Ex Parte Calle et al

Patent Trial and Appeal Board

May 8, 2017

12792238 (P.T.A.B. May. 8, 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.
12/792,238 06/02/2010 Luz M. Calle KSC-12723-DIV 4325
25190 7590 05/08/2017
NASA JOHN F. KENNEDY SPACE CENTER
MAIL CODE: CC-A/OFFICE OF CHIEF COUNSEL
ATTN: PATENT COUNSEL
KENNEDY SPACE CENTER, EL 32899
EXAMINER
SEIDLECK, JAMES J
ART UNIT PAPER NUMBER
1765
MAIL DATE DELIVERY MODE
05/08/2017 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 LUZ M. CALLE and WENYAN LI1
Appeal 2016-001535
Application 12/792,238
Technology Center 1700
Before KAREN M. HASTINGS, RAE LYNN P. GUEST, and
DEBRA L. DENNETT, Administrative Patent Judges.
GUEST, Administrative Patent Judge.
DECISION ON APPEAL
I. STATEMENT OF CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
decision to reject claims 1—14 under 35 U.S.C. § 103(a). We have
jurisdiction under 35 U.S.C. § 6(b).
We affirm-in-part and designate our affirmance of the rejections of
claims 1—3, 5—7, and 12—14 as new grounds of rejection and enter a new
ground of rejection of claims 1—12, and 14 pursuant to our authority under
37 C.F.R. § 41.50(b).
1 Appellants identify the real party in interest as the United States of
America as represented by the Administrator of the National Aeronautics
and Space Administration. Appellants’ Appeal Brief 3, filed March 6, 2015
(hereinafter “App. Br.”).
Appeal 2016-001535
Application 12/792,238
Appellants’ invention is a coating for metals and metal alloys that
provides corrosion detection and/or reduction. Specification (“Spec.”) 3—
4. The invention teaches a coating vehicle having dispersed therein
microcapsules encapsulating a corrosion indicator. Id. f 6. The
microcapsules are made from a prepolymer and a cross-linking agent having
one or more ester or thioester groups that are broken down under basic pH
conditions that often form in the presence of corrosion in a metal or metal
alloy, e.g., the formation of rust is a cathodic reaction that produces a basic
condition. Id. ]Hf 13—14. The Specification further describes that “a trauma,
such as a scratch, an impact, etc.” can also break the microcapsules “to
release corrosion inhibitor that acts to reduce the likelihood of the exposed
metal of corroding.” Id. 16—17. Claim 1 is exemplary of all the claims
on appeal and is reproduced below:
1. A coating comprising:
a coating vehicle; and
microcapsules dispersed in the coating vehicle, said
microcapsules comprising shells encapsulating at least an
indicator for indicating the presence of corrosion;
said microcapsule shells formed of a material that breaks
down in the presence of an alkaline condition naturally
occurring in the presence of corrosion, thereby releasing at least
the indicator.
App. Br. 42, Claim App’x.
The Examiner maintains, and the Appellants appeal the following
rejections.
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Application 12/792,238
1. Claims 1—12 and 14 are rejected under 35 U.S.C. 103(a) as being
unpatentable over Guilbert2 in view of Van Koppenhagen.3
2. Claims 1—3, 5—7, 12, and 14 are rejected under 35 U.S.C. 103(a) as
being unpatentable over Kumar4 in view of Van Koppenhagen.
3. Claims 1—12 and 14 are rejected under 35 U.S.C. 103(a) as being
unpatentable over Sarangapani5 in view of Weston.6
4. Claim 13 is rejected under 35 U.S.C. § 103(a) as being
unpatentable over Guilbert in view of Van Koppenhagen and
Frankel.7
5. Claims 2 and 13 are rejected under 35 U.S.C. 103(a) as being
unpatentable over Kumar in view of Van Koppenhagen and
Frankel.
6. Claims 1—14 are provisionally rejected on the non-statutory
doctrine of obviousness-type double patenting over claims 2—6, 8,
and 13 ofU.S. Application 13/542,155 (the “’155 application”).
2 U.S. Patent 6,075,072, issued June 13, 2000 to Curtis R. Guilbert et al.
3 U.S. Application Publication 2002/0004059 Al, published January 10,
2002 and naming Juanita Elena Van Koppenhagen et al. as inventors.
4 Ashok Kumar, et al., “Smart Coatings,” U.S. Army Engineer Research
Development Center (ERDC), Construction Engineering Research
Laboratory (CERL), 23rd Army Science Conference, Orlando FL, Dec.
2002.
5 U.S. Patent 7,192,993 Bl, issued March 20, 2007 to Srinivasan
Sarangapani et al.
6 U.S. Patent 6,716,526 B2, issued April 6, 2004 to Rachel Clare Weston et
al.
7 U.S. Application Publication 2003/0068824 Al, published April 10, 2003
and naming Gerald S. Frankel et al. as inventors.
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Application 12/792,238
7. Claims 1—14 are provisionally rejected on the non-statutory
doctrine of obviousness-type double patenting over claims 2—6, 8,
and 13 of U.S. Application 13/354,576 (the “’576 application”).
Appellants do not present substantive arguments for any claims on
appeal, including separately rejected claims 2 and 13. See App. Br. 40.
Accordingly, all claims stand or fall with representative claim 1.
Unless otherwise indicated, we adopt the Examiner’s findings in the
Answer as our own and add any additional findings of fact appearing below
for emphasis.
II. Discussion
Guilbert in view of Van Koppenhagen
All the claims stand rejected as obvious over Guilbert and Van
Koppenhagen, either alone or further in view of Frankel.
The Examiner finds that Guilbert teaches a coating that includes
microcapsules that encapsulate, among other things, a marker dye (i.e.,
indicator), which is capable of indicating corrosion. Final Rej. 4; Ans. 2.
Guilbert describes that the materials are encapsulated in a urea-melamine-
formaldehyde microcapsule, which bursts upon mechanical shearing contact
therewith to release the encapsulated materials. Final Rej. 5; Ans. 3 (citing
Guilbert, col. 5,11. 34-47). The Examiner acknowledges that Guilbert does
not teach that the urea-formaldehyde microcapsules are a material that
breaks down in the presence of an alkaline condition. Final Rej. 5; Ans. 3.
Van Koppenhagen teaches that urea-formaldehyde or melamine-
formaldehyde microcapsules comprising one or more ester or thioester
crosslinking agents, which are cleaved under basic conditions. Van
Koppenhagen || 8—9. Appellants’ Specification teaches identical
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Application 12/792,238
crosslinking to provide the identical function of cleaving under basic
conditions. See Spec. 113.
The Examiner contends that “the microcapsule shell composition
taught by Guilbert is substantially the same as that of the instant capsule
shell and thus the properties appellant discloses and/or claims, i.e. sensitivity
of the shell to high pH, are necessarily present.” Ans. 3. We agree with
Appellants that the Examiner has failed to establish the identity suggested.
Guilbert specifically teaches a process for manufacturing a urea-melamine-
formaldehyde microcapsule that includes 25% glutaric dialdehyde as a
cross-linking agent. Guilbert, col. 9,1. 9. Appellants’ Specification
expressly states that the cross-linking agent provides the pH-dependent
cleaving, namely by the use of “one or more ester or thioester groups that are
broken down under basic conditions.” Spec. 113. Glutaric dialdehyde is
not an ester or thioester containing cross-linking agent, and the Examiner
has provided no scientific basis or reasoning to support a finding that the
specifically described urea-melamine-formaldehyde microcapsules of
Guilbert are substantially the same as those taught by Appellants’ invention
and necessarily or inherently break down in the presence of an alkaline
condition.
The Examiner additionally reasoned that, because it was known in the
art that atmospheric corrosion is an oxygen reduction reaction, which raises
pH, a fact not disputed by Appellants (see Final Rej. 10; Ans. 14—15), “it
would have been obvious to one of ordinary skill in the art to apply the
alkaline-sensitive release microcapsule shell composition of Van
Koppenhagen to corrosion protective microcapsules of Guilbert et al. in
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Application 12/792,238
order to trigger or initiate breakdown of the capsule wall by corrosion at a
metal surface.” Final Rej. 5; see also Ans. 4.
Guilbert has exemplified one specific urea-melamine-formaldehyde
microcapsule composition. Although the Examiner has established that it
was known that corrosion causes an alkaline condition, the Examiner has not
explained why this fact would have suggested that the skilled artisan use a
different microcapsule than that taught by Guilbert, i.e., why the skilled
artisan would have used the ester or thioester cross-linker of Van
Koppenhagen instead of the glutaric dialdehyde cross-linker of Guilbert.
We agree with Appellants that “[ajbsent Appellant’s own Specification,
there is no recognition in the art of record that the alkaline conditions
resulting from corrosion could be exploited to release encapsulated corrosion
indicators, corrosion inhibitors or film-forming compounds, nor is there any
evidence of a desire to do so.” Reply Br. 3. The mere fact that corrosion is
alkaline is not a sufficient reason for a skilled artisan to replace the
microcapsule taught by Guilbert that is otherwise well suited for its intended
purpose. Accordingly, we do not sustain the Examiner’s rejections based on
Guilbert in combination with Van Koppenhagen.
Sarangapani in view of Weston
The Examiner finds that Sarangapani teaches a coating comprising
microcapsules containing a corrosion inhibitor and an indicator. Final Rej.
7; Ans. 7. Sarangapani teaches using UF microcapsules having a diameter
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Application 12/792,238
of 63 to 150 microns but, unlike Guilbert, does not describe any particular
microcapsule formulation. Id. (see Sarangapani, col. 7,1. 39 to col. 8,1. 16).
The Examiner finds that Weston teaches a microcapsules that breaks
down under alkaline conditions, and specifically suggests that the
microcapsules contain “pigments, dyes, colorants” or “corrosion inhibitors.”
Weston, col. 5,11. 46—50, col. 6,11. 29—34. Weston specifically teaches that
its microcapsules are a substitute for known melamine-formaldehyde resin
microcapsules which suffer from lack of durability at elevated temperatures
and reduces the risk of formaldehyde evolving at these elevated
temperatures. Id., col. 1,11. 47—62. Specifically, the microcapsules of
Weston will remain intact at temperatures in excess of 200°C for 15 minutes
or more. Id., col. 7,11. 62—67. While Weston is particularly directed to
microcapsules that will withstand the high temperatures reached in textile
spinning processes, Weston also identifies the suitability of the
microcapsules for use in coatings. Id., col. 1,11. 1—15; col. 8,11. 6—8.
As with the rejection discussed above, the Examiner contends that
“the capsule shell composition of Sarangapani is substantially the same as
the presently claimed microcapsules, therefore, it is reasonable to believe
that the properties appellant discloses and/or claims (i.e. sensitivity of the
shell to high pH) are necessarily present.” Ans. 8. We agree with
Appellants that the Examiner has failed to establish the identity suggested.
Sarangapani does not teach using an ester or thioester as a cross-liking agent,
which provides the pH-dependent cleaving. See Spec. 113. The Examiner
has provided no scientific basis or reasoning to support a finding that the
specifically described urea-formaldehyde microcapsules genus taught by
Sarangapani are substantially the same as those taught by Appellants’
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Application 12/792,238
invention and necessarily or inherently break down in the presence of an
alkaline condition.
The Examiner further reasoned that, because it was known in the art
that atmospheric corrosion is an oxygen reduction reaction, which raises pH,
a fact not disputed by Appellants (see Final Rej. 10; Ans. 14—15), “it would
have been obvious to one of ordinary skill in the art to apply the alkaline-
sensitive microcapsule shell composition of Weston to corrosion protective
microcapsules of Sarangapani et al. in order to trigger or initiate breakdown
of the capsule wall by corrosion at a metal surface.” Final Rej. 8; see also
Ans. 9.
As discussed below, Sarangapani’s teaching would have suggested the
use of any urea-formaldehyde microcapsule, known in the art, to encapsulate
the corrosion inhibitor and/or indicator. However, as with the combination
above, the Examiner has not explained why the skilled artisan would have
used a non-urea-formaldehyde microcapsule in the coating of Sarangapani.
The mere fact that corrosion is alkaline is not a reason to replace the UF
microcapsule taught by Sarangapani that is well suited for its intended
purpose. There is no suggestion in Weston that the methacrylic acid
polymer microcapsule will break down upon mechanical stress as does the
urea-formaldehyde microcapsules. To the contrary, we find that the
microcapsules of Weston are more robust than urea-formaldehyde
microcapsules and “do not release the core material even when exposed to
the harsh conditions, for instance high temperature, high pressures and
shearing conditions.” Weston, col. 2,11. 9-13. Accordingly, we do not
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Application 12/792,238
sustain the Examiner’s rejections based on Sarangapani in combination with
Weston.
New Grounds of Rejection
Kumar in view of Van Koppenhagen
The Examiner finds that Kumar, like Guilbert and Sarangapani,
teaches a coating that includes microcapsules that encapsulate, among other
things, a marker dye (i.e., indicator), capable of indicating corrosion. Final
Rej. 6; Ans. 5. Unlike Guilbert, however, Kumar generally states that “[d]ue
to its stability in many of the commonly used paint solvents, urea
formaldehyde (UF) was found to be the best shell material for containing the
functional compounds for healing the paint coating film, for corrosion
protection, for indicator dye marking, or for lead dust suppression.” Kumar,
page 2, | spanning cols. 1—2. Kumar’s silence regarding any particular UF
microcapsule formulation would have suggested to the skilled artisan that
any commercially available or known UF microcapsule would have been
suitable, provided that the microcapsule is within the 60 to 150 micron
diameter size range which Kumar describes as the “optimal size.” Id. Thus,
Kumar, unlike Guilbert, suggests that any UF formulation would have
equally suitable for use in its coating.
Van Koppenhagen teaches one such type of UF microcapsule, with a
preferred size range from about 1 micron to about 100 microns (Van
Koppenhagen | 63), which also has the added benefit of being sensitive to
an alkaline pH. Accordingly, it would have been obvious for the skilled
artisan to use the UF microcapsule formulation of Van Koppenhagen, or any
such UF microcapsule formulation known in the art, because Kumar
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Application 12/792,238
suggests that all known UF microcapsules are interchangeably useful for its
purpose, i.e., are stable in paints and will adequately break with mechanical
stress.
Appellants argue that “[b]y modifying the microcapsules of these
primary references to release their contents in the absence of mechanical
damage would be detrimental to their intended purpose as their healing
compounds may then not be available to respond to any subsequent
mechanical damage.” App. Br. 20—21. As discussed above, however,
Kumar suggests that UF microcapsule formulation of Van Koppenhagen,
like all UF microcapsule formulations, would break down in response to
mechanical damage. Further, the Van Koppenhagen UF microcapsule
formulation would also break down in response to alkaline pH. Kumar does
not teach away from this additional property.
Appellants further contend that Van Koppenhagen is non-analogous
art because the Examiner admits that it is in a separate field of endeavor and
because it is not reasonably pertinent to the problem facing the inventor.
Reply Br. 2. However, the prior art suggests that both Kumar and Van
Koppenhagen are in the same field of endeavor, namely the field of UF
microcapsule applications. For example, Sarangapani, along with Guilbert
and Kumar, is directed to a paint coating comprising a UF microcapsules
which include corrosion inhibitors, film forming agents, and an indicator.
Yet Sarangapani recognizes that microcapsules were known not only in the
coating art but also “have been used in a variety of applications, from the
pharmaceutical industry (delivery of drugs) to the textile industry (providing
protective wear for HAZMAT workers).” Sarangapani, col. 1,1. 48 to col. 2,
1. 23. Thus, Sarangapani acknowledges the relation between alternative
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Application 12/792,238
known microcapsules applications, particularly known applications for UF
microcapsules. Thus, one of ordinary skill in the art having the general
teaching of Kumar of UF microcapsules would look to any known UF
microcapsule application at the time of invention, as any such UF
microcapsules would have been useful in the application described by
Kumar.
Moreover, we disagree with Appellants premise that Van
Koppenhagen is limited in its teaching to a microcapsule for pest control
applications. Van Koppenhagen’s preferred use is for an agricultural
pesticide, but the invention as a whole is directed to a “Base-triggered
Release Microcapsules.” Van Koppenhagen, title. Van Koppenhagen
specifically teaches additional applications beyond pesticides including non­
pesticide agricultural chemicals and “materials outside the agricultural field
such as detergent powders.” Id. 12; see also id. 1 5 (“Microencapsulated
formulations for quick release are known in a number of other applications,
such as the printing and xerography industries, in which materials such as
inks, pigments, toner particles, etc., are microencapsulated and released
quickly upon application of physical force or heat.”). Again, it is
emphasized that the reason to use the microcapsules of Van Koppenhagen in
the coatings of Kumar is evinced in the teachings of Kumar that suggest any
UF microcapsules of appropriate size will be effective. Accordingly, we
sustain the Examiner’s rejections of claims 1—3, 5—7, and 12—14 based on
Kumar in view of Van Koppenhagen either alone or further in view of
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Frankel. However, because the thrust of the rejection has changed, we
designate our affirmance of these rejections as new grounds.
Sarangapani in view of Van Koppenhagen
As with Kumar, Sarangapani, in providing no teaching of any
particular UF microcapsules, suggests the use of any UF microcapsules
known in the art at the time of the invention having a size of preferably 63 to
150 microns (Sarangapani, col. 5,11. 51—55) would have been suitable for
use in its coating, including the UF microcapsules described in Van
Koppenhagen. Sarangapani goes farther and specifically teaches that
microcapsules of other industries are within the scope of suitable UF
microcapsules. Id., col. 1,1. 48 to col. 2,1. 23. Thus, it would have been
obvious to one of ordinary skill in the art at the time of the invention to have
selected the appropriately sized UF microcapsules taught by Van
Koppenhagen as the microcapsules added to the coating of Sarangapani
because Kumar indicates that an UF microcapsule of a particular size would
have been suitable for use in its coating. Further, the additional benefit of a
pH sensitivity for the UF microcapsules would be further useful in any
coating applications within the scope of Sarangapani where such additional
property would be desirable because Sarangapani does not teach away from
this additional property. Adopting the Examiner’s findings regarding the
teachings of Sarangapani and Van Koppenhagen, we enter a new ground of
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Application 12/792,238
rejection of claims 1—12 and 14 under 35 U.S.C. 103(a) as being
unpatentable over Sarangapani in view of Van Koppenhagen.
Double Patenting Rejections
Appellants argue that the rejection based on the ’576 application is
merely provisional as the ’576 application has not issued into a patent. App.
Br. 28. In fact, the ’576 application issued on August 18, 2015 as U.S.
Patent 9,108,178. As prosecution of the ’576 application proceeded, claims
2—6 and 8 were amended, at least by amendments made to claim 1 and claim
13 was withdrawn.
Because the Examiner has not provided substantive rejections of the
claims of U.S. Patent 9,108,178 as they currently stand, we decline to reach
the merits of the double patenting rejection based on the ’576 application.
Similarly, the ’155 application issued on October 14, 2014 as U.S.
Patent 8,859,288 (the “’288 patent”). However, claims 1—35 of the ’155
application issues without any amendments made to the claims. Thus, the
Examiner’s provisional rejection based on claims 2—6, 8, and 13 of the ’155
application is consistent with a non-provisional rejection based on claims 2—
6, 8, and 13 of the ’288 patent. Moreover, Appellants have acknowledged
the issuance of the ’288 patent and have presented arguments on the merits
of the maintained rejection. See App. Br. 28—31. Thus, it is appropriate to
address the merits of the now non-provisional rejection maintained by the
Examiner.
Appellants argue that the claims of the ’288 patent are directed to a
method of forming microcapsules, which is a “wholly unrelated concept[]”
to a coating comprising microcapsules. App. Br. 29. Appellants further
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Application 12/792,238
argue that the claims of the ’288 patent do not teach a coating vehicle or an
active agent encapsulated in a shell, but rather an active material dispersed in
a polymer matrix. Id.
The Examiner states that
the copending claims are drawn to pH-Sensitive microparticles
with matrix-dispersed active agent of one or more corrosion
indicators or corrosion inhibitors. Therefore, it would have been
obvious to one of ordinary skill in the art at the time of the
invention to use corrosion-indicating composition of T55
copending application to arrive at the corrosion-detecting coating
composition of the instant invention.
Ans. 13.
We agree with the Appellants’ arguments. In a double patenting
rejection, the prior patent does not quality as prior art, and therefore, the
patented disclosure, i.e., the patent’s specification, may not be used as prior
art. In re Vogel, 422 F.2d 438, 441 (CCPA 1970) (“In considering the
[obvious variation] question, the patent disclosure may not be used as prior
art.”); see also In re Sarett, 327 F.2d 1005, 1013, 140 USPQ 474, 481
(CCPA1964) (“We are not here concerned with what one skilled in the art
would be aware [of] from reading the claims but with what inventions the
claims define.”).
The claims the Examiner relied upon, claims 2—6, 8, and 13 are
directed only to a method of manufacturing microcapsules. Similar
microcapsules are taught by Van Koppenhagen. However, the Examiner has
provided no reason why the skilled artisan having only a method of making
microcapsules would have made a coating comprising said microcapsules, as
recited in the claims of the present invention, without the guidance provided
either by the present invention or the specification of the ’288 patent. Thus,
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Application 12/792,238
we do not sustain the Examiner’s obviousness-type double patenting
rejection based on the ’288 patent.
IV. CONCLUSION
On the record before us and for the reasons discussed above, we
reverse the following rejections:
Claims 1—12 and 14 rejected under 35 U.S.C. 103(a) as being
unpatentable over Guilbert in view of Van Koppenhagen.
Claims 1—12 and 14 rejected under 35 U.S.C. 103(a) as being
unpatentable over Sarangapani in view of Weston.
Claim 13 rejected under 35 U.S.C. § 103(a) as being unpatentable
over Guilbert in view of Van Koppenhagen and Frankel.
Claims 1—14 provisionally rejected on the non-statutory doctrine of
obviousness-type double patenting over claims 2—6, 8, and 13 of the ’155
application, i.e., the ’288 patent.
We sustain the following rejections, but designate each of them as a
new ground of rejection:
Claims 1—3, 5—7, 12, and 14 rejected under 35 U.S.C. 103(a) as being
unpatentable over Kumar in view of Van Koppenhagen.
Claims 2 and 13 rejected under 35 U.S.C. 103(a) as being
unpatentable over Kumar in view of Van Koppenhagen and Frankel.
We enter the following new ground of rejection: Claims 1—12 and 14
rejected under 35 U.S.C. 103(a) as being unpatentable over Sarangapani in
view of Van Koppenhagen.
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We decline to address the following ground of rejection: Claims 1—14
provisionally rejected on the non-statutory doctrine of obviousness-type
double patenting over claims 2—6, 8, and 13 of the ’576 application, now
U.S. Patent 9,108,178.
This decision contains new grounds of rejection pursuant to 37 C.F.R.
§ 41.50(b). 37 C.F.R. § 41.50(b) provides “new ground[s] of rejection
pursuant to this paragraph shall not be considered final for judicial review.”
37 C.F.R. § 41.50(b) also provides that the appellant, WITHIN TWO
MONTHS FROM THE DATE OF THE DECISION, must exercise one of
the following two options with respect to the new ground of rejection to
avoid termination of the appeal as to the rejected claims:
(1) Reopen prosecution. Submit an appropriate amendment of the
claims so rejected or new evidence relating to the claims so rejected, or both,
and have the matter reconsidered by the examiner, in which event the
proceeding will be remanded to the examiner. . . .
(2) Request rehearing. Request that the proceeding be reheard under §
41.52 by the Board upon the same record. . . .
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-IN-PART; 37 C.F.R, $ 41.50(b)
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