Ex Parte Restuccia et al

Patent Trials and Appeals Board

Mar 20, 2019

13862874 - (D) (P.T.A.B. Mar. 20, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/862,874 04/15/2013
8015 7590 03/22/2019
CYTEC INDUSTRIES INC.
1937 WEST MAIN STREET
STAMFORD, CT 06902
FIRST NAMED INVENTOR
Carmelo Luca Restuccia
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.
11014S-US-NP 6650
EXAMINER
HANDVILLE, BRIAN
ART UNIT PAPER NUMBER
1783
NOTIFICATION DATE DELIVERY MODE
03/22/2019 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):
StamfordPatent@solvay.com
Cheryle.Telesco@solvay.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CARMELO LUCA RESTUCCIA, EMILIANO FRULLONI, and
FIORENZO LENZI
Appeal2018-001496
Application 13/862,874
Technology Center 1700
Before DONNA M. PRAISS, MICHELLE N. ANKENBRAND, and
CHRISTOPHER C. KENNEDY, Administrative Patent Judges.
PRAISS, Administrative Patent Judge.
DECISION ON APPEAL 1
Appellant2 seeks our review under 35 U.S.C. § 134(a) of the
Examiner's decision rejecting claims 28-33, 35-38, and 40-44. 3 We have
jurisdiction over the appeal under 35 U.S.C. § 6(b).
We REVERSE.
1 In this decision we reference the Specification filed Apr. 15, 2013
("Spec."), the Final Office Action dated Mar. 1, 2017 ("Final Act."), the
Advisory Action dated June 15, 2017 ("Advisory Act."), the Appeal Brief
filed July 31, 2017 ("Appeal Br."), the Examiner's Answer dated Sept. 27,
2017 ("Ans."), and the Reply Brief filed Nov. 27, 2017 ("Reply Br.").
2 Cytec Technology Corp. is the Applicant/ Appellant and also identified as
the real party in interest. Appeal Br. 2.
3 Claims 34 and 39 have been cancelled. Advisory Act. 2; cf Ans. 2, 6-7.
Appeal2018-001496
Application 13/862,874
STATEMENT OF THE CASE
According to the Specification, composites with increased electrical
conductivity are required for aircraft primary structures to provide lightning
strike protection, potential discharge, electrical grounding, and
electromagnetic shielding. Spec. 1. The electrical conductivity of resins and
composites can be improved by incorporating conductive particles or
polymers in the resin matrix. Id. Claim 28 is illustrative of the subject
matter on appeal and is copied below from the Claims Appendix to the
Appeal Brief ( disputed limitations are italicized):
28. A curable composite material comprising:
at least one structural layer of reinforcing fibres
impregnated with a curable resin matrix; and
a nonwoven veil adjacent to said structural layer, said
veil comprising conductive polymeric fibres arranged randomly,
wherein the conductive polymeric fibres are formed from
a blend of a conductive material and a polymeric material, and
the polymeric material comprises one or more polymers that are
initially in a solid phase and substantially insoluble in the
curable resin matrix prior to curing of the curable resin matrix,
but is able to undergo at least partial phase transition to a fluid
phase upon curing of the resin matrix.
Appeal Br. 13 (Claims Appendix). 4
Independent claims 29 and 30 are similar to claim 28, but are
directed to "[a] structural preform adapted for resin infusion." Instead
of claim 28 's "at least one structural layer ... with a curable resin
matrix," claim 29 recites "multiple layers of reinforcing fibres that are
not impregnated with resin" and claim 30 recites "reinforcing fibres in
4 We use the terms "fibres" and "fibers" interchangeably in this Decision.
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Application 13/862,874
physical association with conductive polymeric fibres." Claims
Appendix (not paginated). Instead of claim 28's "a nonwoven veil ...
comprising conductive polymeric fibres arranged randomly," claim 29
recites "at least one nonwoven veil comprised of conductive
polymeric fibres arranged randomly." Id. Claim 30 does not recite a
"nonwoven veil." Id.
THE REJECTION5
Claims 28-33, 35-38, and 40-44 stand rejected under 35 U.S.C.
§ I03(a) as being unpatentable over Cawse6 in view of Simmons. 7
ANALYSIS
We need to address only the disputed limitations in claim 28 because
the Examiner's rejection of each of independent claims 28-30 is based on
the same findings, specifically, that the prior art combination discloses the
recited "conductive polymeric fibres ... formed from a blend of a
conductive material and a polymeric material." Final Act. 3-7; Ans. 2---6.
The Examiner finds (Final Act. 5) that Cawse discloses a composite
material having multiple structural layers of reinforcing fibers ( 11) and an
interleaf layer (12) comprising conducting particles (13) adjacent to a first
structural layer as shown in annotated Figure 2:
5 Appellant overcame the rejection of claims 34 and 39 under 35 U.S.C.
§ 112, first paragraph, for failing to comply with the written description
requirement by cancelling claims 34 and 39. Advisory Act. 2.
6 US 2008/0295955 Al, pub. Dec. 4, 2008.
7 US 2011/0163275 Al, pub. July 7, 2011.
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Application 13/862,874
-. - - - - - - - - - - - -·- - - - - - - - - - ... ,............ ~ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ~ ........ .
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FIG. 2
Figure 2 is a cross-sectional view of Cawse' s laminate wherein 100 µm
silver-coated solid glass spheres form conductive bridges across wider resin
interleaf layers. Cawse ,r 27. The Examiner finds that Cawse teaches
conductive particles 13 may include a non-electrically conductive core
including a polymer, such as PMMA (thermoplastic), coated with a metal
coating and that this "corresponds to an electrically conductive composite
particle comprising a blend of a conductive material and a polymeric
material" as each of the independent claims require. Final Act. 5---6 ( citing
Cawse ,r,r 49-59, 152, 174).
The Examiner further finds that Simmons discloses a composite in
cured and uncured form in which a thermoplastic polymer resin dissolves in
thermoset polymer resin and phase separates upon cure, along with a
conductive material, and results in lower surface electrical resistivity than a
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Application 13/862,874
composition that contains no such thermoplastic polymer. Id. at 6-7 (citing
Simmons ,r,r 19, 60). The Examiner additionally finds that Simmons
discloses (1) a conductive additive may include fibers that include a core
material partially or fully coated with a metallic coating and (2) fibers in the
composite material may be nonwoven multiaxial textile tapes or tows such
as the nonwoven veil the claims require. Id. at 7 ( citing Simmons ,r,r 31, 32,
80, 91-95).
The Examiner determines that it would have been obvious to one
skilled in the art to modify Cawse's interleaf layer with Simmons' polymeric
resin blend and composite fiber particle to reduce surface electrical
resistivity or improve electrical conductance within the prepreg. Id. at 7.
The Examiner also determines that a skilled artisan would have reasonably
expected that the thermoplastic polymer core of Cawse' s composite particle
partially coated with a metallic coating would melt during the curing process
and subsequently infuse into the thermoset matrix as Simmons teaches. Id.
at 7-8.
Appellant contends that Simmons' thermoplastic polymer that
dissolves and phase separates in the resin material is a component separate
and different from the carbon and non-carbon conductive additives. Id. at 7.
According to Appellant, Simmons does not teach a conductive material that
includes a polymer fiber partially coated with a metallic material. Id. at 8.
Thus, it is Appellant's position that the cited art does not disclose the
claimed "conductive polymeric fibres" that claims 28-30 require, nor the
nonwoven veil with conductive polymeric fibers that claims 28 and 29
require. Id. at 8-9. Appellant additionally asserts that the Examiner also has
not shown that the cited references disclose conductive polymeric fibers that
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Application 13/862,874
are formed from a blend of a conductive material and a soluble polymeric
material as the claims require because neither Cawse nor Simmons discloses
conductive polymeric fibers. Id. at 8-9.
The Examiner agrees that Cawse does not explicitly teach or suggest
the conductive polymeric fibers as claimed, but finds that Simmons teaches
a resin material comprising at least one thermoset resin, carbon conductive
additive materials that have a fiber shape and include a polymeric core
coated with a metallic material, and at least one thermoplastic polymer resin
(analogous to the resin interlayer of Cawse). Id. at 8-9.
Regarding the recited "blend" of a conductive material and a
polymeric material, the Examiner determines that the broadest reasonable
interpretation is "a combination of two different materials integrated into a
whole." Ans. 10. The Examiner further notes that the Specification does
not require a homogenous blend, but rather describes a homogenous physical
blend of the conductive material and polymer as preferred. Id. ( citing
Spec. 9). The Examiner finds that the term, therefore, includes
heterogeneous blends, such as a bowl into which two different color M&M
candies are simply poured, and encompasses a polymeric core that is at least
partially coated with a metallic coating. Id. at 10-11. The Examiner finds
that Simmons's disclosure of a metallic coating corresponds to the
conductive material, the polymer core corresponds to the polymeric material,
and the combination corresponds to the claimed blend. Id. at 15 ( citing
Simmons ,r,r 32, 91-95).
In the Reply Brief, Appellant contends that the Examiner erred in
interpreting the claim term "blend" because it is unsupported and not
consistent with the Specification. Reply Br. 2. Appellant directs us to pages
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Application 13/862,874
9-11 of the Specification for the discussion of dispersing the conductive
material into the polymeric material using conventional techniques such as
mechanical mixing, sonication, high-shear mixing, rotor stator mixing, and
sol-gel techniques. Id. at 3. Appellant also directs us to the Oxford
Dictionary for the ordinary meaning of the term "blend" as a mixture of
different things. Id. Appellant agrees that the term does not require a
homogeneous mixture, as the Specification describes homogeneous as a
preferred condition that is not claimed. Id. at 4.
Appellant argues persuasively that the Examiner's claim construction
constitutes reversible error for the reasons stated in the Appeal Brief and the
Reply Brief. We add the following for emphasis.
The Examiner's construction (Ans. 15) of "blend" as simply a
"combination" of materials is not a reasonable interpretation of the term
because it is inconsistent with both the Specification and the ordinary
meaning of "blend." On the other hand, dictionary definitions 8 support
Appellant's assertion that the term "blend" requires a mixture or dispersion.
Appellant's interpretation also is consistent with the Specification's
description of dispersing the conductive component into a polymeric
material (Spec. 9-11 ). The Examiner is correct that the Specification does
not require the blend to be homogeneous because a homogenous physical
blend of conductive material and polymer is described in the Specification as
a preferred embodiment. Ans. 1 O; Spec. 9. Although the term "blend" does
not exclude heterogeneous blends, the Examiner's analogy to two different
8 Appellant paraphrases a dictionary definition of blend as "a mixture of
different things." Reply Br. 3. The term is defined at www.dictionary.com
as "to mix smoothly and inseparably together."
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colored M&M candies being poured into a bowl as being a heterogeneous
blend that the term encompasses ( Ans. 10-11) does not explain how the
colored candy sugar coating is a "blend" with the candies' chocolate cores.
In addition, the Specification distinguishes metal-coated products, such as
core-shell structures, as a starting conductive component for forming a
blend, rather than constituting a blend. Spec. 10. Accordingly, the
Examiner's construction is not the broadest reasonable interpretation of the
independent claims, which each recite "a blend of a conductive material and
a polymeric material."
The Examiner relies on Simmons's disclosure of a metal coated
polymer particle as teaching a blend of conductive material (the metallic
coating) and a polymeric material (the polymeric core) that the independent
claims require. Ans. 9 (citing Simmons ,r,r 32, 91-94). Because Simmons's
metal coated particles do not constitute a mixture or dispersion of metal and
polymer components, they also do not constitute a "blend of a conductive
material and a polymeric material" as recited in claims 28-30. Therefore,
the record does not support the Examiner's finding that Simmons discloses
the "blend" the claims require.
Appellant, therefore, has persuaded us that the Examiner reversibly
erred in finding that the combination of Cawse and Simmons teaches or
suggests the "conductive polymeric fibres ... formed from a blend of a
conductive material and a polymeric material" recited in each of
independent claims 28-30. Because we determine the record does not
support the facts and reasons on which the Examiner relies, we reverse the
rejection of claims 28-33, 35-38, and 40-44 under 35 U.S.C. § 103(a).
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DECISION
The Examiner's decision is reversed.
ORDER
REVERSED
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