Chevron Phillips Chemical Company, LP

Patent Trials and Appeals Board

Mar 24, 2020

15269050 - (D) (P.T.A.B. Mar. 24, 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.
15/269,050 09/19/2016 Maruti Bhandarkar 211522US01 - 29604-0044 7108
29052 7590 03/24/2020
EVERSHEDS SUTHERLAND (US) LLP
999 PEACHTREE STREET, N.E.
SUITE 2300
ATLANTA, GA 30309
EXAMINER
NGUYEN, HUY TRAM
ART UNIT PAPER NUMBER
1774
NOTIFICATION DATE DELIVERY MODE
03/24/2020 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):
patentdocket@eversheds-sutherland.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte MARUTI BHANDARKAR, ELIZABETH ANN BENHAM,
REBECCA A. GONZALES, SCOTT E. KUFELD, JOEL A. MUTCHLER,
CATHERIN M. GILL, THANH T. NGUYEN, and TIMOTHY O. ODI
____________

Appeal 2019-002209
Application 15/269,050
Technology Center 1700
____________

Before JEFFREY T. SMITH, DONNA M. PRAISS, and
MERRELL C. CASHION, JR., Administrative Patent Judges.

PRAISS, Administrative Patent Judge.

DECISION ON APPEAL1
Appellant2 appeals under 35 U.S.C. § 134(a) from the Examiner’s
decision rejecting claims 1 and 3–35 under 35 U.S.C. § 103(a). An oral
hearing was held on March 17, 2020. We have jurisdiction over the appeal
under 35 U.S.C. § 6(b). We REVERSE.

1 Our Decision refers to the Specification (“Spec.”) filed Sept. 19, 2016, the
Final Office Action (“Final Act.”) dated May 14, 2018, the Advisory Action
(“Adv. Act.”) dated July 27, 2018, Appellant’s Appeal Brief (“Appeal Br.”)
filed Oct. 22, 2018, the Examiner’s Answer (“Ans.”) dated Nov. 23, 2018,
and Appellant’s Reply Brief (“Reply Br.”) filed Jan. 17, 2019.
2 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant is Chevron Phillips Chemical Company LP, which
is also identified as the real party in interest. Appeal Br. 2.
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STATEMENT OF THE CASE
The invention relates to polyolefin production, specifically, coupling
and decoupling of polymerization reactors and downstream processing in a
polyolefin production system. Spec. ¶ 2.
Claim 1, reproduced below from the Claims Appendix to the Appeal
Brief, is illustrative (emphases added).
1. A polyolefin production system comprising:
a first loop slurry reactor configured to produce a first
reactor discharge comprising a first solid polyolefin;
a second loop slurry reactor configured to produce a
second reactor discharge comprising a second solid polyolefin;
and
a post-reactor treatment zone configured to receive the
first reactor discharge and the second reactor discharge,
wherein the first and second loop slurry reactors are configured
to allow the first reactor discharge to be (a) transferred to the
second reactor and, alternatively, (b) diverted to by-pass the
second reactor and fed into the post-reactor treatment zone
wherein to the first and second solid polyolefins are first
contacted in the post-reactor treatment zone, and
wherein the first solid polyolefin is 30 weight% to 70
weight% of the second.

ANALYSIS
We review the appealed rejection for error based upon the issues
Appellant identifies, 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
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argued claims in light of the case law presented in this Appeal and each of
Appellant’s arguments, we are persuaded of reversible error in the
Examiner’s rejection.
The Examiner rejects claims 1 and 3–35 under 35 U.S.C. § 103(a)
over the combination of Harrington3 and Fouarge4 for the reasons stated on
pages 3–16 of the Final Office Action.
Appellant asserts the Examiner erred in finding that Harrington
broadly discloses a system for producing two different polymers by
bypassing a portion of the first polymer to a post reactor treatment zone.
Appeal Br. 4 (citing Adv. Act. 3). According to Appellant, Harrington
discloses a very specific solution phase system wherein polyolefins
produced are dissolved in a solution within the reactors. Id. at 5. Appellant
asserts that Harrington’s discovery “hinged” on the solution phase process.
Id. Appellant contends Harrington is clear that its systems require solution
phase reactors because it is the only type of reactor disclosed which provides
“an intimate blending of the low crystallinity and high crystallinity
polymers” while the polymeric components are in solution. Id.; Reply Br. 3
(quoting Harrington ¶¶ 3, 7, 26–29, 31, 56, 65, 70, 76, 89).
Appellant argues that a solution phase reactor is not a “loop slurry
reactor” as the claims recite because the reactors operate in different
conditions and require different post-processing steps. Appeal Br. 5.
Appellant further distinguishes the claims on the basis that the claimed
reactors produce a discharge comprising a solid polyolefin, which Appellant

3 US 2006/0183861 A1, published Aug. 17, 2006.
4 US 2011/0124828 A1, published May 26, 2011.
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asserts is suspended in liquid as a slurry and not a solution. Id. Appellant
argues that this is a structural claim limitation. Id. at 6.
Appellant contends that the Examiner’s rejection lacks a reasonable
basis for modifying Harrington’s reactors with Fouarge’s loop slurry
reactors because Harrington’s reactors do not produce a polymer slurry,
therefore, a skilled artisan would not have been motivated to improve the
removal of something that does not exist in Harrington’s system. Id.
Appellant further argues that the addition of solid polyolefin to Harrington’s
phase separator, devolatizer, or fractionator would render the equipment
inoperable because they are designed to handle only liquid and vapor
streams. Id. at 6–7 (citing Harrington ¶ 32).
The Examiner responds that, because Harrington does not require the
use of a solution phase reactor in its system, a person having ordinary skill in
the art would have recognized the suitability of both solution phase reactors
and loop slurry reactors for forming polyolefins. Ans. 16–17. The Examiner
relies on Fouarge to show that it was conventional in the art at the time of
the invention to use loop slurry reactors for olefin polymerizations. Id. at 16
(citing Fouarge ¶ 2). The Examiner notes a similar rejection set forth in the
parent application was affirmed by the Board. Id. at 15 (citing Ex parte
Maruti Bhandarkar, Appeal 2017-003527 (PTAB Aug. 23, 2016)
(“Decision”)).
In the Reply Brief, Appellant argues Harrington’s disclosure
regarding solutions used “[i]n certain embodiments” was taken out of
context by the Examiner and the prior Board decision. Reply Br. 3 (quoting
Appeal 2017-003527 (PTAB Aug. 23, 2016), 4; Harrington ¶ 26). According
to Appellant, the embodiments Harrington references are producing
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polymers in separate series or parallel polymerizations, not that solutions of
polymers are an optional embodiment. Id. (citing Harrington ¶ 26).
Appellant directs us to Harrington’s paragraph 27 as describing in more
detail the parallel polymerization stages first mentioned in paragraph 26. Id.
Appellant acknowledges that Harrington states its polymers “may” be
produced in solution phase reactors, but asserts that Harrington’s polymers
“must” be produced in solution phase reactors, otherwise its system would
be inoperable due to the downstream components designed to receive a
liquid or vapor stream. Id. at 4.
Based on the cited record in this Appeal, we are persuaded that the
Examiner reversibly erred in selecting Fouarge’s loop reactors for modifying
Harrington’s solution reactors. Because each of independent claims 1, 13,
and 23 require each claimed reactor to be configured to produce a discharge
slurry comprising solid polyolefin, our discussion focuses on claim 1.
In rejecting claims under 35 U.S.C. § 103(a), it is incumbent upon the
Examiner to establish a factual basis to support the legal conclusion of
obviousness. See In re Fine, 837 F.2d 1071, 1073 (Fed. Cir. 1988). In so
doing, the Examiner must make the factual determinations set forth in
Graham v. John Deere Co., 383 U.S. 1, 17 (1966) (noting that 35 U.S.C.
§ 103 leads to three basic factual inquiries: (1) the scope and content of the
prior art; (2) the differences between the prior art and the claims at issue;
and (3) the level of ordinary skill in the art). Furthermore, the Examiner’s
obviousness rejection must be based on
“some articulated reasoning with some rational underpinning to
support the legal conclusion of obviousness” . . . . [H]owever,
the analysis need not seek out precise teachings directed to the
specific subject matter of the challenged claim, for a court can
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take account of the inferences and creative steps that a person
of ordinary skill in the art would employ.
KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 418 (2007) (quoting In re
Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)).
If the Examiner’s burden is met, the burden then shifts to the
Appellant to overcome the prima facie case with argument and/or evidence.
Obviousness is then determined on the basis of the evidence as a whole and
the relative persuasiveness of the arguments. See In re Oetiker, 977 F.2d
1443, 1445 (Fed. Cir. 1992).
Although Harrington and Fouarge both disclose methods for
polyolefin production, the Examiner’s basis for selecting Fouarge’s loop
slurry reactors for use in Harrington’s system is not reasonable based on the
cited record in this Appeal. The Examiner finds that it would have been
obvious to a person having ordinary skill in the art to choose Fouarge’s
reactors to “provide improvements in the removal of polymer slurry from the
reactor.” Final Act. 5. However, the Examiner does not explain adequately
why Harrington’s system would require removal of polymer slurry. We are
persuaded by Appellant that Harrington does not teach or suggest a reactor
effluent stream or subsequent stream containing solid polyolefin because
Harrington dissolves polymers in a liquid solution whereby no slurry is
created. Appeal Br. 6–7.
As Appellant points out, Harrington’s reference to “certain
embodiments” in paragraph 26 begins a discussion of producing low
crystallinity polymers and high crystallinity polymers is separate series or
parallel polymerization stages, not different types of reactors. Harrington
teaches that the effluent from reactors is a solution in the series reactor
process. Harrington ¶ 26. Harrington teaches that the effluents from each
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reactor in the parallel polymerization processes are likewise solutions. Id.
¶ 29. In addition, Harrington discloses that “[c]ombining the solutions of the
polymeric components resulting from these processes provides an intimate
blending of the low crystallinity and high crystallinity polymers during
polymerization.” Id. ¶ 27. Thus, the use of solution polymerization reactors
for both the low crystallinity polymer and the high crystallinity polymer is
taught by Harrington for this purpose. Appellant’s position that Harrington
requires reactors that produce polymer solutions is therefore supported by
the preponderance of the evidence cited in this Appeal. Harrington ¶¶ 7, 26–
29, 31, 56, 65, 70, 76, 89.
Although the Examiner notes (Ans. 15) that the parent application’s
claims were rejected over the same combination of prior art references and
affirmed by the Board, the Examiner does not adequately explain why the
rejection should similarly apply to the claims in this Appeal which require
(1) loop slurry reactors and (2) effluents from each claimed reactor
comprising solid polyolefin. Moreover, the Examiner has not explained
adequately why a person of ordinary skill in the art would have reasonably
expected that the reactor type disclosed by Fouarge would have been
recognized as a suitable alternative for the solution polymerization reactor
disclosed by Harrington.
For these reasons, we reverse the Examiner’s rejection of claims 1 and
3–35 under 35 U.S.C. § 103(a) over Harrington and Fouarge.

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CONCLUSION
In summary:
Claims
Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 3–35 103(a) Harrington, Fouarge 1, 3–35

REVERSED