Ex Parte Hypolite et alDownload PDFPatent Trial and Appeal BoardJun 26, 201713467845 (P.T.A.B. Jun. 26, 2017) Copy Citation 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 2 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. 3 Appeal 2016-006962 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.”). 4 Appeal 2016-006962 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 5 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 6 Appeal 2016-006962 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. 7 Appeal 2016-006962 Application 13/467,845 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 8 Copy with citationCopy as parenthetical citation