Heinz Vogt et al.

Patent Trials and Appeals Board

Apr 14, 2020

12311953 - (D) (P.T.A.B. Apr. 14, 2020)

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.
12/311,953 04/20/2009 Heinz Vogt FR6338 7160
24114 7590 04/14/2020
LyondellBasell Industries
Legal IP Department
1221 McKinney Street, Suite 700
LyondellBasell Tower
Houston, TX 77010
EXAMINER
CHU, YONG LIANG
ART UNIT PAPER NUMBER
1629
NOTIFICATION DATE DELIVERY MODE
04/14/2020 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 HEINZ VOGT, HANSJÖRG NITZ, JOACHIM BERTHOLD,
ULRICH SCHULTE, and WERNER ROTHHÖFT
____________

Appeal 2019-001437
Application 12/311,953
Technology Center 1600
____________

Before DONALD E. ADAMS, ERIC B. GRIMES, and TAWEN CHANG,
Administrative Patent Judges.

ADAMS, Administrative Patent Judge.

DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from Examiner’s
decision to reject claims 1, 3–5, and 7–22 (see Ans.2 3). We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies the real party in interest as “Basell
Polyolefine GmbH” (Appellant’s March 29, 2018 Appeal Brief (Appeal Br.)
2).
2 Examiner’s October 4, 2018 Answer.
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STATEMENT OF THE CASE
Appellant’s disclosure “relates to a polyethylene molding composition
having a multimodal molecular mass distribution and is particularly suitable
for producing pipes with enlarged diameter and wall thickness” (Spec.3 1: 7–
9). Appellant’s claim 1 is reproduced below:
1. A polyethylene molding composition having a multimodal
molecular mass distribution for producing pipes, which
comprises:
(A) 45-55% by weight of a first ethylene homopolymer A;
(B) 20-40% by weight of a second copolymer B comprising
ethylene and a second olefin comprising 4-8 carbon
atoms; and
(C) 15-30% by weight of a third and ultrahigh molecular
weight ethylene copolymer C;
wherein all percentages are based on the total weight of
the molding composition and
(D) 0.01-0.5% by weight, based on the total weight of the
molding composition, of an organic polyoxy compound
having the general chemical formula:
R - [(CH2)n-O]m - H
where n is an integer from 1-10,
m is an integer from 3-500, and
R is a hydrogen atom or an OH group or an alkyl group
which has from 1 to 10 carbon atoms and may bear
further substituents such as -OH, -COOH,-COOR,
-OCH3 or -OC2H5,
or an organic polyhydroxy compound having the general
chemical formula:
RO-CH2-C-(CH2-OR)3

3 Appellant’s April 20, 2009 Specification.
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where R can be a hydrogen atom or an alkyl group which has
from 1 to 5 carbon atoms and may bear further substituents
such as -OH, -COOH, -COOR, -OCH3 or -OC2H5,
and a combination of two of the foregoing; and wherein the
polyethylene molding composition has 1) a density at a
temperature of 23 °C of 0.948-0.955 g/cm3; 2) an MFI190/5 of
0.1-0.5 dg/min; and 3) a viscosity number VNtot, measured in
accordance with ISO/R 1191 in decalin at a temperature of
135 °C, of 200-600 cm3/g.
(Appeal Br. 11.)

Claims 1, 3–5, and 7–22 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over the combination of Berthold,4 Smedberg,5 and Ek.6

ISSUE
Does the preponderance of evidence relied upon by Examiner support
a conclusion of obviousness?
FACTUAL FINDINGS (FF)
FF 1. Berthold relates, inter alia, “to a polyethylene moulding compound
having a multimodal molecular weight distribution” (Berthold 1: 11–14; see
Ans. 6–7).
FF 2. Berthold discloses that its “moulding compound . . . is particularly
suitable for the production of hollow articles” (Berthold 3: 58–60; see also
see Ek, Title (Ek discloses a pressure pipe comprising a multimodal
polyethylene composition with an inorganic filler); see also Ans. 8 and 9).

4 Berthold et al., US 6,713,561 B1, issued Mar. 30, 2004.
5 Smedberg et al., US 2008/0308296 A1, published Dec. 18, 2008.
6 Ek et al., US 2008/0254246 A1, published Oct. 16, 2008.
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FF 3. Berthold discloses:
A polyethylene molding compound which comprises
(A) from 30 to 60% by weight of low-molecular-weight
ethylene homopolymer A . . .
(B) from 30 to 65% by weight of high-molecular-weight
copolymer B comprising ethylene and a further olefin having
from 4 to 10 carbon atoms . . . and
(C) from 1 to 30% by weight of ultrahigh-molecular-weight
ethylene homopolymer or copolymer C . . . [wherein] the
molding compound has a multimodal molecular weight
distribution which has an overall density of [≥]0.940 g/cm3 and
an MFI190/5 in the range from 0.01 to 10 dg/min . . . [and a]
VNtot in the range from 250 to 500 cm3/g.
(Berthold 8: 24–41; id. at 9: 7–9; see also id. at 6: 63–64 (Berthold discloses
moulding compounds having a density range of 0.952–0.954 g/cm3); Ans.
7.)
FF 4. Berthold discloses that “the polyethylene moulding compound
according to [its] invention may also comprise further additives . . . in
amounts of from 0 to 10% by weight, preferably from 0 to 5% by weight”
(Berthold 3: 46–52; Ans. 7 and 9).
FF 5. Examiner finds that “Berthold does not specifically teach a
polyethylene molding composition further comprising an addictive [sic] of
0.01-0.5% by weight of an organic polyoxy compound of R-[(CH2)n-O]m-H,
or an organic polyhydroxy compound having the general chemical formula
RO-CH2-C-(CH2-OR)3, or a combination of two of the foregoing” (Ans. 9
(emphasis omitted)).
FF 6. Examiner finds that Smedberg discloses the addition of a polar
copolymer, such as polyethylene glycol, to a polyethylene polymer

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composition to improve water-tree resistance (Ans. 9 (citing Smedberg
¶ 12); see also id. at 8).
ANALYSIS
Based on the combination of Berthold, Smedberg, and Ek, Examiner
concludes that, at the time Appellant’s invention was made, it would have
been prima facie obvious to add polyethylene glycol to the moulding
composition disclosed by Berthold to improve water-tree resistance in
hollow articles, such as pipes, prepared therefrom (see generally Ans. 11;
see also FF 1–6). We find no error in Examiner’s prima facie case of
obviousness.
As discussed above, Berthold discloses a polyethylene molding
composition having a multimodal molecular mass distribution that
comprises ingredients (A)–(C) in amounts that encompass those set forth in
Appellant’s claim 1 (see FF 3). Berthold’s composition further has a
density, MFI190/5, and VNtot in amounts that encompass or fall within those
set forth in Appellant’s claim 1 (FF 3–4). See Iron Grip Barbell Co., Inc. v.
USA Sports, Inc., 392 F.3d 1317, 1322 (Fed. Cir. 2004) (“[W]here there is a
range disclosed in the prior art, and the claimed invention falls within that
range, there is a presumption of obviousness.”); In re Geisler, 116 F.3d
1465, 1468 (Fed. Cir. 1997) (Overlapping ranges support a prima facie case
of obviousness.).
Further although Berthold does not disclose “a polyethylene molding
composition further comprising an [additive] of 0.01-0.5% by weight of an
organic polyoxy compound of R-[(CH2)n-O]m-H, or an organic polyhydroxy
compound having the general chemical formula RO-CH2-C-(CH2-OR)3, or a
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combination of two of the foregoing” (FF 5); Examiner relies on Smedberg
to make up for this deficiency in Berthold (see FF 6; Ans. 11).
Because Berthold discloses a polyethylene molding composition
having a multimodal molecular mass distribution and a density, MFI190/5, and
VNtot, within the scope of Appellant’s claimed invention, we are not
persuaded by Appellant’s contentions regarding Smedberg’s “bimodal
polyolefin composition” that has a density below that required by
Appellant’s claimed invention and “different properties
than . . . [Appellant’s claimed] moulding composition[]” (Appeal Br. 6–7
(citing the post-filing date references: Wotjecki7 and Al-Shammari8); see
also Nitz Decl.9 ¶¶ 9–13; cf. Ans. 11–14). For the same reasons, we are not
persuaded by Appellant’s contention that the combination of Berthold and
Ek fails to make up for Appellant’s alleged deficiency in Smedberg (Appeal
Br. 7–8).
An inorganic mineral filler is not excluded from the composition of
Appellant’s claim 1, therefore, we are not persuaded by Appellant’s
contention that “Ek teaches away from the claimed composition for pipe
production through the requisite use of an inorganic mineral filler for the
polyethylene compositions disclosed in the cited reference” (Appeal Br. 7–
8).

7 Wotjecki et al., Small Changes with Big Effects: Tuning Polymer
Properties with Supramolecular Interactions, 54 Journal of Polymer Science
A: Polymer Chemistry 457–472 (2015), not of record.
8 Al-Shammari et al., The Effect of Polymer Concentration and Temperature
on the Rheological Behavior of Metallocene Linear Low Density
Polyethylene (mLLDPE) Solutions, 23 Journal of King Saud University
9–14 (2011), not of record.
9 Declaration of Dr. Hansjörg Nitz, signed March 29, 2018.
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For the foregoing reasons, we are not persuaded by Appellant’s
contentions regarding optimization (see id. at 8–9).
Appellant fails to direct our attention to the asserted unexpected
results on this record (see Appeal Br. 9). Therefore, we are not persuaded by
Appellant’s contention that its “showing of unexpected results in achieving a
polyethylene molding composition characterized by, inter alia, unexpectedly
improved mechanical strength and environmental stress cracking resistance
properties,” rebuts Examiner’s prima facie case of obviousness (id. at 9).
Geisler, 116 F.3d at 1470 (quoting In re De Blauwe, 736 F.2d 699, 705 (Fed.
Cir. 1984) (“[I]t is well settled that unexpected results must be established
by factual evidence. ‘Mere argument or conclusory statements in the
specification does not suffice.’”).
CONCLUSION
The preponderance of evidence relied upon by Examiner supports a
conclusion of obviousness. The rejection of claim 1 under 35 U.S.C.
§ 103(a) as unpatentable over the combination of Berthold, Smedberg, and
Ek is affirmed. Claims 3–5 and 7–22 are not separately argued and fall with
claim 1.
DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 3–5, 7–
22
103(a) Berthold,
Smedberg, Ek
1, 3–5, 7–
22

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Application 12/311,953

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TIME PERIOD FOR 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).

AFFIRMED