Ex Parte McLeod et al

Patent Trials and Appeals BoardMar 15, 2019

14832350 - (D) (P.T.A.B. Mar. 15, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 14/832,350 08/21/2015 Michael McLeod 25264 7590 03/19/2019 FINA TECHNOLOGY INC PO BOX 674412 HOUSTON, TX 77267-4412 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. COS-1349 4005 EXAMINER RABAGO, ROBERTO ART UNIT PAPER NUMBER 1762 NOTIFICATION DATE DELIVERY MODE 03/19/2019 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): tammy.brzozowski@total.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte MICHAEL MCLEOD and DOUGLAS BURMASTER Appeal2018-003772 Application 14/832,350 1 Technology Center 1700 Before JEFFREY T. SMITH, BEVERLY A. FRANKLIN, and GEORGIANNA W. BRADEN, Administrative Patent Judges. SMITH, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE This is an appeal under 35 U.S.C. Â§ 134(a) from the Examiner's Final rejection of claims 1, 4--8, 11-13, 16, and 17.2 We have jurisdiction under 35 U.S.C. Â§ 6(b). We AFFIRM. 1 Appellants identify FINA TECHNOLOGY, INC. as the real party in interest. (See App. Br. 5). 2 The Examiner has indicated that the subject matter of claims 5-7, 14, 16, 20 and 21 have been withdrawn from consideration. (Final Act. 1 ). Appeal2018-003772 Application 14/832,350 The appealed claims relate to a process for producing polyolefin pellets comprising vis-breaking polypropylene in the presence of 3, 6, 9- triethyl-3, 6, 9-trimethyl-1, 4, 7-triperoxonane to obtain vis-broken polypropylene. (Spec. ,r 5). Independent claim 1 is representative of the appealed subject matter and is reproduced below: 1. A process for producing pellets comprising: vis-breaking polypropylene in the presence of 3, 6, 9-triethyl-3, 6, 9-trimethyl-1, 4, 7-triperoxonane to obtain vis-broken polypropylene, wherein 3, 6, 9-triethyl-3, 6, 9-trimethyl-1, 4, 7- triperoxonane is present in the vis-broken polypropylene in an amount ranging from greater than O ppm to at most 400 ppm (by weight); and pelletizing the vis-broken polypropylene to obtain pellets wherein a ratio of a melt flow rate (MI2) of the pellets to a melt flow rate (MI2) of the polypropylene prior to the vis-breaking is greater than 1: 1 and at most 2: 1 and wherein the melt flow rates (MI2) are determined in accordance with ASTM D-1238 at I90Â°C and a load of2.I6kg. App. Br. 17, Claims App. Appellants (see App. Br., generally) request review of the following rejections by the Examiner: Claims 11, 12, 16, and 17 rejected under 35 U.S.C. Â§ 112(b) as indefinite. Claims 1, 4--8, and 13 rejected under 35 USC Â§I03(a) over Zummallen (US 2010/0324225 Al; pub. Dec. 23, 2010) and Albe (US 6,610,792 B2; iss. Aug. 26, 2003, hereinafter "Albe"). 3 3 The Examiner cites Albe in the rejection as evidence that Trigonox 301 is a commercial product comprising the peroxide in ISOP ARM (isoparaffin) 2 Appeal2018-003772 Application 14/832,350 Claims 11, 12, 16 and 17 rejected under 35 USC Â§ 103 as obvious over Zummallen, Tohi et al. (US 2008/0220193 Al; pub. Sept. 11, 2008, hereinafter "Tohi") and lsaki et al. (US 2010/0295205 Al; pub. Nov. 25, 2010, hereinafter "Isaki"). The complete statement of the rejections on appeal appears in the Final Office Action. (Final Act. 2-7). OPINION Rejections 35 USC Â§ 112(b) After consideration of Appellants' arguments and the Examiner's position in the Final Office Action and Answer, we reverse. "[W]e apply the approach for assessing indefiniteness approved by the Federal Circuit in Packard, i.e., '[a] claim is indefinite when it contains words or phrases whose meaning is unclear."' Ex parte McAward, No. 2015-006416, 2017 WL 3669566, at *5 (PTAB Aug. 25, 2017) (precedential) (quoting In re Packard, 751 F.3d 1307, 1310, 1314 (Fed. Cir. 2014)). The language in 35 U.S.C. Â§ 112, second paragraph, "of 'particular[ity ]' and 'distinct[ ness ]' indicates[] claims are required to be cast in clear-as opposed to ambiguous, vague, indefinite-terms." Packard, 7 51 F .3d at 1313. The Examiner bears the initial burden of establishing that the original application disclosure as a whole would not have reasonably conveyed to those skilled in the art that the inventors had possession of the claimed subject matter at the time the instant application was filed. Ariad Pharm., Inc. v. Eli Lilly and Co., 598 F.3d 1336, 1351 (Fed. Cir. 2010) (en bane); In re Alton, 76 F.3d 1168, 1172, 1175-76 (Fed. Cir. 1996) (citing In diluent. (Final Act. 4). Appellants do not address the reason the Examiner cited Albe. (See Appeal and Reply Briefs generally). 3 Appeal2018-003772 Application 14/832,350 re Wertheim, 541 F.2d 257, 262---64 (CCPA 1976)); In re Wright, 866 F.2d 422, 425 (Fed. Cir. 1989). The Examiner determined claims 11, 12, 16 and 17 require pellets wherein 90-100% are of "uniform" size. The Examiner determined "uniform" is a term of degree and neither the claims nor the Specification provides sufficient information to unambiguously determine the intended scope or range of what constitutes a size being uniform and therefore the ordinary skilled worker could not determine the required degree of uniformity for sorting the pellets into the specific numerical percentages required in the claims. (Final Act. 2). The Examiner also determined claims 11, 12, 16 and 17 require pellets wherein 90-100% are "spherical." The Examiner determined, from the depictions in Figure 1 A, Appellant is not using the standard definition of the term "spherical" to describe the claimed pellets. According to the Examiner, the issue is the claimed quantitative requirement for determining the specific numerical percentage of spherical pellets required by the claims. (Final Act. 3). Appellants contend a person skilled in the art, based on the definition provided in the Webster's Unabridged Dictionary (2001) page 1836, would have been capable of determining the scope of the term "uniform." Appellants also contend a person skilled in the art, based on the definition provided in the Webster's Unabridged Dictionary and the Tohi and Isaka prior art references cited by the Examiner, would have been capable of determining the scope of the term "spherical." (App. Br. 11). The Examiner has not refuted Appellants' position that a person of ordinary skill in the art would have been capable of determining the scope of the terms "uniform" and "spherical." Nor has the Examiner identified the 4 Appeal2018-003772 Application 14/832,350 portions of the Specification that indicates Appellants are utilizing a definition that is contrary to the plain and ordinary meaning of the terms uniform and spherical. Based on the evidence of record, we agree with Appellants and we reverse. Rejection 35 USC Â§ 103(a) 4 After consideration of Appellants' arguments and the Examiner's position in the Final Office Action and Answer, we affirm the obviousness determinations for the reasons provided by the Examiner. We add the following for emphasis. The Examiner found Zummallen discloses controlled rheology polypropylene prepared by contacting polypropylene with a cyclic peroxide under scission conditions. (Final Act. 2-3). Zummallen discloses scission conditions result in the MFR (melt flow ratio) of the polypropylene being increased by a factor of at least 2. (Zummallen Jr 20). The Examiner found Zummallen discloses treating the polypropylene with at least 50 ppm of 3,6,9-triethyl-3,6,9-trimethyl- 1,4,7-triperoxonane which results in pellets have MFR increased by at least a factor of 2. (Zummallen, Table 1 ). The Examiner found 3,6,9-triethyl-3,6,9-trimethyl-1,4,7-triperoxonane, commercially available as Trigonox 301. (Zummallen Jr 28). The Examiner found Zummallen Example C-7 exemplifies using 410 ppm of Trigonox 301 resulting in a MFR ratio of 5 .1. The Examiner found Zummallen exhibits that increasing the amount of peroxide increases the ratio. 4 Appellants present arguments principally directed to the first rejection and specifically independent claim 1. (App. Br. 12-15). Appellants do not present substantive arguments addressing the rejection of claims 11, 12, 16, and 17. (App. Br.15). We will address the claims as argued by Appellants. 5 Appeal2018-003772 Application 14/832,350 Appellants argue that the Examiner's rejection is improper because Zummallen does not teach adjusting peroxide levels or that peroxide levels are a result-effective variable. (App. Br. 12). Appellants contend Zummallen's Table 3 provides no guidance to adjust peroxide levels to achieve a particular MFR because other conditions such as backpressure on extrusion and melt temperature could have effect on the results as evidenced by examples A-7 and B-7. (App. Br. 13). Appellants argue the Examiner has failed to establish that Zummallen teaches varying the amount of peroxide to an amount of less than 400 ppm would necessarily result in a visbreak ratio of between 1: 1 and 2: 1. 5 (App. Br. 13-14). Appellants' arguments lack persuasive merit. Zummallen teaches processes utilizing least 50 ppm to preferably 3000 ppm peroxide occurring under chain scission conditions (peroxide reacts to cut the polymer chain) that results in MFR increase of at least 2 (i.e., resulting in shorter chains having a higher MFR). (Zummallen ,r,r 20 and 31 ). Appellants appear to rely on obtaining the visbreak ratio of between 1: 1 and 2: 1 - achieved by varying the amount of peroxide to an amount of between greater than O ppm to at most 400 ppm ( or 150 ppm and 250 ppm for claim 13) - would necessarily result in a patently distinct invention from Zummallen. Zummallen discloses preparing controlled rheology polypropylene prepared by contacting polypropylene with a 3,6,9-triethyl-3,6,9-trimethyl- 1,4,7- triperoxonane under scission conditions which are the same as those disclosed in the instant Specification as required for achieving the claimed result. (See Zummallen ,r,r 28, 31; see Spec. ,r 15). Furthermore, contrary to 5 Addressing the patentability of claim 13, Appellants rely upon this same theory. (App. Br. 14). 6 Appeal2018-003772 Application 14/832,350 Appellants' arguments, Zummallen discloses visbreaking the non-CR- polypropylene to achieve a specific MFR. Zummallen specifically states: "The low-MFR, non-CR-polypropylene may be visbroken to achieve a specific MFR. However, preferably the vis breaking ratio (i.e., MFR after vis breaking to MFR before visbreaking) is limited to 50 or less, preferably to 40 or less and more preferably to 30 or less." (Zummallen ,r 33). Consequently, we find that a person of ordinary skill in the art following the teachings of Zummallen would have had sufficient skill to perform the disclosed process resulting in vis-broken polypropylene pellets wherein the ratio of a melt flow rate of the pellets to a melt flow rate of the polypropylene prior to the vis-breaking is greater than 1: 1 and at most 2: 1 as required by the claims. Appellants have failed to direct us to evidence that establishes a patentable distinction that is achieved over the teachings of Zummallen that are reasonably commensurate with the scope of protection sought by the claims on appeal. Cf In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997); In re Klosak, 455 F.2d 1077, 1080 (CCPA 1972) ("[T]he burden of showing unexpected results rests on he who asserts them."); see also In re Harris, 409 F.3d 1339, 1344 (Fed. Cir. 2005) ("Even assuming that the results were unexpected, Harris needed to show results covering the scope of the claimed range. Alternatively Harris needed to narrow the claims."); In re Greenfield, 571 F.2d 1185, 1189 (CCPA 1978) ("Establishing that one (or a small number of) species gives unexpected results is inadequate proof, for 'it is the view of this court that objective evidence of non-obviousness must be commensurate in scope with the claims which the evidence is offered to support."') (quoting In re Tiffin, 448 F.2d 791,792 (CCPA 1971)); In re 7 Appeal2018-003772 Application 14/832,350 Woodruff, 919 F.2d 1575, 1578 (Fed. Cir. 1990) (indicating that in cases in which the difference between the claimed invention and the prior art is some range or other variable within the claims, the applicant must show that the particular range is critical, generally by showing that the claimed range achieves unexpected results relative to the prior art range). For the foregoing reasons and those presented by the Examiner, we sustain the Examiner's obviousness determinations. DECISION The Examiner's rejections of claims 11, 12, 16 and 17 under 35 U.S.C. Â§ 112(b) are reversed. The Examiner's rejections of claims 1, 4--8, 11-13, 16, and 17 under 35 U.S.C. Â§103(a) are affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a)(l )(iv). AFFIRMED 8