Ex Parte Maziers

Patent Trial and Appeal BoardSep 26, 2012

11596426 (P.T.A.B. Sep. 26, 2012)

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. 11/596,426 07/09/2007 Eric Maziers F-923 (31223.00149) 7222 25264 7590 09/26/2012 FINA TECHNOLOGY INC PO BOX 674412 HOUSTON, TX 77267-4412 EXAMINER WYROZEBSKI LEE, KATARZYNA I ART UNIT PAPER NUMBER 1746 MAIL DATE DELIVERY MODE 09/26/2012 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 ____________________ PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte ERIC MAZIERS ____________________ Appeal 2011-008450 Application 11/596,426 Technology Center 1700 ____________________ Before: FRED E. McKELVEY, RICHARD E. SCHAFER and ROMULO H. DELMENDO, Administrative Patent Judges. McKELVEY, Administrative Patent Judge. DECISION ON APPEAL Appeal 2012-008450 Application 11/596,426 2 Statement of the case TOTAL Petrochemicals Research Fehy (“applicant”), the real party in 1 interest (Brief, page 1), seeks review under 35 U.S.C. § 134(a) of a final rejection 2 dated 3 June 2010. 3 The application has been published as U.S. Patent Application Publication 4 2008/0018019 A1. 5 In support of prior art rejections, the Examiner relies on the following 6 evidence. 7 Peerlkamp U.S. Patent 4,477,400 16 Oct. 1984 Kröhnke et al. “Kröhnke” U.S. Patent 5,883,165 16 Mar. 1999 Higashikubo et al. “Higashikubo” U.S. Patent 6,335,490 B1 1 Jan. 2002 Stadler U.S. Patent 6,444,733 B1 3 Sept. 2002 Faulkner U.S. Patent 6,538,069 B2 25 Mar. 2003 Akiyama et al. “Akiyama” 1 U.S. Patent 6,875,812 B1 5 Apr. 2005 Filed 29 July 2003 Sandieson et al. “Sandieson” U.S. Patent Application Publication 2005/0113486 A1 26 May 2005 Filed 26 Nov. 2003 Akiyama et al. “Akiyama” 2 Japanese Patent Application 2002-220188 filed 29 July 2002 Published 26 Feb. 2004 as JP 2004-59742 Applicant does not contest the prior art status of the evidence relied upon by 8 the Examiner. 9 We have jurisdiction under 35 U.S.C. § 134(a). 10 Appeal 2012-008450 Application 11/596,426 3 The rejections 1 Claims 8-28 are pending and are rejected. 2 The Examiner has maintained the following § 102 and § 103 rejections in 3 the Answer. 4 Claim Rejection 1 Rejection 2 Rejection 3 Rejection 4 Rejection 5 Rejection 6 102 Higashikubo 103 Kröhnke Akiyama 2 103 Kröhnke Akiyama 2 Stadler 103 Kröhnke Akiyama 2 Faulkner 103 Kröhnke Akiyama 2 Peerlkamp 103 Kröhnke Akiyama 2 Stadler Sandieson Answer pages 4-5 Answer pages 5-7 Answer pages 7-8 Answer pages 8-9 Answer pages 9-10 Answer pages 10-12 8 x x 9 x x 10 x 11 x 12 x 13 x 14 x 15 x 16 x 17 x 18 x 19 x 20 x 21 x 22 x 23 x 24 x 25 x 26 x 27 x 28 x 5 Appeal 2012-008450 Application 11/596,426 4 Claim 8 1 Applicant does not argue the separate patentability of any particular claim. 2 Accordingly, we will decide the appeal on the basis of independent Claim 8. See 3 37 CFR § 41.37(c)(1)(vii). 4 Claim 8, reproduced from the Claims Appendix of the Appeal Brief, reads: 5 A method for the preparation of a molded article formed of an olefin 6 polymer comprising: 7 a) providing a molding feedstock comprising a particulate olefin 8 polymer composition; 9 b) providing a densification aid comprising a fluoropolymer; 10 c) introducing said olefin polymer composition and no more than 1 11 wt.% of said densification aid based upon the amount of said olefin 12 polymer into a mold cavity configured to provide a mold of a desired 13 shape; 14 d) heating said olefin polymer composition in the presence of said 15 densification aid in said mold cavity to a temperature sufficient to 16 provide a molten state to form a molded article configured to the shape of 17 said mold cavity; 18 e) thereafter cooling said molten polymer composition within the 19 confines of said mold cavity to a temperature effective to solidify said 20 olefin polymer composition within the confines of said mold cavity; and 21 f) retrieving said solidified molded article from said mold cavity. 22 Appeal 2012-008450 Application 11/596,426 5 Analysis 1 Rejection 1—102 over Higashikubo 2 Independent Claim 8 requires introduction of polyolefin and fluoropolymer 3 “into a mold cavity configured to provide a mold of a desired shape” “to form a 4 molded article configured to the shape of [the] mold”. 5 Applicant argues that Higashikubo describes feeding a polyolefin to an 6 extruder to form a molten polymer, not a molded article. Brief, page 5. 7 Accordingly, applicant reasons that “[n]owhere is a particulate polymer [i.e., 8 polyolefin polymer,] introduced to a mold cavity, as recited . . . [in Claim 8].” Id. 9 Claims undergoing examination are given their broadest reasonable 10 construction consistent with the specification. In re Prater, 415 F.2d 1393, 11 1404-05 (CCPA 1969). See also (1) In re Am. Acad. of Sci. Tech Ctr., 367 F.3d 12 1359, 1363-4 (Fed. Cir. 2004), and (2) Burlington Indus. v. Quigg, 822 F.2d 1581, 13 1583 (Fed. Cir. 1987). 14 Higashikubo describes the use of a combination of a polyolefin and a 15 fluororesin (col. 2:27-28, 34-36 and 38-42 and cols. 9-10, Table 4) in an extrusion 16 process to provide foam on a coaxial cable conductor. 17 Higashikubo Fig. 1 is reproduced below. 18 Appeal 2012-008450 Application 11/596,426 6 1 With respect to Fig. 1, Higashikubo states (col. 5:19-45) [matter in brackets 2 added]: 3 A mixture of a polyolefin resin and a [fluororesin] nucleator, 4 which was fed into the primary extruder 4, is melted in the primary 5 extruder 4. A foaming agent is press injected into the primary 6 extruder 4 via a pump 3 and thoroughly mixed with the melt. Then, 7 the mixture of the polyolefin resin, the nucleator and the foaming 8 agent sufficiently mixed in the primary extruder 4 is transferred to the 9 secondary extruder 5. 10 The extrusion temperature of the secondary extruder 5 is 11 preferably adjusted to a temperature lower than that of the primary 12 extruder 4 and slightly higher than the melt temperature of the 13 polyolefin resin to be used. For example, when a mixture of HDPE 14 and LDPE is used, the temperature and the pressure in the primary 15 extruder 4 are preferably adjusted to 180-210 ºC., 50-150 atm; and the 16 Appeal 2012-008450 Application 11/596,426 7 temperature and the pressure in the secondary extruder 5 are 1 preferably adjusted to 130-140 ºC., 50-150 atm. 2 The conductor 8 to be fed from the conductor supply 1 is 3 preheated in a preliminary heater 2. The mixture in the secondary 4 extruder 5 is extruded from the head 9 of the extruder into the die 6, 5 passed through the axial core part of the die 6 and is press-adhered to 6 the periphery of the conductor 8 thus fed. The mixture foams while 7 adhering to the periphery of the conductor. Then, the foamed mixture 8 is gradually cooled to form a foam insulating layer. 9 According to applicant, the “invention primarily concerns the fabrication of 10 articles by rotomolding.” Specification, page 1:15-16. It also concerns what 11 applicant refers to as “slush molding” which is said to be “closely related to 12 rotomolding.” Specification, page 1:27-29. See also Specification, page 14:17-19. 13 Rotomolding involves inter alia molding an article in a mold cavity and 14 removing the article from the cavity when molding is complete. Specification, 15 page 1:16-22. 16 Applicant apparently asks us to interpret “mold cavity” narrowly to mean a 17 single cavity, such as would be present in a rotomolding apparatus. Applicant’s 18 interpretation of “mold cavity” to mean a single cavity is consistent with the 19 broadest reasonable interpretation of “mold cavity” in light of the disclosure in the 20 Specification which describes rotomolding and slush molding, both of which are 21 single cavity molding processes. Higashikubo, on the other hand, does not 22 describe the use of a single cavity. 23 Appeal 2012-008450 Application 11/596,426 8 The Examiner found that molding is generic to, and includes, extrusion 1 molding described by Higashikubo. Answer, page 12. The Examiner further 2 found that the extruder head (apparently relying on element 6 of Fig. 1) “behaves 3 as a mold cavity.” Answer, page 13. 4 Since applicant argues that its use of a “mold cavity” excludes the use of an 5 extruder head, and the Specification supports applicant’s argument, we agree with 6 applicant that Higashikubo does not describe the use of a “mold cavity configured 7 to provide a mold of a desired shape” or “to form a molded article configured to 8 the shape of said mold cavity” as required by Claim 8. 9 Rejection 1 is reversed. 10 Rejection 2—103 over Kröhnke and Akiyama 2 11 Akiyama 2 is written in Japanese. The Examiner cites and relies on 12 Akiyama 1 (an English-language document) as a translation for Akiyama 2. 13 Applicant does not contest the accuracy of the “translation.” We, like the 14 Examiner, therefore cite to Akiyama 1. 15 The Examiner found that Kröhnke describes molded articles made from 16 olefin polymers in a rotational molding apparatus. Answer, page 6. Applicant 17 does not challenge the correctness of the finding. 18 The Examiner further found that Kröhnke differs from subject matter of 19 Claim 8 in that Kröhnke does not describe the use of a fluoropolymer. Answer, 20 page 6. Applicant does not challenge the correctness of the finding. 21 The Examiner turned to Akiyama to overcome the difference. 22 The Examiner found that Akiyama describes the addition of fluorine 23 polymers to resin compositions comprising a polyolefin. Akiyama, col. 14:32-37 24 Appeal 2012-008450 Application 11/596,426 9 and col. 15:53-60 (“if desired, other additives . . . such as . . . fluorine polymers . . . 1 may be incorporated in a manner such that characteristic features and effects of the 2 . . . [Akiyama] invention are not impaired”). Applicant has not challenged the 3 correctness of the finding. 4 In an Office Action dated 7 July 2009, the Examiner found that “it is known 5 in the art that fluoropolymers have good impact performance and that such 6 fluoropolymers have a higher density than polyethylene and polypropylene and 7 would inherently act as a densification aid.” See page 5 of the Office Action. 8 Applicant has not challenged the finding in the Brief. The finding is repeated in 9 the Answer. See page 7. Applicant did not file a reply brief. Binding precedent 10 holds that an examiner’s statement relating to common practices in the art can be 11 accepted as factual in view of an absence by applicant to challenge the statement. 12 In re Eskild, 387 F.2d 987, 988 (CCPA 1968). There being no challenge in this 13 case, there is no basis to set aside the Examiner’s finding. 14 Applicant’s argument in support of reversal appears on page 8 of the Brief. 15 Applicant argues that it would not have been obvious to incorporate the 16 fluorocarbon (col. 15:59-60) of Akiyama in the composition of Kröhnke. The 17 Examiner held otherwise indicating that one skilled in the art would have had a 18 reason to do so to improve impact properties. Applicant responds that it was 19 incumbent on the Examiner to show that one trying to solve the same problem 20 confronted by the inventor would have selected the element (fluoropolymer in this 21 case) for use in the claimed invention. In re Rouffet, 149 F.3d 1350 (Fed. Cir. 22 1998) is said to support applicant’s argument. We need not resolve whether 23 Rouffet is still viable after KSR Int’l Inc. v. Teleflex Inc., 550 U.S. 398 (2007). 24 Appeal 2012-008450 Application 11/596,426 10 KSR observes that neither the particular motivation nor the avowed purpose of the 1 patentee controls. What matters is the object reach of the claim.” Id. at 419. Since 2 the evidence supports the Examiner’s finding that one skilled in the art would have 3 known to use a fluoropolymer to improve the impact properties of the Kröhnke 4 compositions for use in rotomolding articles, the Examiner’s obviousness holding 5 is supported by the evidence. 6 Rejection 2 is affirmed. 7 Other rejections 8 Applicant’s argument in support of Rejections 3 and 5-6 are based on 9 applicant’s rationale in support of reversal of Rejection 2. Insofar as we can tell, 10 no argument is made with respect to Rejection 4. See Brief, page 9. Accordingly, 11 Rejections 3-6 are affirmed for the reasons given above with respect to 12 Rejection 2. 13 Decision 14 Upon consideration of the appeal, and for the reasons given herein, it is 15 ORDERED that the decision on the Examiner rejecting claims 8-28 16 under § 103 over the prior art is affirmed. 17 ORDERED that the decision on the Examiner rejecting claims 8-9 as 18 anticipated by Higashikubo is reversed. 19 FURTHER ORDERED that no time period for taking any subsequent 20 action in connection with this appeal may be extended under 37 C.F.R. 21 § 1.136(a)(1)(iv). 22 AFFIRMED 23 bar 24