Ex Parte Topolkaraev et al

Patent Trial and Appeal BoardOct 4, 2018

13370845 (P.T.A.B. Oct. 4, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/370,845 02/10/2012 22827 7590 10/09/2018 DORITY & MANNING, P.A. POST OFFICE BOX 1449 GREENVILLE, SC 29602-1449 UNITED ST A TES OF AMERICA FIRST NAMED INVENTOR Vasily A. Topolkaraev 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. KCX-1652-CIP (64639732USO CONFIRMATION NO. 7490 EXAMINER LOPEZ, RICARDO E. ART UNIT PAPER NUMBER 1786 NOTIFICATION DATE DELIVERY MODE 10/09/2018 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): USDOCKETING@DORITY-MANNING.COM PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte VASILY A. TOPOLKARAEV, RYAN J. McENEANY, THOMAS A. EBY, and TYLER J. LARK 1 Appeal2017-010657 Application 13/370,845 Technology Center 1700 Before MARK NAGUMO, WESLEY B. DERRICK, and CHRISTOPHER C. KENNEDY, Administrative Patent Judges. KENNEDY, Administrative Patent Judge. DECISION ON APPEAL This is an appeal under 35 U.S.C. Â§ 134(a) from the Examiner's decision rejecting claims 17, 18, 20, 21, and 23-31. We have jurisdiction under 35 U.S.C. Â§ 6(b). We AFFIRM. BACKGROUND The subject matter on appeal relates to multi-component fibers that contain a core component surrounded by a sheath component, and to associated nonwoven webs and absorbent articles. E.g., Spec. 2:5-13; 1 According to the Appellants, the real party in interest is Kimberly-Clark Worldwide, Inc. App. Br. 1. Appeal2017-010657 Application 13/370,845 Claims 17, 26, 27. Claim 17 is reproduced below from page 12 (Claims Appendix) of the Appeal Brief: 17. A multi-component fiber that contains a core component surrounded by a sheath component, wherein polylactic acid constitutes about 50 wt.% or more of the polymer content of the core component and a polymeric toughening additive constitutes about 50 wt.% or more of the polymer content of the sheath component, wherein the polylactic acid in the core component and the polymeric toughening additive in the sheath component are derived from a single thermoplastic composition in which the polylactic acid is blended with the polymeric toughening additive, and wherein the core component further includes a polyepoxide modifier and the polymeric toughening additive. REJECTIONS ON APPEAL The claims stand rejected under 35 U.S.C. Â§ I03(a) as follows: 1. Claims 17, 18, 21, 23-25, 30, and 31 over Li (US 2009/0324911 Al, published Dec. 31, 2009); 2. Claim 20 over Li as evidenced by Technical Data Sheet of PLA Ingeo Biopolymer 6201D by Nature Works LLC2; 3. Claim 29 over Li and Kotlar (US 5,561,196, issued Oct. 1, 1996); 4. Claims 26-28 over Li and Chakravarty (US 2008/0287026 Al, published Nov. 20, 2008). 2 The Examiner provides no date for this reference. Additionally, the hyperlink provided by the Examiner appears to no longer function. We observe, however, that "PLA 6201D (NatureworksÂ®)" is mentioned by the Specification, see Spec. 2:26-28, and by the prior art, see Li ,r 105, and the Appellants do not contest the Examiner's reliance on the data sheet as prior art. 2 Appeal2017-010657 Application 13/370,845 ANALYSIS The Appellants argue the claims as a group. See App. Br. 4--8. We select claim 1 as representative, and the remaining claims will stand or fall with claim 1. See 37 C.F.R. Â§ 4I.37(c)(l)(iv). After review of the cited evidence in the appeal record and the opposing positions of the Appellants and the Examiner, we determine that the Appellants have not identified reversible error in the Examiner's rejections. See In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) ("[I]t has long been the Board's practice to require an applicant to identify the alleged error in the examiner's rejections," citing Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential)). Accordingly, we affirm the rejections for reasons set forth below, in the Final Action, and in the Examiner's Answer. See generally Final Act. 2-11; Ans. 3-13. The Examiner finds that Li teaches a multi-component article comprising a first component of poly lactic acid (PLA) and a second component comprising a polyolefin and a reactive modifier. Ans. 3--4. The Examiner finds that Li's polyolefin corresponds to the claimed polymeric toughening agent. Id. The Examiner finds that Li teaches a configuration in which a two-component fiber may be configured as a core and a sheath, and that either the core or the sheath ( or both) may include PLA, a polyolefin, and/or a reactive modifier. Id. The Examiner relies on Li's disclosure that "at least one component" of the two-component fiber comprises PLA, and that "at least one component" comprises a polyolefin and a reactive modifier. Id. The Examiner finds that Li teaches a wide range of weight percentages of PLA and polyolefin (1-99 wt% by total weight of the multi- component article), and that "it would have been obvious ... to optimize the 3 Appeal2017-010657 Application 13/370,845 wt% of PLA and toughening agent .... to optimize the physical and/or mechanical properties of the fibers." Id. at 4--5. With respect to the inclusion of a polyepoxide modifier in the core component, the Examiner finds that Li teaches the use of a reactive modifier (which may comprise "an epoxy-functionalized polyolefin," see Li ,r 55) in "at least one component" of the fiber, suggesting that it may be added to the core, the sheath, or both. Ans. 5. With respect to the requirement that the polylactic acid in the core component and the polymeric toughening additive in the sheath component "are derived from a single thermoplastic composition in which the polylactic acid is blended with the polymeric toughening additive," the Examiner relies on Li's disclosure of adding a reactive modifier "to a molten polyolefin and PLA ( e.g., PP/PLA blend or PE/PLA blend) ... to stabilize the interface between the polyolefin and PLA." Id.; Li ,r 54. In view of those and other, uncontested findings, the Examiner concludes that the subject matter of claim 1 would have been obvious to a person of ordinary skill in the art. The Appellants first argue that "nowhere does Li teach or suggest a core component containing polylactic acid in addition to a polyolefin and a reactive modifier." App. Br. 5. They argue that paragraph 17, cited by the Examiner, "impl[ies] that if the polylactic acid is in the core component then the sheath component would contain the polyolefin and the reactive modifier and vice versa." Id. at 6. They also argue that Li's disclosure (Li ,r 74) of coextruding the core and sheath component means "there would not be any opportunity for the polyolefin and the reactive modifier of the second component to be mixed with the poly lactic acid of the first component." Id. 4 Appeal2017-010657 Application 13/370,845 Those arguments are not persuasive. Li teaches a two-component fiber in which one component is a core and another component is a sheath. E.g., Li Fig. 1, ,r,r 11, 7 6. Li teaches that "at least one component comprises a biodegradable polymer." Id. ,r 17 ( emphasis added). Li also teaches that "at least one component comprises a polyolefin and a reactive modifier." Id. ( emphasis added). Additionally, Li discloses that, in some embodiments, "the multi-component articles comprise at least one component comprising a reactive modifier," which itself may "compris[e] an epoxy-functionalized polyolefin," and Li expressly discloses the addition of reactive modifiers "to a molten polyolefin and PLA (e.g., PP/PLA blend or PE/PLA blend)." Id. ,r,r 54--55. That disclosure does not limit the inclusion of a reactive modifier to a component that includes only a polyolefin. Given the disclosure of embodiments having only two components, i.e., a core and a sheath, the language "at least one component" that appears in, e.g., ,r,r 17 and 54, reasonably suggests that the core, the sheath, or both the core and the sheath may comprise one or more of a biodegradable polymer ( e.g., PLA), a polyolefin, and a reactive modifier. Contrary to the Appellants' argument, see App. Br. 6, we discern no disclosure in ,r 17 that would limit inclusion of a reactive modifier to a component containing only a polyolefin, particularly in view of the disclosure in ,r 54 that "at least one component compris[ es] a reactive modifier." The Appellants have not directed our attention to any credible disclosure that limits Li in the way that the Appellants propose. Moreover, ,r 74 expressly discloses "coextrusion of at least one component comprising PLA and at least one component comprising a PORM [i.e., "a component comprising a polyolefin and a reactive modifier," see ,r 70]," where "the components ... are melted, fed to a spinneret orifice, 5 Appeal2017-010657 Application 13/370,845 and coextruded into fibers." Paragraph 70 specifically discloses an embodiment in which "one component compris[ es] a blend of PLA and a polyolefin and a second component compris[ es] a polyolefin and a reactive modifier." In combination with ,r 54, discussed above, Li at least suggests that a reactive modifier could be included in both components, which would yield a component with a blend of PLA, polyolefin, and reactive modifier in the first component. Paragraph 54 also discloses adding a reactive modifier "to a molten polyolefin and PLA ( e.g., PP/PLA blend or PE/PLA blend)," expressly suggesting a composition that includes a reactive modifier, a polyolefin, and PLA. That disclosure and the broader disclosures of Li discussed above reasonably suggest a core component that includes PLA, a polyolefin, and a reactive modifier. The Appellants do not adequately explain why Li's disclosure of coextrusion, see App. Br. 6, indicates otherwise. In the Reply Brief, the Appellants argue for the first time that interpreting Li as set forth above "would destroy the intended purpose of Li" which , Appellants assert, is "to provide" a composition as set forth in claim 1 of Li, which composition, the Appellants emphasize, does not require a biodegradable polymer, a polyolefin, and a reactive modifier in a single core component. Reply Br. 3. That argument is untimely because it was not presented in the Appeal Brief, and the Appellants have not attempted to show good cause for presenting it for the first time in the Reply Brief. See 37 C.F.R. Â§ 41.4I(b)(2). Even if the argument were timely, however, it would be unpersuasive because Li's claim 1 is a single embodiment of Li and does not constitute "the intended purpose of Li." See Reply Br. 3. As set forth above, Li's 6 Appeal2017-010657 Application 13/370,845 broader disclosures teach or suggest the subject matter of the Appellants' claim 17. Additionally, even were we to agree with the Appellants that claim 1 is the "intended purpose" of Li, Li's claim 1 uses the word "comprising" to describe the ingredients of its first and second components. Thus, Li's claim 1 permits the inclusion of other ingredients in the first component, and, as described above, specifically suggests those ingredients could be a polyolefin and a reactive modifier. Thus, the Examiner's interpretation of Li would not "destroy the intended purpose of Li," even if we were to find that the Appellants accurately identified the intended purpose of Li. On this record, we are not persuaded by the Appellants' argument that "nowhere does Li teach or suggest a core component containing polylactic acid in addition to a polyolefin and a reactive modifier." See App. Br. 5. The Appellants also argue that "Li fails to teach or suggest that the core component and the sheath component are derived from a single thermoplastic composition." Id. at 7. However, as discussed above, ,r 54 expressly discloses addition of a "reactive modifier ... to a molten polyolefin and PLA ( e.g., PP/PLA blend or PE/PLA blend)." Even were we to agree with the Appellants that Li's disclosure in ,r 54 "simply provides a definition for a 'reactive modifier,"' see Reply Br. 5, we nevertheless agree with the Examiner that the "definition" expressly suggests "add[ing]" a reactive polymer "to a molten polyolefin and PLA ( e.g., PP/PLA blend or PE/PLA blend)," Li ,r 54, i.e., a single blend that includes a polyolefin and PLA. In view of that disclosure and our findings above concerning components that include a reactive modifier, a polyolefin, and PLA, a person of ordinary skill in the art would have reasonably inferred that either or both 7 Appeal2017-010657 Application 13/370,845 components could be "derived from" the blend, and that either or both components could further include a reactive modifier. The Appellants repeat their argument concerning co-extrusion of Li's components. App. Br. 7-8; Reply Br. 5. Again, however, it is unclear how a disclosure of co-extrusion indicates reversible error in the rejection. It appears that Li's separate components could be co-extruded even if they are each "derived from a single thermoplastic composition," as claimed, such as the blend described by Li ,r 54, and ,r 7 4 expressly discloses "coextrusion of at least one component comprising PLA and at least one component comprising a PORM [i.e., "a component comprising a polyolefin and a reactive modifier," see ,r 70]," where "the components ... are melted, fed to a spinneret orifice, and coextruded into fibers." On this record, we are not persuaded of reversible error in the Examiner's rejection of claim 17. CONCLUSION We AFFIRM the Examiner's rejections of claims 17, 18, 20, 21, and 23-31. 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). AFFIRMED 8