Ex Parte Vogel et alDownload PDFPatent Trial and Appeal BoardMar 28, 201710960134 (P.T.A.B. Mar. 28, 2017) Copy Citation United States Patent and Trademark Office 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. 10/960,134 10/07/2004 Randall Allen Vogel AD7046 US NA 5628 23906 7590 03/30/2017 E I DU PONT DE NEMOURS AND COMPANY LEGAL PATENT RECORDS CENTER CHESTNUT RUN PLAZA 721/2340 974 CENTRE ROAD, P.O. BOX 2915 WILMINGTON, DE 19805 EXAMINER KRUER, KEVIN R ART UNIT PAPER NUMBER 3649 NOTIFICATION DATE DELIVERY MODE 03/30/2017 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): PTO-Legal.PRC@dupont.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte RANDALL ALLEN VOGEL ET AL. Appeal 2014-000722 Application 10/960,134 Technology Center 1700 Before SALLY GARDNER LANE, SALLY C. MEDLEY, and DEBORAH KATZ, Administrative Patent Judges. LANE, Administrative Patent Judge. DECISION ON APPEAL 37 C.F.R. §41.50 I. Statement of the Case 1 Randall Allen Vogel et al. (“Appellants”) seek review under 35 U.S.C. 2 § 134(a) of the final rejection of claims 1-4, 9-17, 19-26, 28 and 29 of application 3 10/960,134, filed October 7, 2004. 4 The real party in interest is identified as E.I. du Point de Nemours and 5 Company. (Appeal Brief at 1). 6 We have jurisdiction under 35 U.S.C. § 134(a). 7 1 2 3 4 5 6 7 8 9 10 11 12 13 Appeal 2014-000722 Application 10/960,134 The Examiner relies on the following evidence. Vogel WO 01/78981 Published 25 Oct. 2001 Dewart U.S. Patent 6,114,456 Issued Sept. 5, 2000 Jeong U.S. Patent 6,569,935 Issued May 27, 2003 Malo et al U.S. Patent 4,207,049 Issued June 10, 1980 Appellants do not contest the prior art status of the Examiner’s evidence, all of which is prior art under 35 U.S.C. § 102(b).1 II. Claims on Appeal Appellants appeal the rejection of claims 1-4, 9-17, 19-26, 28 and 29. (Appeal Brief at 1; Answer at 3 and 5). The claims are directed to a multi-layer sheet that is said to be useful for automobile, truck and recreational vehicle panels. (Specification at 2). III. Rejection Claims 1-4, 9, 14-17, 19, 23-26, and 28 stand rejected under 35 U.S.C. §103 (a) as being unpatentable over Vogel in view of Dewart and Jeong. (Answer at 3-5). We are referring to pre-AIA statutes unless otherwise indicated. 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Appeal 2014-000722 Application 10/960,134 Claims 10-13, 20-22, and 29 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Vogel in view of Dewart and Jeong and further in view of Malo et al. (Answer at 5). For reasons discussed below we affirm the rejections of the claims. IV. Analysis A. Claim 1 Claim 1 is representative of claims 1-4, 9, 14-17, 19, 23-26 and 28 and reads: 1. A multi-layer sheet comprising, or produced from a. a first co-extruded layer comprising an ionomer resin of a copolymer of ethylene and 8-25% by weight, based on the weight of the copolymer, of a C3-C8 a, (3 ethylenically unsaturated monocarboxylic acid at least 35% of acid moieties neutralized with metal ions; b. a second co-extruded polymeric layer comprising an ionomer resin, an ethylene acid copolymer, an ethylene copolymer, an ethylene acid terpolymer, a metallocene catalyzed very low density polyethylene [VLDPE], or combinations of two or more thereof; and the layer comprises pigments, dyes, flakes, or combinations of two or more thereof; and c. a third co-extruded polymeric adhesive layer in direct contact with the second co-extruded layer comprising a metallocene catalyzed very low density polyethylene; and d. optionally, a co-extruded backing layer adhered to the third adhesive layer of polypropylene, polymeric mixtures of polypropylene and another polyolefin, or copolymers of polypropylene. 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Appeal 2014-000722 Application 10/960,134 Under 35 USC §103(a) a patent may not be obtained if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art. When reviewing a conclusion of obviousness we consider whether the Examiner has provided articulated reasoning with some rational underpinning sufficient to support the conclusion. In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006). The Examiner found that Vogel teaches the limitations of claim 1 either expressly or inherently except that Vogel does not teach that the VFDPE should be metallocene catalyzed. (Answer at 3). The Examiner found that Dewart teaches that VLDPE polymers exhibit improved impact resistance and optical properties when they are metallocene catalyzed. The Examiner determined that one skilled in the art therefore would have had reason to utilize metallocene catalyzed VLDPE in the laminate taught by Vogel, i.e. to achieve improved impact resistance and optical properties. (Answer at 4-5). The Examiner found that Vogel also does not teach that the optional backing layer should comprise a random copolymer of polypropylene. The Examiner found that Jeong teaches that propylene random copolymers are well known in the automobile industry as a molding material. The Examiner concluded that it would have been obvious to one of ordinary skill in the art to utilize a random copolymer of polypropylene as the backing layer of the laminate taught in Vogel since the copolymers are commonly used in the automotive industry as molding materials. (Answer at 5). 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Appeal 2014-000722 Application 10/960,134 Appellants argue that the Examiner’s rejection does not articulate any reason why the differences between the relied upon prior art and its claimed invention would have been obvious to those of skill in the art. (Appeal Brief at 5-6). We disagree. As we note above, the Examiner explained why one skilled in the art would have had sufficient reason to modify the teachings of Vogel to arrive at the claimed invention. Appellants do not explain why the reasons provided by the Examiner and found in the prior art are incorrect or insufficient. Appellants argue that none of the references individually teach or suggest every element of the claims. (Appeal Brief at 5). Attacking references individually is not persuasive because here the rejection is based upon the teachings of a combination of references. See In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986). In particular, Appellants argue that Vogel does not teach or suggest that a metallocene catalyzed VLDPE also should comprise one or more pigments, dyes or flakes. (Appeal Brief at 5). This argument is not convincing. As the Examiner notes Vogel teaches a co-extruded VLDPE layer and that each co-extruded layer may comprise pigments dyes and flakes or mixtures thereof. (Answer at 4 referring to Vogel at 7:26-27). The Examiner’s rejection does not rely upon Vogel for a teaching of a VLDPE that is metallocene catalyzed. Instead, that teaching comes from Dewart. (Answer at 4 referring to Dewart at col. 2). Appellants state that “the plain language of claim 1 excludes the presence of a tie layer between the first and second coextruded layer.” (Appeal Brief at 5). It is unclear if Appellants are arguing this as a point of distinction from the prior art but at any rate, as the Examiner notes Vogel expressly states that the first and 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Appeal 2014-000722 Application 10/960,134 second co-extraded layers are in contact such that no tie layer is required. (Answer at 7 referring to Vogel at 7:5). Appellants separately address claims 14-17 and 19 (Appeal Brief at 6), and claims 23-26 and 28 (Appeal Brief at 6-7), but do not provide reasoning separate from that discussed above as to why these claims would not have been obvious. Appellants argue “[i]n the alternative” that the superior adhesion obtained by the claimed invention is a surprisingly superior result sufficient to overcome any prima facie case of obviousness based on Vogel, Dewart and Jeong. In support of its argument, Appellants direct us to the “Examples of the invention” and in particular page 14, lines 24 to 29 and pages 21 to 22 which are said to provide data to “substantiate these unexpected advantages” although Appellants provide little discussion or analysis of this data (Appeal Brief at 7). "[W]hen unexpected results are used as evidence of nonobviousness, the results must be shown to be unexpected compared with the closest prior art." In re Baxter Travenol Labs., 952 F.2d 388, 392 (Fed. Cir. 1991). We agree with the Examiner that Appellants have not pointed to a comparison of the claimed invention with the closest prior art to Vogel. (Answer at 8). To be persuasive the evidence of unexpected results must be commensurate with the scope of the rejected claims. In re Peterson, 315 F.3d 1325, 1330 (Fed. Cir. 2003). Appellants argue that the m-VFDPE develops good adhesion to a polypropylene layer that is cladded onto the three-layer film structure through injection molding. (Appeal Brief at 7). As noted by the Examiner, the claims do not require the presence of a polypropylene layer and the backing layer, where included, does not necessarily comprise polypropylene. (Answer at 9). 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Appeal 2014-000722 Application 10/960,134 Thus, the results shown, to the extent that one skilled in the art would have considered them unexpected, are not commensurate with the scope of the claims. We have considered the evidence of unexpected results pointed out to us by Appellants in combination with the other evidence relied upon in the Examiner’s rejection. We also have considered the arguments presented in the Appellants’ Reply but do not find these arguments to provide any additional or persuasive reason why the Examiner’s conclusion of obviousness was incorrect. Based upon a consideration of the totality of this evidence and the record before us we conclude that the Examiner’s rejection of claims 1-4, 9, 14-17, 19, 23-26, and 28 was not in error. B. Claim 10 Claim 10 is representative of claims 10-13, 20-22 and 29 and reads: 10. The multi-layer sheet of claim 1 further comprising an auto part, a truck part, an auto or truck body panel, or a part or panel of a recreational vehicle having a Class A surface. The Examiner found that Vogel teaches the coated backfill layer may be used in the automotive industry but does not teach the back fill layer should have a Class A finish. The Examiner found that Malo teaches molded parts used in visible areas of an automotive require Class A finish so that the part has an acceptable finish. The Examiner concluded that it would have been obvious to one of ordinary skill in the art at the time the invention was made to utilize a backfill layer with a Class A finish because such a finish is the industrially accepted standard in the automotive industry. (Answer at 5). 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Appeal 2014-000722 Application 10/960,134 Appellants argue that Malo “includes no teaching or suggestion whatsoever regarding metallocene-catalyzed polyethylenes.” (Appeal Brief at 8). Appellants’ argument attacking the Malo reference separately when the Examiner’s rejection is based upon a combination of references is not convincing. The rejection relies upon Dewart as showing the “metallocene-catalyzed” feature of the claims. We note that in the Answer the Examiner also states that this feature is a method limitation which does not distinguish the claimed VLDPE from a VLDPE polymerized by a different method. (Answer at 9). This rationale was not set forth in the final rejection and we do not find it necessary to the conclusion of obviousness as Dewart provides sufficient reason for one skilled in the art to have used metallocene catalysts. Appellants separately address claims 10-13 and 19 (Appeal Brief at 9), claims 20, 21 and 22 (Appeal Brief at 9), and claim 29 (Appeal Brief at 10) but do not provide reasoning separate from that discussed above as to why these claims would not have been obvious. Appellants argue “[i]n the alternative” that the superior adhesion obtained by the claimed invention is a surprisingly superior result sufficient to overcome any prima facie case of obviousness based on Vogel, Dewart, Jeong and Malo. Appellants do not point to evidence of unexpected results in addition to that discussed above with respect to the rejection based on Vogel, Dewart and Jeong. We have considered the evidence of unexpected results pointed out to us by Appellants in combination with the other evidence relied upon in the Examiner’s rejection. We have considered the arguments presented in the Appellants’ Reply but do not find these arguments to provide any persuasive reason why the 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Appeal 2014-000722 Application 10/960,134 Examiner’s conclusion of obviousness was incorrect. Based upon a consideration of the totality of this evidence and the record before us we conclude that the Examiner’s rejection of claims 10-13, 20-22, and 29 was not in error. V. Decision Upon consideration of the appeal, and for the reasons given herein, it is ORDERED that the decision of the Examiner rejecting claims 1-4, 9, 14-17, 19, 23-26, and 28 under 35 U.S.C. § 103(a) as being unpatentable over Vogel in view of Dewart and Jeong is affirmed', FURTHER ORDERED that the decision of the Examiner rejecting claims 10-13, 20-22, and 29 under 35 U.S.C. § 103(a) as being unpatentable over Vogel in view of Dewart and Jeong and further in view of Malo et al. is affirmed', and FURTHER ORDERED that no time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136. AFFIRMED 9 Copy with citationCopy as parenthetical citation