Ex Parte Crown et alDownload PDFPatent Trial and Appeal BoardMar 23, 201813817262 (P.T.A.B. Mar. 23, 2018) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 13/817,262 05/23/2013 Alechia Crown 105118 7590 03/23/2018 Duane Morris LLP (Braskem) IP DEPARTMENT 30 South 17th Street Philadelphia, PA 19103-4196 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. F5221-00475 7173 EXAMINER PIERCE, JEREMY R ART UNIT PAPER NUMBER 1789 MAILDATE DELIVERY MODE 03/23/2018 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 ALECHIA CROWN, GERT CLAASEN, JACQUELYN DEGROOT, THOR GUDMUNDSSON, CHARLES CROSBY, LI-MIN TAU, and JOHN KAART0 1 Appeal2017-004220 Application 13/817 ,262 Technology Center 1700 Before JEFFREY T. SMITH, WESLEY B. DERRICK, and JANEE. INGLESE, Administrative Patent Judges. SMITH, Administrative Patent Judge. DECISION ON APPEAL This is a decision on an appeal under 35 U.S.C. § 134(a) from the Examiner's decision2 finally rejecting claims 1-5 and 8-20, which are all of the claims pending in the above-identified application. We have jurisdiction under 35 U.S.C. § 6(b ). We AFFIRM. 1 Appellants identify the real party in interest as "Braskem America, Inc." Appeal Brief filed September 12, 2016 ("App. Br.") at 1. 2 Final Action mailed April 11, 2016 ("Final Act.") at 3-10; the Examiner's Answer mailed November 16, 2016 ("Ans.") at 2-9. Appeal2017-004220 Application 13/817 ,262 STATEMENT OF THE CASE The subject matter on appeal is directed to "fabricated articles comprising polyolefins, and preferably ... a new polypropylene impact copolymer composition ideally suited for use in producing spunbond nonwovens having improved softness and good tensile strength." Spec. 1, 11. 9--12. According to page 2, lines 15-29, of the Specification: In one embodiment the invention is a polypropylene impact copolymer composition comprising from 60 to 90 percent by weight of the impact copolymer composition of a matrix phase comprising a homopolymer polypropylene or random polypropylene copolymer comprising from 0.1 to 7 mol percent of units derived from ethylene or C4-C10 alpha olefins; and from 10-40 percent by weight of the impact copolymer composition of a dispersed, preferably partially miscible phase comprising a propylene/alpha-olefin copolymer with alpha-olefin content ranging from 6-40 mol percent wherein the dispersed phase has a comonomer content which is greater than the comonomer content in the matrix phase. The difference should be sufficient, so that at least two distinct phases are present, although partial miscibility is desired. Although the specific amount that the comonomer must be different in order to ensure distinct phases will differ depending on the molecular weight of the polymers, in general it is preferred that the comonomer content in the dispersed phase is at least 5 mol percent greater (absolute). The impact copolymer of this embodiment is further characterized by having the ratio of the matrix MFR to the dispersed phase MFR (also referred to as a beta/alpha value) being 1.2 or less. Details of the appealed subject matter are recited in illustrative claim 1, which is reproduced below from the Claims Appendix of the Appeal Brief (with disputed limitations in italicized form): 1. A fabricated article comprising a polypropylene impact copolymer composition comprising: 2 Appeal2017-004220 Application 13/817 ,262 a) from 60 to 90 percent by weight of the impact copolymer composition of a matrix phase, said matrix phase comprising a homopolymer polypropylene or random polypropylene copolymer having from 0.1 to 7 mol percent of units derived from ethylene or C4-C10 alpha olefins; and b) from 10 to 40 percent by weight of the impact copolymer composition of a dispersed phase, said dispersed phase comprising a propylene/alpha-olefin copolymer having units derived from propylene and units derived from one or more other alpha olefins, wherein the dispersed phase comprises from 6 to 40 mol percent of units derived from ethylene or C4-C10 alpha olefins: wherein the fabricated article is a monocomponent or bi component fiber, and the dispersed phase has a comonomer content which is greater than the comonomer content in the matrix phase; and wherein the impact copolymer is characterized by having a beta/alpha (Bia) ratio of 0.9 or less, \vith P/a = (MFRi/MFR2)tun - l --------+l (Fc/100) where MFR means melt flow rate and MFR1 is that of the first reactor (matrix phase only), MFR2 is the second reactor (overall impact copolymer), and Fe is the percent by weight of the dispersed phase in the impact copolymer composition. App. Br. 9, Claims Appendix. The Examiner has maintained, and Appellants request review of, the following grounds of rejection: I. Claims 1-5, 8-14, and 18-20 under 35 U.S.C. § 103(a) as unpatentable over the combined disclosures of Ethiopia (US 200710173162 3 Appeal2017-004220 Application 13/817 ,262 Al, published July 26, 2007) and Chatterjee (US 6,197,886 Bl, issued Mar. 6, 2001 ); II. Claims 15 and 16 under 35 U.S.C. § 103(a) as unpatentable over the combined disclosures of Ethiopia, Chatterjee, and Kobylivker (US 5,460,884, issued Oct. 24, 1995); III. Claim 17 under 35 U.S.C. § 103(a) as unpatentable over the combined disclosures of Ethiopia, Chatterjee, and Mehta (US 2006/0173132 Al, published Aug. 3, 2006); IV. Claims 1-5 and 8-20 provisionally rejected for non-statutory, obviousness-type double patenting over claims 1---6, 8-13, and 18 of copending Application No. 12/859,499; and V. Claims 1-5 and 8-20 provisionally rejected for non-statutory, obviousness-type double patenting over claims 1-19 and 21-23 of copending Application No. 12/859,500. Final Act. 4--10; Ans. 2-7; App. Br. 5-8. DISCUSSION3 Upon consideration of the evidence relied upon by the Examiner and Appellants in light of each of Appellants' arguments, we find that Appellants have not identified reversible error in the Examiner's determination that the applied prior art would have rendered the subject matter recited in claims 1-5 and 8-20 obvious within the meaning of 35 U.S.C. § 103(a). 37 C.F.R. § 41.37(c)(l)(iv) (2012); In re Jung, 637 F.3d 3 Appellants only focus on claim 1 and do not present any separate arguments against the other rejected claims. App. Br. 5-8. Therefore, for purposes of this appeal, we limit our discussion to claim 1. 37 C.F.R. § 41.37(c)(l)(iv). 4 Appeal2017-004220 Application 13/817 ,262 1356, 1365 (Fed. Cir. 2011) (explaining that even ifthe examiner had failed to make a prima facie case, the Board would not have erred in framing the issue as one of reversible error because it has long been the Board's practice to require appellants to identify or adequately explain the alleged error in the examiner's rejections). Accordingly, we sustain the Examiner's§ 103(a) rejections of the above claims for the reasons set forth in the Final Action and the Answer. We add the following primarily for emphasis and completeness. Rejection I Appellants do not dispute the Examiner's finding that Ethiopia relates to non woven fabrics, wherein the fibers of the non woven fabric are made from a polymer blend of isotactic polypropylene and a reactor grade propylene based elastomer. See Abstract, entire document. Ethiopia discloses that the fibers can be monocomponent or bicomponent fibers. Paragraph [0058]. With regard to the claimed matrix phase, Ethiopia discloses that the isotactic polymer can be polypropylene homopolymer. Paragraph [0064]. With regard to the claimed dispersed phase, Ethiopia discloses that the reactor grade propylene elastomer can be polypropylene, which is copolymerized with about 3 to about 15 percent by weight of units derived from ethylene. Paragraph [0067]. Thus, the reactor grade propylene elastomer of Ethiopia would have more comonomer content than the polypropylene homopolymer, which has no comonomer content. With regard to the relative amounts, Ethiopia discloses that the first polymer [(polypropylene homopolymer)] is present in an amount between 60 and 95% by weight and the second polymer [(propylene/ethylene copolymer)] is present in an amount between 5 and 40% by weight of the blend. Paragraph [0098]. Compare Final Act. 4, with App. Br. 6-8. Nor do Appellants dispute the Examiner's finding that 5 Appeal2017-004220 Application 13/817 ,262 Chatterjee is also related to polymer compositions containing a propylene polymer phase and a rubber phase of propylene/ethylene copolymer. See Abstract, entire document. Chatterjee discloses that such polymer blends can be provided with improved abrasion and tear resistance by utilizing a beta/alpha ratio as low as about 0.8. See column 1, lines 21-25 and column 2, lines 6-10. Compare Final Act. 5, with App. Br. 6-8. Appellants contend that "[ n ]either reference discloses, teaches, nor suggests a fabricated article comprising a polypropylene impact copolymer [composition] with ... a Bia ratio of 0.9 or less [as recited in claiml]." App. Br. 6. However, we find this contention unpersuasive of reversible error in the Examiner's rejections. The Specification, as originally filed, states that "[ t ]he impact copolymer of this embodiment is further characterized by having the ratio of the matrix MFR [(melt flow rate4)] to the dispersed phase MFR [(melt flow rate)] (also referred to as a beta/alpha value [(Bia)]) being 1.2 or less." Spec. 2, 11. 27-29; see also Spec. 10, 11. 16-19. The Specification, as originally filed, alternatively defines such beta/alpha value as follows: "Beta/alpha" (b/a or Bia) is conceptually the ratio of the dispersed phase (ethylene propylene rubber or EPR) molecular weight to matrix phase molecular weight. It is normally measured as the intrinsic viscosity (IV) of the dispersed phase divided by the IV of the homopolymer or random copolymer matrix. However on a practical level, as used in the production of impact copolymer polypropylene products, b/a defines the ratio of the melt flow of the homopolymer/random copolymer reactor product (Reactor No. 1) to that of the overall impact copolymer reactor product (Reactor No. 2), according to the following equation, with both melt flows measured on stabilized powder samples. When the beta/alpha is kept within 4 Spec. 4, 11. 13-14. 6 Appeal2017-004220 Application 13/817 ,262 the specified range for in-reactor produced impact copolymers, the product gel content can be minimized, rubber domain size can be minimized. Bia= [(MFRi/MFR2)0.213 -l]/[(Fc/100) + 1] Where MFR1 is the first reactor (matrix phase only) and MFR2 is the second reactor (overall ICP [(impact copolymer)]). Spec. 7, 11. 4--17. "'Fe' refers to the percent by weight of the dispersed rubber phase in the total impact copolymer." Spec. 4, 11. 26-27. Although Ethiopia does not specifically mention a beta/alpha (Bia) ratio of 0.9 or less, as recited in claim 1, Ethiopia teaches employing a broad range of a matrix melt flow rate (MFR) and a disperse phase melt flow rate (MFR) which include ratios (also referred to as beta/alpha values) that encompass those beta/alpha ratios recited in claim 1. Compare Ethiopia i-fi-132-36, 94, with Spec. 2, 11. 27-29. In particular, the Examiner has correctly found that "Ethiopia discloses a broad range of melt flow rates for both the matrix phase polymer and the dispersed phase polymer." Final Act. 5 (citing Ethiopia i-fi-132-33 ("isotactic polypropylene homopolymer ... having a melt flow rate in the range of from about 100 to about 2000 grams/I 0 minutes," "said propylene based elastomer ... having a melt flow rate of from about 100 to about 2000 grams/I 0 minutes"), i-fi-134--36 ("[i]n another aspect ... an isotactic polypropylene [homopolymer] having a melt flow rate in the range of from about 2 to about 40 grams/I 0 minutes ... said second polymer [(propylene based elastomer)] has a melt flow rate of from about 0.5 to about 40 grams/IO minutes")). Consistent with these teachings of Ethiopia, Chatterjee discloses "utilizing a beta/alpha ratio as low as about 0.8" in the context of a polymer containing a propylene polymer phase and a rubber phase of 7 Appeal2017-004220 Application 13/817 ,262 propylene/ethylene copolymer to obtain the polymer compositions or blends having improved abrasion and tear resistance. Final Act. 5 (citing Chatterjee, col. 1, 11. 21-25, col. 2, 11. 6-10). The specific melt flows of the copolymer taught by Chatterjee are encompassed by Ethiopia. Compare Chatterjee, col. 2, 11. 1-5, with Ethiopia i-fi-128-30, 34-36, 94. In the words of Chatterjee: The Fe ranges between about 25% w to about 60% wand preferably about 40% w to about 50% w. The melt flow (MF) of the copolymer is between about 5 to 50 dg/min, preferably about 10 to about 30 g/10 min by either reactor or controlled rheology (visbreaking) modes. The ratio of intrinsic viscosity of the rubber phase to the intrinsic viscosity of the homopolymer phase ("IVR"), also called Bia, should be between about 0.8 to about 1.6 and preferably about 1.3 to about 1.6 .... The copolymers may be cracked to achieve specific melt flows. However, it is preferred that the cracking ratio (i.e., melt flow after cracking to melt flow before cracking) be limited to less than about 2. Said cracking may be accomplished with alkyl peroxides such as 2,5-dimethyl-2,5-bis(t-butylperoxy) hexane or other peroxidic species. Chatterjee, col. 2, 11. 1-20. Given the above teachings, we find that a preponderance of the evidence supports the Examiner's determination that the collective teachings of Ethiopia and Chatterjee would have led one of ordinary skill in the art to form polymer compositions or blends having a beta and alpha ratio of as low as about 0.8 (to obtain specific melt flow rates such as those taught by Ethiopia and Chatterjee), with a reasonable expectation of successfully obtaining the polymer compositions or blends having improved abrasion and tear resistance. See also In re Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003) ("In cases involving overlapping ranges, we and our predecessor court 8 Appeal2017-004220 Application 13/817 ,262 have consistently held that even a slight overlap in range establishes a prima facie case of obviousness."); In re Aller, 220 F.2d 454, 456 (CCP A 1955) ("[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation."). Appellants also contend that "one of ordinary skill in the art would [have been] led in a direction contrary to the present invention, based on the teachings of the [Chatterjee] reference." App. Br. 7; Reply Brief5 filed January 12, 2017 ("Reply Br.") at 3--4. In support of this contention, Appellants refer to the Abstract of Chatterjee, which states: The present invention relates to compositions containing impact copolymer compositions that are a blend of a propylene polymer phase and a rubber phase in which the ethylene content of the rubber phase is between about 7 5 to about 95% by weight. The rubber content of the impact copolymer composition ranges between about 35% by weight to about 60% by weight. The crystallinity of the high ethylene-content rubber phase provides overall improvement in film properties and also balance of film tensile properties in the machine and transverse directions. Compared to traditional impact copolymer compositions having a low ethylene content-rubber phase, the inventive copolymers have significantly enhanced 5 Any new arguments raised in the Reply Brief, which could have been raised in the Appeal Brief, will not be considered by the Board for purposes of the present appeal unless good cause is shown. 37 C.F.R. § 41.37(c)(l)(iv) ("Except as provided for in§§ 41.41 , 41.47 and 41.52, any arguments or authorities not included in the appeal brief will be refused consideration by the Board for purposes of the present appeal."); see also Ex parte Borden, 93 USPQ2d 1473, 1474 (BPAI 2010) (informative) (explaining that under the previous rules, which are similar to the current rules, "the reply brief [is not] an opportunity to make arguments that could have been made in the principal brief on appeal to rebut the Examiner's rejections, but were not"). 9 Appeal2017-004220 Application 13/817 ,262 melting and crystallization peaks due to polyethylene-like crystallinity in the rubber phase. Chatterjee, Abstract, cited in App. Br. 7-8 and Reply Br. 3--4. In so contending, Appellants ignore the collective teachings of the applied prior art references. As indicated supra, Ethiopia teaches forming a polymer blend that has 50 to 95 percent by weight of an isotactic polypropylene homopolymer and 5 to 50 percent by weight of a reactor grade propylene based elastomer having about 5 to about 15 percent by weight of ethylene. See also Ethiopia i-fi-128-34, 98. This polymer blend, according to paragraph 2 of Ethiopia, is suitable for making cold drawn textured fibers used in forming nonwoven webs or fabrics having superior abrasion resistance and excellent softness characteristics. Although Chatterjee teaches using a higher ethylene content in the rubber phase than those recited in claim 1 for improving certain film properties, Ethiopia teaches that the recited ethylene content in the rubber phase is useful for forming fibers for nonwoven webs or fabrics having superior abrasion resistance and excellent softness characteristics or molded parts having desired impact strength, elongation, tensile strength, and Secant flexural modulus. Thus, we find no reversible error in the Examiner's determination that one of ordinary skill in the art interested in forming nonwoven fabrics or molded parts would have been led to employ a polypropylene impact copolymer composition or blend comprising the recited proportions of polypropylene homopolymer and a polypropylene copolymer having the recited ethylene content taught or suggested by Ethiopia, with a reasonable 10 Appeal2017-004220 Application 131817 ,262 expectations of successfully forming desired nonwoven fabrics or molded parts having desired properties. Finally, Appellants contend: Please again note that Bia ratios within the range presently claimed are critical to the efficacy of the present invention, as shown in Tables 1-3 of the present application. For instance, Example 1 in Table 2 is formed from a monocomponent fiber made from Resin C (Bia ratio of 0.9); and Examples 2 and 3 are each formed from a bicomponent fiber including Resin C. As shown in Table 3, such compositions exhibit superior characteristics in terms of smoothness, cloth- like attributes, stiffness and noise intensity (lower numbers indicating more favorable values) versus comparative examples outside the scope of the present invention. App. Br. 6-7; see also Reply Br. 4. However, Appellants do not demonstrate, much less argue, that these superior characteristics are unexpected by one of ordinary skill in the art. 6 App. Br. 6-7; Reply Br. 4; see also In re Skoner, 517 F.2d 947, 950 (CCPA 1975) (explaining that expected results are evidence of obviousness just as unexpected results are evidence ofunobviousness); In re Soni, 54 F.3d 746, 751 (Fed. Cir. 1995) ("Mere improvement in properties does not always suffice to show unexpected results."). Nor do Appellants argue or demonstrate that the claimed subject matter imparts unexpected superior results relative to the closest prior art or that the showing in Examples 10-12 of Tables 2 and 3 is reasonably commensurate in scope with the degree of protection sought by 6 In re Klosak, 455 F.2d 1077, 1080 (CCPA 1972) ("the burden of showing unexpected results rests on he who asserts them"). In re Heyna, 360 F.2d 222, 22 8 ( CCP A 1966) ("It was incumbent upon appellants to submit clear and convincing evidence to support their allegation of unexpected expected property."). 11 Appeal2017-004220 Application 13/817 ,262 claim 1 on appeal. App. Br. 6-7; Reply Br. 4; see also Baxter Travenol Labs., 952 F.2d 388, 392 (Fed. Cir. 1991) ("[W]hen unexpected results are used as evidence of nonobviousness, the results must be shown to be unexpected compared with the closest prior art."); In re Harris, 409 F.3d 1339, 1344 (Fed. Cir. 2005) ("Even assuming that the results were unexpected, Harris needed to show results covering the scope of the claimed range. Alternatively Harris needed to narrow the claims."); In re Greenfield, 571F.2d1185, 1189 (CCPA 1978) ("Establishing that one (or a small number of) species gives unexpected results is inadequate proof, for 'it is the view of this court that objective evidence of non-obviousness must be commensurate in scope with the claims which the evidence is offered to support."' (quoting In re Tiffin, 448 F.2d 791, 792 (CCPA 1971))). Accordingly, Appellants have not established reversible error in the Examiner's determination that a preponderance of the evidence leans heavily in favor of the obviousness of the subject matter recited in claims 1-5, 8-14, and 18-20 within the meaning of 35 U.S.C. § 103(a). Rejections II and III Appellants do not separately argue the Examiner's decision rejecting claims 15 and 16 under 35 U.S.C. § 103(a) as unpatentable over the combined disclosures of Ethiopia, Chatterjee, and Kobylivker and rejecting claim 17 under 35 U.S.C. § 103(a) as unpatentable over the combined disclosures of Ethiopia, Chatterjee, and Mehta. Appellants appear to rely on the same arguments advanced in connection with Rejection I discussed supra. App. Br. 6-8. 12 Appeal2017-004220 Application 13/817 ,262 Accordingly, based on the findings and reasoning set forth above, Appellants have not established reversible error in the Examiner's determination that a preponderance of the evidence leans heavily in favor of the obviousness of the subject matter recited in claims 15-17 within the meaning of 35 U.S.C. § 103(a). Provisional Rejection of Claims 1-5 and 8-20 for Non-statutory, Obviousness-type Double Patenting The Examiner determines that claims 1-5 and 8-20 are not patentably distinct from claims 1---6, 8-13, and 18, of copending application number 12/859 ,499 and claims 1-19 and 21-23, of copending application number 12/859,500. Final Act. 8-10. Appellants have failed to substantively address the above listed double patenting rejections from the Final Office Action, from which this appeal has been taken. App. Br. 8. Appellants, therefore, have waived the right for further appellate review of this rejection. The Board will generally not reach the merits of any issues not contested by the Appellants. See 37 C.F.R. § 41.37(c)(l)(iv) ("Except as provided for in§§ 41.41, 41.47 and 41.52, any arguments or authorities not included in the appeal brief will be refused consideration by the Board for purposes of the present appeal."); Hyatt v. Dudas, 551 F.3d 1307, 1313-14 (Fed. Cir. 2008) (the Board may treat arguments the appellant failed to make for a given ground of rejection as waived); In re Watts, 354 F.3d 1362, 1368 (Fed. Cir. 2004). Accordingly, we summarily affirm these uncontested rejections. 13 Appeal2017-004220 Application 13/817 ,262 DECISION In view of the foregoing, the decision of the Examiner to reject claims 1-5 and 8-20 under 35 U.S.C. § 103(a) is AFFIRMED. The provisional, non-statutory, obviousness-type double patenting rejections of claims 1-5 and 8-20 are AFFIRMED. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv). AFFIRMED 14 Copy with citationCopy as parenthetical citation