Romain Luijkx

Patent Trials and Appeals Board

Aug 6, 2019

13825738 - (D) (P.T.A.B. Aug. 6, 2019)

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.
13/825,738 06/10/2013 Romain Luijkx F-1256 1068
25264 7590 08/06/2019
FINA TECHNOLOGY INC
PO BOX 674412
HOUSTON, TX 77267-4412
EXAMINER
JUSKA, CHERYL ANN
ART UNIT PAPER NUMBER
1789
NOTIFICATION DATE DELIVERY MODE
08/06/2019 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):
tammy.brzozowski@total.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte ROMAIN LUIJKX
____________

Appeal 2018-008280
Application 13/825,738
Technology Center 1700
____________

Before KAREN M. HASTINGS, JAMES A. WORTH, and
MERRELL C. CASHION, JR., Administrative Patent Judges.

CASHION, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE

Pursuant to 35 U.S.C. § 134, Appellant1 appeals from a Final rejection
of claims 1–6, 8–10, 12–23, and 25. We have jurisdiction under 35 U.S.C.
§ 6(b).
We AFFIRM.

1 TOTAL RESEARCH & TECHNOLOGY FELUY is identified as the real
party in interest. App. Br. 5.
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The invention is principally directed to slit film and monofilaments
suitable for tufting into artificial grass made from polyethylene polymers.
Spec. 1. Claim 23 is illustrative of the subject matter claimed and is
reproduced below:
23. Artificial grass tufted from slit film or
monofilaments prepared with a polyethylene prepared with a
bistetrahydroindenyl or bisindenyl metallocene catalyst
complex in a slurry phase, wherein the metallocene complex
has a zirconium atom, the polyethylene being a copolymer with
a 1-hexene content of less than 10% having (a) a density in the
range of 0.910 to 0.937 g/cm3 as determined by ISO 1183 at a
temperature of 23 °C and (b) a melt index MI2 in the range of
0.5 to 5 g/10 min as determined by ISO 1133/D at a
temperature of 190 °C and at a load of 2 .16 kg,
wherein said polyethylene has a grheo of less than 0.9 or
an LCBI of greater than 0.08.2

Independent claim 1 differs from claim 23 in that it requires additional
features.
Appellant requests review of the Examiner’s rejection of claims 1–6,
8–10, 12–23, and 25 under 35 U.S.C. § 103(a) as unpatentable over Pepper
(US 2011/0092937 A1, published April 21, 2011) in view of Seaton (US
2004/0086664 A1, published May 6, 2004) and/or Bearden (US
2010/0129570 A1, published May 27, 2010), and in further view of Winter
(US 5,145,819, issued September 8, 1992). App. Br. 10; Final Act. 2.
Appellant presents arguments for claims 1, 3–5, 9, 10, and 23. See
generally App. Br. However, Appellant does not present arguments for

2 See Spec. 8–10 for an explanation of the meaning of the grheo and LCBI
properties as indicators of long chain branching in a polymer.
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claims 2, 6, 8, 12–22, and 25, all of which ultimately depend from claim 1.
Id. Consistent with Appellant’s arguments (see generally App. Br.), we
select independent claim 23 as representative of the subject matter claimed.
We address claims 1, 3–5, 9, and 10 separately. Claims 2, 6, 8, 12–22, and
25 stand or fall together based on the arguments made by Appellant in
support of patentability of both claims 1 and 23. See 37 C.F.R.
§ 41.37(c)(1)(iv).

OPINION
After review of the respective positions the Appellant provides in the
Appeal and Reply Briefs and the Examiner provides in the Final Action and
the Answer, we affirm the Examiner’s prior art rejection of claims 1–6, 8–
10, 12–23, and 25 for the reasons the Examiner presents. We add the
following for emphasis.
Claim 23
The Examiner finds, and Appellant does not dispute, that the
combined teachings of Pepper, Seaton, and Bearden suggest polyethylene
polymers used for artificial grass that differ from the subject matter of claim
23 in that Pepper’s polyethylene is polymerized in the presence of a hafnium
bistetrahydroindenyl or bisindenyl metallocene catalyst instead of a
zirconium bistetrahydroindenyl or bisindenyl metallocene catalyst. Final
Act. 2–4; see generally App. Br. The Examiner also finds that the combined
teachings do not suggest the claimed the grheo or LCBI properties. Final Act.
4.

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With respect to the zirconium bistetrahydroindenyl or bisindenyl
metallocene catalyst, the Examiner finds Winter discloses the claimed
zirconium based catalyst as an alternate catalyst system for the hafnium
based catalyst in the preparation of polyolefins of high molecular weight.
Final Act. 4; Winters Abst., col. 1, l. 34–col. 3, l. 56. The Examiner
determines that it would have been obvious to one of ordinary skill in the art
to substitute Winter’s polyethylene polymer (from the zirconium based
catalyst process) for Pepper’s polyethylene polymer (from the hafnium
based catalyst process) in view of Winter’s teachings. Final Act. 4–5;
Winters Abst., col. 1, ll. 7–10; col. 3, ll. 36–56.
Regarding the grheo/LCBI properties, the Examiner determines that one
skilled in the art would have reasonably expected the polyethylene from the
combined teachings of the cited art to have the claimed grheo/LCBI properties
because the combined teachings use similar materials (i.e., a polyethylene
polymer made with a bisindenyl or bistetrahydroindenyl metallocene
catalyst having a zirconium atom and having the same density and melt
index) and similar production steps (i.e., polyethylene polymerization in a
slurry phase and forming said polyethylene composition into a monofilament
or slit-film filament for use in an artificial turf). Final Act. 5–6.
Appellant argues Winter does not teach that hafnium and zirconium
bisindenyls are equivalent for any purpose and certainly not for artificial
grass tufted from slit film or monofilaments. App. Br. 12. According to
Appellant, Winter discloses that the 2-substituted bisindenylmetallocenes as
catalysts but does not teach that hafnium and zirconium bisindenyls as
equivalents or that both hafnium and zirconium bisindenyls may be used for
artificial grass tufted from slit film. App. Br. 12; Winter col. 1, ll. 7–10.
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These arguments do not persuade us of reversible error in the
Examiner’s determination of obviousness for the reasons the Examiner
presents (Ans. 9–12).
Moreover, representative claim 23 is drafted in a product-by-process
format (“polyethylene prepared with a bistetrahydroindenyl or bisindenyl
metallocene catalyst complex [having a zirconium atom] in a slurry phase”).
The patentability of this type of claim does not depend on the process steps,
except to the extent that the process steps are shown to result in properties
not possessed by prior art products. It has long been held that “‘[i]f the
product in a product-by-process claim is the same as or obvious from a
product of the prior art, the claim is unpatentable even though the prior
product was made by a different process.”’ Smithkline Beecham Corp. v.
Apotex Corp., 439 F.3d 1312, 1317 (Fed. Cir. 2006) (quoting In re Thorpe,
777 F.2d 695, 697 (Fed. Cir. 1985)). It is also well settled that when a
claimed product reasonably appears to be substantially the same as a product
disclosed in the prior art, the burden of proof is on the applicants to prove
that the prior art product does not inherently or necessarily possess the
characteristics attributed to the claimed product. In re Best, 562 F.2d 1252,
1255, (CCPA 1977) (“Where, as here, the claimed and prior art products are
identical or substantially identical, . . . the PTO can require an applicant to
prove that the prior products do not necessarily or inherently possess the
characteristics of his claimed product.”).
In this case, the Examiner finds Pepper teaches the use of
polyethylene polymers to make artificial grass. Final Act. 3; Ans. 10;
Pepper ¶ 177. While Pepper relies on a hafnium bistetrahydroindenyl or
bisindenyl metallocene catalyst to make the polyethylene polymer (Final
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Act. 3; Pepper ¶ 7), the Examiner finds Winter teaches polyethylene
polymers made by processes using either a zirconium bistetrahydroindenyl
or hafnium bisindenyl metallocene catalyst (id. at 4). Based on this, the
Examiner determines that one skilled in the art would have used Winter’s
polyethylene polymers in place of Pepper’s polyethylene polymers to make
Pepper’s artificial grass. Final Act. 4–5; Ans. 10.
Thus, there is a reasonable basis for a person of ordinary skill in the
art to have reasonably expected that Winter’s polyethylene polymers would
be suitable to make Pepper’s artificial grass absent a showing to the
contrary. In re O’Farrell, 853 F.2d 894, 904 (Fed. Cir. 1988) (“For
obviousness under § 103, all that is required is a reasonable expectation of
success.”). Appellant has not explained adequately why one skilled in the
art, using no more than ordinary creativity, would not have been capable of
using polyolefins made by different processes for Pepper’s artificial grass.
See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 421 (2007) (“A person of
ordinary skill is also a person of ordinary creativity, not an automaton.”); see
also In re Sovish, 769 F.2d 738, 743 (Fed. Cir. 1985) (presuming skill on the
part of one of ordinary skill in the art).
Given that the Examiner’s findings that Winter teaches polyethylene
polymers made using a zirconium based catalyst in a process similar to the
one disclosed by Appellant (Final Act. 5–6) and that Appellant does not
dispute adequately these findings (see generally App. Br.), there is also
reason to believe that Winter’s polyethylene polymers would possess the
claimed grheo/LCBI properties. See Best, 562 F.2d at 1255. Accordingly, the
burden is shifted to Appellant to demonstrate that the claimed polyethylene
polymers differ from the polyethylene polymers of the prior art. Id.
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Appellant does not direct us to evidence showing any difference in the
properties between the claimed polyethylene polymers and the ones of the
prior art. Instead, Appellant argues that Pepper teaches polyethylene
polymers are free of long chain branching or substantially free of long chain
branching. App. Br. 13; Pepper ¶ 116. Thus, according to Appellant,
Pepper teaches that its hafnium bisindenyl catalysts do not have the required
long chain branching of the present claims based on the claimed grheo/LCBI
values. Id. Appellant further argues that the Examiner’s proposal to modify
Pepper’s invention would render it unfit for its intended purpose because
Pepper teaches limited or, preferably, no long chain branching. Id. at 13–14.
These arguments also do not persuade us of error in the determination
of obviousness. It is well settled that a reference may be relied upon for all
that it discloses and not merely the preferred embodiments as suggested by
Appellant. See Merck & Co. v. Biocraft Labs., Inc., 874 F.2d 804, 807 (Fed.
Cir. 1989) (“[A]ll disclosures of the prior art, including unpreferred
embodiments, must be considered.” (quoting In re Lamberti, 545 F.2d 747,
750 (CCPA 1976))); In re Fracalossi, 681 F.2d 792, 794 n.1 (CCPA 1982)
(explaining that a prior art reference’s disclosure is not limited to its
examples).
As the Examiner notes (Ans. 10), a fair reading of Pepper’s disclosure
as a whole would lead one skilled in the art to understand that Pepper is not
as limited as argued by Appellant. While Pepper’s paragraph 116 focuses on
polyethylene polymers that are free of long chain branching or substantially
free of long chain branching, the Examiner is correct in asserting that
Pepper’s ¶¶ 39 and 40 identify these polymers as embodiments, perhaps
preferred embodiments, of the disclosed invention. Ans. 10. Appellant has
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not explained adequately how Pepper’s preferred embodiments limit
Pepper’s broader disclosure for polyethylene polymers. Further, even
assuming arguendo that Pepper would have been limited to such
polyethylene polymers, Appellant’s argument is an acknowledgement that
Pepper teaches making polyethylene polymers having limited branching.
App. Br. 13; see Pepper ¶ 116 (defining “[s]ubstantially free of any long
chain branching, as used herein, refers to a polyethylene composition
preferably substituted with less than about 0.1 long chain branching per
1000 total carbons”).
Therefore, we agree with the Examiner that Appellant has not shown
that the claimed polyethylene polymers having an LCBI greater than 0.08
excludes Pepper’s substantially linear polyethylene polymer. Ans. 11.
Claims 1 and 3–5
Claims 1 and 3–5 recite additional properties for the polyethylene
polymer used in making the artificial grass.
The premise of Appellant’s arguments for these claims is that the
Examiner has not established that Pepper’s polyethylene polymer will
necessarily exhibit the claimed properties because, contrary to the claimed
polyethylene polymer, Pepper’s polyethylene polymer is substantially free of
long chain branching. App, Br, 14–15.
We have considered Appellant’s arguments but find them unavailing
for the reasons the Examiner presents (Ans. 12–13) and the reasons we give
above with respect to the grheo and LCBI properties. We again reiterate that
Appellant has not explained adequately how Pepper’s noted preferred
polyethylene polymer embodiments limit Pepper’s broader disclosure for
polyethylene polymers.
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Claims 9 and 10
These claims recite subjecting the slit film or monofilaments to
specific stretch draw ratios. Appellant argues that the cited art does not
teach the recited draw ratios. App. Br. 16.
We are also unpersuaded by this argument. Appellant acknowledges
in the Specification that it is known to prepare slit films from a primary film
that is cut into tapes and oriented typically by stretching. Spec. 2. Further,
Pepper discloses as known to orient polyethylene materials by cold drawing
to make a desired product. Pepper claim 18. While Appellant argues that
the cited art does not teach the claimed draw ratios, Appellant has not
directed us to any evidence of criticality for these claimed draw ratios.
Accordingly, we affirm the Examiner’s prior art rejection of claims 1–
6, 8–10, 12–23, and 25 for the reasons the Examiner presents and we give
above.
ORDER
The Examiner’s prior art rejection of claims 1–6, 8–10, 12–23, and 25
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(a)(1).

AFFIRMED