Ex Parte Hypolite et al

Patent Trial and Appeal Board

Jun 26, 2017

13467845 (P.T.A.B. Jun. 26, 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.
13/467,845 05/09/2012 Curvel Hypolite 72613-US-NP
(DC150017USP)
5380
14268 7590 06/28/2017
The Dow Phemiral Pnmnanv/f antnr Pnlhiim T T P
EXAMINER
20 Church Street
22nd Floor
HUHN, RICHARD A
Hartford, CT 06103-3207 ART UNIT PAPER NUMBER
1764
NOTIFICATION DATE DELIVERY MODE
06/28/2017 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):
ffuimpc@dow.com
u sptopatentmail @ C antorColburn .com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CURVEL HYPOLITE and ALEC Y. WANG
Appeal 2016-006962
Application 13/467,845
Technology Center 1700
Before MICHAEL P. COLAIANNI, GEORGE C. BEST, and
N. WHITNEY WILSON, Administrative Patent Judges.
COLAIANNI, Administrative Patent Judge.
DECISION ON APPEAL
Appellants1 appeal under 35 U.S.C. § 134(a) the Final Rejection of
claims 10-15. We have jurisdiction over the appeal pursuant to 35 U.S.C.
§ 6(b).
We AFFIRM.
Appellants’ invention is directed to a polymerization process, which
uses a liquid-liquid separator interface detection system (Spec. 1).
1 Appellants identify the real party in interest as “Dow Global Technologies
LLC” (Appeal Br. 2).
Appeal 2016-006962
Application 13/467,845
Claim 10 is illustrative (emphasis added):
10. A solvent-based solution polymerization process
comprising:
A) solution polymerizing in a solution polymerization
reactor one or more monomers in the presence of a solvent, to
form a polymer solution;
B) transferring the polymer solution from the solution
polymerization reactor to a liquid-liquid separator vessel,
without adding heat to the solution, and wherein a pressure of
the polymer solution is actively reduced in a controlled manner
prior to, or within, the liquid-liquid separator vessel, to induce
at least two liquid phases, a polymer-rich phase and a solvent-
rich phase, and wherein a concentration of polymer in the
polymer-rich phase is higher than that in the polymer solution
transferred to the liquid-liquid separator vessel from the
solution polymerization reactor; and
C) detecting an interface between the polymer-rich phase
and the solvent-rich phase by use of a sonic transponder
positioned within the liquid-liquid separator vessel; and
D) removing one or both of the solvent-rich phase and
the polymer-rich phase.
Claims App’x (ii—iii) of Appeal Br.
Appellants appeal the following rejections:
1. Claims 10 and 14 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Fried
2. Friedersdorf et al. (US 2008/0153996 Al, issued June 26, 2008,
“Friedersdorf”) in view of Jager (DE 10325953 Al, published Dec.
23, 2004, and relying on an English translation dated Jan. 26, 2015,
“Jager”).
3. Claim 15 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Friedersdorf, in view of Jager, and further in view of Ledgard
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Appeal 2016-006962
Application 13/467,845
(Jared B. Ledgard, Kings Chem. Guide Edition 2nd ed., 22 (2006),
“Ledgard”).
Appellants’ arguments focus solely on independent claim 10 (Appeal
Br. 3—13; Reply Br. 4—9).2 Claims 11—15 will stand or fall with our analysis
of claim 10.
FINDINGS OF FACT & ANALYSIS
After review of the respective positions provided by Appellants and
the Examiner, we AFFIRM the Examiner’s prior art rejections under
35 U.S.C. § 103(a) for the reasons presented by the Examiner and add the
following for emphasis.
The Examiner’s findings and conclusions regarding Friedersdorf and
Jager are located on pages 3 to 4 of the Non-Final Office Action (filed Feb.
3, 2015 (“Non-Final Act.”)). The Examiner found that the claimed steps of
polymerizing monomers in a solvent, transferring the polymer solution to a
liquid-liquid separator without adding heat to the solution, reducing the
pressure to induce two liquid phases, and separating the polymer-rich phase
are disclosed by Friedersdorf (Non-Final Act. 3).
The Examiner found that Friedersdorf does not disclose or suggest the
claimed step of detecting an interface between the phases of the polymer
solution with a sonic transponder positioned within the separator {id.). The
2 Although Appellants argue that the Examiner reversibly erred in
combining the prior art of Friedersdorf, Jager, and Ledgard (as applied only
to dependent claim 15), Appellants rely on limitations recited in independent
claim 10 (see Appeal Br. 10-11), which do not involve the findings related
to Ledgard.
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Application 13/467,845
Examiner, however, found that Jager describes the measurement of
boundary layers in multi-phase mixtures of liquids through use of a sonic
transponder located within the container (id.). The Examiner further found
that Jager’s method allows the user to determine level heights of the fluids
independently (id. at 4).
The Examiner determined that the ordinary skilled artisan would have
been motivated to incorporate Jager’s device for measuring the liquid
heights in Friedersdorf s separator in order to identify the amount of each
phase in the separator and thereby assist in the separation of the polymer-
rich phase (id.). The Examiner further determined that this proposed
modification of Friedersdorf s separator would have been obvious to one of
ordinary skill in the art (id.).
Appellants argue that that the present claims require a solvent, but that
Friedersdorf describes a polymerization process that may be conducted
either with or without the use of an inert solvent component (Appeal Br. 9).
Appellants further argue that the Examiner reversibly erred because
Friedersdorf fails to disclose “the presence of a solvent-rich phase” as
required by the claims (Reply Br. 7).
Appellants’ arguments are not persuasive. There is no dispute that
Friedersdorf teaches that the disclosed polymerization process may take
place “with or without use of an inert solvent component” (Friedersdorf 17
(emphasis added)); See In reFritch, 972 F.2d 1260, 1264 (Fed. Cir. 1992)
(“It is well settled that a prior art reference is relevant for all that it teaches
to those of ordinary skill in the art.”).
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Application 13/467,845
Appellants further argue that the rejection does not identify any reason
why the interface between the phases should be detected (Appeal Br. 11).
Appellants assert that
the Examiner fails to provide . . . why, in light of all the art of
record, a person having ordinary skill in this art would have been
[led] to a solvent-based solution polymerization process
comprising: A) solution polymerizing in a solution
polymerization reactor one or more monomers in the presence
of a solvent, to form a polymer solution; [step B);] and
C) detecting an interface between the polymer-rich phase and
the solvent-rich phase by use of a sonic transponder positioned
within the liauid-liauid separator vessel; and D) removing one
or both of the solvent-rich phase and the polymer-rich phase\,
as recited in claim 10].
Reply Br. 5—6.
We are unpersuaded by these arguments and agree with the
Examiner’s determination of obviousness (Non-Final Act. 3^4; Ans. 3, 6).
As found by the Examiner, Jager describes the measurement of boundary
layers in multi-phase mixtures of liquids through use of a sonic transponder
located within the container (Non-Final Act. 3). We note that Friedersdorf
discloses another alternative for “the measurement of phase boundaries . . .
determined by making multiple cloud point pressure measurements at a
variety of temperatures . . .” (Friedersdorf |29). Thus, modifying
Friedersdorf s method to incorporate the known alternative of using Jager’s
sonic transponder located within the container would achieve the desired
measurement of phase boundaries of Friedersdorf with predictable results
and a reasonable expectation of success. See KSR Int’l Co. v. Teleflex, Inc.,
550 U.S. 398, 416 (2007) (“[W]hen a patent claims a structure [or method]
already known in the prior art that is altered by the mere substitution of one
element [or step] for another known in the field, the combination must do
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Appeal 2016-006962
Application 13/467,845
more than yield a predictable result.” (citing United States v. Adams, 383
U.S. 39, 50-51 (1966));InreFout, 675 F.2d297, 301 (CCPA 1982)
(“Express suggestion to substitute one equivalent for another need not be
present to render such substitution obvious.”); In re Mayne, 104 F.3d 1339,
1340 (Fed. Cir. 1997) (“Because the applicants merely substituted one
element known in the art for a known equivalent, this court affirms [the
rejection for obviousness].”). Appellants have not adequately explained why
one skilled in the art, using no more than ordinary creativity, would not have
been capable of adapting Jager’s sonic transponder to facilitate phase
boundary measurement of each of the claimed solvent-rich and polymer-rich
phases. See In re Sovish, 769 F.2d 738, 743 (Fed. Cir. 1985) (skill is
presumed on the part of one of ordinary skill in the art); In re Bozek, 416
F.2d 1385, 1390 (CCPA 1969).
Appellants argue that Friedersdorf teaches the ordinary skilled artisan
“to not detect the interface between the polymer-rich and solvent-rich
phases” through use of a sonic transponder positioned within the liquid-
liquid separator vessel (Appeal Br. 11). Appellants further argue that
Friedersdorf “explicitly excludes” an interface detection subsystem {id.).
Appellants contend that such explicit disclosure is found in paragraph 29 of
Friedersdorf, which teaches that fblecause phase separation experiments
are run at high temperatures and pressures, it is usually impractical to
sample individual phases in multi-phase mixtures to determine their
composition or physical properties . . (Reply Br. 8).
Appellants’ arguments are not persuasive because Friedersdorf s
teaching does not teach away from using a sonic transponder positioned
within the separator vessel to detect an interface between the claimed
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Application 13/467,845
phases. Rather, Friedersdorf teaches that “it is usually impractical to sample
individual phases” (Friedersdorf 129 (emphasis added)). We note that the
method described in Jager does not involve sampling individual phases
(Jager || 18—22). Rather, Jager teaches that the transmission of an
ultrasonic pulse, reflection from a phase boundary, and detection of the echo
facilitates level height measurements of each phase (id.). We find, therefore,
that Friedersdorf does not teach away from using the sonic transducer within
a separator vessel. Accordingly, the combined teachings would have taught
the incorporation of Jager’s device in Friedersdorf s separator in order to
identify the amount of each phase in the separator without sampling and
thereby assist in the separation of the polymer-rich phase.
Appellants further argue that the prior art does not recognize any
problems associated with detecting an interface between the phases of the
polymerization reaction mixture (Appeal Br. 12—13). Appellants contend
that the “lack of existence of identifying any problems detecting such
interface provides additional support for Appellants’] position of non­
obviousness” (Reply Br. 9).
Appellants’ arguments are not persuasive because the applied prior art
need not be combined to address Appellants’ problem. KSR, 550 U.S. at 420
(“[A]ny need or problem known in the field of endeavor at the time of
invention and addressed by the patent can provide a reason for combining
the elements in the manner claimed.”). As noted above, the Examiner has
provided sufficient reasoning for making the proposed combination of
Friedersdorf and Jager.
Therefore, on this record, we affirm the Examiner’s § 103 rejection of
claims 10—15 over the cited references.
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CONCLUSION
Accordingly, on this record and for the above reasons, we sustain the
35 U.S.C. § 103 rejections (1) and (2) of claims 10-15 over the cited prior
art.
DECISION
The Examiner’s § 103 rejections 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).
ORDER
AFFIRMED
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