Mathieu Sabard et al.Download PDFPatent Trials and Appeals BoardJul 17, 201914897011 - (D) (P.T.A.B. Jul. 17, 2019) Copy Citation 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. 14/897,011 12/09/2015 Mathieu SABARD 0078840-000212 6837 21839 7590 07/17/2019 BUCHANAN, INGERSOLL & ROONEY PC POST OFFICE BOX 1404 ALEXANDRIA, VA 22313-1404 EXAMINER CAI, WENWEN ART UNIT PAPER NUMBER 1763 NOTIFICATION DATE DELIVERY MODE 07/17/2019 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): ADIPDOC1@BIPC.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte MATHIEU SABARD, STÉPHANE BIZET, JEAN-JACQUES FLAT, and GRÉGOIRE AUSSEDAT ____________ Appeal 2018-004257 Application 14/897,011 Technology Center 1700 ____________ Before GEORGE C. BEST, CHRISTOPHER C. KENNEDY, and MICHAEL G. McMANUS, Administrative Patent Judges. BEST, Administrative Patent Judge. DECISION ON APPEAL The Examiner finally rejected claims 1–10 of Application 14/897,011 under 35 U.S.C. § 103 as obvious.1 Final Act. 4 (March 13, 2017). 1 The Examiner has withdrawn the rejection of claims 1–10 under 35 U.S.C. § 112(b) as indefinite. Examiner’s Second Answer 3 (February 6, 2018) (“Answer”). The Examiner also provisionally rejected claim 1 on the ground of non-statutory double patenting over claim 9 of Application No. 14/779,236. Final Act. 5. This provisional rejection is moot because claim 9 of the ’236 Application was cancelled before that application issued Appeal 2018-004257 Application 14/897,011 2 Appellants2 seek reversal of these rejections pursuant to 35 U.S.C. § 134(a). We have jurisdiction under 35 U.S.C. § 6. For the reasons set forth below, we affirm. BACKGROUND The ’011 Application describes a nanostructured thermoplastic composition that is said to have improved impact resistance while still retaining a stable flexural modulus. Spec. 1–2. Claim 1 is representative of the ’011 Application’s claims and is reproduced below: 1. A thermoplastic composition comprising: • a first copolymer grafted by polyamide grafts, the first copolymer having a polyolefin backbone and a plurality of polyamide grafts, wherein the polyolefin backbone contains a residue of at least one unsaturated monomer (X), wherein the polyamide grafts are attached to the polyolefin backbone by the residue of the unsaturated monomer (X) comprising a function capable of reacting by a condensation reaction with a polyamide having at least one amine end group and/or at least one carboxylic acid end group, wherein the residue of the unsaturated monomer (X) is fixed to the backbone by grafting or copolymerization; • a second copolymer, distinct from the first copolymer, being an elastomeric copolymer grafted by polyamide grafts, as U.S. 9,752,026 B2 on September 5, 2017. See ’236 Application Prosecution History Amendment 6 (December 2, 2016). 2 Arkema France is identified as the real party in interest. Appeal Br. 2. Appeal 2018-004257 Application 14/897,011 3 the second copolymer having a polyolefin backbone and a plurality of polyamide grafts, wherein the polyolefin backbone is selected from the group consisting of a maleated ethylene-propylene copolymer, a maleated ethylene-butene copolymer, a maleated ethylene-hexene copolymer, a maleated ethylene-octene copolymer, a maleated ethylene-methyl acrylate copolymer, and a maleated ethylene-propylene- diene copolymer; • a third component selected from the group consisting of a polyamide, a polyethylene or a polypropylene, or a mixture thereof; wherein, the following weight ratios are satisfied: - between 10% and 30% by weight of the composition for the polyolefin backbone of the first copolymer, - between 10% and 30% by weight of the composition for the polyolefin backbone of the second copolymer, - between 5% and 35% by weight of the composition of polyamide grafts of the first and second copolymer, - between 30% and 60% by weight of the third component. Appeal Br. 9–10 (Claims App.). REJECTION On appeal, the Examiner maintains the following rejection: Claims 1–10 are rejected under 35 U.S.C. § 103 as unpatentable over Court.3 Final Act. 4. 3 US 2003/0199635 A1, published October 23, 2003. Appeal 2018-004257 Application 14/897,011 4 DISCUSSION Appellants argue for reversal of the appealed rejection on the basis of limitations present in claim 1. Appeal Br. 5–8. Accordingly, we limit our discussion to that claim. The Examiner found that claim 1 was unpatentable over Court. Final Act. 4–5. In particular, the Examiner found that a 1:1 combination of the compositions described in Example 2 and Example 3 of Court satisfied every limitation of claim 1. Id.; see also Advisory Action 3–5 (August 30, 2017); Answer 3–4. In so doing, the Examiner relied upon the holding in In re Kerkhoven, 626 F.2d 846 (CCPA 1980). Appellants argue that this rejection should be reversed for any of three reasons: (1) the Examiner erred by finding that a 1:1 mixture of the compositions in Court’s Example 2 and Example 3 meet claim 1’s limitations, Appeal Br. 6–8; (2) the Examiner has not established that the compositions described in Example 2 and Example 3 are satisfactory for the “same purpose” as required by Kerkhoven, Reply Br. 2–3; and (3) the Examiner has not explained why a person of ordinary skill in the art would have chosen to mix the compositions of Example 2 and Example 3 in a 1:1 ratio, id. at 3. We are not persuaded by these arguments. First, Appellants’ argument that the 1:1 mixture of the compositions of Court’s Example 2 and Example 3 does not satisfy the limitations of claim 1 appears to be based upon a misunderstanding of the rejection. As the Examiner explains, such a mixture does, in fact, meet claim 1’s limitations. See Answer 3–4. Appellants’ Reply Brief does not address the Examiner’s explanation of the rejection set forth in the Answer. Appeal 2018-004257 Application 14/897,011 5 Second, Example 2 and Example 3 are demonstrative examples set forth in the Specification of a single reference. Court’s Specification does not state that either of these compositions is useful for any particular purpose. Court ¶¶ 107–111. The Examiner, therefore, was entitled to assume that each of these compositions was useful for any of the purposes described in the Specification. Thus, Kerkhoven’s “same use” requirement is satisfied. Third, under Kerkhoven, it is prima facie obvious to mix the compositions described in Court’s Example 2 and Example 3 in any ratio. Kerkhoven states its holding in broad language: It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition which is to be used for the very same purpose. . . . [T]he idea of combining them flows logically from their having been individually taught in the prior art. Kerkhoven, 626 F.2d at 850. Thus, the Examiner does not have to explain why a person of ordinary skill in the art would have arrived at a 1:1 mixture of the compositions described in Example 2 and Example 3. CONCLUSION For the reasons set forth above, we affirm the rejection of claims 1–10 of the ’011 Application as unpatentable over Court. 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 Copy with citationCopy as parenthetical citation