Ex Parte Duranel et alDownload PDFPatent Trial and Appeal BoardApr 29, 201312305298 (P.T.A.B. Apr. 29, 2013) Copy Citation UNITED STATES PATENT AND TRADEMARKOFFICE UNITED STATES DEPARTMENT OF COMMERCE United States Patent and Trademark Office Address: COMMISSIONER FOR PATENTS P.O. Box 1450 Alexandria, Virginia 22313-1450 www.uspto.gov APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 12/305,298 09/30/2009 Laurent Duranel F-1007 3054 25264 7590 04/30/2013 FINA TECHNOLOGY INC PO BOX 674412 HOUSTON, TX 77267-4412 EXAMINER SMITH, JEREMIAH R ART UNIT PAPER NUMBER 1723 MAIL DATE DELIVERY MODE 04/30/2013 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 LAURENT DURANEL, EMMANUEL HUMBEEK, and FABIENNE RADERMACHER ____________ Appeal 2012-000788 Application 12/305,298 Technology Center 1700 ____________ Before RICHARD E. SCHAFER, BEVERLY A. FRANKLIN, and GEORGE C. BEST, Administrative Patent Judges. BEST, Administrative Patent Judge. DECISION ON APPEAL Appeal 2012-000788 Application 12/305,298 2 On February 2, 2011, the Examiner finally rejected claims 8-10 of Application 12/305,298 under 35 U.S.C. § 103(a) as obvious. Appellants1 seek reversal of these rejections pursuant to 35 U.S.C. § 134(a). We have jurisdiction under 35 U.S.C. § 6(b). For the reasons set forth below, we AFFIRM. BACKGROUND The ’298 application describes an allegedly improved method for making polypropylene containers by one stage injection-stretch-blow molding. Spec. 1. Claim 8 is the only independent claim in the ’298 application and is reproduced below: 8. A method for preparing containers by one-stage injection-stretch-blow-moulding with a resin comprising: providing a random copolymer of propylene and ethylene (RCP) having a melt index of from 1.5 to 35 dg/min and an ethylene content of less than 6 wt % with respect to the weight of the RCP and optionally a nucleating and/or a clarifying agent; one-stage injection-stretch-blow-moulding the RCP to form a container, wherein the one-stage injection-stretch-blow-moulding comprises forming a perform at a perform injection temperature of from 200 to 270°C and wherein a stretching and blowing temperature Tsb [is][2] limited to a ΔT of 15° C or less and 1 The real party in interest is Total Petrochemicals Research Feluy (App. Br. 2). 2 We believe that this word needs to be inserted for the limitation to make sense. If prosecution continues, we suggest that a correction be made. Appeal 2012-000788 Application 12/305,298 3 wherein Tsb is expressed by Tsb=105+0.27x(Tinj-200). (App. Br. 16 (Claims App’x) (some paragraphing added). REJECTIONS The February 2, 2011 Final Office Action (“FR”) asserted the following rejection: The Examiner finally rejected claims 8-10 under 35 U.S.C. § 103(a) as obvious over Oas3 in view of Sideris4 and further in view of Yoshiike,5 Shelby,6 and Matsui7 and evidenced by Laurin 18 and Laurin 29. DISCUSSION Appellants advance two significant arguments against the rejection: (a) the Examiner’s erred in determining that the asserted combination of references describe, suggest, or would have rendered obvious claim 8’s formula for relating the temperature used for the stretching and blowing 3 U.S. Patent No. 4,357,288, issued Nov. 2, 1982. 4 WO 2005/084920, published Sept. 15, 2005. 5 U.S. Patent Application Publication No. 2006/0290035 A1, published Dec, 28, 2006. 6 U.S. Patent Application Publication No. 2004/0024560 A1, published Feb. 5, 2004. 7 WO 2005/121194 A1, published December 22, 2005. We shall follow the Examiner and Appellants in citing U.S. Patent Application Publication No. 2007/0178268 A1, published Aug. 2 2007, as the English language equivalent of the original Japanese language document. 8 U.S. Patent No. 4,196,731, issued April 8, 1980. 9 U.S. Patent No. 5,686,527, issued Nov. 11, 1997. Appeal 2012-000788 Application 12/305,298 4 portions of the process to the injection temperature (App. Br. 8-13), and (b) that the Examiner did not identify a reason for a person of ordinary skill in the art to combine Matsui with the combination of Oas and Sideris (id. at 13-14). First, the Examiner admits that none of the applied references describe or suggest the formula and that a person of ordinary skill in the art would not have been aware of it (Ans. 8-9). The Examiner, however, concluded that the inclusion of the formula was not a patentable distinction over the prior art because Shelby describes the importance of optimizing the blow molding temperature (id. at 6 (citing Shelby ¶ [0005])) and Yoshiike describes an exemplary two stage injection-stretch-blow molding process with an injection temperature of 254°C and a stretching/blow molding temperature range of 118 to 123°C (id. at 7 (citing Yoshiike ¶ [0044])). Yoshiike’s stretch/blow molding temperature range encompasses the 119°C value derived from claim 8’s formula for a 254°C injection temperature (id.). Based upon these facts, the Examiner concludes that Appellants’ claimed formula was obvious over the combinations of Oas, Sideris, and Shelby and of Oas, Sideris, Shelby, and Yoshiike because (1) a person of ordinary skill in the art would have routinely optimized the stretching/blowing temperature as a matter of course (id. at 7, 8-9) and (2) Yoshiike’s disclosure of a range of stretching/blowing temperatures that includes the value calculated using the claimed formula renders the formula prima facie obvious (id. at 7, 9). Appellants argue that the Examiner’s reliance on Shelby and Yoshiike to render the claimed formula obvious is misplaced for several reasons: (a) Shelby does not describe or suggest a method for optimizing blow molding temperature (App. Br. 10-11), (b) Yoshiike describes a two stage Appeal 2012-000788 Application 12/305,298 5 injection-stretch-blow molding process, which allegedly cannot be “reconciled with the teaching of Sideris for a single stage stretch blow molding process” (id. at 12 (italics in original)), and (c) Yoshiike describes injection-stretch-blow molding of polyethylene terephthalate rather than the claimed ethylene-propylene copolymer (id.). We need only address the first of these arguments. We agree with the Examiner that optimization of the stretch temperature used in the manufacturing process was a known result-effective variable and that a person of ordinary skill in the art would have optimized this parameter as a matter of course. Shelby describes various mechanical properties of the product—including strength, gas and liquid permeability, creep resistance, and optical properties—as being “a strong function of the preform temperature distribution at the time of blow molding.” Shelby ¶ [0004]; see also id. at ¶ [0005] (“The final properties of a stretch blow molded container are a strong function of the blow molding temperature.”). Shelby further states that “it is important to optimize the blow temperature at both [the inside and outside] surfaces [of the preform] as well as through the center [of the preform].” Id. at ¶ [0005]. Thus, preform temperature at the time of blow molding was a known result effective variable and optimization of such variables ordinarily is obvious. See In re Boesch, 617 F.2d 272, 276 (CCPA 1980) (“[D]iscovery of an optimum value of a result effective variable in a known process is ordinarily within the skill of the art.”); In re Aller, 220 F.2d 454, 456 (CCPA 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.”). Appeal 2012-000788 Application 12/305,298 6 Appellants’ argument that it is not routine for a person of ordinary skill in the art to determine the optimum stretching and blowing temperature for each injection temperature between 200 and 270°C (Reply Br. 7-8) is not persuasive. First, Appellants only present attorney argument in support of this assertion. Unsupported attorney arguments are not sufficient to overcome the Examiner’s prima facie case of obviousness. Second, a person of ordinary skill in the art would only likely have to determine the optimum stretching and blow molding temperature for a few injection temperatures to note the linear relationship between the two and to derive Appellants’ formula. Linear interpolation is well-known. Second, the Examiner relies upon Matsui as describing or suggesting that ΔTsb ≤ 15°C (Ans. 7-8). Appellants argue that the Examiner has not adequately explained why a person of ordinary skill in the art would have combined Matsui with Oas, Sideris, and Shelby (App. Br. 13-14). We are not persuaded by this argument. The Examiner stated that a person of ordinary skill in the art would have combined Matsui with the other references because “[i]t would have been obvious to a person of ordinary skill in the art at the time of invention to minimize temperature variation during the stretching/blowing stage in order to improve uniformity from product to product” (Ans. 7-8 (citing Matsui ¶ [0093]; see also id. at ¶ [0100])). As the Examiner explained (id. at 10-11) and as we found above, it was well known in the art that temperature in the stretching and blow molding stage was a result effective variable. Thus a person of ordinary skill in the art would have been motivated to control the temperature during this stage of the manufacturing process to achieve the desired properties in the final product. We do not discern error in Appeal 2012-000788 Application 12/305,298 7 the Examiner’s stated reason for combining Matsui’s description of a uniform stretching/blowing temperature with the other asserted references. Other Arguments. We have considered Appellants’ remaining arguments and find none that warrant reversal of the Examiner’s rejections. Cf. In re Antor Media Corp., 689 F.3d 1282, 1294 (Fed. Cir. 2012). * * * * Accordingly, we affirm the rejection of claim 8 as obvious over the combination of Oas, Sideris, Shelby, and Matsui. Because Appellants did not present separate arguments in support of the patentability of claims 9 or 10, we also affirm the rejection of these claims. CONCLUSION For the reasons stated above, we affirm the Examiner’s rejection of claims 8-10 of the ’298 application as obvious over the combination of Oas, Sideris, Shelby, and Matsui. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). 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