Ex Parte Bonnet et al

Patent Trial and Appeal Board

Nov 29, 2016

11445598 (P.T.A.B. Nov. 29, 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.
11/445,598 06/02/2006 Anthony Bonnet FR-AM2135 NP 8103
31684 7590
ARKEMA INC.
900 First Avenue
Bldg 4-2
King of Prussia, PA 19406
12/01/2016 EXAMINER
BLACKWELL, GWENDOLYN
ART UNIT PAPER NUMBER
1782
NOTIFICATION DATE DELIVERY MODE
12/01/2016 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):
carol.hill@arkema.com
steven.boyd @ arkema.com
elizabeth.gilson @ arkema.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ANTHONY BONNET and MICHAEL WERTH
Appeal 2015-002777
Application 11/445,598
Technology Center 1700
Before MICHAEL P. COLAIANNI, N. WHITNEY WILSON and
AVELYN M. ROSS, Administrative Patent Judges.
WILSON, Administrative Patent Judge.
DECISION ON APPEAL
Appellants1 appeal under 35 U.S.C. § 134(a) from the Examiner’s
February 3, 2014 decision finally rejecting claims 1, 5, 6, 12, 13, 17, 22—27,
and 30—32 (“Final Act.”). We have jurisdiction over the appeal under
35 U.S.C. § 6(b).
We reverse.
i Appellants identify the real party in interest as Arkema France (Br. 3).
Appeal 2015-002777
Application 11/445,598
CLAIMED SUBJECT MATTER
Appellants’ invention is directed to a multilayer pipe, which
comprises a number of layers (Abstract). Details of the claimed invention
may be seen in independent claim 1, which is reproduced below from the
Claims Appendix of the Appeal Brief (emphasis added):
1. A coextruded multilayer pipe consisting (in the following
order, from the inside of the pipe outwards):
• a layer Ci of a vinylidene fluoride homopolymer
or copolymer having at least 75% by weight of
vinylidene fluoride (VDF);
• layer C2 a radiation grafted vinylidene fluoride
homopolymer or copolymer onto which maleic anhydride
has been radiation-grafted by melt-blending said vinylidene
fluoride homopolymer or copolymer and said maleic
anhydride, forming granules of said blend, followed by
irradiation grafting of said granules in the solid state — said
grafting taking place when the polymer is not in the melt
state, wherein said grafting occurs throughout the mass and
not just on the surface of a powder, and wherein the level of
grafting is from 0.9 to 5%;
• an adhesion tie layer C3, this layer C3 being
directly attached to the layer C2 containing the radiation-
grafted fluoropolymer;
• a layer C4 selected from the group consisting of a
polyethylene and a polyolefin blended with a
functionalized polyolefin, directly attached to the layer C3;
• a polymer barrier layer Csto prevent diffusion of
chemical compounds', and
• a polyethylene layer Ce.
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Appeal 2015-002777
Application 11/445,598
REJECTIONS
I. Claims 1, 5, 6, 12, 13, 22—27, 30, and 31 are rejected under 35
U.S.C. § 103(a) as being unpatentable over Baumert2 and Nishi.3
II. Claim 17 is rejected under 35 U.S.C. § 103(a) as being
unpatentable over Baumert and Nishi, and further in view of Babrowicz.4
III. Claim 32 is rejected under 35 U.S.C. § 103(a) as being
unpatentable over Baumert, Nishi, and Egret.5
Appellants do not offer separate arguments in support of any of the
claims (See, generally Br. 5—8). Accordingly, our discussion will focus on
the rejection of claim 1 over Baumert in view of Nishi (Rejection I).
DISCUSSION
The Examiner finds that Baumert teaches a laminate structure which
can be used for pipes which has the following layers: (1) a fluoropolymer,
(2) a tie layer, (3) and a polyolefin layer, (4) a tie layer, and (5) a polyolefin
layer (Final Act. 2, citing Baumert, || 22—28, 30). The Examiner also finds
that Baumert does not disclose a layer of maleic anhydride grafted
vinylidene fluoride polymer between the fluoropolymer layer and the first tie
layer (Final Act. 3). The Examiner further finds that Nishi teaches that
fluorine containing polymers generally have poor adhesive properties and
that “in many cases no adequate adhesive strength can be obtained if a film
of fluorine containing polymer is laminated directly onto a substrate” (id.,
2 Baumert et al., U.S. Patent Pub. 2004/0023037 Al, published February 5, 2004.
3 Nishi et al., U.S. Patent No. 5,736,610, issued April 7, 1998.
4 Babrowicz et al., U.S. Patent No. 5,993,922, issued November 30, 1999.
5 Egret et al., U.S. Patent No. 6,528,135 Bl, issued March 4, 2003.
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Appeal 2015-002777
Application 11/445,598
citing Nishi, 1:18—22), and that Nishi further discloses a fluorine-containing
adhesive which falls within the scope of the claimed maleic anhydride
containing layer C2 (Final Act. 3—4, citing Nishi 1:6—9, 55—64, 3:24—28, 6:5—
8, 13-18,29-37,7:27-35).
The Examiner determines that it would have been obvious to use
Nishi’s grafted fluoropolymer adhesive material as a layer between the
fluoropolymer layer and the tie layer of Baumert to increase the adhesion
between the fluoropolymer layer and the rest of the structure (Final Act. 4).
Appellants offer three arguments seeking reversal of the rejection:
(1) there was no motivation to combine Nishi and Baumert in the manner set
forth in the rejection, (2) the Nishi grafted fluoropolymer is patentably
different from the claimed grafted fluoropolymer, and (3) the second tie
layer of Baumert’s composition does not correspond to the claimed barrier
layer. We focus on arguments (1) and (3), as they are dispositive of the
appeal.
Argument (1). Appellants contend that Baumert discloses the use of a
novel tie layer, which is said to “do a good job of adhering” the layers of the
Baumert composition to each other (Br. 5). Therefore, according to
Appellants, a person of ordinary skill in the art would have no reason to use
the additional tie layer taught by Nishi (Br. 5—6) as would be required in
order to arrive at the claimed invention. Appellants’ argument is persuasive.
Although Nishi discloses that its fluorine-containing adhesive provides good
adhesion properties, the Examiner has not provided a persuasive explanation
of why a person of skill in the art would have added the Nishi adhesive to
the Baumert structure and not remove Baumert’s tie layer (which has the
same function as the adhesive compound taught by Nishi). That is, even if a
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Appeal 2015-002777
Application 11/445,598
person of skill in the art would have been motivated by Nishi to use its
grafted copolymer as the adhesive in Baumert to achieve a greater layer of
adhesion, the evidence of record does not support the Examiner’s finding
that this combination would have been an addition of a layer to Baumert’s
structure, rather than a substitution of Nishi’s compound for Baumert’s tie
layer, since Baumert suggests that its tie layer provides adequate adhesion
(Baumert, 120).
Argument (3). The Examiner finds that the Baumert’s fourth layer
(which would correspond with the claimed barrier layer) is a “tie” layer
(Final Act. 2). The Examiner also finds that the tie layer is based on a graft
copolymer resulting from the polymerization of at least one
alkyl(meth)acrylate directly attached to a polyolefin, and may also comprise
additional functionalized polyolefins (id.). The Examiner finds that
Baumert’s tie layer corresponds to the claimed barrier layer because it
comprises a polymer and would prevent diffusion of chemical compounds
(Final Act. 5).
However, Appellants have explained that a person of skill in the art
would not have considered Baumert’s tie layer to be able to function as both
a tie layer (layer C3) and as a barrier layer (layer C5), as would be required for
the rejection. The Examiner states that the claims do not specifically recite
“the chemically different features which applicant insists distinguish the
claimed tie layer and barrier layer” (Ans. 12). However, claim 1 explicitly
recites that the claimed barrier layer C5 “prevents] diffusion of chemical
compounds.” This property is further elucidated in the Specification, which
states that layer C5 prevents diffusion of chemical compounds from outside
the pipe into the pipe, or vice versa, and provides examples of the types of
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Appeal 2015-002777
Application 11/445,598
compounds whose diffusion is prevented, such as oxygen, hydrocarbons, and
moisture (Spec. 15—16). Thus, the plain language of the claim, as well as the
Specification, requires that layer C5 have the ability to prevent diffusion of
chemicals. The Examiner does not specifically refute Appellants’ argument
that a person of skill in the art would not consider Baumerf s tie layer to
function as a barrier layer (see, Ans. 12), and has not provided persuasive
evidence that Baumerf s tie layer would have this ability. Thus, the
preponderance of the evidence of record, including the information set forth
in Appellants’ Specification on pages 16—18, does not support the
Examiner’s finding that Baumerf s tie layer has the capability of functioning
as a barrier layer.
CONCLUSION
We REVERSE the rejection of claims 1, 5, 6, 12, 13, 22—27, 30, and
31 under 35 U.S.C. § 103(a) as being unpatentable over Baumert and Nishi.
We REVERSE the rejection of claim 17 under 35 U.S.C. § 103(a) as
being unpatentable over Baumert and Nishi, and further in view of
Babrowicz.
We REVERSE the rejection of claim 32 under 35 U.S.C. § 103(a) as
being unpatentable over Baumert, Nishi, and Egret.
REVERSED
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