Ex Parte Brown et al

Patent Trial and Appeal Board

Mar 27, 2017

12865055 (P.T.A.B. Mar. 27, 2017)

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.
12/865,055 07/28/2010 Geoffrey D. Brown 65567A-US-PCT 9957
109 7590 03/29/2017
The Dow Chemical Company
P.O. BOX 1967
2040 Dow Center
Midland, MI 48641
EXAMINER
NGUYEN, CHAU N
ART UNIT PAPER NUMBER
2847
NOTIFICATION DATE DELIVERY MODE
03/29/2017 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):
FFUIMPC@dow.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte GEOFFREY D. BROWN and ROBERT F. EATON
Appeal 2016-003937
Application 12/865,055
Technology Center 2800
Before ADRIENE LEPIANE HANLON, JEFFREY R. SNAY, and
JENNIFER R. GUPTA, Administrative Patent Judges.
SNAY, Administrative Patent Judge.
DECISION ON APPEAL1
Appellants2 appeal under 35 U.S.C. § 134(a) from the Examiner’s
decision rejecting claims 1—3 and 6—10. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.
1 We refer to the Specification (“Spec.”) filed July 28, 2010, amended
September 7, 2012; Final Office Action (“Final Act.”) dated January 28,
2015; Appellant’s Appeal Brief (“Br.”) dated June 23, 2015; and Examiner’
Answer (“Ans.”) dated October 8, 2015.
2 Appellants identify Union Carbide Chemicals & Plastics Technology,
LLC, as the real party in interest. App. Br. 3.
Appeal 2016-003937
Application 12/865,055
BACKGROUND
The subject matter on appeal relates to flame retardant formulations.
Spec. 1. Sole independent claim 1 is reproduced from the Claims Appendix
of the Appeal Brief as follows:
1. A flame-retardant polyolefin / thermoplastic
polyurethane composition comprising:
(a) 5 to 90 weight percent of a polyolefin that is an
ethylene/unsaturated ester copolymer that has an ester
comonomer content within a range of from 5 to 50 percent by
weight of the copolymer and a melt index within a range of
from 0.5 grams per 10 minutes to 50 grams per 10 minutes;
(b) a thermoplastic polyurethane; and
(c) an intumescent, polyphosphate flame retardant
composition that comprises:
(i) an intumescent, nitrogen-containing
polyphosphate and
(ii) a melamine or a melamine-derivative co­
additive.
REJECTION3
Claims 1—3 and 6—10 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Moriuchi4 and Murase.5
3 Final Act. 2—\\ Ans. 3—5.
4 WO 2007/058349 Al, published May 24, 2007 (“Moriuchi”). Appellants
do not contest the Examiner’s citation to and reliance on US 8,129,619 B2,
issued March 6, 2012, as an English language equivalent of Moriuchi. Br. 7
(“As the PCT publication of Moriuchi is a non-English document, reference
will be made herein to corresponding U.S. Patent Number 8,129,619, as
suggested by the Examiner.”).
5 EP 1 719 800 Al, published November 8, 2006 (“Murase”)
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Appeal 2016-003937
Application 12/865,055
DISCUSSION
With regard to the Rejection, Appellants argue the rejected claims as a
group. Br. 7—11. In accordance with 37 C.F.R. § 41.37(c)(l)(iv), we select
claim 1 as representative and decide the appeal based on the representative
claim alone.
Appellants do not dispute the Examiner’s finding that Moriuchi
discloses a flame retardant polyolefm/polyurethane composition that meets
all of the recitations in claim 1, except that Moriuchi does not teach use of
the claimed polyphosphate/melamine composition as flame retardant.
Compare Final Act. 2—3 with Br. 7—11. As flame retardant, Moriuchi
discloses metal hydroxide. Moriuchi col. 2,11. 11—13.
Appellants argue that substituting Murase’s polyphosphate/melamine
flame retardant for Moriuchi’s metal hydroxide flame retardant would not
have been obvious because it “changes the principle of operation on which
Moriuchi was intended to function.” Br. 11. Particularly, Appellants
contend that “the principle of operation of Moriuchi is to employ a specific
ratio of components, including a metal hydroxide, to achieve a balance of
desired properties.” Id. at 10. Appellants’ argument is not persuasive of
reversible error.
Moriuchi teaches that known halogen flame retardants present
environmental disadvantages. Moriuchi col. 1,11. 54—62. Moriuchi further
teaches that metal hydroxides are suitable substitutes for halogen flame
retardants. Id. at col. 2,11. 11—13. Moriuchi additionally acknowledges that
because a “large amount of metal hydroxide must be added” to achieve the
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Appeal 2016-003937
Application 12/865,055
desired flame-retarding effect, certain tensile characteristics of the resin may
worsen. Id. at col. 2,11. 15—22.
Murase similarly teaches that known halogen flame retardants are
disadvantageous because “they generate toxic substances,” and that metal
hydroxide as a halogen-free substitute provides the desired flame-retarding
effect only when “a large amount was used, so the workability of the resin
and the physical properties of the molded items produced from it were
impaired.” Murase 13. Murase teaches use of a polyphosphate/melamine
flame retardant which is said to provide “superior flame retarding
properties” with “little change of electrical resistance.” Murase additionally
teaches that the disclosed polyphosphate/melamine flame retardant is
suitable for use in a number of synthetic resins, including polyolefin,
polyurethane, and compositions thereof. Id. at || 46, 48.
On this record, we are persuaded that a preponderance of the evidence
supports the Examiner’s finding that one of ordinary skill would have had a
reason to substitute Murase’s polyphosphate/melamine flame retardant for
Moriuchi’s metal hydroxide flame retardant. Appellants do not point us to
persuasive evidence that such substitution would materially alter the
operability of Moriuchi’s polyolefm/polyurethane composition for its
intended use as a halogen-free flame-retardant resin composition.6
Accordingly, the Examiner’s Rejection is sustained.
6 See Moriuchi col. 3,11. 10—17 (“An object of the present invention is to
provide a flame-retardant resin composition . . . without containing a
halogen flame retardant.”).
4
Appeal 2016-003937
Application 12/865,055
DECISION
The Examiner’s decision rejecting claims 1—3 and 6—10 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.
AFFIRMED
5