Sun, Yabin et al.Download PDFPatent Trials and Appeals BoardSep 4, 201914441018 - (D) (P.T.A.B. Sep. 4, 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. 14/441,018 05/06/2015 Yabin Sun 73307-US-PCT 3920 109 7590 09/04/2019 The Dow Chemical Company P.O. BOX 1967 2040 Dow Center Midland, MI 48641 EXAMINER MURATA, AUSTIN ART UNIT PAPER NUMBER 1712 NOTIFICATION DATE DELIVERY MODE 09/04/2019 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): FFUIMPC@dow.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte YABIN SUN, TIMOTHY J. PERSON, JEFFREY M. COGEN, NEIL W. DUNCHUS, and HAO MING TU1 ____________ Appeal 2019-000545 Application 14/441,018 Technology Center 1700 ____________ Before BEVERLY A. FRANKLIN, LINDA M. GAUDETTE, and CHRISTOPHER C. KENNEDY, Administrative Patent Judges. FRANKLIN, Administrative Patent Judge. DECISION ON APPEAL 1 Appellants identify the real party in interest as DOW GLOBAL TECHNOLOGIES LLC. Appeal 2019-000545 Application 14/441,018 2 Appellants request our review under 35 U.S.C. § 134(a) of the Examiner’s decision rejecting claims 1–10. We have jurisdiction over the appeal under 35 U.S.C. § 6(b). STATEMENT OF THE CASE Claim 1 is illustrative of Appellants’ subject matter on appeal and is set forth below (with text in bold for emphasis): 1. A process for preparing a cross-linkable polymeric composition, said process comprising: combining an ethylene-based polymer with an organic peroxide and an antioxidant to thereby form said cross-linkable polymeric composition, wherein said combining step comprises imbibing at least a portion of said organic peroxide and at least a portion of said antioxidant into said ethylene-based polymer, wherein said combining step employs no compounding procedure; wherein said imbibing is effected by immersing or coating at least a portion of said ethylene-based polymer, as pellets, with said organic peroxide and said antioxidant for a time and temperature sufficient to effect such imbibing. The Examiner relies on the following prior art references as evidence of unpatentability: Sehanobish et al. US 2007/0249743 A1 Oct. 25, 2007 (hereafter “Sehanobish”) Laignel et al.2 WO 2010/146300 A1 Dec. 23, 2010 (hereafter “Laignel”) Gustafsson et al., “Stabilization of peroxide crosslinked polyethylene”, Die Angewandte Makromolekulare Chemie, 1998, 261/262, no. 4620, 93-99 (hereafter “Gustafsson”). 2 US 2012/0108758 is used as the English equivalent. Appeal 2019-000545 Application 14/441,018 3 THE REJECTIONS3 1. Claims 1, 2, 4, 6 and 7 are rejected under pre-AIA 35 U.S.C. §103(a) as being unpatentable over Laignel in view of Sehanobish. 2. Claims 3, 5 and 8–10 are rejected under pre-AIA 35 U.S.C. §103(a) as being unpatentable over Laignel in view of Sehanobish and further in view of Gustafsson. ANALYSIS We review the appealed rejections for error based upon the issues identified by Appellants and in light of the arguments and evidence produced thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential), cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) (“[I]t has long been the Board’s practice to require an applicant to identify the alleged error in the examiner’s rejections.”). After considering the evidence presented in this Appeal (including the Examiner’s Answer, the Appeal Brief, and the Reply Brief), we are persuaded that Appellants identify reversible error. Thus, we reverse the Examiner’s rejections and add the following primarily for emphasis. The dispositive issue for both rejections is whether Sehanobish teaches that the antioxidant can be soaked into the polymer without mixing.4 We agree with Appellants that the Examiner has not adequately established that Sehanobish provides this teaching. Appeal Br. 15. We refer to the Table presented by 3 As indicated by the Examiner on page 8 of the Answer, the rejection of claim 22 under 35 U.S.C. § 112 is now moot because this claim has been cancelled. 4 This concerns the claim limitation of “wherein said combining step comprises imbibing at least a portion of said organic peroxide and at least a portion of said antioxidant into said ethylene-based polymer, wherein said combining step employs no compounding procedure”. Appeal 2019-000545 Application 14/441,018 4 Appellants on page 16 of the Appeal Brief for a summary of the Examiner’s position, the relevant teachings of Sehanobish, and Appellants’ position. It appears that the Examiner’s position is that because Sehanobish teaches that crosslinking agents and/or blowing agents may be soaked into the polymer, that this is a basis to infer that the antioxidants can also be soaked into the polymer (without mixing). Final Act. 3–4. However, we agree with Appellants for the reasons given throughout the record, that such a reading of Sehanobish is taken out of context. Sehanobish clearly teaches in paragraphs 80, 81, and 84 that the antioxidant is added during melt blending. It is only the crosslinking and/or blowing agents that may be soaked into the polymer. Sehanobish, ¶ 81. In view of the above, we reverse Rejection 1. We also reverse Rejection 2 for similar reasons. DECISION Each rejection is reversed. ORDER REVERSED Copy with citationCopy as parenthetical citation