Ex Parte Hlavinka et al

Patent Trial and Appeal BoardJan 11, 2017

13224785 (P.T.A.B. Jan. 11, 2017)

UNITED STATES PATENT AND TRADEMARK OFFICE 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. 13/224,785 09/02/2011 Mark L. HLAVINKA 211432US00 (4081-16900) 1150 37814 7590 01/11/2017 CHEVRON PHILLIPS CHEMICAL COMPANY 5601 Granite Parkway, Suite 500 PLANO, TX 75024 EXAMINER SHAH, SAMIR ART UNIT PAPER NUMBER 1787 MAIL DATE DELIVERY MODE 01/11/2017 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 MARK L. HLAVINKA, CHARLES D. MILLS, QING YANG, and GUYLAINE ST. JEAN ____________________ Appeal 2015-006661 Application 13/224,785 Technology Center 1700 ____________________ Before TERRY J. OWENS, CHRISTOPHER L. OGDEN, and DEBRA L. DENNETT, Administrative Patent Judges. DENNETT, Administrative Patent Judge. DECISION ON APPEAL1 STATEMENT OF THE CASE Appellants2 appeal under 35 U.S.C. § 134 from a rejection of claims 1–5, 7–14, and 16–22. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 In the Opinion below, we refer to the Final Action mailed September 23, 2014 (“Final Act.”), the Appeal Brief filed February 23, 2015 (“App. Br.”), the Answer mailed May 11, 2015 (“Ans.”), and the Reply Brief filed July 6, 2015 (“Reply Br.”). 2 Appellants identify Chevron Phillips Chemical Company LP as the real party in interest. App. Br. 4. Appeal 2015-006661 Application 13/224,785 2 The claims are directed to multilayer polymer films having improved barrier properties. Claim 1, reproduced below with the disputed language highlighted, is illustrative of the claimed subject matter: 1. A multilayer polymer film comprising an outer skin layer, an inner seal layer and at least one core layer disposed between the inner seal layer and outer skin layer, wherein the outer skin layer comprises a metallocene-catalyzed ethylene polymer having a density of equal to or greater than about 0.945 g/cc, a melt index equal to or greater than about 0.5 g/10 min, and a molecular weight distribution of from about 2 to about 5 wherein the multilayer polymer film has a moisture vapor transmission rate of less than about 0.5 g-mil/100 in2/day at 1.25 mils total film thickness. App. Br. 18 (Claims App’x). REFERENCES The Examiner relies on the following references in rejecting the claims on appeal: Tanaka et al. (“Tanaka”) US 5,501,887 Mar. 26, 1996 Peacock US 5,502,112 Mar. 26, 1996 Nakamura et al. (“Nakamura”) US 2002/0020492 A1 Feb. 21, 2002 Dohrer et al. (“Dohrer”) US 2002/0183433 A1 Dec. 5, 2002 Migliorini et al. (“Migliorini”) US 6,623,866 B2 Sept. 23, 2003 Larter et al. (“Larter”) US 6,689,857 B1 Feb. 10, 2004 Ohlsson et al. (“Ohlsson”) US 2006/0188678 A1 Aug. 24, 2006 Davey et al. (“Davey”) US 2008/0045679 A1 Feb. 21, 2008 Williams et al. (“Williams”) US 2010/0125114 A1 May 20, 2010 Appeal 2015-006661 Application 13/224,785 3 Andrew Peacock, Handbook of Polyethylene: Structures, Properties, and Applications 9 (Marcel Decker 2000) (“Peacock Handbook”) REJECTIONS The claims stand rejected as unpatentable under 35 U.S.C. § 103(a) as follows: (1) claims 1, 3–5, 7–14, and 16–18 over Williams in view of Tanaka; (2) claim 2 over Williams in view of Tanaka and further in view of Ohlsson; (3) claims 19–20 over Williams in view of Tanaka and Davey; (4) claim 21 over Williams in view of Tanaka and further in view of Nakamura; (5) claim 22 over Williams in view of Tanaka and further in view of Peacock Handbook; (6) claims 1, 3–5, 7–11, 13–14, 16, and 18 over Migliorini in view of Larter and Tanaka and evidence in Dohrer and Peacock; (7) claim 2 over Migliorini in view of Larter and Tanaka, and further in view of Ohlsson and evidence in Peacock; (8) claims 19–20 over Migliorini in view of Davey and Tanaka; (9) claim 21 over Migliorini in view of Larter and Tanaka, and further in view of Nakamura; and (10) claim 22 over Migliorini in view of Larter and Tanaka, and further in view of Peacock Handbook. Final Act. 2–18. OPINION Rejection over Williams in view of Tanaka The Examiner rejects claims 1, 3–5, 7–14, and 16–18 as obvious over Williams in view of Tanaka. Final Act. 2. Appellants dispute the rejection, arguing that the Examiner fails to provide a credible rationale for modifying Williams with the teachings of Tanaka. App. Br. 7; Reply Br. 5. Appellants Appeal 2015-006661 Application 13/224,785 4 argue claims 1, 3–5, 7–14, and 16–18 as a group. App. Br. 7. We select claim 1 as representative of the group. The Examiner finds that Williams discloses a multilayer polymer film comprising an outermost layer and a core layer disposed between the outermost layer and an inner skin layer, wherein the outermost layer comprises metallocene-catalyzed high density polyethylene polymer (HDPE) having a density of 0.940 g/cc or more or preferably 0.952 g/cc or more and a melt index of 0.5 to 2 g/10 min. Final Act. 2. The Examiner acknowledges that Williams fails to disclose that the HDPE has a molecular weight distribution of from 2 to 5. Id. The Examiner finds that Tanaka discloses a resin laminate having an outer layer that comprises HDPE with a molecular weight distribution of 4 or less. Id. While not disputing the Examiner’s findings related to Williams, Appellants contend that the Examiner relies on Tanaka to disclose the claimed feature “wherein the out skin layer comprises a metallocene- catalyzed ethylene polymer having a density of equal to or greater than about 0.945 g/cc, a melt index equal to or greater than about 0.5 g/10 min, and a molecular weight distribution of from about 2 to about 5.”3 App. Br. 9. The Examiner, however, clearly relies on Tanaka only for the teaching of “a molecular weight distribution of from about 2 to about 5,” having 3 Appellants present no argument relating to the limitation “wherein the multilayer polymer film has a moisture vapor transmission rate of less than about 0.5 g-mil/100 in2/day at 1.25 mils total film thickness,” therefore we do not consider whether or not this limitation imparts a basis for patentability. Ex Parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential) (citing Hyatt v. Dudas, 551 F.3d 1307, 1313-14 (Fed. Cir. 2008) (the Board may treat arguments appellant failed to make as waived). Appeal 2015-006661 Application 13/224,785 5 identified the other recited limitations in Williams. Final Act. 2. Specifically, the Examiner finds that “Tanaka discloses [a] resin laminate having [an] outer layer compris[ing] high density polyethylene wherein the high density polyethylene has a molecular weight distribution of 4 or less to obtain laminate in a form of a film.” Id. (citing Tanaka col. 5, ll. 22–29). Appellants take issue with the Examiner’s finding, reading it as a statement by the Examiner that Williams’ inventive compositions are not able to form a film unless HDPE with a molecular weight distribution of about 2 to about 5, as disclosed in Tanaka, are employed. App. Br. 9. Review of the portion of Tanaka cited by the Examiner reveals that Tanaka states “[w]hen a high-density polyethylene having the above-defined Mw/Mn (molecular weight distribution) is used (i.e., not more than 4.0), obtainable is a resin laminate in the form of a film, a sheet or a tube having high transparency.” Tanaka col. 5, ll. 27–30. Therefore, the Examiner is slightly re-wording Tanaka’s disclosure, not drawing a conclusion that one of ordinary skill in the art at the time of the invention would not be able to form a film using the disclosure of Williams without knowledge of Tanaka. Appellants’ contention that the Examiner’s statement is “scientifically unsupportable” rests on a mistaken interpretation. See App. Br. 9. Appellants dispute that Williams is properly combined with Tanaka. Id. at 10. Williams addresses films that may have an outer layer, a core layer, and an inner “skin” layer, and that “may be useful as flexible packaging film to package an article or good, such as a food item or other product. In some applications, the film may be formed into a pouch type of package, such as may be useful for packaging a beverage, liquid, granular, or dry-powder Appeal 2015-006661 Application 13/224,785 6 product.” Williams ¶¶ 3, 72. Similarly, Tanaka addresses resin laminate in the form of a film, sheet, or tube, wherein the resin laminate comprises outer, inner and intermediate layers, and may be used to form a container for food or medicine. Tanaka Abstract, col. 1, ll. 5–12; col. 11, ln. 4. While Williams discloses a film-forming polyolefin comprises a HDPE (Williams ¶ 60), the reference is silent as to molecular weight distribution of the HDPE. Consequently, one of ordinary skill in the art at the time of the invention would look to similar compositions to find a suitable molecular weight distribution. Tanaka teaches a HDPE in a resin laminate film with a density (preferably 0.952 g/cm3 or more) similar to that of Williams (density of not less than 0.950 g/cm3) and a molecular weight distribution of not more than 4.0. Tanaka col. 3, ll. 14–17; Williams ¶ 60. Therefore, the ordinarily skilled artisan would have combined the teachings of Williams and Tanaka with a reasonable expectation of success in making the invention. “Obviousness does not require absolute predictability of success . . . all that is required is a reasonable expectation of success.” In re Kubin, 561 F.3d 1351, 1360 (Fed. Cir. 2009) (citing In re O’Farrell, 853 F.2d 894, 903–04 (Fed. Cir. 1988)). Appellants’ argument that a literature search revealed patents disclosing HDPEs with a wide variety of molecular weight distributions is not persuasive, as it contends that the Examiner would necessarily have had to have found the range disclosed in Tanaka more beneficial than any other range. Reply Br. 6–7. Appellants also argue that “[t]he Examiner errs in ascribing all of the benefits associated with a film layer that is a blend of polymer to a single component of the blend.” App. Br. 10. The point of Appellants’ argument is not clear, as we see nothing in the Final Action that suggests the Examiner Appeal 2015-006661 Application 13/224,785 7 takes this position, and further know of no reason why such a position would be inappropriate, if taken. Appellants are correct that Tanaka relates to multi-layer films, individual layers of which may contain more than one polymer. Id. Appellants argue that Tanaka does not disclose “that the molecular weight distribution of HDPE in the polymer blend is solely or even primarily responsible for the positive attributes associated with the blend.” Id. at 10–11. No such disclosure is required. If Appellants read Tanaka as disclosing that the blend has a molecular weight distribution of “not more than 4.0,” we disagree. Compare Tanaka col. 2, ll. 60–62 with col. 3, ll. 11–19. Appellants contend that the Examiner engages in impermissible hindsight because “the cited combination of Williams and Tanaka fail[s] to provide any motivation to the ordinarily skill artisan to combine their teachings.” For the reasons provided above, this argument is unpersuasive. We sustain the rejection of claim 1 over Williams in view of Tanaka. The rejection of claims 3–5, 7–14, and 16–18 is likewise sustained, as the claims are argued as a group. See 37 C.F.R. § 41.37(c)(iv). Although under separate headings, Appellants argue that claims 2, 21, and 22 are allowable for the reasons set forth with respect to claim 1. App. Br. 12, 13. Appellants argue that claims 19 and 20 are allowable for the reasons set forth with respect to claim 1 and because Davey does not cure the deficiencies in the combination of Williams and Tanaka. Id. at 12. The rejection of claims 2, and 19–22 is sustained for the reasons given for the rejection of claim 1. Appeal 2015-006661 Application 13/224,785 8 Rejection over Migliorini in view of Larter and Tanaka and evidence given in Dohrer and Peacock In the rejection in which Migliorini is the primary reference, the Examiner contends that Migliorini in view of Larter fails to disclose that the HDPE has a molecular weight distribution of from 2 to 5. Final Act. 11. As with the rejection over Williams, the Examiner turns to Tanaka for teaching this element of claim 1. Id. The combination of Tanaka with Migliorini and Larter is Appellants’ focus on appeal. App. Br. 13–14. According to the Examiner, Migliorini discloses multilayer films comprising an outer skin layer, an optional inner seal layer, and a core layer between the two. Final Act. 10. The outer skin layer comprises metallocene-catalyzed HDPE. Id. The multilayer films may be used in packaging. Migliorini Abstract. Migliorini is silent on the molecular weight distribution of the HDPE disclosed. As explained above, one of ordinary skill in the art at the time of the invention would look to similar compositions, such as those disclosed in Tanaka, to find a suitable molecular weight distribution for HDPE. Therefore, the ordinarily skilled artisan would have combined the teachings of Migliorini in view of Larter with Tanaka with a reasonable expectation of success in making the invention. Appellants’ argument that Tanaka cannot be combined with Migliorini and Larter is consequently unpersuasive. In disputing the rejection of claim 1 over Migliorini in view of Larter and Tanaka, Appellants repeat their arguments that the Examiner errs in ascribing all of the benefits associated with a film layer that is a blend of polymer in Tanaka to a single component of the blend and that the Examiner Appeal 2015-006661 Application 13/224,785 9 engages in impermissible hindsight. For the reasons provided above, these arguments are unpersuasive. As with Williams, Appellants argue that claims 2, 21, and 22 are allowable over Migliorini, Larter, and Tanaka for the reasons set forth with respect to claim 1. App. Br. 14–16. Appellants argue that claims 19 and 20 are allowable for the reasons set forth with respect to claim 1 and because Davey does not cure the deficiencies in the combination of Migliorini, Larter, and Tanaka. Id. at 14–15. The rejection of claims 2, and 19–22 is sustained for the reasons given for the rejection of claim 1 We are not persuaded of reversible error in the Examiner’s rejections under 35 U.S.C. § 103. DECISION For the above reasons, the Examiner’s rejection of claims 1–5, 7–14, and 16–22 is 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)(1)(iv). AFFIRMED