Ex Parte Mueller et al

Board of Patent Appeals and Interferences

Jul 23, 2007

10484149 (B.P.A.I. Jul. 23, 2007)

The opinion in support of the decision being entered today is
not binding precedent of the Board.

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte KLAUS MUELLER
and KLAUS KLEMM
____________

Appeal 2007-1482
Application 10/484,149
Technology Center 1700
____________

Decided: July 23, 2007
____________

Before EDWARD C. KIMLIN, THOMAS A. WALTZ, and CATHERINE
Q. TIMM, Administrative Patent Judges.

KIMLIN, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal from the final rejection of claims 1-3, 5-10, and
15-21. Claims 11-14 stand withdrawn from consideration. Claim 1 is
illustrative:
1. A layered composite material, which encompasses at least

a) a polyolefin back layer,
Appeal 2007-1482
Application 10/484,149

b) an intermediate ply arranged on the backing layer and comprising
a thermoplastic polymer material,

c) a heat-cured layer arranged on the intermediate ply, and

d) an outer layer arranged on the heat-cured layer and composed of
thermoplastic,

wherein the thermoplastic in the outer layer is selected from the group
consisting of polycarbonates, acrylonitrile-butadiene-styrene copolymers,
and mixtures of the abovementioned materials, and

wherein the thermoplastic polymer material of the intermediate ply is
selected from the group consisting of polypropylene, polyethylene, polymers
of styrene, polyoxymethylene, and polybutylene terephthalate.

The Examiner relies upon the following references as evidence of
obviousness:
Taubitz US 4,774,286 Sep. 27, 1988
Otawa EP 0371743 Nov. 28, 1989
Appellants' claimed invention is directed to a layered composite
material comprising a polyolefin backing layer, a thermoplastic intermediate
ply on the backing layer, a heat-cured layer on the intermediate ply and an
outer layer composed of polycarbonates, acrylonitrile-butadiene-styrene
copolymers, or mixtures thereof. Appellants' Specification states that it was
known in the prior art to use such polycarbonate outer films, as well as
polycarbonate backing layers. We are told, however, that polycarbonate
backing layers have disadvantages, such as their weight in automotive
applications and their relatively high price. Appellants, therefore, utilize a
lighter, less expensive backing layer of polyolefin in combination with a
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Application 10/484,149

polycarbonate outer layer. Also, the Specification states that for purposes of
the present invention, polycarbonates "may form the outer layer alone or in a
mixture with other plastics compatible therewith…[such as] certain
polyesters" (para. bridging pages 4-5).
Appealed claims 1-3, 5-10 and 15-21 stand rejected under 35 U.S.C.
§ 103(e) as being unpatentable over Otawa in view of Taubitz.
Appellants have not set forth an argument that is reasonably specific
to any particular claim on appeal. Accordingly, all the appealed claims
stand or fall together with claim 1.
We have thoroughly reviewed each of Appellants' arguments for
patentability. However, we are in complete agreement with the Examiner
that the claimed subject matter would have been obvious to one of ordinary
skill in the art within the meaning of § 103 in view of the applied prior art.
Accordingly, we will sustain the Examiner's rejection for the reasons set
forth in the Answer and we add the following primarily for emphasis.
There is no dispute that Otawa, like Appellants, discloses a layered
composite material comprising the presently claimed polyolefin backing
layer, intermediate ply layer and heat-cured layer on the intermediate ply,
but does not teach polycarbonates as the outer layer. Instead, Otawa teaches
polyesters for the outer layer. However, as explained by the Examiner,
Taubitz discloses that it was known in the art that mixing polycarbonates
with polyesters provides "improved mechanical properties, in particular an
improved impact strength" (col. 1, ll. 13-14). Consequently, we find no
error in the Examiner's reasoning that it would have been obvious for one of
ordinary skill in the art to incorporate a polycarbonate in the polyester outer
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Application 10/484,149

layer of Otawa for the purpose of improving its mechanical properties with
the reasonable expectation that a viable outer layer would result having
improved impact resistance, etc. The obviousness of doing so is
underscored by the acknowledgement in Appellants' Specification that the
use of polycarbonates as an outer layer for layered composite materials was
well known in the art.
Appellants maintain that "a person of ordinary skill in the art who
adopted the Examiner's rationale could not reasonably expect to arrive at a
useful composite when the material of the surface skin of Otawa et al.'s
layered composite was replaced by the molding material addressed in the
disclosure of Taubitz et al." (Principal Br. 6, last para., emphasis added).
As noted by the Examiner, however, Appellants' argument misses the thrust
of the Examiner's rejection. The Examiner does not propose replacing the
polyester outer layer of Otawa with the composition of Taubitz but, rather,
adding polycarbonate to the polyester outer layer of Otawa to achieve the
known benefits of the mixture.
Appellants respond in their Reply Brief that an outer layer comprising
a mixture of polyester and polycarbonate "is outside the scope of the claim
[and that] [w]hat is claimed is: a layered composite material, wherein the
thermoplastic in the outer layer is selected from the group consisting of
polycarbonates, acrylonitrile-butadiene-styrene copolymers, and mixtures of
the above-mentioned materials" (Reply Br. 5, last para.). However, as
alluded to by the Examiner, Appellants' claim language "an outer layer …
composed of thermoplastic" is "open" to the outer layer comprising the
recited thermoplastics as well as other materials, such as, polyesters. Indeed,
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Application 10/484,149

as noted above, Appellants' very Specification clearly states that poly-
carbonates of the present invention encompass mixtures of polycarbonates
and polyesters. Consequently, Appellants' argument that "the resultant
'blend' of polyesters and polycarbonates is outside the scope of the claimed
invention" is totally without merit (see Reply Br. 7, second para.).
As a final point, we note that Appellants base no argument upon
objective evidence of nonobviousness, such as unexpected results, which
would serve to rebut the inference of obviousness established by the
Examiner.
In conclusion, based on the foregoing and the reasons well-stated by
the Examiner, the Examiner's decision rejecting the appealed claims is
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)(iv)(effective Sept.
13, 2004).
AFFIRMED

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