Ex Parte Brita et al

Patent Trials and Appeals Board

Jul 8, 2019

14365438 - (D) (P.T.A.B. Jul. 8, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/365,438 06/13/2014
24114 7590 07/10/2019
LyondellBasell Industries
Legal IP Department
1221 McKinney Street, Suite 700
LyondellBasell Tower
Houston, TX 77010
FIRST NAMED INVENTOR
Diego Brita
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
FE6721 6014
EXAMINER
BLACKWELL, GWENDOLYN
ART UNIT PAPER NUMBER
1762
NOTIFICATION DATE DELIVERY MODE
07/10/2019 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):
legal-IP@ lyondellbasell. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DIEGO BRITA, GIANNI COLLINA, and GIAMPIERO MORINI
Appeal2018-008320
Application 14/365,438
Technology Center 1700
Before LINDA M. GAUDETTE, MONTE T. SQUIRE, and LILAN REN,
Administrative Patent Judges.
GAUDETTE, Administrative Patent Judge.
DECISION ON APPEAL 1
The Appellant2 appeals under 35 U.S.C. § 134(a) from the Examiner's
decision finally rejecting claims 1, 3, 6, and 8-10 under 35 U.S.C. § 103(a)
as unpatentable over Kioka (US 5,153,158, issued Oct. 6, 1992).3
We AFFIRM.
1 This Decision includes citations to the following documents: Specification
filed June 13, 2014 ("Spec."); Final Office Action dated September 22, 2017
("Final"); Appeal Brief filed March 14, 2018 ("Br."); and Examiner's
Answer dated June 4, 2018 ("Ans.").
2 The Appellant, also identified as the real party in interest, is Basell
Poliolefine SRL. Br. 2.
3 We have jurisdiction under 35 U.S.C. § 6(b).
Appeal2018-008320
Application 14/365,438
"The ... invention relates to catalyst components for the preparation
of ethylene ( co )polymers by using gas-phase, slurry or bulk
( co )polymerization processes." Spec. ,i 1. Claim 1, the sole independent
claim on appeal, is reproduced below.
1. A pre-polymerized catalyst component for the
polymerization of ethylene comprising a mercury porosity
(radius of up to 1 µm) of 0.23-0.3 cm3/g, comprising (i) a non-
stereospecifzc solid catalyst component comprising Ti, Mg and
a halogen and (ii) an amount of an ethylene/alpha-olefin block
( co )polymer ranging from 0.1 to less than 3 gram per gram of
solid catalyst component (i), said pre-polymerized catalyst
component having a mercury porosity due to pores of up to 1
µm of 35-62% of the mercury porosity value of the non-
stereospecifzc solid catalyst component (i).
Br. 11 (Claims Appendix) (emphasis added).
The Appellant does not present separate arguments in support of
patentability of any particular claim or claim grouping. See generally Br. 4-
9. Accordingly, we decide the appeal as to all claims on the basis of
independent claim 1. See 37 C.F.R. § 41.37(c)(l)(iv) (2017) ("When
multiple claims subject to the same ground of rejection are argued as a group
or subgroup by appellant, the Board may select a single claim from the
group or subgroup and may decide the appeal as to the ground of rejection
with respect to the group or subgroup on the basis of the selected claim
alone.").
The Examiner found Kioka discloses the invention as recited in claim
1 with the exceptions that Kioka ( 1) does not disclose explicitly that the
solid catalyst component is non-stereospecific, and (2) is silent as to mercury
porosity. Final 3-5; see italicized language in claim 1 supra. The Examiner
determined there is a "reasonable basis to believe that the catalyst
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Application 14/365,438
component of Kioka ... is non-stereospecific" because Kioka uses "an
electron donor that is an ester of an aliphatic or aromatic carboxylic acid ...
as claimed in instant claim 8 at an electron donor to Ti molar ratio of 0.2 to
6," which "is within the range disclosed in the instant specification of lower
than 10." Final 4 (citing Kioka 6:9-40, 9:33; Spec. ,i 21). The Examiner
further determined that because "Kioka ... teaches a pre-polymerized
catalyst component comprising claimed catalyst components (i) and (ii) in
an amount of an ethylene-alpha-olefin block polymer overlapping the
claimed range there is reasonable basis to believe that the pre-polymerized
catalyst component of Kioka ... has a porosity that at least overlaps the
claimed range[]." Id. at 4-5 (citing Spec. ,i 7 ("The applicant has now found
that by subjecting a solid catalyst component to a specific sequential
prepolymerization treatment with certain monomers it is possible to obtain a
catalyst prepolymerized with a block copolymer endowed with a peculiar
porosity feature.")).
"[W]hen[, as here,] the prior art evidence reasonably allows the PTO
to conclude that a claimed feature is present in the prior art, the evidence
'compels such a conclusion if the applicant produces no evidence or
argument to rebut it."' In re Crish, 393 F.3d 1253, 1259 (Fed. Cir. 2004)
(quoting In re Spada, 911 F.2d 705, 708 n.3 (Fed. Cir. 1990)).
The Appellant does not dispute the Examiner's finding that Kioka
discloses a pre-polymerized catalyst component comprising
ethylene/propylene block copolymer in an amount that overlaps the claimed
range of 0.1 to less than 3 gram per gram of solid catalyst component. Br. 4-
5; see Final 4 (citing Kioka 16:15-16); Kioka 16:10-15 ("The
prepolymerization is carried out by prepolymerizing at least 2 types of a-
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Appeal2018-008320
Application 14/365,438
olefin in an amount based on 1 g of the solid titanium catalyst component ..
. , particularly preferably 2 to 200 g."). The Appellant argues, however, that
the ordinary artisan would not have understood Kioka as suggesting the
claimed range because all of Kioka's examples utilize a-olefin in amounts of
no less than 250 grams per gram of catalyst. Br. 5. The Appellant's
argument is not persuasive because "[a] reference must be considered for
everything that it teaches, not simply the described invention or a preferred
embodiment." In re Applied Materials, Inc., 692 F.3d 1289, 1298 (Fed. Cir.
2012); see also In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004) ("The
prior art's mere disclosure of more than one alternative does not constitute a
teaching away from any of these alternatives because such disclosure does
not criticize, discredit, or otherwise discourage the solution claimed in the ..
. application."); Ans. 5-6 ("Disclosed examples and preferred embodiments
do not constitute a teaching away from a broader disclosure or non-preferred
embodiments.").
The Appellant argues "Kioka is directed to the preparation of a
different polymer product as compared to that produced by the present
invention" and that due to "the significant differences between the Ti
concentrations" in Kioka's versus the claimed pre-polymerized catalyst
component, the same levels of non-stereospecificity would not be expected.
Br. 6. This argument is not persuasive because it is conclusory and, without
more, insufficient to show reversible error in the Examiner's rejection. In re
Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997) (explaining that mere
lawyer's arguments or conclusory statements, which are unsupported by
concrete factual evidence, are entitled to little probative value). Thus, as
noted by the Examiner, the Appellant has not shown persuasively that the
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Application 14/365,438
Examiner erred in finding Kioka' s catalyst component is "non-
stereospecific," which is all that is required by claim 1. Ans. 7.
The Appellant argues that the Examiner has not identified sufficient
support for finding Kioka's prepolymerized catalyst component would be
expected to possess a porosity that at least overlaps the claimed range. Br. 8.
The Appellant argues a particular order of prepolymerization of the
monomers is necessary to obtain the claimed prepolymerized catalyst. Id.
The Appellant argues that because Kioka uses a different order of
prepolymerization than the order used in making the pre-polymerized
catalyst component of the invention, Kioka obtains a different
prepolymerized catalyst component that is not encompassed by appealed
claim 1. Id. In support of this argument, the Appellant cites Comparative
Example 1 of the Specification. Id. The Appellant's argument is not
persuasive.
First, the Appellant relies solely on attorney argument in support of its
assertion that "the descriptive ordering of the copolymer in Kioka, i.e.[,] first
'ethylene' followed by 'alpha-olefin,' is not arbitrary or capricious but
instead indicative to the skilled artisan of the order in which the two
monomers are pre-polymerized," Br. 8. See Geisler, 116 F.3d at 1471
( explaining that argument by counsel cannot take the place of evidence).
Second, as noted by the Examiner, the claims are directed to a product, not a
method of producing that product. Ans. 9. The Appellant has not shown that
Comparative Example 1 of the Specification produced the same pre-
polymerized catalyst component described in Kioka. In other words, the
Appellant has not provided persuasive evidence that Kioka's pre-
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Application 14/365,438
polymerized catalyst component does not possess the porosity features
recited in appealed claim 1.
Any additional arguments made by the Appellant, but not discussed
explicitly herein, have been addressed by the Examiner and are unpersuasive
for the reasons stated in the Final Office Action and the Answer. As noted
by the Examiner, the Appellant relies on new evidence in the Appeal Brief.
Ans. 6-9. As such, the Examiner properly declined to consider such
evidence. See 37 C.F.R. § 41.37(c)(2).
In conclusion, for the reasons stated in the Final Office Action, the
Answer, and above, we are not persuaded of reversible error in the
Examiner's rejection of claims 1, 3, 6, and 8-10 under 35 U.S.C. § 103(a) as
unpatentable over Kioka.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § l .136(a)(l )(iv).
AFFIRMED
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