Ex Parte Restuccia et al

Patent Trials and Appeals BoardMar 20, 2019

13862874 - (D) (P.T.A.B. Mar. 20, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/862,874 04/15/2013 8015 7590 03/22/2019 CYTEC INDUSTRIES INC. 1937 WEST MAIN STREET STAMFORD, CT 06902 FIRST NAMED INVENTOR Carmelo Luca Restuccia 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. 11014S-US-NP 6650 EXAMINER HANDVILLE, BRIAN ART UNIT PAPER NUMBER 1783 NOTIFICATION DATE DELIVERY MODE 03/22/2019 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): StamfordPatent@solvay.com Cheryle.Telesco@solvay.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte CARMELO LUCA RESTUCCIA, EMILIANO FRULLONI, and FIORENZO LENZI Appeal2018-001496 Application 13/862,874 Technology Center 1700 Before DONNA M. PRAISS, MICHELLE N. ANKENBRAND, and CHRISTOPHER C. KENNEDY, Administrative Patent Judges. PRAISS, Administrative Patent Judge. DECISION ON APPEAL 1 Appellant2 seeks our review under 35 U.S.C. Â§ 134(a) of the Examiner's decision rejecting claims 28-33, 35-38, and 40-44. 3 We have jurisdiction over the appeal under 35 U.S.C. Â§ 6(b). We REVERSE. 1 In this decision we reference the Specification filed Apr. 15, 2013 ("Spec."), the Final Office Action dated Mar. 1, 2017 ("Final Act."), the Advisory Action dated June 15, 2017 ("Advisory Act."), the Appeal Brief filed July 31, 2017 ("Appeal Br."), the Examiner's Answer dated Sept. 27, 2017 ("Ans."), and the Reply Brief filed Nov. 27, 2017 ("Reply Br."). 2 Cytec Technology Corp. is the Applicant/ Appellant and also identified as the real party in interest. Appeal Br. 2. 3 Claims 34 and 39 have been cancelled. Advisory Act. 2; cf Ans. 2, 6-7. Appeal2018-001496 Application 13/862,874 STATEMENT OF THE CASE According to the Specification, composites with increased electrical conductivity are required for aircraft primary structures to provide lightning strike protection, potential discharge, electrical grounding, and electromagnetic shielding. Spec. 1. The electrical conductivity of resins and composites can be improved by incorporating conductive particles or polymers in the resin matrix. Id. Claim 28 is illustrative of the subject matter on appeal and is copied below from the Claims Appendix to the Appeal Brief ( disputed limitations are italicized): 28. A curable composite material comprising: at least one structural layer of reinforcing fibres impregnated with a curable resin matrix; and a nonwoven veil adjacent to said structural layer, said veil comprising conductive polymeric fibres arranged randomly, wherein the conductive polymeric fibres are formed from a blend of a conductive material and a polymeric material, and the polymeric material comprises one or more polymers that are initially in a solid phase and substantially insoluble in the curable resin matrix prior to curing of the curable resin matrix, but is able to undergo at least partial phase transition to a fluid phase upon curing of the resin matrix. Appeal Br. 13 (Claims Appendix). 4 Independent claims 29 and 30 are similar to claim 28, but are directed to "[a] structural preform adapted for resin infusion." Instead of claim 28 's "at least one structural layer ... with a curable resin matrix," claim 29 recites "multiple layers of reinforcing fibres that are not impregnated with resin" and claim 30 recites "reinforcing fibres in 4 We use the terms "fibres" and "fibers" interchangeably in this Decision. 2 Appeal2018-001496 Application 13/862,874 physical association with conductive polymeric fibres." Claims Appendix (not paginated). Instead of claim 28's "a nonwoven veil ... comprising conductive polymeric fibres arranged randomly," claim 29 recites "at least one nonwoven veil comprised of conductive polymeric fibres arranged randomly." Id. Claim 30 does not recite a "nonwoven veil." Id. THE REJECTION5 Claims 28-33, 35-38, and 40-44 stand rejected under 35 U.S.C. Â§ I03(a) as being unpatentable over Cawse6 in view of Simmons. 7 ANALYSIS We need to address only the disputed limitations in claim 28 because the Examiner's rejection of each of independent claims 28-30 is based on the same findings, specifically, that the prior art combination discloses the recited "conductive polymeric fibres ... formed from a blend of a conductive material and a polymeric material." Final Act. 3-7; Ans. 2---6. The Examiner finds (Final Act. 5) that Cawse discloses a composite material having multiple structural layers of reinforcing fibers ( 11) and an interleaf layer (12) comprising conducting particles (13) adjacent to a first structural layer as shown in annotated Figure 2: 5 Appellant overcame the rejection of claims 34 and 39 under 35 U.S.C. Â§ 112, first paragraph, for failing to comply with the written description requirement by cancelling claims 34 and 39. Advisory Act. 2. 6 US 2008/0295955 Al, pub. Dec. 4, 2008. 7 US 2011/0163275 Al, pub. July 7, 2011. 3 Appeal2018-001496 Application 13/862,874 -. - - - - - - - - - - - -Â·- - - - - - - - - - ... ,............ ~ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ~ ........ . 12 FIG. 2 Figure 2 is a cross-sectional view of Cawse' s laminate wherein 100 Âµm silver-coated solid glass spheres form conductive bridges across wider resin interleaf layers. Cawse ,r 27. The Examiner finds that Cawse teaches conductive particles 13 may include a non-electrically conductive core including a polymer, such as PMMA (thermoplastic), coated with a metal coating and that this "corresponds to an electrically conductive composite particle comprising a blend of a conductive material and a polymeric material" as each of the independent claims require. Final Act. 5---6 ( citing Cawse ,r,r 49-59, 152, 174). The Examiner further finds that Simmons discloses a composite in cured and uncured form in which a thermoplastic polymer resin dissolves in thermoset polymer resin and phase separates upon cure, along with a conductive material, and results in lower surface electrical resistivity than a 4 Appeal2018-001496 Application 13/862,874 composition that contains no such thermoplastic polymer. Id. at 6-7 (citing Simmons ,r,r 19, 60). The Examiner additionally finds that Simmons discloses (1) a conductive additive may include fibers that include a core material partially or fully coated with a metallic coating and (2) fibers in the composite material may be nonwoven multiaxial textile tapes or tows such as the nonwoven veil the claims require. Id. at 7 ( citing Simmons ,r,r 31, 32, 80, 91-95). The Examiner determines that it would have been obvious to one skilled in the art to modify Cawse's interleaf layer with Simmons' polymeric resin blend and composite fiber particle to reduce surface electrical resistivity or improve electrical conductance within the prepreg. Id. at 7. The Examiner also determines that a skilled artisan would have reasonably expected that the thermoplastic polymer core of Cawse' s composite particle partially coated with a metallic coating would melt during the curing process and subsequently infuse into the thermoset matrix as Simmons teaches. Id. at 7-8. Appellant contends that Simmons' thermoplastic polymer that dissolves and phase separates in the resin material is a component separate and different from the carbon and non-carbon conductive additives. Id. at 7. According to Appellant, Simmons does not teach a conductive material that includes a polymer fiber partially coated with a metallic material. Id. at 8. Thus, it is Appellant's position that the cited art does not disclose the claimed "conductive polymeric fibres" that claims 28-30 require, nor the nonwoven veil with conductive polymeric fibers that claims 28 and 29 require. Id. at 8-9. Appellant additionally asserts that the Examiner also has not shown that the cited references disclose conductive polymeric fibers that 5 Appeal2018-001496 Application 13/862,874 are formed from a blend of a conductive material and a soluble polymeric material as the claims require because neither Cawse nor Simmons discloses conductive polymeric fibers. Id. at 8-9. The Examiner agrees that Cawse does not explicitly teach or suggest the conductive polymeric fibers as claimed, but finds that Simmons teaches a resin material comprising at least one thermoset resin, carbon conductive additive materials that have a fiber shape and include a polymeric core coated with a metallic material, and at least one thermoplastic polymer resin (analogous to the resin interlayer of Cawse). Id. at 8-9. Regarding the recited "blend" of a conductive material and a polymeric material, the Examiner determines that the broadest reasonable interpretation is "a combination of two different materials integrated into a whole." Ans. 10. The Examiner further notes that the Specification does not require a homogenous blend, but rather describes a homogenous physical blend of the conductive material and polymer as preferred. Id. ( citing Spec. 9). The Examiner finds that the term, therefore, includes heterogeneous blends, such as a bowl into which two different color M&M candies are simply poured, and encompasses a polymeric core that is at least partially coated with a metallic coating. Id. at 10-11. The Examiner finds that Simmons's disclosure of a metallic coating corresponds to the conductive material, the polymer core corresponds to the polymeric material, and the combination corresponds to the claimed blend. Id. at 15 ( citing Simmons ,r,r 32, 91-95). In the Reply Brief, Appellant contends that the Examiner erred in interpreting the claim term "blend" because it is unsupported and not consistent with the Specification. Reply Br. 2. Appellant directs us to pages 6 Appeal2018-001496 Application 13/862,874 9-11 of the Specification for the discussion of dispersing the conductive material into the polymeric material using conventional techniques such as mechanical mixing, sonication, high-shear mixing, rotor stator mixing, and sol-gel techniques. Id. at 3. Appellant also directs us to the Oxford Dictionary for the ordinary meaning of the term "blend" as a mixture of different things. Id. Appellant agrees that the term does not require a homogeneous mixture, as the Specification describes homogeneous as a preferred condition that is not claimed. Id. at 4. Appellant argues persuasively that the Examiner's claim construction constitutes reversible error for the reasons stated in the Appeal Brief and the Reply Brief. We add the following for emphasis. The Examiner's construction (Ans. 15) of "blend" as simply a "combination" of materials is not a reasonable interpretation of the term because it is inconsistent with both the Specification and the ordinary meaning of "blend." On the other hand, dictionary definitions 8 support Appellant's assertion that the term "blend" requires a mixture or dispersion. Appellant's interpretation also is consistent with the Specification's description of dispersing the conductive component into a polymeric material (Spec. 9-11 ). The Examiner is correct that the Specification does not require the blend to be homogeneous because a homogenous physical blend of conductive material and polymer is described in the Specification as a preferred embodiment. Ans. 1 O; Spec. 9. Although the term "blend" does not exclude heterogeneous blends, the Examiner's analogy to two different 8 Appellant paraphrases a dictionary definition of blend as "a mixture of different things." Reply Br. 3. The term is defined at www.dictionary.com as "to mix smoothly and inseparably together." 7 Appeal2018-001496 Application 13/862,874 colored M&M candies being poured into a bowl as being a heterogeneous blend that the term encompasses ( Ans. 10-11) does not explain how the colored candy sugar coating is a "blend" with the candies' chocolate cores. In addition, the Specification distinguishes metal-coated products, such as core-shell structures, as a starting conductive component for forming a blend, rather than constituting a blend. Spec. 10. Accordingly, the Examiner's construction is not the broadest reasonable interpretation of the independent claims, which each recite "a blend of a conductive material and a polymeric material." The Examiner relies on Simmons's disclosure of a metal coated polymer particle as teaching a blend of conductive material (the metallic coating) and a polymeric material (the polymeric core) that the independent claims require. Ans. 9 (citing Simmons ,r,r 32, 91-94). Because Simmons's metal coated particles do not constitute a mixture or dispersion of metal and polymer components, they also do not constitute a "blend of a conductive material and a polymeric material" as recited in claims 28-30. Therefore, the record does not support the Examiner's finding that Simmons discloses the "blend" the claims require. Appellant, therefore, has persuaded us that the Examiner reversibly erred in finding that the combination of Cawse and Simmons teaches or suggests the "conductive polymeric fibres ... formed from a blend of a conductive material and a polymeric material" recited in each of independent claims 28-30. Because we determine the record does not support the facts and reasons on which the Examiner relies, we reverse the rejection of claims 28-33, 35-38, and 40-44 under 35 U.S.C. Â§ 103(a). 8 Appeal2018-001496 Application 13/862,874 DECISION The Examiner's decision is reversed. ORDER REVERSED 9