Ex Parte Rizkalla

Patent Trial and Appeal Board

Nov 9, 2016

13611164 (P.T.A.B. Nov. 9, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/611, 164 09/12/2012
23389 7590 11/14/2016
SCULLY SCOTT MURPHY & PRESSER, PC
400 GARDEN CITY PLAZA
SUITE 300
GARDEN CITY, NY 11530
FIRST NAMED INVENTOR
Nabil Rizkalla
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.
20507A 5910
EXAMINER
MCDONOUGH, JAMES E
ART UNIT PAPER NUMBER
1734
NOTIFICATION DATE DELIVERY MODE
11/14/2016 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):
Docket@SSMP.COM
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte NABIL RIZKALLA
Appeal2014-007349
Application 13/611, 164
Technology Center 1700
Before ADRIENE LEPIANE HANLON, MARK NAGUMO, and
BRIAND. RANGE, Administrative Patent Judges.
HANLON, Administrative Patent Judge.
DECISION ON APPEAL
A. STATEMENT OF THE CASE
The Appellant filed an appeal under 35 U.S.C. § 134 from an Examiner's
decision finally rejecting claims 1 and 5-7 under 35 U.S.C. § 103(a) as
unpatentable over Carman et al. 1 in view of Mehan et al. 2, 3 We have jurisdiction
under 35 U.S.C. § 6(b ).
We AFFIRM.
1 US 6, 123,743 A, issued September 26, 2000 ("Carman").
2 US 2005/0031811 A 1, published February 10, 2005 ("Mehan").
3 Claims 8-15 and 17-19 are also pending but have been withdrawn from
consideration.
Appeal2014-007349
Application 13/611, 164
Independent claim 1 is reproduced below from the Claims Appendix of the
Appeal Brief dated February 4, 2014 ("App. Br."). The limitations at issue are
italicized.
1. A process for producing a porous catalyst support, the process
compnsmg:
a) preparing a precursor for a catalyst support, the precursor
comprising an admixture of an alpha alumina and/or a transition
alumina; a binder; a blowing agent comprising thermoplastic shells
encapsulating a hydrocarbon; and water;
b) molding said precursor into a structure;
c) heating said structure for a sufficient time and at a sufficient
temperature to expand and propel the hydrocarbon in said blowing
agent to form a porous structure, and
d) heating said porous structure for a sufficient time and at a
sufficient temperature to fuse said porous structure to form said
porous catalyst support.
App. Br. 17.
B. DISCUSSION
Carman discloses a bonded sol-gel alumina abrasive product comprising
alumina abrasive particles held together by a glass-ceramic bond material.
Carman, col. 2, 11. 34--36. According to the process disclosed in Carman, glass
powder is mixed with the abrasive in the requisite proportions along with any
temporary binders, plasticizers, and the like. The mixture is then formed into a
bonded abrasive product using conventional equipment. Carman, col. 4, 11. 18-22.
Carman discloses that in some cases, the desired porosity of the abrasive composite
is supplied by sacrificial components, blowing agents, or the like. Carman, col. 4,
11. 48-50.
The Examiner finds, and the Appellant does not dispute, that Carman
teaches a process temperature of about 1000-1100°C. According to the Examiner,
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Application 13/611, 164
"the temperature of the material would be brought to the process temperature, and
before the temperature of the composition reached 1000-1100 C (i.e., process
temperature) the blowing agent would have gassed the composition to form a
porous structure." Ans. 2.4
Although Carman teaches the use of a blowing agent, the Examiner finds
"Carman does not teach the use of the claimed blowing agent." Ans. 3. Turning to
Mehan, the Examiner finds "Mehan teaches that as blowing agents[,]
micro balloons (polymeric shells made of thermoplastic) that encapsulate a heat
activated chemical compound (paragraphs 0017 and 0020) are known, where the
heat activated compound may be a hydrocarbon based liquid such as isopentane or
isobutene (paragraph 0022)." Ans. 3; see also Mehan i-f 24 ("One preferred
encapsulated blowing agent is Expancelâ„¢ polymeric microballoons, available
from Expancel, Inc."). 5 The Examiner concludes that it would have been obvious
to one of ordinary skill in the art to use the microballoons disclosed in Mehan as
the blowing agent in the process of Carman. Ans. 3.
The Appellant argues that "no motivation is provided by the cited references
to one skilled in the art to combine the references as proposed by the Examiner."
App. Br. 6 (emphasis omitted). More specifically, the Appellant argues:
As claimed, to function as blowing agents, the thermoplastic shells
need to expand and propel the hydrocarbon that is encapsulated to
form a porous structure. By necessity, the only manner by which a
gas from inside the encapsulated blowing agent can be propelled to
form a porous structure is by the thermoplastic shells rupturing, i.e.,
4 Examiner's Answer dated April 22, 2014.
5 The Appellant discloses that examples of expandable microspheres include
"Expancel.R TM. micro spheres, commercially available from Expancel,
Stockviksverken, Sweden." Spec. 9, 11. 11-14. On this record, "microspheres" and
"microballoons" have been used interchangeably.
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Application 13/611, 164
bursting open in order for the hydrocarbon to be released. Claim 1
explicitly requires in step ( c) that the precursor containing the
encapsulated blowing agent is heated for a sufficient time and
sufficient temperature to expand and propel the hydrocarbon in the
encapsulated blowing agent to form a porous structure.
App. Br. 7 (emphasis omitted).
The Appellant argues that Mehan "does not teach or suggest that the
polymeric shells are used as blowing agents in the manner claimed, i.e., by
propelling a gas to form a porous structure." App. Br. 7. Rather, the Appellant
argues that Mehan "consistently teaches only expanding the polymeric shells with
explicit indications to prevent their rupture." App. Br. 7 (emphasis omitted). The
Appellant argues that the expanded polymeric shells or microspheres in Mehan
create a gas pocket that forms a non-porous foam. App. Br. 12.
In response, the Examiner explains that "Mehan was not used to show what
is porous or not porous, but was only used to show what was a known blowing
agent at the time of invention." Ans. 6. The Examiner finds, and the Appellant
does not dispute, that "those skilled in the art would understand the conditions
under which the microballoons may rupture, and would understand that under
certain conditions this would be desired." Ans. 5. Clearly, one of ordinary skill in
the art would have understood that rupturing the micro balloons of Mehan to form a
porous structure would have been desirable in Carman. See Carman, col. 4, 11. 48-
50 (disclosing that the desired porosity may be supplied by blowing agents).
On this record, the Appellant has not directed us to any credible evidence
showing that, at the time of the Appellant's invention, one of ordinary skill in the
art would not have known that the microballoons disclosed in Mehan were capable
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Application 13/611, 164
of rupturing under the conditions disclosed in Carman, 6 thereby forming a porous
structure. Moreover, the Appellant has not directed us to any credible evidence
showing that the porous structure formed under the conditions disclosed in Carman
would not have been suitable for its intended use. Thus, the mere fact that Mehan
uses the disclosed microballoons to form a non-porous foam is not sufficient to
show reversible error in the Examiner's conclusion of obviousness.
For the reasons set forth above and reasons provided in the Examiner's
Answer, the§ 103(a) rejection of claims 1 and 5-7 is sustained.
C. DECISION
The decision of the Examiner is 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).
AFFIRMED
6 The process temperature disclosed in Carman (i.e., "1000° C. to 1100° C.")
overlaps the process temperature disclosed in the Appellant's Specification (i.e.,
"higher than 1000 DC"). Carman, col. 3, 11. 2-3; Spec. 12, 11. 7-8; see also Reply
Brief dated June 19, 2014, at 10 ("the instant invention employs calcination
temperatures of above 1000°C, which would, without a doubt, result in rupture of
the blowing agent and propelling of gas therefrom (page 11, bottom, to page 12,
line 11 of the application as filed)").
5