Ex Parte CHASON et al

Patent Trial and Appeal Board

Dec 19, 2018

13833581 (P.T.A.B. Dec. 19, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO.
13/833,581
110669 7590
Ajay A. Jagtiani
Miles & Stockbridge
17 51 Pinnacle Drive
Suite 1500
FILING DATE
03/15/2013
12/21/2018
Tysons Corner, VA 22102
FIRST NAMED INVENTOR
MARC CHASON
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.
109051-010004 2034
EXAMINER
LAZARO, DOMINIC
ART UNIT PAPER NUMBER
1611
NOTIFICATION DATE DELIVERY MODE
12/21/2018 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):
ipdocketing@milesstockbridge.com
bgoodman@milesstockbridge.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MARC CHASON, DANIEL ROMAN GAMOTA, and
RICK LATELLA
Appeal2017-007449
Application 13/833,581 1
Technology Center 1600
Before DONALD E. ADAMS, JOHN G. NEW, and
DAVID COTTA, Administrative Patent Judges.
COTTA, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) involving antimicrobial
polymer products made from mixtures of antimicrobial organometallic
additives dispersed throughout a polymer host matrix. Spec. Abstract. The
Examiner rejected the claims on appeal under 35 U.S.C. § 103(a) as obvious.
We affirm.
1 According to Appellants, the real party in interest is DMR International,
Inc. App. Br. 3.
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Application 13/833,581
STATEMENT OF THE CASE
The Specification discloses that "material surfaces may become
contaminated with disease-causing agents" and thus there is "a need for
materials with anti-bacterial, anti-virus, anti-fungal, anti-mold, etc.
functionality." Spec. ,r 51. The Specification suggests that polymeric
materials made to "reduce antimicrobial disease-causing agents," could
"play a valuable role in producing a healthier environment." Id. According
to the Specification, there are currently "[ t ]hree general classes of art for
producing antimicrobial bulk polymers and polymer surfaces using additive
systems," however these known classes "suffer[] from several limitations."
Id. ,r 52 (listing nine such limitations); see also id. ,r 53 (describing
additional limitations of the existing art).
The Specification discloses that "the present invention provides a
polymer product comprising a polymer host matrix having dispersed therein
at least one antimicrobial organometallic additive or a blend of antimicrobial
organometallic additives that impart antimicrobial properties to the bulk and
surface of the polymer host matrix." Id. ,r 55.
Claims 3-7, 11-22, 24, 25, 27-30, 32-38 and 41--43 are on appeal.
Claims 16 and 18 are illustrative, and read as follows:
16. A product comprising:
a solid substrate comprising a metal, and
a thermoset powder coating on the solid substrate,
wherein the thermoset powder coating comprises a
polymer host matrix and two or more antimicrobial
organometallic additives,
wherein the two or more antimicrobial organometallic
additives are dispersed homogenously throughout and
suspended within the polymer host matrix, thereby forming a
substantially homogenous solid solution with the polymer host
matrix, wherein the two or more antimicrobial organometallic
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additives comprise a mixture of two or more members of the
group consisting of the following antimicrobial organometallic
additives: silver stearate, cupric stearate and zinc stearate, and
wherein the thermoset powder coating is in direct contact
with the metal of the solid substrate.
18. A product comprising:
a solid substrate comprising a metal, and
a thermoset powder coating on the solid substrate,
wherein the thermoset powder coating comprises a polymer
host matrix and one or more antimicrobial organometallic additives,
wherein the one or more antimicrobial organometallic additives
are dispersed homogeneously throughout and suspended within the
polymer host matrix, thereby forming a substantially homogenous
solid solution with the polymer host matrix,
wherein a majority of metallic species dispersed throughout the
polymer host matrix are in the one or more antimicrobial
organometallic additives,
wherein the one or more antimicrobial organometallic additives
comprise one or both members of the group consisting of cupric
stearate and zinc stearate, and
wherein the thermoset powder coating is in direct contact with
the metal of the solid substrate.
App. Br. 31, 32.
The claims stand rejected as follows.
Claims 4, 18, 21, 22, 24, 34, 37, 38, and 41--43 were rejected under 35
U.S.C. § I03(a) as obvious over Sacripante. 2
2 Sacripante et al., US Patent Publication No. 2005/0165133 Al, published
July 28, 2005 ("Sacripante").
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Claims 3, 5-7, 16, 17, 19, 20, 33, 35, and 36 were rejected under 35
U.S.C. § I03(a) as obvious over the combination of Sacripante, Trogolo, 3
Dorfman, 4 and Cole. 5
OBVIOUSNESS OVER SACRIP ANTE
Sacripante discloses "[i]n various exemplary embodiments of the
invention, suitable thermoset powder compositions are adapted from systems
such as, for example, carboxyl-terminated branched polyesters in
combination with multifunctional epoxy resins ... " Sacripante ,r 28.
Example III of Sacripante is described as "a curable powder composition
comprising 85% epoxy resin, 5% diacidimide curing agent, and 10%
titanium oxide." Id. ,r 85. In rejecting claims 4, 18, 21, 22, 24, 34, 37, 38,
and 41--43 as obvious, the Examiner found that Sacripante disclosed most of
the elements of claim 18, but acknowledged that Sacripante did not
exemplify an embodiment incorporating zinc stearate. Final Act. 6 5.
However, the Examiner found that Sacripante disclosed the use of "zinc
stearate as a flow promoting and flow-control agent, which may be added to
powder compositions" and concluded that it would have been obvious to
"have added zinc stearate to the composition [ exemplified by Sacripante] for
use [as a] flow promoting and flow-control agent." Id. (citing Sacripante
,r 62). The Examiner also concluded that the skilled artisan would have
"been motivated to follow Sacripante' s direct teaching in applying the
3 Trogolo et al., US Patent Publication No. 2008/0051493 Al, published
Feb. 28, 2008 ("Trogolo").
4 Dorfman et al., US Patent No. 3,983,185, issued Sept. 28, 1976
("Dorfman").
5 Cole et al., US Patent No. 5,227,093, issued July 13, 1993 ("Cole").
6 Office Action mailed September 12, 2016 ("Final Act.").
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resulting powder composition to a suitable substrate, namely a steel or
aluminum metal substrate." Id. at 6 ( citing Sacripante ,r 66).
We agree with the Examiner that claims 4, 18, 21, 22, 24, 34, 37, 38,
and 41--43 would have been obvious over Sacripante. We address
Appellants arguments below.
Claim 18
Appellants argue that Sacripante "does not teach, or suggest, 'a
thermoset powder coating' as claimed in independent Claim 18." App. Br.
10. According to Appellants, Sacripante discloses a "curable powder
coating [that] uses a curing agent, whereas a thermo set powder coating uses
a cross-linker." Id. Appellants point to the definition of "thermoset powder
coating" in the Specification, which states:
For purposes of the present invention, the term "thermoset
powder coating" refers to a film coating formed by melting,
flowing and chemically crosslinking a thermosetting powder.
Chemical reactions during the curing cycle of a thermoset
powder coating create a polymer network which may provide
resistance to coating breakdown. Once cured and crosslinked,
this polymer network will not melt and flow again if heat is
applied.
Id. at 11 (citing Spec. ,r 49). Appellants contend that Sacripante does not
disclose a composition that meets this definition of "thermoset powder
coating." Id. We are not persuaded.
Sacripante expressly discloses thermoset powder coatings. Sacripante
,r,r 24, 28. We acknowledge that Appellants have expressly defined the term
"thermoset powder coating" in the Specification, but Appellants have not
identified, and we do not find, persuasive evidence that suggests that
Sacripante used the term "thermoset powder coating" differently than did
Appellants. Accordingly, we find that Sacripante's disclosure of "thermoset
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powder coatings" reasonably meets the requirement of claim 18 for
"thermoset powder coatings."
Appellants argue that "the definition of 'thermo set powder coating' as
provided in Appellants' Specification does not relate to Sacripante' s
disclosure of epoxy resins." Reply Br. 2. Appellants contend that
"Sacripante' s disclosure of epoxy resins relates to the formation of a
thermosetting powder" and that a thermosetting powder is only "a
component of a thermoset powder coating." Id. We are not persuaded.
Sacripante does teach that epoxy resins may be a component of a
thermoset powder coating. Sacripante ,r 24 ("Materials used in thermoset
powder coating include epoxy resins, ... "). However, the teachings of
Sacripante are not limited to the use of epoxy resins as components of
thermoset powder coatings. Sacripante also teaches the composition of and
process for making powder coatings. See, e.g., Sacripante ,r 2 ("The
invention relates to a process for forming a powder coating composition");
id. ,r 23 ("Powder coating compositions generally comprise a solid film-
forming resin, optionally with one or more colorants such as pigments, and
optionally also containing one or more additives ... "). More specifically,
Sacripante teaches that the process for making the composition of Example
III - the exemplification relied upon by the Examiner - "yield[ s] the
powder coating material." Id. ,r 86.
Appellants argue that Sacripante does not teach that zinc stearate
would be "dispersed homogeneously throughout and suspended within the
polymer host matrix, thereby forming a substantially homogenous solid
solution with the polymer host matrix" as required by claim 18. App. Br.
12. We are not persuaded.
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Sacripante discloses that "[ t ]he powder compositions of the present
invention may also optionally be blended with flow-promoting and flow-
control agents, such as external additive particles [including zinc stearate ],
which are usually present on the surface of the powder compositions."
Sacripante ,r 62. Through a disclosure it incorporates by reference,
Sacripante also suggests if zinc stearate were added to its powder
compositions, it would be present on the surface of the powder particles. Id.
More specifically, Sacripante discloses that "[ s ]everal of the aforementioned
additives are illustrated in US Pat. No[.] 3,590,000" which discloses a
xerographic toner on which "zinc stearate is available at the outer surfaces of
the [toner] particles in the developing material." Id.; US Pat. No. 3,590,000,
col. 5, 11. 29-32. We agree with the Examiner that this suggests, "zinc
stearate on the surface of powder particles." Ans. 8.
Although Sacripante does not use the words "homogenously
dispersed," we agree with the Examiner that Sacripante's disclosure that its
powder compositions can be "blended" with zinc stearate reasonably
suggests homogenous dispersion, particularly given that the zinc stearate
would be present on the surface of the powder particles so blended. In re
Skoner, 517 F.2d 947, 950 (CCPA 1975) (finding that identical language
between the prior art and claims is not required to sustain a prior-art
rejection). Appellants have not introduced persuasive evidence to the
contrary. Johnston v. IVAC Corp., 885 F.2d 1574, 1581 (Fed. Cir. 1989)
("Attorneys' argument is no substitute for evidence."); In re Pearson, 494
F.2d 1399, 1405 (CCPA 1974).
Appellants argue that Trogolo provides evidence that zinc stearate
would not be homogenously dispersed because Trogolo discloses a "high
concentration of ... polymer additive at the surface of the applied coating,"
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and because Trogolo, like Sacripante, discloses additive microparticles
"bonded or adhered to the surface of the polymer or prepolymer powder
coating particle." Reply. Br. 4. We are not persuaded because Appellants
have not provided persuasive evidence or argument that the process of
incorporating an antimicrobial additive into Trogolo's powder coating
materials is substantially the same as the process by which Sacripante' s
powder compositions "may [] optionally be blended with flow-promoting
and flow-control agents," including zinc stearate. See e.g., Trogolo ,r 16-18;
Sacripante ,r 62. Indeed, Trogolo suggests that when prior art processes are
employed, "a large weight percent of the antimicrobial agent is not
available" because it is below the surface. Trogolo ,r 53. This is consistent
with homogenous dispersion of the antimicrobial agent.
Appellants contend that "[ d]ispersing the zinc stearate additives
homogeneously throughout and suspended within the particles would render
the zinc stearate additives unsatisfactory for their intended purpose because
the zinc stearate additives within the particles would not be available for
flow promoting and use as a flow-control agent." App. Br. 13. We are not
persuaded because Appellants' contention is not supported by persuasive
evidence. See, Johnston v. IVAC Corp., 885 F.2d at 1574; In re Pearson,
494 F.2d at 1405 (CCPA 1974). Accordingly we affirm the Examiner's
rejection of claim 18.
Claim 4
Claim 4 depends from claim 18 and further recites "wherein the one
or more antimicrobial organometallic additives comprise zinc stearate."
Appellants argue that "Sacripante does not explicitly teach, or otherwise
suggest, antimicrobial organometallic additives, much less, 'the one or more
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antimicrobial organometallic additives comprise zinc stearate."' App. Br.
15. We are not persuaded.
Although we agree that Sacripante does not identify zinc stearate as
an antimicrobial, Sacripante does disclose zinc stearate and provide reason
to use it in Sacripante's powder compositions. Sacripante ,r 62. That
Sacripante provides a different reason to include zinc stearate than do the
inventors does not render the claimed subject matter non-obvious. See KSR
Inti Co. v. Teleflex Inc., 550 U.S. 398, 419 (2007) ("In determining whether
the subject matter of a patent claim is obvious, neither the particular
motivation nor the avowed purpose of the patentee controls. What matters is
the objective reach of the claim. If the claim extends to what is obvious, it is
invalid under§ 103."); see also In re Beattie, 974 F.2d 1309, 1312 (Fed. Cir.
1992) ("[T]he law does not require that the references be combined for the
reasons contemplated by the inventor"); Catalina Mktg. Inti, Inc. v.
Coolsavings.com, Inc., 289 F.3d 801, 809 (Fed. Cir. 2002) ("[T]he
patentability of ... composition claims depends on the claimed structure, not
on the use or purpose of that structure"). Accordingly, we affirm the
Examiner's rejection of claim 4.
Claim 21
Claim 21 depends from claim 4 and further recites "wherein the
product has a degree of antimicrobial activity of 99% or greater."
Appellants argue that "Sacripante does not explicitly teach, or otherwise
suggest, antimicrobial activity, much less 'a degree of antimicrobial activity
of99% or greater."' App. Br. 15. We are not persuaded because Sacripante
fairly suggests a composition having the same active antimicrobial as
claimed - zinc stearate. It was thus Appellants' burden to prove that the
suggested composition would not inherently have antimicrobial activity of
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99% or greater. See In re Best, 562 F.2d 1252, 1255 (CCPA 1977) ("Where,
as here, the claimed and prior art products are identical or substantially
identical, or are produced by identical or substantially identical processes,
the PTO can require an applicant to prove that the prior art products do not
necessarily or inherently possess the characteristics of his claimed product. .
. . Whether the rejection is based on 'inherency' under 35 U.S.C. § 102, on
'prima facie obviousness' under 35 U.S.C. § 103, jointly or alternatively, the
burden of proof is the same, and its fairness is evidenced by the PTO' s
inability to manufacture products or to obtain and compare prior art
products."). As Appellants have not presented evidence or argument
sufficient to meet this burden, we affirm the Examiner's rejection of claim
21.
Claim 22
Claim 22 depends from claim 21 and further recites that "the one or
more antimicrobial organometallic additives together comprise no more than
about 3% by volume of the total volume of the polymer host matrix and the
one or more antimicrobial organometallic additives together." Appellants
argue that because the exemplified composition relied upon by the Examiner
- Sacripante' s Example III - comprises,
85% epoxy resin, 5% diacidimide curing agent, and 10%
titanium oxide, [which] added up together, equals 100%, one of
ordinary skill in the art would not have known how, or have any
apparent reason, to add an additive such as zinc stearate in
amounts ranging from about 0.1 percent by weight to about 5
percent by weight.
App. Br. 16. We are not persuaded.
Sacripante teaches that resin is present "in an amount from about 50 to
about 100 percent by weight" (Sacripante ,r 60) and that zinc stearate is
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present "in amounts of from about 0.1 percent by weight to about 5 percent
by weight." Sacripante ,r 62. We agree with the Examiner that in view of
these disclosures, it would have been obvious to "reduce the amount of '85%
epoxy resin in Sacripante' s exemplary embodiment ... within Sacripante' s
range of '50 to about 100 percent by weight' of the composition ... in order
to incorporate O .1 percent by weight to about 5 percent by weight zinc
stearate." Ans. 15. Accordingly, we affirm the Examiner's rejection of
claim 22.
Claim 24
Claim 24 depends from claim 4 and further recites that "the polymer
host matrix comprises an epoxy resin powder." Appellants argue that
because Sacripante states that the epoxy resin in Sacripante' s Example III is
"a solution comprised of 425 grams of epoxy resin 664 D (available from
Dow Chemicals) dissolved into 1.5 liters of acetone," "it cannot be said that
the host matrix comprises an 'epoxy resin powder."' App. Br. 16. We are
not persuaded because Sacripante describes Example III as a "curable
powder composition." Sacripante ,r 85; see also, id. ,r 86 (describing a
method of preparing the composition of Example III and teaching that it
"yield[s] the powder coating material."). Accordingly, we affirm the
Examiner's rejection of claim 24.
Claim 34
Claim 34 depends from claim 18 and further requires that
the thermoset powder coating is formed by heating a powder
mixture on the metal of the solid substrate to melt the powder
mixture to form the thermoset powder coating on the solid
substrate, wherein the powder mixture comprises the polymer
host matrix and the one or more antimicrobial organometallic
additives, and wherein the one or more antimicrobial
organometallic additives are dispersed homogeneously
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throughout and suspended within the polymer host matrix,
thereby forming a substantially homogenous solid solution with
the polymer host matrix.
Appellants argue that "Sacripante does not explicitly teach, or otherwise
suggest, antimicrobial organometallic additives." App. Br. 16. We are not
persuaded for the reasons discussed in connection with claim 4.
Claim 37
Claim 37 depends from claim 18. Appellants argue claim 37 under a
separate heading but rely on essentially the same arguments presented with
respect to claim 18 and claim 4. App. Br. 17. Accordingly, we affirm the
Examiner's rejection of claim 37 for reasons already discussed.
Claim 38
Claim 3 8 depends from claim 3 7. Appellants do not provide
argument explaining why it is separately patentable. Accordingly, we affirm
the Examiner's rejection of claim 38 for the reasons already discussed.
Claim 41
Appellants argue independent claim 41 under a separate heading but
rely on essentially the same arguments presented with respect to claim 18.
App. Br. 18. Accordingly, we affirm the Examiner's rejection of claim 41
for reasons already discussed.
Claims 42 and 43
Claim 42 depends from claim 41 and additionally requires that "each
of the antimicrobial organometallic additives is water insoluble or sparingly
soluble in water." Claim 43 depends from claim 42 and additionally
requires that "each of the antimicrobial organometallic additives comprises a
long-chain fatty acid group chemically bonded to a metal." The entirety of
Appellants argument for these claims is to quote this additional language and
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state: "Sacripante does not explicitly teach, or otherwise suggest,
antimicrobial organometallic additives, much less, the one or more
antimicrobial organometallic additives having the features recited in Claims
42 and 43." App. Br. 19. This is not sufficient to raise an issue for appeal.
See In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) ("[T]he Board [has]
reasonably interpreted Rule 41.3 7 to require more substantive arguments in
an appeal brief than a mere recitation of the claim elements and a naked
assertion that the corresponding elements were not found in the prior art.").
Moreover, for the reasons discussed above, we agree with the
Examiner that it would have been obvious to include zinc stearate, which
Appellants' Specification teaches is "water insoluble or sparingly soluble in
water and comprises a long-chain fatty acid group," to Sacripante's powder
composition. Spec. ,r 143. Accordingly, we affirm the Examiner's rejection
of claims 42 and 43.
OBVIOUSNESS OVER SACRIPANTE, TROGOLO, DORFMAN AND
COLE
In rejecting claims 3, 5-7, 16, 17, 19, 20, 33, 35, and 36 as obvious,
the Examiner applied Sacripante as discussed above. Final Act. 14--15. The
Examiner acknowledged, however, that Sacripante did not disclose the use
of "two or more antimicrobial organometallic additives ... wherein the two
or more antimicrobial organometallic additives comprise a mixture of two or
more members of the group consisting of the following antimicrobial
organometallic additives: silver stearate, cupric stearate and zinc stearate."
Id.
The Examiner found that Trogolo disclosed "powder coating
prepolymer and/or polymer particles with microparticles of solid, heat
absorbing polymer additive materials, especially antimicrobial additive
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materials." Id. at 15. The Examiner also found that the Trogolo's polymer
particles "may be thermoplastic or thermoset" including, for example,
"epoxy resins" and that the antimicrobial additive may be in the form of
"'simple salts and organometallic compounds of the antimicrobial metals,'
e.g. 'silver nitrate, cupric oxide, zinc acetate and zinc oxide."' Id. at 16.
With respect to the antimicrobial additive, Trogolo further discloses that
"[ m Jore recent attention has focused on the organometallic compounds
derived from silver and various carboxylic acids." Id. The Examiner noted
that stearates are carboxylic acids and found that the use of stearates in
thermoset materials was known as evidenced by Dorfman (which discloses
cupric stearate) and Cole (which discloses silver stearate ). Id.
Based on the combined disclosures of Sacripante, Trogolo, Dorfman,
and Cole, the Examiner concluded that it would have been obvious "to take
Sacripante's exemplary embodiment of a curable powder containing '85%
epoxy resin, 5% diacidimide curing agent, and 10% titanium oxide' and zinc
stearate, and to have incorporated combinations of organometallic
antimicrobial agents, namely stearates of copper, zinc and silver, as taught
by Trogolo per Dorfman and Cole." Id. at 17 (internal citations omitted).
We agree with the Examiner that claims 3, 5-7, 16, 17, 19, 20, 33, 35,
and 36 would have been obvious over the combination of Sacripante,
Trogolo, Dorfman, and Cole. We address Appellants arguments below.
Claim 16
Appellants argue that Trogolo "does not suggest that its antimicrobial
additive materials are 'silver stearate, cupric stearate and zinc stearate' as
recited in Claim 16." App. Br. 21. We are not persuaded.
Trogolo discloses silver, copper, and zinc among a number of
antimicrobial metals and teaches that silver, copper, zinc, (and gold) are
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preferred because they are "considered safe for in vivo use." Trogolo ,r 31.
Trogolo also discloses that the antimicrobial agent can be an
"organometallic compound[] of the antimicrobial metals" and notes that
"recent attention has focused on the organometallic compounds derived from
silver and various carboxylic acids .... " Id. ,r 32. The disclosure of
Trogolo thus encompasses silver stearate, cupric stearate and zinc stearate.
Moreover, given that Trogolo attributes antibacterial activity to "metals and
metal ions" including zinc, copper, and silver, and teaches that
"organometallic compounds derived from silver and various carboxylic
acids" have antimicrobial activity, the skilled artisan would reasonably have
expected that stearates - which are carboxylic acids - of zinc, copper, and
silver would have antimicrobial activity.
Appellants argue that Trogolo teaches away from the use of stearates
of zinc, copper, and silver because it discloses that metal ions are preferred
and that "organometallic compounds are useful, [but] they tend to be short
lived due to quick and/or essentially uncontrolled dissolution." App. Br.
21-22. We are not persuaded. As the Federal Circuit has explained in
similar circumstances "we cannot accept the suggestion that one is
significantly 'taught away' from a 'particularly preferred embodiment' by
the suggestion ( whether tnie or false) that something else may be even
better." In re Susi, 440 F.2d 442,446 n.3 (CCPA 1971). Here, the teaching
that organometallic compounds tend to be short lived and/or that metal ions
are preferred is not sufficient to teach away from the disclosure that
organometallic compounds are "useful" and that "various" carboxylic acids
of silver have antimicrobial activity.
Appellants argue that Trogolo "fails to disclose that 'the two or more
antimicrobial organometallic additives are dispersed homogenously
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throughout and suspended within the polymer host matrix' and that the
antimicrobial organometallic additives can form 'a substantially
homogenous solid solution with the polymer host matrix' as recited in Claim
16." App. Br. 22. We find this argument unpersuasive because it is the
combination of Trogolo and Sacripante, not either reference alone, that the
Examiner relied upon in finding claim 16 obvious. In re Merck & Co., 800
F.2d 1091, 1097 (Fed. Cir. 1986) ("Non-obviousness cannot be established
by attacking references individually where the rejection is based upon the
teachings of a combination of references."). As discussed above, Sacripante
discloses a homogenously dispersed stearate additive. We agree with the
Examiner that stearates of copper and silver would predictably be
homogeneously dispersed in the same manner that zinc stearate is dispersed
in Sacripante if copper and/or silver stearate were added to Sacripante's
powder composition. Ans. 26.
Appellants argue that Trogolo is directed to providing a high
concentration of antimicrobial at the surface of the applied coating and thus
Trogolo teaches away from "using an antimicrobial agent within a polymer
matrix to provide antimicrobial performance." App. Br. 22. We are not
persuaded because the Examiner relied upon Trogolo solely for its
disclosure that that silver and copper stearate had antimicrobial properties,
not for its disclosure of a method of coating powder particles (Final Act. 18
("One would have been motivated to do so in order to obtain the advantage
of antimicrobial additive materials")). Moreover, an antimicrobial
homogenously dispersed within Sacripante's polymer matrix would provide
benefit even if it were not concentrated at the surface of the coating. In this
regard, we note that some portion of a homogenously dispersed
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antimicrobial would necessarily be present at the surface of the applied
coating.
Claim 17
Claim 1 7 depends from claim 16 and additionally requires "a degree
of antimicrobial activity of 99% or greater" and that the "antimicrobial
organometallic additives together comprise no more than about 3 % by
volume of the total volume of the polymer host matrix and the two or more
antimicrobial organometallic additives together." These limitations are
substantially similar to additional limitations recited in dependent claims 21
and 22. Accordingly, we find that these additional limitations do not render
claim 17 independently patentable for the reasons discussed in connection
with claim 21 and 22.
Claims 3 3 and 3 5
Appellants argue claims 3 3 and 3 5 under a separate heading.
However, the arguments presented for these claims are substantially the
same as the arguments presented with respect to claims 16 and 18. App. Br.
26-27. Accordingly, we affirm the Examiner's rejection of claims 33 and
35 for the reasons discussed in connection with claims 16 and 18.
Claims 3, 5, and 20
Claims 3, 5, and 20 ultimately depend from claim 18 and further
specify that the one or more organometallic additive is cupric stearate ( claim
3), is selected from the group consisting of silver stearate and zinc stearate
( claim 5), and is selected from the group consisting of silver stearate and
cupric stearate ( claim 20). Appellants argue these claims under a separate
heading. However, the arguments presented are the same as those presented
in connection with claim 16. Accordingly, we affirm the Examiner's
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rejection of claims 3, 5, and 20 for the reasons discussed in connection with
claim 16 as well as those discussed with respect to claim 18.
Claims 6 and 7
Claims 6 and 7 ultimately depend from claim 18 and further require
that the product have "a degree of antimicrobial activity of 99% or greater"
( claim 6) and that the "one or more antimicrobial organometallic additives
together comprise no more than about 3% by volume of the total volume of
the polymer host matrix and the one or more antimicrobial organometallic
additives together" ( claim 7). Appellants rely on arguments presented in
connection with independent claim 18 and dependent claim 22. App. Br. 29.
Accordingly, we affirm the Examiner's rejection of claims 6 and 7 for the
reasons discussed in connection with claim 18 as well as those discussed
with respect to claim 22.
Claim 19
Claim 19 ultimately depends from claim 18 and additionally requires
that the "polymer host matrix comprises an epoxy resin powder."
Appellants' arguments for claim 19 are substantially the same as Appellants'
arguments for claim 24. Accordingly, we affirm the Examiner's rejection of
claim 19 for the reasons discussed in connection with claim 25.
SUMMARY
For the reasons provided herein and those set forth in the Examiner's
Answer and Final Action, we affirm the Examiner's rejection of claims 4,
18, 21, 22, 24, 34, 37, 38, and 41--43 under 35 U.S.C. § 103(a) as obvious
over Sacripante and the Examiner's rejection of claims 3, 5-7, 16, 17, 19,
20, 33, 35, and 36 under 35 U.S.C. § 103(a) as obvious over the combination
of Sacripante, Trogolo, Dorfman, and Cole.
18
Appeal2017-007449
Application 13/833,581
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 41.50(±).
AFFIRMED
19