Mathieu Sabard et al.

Patent Trials and Appeals Board

Jul 17, 2019

14897011 - (D) (P.T.A.B. Jul. 17, 2019)

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1 The Examiner has withdrawn the rejection of claims 1–10 under 35 U.S.C.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