Ex Parte Laffitte et al

Patent Trials and Appeals Board

May 28, 2019

12601348 - (D) (P.T.A.B. May. 28, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/601,348 04/21/2010
23122 7590
RATNERPRESTIA
2200 Renaissance Blvd
Suite 350
King of Prussia, PA 19406
05/30/2019
FIRST NAMED INVENTOR
Jean-Alex Laffitte
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
EANF-141US 6950
EXAMINER
WHATLEY, KATELYNB
ART UNIT PAPER NUMBER
1714
NOTIFICATION DATE DELIVERY MODE
05/30/2019 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):
PCorrespondence@ratnerprestia.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL
AND APPEAL BOARD
Ex parte JEAN-ALEX LAFFITTE and BERNARD MONGUILLON 1
Appeal2018-007801
Application 12/601,348
Technology Center 11700
Before BEYERL YA. FRANKLIN, RAEL YNN P. GUEST, and
JEFFREY W. ABRAHAM, Administrative Patent Judges.
FRANKLIN, Administrative Patent Judge.
DECISION ON APPEAL
1 Appellants identify the real party in interest as Arkema France.
Appeal2018-007801
Application 12/601,348
Appellants request our review under 35 U.S.C. § I34(a) of the Examiner's
decision rejecting claims 1, 3, and 5-15. We have jurisdiction over the appeal
under 35 U.S.C. § 6(b ).
STATEMENT OF THE CASE
Claim 1 is illustrative of Appellants' subject matter on appeal and is set forth
below:
1. A process for cleaning polyolefin-based equipment soiled with
food, characterized by contacting the polyolefin-based equipment soiled
with food with an aqueous cleaning composition containing one or more
short-chain alkanesulfonic acids containing from 1 to 4 carbon atoms,
wherein said cleaning composition is a non-enzymatic cleaning composition
free of nitrogen and phosphorus and said cleaning composition does not
degrade the surface of the polyolefin-based equipment;
wherein the polyolefin-based equipment consists essentially of
polypropylene,
wherein the cleaning composition contains from 1 % to 100% by
weight of alkanesulfonic acid, and
wherein the polyolefin-based equipment exhibits a quadratic
roughness (Rq) after immersion in 1 wt% methanesulfonic acid at 7 0°C for
15 days of at least 7 0%.
The Examiner relies on the following prior art references as evidence of
unpatentability:
Schluessler
Ahmed
Lange
us 4,923,523
US 2006/0035808 Al
US 2007 /0010420 Al
2
May 8, 1990
Feb. 16,2006
Jan. 11, 2007
Appeal2018-007801
Application 12/601,348
THE REJECTIONS
1. Claims 1, 3, 5, 8-12, and 15 are rejected under pre-AIA 35 U.S.C.
§ 103 (a) as being unpatentable over Schluessler in view of Applicants' Admission
of Prior Art (hereinafter, "AAP A"), as evidenced by Lange.
2. Claims 6, 7, 13, and 14 are rejected under pre-AIA 35 U.S.C. §103(a) as
being unpatentable over Schluessler, in view of AAP A, as evidenced by Lange , as
applied to claim 1 above, and further in view of Ahmed.
3. Claims 1, 3, 5, 8-12, and 15 are rejected under pre-AIA 35 U.S.C.
§ 103 (a) as being unpatentable over AAP A in view of Schluessler, as evidenced by
Lange.
4. Claims 6, 7, 13, and 14 are rejected under pre-AIA 35 U.S.C. § 103(a) as
being unpatentable over AAP A in view of Schluessler, as evidenced by Lange, as
applied to claim 1 above, and further in view of Ahmed.
ANALYSIS
For purposes of this appeal, we address claim 1 based upon Appellants'
arguments, and the remaining claims stand or fall with claim 1, consistent with 3 7
C.F.R. § 4I.37(c)(l)(iv) (2017).
Upon consideration of the evidence and each of the respective positions set
forth in the record, we find that the preponderance of evidence supports the
Examiner's findings and conclusion that the subject matter of Appellants' claim is
unpatentable over the applied art. Accordingly, we sustain each of the Examiner's
rejections on appeal essentially for the reasons set forth in the Final Office Action
and in the Answer, and affirm. We add the following for emphasis.
3
Appeal2018-007801
Application 12/601,348
Rejections 1 and 3g
The Examiner's position for Rejection 1 is set forth on pages 3-8 of the
Final Office Action. Therein, the Examiner finds that Schluessler teaches the
acidic cleaning process as claimed by Appellants being applied to equipment that
is soiled with dairy products. Schluessler, col. 4, 11. 14--23 and col. 5, 11. 20-29.
Final Act. 3--4. The Examiner states that Schluesser does not teach that
the equipment is polyolefin-based equipment comprising polypropylene. Final
Act. 4. The Examiner relies upon AAPA wherein the Specification discloses (in
the prior art section) that equipment that is used in dairy processing and in need of
acid-based cleaning is often made of polyolefins such as polypropylene (Spec., p.
1, 11. 14--21 ). Final Act. 4. The Examiner then states that it is known that cleaning
solutions containing alkanesulfonic acids can be applied to polyolefin dairy
processing equipment to remove residue from the containers, as evidenced by
Lange. Lange, ,r,r [0153] and [0195]. Id.
The Examiner concludes that it would have been obvious to have applied the
method of cleaning dairy processing equipment with the alkanesulfonic acid
aqueous cleaning solution as taught by Schluessler, to dairy equipment that is
polyolefin and comprises polypropylene, as taught in the Specification as being
commonly used (AAPA), with a reasonable expectation of success of removing the
dairy residue from the equipment, as evidenced by Lange. Final Act. 4.
Appellants argue that there is not a reasonable likelihood of success in using
a cleaning solution of the kind disclosed in Schluessler for cleaning the polyolefin-
based equipment made of polypropylene taught by the AAP A. In support of this
2 Appellants rely upon the same arguments for both Rejections 1 and 3. Appeal
Br. 17-18. Hence, our determination with regard to Rejection 1 is dispositive for
Rejection 3.
4
Appeal2018-007801
Application 12/601,348
position, Appellants refer to data in the Specification, and also refer to a
§ 1.132 Declaration filed on July 16, 2015. Appeal Br. 7-10. Appellants submit
that their claimed process is not obvious over Schluessler in view of AAP A as
evidenced by Lange. Appeal Br. 11-18. We are unpersuaded by such argument
for essentially the reasons provided in the record by the Examiner, with the
following emphasis.
With regard to the data in the Specification, as pointed out by the Examiner
on page 5 of the Answer, the data provided on pages 5 and 6 and in Table 1 of the
Specification show the benefits of methanesulfonic acid over phosphoric
acid when applied to polypropylene. We agree with the Examiner that the fact that
methanesulfonic acid does not corrode the polypropylene surface as much as the
phosphoric acid does not show sufficient evidence that the methanesulfonic acid
would have unexpected results when applied to polyolefins or polypropylene.
Appellants argue that short-chain alkanesulfonic acids are quite
acidic (methanesulfonic acid having a pKa of -1.9) and phosphoric acid is a weaker
acid (pKa of 2.15), and thus it is surprising that methanesulfonic acid does not
degrade the polypropylene equipment as much as phosphoric acid. Appeal Br. 8-
9. However, as stated by the Examiner on page 5 of the Answer, the strong acidity
and low corrosive properties of alkanesulfonic acids, specifically methanesulfonic
acid, have been recognized in the art as being a preferred, conventional acid for
cleaning in the food processing industry (see, e.g., col. 2, 11. 45-52 of Schluessler).
With regard to the Declaration evidence, we also agree with the Examiner
that this evidence is unpersuasive. As the Examiner points out on pages 5---6 of the
Answer, the data is not commensurate in scope with the claims with regard to the
immersion conditions recited in claim 1 versus the immersion conditions used in
the Declaration. Ans. 5---6; see In re Grasselli, 713 F.2d 731, 743 (Fed. Cir. 1983);
5
Appeal2018-007801
Application 12/601,348
In re Clemens, 622 F.2d 1029, 1035 (CCPA 1980). Also, as pointed out by the
Examiner on page 7 of the Answer, the data in the table on page 2 of the
Declaration shows that the results of the contact with methanesulfonic acid are
predictable on certain groups (i.e. polyolefins: polypropylene and polyethylene),
which is consistent with Lange's evidence.
In reply, on page 2 of the Reply Brief, Appellants argue that the data in the
Declaration shows that the effect of short-chain alkanesulfonic acids on a
polymeric material is not predictable. Appellants argue that the Declaration
demonstrates that short-chain alkanesulfonic acids cause significant damage to the
surface of a polyester substrate while causing no observable alteration to
a polypropylene substrate. Appellant submits that this is surprising and
unexpected because one skilled in the art would conclude that polyolefins, e.g.,
polypropylene, and polyesters would be equivalent as substrates, i.e., expected to
have the same reactivity to a short-chain alkanesulfonic acid, based on the teaching
of Lange, as discussed in the Appeal Brief. We are not persuaded by this reply
argument. We agree with the Examiner's position that the data favors
predicatability of no damage, and add that the fact that the degree of alteration of
two of the three polyolefins in the table (no damage), provides favorable odds that
there would be a reasonable likelihood of success of no damage to particular
polyolefins. The prior art can be modified or combined to reject claims as prima
facie obvious as long as there is a reasonable expectation of success. in re Af erck
& Co., Inc., 800 F.2d 1091 (Fed. Cir. 1986). Obviousness does not require
absolute predictability. In re Rinehart, 531 F.2d 1048 (CCPA 1976). Further, the
fact that two different po1yo1efins, polypropylene and polyethylene, both showed
no damage negates an argument that the beneficial result is critical to
polypropylene, the only claimed polyolefin.
6
Appeal2018-007801
Application 12/601,348
In view of the above, we affirm Rejections 1 and 3.
Rejections 2 and 42·
Claims 6, 7, 13, and 14 each depend from Claim 1. Claim 6 further specifies
that the contacting takes place for more than about one minute. Claim 7
further specifies that the contacting is followed by rinsing followed by drying.
Claim 13 further specifies that the contacting takes place between 1 and 20
minutes. Claim 14 further specifies that the contacting takes place at a temperature
between 10 and 90°C for a time ranging from one minute to 20 minutes.
It is the Examiner's position that Ahmed teaches the aforementioned
limitations. Final Act. 8-10 and 16-18.
Appellants argue that Ahmed does not cure the alleged deficiencies of the
combination of Schluessler in view of AAP A ( or vice versa), as evidenced by
Lange. Appeal Br. 19. Thus, Appellants rely upon the same arguments relied
upon for Rejections 1 and 3. Accordingly, for the same reasons that we affirm
Rejections 1 and 3, we affirm Rejections 2 and 4.
DECISION
Each rejection is affirmed.
3 Appellants rely upon the same arguments for both Rejections 2 and 4. See
footnote 2, supra. Hence, our determination with regard to Rejection 2 is
dispositive for Rejection 4.
7
Appeal2018-007801
Application 12/601,348
TIME PERIOD
No time period for taking any subsequent action in connection with this
appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l )(iv).
ORDER
AFFIRMED
8