2020004788 (P.T.A.B. Sep. 16, 2021)

Earth Renewable Technologies

Patent Trials and Appeals BoardSep 16, 2021

2020004788 (P.T.A.B. Sep. 16, 2021)

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. 15/152,087 05/11/2016 Thomas Jason Wolfe 073316.0050 3757 45309 7590 09/16/2021 Williams Mullen 301 Fayetteville Street Suite 1700 Raleigh, NC 27601 EXAMINER PATTERSON, MARC A ART UNIT PAPER NUMBER 1782 NOTIFICATION DATE DELIVERY MODE 09/16/2021 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): ip@williamsmullen.com jassenza@williamsmullen.com khotz@williamsmullen.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte THOMAS JASON WOLFE, MELVIN GLENN MITCHELL, and JAMES ETSON BRANDENBURG Appeal 2020-004788 Application 15/152,087 Technology Center 1700 Before TERRY J. OWENS, JEFFREY R. SNAY, and MERRELL C. CASHION, JR., Administrative Patent Judges. OWENS, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), the Appellant1 appeals from the Examiner’s decision to reject claims 1–13 and 21. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 1 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42(a). The Appellant identifies the real party in interest as Earth Renewable Technologies (Appeal Br. 3). Appeal 2020-004788 Application 15/152,087 2 CLAIMED SUBJECT MATTER The claims are directed to an extrudable polymer composition. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. An extrudable polymer composition comprising: a) a base polymer; and b) a bicomponent fiber comprising a low melt temperature component selected from the group consisting of high density polyethylene (HDPE) and polylactic acid (PLA) and a high melt temperature component selected from the group consisting of PET, 100% PDLA, 100% PLLA or a 50/50 blend of 100% PDLA and 100% PLLA, and nylon wherein the base polymer has a melt temperature of about 20°C to 40°C lower than this high melt temperature component of the bicomponent fiber. REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Roessler US 4,649,572 Mar. 17, 1987 Dugan US 6,441,267 B1 Aug. 27, 2002 Clarner US 2004/0031130 A1 Feb. 19, 2004 Dave US 2008/0086199 A1 Apr. 10, 2008 Martinez US 2008/0207434 A1 Aug. 28, 2008 Weber US 2009/0068244 A1 Mar. 12, 2009 Kellett US 2013/0023608 A1 Jan. 24, 2013 REJECTIONS The claims stand rejected under 35 U.S.C. § 103(a) as follows: 1) claims 1, 4, 8, 9, 11, and 21 over Dugan in view of Martinez and Dave; 2) claims 2 and 3 over Dugan in view of Martinez, Dave, and Kellett; 3) claims 5–7 over Dugan in view of Martinez, Dave, and Weber; 4) claim 10 over Dugan in view of Martinez, Dave, and Clarner; and 5) claims 12 and 13 over Dugan in view of Martinez, Dave, and Roessler. Appeal 2020-004788 Application 15/152,087 3 OPINION We need address only the sole independent claim, i.e., claim 1.2 Dugan discloses multicomponent fibers, each having a non- biodegradable component, which can be high density polyethylene (HDPE), completely encapsulating a biodegradable component, which can be poly(lactic acid) (PLLA) (col. 2, ll. 30–35; col. 4, ll. 11–55). “To control fiber degradation, the non-biodegradable polymer has a lower melting point (preferably at least about 10ºC. lower) than the melting point of the biodegradable polymer” (col. 2, ll. 35–39). “[T]he multicomponent fibers can be incorporated into a fabric” (col. 7, ll. 66–67). Martinez discloses that HDPE typically has a melting point of 120– 130 ºC (¶ 7). Dave discloses that the melting point of PLLA is 175–178 ºC (¶ 133). The Examiner finds that “because each fiber disclosed by Dugan is a fiber that has been extruded, each fiber comprises an extrudable composition, and therefore is an extrudable composition. The disclosed fabric, containing the fibers, is therefore also an extrudable composition” (Ans. 8). The Appellant argues that “Dugan’s disclosure is only directed to a fiber and does not disclose its fiber in a polymer melt forming an extrudable polymer composition” (Appeal Br. 7), and “[i]f Dugan’s fiber was to be considered as an extrudable composition by heating its components above 2 The Examiner does not rely upon Kellett, Weber, Clarner, or Roessler for any disclosure that remedies the deficiency in the references applied to the independent claim (Final 4–6). Appeal 2020-004788 Application 15/152,087 4 their melting temperatures, then Dugan’s alleged extrudable composition fails to disclose a bicomponent fiber” (id.). The Examiner does not establish that Dugan’s fibers can be extrudable without first being melted, or that if Dugan’s fibers are melted to form an extrudable composition, a bicomponent fiber will be present in the melted composition. Nor does the Examiner establish that the broadest reasonable interpretation of the claim term “extrudable polymer composition” in view of the Appellant’s Specification encompasses a fabric containing extruded polymer fibers. See In re Translogic Tech. Inc., 504 F.3d 1249, 1256 (Fed. Cir. 2007) (“[D]uring examination proceedings, claims are given their broadest reasonable interpretation consistent with the specification.”) (quoting In re Hyatt, 211 F.3d 1367, 1372 (Fed. Cir. 2000)). The Examiner, therefore, has not established a prima facie case of obviousness of the Appellant’s claimed extrudable polymer composition. Accordingly, we reverse the rejections. CONCLUSION The Examiner’s rejections are reversed. DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 4, 8, 9, 11, 21 103(a) Dugan Martinez, Dave 1, 4, 8, 9, 11, 21 2, 3 103(a) Dugan Martinez, Dave, Kellett 2, 3 5–7 103(a) Dugan Martinez, Dave, Weber 5–7 10 103(a) Dugan Martinez, Dave, Clarner 10 Appeal 2020-004788 Application 15/152,087 5 12, 13 103(a) Dugan Martinez, Dave, Roessler 12, 13 Overall Outcome 1–13, 21 REVERSED