Sun, Yabin et al.

Patent Trials and Appeals Board

Sep 4, 2019

14441018 - (D) (P.T.A.B. Sep. 4, 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.
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