Ex Parte Ding et al

Patent Trials and Appeals Board

Jan 31, 2019

15103897 - (D) (P.T.A.B. Jan. 31, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
15/103,897 06/13/2016 Tianhua Ding
140646 7590 02/04/2019
Cantor Colburn - SABIC General
20 Church Street
22nd Floor
Hartford, CT 06103-3207
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.
13PLAS0113-US-PCT 1401
EXAMINER
BUTCHER, ROBERT T
ART UNIT PAPER NUMBER
1768
NOTIFICATION DATE DELIVERY MODE
02/04/2019 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):
USPTOPatentMail@cantorcolburn.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte TIANHUA DING, YING XI, LIN CHEN, HONGTAO SHI, and
DAKE SHEN
Appeal2018-002869
Application 15/103,897
Technology Center 1700
Before CATHERINE Q. TIMM, JEFFREY T. SMITH, and
JANEE. INGLESE, Administrative Patent Judges.
TIMM, Administrative Patent Judge.
DECISION ON APPEAL 1
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the
Examiner's decision to finally reject claims 1--4, 10-14, 16, 18, and 19
under 35 U.S.C. § 103(a) as obvious over Hoerold3 in view of Guo4, adding
1 In explaining our Decision, we cite to the Final Office Action of June 2,
2017 (Final Act.), the Appeal Brief of September 15, 2017 (Appeal Br.), and
the Examiner's Answer of November 13, 2017 (Ans.).
2 Appellant is the applicant, SABIC Global Technologies B.V., which,
according to the Appeal Brief, is the real party in interest. Appeal Br. 2.
3 Hoerold et al., US 2013/0210968 Al, published Aug. 15, 2013.
4 Jianbing Guo & Kaizhou Zhang, Effect of POE Grafting Degree and
Compatibilization on the Properties of PBTIPOE Blends, 554--56 Adv.
Materials Rsrch., 2049-53 (2012).
Appeal2018-002869
Application 15/103,897
Ding5 to reject claims 7, 8, and 15, adding Peters6 to reject claim 17, and
adding both Ding and Peters to reject claim 20. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.
The claims are directed to a composition (see, e.g., claim 1) and an
article comprising the composition (see, e.g., claim 18). Claim 1, with the
limitations most at issue highlighted, is illustrative:
1. A composition, comprising:
3 5 to 7 6 weight percent of a poly( alkylene terephthalate );
2 to 6 weight percent of an impact modifier comprising a
polyolefin elastomer comprising an ethylene/1-octene
copolymer, and, optionally, a thermoplastic polyester elastomer,
provided that the amount of polyolefin elastomer does not
exceed 5 weight percent;
10 to 50 weight percent glass fibers; and
14 to 25 weight percent of a flame retardant comprising
5 to 15 weight percent of a metal
dialkylphosphinate,
2 to 8 weight percent of a melamine-based flame
retardant, and
1 to 6 weight percent of a flame retardant
synergist, the flame retardant synergist comprising
an organophosphine oxide, an oligomeric or
polymeric bis(phenoxy)phosphazene, an
organophosphate ester, or a combination thereof;
5 Ding et al., US 2011/0071240 Al, published Mar. 24, 2011.
6 Peters et al., US 2007/0080330 Al, published Apr. 12, 2007.
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Application 15/103,897
wherein all weight percent values are based on the total
weight of the composition.
Appeal Br. 12 ( claims appendix) ( emphasis added).
OPINION
The Rejection of Claims 1--4, 10---14, 16, 18, and 19
We first tum to the Examiner's decision to reject claims 1--4, 10-14,
16, 18, and 19 under 35 U.S.C. § 103(a) as obvious over Hoerold in view of
Guo. Appellant does not argue any claim apart from the others, thus, we
select claim 1 as representative for resolving the issue on appeal for this
rejection.
There is no dispute that Hoerold teaches flame-retardant polyester
compounds including poly( alkylene terephthalate ), glass fibers, and the
mixture of flame retardants required by claim 1 in amounts overlapping the
claimed ranges. Compare Appeal Br. 5, with Final Act. 3. Nor is there any
dispute that Hoerold's Example 3 teaches a composition containing those
components within the ranges required by claim 1. See Hoerold Example 3,
Table 3 (containing 49.7 wt% polyalkylene terephthalate (polybutylene
terephthalate (PBT)), 30 wt% glass fibers, 13.3 wt% metal
dialkylphosphinate ( aluminum salt of diethylphosphinic acid (DEP AL)), 3 .4
wt% melamine-based flame retardant (melamine polyphosphate), and 3 .3
wt% bis(phenoxy)phosphazene (SPB 100 phosphazene)).
Appellant and the Examiner further agree that Hoerold mentions an
impact modifier as a useful additive. Compare Appeal Br. 5, with Final Act.
3. As acknowledged by Appellant, Hoerold discloses additives in the
amount of0.1-3 wt% as component (F). Appeal Br. 5; Hoerold ,r 26.
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Application 15/103,897
Component (F) preferably comprises at least one lubricant and mold release
agent, but can also comprise further additives including impact modifiers.
Hoerold ,r,r 79-80. Hoerold describes impact modifiers as "very generally
copolymers preferably composed of' at least two of a group that includes
olefinic monomers such as ethylene. Hoerold ,r 82. Hoerold, however, does
not list 1-octene amongst the olefinic monomers to be included in the
copolymer impact modifier. Thus, the Examiner turns to Guo. Final Act. 3-
4.
There is no dispute that Guo suggests using a grafted copolymer of
poly( ethylene/1-octene) (POE) and maleic anhydride (MAH), which is
abbreviated as POE-g-MAH, to toughen polybutylene terephthalate (PBT).
Compare Appeal Br. 5, with Final Act. 3. The Examiner finds that the
ordinary artisan "would have been motivated to have selected the ethylene
/1-octene copolymer of Guo as the impact modifier of choice in Hoerold for
improved mechanical properties due to the interfacial adhesion between PBT
and the ethylene/1-octene copolymer" and because POE was known to
impart good UV resistance, mechanical properties, and rheological
properties due to its molecular configuration. Final Act. 3.
Appellant contends that the combination of Hoerold and Guo fails to
teach or suggest all the limitations of claim 1 because Guo only teaches
compositions having 20 wt% POE or POE-g-MAH, which is much higher
than the 5 wt% maximum of Appellant's claim 1. Appeal Br. 5. Appellant
also contends that because Hoerold limits additives such as impact modifiers
to 0.1-3 wt% of the composition and Guo teaches adding 20 wt% of the
impact modifier POE or POE-g-MAH to PBT and Hoerold's example
compositions have higher notched impact strengths than Guo' s blends, the
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Application 15/103,897
ordinary artisan would not have selected POE for use in Hoerold's
compositions. Appeal Br. 6. Also, Appellant contends that there would
have been no reasonable expectation of success due to Guo's teaching of
using a higher concentration and the absence of disclosure concerning the
effect on flame retardancy. Appeal Br. 6-7.
Weighing the evidence as a whole while taking into account the
persuasiveness of Appellant's arguments, we determine a preponderance of
the evidence supports the findings of the Examiner. Hoerold teaches
limiting additives such as impact modifiers to O .1-3 wt% of the composition.
Hoerold also suggests that impact modifiers containing ethylene-containing
copolymers are useable. Hoerold ,r 82. Thus, the ordinary artisan would
have reasonably expected ethylene-containing copolymer-type impact
modifiers to be compatible with the flame retardant composition of Hoerold
in amounts within the 0.1-3 wt% range specified in Hoerold.
Guo provides evidence that POE and POE-g-MAH were known
impact modifiers for use in PBT. Guo§ 1 Intro. Although Guo reports on
specific 80/20 blends, we agree with the Examiner that those of ordinary
skill in the art would have used POE-g-MAH in amounts within the 0.1-3
wt% range as specified in Hoerold for its known function of improving
mechanical properties such as impact strength. Although Guo reports on
80/20 PBT/POE and PBT/POE-g-MAH blends, Guo is a research paper
investigating the effect of grafting POE with MAH on the mechanical
properties of PBT /POE blends. Guo title. Guo investigates 80/20 blends of
PBT/POE and PBT/POE-g-MAH with the objective of investigating the
effect of changing the graft ratio on mechanical properties including impact
strength. Guo is not concerned with obtaining the workable or optimized
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concentration of POE and POE-g-MAH in a particular PBT composition or
in a flame retardant and glass reinforced PBT such as that taught by
Hoerold. The ordinary artisan would have followed the teachings of
Hoerold as to concentration when adding POE-g-MAH or POE as an impact
modifier to Hoerold' s composition and would have performed routine
experimentation in the context of Hoerold's composition to obtain the
impact modification that would be predictable from the teachings of Guo.
"The combination of familiar elements according to known methods is likely
to be obvious when it does no more than yield predictable results." KSR
Int'! Co. v. Teleflex Inc., 550 U.S. 398,416 (2007).
Appellant has not persuaded us that the Examiner reversibly erred in
rejecting claims 1--4, 10-14, 16, 18 and 19 as obvious over Hoerold in view
of Guo.
The Rejection of claims 7, 8, and 15
To reject claims 7, 8, and 15, the Examiner adds Ding. Final Act.
5---6.
Claim 7 requires the impact modifier of claim 1 further comprise a
poly(alkylene iso-/terephthalate )-b-poly(alkylene ether). Claim 8 further
limits the impact modifier of claim 7. Claim 15 further requires the
composition of claim 1 comprise 0.5-3 wt% of a polyetherimide.
In rejecting claim 7, the Examiner acknowledges that Hoerold does
not disclose adding poly(alkylene iso-/terephthalate )-b-poly(alkylene ether)
and relies on the teaching in Ding of adding Hytrel 4056, a poly(alkylene
iso-/terephthalate )-b-poly(alkylene ether), to a PBT composition also
containing phosphorous flame retardants. Final Act. 5.
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Appellant contends there would have been no reason to add the
copolyesterether of Ding (poly( alkylene iso-/terephthalate )-b-poly( alkylene
ether)) to the composition of Hoerold and Guo because doing so would not
have increased the notched impact strength. Appeal Br. 8. But Appellant's
argument ignores the Examiner's stated reason for making the combination,
i.e., to increase tensile ductility to a satisfactory level while maintaining the
UL94 VO performance. Final Act. 6. It remains that it was known in the art
to add Hytrel 4056 to PBT compositions containing phosphorous flame
retardants. Given that fact, we agree with the Examiner that it would have
been obvious to the ordinary artisan to so add Hytrel 4056 to Hoerold's
similar composition to obtain the known properties of Hytrel 4056 in that
composition.
Appellant does not advance any separate arguments against the
Examiner's rejection of claims 8 and 15. Appeal Br. 8. Thus, we sustain the
Examiner's rejection of claims 7, 8, and 15.
The Rejection of Claims 17 and 20
To reject claims 17 and 20, the Examiner further relies on Peters for a
teaching of adding triphenylphosphine oxide for its synergistic effect on
flame retardancy when used with phosphine compounds such as the DEP AL
compound taught by Hoerold. Final Act. 7-8.
Appellant contends there would have been no reasonable expectation
that the flame retardant of Peters, and the observed synergistic effect, would
have also been realized in a flame retardant containing the other flame
retardant compounds in the amounts of their claim. Appeal Br. 9-10. But
Peters specifically states that using the phosphine compound with the
phosphorous salt (e.g., DEPAL) will reduce the total amount of flame
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retardant required based on the synergistic effect of using the two
components together. Peters ,r 6. Appellant provides no convincing
evidence that the presence of other compounds in the composition would
have been thought to interfere with the synergistic effect. Thus, Appellant
has not persuaded us that the Examiner reversibly erred in finding a reason
to include triphenylphosphine oxide along with DEP AL in the composition
of Hoerold. We sustain the rejections of claims 17 and 20.
CONCLUSION
We sustain the Examiner's rejections.
DECISION
The Examiner's decision is affirmed.
TIME PERIOD FOR RESPONSE
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).
AFFIRMED
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