PROTOMAX PLASTICS LTD

Patent Trials and Appeals Board

Jun 15, 2020

2019004673 (P.T.A.B. Jun. 15, 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.
14/373,764 07/22/2014 Nicholas Stillwell 69844.US 2457
408 7590 06/15/2020
LUEDEKA NEELY GROUP, P.C.
P O BOX 1871
KNOXVILLE, TN 37901
EXAMINER
WEYDEMEYER, ETHAN
ART UNIT PAPER NUMBER
1783
NOTIFICATION DATE DELIVERY MODE
06/15/2020 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):
LNG.PATENT@gmail.com
docketing@luedeka.com
eofficeaction@appcoll.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte NICHOLAS STILLWELL
Appeal 2019-004673
Application 14/373,764
Technology Center 1700
Before LINDA M. GAUDETTE, JAMES C. HOUSEL, and
BRIAN D. RANGE, Administrative Patent Judges.
HOUSEL, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE1
Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the
Examiner’s decision to reject claims 1–3 and 5–9. We have jurisdiction
under 35 U.S.C. § 6(b).
We AFFIRM.

1 This Decision refers to the Specification (“Spec.”) filed July 22, 2014, the
Appeal Brief (“Appeal Br.”) filed November 8, 2018, and the Examiner’s
Answer (“Ans.”) dated March 8, 2019.
2 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42(a). Appellant identifies the real party in interest as Upcycle Holdings
Limited. Appeal Br. 2.
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Application 14/373,764

2
CLAIMED SUBJECT MATTER
The invention relates to a large format polystyrene (“PS”) panel with
a continuous outer skin and a cellular core structure. Spec. 1:1–6. Appellant
discloses that this panel may be used in furniture and interior design
applications, wherein the panel comprises an outer skin formed of
polystyrene or high-impact polystyrene (“HIPS”) which completely
encapsulates a cellular plastic core formed from a heat-activated foamable
plastic particulate material. Id. at 3:1–5. In addition, the outer skin may
comprise recycled PS or HIPS, and the core may comprise mixed waste
plastic and/or reinforcement members. Id. at 3:12–14. The panel may
include anti-microbial agents and fire retardant agents, and the outer skin of
the panel may have a surface texture and incorporate a high temperature
printed film. Id. at 3:16–21.
Claim 1, reproduced below from the Claims Appendix to the Appeal
Brief, is illustrative of the claimed subject matter:
1. A large format panel for use in furniture and interior design
applications, comprising a continuous stiff outer skin of high
impact polystyrene completely encapsulating a cellular
plastic core formed from a heat activated foamable plastic
particulate material comprising mixed waste plastic, wherein
the area of the largest face of the panel is greater than 1 m2.

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REFERENCES
The Examiner relies on the following prior art:
Name Reference Date
Frank US 2,950,505 Aug. 30, 1960
Ooba et al. (“Ooba”) US 3,857,799 Dec. 31, 1974
Ellingson US 5,601,912 Feb. 11, 1997
Sutelan US 6,205,728 B1 Mar. 27, 2001
Yeh US 2006/0105650 A1 May 18, 2006
Moriya et al. (“Moriya”) US 2007/0128428 A1 June 7, 2007
Luna et al. (“Luna”) Study of the
Processability of
Post-Consumer and
Post-Industrial
Recycled High-
Impact Polystyrene3
2004
REJECTIONS
The Examiner maintains, and Appellant requests our review of, the
following rejections:
1. Claims 1, 2, 6, 8, and 9 under 35 U.S.C. § 103 as unpatentable over
Frank in view of Sutelan, Ooba, and Ellingson;
2. Claim 3 under 35 U.S.C. § 103 as unpatentable over Frank in view
of Sutelan, Ooba, and Ellingson, and further in view of Luna;
3. Claim 5 under 35 U.S.C. § 103 as unpatentable over Frank in view
of Sutelan, Ooba, and Ellingson, and further in view of Moriya;
and

3 Laura Luna, et al., Study of the Processability of Post-Consumer and Post-
Industrial Recycled High-Impact Polystyrene, ANTEC 3762–5, Soc. of
Plastics Engineers (2004) (available at www.knovel.com). The Examiner
refers to this reference as “Perera,” the last name of the fourth-named author.
In this Decision, we adopt the standard convention of referring to this
reference by the last name of the first-named author.
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4. Claim 7 under 35 U.S.C. § 103 as unpatentable over Frank in view
of Sutelan, Ooba, and Ellingson, and further in view of Yeh.
OPINION
We review the appealed rejections for error based upon the issues
Appellant identifies, and in light of the arguments and evidence produced
thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential)
(cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011)
(“[I]t has long been the Board’s practice to require an applicant to identify
the alleged error in the examiner’s rejections.”). After considering the
argued claims and each of Appellant’s arguments, we are not persuaded of
reversible error in the appealed rejections. Accordingly, we affirm the appeal
rejections for the reasons set forth in the Examiner’s Answer. We add the
following primarily for emphasis.
Appellant focuses on claim 1 only, and does not otherwise argue
either the claims or the rejections separately. We, therefore, decide the
appeal as to all grounds of rejection based on the arguments made in support
of patentability of claim 1.
The Examiner finds that Frank discloses a molded panel comprising a
continuous PS outer skin completely encapsulating a heat-activated,
foamable plastic particulate core (PS cellular core), but acknowledges that
Frank fails to teach, in relevant part, that the outer skin is formed of HIPS
and the core includes mixed waste plastics. Ans. 3–6. The Examiner finds
that Ellingson teaches molded foam products for building construction
comprising a HIPS outer skin over a cellular core. Id. at 6. The Examiner
further finds that Ellingson teaches that HIPS is a well-known material in the
art. Id. Therefore, the Examiner concludes that it would have been obvious
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to have selected HIPS as the material for Frank’s outer skin because
Ellingson teaches that HIPS is a well-known material that provides
toughness, flexibility, and resiliency and is used as the outer skin of molded
products. Id.
The Examiner further finds that Ooba teaches molded panels made
from a heat-activated, foamable plastic particulate material comprising
mixed waste plastic. Ans. 5. The Examiner concludes that it would have
been obvious to have substituted Ooba’s heat-activated, foamable plastic
particulate material comprising mixed waste plastic for Frank’s PS core
material in order to provide a means of reusing waste plastics, at lower cost
and environmental impact. Id. at 5–6. We note that Ellingson also suggests
that the foamable core may include recycled plastic. Ellingson 2:63–67.
Appellant argues that Frank fails to disclose or suggest that the outer
skin is formed of HIPS and that it would not have been obvious to have
selected HIPS as Frank’s outer skin. Appeal Br. 8. Appellant asserts that
HIPS is not encompassed by PS, but is an entirely different material. Id. at 9.
In particular, Appellant states that PS is a known, clear, and brittle
homopolymer formed of styrene monomers, while HIPS is a co-polymer of
styrene monomers with another material that is added to provide much better
impact resistance. Id.
Appellant’s argument is not persuasive of reversible error because
Appellant fails to address the evidence, specifically Ellingson, upon which
the Examiner’s rejection relies for suggesting the use of HIPS as Frank’s
outer skin material. See Ans. 9–10.
Appellant next argues that the Examiner’s reliance on Ooba to suggest
the use of mixed waste plastics in Frank’s core “represents impermissible
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shopping of the references using the claimed invention as an instruction
manual or ‘template’ to piece together [the] teachings of [the] prior art.”
Appeal Br. 9 (citing In re Fritch, 972 F.2d 1260, 1266 (Fed. Cir. 1992)). We
disagree. To begin, we note that:
Any judgment on obviousness is in a sense necessarily a
reconstruction based upon hindsight reasoning, but so long as it
takes into account only knowledge which was within the level
of ordinary skill at the time the claimed invention was made
and does not include knowledge gleaned only from applicant’s
disclosure, such a reconstruction is proper.
In re McLaughlin, 443 F.2d 1392, 1395 (CCPA 1971). Here, the Examiner
articulates findings of fact and reasoning supporting the obviousness
conclusion. In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006) (“[R]ejections on
obviousness grounds cannot be sustained by mere conclusory statements;
instead, there must be some articulated reasoning with some rational
underpinning to support the legal conclusion of obviousness.”), quoted with
approval in KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007).
Appellant fails to address, with any particularity, either the Examiner’s
findings or reasoning, or otherwise establish that any aspect of the
Examiner’s rejection is based on knowledge gleaned only from Appellant’s
Specification.
Appellant further argues that the combination of Frank and Ooba does
not result in the claimed subject matter because Ooba forms a mixed plastic
brick by chemical binding that is then molded to the desired shape. Appeal
Br. 9–10. Appellant urges that Ooba does not “even remotely” form a skin
on the object and uses polyesters, not PS. Id. at 10. Appellant also contends
that Ooba’s process temperatures are unsuitable for use with either PS or
HIPS. Id. Moreover, Appellant asserts that Ooba’s molded articles of
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regenerated waste plastics would be unsuitable for Frank’s “soft core”
because Ooba’s articles are already molded. Id.
Appellant’s arguments are unpersuasive of reversible error because
they mischaracterize the rejection. Appellant’s arguments appear to assume
that the rejection requires somehow replacing Frank’s core with Ooba’s
already expanded and molded articles. Quite the opposite, the rejection is
based on substituting Ooba’s heat-activatable, foamable plastic particulate
material comprising mixed waste plastic for Frank’s core material prior to
being heat-activated, foamed, and molded into Frank’s final panel with an
outer skin. Additionally, Appellant fails to direct our attention to any
technical reasoning or evidentiary support for the contention that Ooba’s
process temperatures are unsuitable for use with either PS or HIPS. On the
contrary, the Examiner finds that Frank’s process molds PS using
temperatures at or above Ooba’s. Ans. 12. The Examiner also finds that
Frank teaches that a different temperature may be selected if modified PS is
used. Id.
Appellant does not otherwise address the Examiner’s obviousness
rejections. Accordingly, we sustain the Examiner’s rejection of claim 1, and
dependent claims 2, 3, and 5–9.
CONCLUSION
Upon consideration of the record, and for the reasons given above and
in the Answer, the Examiner’s decision to reject claims 1–3 and 5–9 under
35 U.S.C. § 103 as unpatentable over a combination of Frank, Sutelan,
Ooba, and Ellingson, alone or further combined with Luna, Moriya, or Yeh,
is affirmed.

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DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1, 2, 6, 8, 9 103 Frank, Sutelan,
Ooba, Ellingson
1, 2, 6, 8, 9
3 103 Frank, Sutelan,
Ooba, Ellingson,
Luna
3
5 103 Frank, Sutelan,
Ooba, Ellingson,
Moriya
5
7 103 Frank, Sutelan,
Ooba, Ellingson,
Yeh
7
Overall
Outcome
1–3, 5–9
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). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED