Romain LuijkxDownload PDFPatent Trials and Appeals BoardAug 6, 201913825738 - (D) (P.T.A.B. Aug. 6, 2019) 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. 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. Appeal 2018-008280 Application 13/825,738 2 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. Appeal 2018-008280 Application 13/825,738 3 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. Appeal 2018-008280 Application 13/825,738 4 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. Appeal 2018-008280 Application 13/825,738 5 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 Appeal 2018-008280 Application 13/825,738 6 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. Appeal 2018-008280 Application 13/825,738 7 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 Appeal 2018-008280 Application 13/825,738 8 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. Appeal 2018-008280 Application 13/825,738 9 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 Copy with citationCopy as parenthetical citation