Ex Parte Yang et al

Patent Trial and Appeal Board

Aug 28, 2017

13990093 (P.T.A.B. Aug. 28, 2017)

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.
13/990,093 05/29/2013 Yongyong Yang DOW-36779-US 4144
29423 7590 08/30/2017
Hnsrh R1arlcwe.11 T T P/
EXAMINER
The Dow Chemical Company LEYSON, JOSEPH S
555 East Wells Street, Suite 1900
Milwaukee, WI53202-3819 ART UNIT PAPER NUMBER
1744
NOTIFICATION DATE DELIVERY MODE
08/30/2017 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):
jere.polmatier@huschblackwell.com
ptomailbox @ whdlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte YONGYONG YANG, GEOFFREY D. BROWN,
MANISH MUNDRA, BIN LI, and JOURNEY LU ZHU
Appeal 2016-003852
Application 13/990,093
Technology Center 1700
Before CATHERINE Q. TIMM, WESLEY B. DERRICK, and
JANE E. INGLESE, Administrative Patent Judges.
TIMM, Administrative Patent Judge.
DECISION ON APPEAL1
STATEMENT OF CASE
Pursuant to 35 U.S.C. § 134(a), Appellants2 appeal from the
Examiner’s decision to reject claims 1, 6, and 11 under 35 U.S.C. § 103(a)
1 In explaining our Decision, we cite to the Specification dated May 29,
2013 (Spec.), Final Office Action dated April 10, 2015 (Final), the Appeal
Brief dated July 20, 2015 (Appeal Br.), and the Examiner’s Answer dated
December 18, 2015 (Ans.).
2 Appellants identify the real party in interest as Dow Global Technologies
LLC.
Appeal 2016-003852
Application 13/990,093
as obvious over Holt3 in view of Fritsch4 and of claims 1, 4-6, and 11 as
obvious over Holt in view of Bourdon5. We have jurisdiction under
35 U.S.C. § 6(b).
For the reasons presented provided by the Examiner, we AFFIRM.
We add the following primarily for emphasis.
The claims are directed to a die assembly for extruding a polymeric
coating onto a wire. Appellants do not argue any claim apart from the
others. Br. 7—10. We select claim 1 as representative. We reproduce claim
1 emphasizing the limitations at the heart of the dispute:
1. A die assembly for extruding a polymeric coating onto
a wire, the die assembly having a central longitudinal axis and
comprising:
A. a die tip comprising an exterior surface and a channel
through which a wire can pass, the channel positioned
along the central longitudinal axis of the die assembly;
B. a die body comprising a trunk and a head and each of the
trunk and head comprising interior and exterior surfaces
and the head further comprising a channel and a tapered
die land, the die body trunk positioned about the die tip
so as to define an annular space between the exterior
surface of the die tip and the interior surface of the die
body trunk, the die body head extending beyond the die
body trunk and die tip and positioned such that the
channel of the die body head is on the central
longitudinal axis of the die assembly and in alignment
with the channel of the die tip, the interior surfaces of the
trunk and head continuous with one another so that
molten polymer can move through the annular space and
3 Holt et al., US 4,505,222, issued Mar. 19, 1985.
4 Fritsch et al., US 4,359,439, issued Nov. 16, 1982.
5 Bourdon et al., US 4,699,579, issued Oct. 13, 1987.
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Application 13/990,093
coat onto a wire as the wire passes through the die body
head;
C. a die holder comprising an interior surface and positioned
about and in contact with the exterior surface of the die
body; and
D. a radiator of a circulation design positioned about and in
contact with the exterior surface of the die land of the die
body head.
Claims Appendix, Br. 12 (emphasis added).
OPINION
Rejection over Holt in view of Fritsch
Appellants’ main contention against the Examiner’s rejection of
claims 1, 6, and 11 as obvious over Holt in view of Fritsch is that the
Examiner is misreading Holt. Br. 7. According to Appellants, Holt has
neither a die head that extends beyond the body trunk nor a tapered die land.
Id. But in making this argument, Appellants conflate the portions of Holt
cited by the Examiner because, contrary to the argument of Appellants {id.),
the Examiner does not find that die tip 76 is a die body head (Final 3).
The Examiner finds that Holt discloses a die assembly for extruding a
polymeric coating onto a wire that includes a die tip 76, a die body 78
comprising a trunk and a head with a head channel comprising a die land.
Final 3. It is this head of die body 78 that extends beyond the die body trunk
as found by the Examiner, not die tip 76 as argued by Appellants. We
reproduce Holt’s Figure 4 below to illustrate:
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Annotated Figure 4 showing a sectional view through Holt’s die assembly
As can be seen from the above annotated Figure 4 of Holt, nozzle 78,
which the Examiner finds is a die body as required by claim 1, includes a die
body portion in the position required by the die body trunk of claim 1, i.e., it
is positioned about die tip 76 so as to define an annular space between the
exterior surface of the die tip 76 and the interior surface of the die body
trunk. The die body (nozzle 78) further includes a die body portion in the
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position required by the die body head of claim 1, i.e., it extends beyond the
die body trunk and die tip such that the channel of the die body head is on
the central longitudinal axis of the die assembly and in alignment with the
channel of the die tip, the interior surfaces of the trunk and head continuous
with one another so that molten polymer can move through the annular
space and coat onto a wire as the wire passes through the die body head as
required by the claim. The die body head is shown in the annotated Figure 4
above with dotted cross-hatching. The die body head includes a tapered die
land along the length of the internal surface of the die body head that
contacts the molten polymeric material as the molten material passes to the
outlet of the die assembly at the end of nozzle 76.
Although Holt does not use the words “die body trunk” and “die body
head,” the portions of the nozzle 78 relied upon by the Examiner have the
structure required by the die body trunk and the die body head as claimed by
Appellants. Appellants attempt to differentiate the structure based on the
disclosure in the Specification and the structures shown in Figures 1 A-1C
(Br. 8), but the attempt is unavailing because the claim is not so limited.
While we consult the Specification to determine the meaning of the claim
term, we take care to not limit the claim to the specific embodiments
disclosed in the Specification when the term appears to have a broader
meaning. See In re Van Geuns, 988 F.2d 1181, 1184 (Fed. Cir. 1993)
(“[L]imitations are not to be read into the claims from the specification.”).
“[T]he name of the game is the claim.” In re Hiniker Co., 150 F.3d 1362,
1369 (Fed.Cir.1998). Here, Appellants’ claims are not narrowly tailored to
avoid the structure of Holt.
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Appellants further contend that “the design of the ‘die body head’ of
Holt et al. is not a separate construction that allows for the placement of a
radiator about it.” Br. 8. Appellants point out that the die body head is
surrounded by front heater adapter 80 and as such the die body head does
not have an exterior surface available for contact with a radiator. This
argument overlooks the fact that the Examiner finds that front heater adapter
80 is a radiator. Final 3. Front heater adapter 80, according to Holt
“surrounds the nozzle 78 to transmit heat thereto from a heating element 82”
(col. 3,11. 17—19) and, as shown in annotated Figure 4 above, front heater
adapter 80 surrounds the die body head portion of nozzle 78. Not only does
Holt’s construction allow for the placement of a radiator about it, Holt’s
construction has a radiator about it.
Appellants contend that heater adapter 80 is not a radiator and that
they use “radiator” in the Specification in opposition to “heater.” Br. 8, 10.
However, a radiator can be any number of structures that radiate heat, either
for cooling or for heating. See dictionary.com/browse/radiator (last accessed
Aug. 23, 2017) (including definitions “a person or thing that radiates”, “any
of various heating devices, as a series or coil of pipes through which steam
or hot water passes,” and “a device constructed from thin-walled tubes and
metal fins, used for cooling circulating water, as in an automobile engine.”).
Appellants’ Specification describes a radiator for dissipating heat for
cooling, which can be “of a non-circulation design, i.e., it does not comprise
passageways, channels or like structures through which a cooling medium
can circulate,” or can be of circulating design. Spec. 25-26. Thus,
structures that radiate heat that do not have passageways are radiators.
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Whether the structure functions to heat or cool, it is still a radiator within the
meaning of the term. Holts’ front heater adapter 80 radiates heat to nozzle
78 and is thus a radiator. Moreover, the Examiner relies upon Fritsch for a
teaching of a radiator that cools. Final 4; Ans. 17.
Appellants do not dispute that Fritsch teaches a radiator 7 with a
circulation design. Br. 9. Appellants point out that “the radiator design of
Fritsch et al. is limited to cooling just one surface of a strip as it is extruded
through the die orifice.” Id. Although that is true, the Examiner determines
that given Fritsch’s teaching of cooling a desired zone to achieve a matte
surface in the extruded product from the zone, it would have been obvious
that such desired zone could be most, or all, of the downstream end
depending upon the amount of matte surface desired. Ans. 17. Appellants
do not dispute this reasonable analysis. (No reply brief was filed.)
Appellants have not identified a reversible error in the Examiner’s
conclusion of obviousness with regard to the radiator.
Appellants also call our attention to paragraphs 5—8 of the Yang
Declaration. Br. 9. These paragraphs of the Yang Declaration expound
upon the purpose of Appellants’ die assembly, the teachings of Holt, and the
teachings of Fritsch, and make arguments against the rejection. Yang
Declaration || 5—8. Appellants point to a statement in paragraph 7 that
states that “none of the references teach a die assembly design in which the
temperature of the die body trunk is controlled by a heater and the
temperature of the die body head is controlled by a cooling radiator.”
Br. 9-10. Neither this statement, nor the other statements within the
Declaration, when weighed together with the other evidence, persuade us of
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a reversible error in the Examiner’s conclusion of obviousness. See In re
Oelrich, 579 F.2d 86, 91 (CCPA 1978) (In assessing the probative value of
declaratory evidence, one must consider the nature of the matter sought to be
established as well as the strength of the opposing evidence.). The evidence
within the Declaration is not commensurate in scope with the claim and also
overlooks that the basis of the Examiner’s rejection is what the combination
of Holt and Fritsch would have suggested to one of ordinary skill in the art.
Rejection over Holt in view of Bourdon
Regarding the Examiner’s rejection of claims 1, 4—6, and 11 as
obvious over Holt in view of Bourdon, Appellants contend that Bourdon
“does not bridge the differences between Holt et al. and the invention
described in the rejected claims,” and “[njeither Holt et al. nor Bourdon et
al., alone or in combination with one another, teach or suggest a die
assembly that comprises a die body head extending beyond a die body trunk
with the die body head comprising a tapered die land.” Br. 10. For the
reasons we explained above, we determine that Appellants have not
identified a reversible error in the Examiner’s finding that Holt teaches a die
assembly that comprises a die body head extending beyond a die body trunk
with the die body head comprising a tapered die land. Accordingly, we are
apprised of no reversible error in the rejection over Holt in view of Bourdon.
CONCLUSION
We sustain the Examiner’s rejections.
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DECISION
The Examiner’s decision is affirmed.
TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1,.136(a)(1).
AFFIRMED
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