CONTINENTAL STRUCTURAL PLASTICS, INC.

Patent Trials and Appeals Board

Jun 8, 2021

2020003737 (P.T.A.B. Jun. 8, 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.
14/917,107 03/07/2016 Frank Macher CSP-189US 8133
13173 7590 06/08/2021
Blue Filament Law
700 E. Maple Road
Suite 450
Birmingham, MI 48009
EXAMINER
WIECZOREK, MICHAEL P
ART UNIT PAPER NUMBER
1712
NOTIFICATION DATE DELIVERY MODE
06/08/2021 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):
ag@bluefilamentlaw.com
patentdocketing@bluefilamentlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte FRANK MACHER and PROBIR KUMAR GUHA
Appeal 2020-003737
Application 14/917,107
Technology Center 1700
Before KAREN M. HASTINGS, N. WHITNEY WILSON, and
JEFFREY R. SNAY, Administrative Patent Judges.
HASTINGS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1, 3, 5, 6, and 21. See Final Act. 1. We
have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the term “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies the real party in interest as Continental
Structural Plastics Inc. Appeal Br. 3.
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Application 14/917,107

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CLAIMED SUBJECT MATTER
The claims are directed to a plasma treatment of microsphere filler
particulate and forming an article from a thermoset resin containing the
particulates. Spec. ¶¶ 2, 9. Claim 1, reproduced below, is illustrative of the
claimed subject matter:
1. A process of forming an article from a thermoset resin
containing particle filler, the process comprising:
exposing the particle filler to plasma generated from a gas
selected from the group consisting of:
oxygen, nitrogen, air, or mixtures containing any of the
aforementioned gases in a fluidized bed reactor with oxygen
present to form activation sites of oxygen reactive moieties of
hydroxyl, single oxygen, or peroxides on a surface of the particle
filler;
crosslinking the particle filler to the thermoset resin via the
activation sites; and
curing the article outside the fluidized bed reactor;
wherein the particle filler are hollow glass microspheres
and wherein the thermoset resin is a styrene based SMC matrix
to form the article.
REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Ivanchev US 4,216,024 Aug. 5, 1980
Rinz US 5,854,317 Dec. 29, 1998
Polizzotti US 6,106,653 Aug. 22, 2000
Janssen US 2003/0157000 A1 Aug. 21, 2003
Beach US 7,700,670 B2 Apr. 20, 2010

REJECTIONS
Claims 1, 5, 6, and 21 are rejected under 35 U.S.C. § 103 as being
unpatentable over Beach, Polizzotti, Janssen, and Rinz. Final Act. 3.
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Claim 3 is rejected under 35 U.S.C. § 103 as being unpatentable over
Beach, Polizzotti, Janssen, Rinz, and Ivanchev. Final Act. 6.

Appellant’s arguments focus on independent claim 1 (Appeal Br. 10).

Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis
1, 5, 6, 21 103 Beach, Polizzotti,
Janssen, Rinz
3 103 Beach, Polizzotti, Jans,
Rinz, Ivanchev

OPINION

Upon consideration of the evidence of record and each of Appellant’s
contentions as set forth in the Appeal Brief, as well as the Reply Brief, we
determine that Appellant has not demonstrated reversible error in the
Examiner’s rejections (e.g., see generally Final Act.). In re Jung, 637 F.3d
1356, 1365–66 (Fed. Cir. 2011) (explaining the Board’s long-held practice
of requiring Appellant(s) to identify the alleged error in the Examiner’s
rejection). We sustain the rejections for the reasons expressed by the
Examiner in the Final Office Action and the Answer. We add the following
for emphasis.
The Examiner finds that Beach teaches forming an article from a
thermoset resin, where the article includes hollow glass microspheres as
filler (Final Act. 3). The microspheres are coated with a silane coupling
agent to crosslink the resin with the microspheres. Id. The Examiner relies
on Polizzotti to teach the activation of the silane coupling agent by exposing
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Application 14/917,107

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the coated microspheres to plasma (Final Act. 4). Beach teaches a fluidized
bed reactor is known for treating microparticles with plasma (Final Act. 5).
Rinz teaches that thermoset resins, such as those of Beach, are known to be
styrene based (Final Act. 5‒6; see Beach col. 3, ll. 35–37; Rinz col. 3, ll. 1–
16). The Examiner concludes that it would have been obvious to have
combined these prior art teachings to arrive at the claimed process where the
adhesion of the microparticles to the resin is improved by the plasma
treatment (Final Act. 6).
It is well settled that, “the test for obviousness is what the combined
teachings of the references would have suggested to those having ordinary
skill in the art.” In re Mouttet, 686 F.3d 1322, 1333 (Fed. Cir. 2012).
Appellant asserts that hollow glass microspheres are fragile, and, as such,
would not have been contemplated for plasma treatment due to this delicate
nature (Appeal Br. 16). As noted by the Examiner (Ans. 5), Appellant
provides no evidence to support this assertion. Therefore, it amounts to a
mere conclusory statement that is entitled to little, if any, probative weight.
See, e.g., In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997).
We are also unpersuaded by Appellant’s assertion that the Examiner
disregarded Appellant’s submitted evidence in the Siwajek Declaration
(Appeal Br. 16‒17; Reply Br. 6, 8‒9). Rather, the Examiner found the
evidence insufficient to outweigh the evidence of obviousness (Ans. 4). To
the extent that the personal knowledge of Dr. Siwajek as a “recognized
leader in the development and application of carbon fiber and lightweight
composites” is presented as evidence (Siwajek Decl. ¶ 3), the Declaration
does not sufficiently explain the basis of his personal knowledge about
beliefs in the molding industry with regard to plasma treatment to increase
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activation sites on a filler (Siwajek Decl. ¶ 5). Therefore, essentially for the
reasons explained by the Examiner and above, we do not find the
Declaration opinion persuasive of reversible error. In re Am. Acad. of Sci.
Tech Ctr., 367 F.3d 1359, 1368 (Fed. Cir. 2004) (“[T]he Board is entitled to
weigh the declarations and conclude that the lack of factual corroboration
warrants discounting the opinions expressed in the declarations.”). Cf.
Velander v. Garner, 348 F.3d 1359, 1371 (Fed. Cir. 2003) (“In giving more
weight to prior publications than to subsequent conclusory statements by
experts, the Board acted well within [its] discretion.”); Yorkey v. Diab, 601
F.3d 1279, 1284 (Fed. Cir. 2010) (factfinder has discretion to give more
weight to one item of evidence over another “unless no reasonable trier of
fact could have done so”).
Appellant argues the failure of Polizzotti and Janssen to teach hollow
glass microspheres (Appeal Br. 18, 19). However, Appellant’s arguments are
not persuasive of reversible error as they fail to consider the applied prior art
as a whole and the inferences that one of ordinary skill would have made.
One cannot show nonobviousness by attacking references individually
where the rejections are based on combinations of references. In re Merck &
Co., 800 F.2d 1091 (Fed. Cir. 1986); In re Keller, 642 F.2d 413 (CCPA
1981). Neither Polizzotti, nor Janssen, is relied upon to teach the hollow
glass microspheres (Final Act. 4, 5). Rather, it is Beach that clearly teaches
hollow glass microspheres (Final Act. 3; see Beach col. 2, ll. 22‒26).
Therefore, Appellant’s arguments directed to the failure of Polizzotti and
Janssen to teach hollow glass microspheres as claimed are not persuasive of
reversible error (Appeal Br. 18‒20) because they do not adequately address
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the combination of Beach, Polizzotti, and Janssen as set forth by the
Examiner.
Appellant submits that if the claimed invention were obvious, given
that Beach postdates the other applied references, the inventors of Beach
would have combined the prior art elements as presented in the instant
application in 2006 (Appeal Br. 21; Reply Br. 7). This submission, however,
is not convincing of reversible error because, “[t]he mere age of the
references is not persuasive of the unobviousness of the combination of their
teachings, absent evidence that, notwithstanding knowledge of the
references, the art tried and failed to solve the problem.” In re Wright, 569
F.2d 1124, 1127 (CCPA 1977) (citations omitted). Appellant has provided
no such evidence.
Appellant declares that by modifying the rejections of the claims, the
Examiner is conceding the patentability of the present invention (Appeal Br.
22‒24; Reply Br. 3‒5). The Examiner correctly notes that the claims have
been amended multiple times, therefore changing the scope of the claimed
invention and necessitating a new grounds of rejection (Ans. 5‒6). These
new grounds are not a concession of patentability. Id. Additionally, our
jurisdiction is limited to the review of the merits of rejections of claims and
those matters that directly relate to matters involving the merits of
those rejections. 35 U.S.C. §§ 6(b)(1) and 134(a) (2012); In re
Hengehold, 440 F.2d 1395, 1404, (CCPA 1971). As stated in Hengehold:
There are a host of various kinds of decisions an examiner makes in
the examination proceeding— mostly matters of a discretionary,
procedural or nonsubstantive nature— which have not been and are
not now appealable to the board or to this court when they are not
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directly connected with the merits of issues involving rejections of
claims, but traditionally have been settled by petition to the [Director].
Hengehold, 440 F.2d at 1403.
Any review of the Examiner’s actions during prosecution would, at
best, be by petition rather than by appeal.
Therefore, Appellant’s arguments fail to persuade us of reversible
error in the Examiner’s obviousness rejection for the reasons detailed by the
Examiner (Ans. 3‒6) and because they fail to appreciate the inferences that
one of ordinary skill would have made from the applied prior art.
Accordingly, we sustain the Examiner’s rejection of independent
claims 1, as well as dependent claims 3, 5, 6, and 21, noting that claim 3 is
not separately argued, even though it is rejected separately (generally
Appeal Br.).

CONCLUSION

The Examiner’s rejections are AFFIRMED.

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Application 14/917,107

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DECISION SUMMARY
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 5, 6, 21 103 Beach, Polizzotti,
Janssen, Rinz
1, 5, 6, 21
3 103 Beach, Polizzotti,
Janssen, Rinz,
Ivanchev
3
Overall
Outcome
1, 3, 5, 6, 21

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