DOW GLOBAL TECHNOLOGIES LLC

Patent Trials and Appeals Board

Jan 31, 2020

15223391 - (D) (P.T.A.B. Jan. 31, 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.
15/223,391 07/29/2016 Jorge C. Gomes 79410-US-NP 8100
109 7590 01/31/2020
The Dow Chemical Company
P.O. BOX 1967
2040 Dow Center
Midland, MI 48641
EXAMINER
DILLON, DANIEL P
ART UNIT PAPER NUMBER
1783
NOTIFICATION DATE DELIVERY MODE
01/31/2020 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):
FFUIMPC@dow.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________
Ex parte JORGE C. GOMES, DIDEM ONER-DELIORMANLI, and
CAGATAY K. BERILGEN
____________
Appeal 2018-008774
Application 15/223,391
Technology Center 1700
____________

Before KAREN M. HASTINGS, MICHAEL P. COLAIANNI, and
JANE E. INGLESE, Administrative Patent Judges.

HASTINGS, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant1 appeals under 35 U.S.C. § 134 from the Examiner’s
rejection under 35 U.S.C. § 103(a) of claims 1–7 and 9–15 as unpatentable
over the combined prior art of Keung (US 2009/0081474 A1, published
March 26, 2009) and Mazzola (US 2013/0288032 A1, published October 31,

1 We use the word “Appellant” to refer to the “applicant” as defined in 37
C.F.R. § 1.42(a). Appellant identifies Dow Global Technologies LLC as the
real party in interest (Appeal Br. 2).

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2013). An oral hearing was conducted on January 23, 2020. We have
jurisdiction over the appeal under 35 U.S.C. § 6(b).
We AFFIRM.
CLAIMED SUBJECT MATTER
Claim 1 is representative and reproduced below:
1. A multilayer cast film suitable for use as a paper
replacement comprising:
a. a first layer comprising a linear polyethylene having a
density greater than 0.93 g/cm3 and a melt index greater than or
equal to 2.0 g/10 min;
b. a second layer comprising a linear polyethylene having
a density greater than 0.94 g/cm3 and a melt index less than or
equal to 1.3 g/10min;
c. a third layer comprising a linear polyethylene having a
density greater than 0.93 g/cm3 and a melt index greater than or
equal to 2.0 g/10min;
wherein the first layer and the third layer are each an
external layer of the film, and wherein the film has been
subjected to post-extrusion mono- or biaxial orientation and has
an overall thickness of at least 125 microns.

All of the claims are argued as a group (Appeal Br. 5–9), except for
dependent claim 9 which recites “wherein the film contains less than five
percent filler by weight of the film” (Appeal Br. Claims Appendix 13;
Appeal Br. 9, 10).
OPINION
Upon consideration of the evidence of record and each of Appellant’s
contentions as set forth in the Appeal Brief, as well as the Reply Brief, we
determine that Appellant has not demonstrated reversible error in the
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Examiner’s rejection (e.g., generally Ans.). In re Jung, 637 F.3d 1356,
1365–66 (Fed. Cir. 2011) (explaining the Board’s long-held practice of
requiring Appellant to identify the alleged error in the Examiner’s rejection).
We sustain the rejection for the reasons expressed by the Examiner in the
Final Office Action and the Answer.
We add the following primarily for emphasis.
It is well established that when claimed ranges overlap, or lie inside
ranges of the prior art, a prima facie case of obviousness is established. In re
Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003) (“In cases involving
overlapping ranges, we and our predecessor court have consistently held that
even a slight overlap in range establishes a prima facie case of
obviousness.”).
Appellant’s argument that Keung does not disclose or suggest the
specific thickness of “at least 125 microns” because of its conflicting and/or
ambiguous statements in paragraph 83 regarding layer thickness versus
overall film thickness (Appeal Br. 5, 6; Reply Br. 2, 3) is not persuasive of
reversible error. Appellant has not adequately disputed that one of ordinary
skill in the art would have appreciated that the claimed range of film
thickness reasonably encompasses the applied prior art of Keung for reasons
set forth by the Examiner (generally Ans.; Appeal Br.; Reply Br.). As the
Examiner pointed out, Keung explicitly states that film thickness can be as
high as 250 microns (Ans. 8, 9; Keung ¶ 83).
Moreover, it is well settled that it would have been obvious for an
artisan with ordinary skill to develop workable or even optimum ranges for
result-effective parameters. In re Woodruff, 919 F.2d 1575, 1577 (Fed. Cir.
1990); In re Boesch, 617 F.2d 272, 276 (CCPA 1980); In re Aller, 220 F.2d
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454, 456 (CCPA 1955). “A recognition in the prior art that a property is
affected by the variable is sufficient to find the variable result-effective.” In
re Applied Materials, Inc., 692 F.3d 1289, 1297 (Fed. Cir. 2012).
Keung states that the thickness of the film is “not particularly limited”
and “is determined according to the desired properties of the film” (Keung
¶ 83). Keung also states the thickness of individual layers of a multilayered
film “can be adjusted based on desired end use performance, resin or
copolymer employed, equipment capability, and other factors” (Keung ¶ 91).
Accordingly, substantial evidence supports the Examiner’s obviousness
determination of the claimed film thickness range.
Appellant does not rely upon any evidence of unexpected results due
to the claimed thickness.
Appellant does not dispute that Keung teaches a genus of materials for
its layers that encompass the claimed materials, but argues that the showing
in the Specification established the recited materials work better than other
members within the genus (Appeal Br. 7, 8). This showing is not
persuasive, since Keung explicitly lists HDPE (high density polyethylene)
and MDPE (medium density polyethylene) for its layers and that three layers
may be A/B/A (Ans. 9; Keung ¶¶ 27, 86). Furthermore, the rejection is not
based on Keung alone (e.g., Ans. 10). In any event, Appellant has not
shown how the Specification comparison of multilayered films of different
material layers to a film comprising only one material (all comparative
examples contain only one material) is a comparison to the closest prior art
(as noted above, even Keung discloses layers of different materials), or how
the showing is commensurate in scope with the claims, which are e.g., open-
ended and do not preclude additional layers.
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There is no dispute that Mazzola teaches a three layer film of the same
materials as recited in claim 1. Rather, Appellant argues that there is no
reason to combine Mazzola with Keung because Mazzola’s film is taught to
be clear with an overall thickness of from 7 to 30 microns, and has a
modulus property that Keung has already (thus Appellant argues there is no
reason to improve the modulus property of Keung’s film) (Appeal Br. 8, 9;
Reply Br. 4). We disagree for the reasons set forth by the Examiner (Ans.
10, 11). Both references are directed to a multilayered cast film that
comprise layers that may comprise HDPE and that may be used for similar
purposes, inclusive of packaging with printing thereon (id.). Mazzola, like
Keung, teaches that its film may be cast and subjected to mono or biaxial
orientation (Mazzola ¶ 38; Keung ¶ 89). Mazzola teaches that its selection
of materials results in improved film properties such as high gloss, high
stiffness, and low haze (e.g., Mazzola ¶ 13). Appellant has not shown error
in the Examiner’s determination that one of ordinary skill in the art, using no
more than ordinary creativity, would have used the materials taught in
Mazzola in the multi-layered film of Keung.
Accordingly, a preponderance of the evidence supports the
Examiner’s obviousness determination of the claimed subject matter.
We thus affirm the rejection.
Dependent Claim 9
Appellant argues that Keung does not teach that its film contains less
than 5% filler as recited in claim 9, mainly because Keung likely has an
excess of 5% cavitating agent, as all its examples have 50% by weight
cavitating agent (Appeal Br. 9, 10; Reply Br. 4, 5). However, Appellant has
not established that a cavitating agent is a filler as recited in claim 9. To the
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contrary, as pointed out by the Examiner, Keung teaches that various
additives, such as cavitating agents and fillers, may or not be present in any
of the layers (Keung ¶¶ 65–67; Ans. 11). As previously discussed, it is well
settled that it would have been obvious for an artisan with ordinary skill to
develop workable ranges for result-effective parameters. In re Woodruff,
919 F.2d at 1577; In re Boesch, 617 F.2d at 276; In re Aller, 220 F.2d at
456. Thus, absent any evidence of criticality of the claimed filler amount
(and absent any specific definition of what is included or excluded by the
term “filler”), the Examiner’s obviousness determination is reasonable.
In light of these circumstances, we affirm the Examiner’s rejection of
all the claims on appeal.
CONCLUSION
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–7, 9–15 103 Keung, Mazzola 1–7, 9–15
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)(1)(iv).
AFFIRMED