Ex Parte Crown et al

Patent Trial and Appeal Board

Mar 23, 2018

13817262 (P.T.A.B. Mar. 23, 2018)

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