Ex Parte McLeod et al

Patent Trials and Appeals Board

Mar 15, 2019

14832350 - (D) (P.T.A.B. Mar. 15, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/832,350 08/21/2015 Michael McLeod
25264 7590 03/19/2019
FINA TECHNOLOGY INC
PO BOX 674412
HOUSTON, TX 77267-4412
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.
COS-1349 4005
EXAMINER
RABAGO, ROBERTO
ART UNIT PAPER NUMBER
1762
NOTIFICATION DATE DELIVERY MODE
03/19/2019 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 MICHAEL MCLEOD and
DOUGLAS BURMASTER
Appeal2018-003772
Application 14/832,350 1
Technology Center 1700
Before JEFFREY T. SMITH, BEVERLY A. FRANKLIN, and
GEORGIANNA W. BRADEN, Administrative Patent Judges.
SMITH, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
This is an appeal under 35 U.S.C. § 134(a) from the Examiner's Final
rejection of claims 1, 4--8, 11-13, 16, and 17.2 We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.
1 Appellants identify FINA TECHNOLOGY, INC. as the real party in
interest. (See App. Br. 5).
2 The Examiner has indicated that the subject matter of claims 5-7, 14, 16,
20 and 21 have been withdrawn from consideration. (Final Act. 1 ).
Appeal2018-003772
Application 14/832,350
The appealed claims relate to a process for producing polyolefin
pellets comprising vis-breaking polypropylene in the presence of 3, 6, 9-
triethyl-3, 6, 9-trimethyl-1, 4, 7-triperoxonane to obtain vis-broken
polypropylene. (Spec. ,r 5). Independent claim 1 is representative of the
appealed subject matter and is reproduced below:
1. A process for producing pellets comprising:
vis-breaking polypropylene in the presence of 3, 6, 9-triethyl-3,
6, 9-trimethyl-1, 4, 7-triperoxonane to obtain vis-broken
polypropylene, wherein 3, 6, 9-triethyl-3, 6, 9-trimethyl-1, 4, 7-
triperoxonane is present in the vis-broken polypropylene in an
amount ranging from greater than O ppm to at most 400 ppm
(by weight); and
pelletizing the vis-broken polypropylene to obtain pellets
wherein a ratio of a melt flow rate (MI2) of the pellets to a melt
flow rate (MI2) of the polypropylene prior to the vis-breaking is
greater than 1: 1 and at most 2: 1 and wherein the melt flow rates
(MI2) are determined in accordance with ASTM D-1238 at
I90°C and a load of2.I6kg.
App. Br. 17, Claims App.
Appellants (see App. Br., generally) request review of the following
rejections by the Examiner:
Claims 11, 12, 16, and 17 rejected under 35 U.S.C. § 112(b) as
indefinite.
Claims 1, 4--8, and 13 rejected under 35 USC §I03(a) over
Zummallen (US 2010/0324225 Al; pub. Dec. 23, 2010) and Albe
(US 6,610,792 B2; iss. Aug. 26, 2003, hereinafter "Albe"). 3
3 The Examiner cites Albe in the rejection as evidence that Trigonox 301 is
a commercial product comprising the peroxide in ISOP ARM (isoparaffin)
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Appeal2018-003772
Application 14/832,350
Claims 11, 12, 16 and 17 rejected under 35 USC § 103 as obvious
over Zummallen, Tohi et al. (US 2008/0220193 Al; pub. Sept. 11,
2008, hereinafter "Tohi") and lsaki et al. (US 2010/0295205 Al;
pub. Nov. 25, 2010, hereinafter "Isaki").
The complete statement of the rejections on appeal appears in
the Final Office Action. (Final Act. 2-7).
OPINION
Rejections 35 USC § 112(b)
After consideration of Appellants' arguments and the Examiner's
position in the Final Office Action and Answer, we reverse.
"[W]e apply the approach for assessing indefiniteness approved by the
Federal Circuit in Packard, i.e., '[a] claim is indefinite when it contains
words or phrases whose meaning is unclear."' Ex parte McAward, No.
2015-006416, 2017 WL 3669566, at *5 (PTAB Aug. 25, 2017)
(precedential) (quoting In re Packard, 751 F.3d 1307, 1310, 1314 (Fed. Cir.
2014)). The language in 35 U.S.C. § 112, second paragraph, "of
'particular[ity ]' and 'distinct[ ness ]' indicates[] claims are required to be cast
in clear-as opposed to ambiguous, vague, indefinite-terms." Packard,
7 51 F .3d at 1313. The Examiner bears the initial burden of establishing that
the original application disclosure as a whole would not have reasonably
conveyed to those skilled in the art that the inventors had possession of the
claimed subject matter at the time the instant application was filed. Ariad
Pharm., Inc. v. Eli Lilly and Co., 598 F.3d 1336, 1351 (Fed. Cir. 2010) (en
bane); In re Alton, 76 F.3d 1168, 1172, 1175-76 (Fed. Cir. 1996) (citing In
diluent. (Final Act. 4). Appellants do not address the reason the Examiner
cited Albe. (See Appeal and Reply Briefs generally).
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Appeal2018-003772
Application 14/832,350
re Wertheim, 541 F.2d 257, 262---64 (CCPA 1976)); In re Wright, 866 F.2d
422, 425 (Fed. Cir. 1989).
The Examiner determined claims 11, 12, 16 and 17 require pellets
wherein 90-100% are of "uniform" size. The Examiner determined
"uniform" is a term of degree and neither the claims nor the Specification
provides sufficient information to unambiguously determine the intended
scope or range of what constitutes a size being uniform and therefore the
ordinary skilled worker could not determine the required degree of
uniformity for sorting the pellets into the specific numerical percentages
required in the claims. (Final Act. 2). The Examiner also determined claims
11, 12, 16 and 17 require pellets wherein 90-100% are "spherical." The
Examiner determined, from the depictions in Figure 1 A, Appellant is not
using the standard definition of the term "spherical" to describe the claimed
pellets. According to the Examiner, the issue is the claimed quantitative
requirement for determining the specific numerical percentage of spherical
pellets required by the claims. (Final Act. 3).
Appellants contend a person skilled in the art, based on the definition
provided in the Webster's Unabridged Dictionary (2001) page 1836, would
have been capable of determining the scope of the term "uniform."
Appellants also contend a person skilled in the art, based on the definition
provided in the Webster's Unabridged Dictionary and the Tohi and Isaka
prior art references cited by the Examiner, would have been capable of
determining the scope of the term "spherical." (App. Br. 11).
The Examiner has not refuted Appellants' position that a person of
ordinary skill in the art would have been capable of determining the scope of
the terms "uniform" and "spherical." Nor has the Examiner identified the
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Appeal2018-003772
Application 14/832,350
portions of the Specification that indicates Appellants are utilizing a
definition that is contrary to the plain and ordinary meaning of the terms
uniform and spherical. Based on the evidence of record, we agree with
Appellants and we reverse.
Rejection 35 USC § 103(a) 4
After consideration of Appellants' arguments and the Examiner's
position in the Final Office Action and Answer, we affirm the obviousness
determinations for the reasons provided by the Examiner. We add the
following for emphasis.
The Examiner found Zummallen discloses controlled rheology
polypropylene prepared by contacting polypropylene with a cyclic peroxide
under scission conditions. (Final Act. 2-3). Zummallen discloses scission
conditions result in the MFR (melt flow ratio) of the polypropylene being
increased by a factor of at least 2. (Zummallen Jr 20). The Examiner found
Zummallen discloses treating the polypropylene with at least 50 ppm of
3,6,9-triethyl-3,6,9-trimethyl- 1,4,7-triperoxonane which results in pellets
have MFR increased by at least a factor of 2. (Zummallen, Table 1 ). The
Examiner found 3,6,9-triethyl-3,6,9-trimethyl-1,4,7-triperoxonane,
commercially available as Trigonox 301. (Zummallen Jr 28). The Examiner
found Zummallen Example C-7 exemplifies using 410 ppm of Trigonox 301
resulting in a MFR ratio of 5 .1. The Examiner found Zummallen exhibits
that increasing the amount of peroxide increases the ratio.
4 Appellants present arguments principally directed to the first rejection and
specifically independent claim 1. (App. Br. 12-15). Appellants do not
present substantive arguments addressing the rejection of claims 11, 12, 16,
and 17. (App. Br.15). We will address the claims as argued by Appellants.
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Appeal2018-003772
Application 14/832,350
Appellants argue that the Examiner's rejection is improper because
Zummallen does not teach adjusting peroxide levels or that peroxide levels
are a result-effective variable. (App. Br. 12). Appellants contend
Zummallen's Table 3 provides no guidance to adjust peroxide levels to
achieve a particular MFR because other conditions such as backpressure on
extrusion and melt temperature could have effect on the results as evidenced
by examples A-7 and B-7. (App. Br. 13). Appellants argue the Examiner
has failed to establish that Zummallen teaches varying the amount of
peroxide to an amount of less than 400 ppm would necessarily result in a
visbreak ratio of between 1: 1 and 2: 1. 5 (App. Br. 13-14).
Appellants' arguments lack persuasive merit. Zummallen teaches
processes utilizing least 50 ppm to preferably 3000 ppm peroxide occurring
under chain scission conditions (peroxide reacts to cut the polymer chain)
that results in MFR increase of at least 2 (i.e., resulting in shorter chains
having a higher MFR). (Zummallen ,r,r 20 and 31 ). Appellants appear to
rely on obtaining the visbreak ratio of between 1: 1 and 2: 1 - achieved by
varying the amount of peroxide to an amount of between greater than O ppm
to at most 400 ppm ( or 150 ppm and 250 ppm for claim 13) - would
necessarily result in a patently distinct invention from Zummallen.
Zummallen discloses preparing controlled rheology polypropylene prepared
by contacting polypropylene with a 3,6,9-triethyl-3,6,9-trimethyl- 1,4,7-
triperoxonane under scission conditions which are the same as those
disclosed in the instant Specification as required for achieving the claimed
result. (See Zummallen ,r,r 28, 31; see Spec. ,r 15). Furthermore, contrary to
5 Addressing the patentability of claim 13, Appellants rely upon this same
theory. (App. Br. 14).
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Appeal2018-003772
Application 14/832,350
Appellants' arguments, Zummallen discloses visbreaking the non-CR-
polypropylene to achieve a specific MFR. Zummallen specifically states:
"The low-MFR, non-CR-polypropylene may be visbroken to achieve a
specific MFR. However, preferably the vis breaking ratio (i.e., MFR after
vis breaking to MFR before visbreaking) is limited to 50 or less, preferably
to 40 or less and more preferably to 30 or less." (Zummallen ,r 33).
Consequently, we find that a person of ordinary skill in the art
following the teachings of Zummallen would have had sufficient skill to
perform the disclosed process resulting in vis-broken polypropylene pellets
wherein the ratio of a melt flow rate of the pellets to a melt flow rate of the
polypropylene prior to the vis-breaking is greater than 1: 1 and at most 2: 1 as
required by the claims.
Appellants have failed to direct us to evidence that establishes a
patentable distinction that is achieved over the teachings of Zummallen that
are reasonably commensurate with the scope of protection sought by the
claims on appeal. Cf In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997);
In re Klosak, 455 F.2d 1077, 1080 (CCPA 1972) ("[T]he burden of showing
unexpected results rests on he who asserts them."); see also In re Harris,
409 F.3d 1339, 1344 (Fed. Cir. 2005) ("Even assuming that the results were
unexpected, Harris needed to show results covering the scope of the claimed
range. Alternatively Harris needed to narrow the claims."); In re Greenfield,
571 F.2d 1185, 1189 (CCPA 1978) ("Establishing that one (or a small
number of) species gives unexpected results is inadequate proof, for 'it is the
view of this court that objective evidence of non-obviousness must be
commensurate in scope with the claims which the evidence is offered to
support."') (quoting In re Tiffin, 448 F.2d 791,792 (CCPA 1971)); In re
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Application 14/832,350
Woodruff, 919 F.2d 1575, 1578 (Fed. Cir. 1990) (indicating that in cases in
which the difference between the claimed invention and the prior art is some
range or other variable within the claims, the applicant must show that the
particular range is critical, generally by showing that the claimed range
achieves unexpected results relative to the prior art range).
For the foregoing reasons and those presented by the Examiner, we
sustain the Examiner's obviousness determinations.
DECISION
The Examiner's rejections of claims 11, 12, 16 and 17 under 35 U.S.C.
§ 112(b) are reversed.
The Examiner's rejections of claims 1, 4--8, 11-13, 16, and 17 under
35 U.S.C. §103(a) are affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
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