Milliken & Company

Patent Trials and Appeals BoardApr 14, 2021

2020004678 (P.T.A.B. Apr. 14, 2021)

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. 15/664,146 07/31/2017 Chi-Chun Tsai 7031A 3976 25280 7590 04/14/2021 Legal Department (M-495) P.O. Box 1926 Spartanburg, SC 29304 EXAMINER RODRIGUEZ-GARCIA, VALERIE ART UNIT PAPER NUMBER 1626 NOTIFICATION DATE DELIVERY MODE 04/14/2021 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): patents@milliken.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte CHI-CHUN TSAI, SHANE M. WAYBRIGHT, and KEITH A. KELLER ____________ Appeal 2020-004678 Application 15/664,146 Technology Center 1600 ____________ Before DONALD E. ADAMS, JEFFREY N. FREDMAN, and JAMIE T. WISZ, Administrative Patent Judges. ADAMS, Administrative Patent Judge. DECISION ON APPEAL Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from Examiner’s decision to reject claims 1–29 (Br. 2). We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as “Milliken & Company” (Appellant’s January 13, 2020, Appeal Brief (Br.) 2). Appeal 2020-004678 Application 15/664,146 2 STATEMENT OF THE CASE Appellant’s disclosure relates “to additive compositions suitable for use in polymers” (Spec.2 ¶ 2). Appellant’s independent claim 1 is reproduced below: 1. An additive composition comprising: (a) phosphate ester anions conforming to the structure of Formula (I) (I) wherein R1 and R2 are independently selected from the group consisting of hydrogen and C1-C18 alkyl groups, and R3 is an alkanediyl group; (b) aromatic carboxylate anions; (c) aluminum (III) cations; (d) sodium cations; (e) optionally, lithium cations; and (f) optionally, zinc (II) cations, wherein: (i) the phosphate ester anions are present in the additive composition in an amount of about 2 mol.% to about 90 mol.% of the total amount of phosphate ester anions and aromatic carboxylate anions present in the additive composition; 2 Appellant’s July 31, 2017, Specification. Appeal 2020-004678 Application 15/664,146 3 (ii) the aromatic carboxylate anions are present in the additive composition in an amount of about 10 mol.% to about 98 mol.% of the total amount of phosphate ester anions and aromatic carboxylate anions present in the additive composition; (iii) the aluminum (III) cations are present in the additive composition in an amount of about 1 mol.% to about 35 mol.% of the total amount of aluminum (III) cations, sodium cations, lithium cations, and zinc (II) cations present in the additive composition; (iv) the sodium cations are present in the additive composition in an amount of about 10 mol.% to about 96 mol.% of the total amount of aluminum (III) cations, sodium cations, lithium cations, and zinc (II) cations present in the additive composition; (v) the lithium cations, if present, are present in the additive composition in an amount of about 0 mol.% to about 60 mol.% of the total amount of aluminum (III) cations, sodium cations, lithium cations, and zinc (II) cations present in the additive composition; (vi) the zinc (II) cations, if present, are present in the additive composition in an amount of about 0 mol.% to about 20 mol.% of the total amount of aluminum (III) cations, sodium cations, lithium cations, and zinc (II) cations present in the additive composition; and (vii) the additive composition contains 5 wt.% or more fatty acid salts. (Br. 11–12.) Appeal 2020-004678 Application 15/664,146 4 Claims 1–29 stand rejected under 35 U.S.C. § 103(a) as unpatentable over the combination of Tang,3 Hanssen,4 Guo,5 and Gen.6 ISSUE Does the preponderance of evidence relied upon by Examiner support a conclusion of obviousness? FACTUAL FINDINGS (FF) FF 1. Appellant discloses “a polymer composition comprising a polymer and an additive composition,” wherein “[t]he polymer composition can comprise any suitable polymer,” such as “polypropylene,” and “any suitable amount of the additive composition” (Spec. ¶¶ 32–33). FF 2. Appellant discloses that a “fatty acid salt can be present in the additive composition . . . in any suitable amount. Preferably, the additive composition . . . contains 5 wt.% or more fatty acid salts, based on the total weight of the additive composition” (Spec. ¶ 31). FF 3. Examiner finds that Tang discloses a nucleating agent composition comprising polypropylene and an additive composition, wherein the additive composition comprises a phosphate ester salt, a cycloaliphatic di-carboxylate salt, zinc or calcium stearate (fatty acid salts); and sodium, lithium, zinc, and 3 Tang et al., US 2008/0171834 A1, published July 17, 2008. 4 Hanssen, US 7,879,933 B2, Feb. 1, 2011. 5 Guo et al., CN 103788472 A, May 14, 2014 (Examiner relies on English (machine) Translation) (see Ans. 4). 6 Gen et al., JP 10-053673, published Feb. 24, 1998 (Examiner relies on English (machine) Translation) (see Ans. 4). Appeal 2020-004678 Application 15/664,146 5 aluminum cations (Ans.7 4–5 (citing Tang ¶¶ 23, 24, 44, and 58 (Table 1)); see also Ans. 10 (citing Tang ¶¶ 33–36 and 41–44)). FF 4. Examiner finds that Hanssen discloses a nucleating agent composition comprising polypropylene and an additive composition, wherein the additive composition comprises a cycloaliphatic di-carboxylate salt; a phosphate ester salt; sodium, lithium, zinc and aluminum cations; and calcium stearate (a fatty acid salt) (Ans. 6 (citing Hanssen Abstract, Examples, and claim 1); see also Ans. 10–11). FF 5. Examiner finds that the combination of Tang and Hanssen fails to disclose an additive composition comprising “an aromatic carboxylate (e.g., benzoate or benzoic acid salt)” and “the specific claimed mol % of the ingredients” (Ans. 8; see also id. at 11). FF 6. Examiner finds that Guo discloses a composition comprising Appellant’s elected “phosphate ester sodium salt ‘NA-11’ . . . and sodium benzoate or aluminum benzoate . . . as nucleating agent for the crystallization of polypropylene” (Ans. 7 (citing Guo, claims 1–3)). FF 7. Examiner finds that Gen discloses: Nucleating agent blends/combinations for polypropylene comprising a nucleating agent which consists of a phosphate system compound . . . , particularly Na-11 . . . and/or a benzoic acid metal salt such as sodium benzoate or p-t-butylbenzoic acid aluminum salt . . .; and a lubricant which consists of an aliphatic carboxylic acid metal salt (fatty acid salts) such as zinc behenate, zinc stearate and lithium behenate. (Ans. 7–8 (citing Gen ¶¶ 84, 60, 70, Table 4 and claim 1).) 7 Examiner’s April 3, 2020, Answer. Appeal 2020-004678 Application 15/664,146 6 ANALYSIS Based on the combination of Tang, Hanssen, Min, and Gen, Examiner concludes that, at the time Appellant’s invention was made, it would have been prima facie obvious to combine an aromatic carboxylate such as aluminum benzoate or sodium benzoate or p-t-butylbenzoic acid aluminum salt (of . . . Gen or Guo) with the nucleating combination compositions of Tang or of Hanssen because Guo had taught that the combination of a benzoate salt with the phosphate ester nucleating agents of the above references has a synergistic effect, improves the crystallization performance and mechanical property of the polypropylene material and greatly reduces the cost. (Ans. 8.) Examiner further concludes that, at the time of Appellant’s claimed invention, a person of ordinary skill in this art would have found it prima facie obvious to use “[a]ny of the commonly used acid scavengers (stabilizers), such as calcium stearate, zinc behenate, zinc stearate and lithium behenate,” because the prior art discloses that these reagents are equivalents (Ans. 9). In addition, Examiner reasons that because “[v]arious weight % are exemplified in the [cited] references . . . [a] person of ordinary skill in the art would have been motivated to adjust the amounts of the various ingredients in the combination composition in order to obtain improved nucleating blend compositions” (Ans. 9). See In re Aller, 220 F.2d 454, 456 (CCPA 1955) (“[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.”). Appellant contends that the composition suggested by the combination of Tang and Hanssen, which comprises polypropylene and an Appeal 2020-004678 Application 15/664,146 7 additive composition, fails to make obvious an additive composition comprising “5 wt.% or more fatty acid salts” (Br. 7–8; cf. FF 1–4). In addition, Appellant contends that Guo and Gen, relied upon by Examiner to disclose a nucleating composition comprising “an aromatic carboxylate (e.g., benzoate or benzoic acid salt)” (see FF 5–7) fails to make up for the foregoing deficiency in the combination of Tang and Hanssen (Br. 8). We are not persuaded. The combination of Tang and Hanssen makes obvious a polymer composition comprising a polymer, polypropylene, and an additive composition (see FF 3–4). Appellant discloses polymer compositions comprising a polymer, such as polypropylene in combination with an additive composition (see, e.g., FF 1–2). Appellant’s claim 1, reproduced above, requires that the additive composition contains 5 wt.% or more fatty acid salts. Appellant’s Specification makes clear that this 5 wt.% or more fatty acid salt concentration is “based on the total weight of the additive composition” (FF 2). As Examiner explains, the polymer composition is made obvious by the combination of Tang and Hanssen comprising a polymer, polypropylene, component and an additive composition component. When the additive composition component of the polymer composition, made obvious by the combination of Tang and Hanssen, is considered separately from the polymer component, the additive composition contains 5 wt.% or more fatty acid salts, based on the total weight of the additive composition, as is required by Appellant’s claim 1 (see Ans. 14 (“[E]xaminer simply identified the ‘additive composition’ in the prior art and calculated the wt.% of fatty Appeal 2020-004678 Application 15/664,146 8 acid salts based on the ‘additive composition’ as instantly claimed”); see also id. at 10–13). For the foregoing reasons, we are not persuaded by Appellant’s contentions that none of the cited references teaches or suggests that the polymer can be excluded from the polymer compositions described therein. . . . Examiner’s rationale is not based on a principle actually taught in or suggested by the cited references. . . . [T]he fact that the pending claims do not specifically recite a polymer component does not mean that the cited references’ teachings regarding a polymer component can simply be disregarded when comparing the cited references to the elements of the pending claims . . . [a]nd here, when each cited reference is considered as a whole, none of them teaches or suggests a composition comprising anything near the 5 wt.% of fatty acid salts recited in [pending claim 1]. (Br. 9.) Initially, we note that Appellant’s claim 1 does not exclude a polymer, such as polypropylene. The fatty acid concentration required by Appellant’s claimed invention is based on the total weight of the additive composition. Thus, the addition of a polymer to the claimed composition would not affect the weight percentage of the fatty acid, which is based on the total weight of the additive composition, not the total weight of the polymer composition, which comprises polymer and additive composition (see Ans. 14 (“Appellants have distinguished the ‘additive composition’ from a polymer composition”)). As Examiner explains, “[E]xaminer doesn’t suggest excluding the polymer from the prior art compositions or disregarding the teachings of a polymer component in the references. The prior art references, considered as a whole, teach ‘additive compositions’ which contain a polymer component” and “[E]xaminer simply identified the ‘additive composition’ in the prior art and calculated the wt.% of fatty acid Appeal 2020-004678 Application 15/664,146 9 salts based on the ‘additive composition’ as instantly claimed” (Ans. 13–14). We find no error in Examiner’s rationale. CONCLUSION The preponderance of evidence relied upon by Examiner supports a conclusion of obviousness. The rejection of claim 1 under 35 U.S.C. § 103(a) as unpatentable over the combination of Tang, Hanssen, Guo, and Gen is affirmed. Claims 2–29 are not separately argued and fall with claim 1. DECISION SUMMARY In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1–29 103 Tang, Hanssen, Guo, Gen 1–29 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). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED