued November 23, 1999). Final 2. Appellant relies on the same arguments in support of patentability of claim 1 in traversing the rejection of dependent claims 2–4, 6, and 7. See Br. 2–4. Accordingly, claims 2–4, 6, and 7 stand or fall with claim 1. We have reviewed each of Appellant’s arguments, and find that a preponderance of evidence supports the conclusion of obviousness. Accordingly, we sustain the above rejection for the reasons stated by the Examiner in the Answer with the following comments added for emphasis. Appellant’s argument that Wolter and Yoerger fail to teach or suggest the claimed sequence of steps recited in appealed claim 1, particularly that the alkoxysilane is added “slowly” to the acidified water, is not persuasive. Br. 2–3. Appellant is arguing limitations not recited in the claim. Claim 1 does not recite that the alkoxysilane is added slowly to the acidified water or require that the steps be performed in the order recited. In addition, Appellant has not provided any persuasive reasoning or pointed to any evidence tending to establish that the Examiner erred in finding that Wolter teaches slowly adding alkoxysilane to a dispersion of particles under acidic or basic conditions (Ans. 3). Appellant’s argument that the references “are not combinable to render the instant process obvious” also lacks persuasive merit. Br. 3. Appellant simply alleges that the references would not have been combined, but provides no specific arguments or evidence establishing that the references are not combinable in the manner set forth by the Examiner. See id. Appeal 2014-009716 Application 12/930,070 4 Appellant’s argument that Wolter teaches a solvent and Yoerger teaches a catalyst not required by claim 1 is not convincing. Br. 4. As the Examiner properly determines, claim 1 uses the open-ended transitional phrase “comprising” which does not exclude any additional steps from the recited process. Ans. 6. Therefore, Wolter’s use of a solvent and Yoerger’s use of a catalyst is not excluded from claim 1. CONCLUSION For the above reasons, we sustain the Examiner’s obviousness rejection of claims 1–4, 6, and 7. AFFIRMED