Ex Parte Roberts et al

Patent Trial and Appeal BoardSep 24, 2012

12284510 (P.T.A.B. Sep. 24, 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. 12/284,510 09/23/2008 Lawrence E. Roberts D-44271-01 2424 7590 09/24/2012 Sealed Air Corporation P.O. Box 464 Duncan, SC 29334 EXAMINER SCHIFFMAN, BENJAMIN A ART UNIT PAPER NUMBER 1742 MAIL DATE DELIVERY MODE 09/24/2012 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 ____________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ____________ Ex parte LAWRENCE E. ROBERTS, ANTON L. TIMMONS, and BRADFORD E. WEBSTER ____________ Appeal 2011-004045 Application 12/284,510 Technology Center 1700 ____________ Before BRADLEY R. GARRIS, HUBERT C. LORIN, and JEFFREY T. SMITH, Administrative Patent Judges. SMITH, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-004045 Application 12/284,510 2 STATEMENT OF THE CASE This is an appeal under 35 U.S.C. § 134 from the final rejection of claims 1-13. We have jurisdiction under 35 U.S.C. § 6. Claim 1 is illustrative of the subject matter on appeal and is reproduced below. 1. A die for coextruding a plurality of fluid layers, comprising: a. a primary forming stem; b. one or more distribution plates, each of said plates having a fluid inlet and a fluid outlet, the fluid outlet from each of said plates being in fluid communication with said primary forming stem and structured to deposit a layer of fluid onto said primary forming stem; and c. a microlayer assembly, comprising (1) a microlayer forming stem, and (2) a plurality of microlayer distribution plates, each of said microlayer plates having a fluid inlet and a fluid outlet, the fluid outlet from each of said microlayer plates being in fluid communication with said microlayer forming stem and structured to deposit a microlayer of fluid onto said micro layer forming stem, said microlayer plates being arranged to provide a predetermined order in which the microlayers are deposited onto said microlayer forming stem to form a substantially unified, microlayered fluid mass on said microlayer forming stem, wherein, said micro layer forming stem is in fluid communication with said primary forming stem such that said microlayered fluid mass flows from said microlayer forming stem and onto said primary forming stem. The Examiner maintains and Appellants request review of the following rejection (App. Br. 6): Appeal 2011-004045 Application 12/284,510 3 Claims 1-13 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Kudo (U.S. Pat. No. 4,047,868 issued Sept. 13, 1977) in view of Chin (U.S. Pat. No. 6,951,675 B2 issued Oct. 4, 2005). OPINION Appellants’ claimed invention relates to a coextrusion die containing both a microlayer assembly and one or more distribution plates to produce coextruded films having both microlayers and thicker, conventional film layers. (Spec. 3). Kudo describes a diehead for making coextruded, triple layer parisons, utilizing separate extruders, for blow-molded articles (App. Br. 8; col. 3, lines 34-42). Kudo discloses that the diehead 1 comprises an inner layer diehead portion 5 to form the innermost molten resin tube, an intermediate layer diehead portion 6 to form the intermediate molten resin tube, and an outer layer diehead portion 7 to form the outer molten resin tube. (Col. 3, lines 61-68). Kudo discloses the thickness of the various layers is controlled by adjusting the space between the inner surface of a pressure ring and the outer surface of the sleeve by use of an adjusting screw. (Col. 3, lines 22-30). Kudo discloses the intermediate and outer resin layers are formed around the sleeves 19 and 24 respectively prior to joining the resin flow forming innermost layer. (Col. 3, lines 31-47). As such, the sleeves 19 and 24 function as the forming stem for the intermediate and outer layers. Chin discloses a die for forming a multilayered article which contains a plurality of distribution plates for forming a layered structure by depositing Appeal 2011-004045 Application 12/284,510 4 each layer successively into the same stem (see col. 9, ll. 12-18, fig. 3 and 4). The Examiner found that it would have been obvious to modify the die of Kudo to replace the single layer forming distribution plate with the plurality of distribution plates of Chin. (Ans. 4). The dispositive issue for the rejection of the claimed invention is: Did the Examiner err in determining that both Kudo and Chin would have led one skilled in the art to a die for coextruding a plurality of fluid layers, comprising a primary forming stem and a microlayer forming stem in fluid communication with the primary forming stem, such that the unified, micro layered fluid mass flows from the microlayer forming stem and onto the primary forming stem as required by the subject matter of independent claims 1 and 13? We AFFIRM. Because Appellants do not separately argue dependent claims 2-12, these dependent claims will stand or fall with independent claim 1. Appellants’ principle argument is that there is no reason to combine the teachings of Kudo and Chin to form a die for coextruding a plurality of layers. (App. Br. 8-13). Appellants specifically argue: Given Kudo’s clear disclosure of a multi-plate die (diehead portions 5, 6, and 7) to form a plurality of layers, i.e., a triple-layer molten resin tube having inner, intermediate, and outer layers, there is no apparent reason why one of ordinary skill in the art would have combined any aspect of Chin with Kudo, when Chin is essentially cumulative with Kudo in that it also teaches a multi-plate die. (Id at 13). Appeal 2011-004045 Application 12/284,510 5 We do not find Appellants’ arguments persuasive. A person of ordinary skill in the art would have reasonably expected that the forming structure from conventional stacked plate dies could have been combined to produce a multilayer polymeric article formed on a mandrel. Kudo discloses the use of separate die extruders for producing the inner, intermediate and outer layers. Kudo discloses the intermediate and outer resin layers are formed around the sleeves 19 and 24 respectively prior to joining the resin flow that forms innermost layer. The sleeves 19 and 24 function equivalent to the microlayer forming stem of Chin. That is, the layer of desired thickness is formed around the sleeves 19 and 24 prior to joining the innermost layer which has been formed on mandrel 10. Chin discloses utilizing the same forming stem for receiving the extruded from a plurality of distribution plates for forming a layered structure. A person of ordinary skill in the art would have reasonably expected that the elements from conventional die extruders could have been combined to form a device for producing multilayered articles. A person of ordinary skill in the art would have reasonably expected that the forming stem of Chin would function similarly to the forming sleeves 19 and 24 of Kudo. Accordingly, we are of the opinion that, prima facie, one of ordinary skill in this art routinely following the combined teachings of Kudo and Chin would have reasonably arrived at the claimed die extruder. See, e.g., KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 416 (2007) (“when a patent claims a structure already known in the prior art that is altered by the mere substitution of one element for another known in the field, the combination must do more than yield a predictable result”); see also In re Kahn, 441 F.3d 977, 985-88 (Fed. Cir. 2006); In re O’Farrell, 853 F.2d 894, 903-04 (Fed. Appeal 2011-004045 Application 12/284,510 6 Cir. 1988) (“For obviousness under § 103, all that is required is a reasonable expectation of success.” (citations omitted)). Under these circumstances, we cannot conclude that the Examiner has erred in rejecting claims 1-13 under 35 U.S.C. § 103(a) over Kudo and Chin. ORDER The rejection of claims 1-13 under 35 U.S.C. § 103(a) is affirmed. 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. AFFIRMED bar