Ex Parte Duranel et al

Patent Trial and Appeal Board

Apr 29, 2013

12305298 (P.T.A.B. Apr. 29, 2013)

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).

AFFIRMED

kmm