12097219 (P.T.A.B. Jul. 23, 2013)

Ex Parte Anker et al

Patent Trial and Appeal BoardJul 23, 2013

12097219 (P.T.A.B. Jul. 23, 2013)

UNITED STATES PATENT AND TRADEMARKOFFICE 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. 12/097,219 07/23/2008 Martin Anker K 55 585 / KADZ 200082 8930 27885 7590 07/25/2013 FAY SHARPE LLP 1228 Euclid Avenue, 5th Floor The Halle Building Cleveland, OH 44115 EXAMINER ZEMEL, IRINA SOPJIA ART UNIT PAPER NUMBER 1765 MAIL DATE DELIVERY MODE 07/25/2013 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte BOREALIS TECHNOLOGY OY Inventors: Martin Anker, Per-Ola Hagstrand and Manfred Stadlbauer ____________________ Appeal 2013-005926 Application 12/097,219 Technology Center 1700 ____________________ Before FRED E. McKELVEY, HUBERT C. LORIN and SALLY GARDNER LANE, Administrative Patent Judges. McKELVEY, Administrative Patent Judge. DECISION ON APPEAL Statement of the case 1 Borealis Technology Oy (“applicant”), the real party in interest (Brief, 2 page 1), seeks review under 35 U.S.C. § 134(a) of a final rejection dated 3 18 June 2012. 4 The application on appeal was filed in the USPTO on 23 July 2008. 5 The application on appeal was filed on 15 November 2006 as 6 International Application PCT/EP2006/010967 which entered the national 7 stage as to the United States. 35 U.S.C. § 371. 8 Appeal 2013-005926 Application 12/097,219 2 The application on appeal claims priority of European patent 1 application 05/028435.5, filed 23 December 2005. 2 The application has been published as U.S. Patent Application 3 Publication 2008/0283791 A1. 4 In support of prior art rejections, the Examiner relies on the following 5 evidence. 6 Chappelear et al. “Chappelear” U.S. Patent 3,474,048 21 Oct. 1969 Absmann U.S. Patent 4,205,583 03 June 1980 Reedy U.S. Patent 5,707,571 13 Jan. 1998 Ito et al. “Ito” Japanese published application JP 04110129 A 10 Apr. 1992 Ishikawa “Mitsuiya” Japanese published application JP 2001 105982 A 17 Apr. 2001 Hesse et al. “Borealis” International Published Application WO 02/07969 A1 31 Jan. 2002 Appeal 2013-005926 Application 12/097,219 3 Applicant does not contest the prior art status of the Examiner’s 1 evidence, all of which is prior art under 35 U.S.C. § 102(b). 2 Applicant relies on the following evidence. 3 Gahleitner Declaration Declaration under 37 C.F.R. § 1.132 Dated: 22 May 2012 Sundstrom et al. “Sundstrom” 16 J. APPLIED POLYMER SCI., “Thermal Conductivity of Polymers Filled with Particulate Solids”, pages 3159-3167 1972 Weidenfeller et al. “Weidenfeller” 35 COMPOSITES: PART A, “Thermal conductivity, thermal diffusion, and specific heat capacity of particle filled polypropylene”, pages 423-429 2004 We mention the following additional evidence in this opinion. 4 Borealis Data Sheet Borealis BorECOTM BA222E Polypropylene Block Copolymer for Non-Pressure Pipes Internet download on 1 July 2013 Daploy Data Sheet Polypropylene DaployTM WB130HMS, High- Melt Strength Polypropylene for Foam Extrusion Internet download on 1 July 2013 Nepol Data Sheet Nexeo Solutions, NepolTM GB415HP Borealis AG—Polypropylene Internet download on 1 July 2013 Appeal 2013-005926 Application 12/097,219 4 Clariant Masterbatches HYDROCEROL® Chemical Foaming Agents—Standard Product Range Internet download on 1 July 2013 Clariant Data Sheet Product #: FWCF40E Internet download on 1 July 2013 We have jurisdiction. 35 U.S.C. § 134(a). 1 Claims on appeal 2 Claims 1-20 are on appeal. Brief, page 1. 3 The rejections 4 In the Answer, the Examiner has maintained the following rejections: 5 Rejection 1: Claims 1-20 stand rejected as being unpatentable under 6 § 103 over (1) Borealis (Hesse et al.) and (2) Ito (Mitsubishi), Mitsuiya, 7 Reedy, Chappelear or Absmann. Final Rejection, pages 2-3; Answer, 8 page 2, ¶ B. 9 In the Brief, apart from a mention of Claims 17-18 and 20, applicant 10 does not argue the separate patentability of Claims 2-16 and 19 apart from 11 Claim 1. Accordingly, we decide Rejection 1 on appeal on the basis of 12 Claim 1. 37 C.F.R. § 41.37(c)(1)(iv), as amended, 76 Fed. Reg. 72296, 13 72297 (Nov. 22, 2011). We separately address Claims 17-18 and 20. 14 Rejection 2: Claim 20 stands rejected for failure to comply with the 15 § 112 requirement for a written description. 16 Invention 17 According to applicant (italics added): 18 It has now been surprisingly found that incorporation of 19 glass fibres into a foamed polypropylene composition not only 20 Appeal 2013-005926 Application 12/097,219 5 leads to improved mechanical properties of the foam but at the 1 same time provides the foam with improved thermal insulating 2 properties such as a decreased thermal conductivity. 3 Specification, page 2:1-5. 4 Further according to applicant: 5 [T]he . . . invention provides a foamed polypropylene 6 composition comprising a propylene homo- and/or copolymer 7 and glass fibres, wherein 8 (i) the composition has a density of 50 to 950 kg/m3. 9 (ii) [a] . . . tensile modulus tm(extrusion direction) measured 10 according to ISO 527 in extrusion direction and . . . [a] k-value 11 measured according to ASTM C-518 satisfy the relation: 12 tm(extrusion direction)[MPa] ≥ 9000 MPa·mK/W 13 k [W/mK] 14 Specification, page 2:6-14. 15 Foams according to the invention are said to have a combination of 16 improved mechanical properties. In particular improved are said to include 17 (1) tensile modulus in both extrusion and transverse to extrusion direction, 18 and (2) thermal properties, in particular a decreased k-value indicative of a 19 lower thermal conductivity, compared to foam without glass fibers with the 20 same density. Specification, page 2:15-20. 21 Appeal 2013-005926 Application 12/097,219 6 Claim 1 1 Claim 1, which we reproduce from the Claim Appendix of the Brief 2 (page 16), reads [matter in brackets and some indentation added; principal 3 limitations in issue in italics]: 4 A foamed polypropylene composition comprising a 5 propylene homo- and/or copolymer and glass fibres, wherein 6 (i) the composition has a density of 50 to 900 kg/m3; 7 [and] 8 (ii) the tensile modulus tm(extrusion direction) measured 9 according to ISO 527 in extrusion direction and the 10 k-value measured according to ASTM C-518 satisfy the 11 relation: 12 tm(extrusion direction) [Mpa] ≥ 9000 Mpa·mK / W 13 k [W/mK] 14 Rejection 15 Analysis—Rejection 1 16 Prima facie obviousness 17 Borealis describes polypropylene foams with fillers. Borealis, page 1 18 (¶¶ A and B) and page 2 (¶ C). See also page 7 (“auxiliary substances); 19 page 10 (¶ C) and page 12 (¶ C). 20 The Borealis polypropylene foams are said to be useful as insulation 21 for pipe. Page 2. 22 Borealis differs from Claim 1 on appeal in that Borealis does not 23 explicitly describe the use of glass fiber fillers. 24 Appeal 2013-005926 Application 12/097,219 7 The other references describe foams made from thermoplastic 1 polymers having glass fiber fillers. See, e.g., Chappelear, col. 1:41-43 and 2 Reedy, col. 2:35-53; col. 4:6 (glass filler) and col. 4:53 (polypropylene). 3 Applicant is using known fillers (glass fibers) in a known combination 4 of (1) polypropylene foam and (2) filler. Use of a known element for its 5 intended purpose is evidence of obviousness. KSR Int’l Co. v. Teleflex 6 Inc., 550 U.S. 398, 416 (2007). 7 Applicant does not contest the prima facie case. Brief, page 6; 8 Answer, page 3. We agree with applicant that there is no convincing 9 reason to challenge the combination of Borealis with the other prior art. 10 The Examiner has established a prima facie case of obviousness 11 based on facts supported by a preponderance of the evidence. 12 However, applicant maintains that the claimed invention produces a 13 significant unexpected result and therefore the subject matter of the claims, 14 as a whole, would not have been obvious. 15 We turn to applicant’s evidence of unexpected results and then 16 analyze all the evidence to determine, as a matter of law, whether 17 Rejection 1 has been shown to be erroneous. 18 Evidence of unexpected results 19 The principal point being made by applicant is that addition of glass 20 fibers to polypropylene to make a polypropylene glass-filled foam would 21 have been expected to result in an increase in thermal conductivity. Brief, 22 page 6. According to applicant, the invention results in a decrease in 23 thermal conductivity. Id. 24 Appeal 2013-005926 Application 12/097,219 8 Unexpected results—burden of proof 1 Applicant is under a burden of establishing its unexpected results by 2 clear and convincing evidence. 3 In 1963, the Court of Customs and Patent Appeals, observed that 4 “[w]e agree with the board that the affidavit is not conclusive proof of 5 unexpected and superior results using the claimed compounds.” In re 6 Lohr, 317 F.2d 388, 392 (CCPA 1963). The use of the word “conclusive” 7 by the CCPA was consistent with an observation by the Supreme Court in 8 McClain v. Ortmayer, 141 U.S. 419, 429 (1891), that conclusive evidence 9 needed to establish new function. In re Heyna, 360 F.2d 222, 228 (CCPA 10 1966), subsequently states that it was incumbent upon appellants to submit 11 clear and convincing evidence to support their allegation of any unexpected 12 property. In re Passal, 426 F.2d 409, 412 (CCPA 1970), found “that [in that 13 particular case,] ‘clear and convincing evidence’ of unexpected properties 14 required by this court in In re Lohr . . . is lacking”. See also In re Wetterau, 15 356 F.2d 556, 562 (CCPA 1966) (clear and convincing proof found missing 16 in connection with an unexpected results showing proffered in seeking 17 reversal of obviousness-type double patenting). See Ex parte Dai-Ichi F R 18 Co., Ltd., Appeal 2013-001757, slip. op at 15-17 (PTAB July 25, 2013), for 19 a discussion why use of the clear and convincing evidence standard for 20 unexpected results is appropriate in an ex parte context. 21 Clear and convincing evidence is evidence that produces in the fact 22 finder’s mind an abiding conviction that the truth of a factual contention is 23 “highly probable”. Colorado v. New Mexico, 467 U.S. 310, 316 (1984). 24 Appeal 2013-005926 Application 12/097,219 9 See also Buildex, Inc. v. Kason Indus., Inc., 849 F.2d 1461, 1463 (Fed. Cir. 1 1988). 2 Unexpected results--facts 3 Applicant’s unexpected result evidence includes (1) the data from 4 Examples 1 and 2 of the Specification and (2) Rule 132 testimony of 5 Dr. Markus Gahleitner. 6 (1) Examples 1 and 2 7 Applicant has provided (1) comparative Example 1 and (2) invention 8 Example 2. 9 Ingredients used in the examples are set out in Table 2 10 (Specification, page 16): 11 Table 2 Property— meaning ingredient Unit Example 1 (comparative) Example 2 (invention) PP-B wt.% 69.3 40.7 PP-HMS wt.% 30.0 30.0 PP-GF masterbatch wt.% 0.0 28.6 PBA wt.% 0.2 0.2 NA wt.% 0.5 0.5 PP-B 12 PP-B is not identified per se in the Specification. PP-B may be, and 13 we suspect is, a reference to “Impact-PP” which is said to be commercial 14 Appeal 2013-005926 Application 12/097,219 10 grade BorECOTM BA222E. Specification, page 13:11-14. According to 1 Borealis Data Sheet, as of 1 July 2013, BA222E is identified as a high 2 molecular weight, low melt flow rate polypropylene block copolymer. We 3 do not know the nature of the “block” portion of the copolymer. The 4 properties set out in Borealis Data Sheet appear to be similar to those set 5 out for Component B on page 14 of the Specification. 6 HMS—PP 7 HMS—PP is identified as a commercial grade DaployTM WB130HMS. 8 Specification, page 13:8-10. According to Daploy Data Sheet, as of 1 July 9 2013, WB130HMS is a propylene-based, structurally isomeric polymer 10 designed for polypropylene foam extraction. It can be used alone or with 11 other polypropylenes. The properties set out in Daploy Data Sheet are 12 similar, but not identical to, those set out for Component A on page 14 of 13 the Specification. 14 PP-GF 15 PP-GF is identified commercial masterbatch Nepol GB415HP 16 (Borealis A/S, Denmark). PP-GF is said to contain 42 wt % of glass fibres. 17 PP [polypropylene] is impregnated with the glass fibres, shaped, cooled 18 and subsequently cut to rods of approximately 1 to 10 mm. Specification, 19 pages 14-15. Nexeo Data Sheet reveals properties of GB415HP as of 20 1 July 2013. According to the Nexeo Data Sheet, GB415HP is a “special 21 long glass fibre reinforced polypropylene grade” product in which “[t]he 22 glass fibers are chemically coupled to the polypropylene matrix.” 23 Appeal 2013-005926 Application 12/097,219 11 PBA 1 PBA identifies a physical blowing agent, as opposed to a chemical 2 blowing agent (CBA). Specification, page 8:14-16 and 21-23. According to 3 the Specification, a preferred PBA is carbon dioxide. Id. at 14-15. We are 4 not told what PBA was used in Examples 1 and 2. 5 NA 6 NA is identified as a cell nucleating agent (i.e., surfactant) used in the 7 examples. It is described as a commercial masterbatch (Hydrocerol CF40, 8 manufactured from Clariant) and is said to be a chemical foaming and 9 nucleating agent masterbatch for foaming of thermoplastic resins. The 10 effective components are said to be 40%. Specification, page 15:3-4. 11 Clariant Masterbatches reveals as CF40E endothermic chemical foaming 12 agent having a PE (polyethylene) carrier. Clariant also further reveals that 13 the carrier is LDPE (low density polyethylene) with an active content of 14 40% sold as white pellets. 15 Some of the properties based on experiments embodied in Examples 16 1 and 2 reported are set out in Table 3: 17 Appeal 2013-005926 Application 12/097,219 12 Table 3 Property Unit Example 1 (comparative) Example 2 (invention) Foam density kg/m3 580 560 Compound unfoamed density kg/m3 905 981 Glass fibres wt.% 0 12 k-value W/mK 0.117 0.091 Extrusion direction Tensile modulus MPa 859 1381 Transverse to extrusion direction Tensile modulus MPa 684 703 Tensile Modulus (extrusion direction) divided by thermal conductivity 1 (k) for Example 1 = 895 ⁄ 0.117 = 7,650 MPa·mK / W. 2 Tensile Modulus (extrusion direction) divided by thermal conductivity 3 (k) for Example 2 = 1381 ⁄ 0.091 = 15,176 MPa·mK / W. 4 (2) Testimony of Dr. Markus Gahleitner 5 Dr. Gahleitner received a Ph.D. in 1990. Since 1990, he has been 6 employed in the polymer field, most recently at Borealis. 7 Dr. Gahleitner testified that the k-value of crystalline polypropylene is 8 about 0.25 W/mK. Declaration, ¶ 5. The thermal conductivity of glass (also 9 glass fibers) is said to be in the range of 1.2 to 1.5 w/mK. Id.; Weidenfeller, 10 page 425, Table 1 (2004). Based on the two k-values, Dr. Gahleitner 11 testified that from a theoretical point of view one would “deduce an increase 12 Appeal 2013-005926 Application 12/097,219 13 of the thermal conductivity of a polymer composition by adding glass 1 fibres.” Declaration, ¶ 5. Dr. Gahleitner’s opinion is based on his analysis 2 of Sundstrom (1972). 3 Dr. Gahleitner does not discuss any particular portion of Sundstrom. 4 A review of Sundstrom, reveals that in Fig. 5, reproduced below, data is 5 recorded of thermal conductivity as a function of volume fraction of glass. 6 Sundstrom Fig. 5 Depicted are comparisons of experimental and predicted thermal conductivity for polyethylene filed with glass Fig. 5 shows a general increase in thermal conductivity (reported in 7 units different from those used by applicant) as a function of volume 8 fraction of glass. Sundstrom does not describe k-values of glass filed 9 polypropylene foams. Rather, Sundstrom is concerned with non-foam 10 Appeal 2013-005926 Application 12/097,219 14 plastic materials (often referred to as elastomers), including low-density 1 polyethylene. Page 3161. 2 With reference to Fig. 1 of Weidenfeller (page 425), reproduced 3 below, Dr. Gahleitner testified that the k-values are in the range of 4 0.5 W/mK, which is said to be “about twice as high as the pure polymer.” 5 Declaration, ¶ 6. 6 Weidenfeller describes glass fiber filled polypropylene injection-7 molded composites, not polypropylene foams. Filler polypropylene 8 “polymers with higher thermal conductivities than unfilled ones [are said to] 9 become more and more an important area of study because of the wide 10 range of applications, e.g. in electronic packaging in applications . . . .” 11 Weidenfeller, page 423, col. 1. 12 Weidenfellner Fig. 1 Depicted is data of thermal conductivity of injection-molded polypropylene particle composites with different fillers and various filler fractions. Appeal 2013-005926 Application 12/097,219 15 Data for glass fibers is shown by * points. 1 Filler % volumes of 15, 30 and 35 (x-axis) show a k-value of about 2 0.5 (y-axis). 3 Based on the Sundstrom and Weidenfeller data, Dr. Gahleitner 4 expressed an opinion that “[i]t could . . . not be expected that . . . [a] 5 reduced thermal conductivity (k-value) would be achieved by combining PP 6 [polypropylene] and glass fibres in a foamable composition.” Declaration, 7 ¶ 7. According to Dr. Gahleitner, the data in Table 3 of the Specification 8 reveals that a “reduced k-value is achieved for the fibre-reinforced 9 composition despite [what he characterizes as] the rather insignificant 10 difference in foam density.” Declaration, ¶ 8. 11 Unexpected results--analysis 12 We first determine the weight to be given evidence of unexpected 13 results. In re Inland Steel Co., 265 F.3d 1354, 1366 (Fed. Cir. 2001) (an 14 examination for unexpected results is a factual, evidentiary inquiry and 15 board is given broad deference in its weighing of the evidence before it); In 16 re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359, 1368 (Fed. Cir. 2004). In 17 addition to the discussion associated with setting out the facts, supra, we 18 make the following observations. 19 (1) Scope of claims 20 The claims on appeal do not appear to be limited to the unexpected 21 result upon which applicant relies. The claims define a result in terms of a 22 ratio of (1) tensile modulus divided by (2) k-value. The ratio must be equal 23 Appeal 2013-005926 Application 12/097,219 16 or greater than 9000. Whether the necessary 9000 is achieved necessarily 1 is a function of both (1) tensile strength and (2) k-value. A higher or lower 2 k-value can still achieve the necessary 9000 depending on the tensile 3 strength. Thus, the claims have not been shown to be limited to glass fiber 4 filled polypropylene foams which are required to have a lower k-value than 5 polypropylene foam without glass fibers—the very result said to be 6 unexpected. On this basis alone, we find that the evidence offered in 7 support of applicant’s alleged unexpected result is not commensurate in 8 scope with the possible breadth of Claim 1. 9 (2) Single experiment 10 The Examiner was concerned that applicant’s experimental evidence 11 (i.e., Examples 1 and 2 of the Specification) is not representative of fiber 12 glass filled polyurethane foams. See, e.g., Final Rejection, page 4; 13 Answer, page 5. While we would not foreclose unexpected results being 14 supported by a single experimental comparison, in this case we share the 15 Examiner’s concern for the following reasons. The foams of Examples 1 16 and 2 comprise (1) glass fibers and (2) a mixture of polypropylenes: 17 (a) PP-B which is probably Borealis polypropylene 18 BA222E—a block polypropylene copolymer, 19 (b) HMS-PP which is a different polypropylene identified 20 as WB130HMS—an isomeric polypropylene, and 21 (c) PP-GF which is glass fiber impregnated polypropylene 22 and apparently is the vehicle through which glass fibers are 23 introduced into any resulting foam. 24 Appeal 2013-005926 Application 12/097,219 17 We also note that some polyethylene may be present in the ultimate 1 foam, albeit in a small amount, via use of NA—Hydrocerol CF40. 2 We cannot tell on the record whether any decrease in k-value is 3 attributable (1) solely or in part to the use of the specific mixture of 4 polypropylenes in combination with glass fibers or (2) polypropylene in 5 general in combination with glass fibers. In other words: Is the reported 6 decrease in k-value achieved if only one of the three polypropylenes is 7 used to make the foam? The mixture of polypropylenes used in Examples 8 1 and 2 is considerably narrower than prior art polypropylene / glass fiber 9 foams. See, e.g., Chappelear, col. 1:41-43 & 46 and col. 3:63; Reedy, 10 col. 2:21-24; col. 3:1-6; col. 4:53; Ito (Mitsubishi), describing mixtures of 11 glass fibers and polypropylene used to make foam; and Mitsuiya, 12 describing polypropylene film mixed with glass fiber. Based on the scope 13 of the prior art, we decline to find that applicant’s Example 1 and 2 14 showings are commensurate in scope with the breadth of the claims. We 15 do not know the k-value of prior art foams made from mixtures of 16 polypropylene and glass fibers. Cf. In re Wettarau, at 562 where the 17 CCPA was unable to attribute an unexpected result to a particular feature. 18 A record on which it is established that (1) in general prior art 19 polypropylene / glass fiber foams result in an increase in k-value whereas 20 (2) a claimed invention requires a decrease in k-value would be a record 21 that might justify according unexpected results considerable weight. We do 22 not have that record before us today. 23 Repeatability of applicant’s experimental work? 24 Appeal 2013-005926 Application 12/097,219 18 In general, we believe one skilled in the art should be able to 1 precisely reproduce experimentation submitted to the USPTO in support of 2 unexpected results. In this case, applicant does not identify the PBA 3 (blowing agent) used in Examples 1 and 2. We assume that applicant 4 would not deny that a blowing agent can have an effect on foam properties. 5 Our concern is different from one addressing enablement. What concerns 6 us is what effort one skilled in the art would have to undertake to confirm 7 the result applicant would have us draw from the Example 1 and 2 8 comparisons and can those examples be faithfully reproduced. 9 Ultimate holding on obviousness 10 The Examiner has established, and applicant does not contest, a 11 prima facie case of obviousness. 12 We decline to credit, or give controlling weight to, the evidence of 13 unexpected results. The claims are not limited to foams which have a 14 lower k-value than corresponding foams made without glass fibers. 15 Experimental work presented in the Specification may or may not be able 16 to be faithfully reproduced. Likewise, it cannot be determined on this 17 record whether applicant’s use of an unclaimed mixture of polypropylenes 18 in the experimental work reported in Examples 1 and 2 is the reason for the 19 reported lower k-value. 20 For the reasons given, in this case the prima facie case of 21 obviousness outweighs applicant’s attempt at a showing of unexpected 22 results. On that basis, we conclude as a matter of law on this record that 23 the subject matter of Claim 1 would have been obvious. 24 Appeal 2013-005926 Application 12/097,219 19 Rejection 1 of Claims 1-16 and 19 is affirmed. 1 Claims 17-18 2 Applicant specifically mentions Claims 17-18. Brief, page 11. These 3 claims call for the glass fiber to be present from 5-20 weight % and 6-15 4 weight % respectively. Example 2 describes the use of 12 weight %. 5 Based on Example 2, applicant reasons that one skilled in the art would be 6 able to ascertain weight percentages within the ranges which would 7 achieve the desired lower k-values. For the reasons given, we do not 8 believe that it is the amount of glass fiber used which necessarily achieves 9 the result. Rather, the issue is: What would one expect, what is actually 10 achieved and what must one skilled in the art do to achieve the result? As 11 explained, we do not know whether, and therefore cannot rule out that, the 12 result achieved is due to the use of a mixture of polypropylenes. 13 Rejection 1 of Claims 17-18 is affirmed. 14 Claim 20 15 We have found that applicant’s evidence in support of unexpected 16 results is not commensurate in scope with the breadth of the claims. 17 Applicant believes otherwise with respect to Claim 20. Brief, page 11. 18 Claim 20 reads [matter in brackets, italics and indentation added]: 19 The foamed polypropylene composition of claim 1, 20 [1] wherein the glass fibers are present in an amount of 21 12 wt% of the composition; and 22 [2] wherein the composition has a k-value measured 23 according to ASTM C-518 of less than or equal to 0.091 W/mK. 24 Appeal 2013-005926 Application 12/097,219 20 The Examiner has rejected Claim 20 as being unpatentable under 1 § 112 based on a lack of a written description. Rejection 2. 2 We elect to discuss Rejection 2 in conjunction with applicant’s 3 commensurate in scope argument. 4 Applicant argues, and we agree, that there is no in haec verba 5 requirement for written description support of a claim first presented after 6 an application is filed. Brief, page 5. According to applicant, the 7 Specification describes a k-value “below 0.25 W/mK”. Actually, the 8 Specification states (page 4:4-5): 9 preferably, the foamed composition has a k-value of below 0.25 10 W/mK. Usually, the k-value is 0.01 W/mK or higher. 11 Example 2 reports a k-value of 0.091 W/mk, but only with a specific 12 combination of three polypropylenes. Claim 20 is not limited to the use of 13 those three polypropylenes. 14 Based on the “[u]sually, the k-value is 0.01 W/mK or higher” language 15 and the 0.091 data point of Example 2, we agree with applicant that “less 16 than or equal to 0.091” is described in the Specification, as filed. However, 17 there is no evidence that a k-value of less than 0.091 actually has been 18 achieved. At best, applicant has actually demonstrated that it has achieved 19 a k-value of 0.091. In order to establish unexpected results, an applicant 20 must establish that the results said to be obtained by the invention are in 21 fact obtained by the invention. In re Klosak, 455 F.2d 1077, 1080 (CCPA 22 1972). Claim 20 covers k-values equal to or lower than 0.091. While Claim 23 Appeal 2013-005926 Application 12/097,219 21 20 may comply with the written description requirement, patentability under 1 § 103 is a different matter. 2 Rejection 1 of Claim 20 is affirmed. 3 Rejection 2 of Claim 20 is reversed. 4 Other arguments 5 We have considered applicant’s remaining arguments and find 6 none that warrant reversal of the Examiner’s prior art rejection. Cf. In re 7 Antor Media Corp., 689 F.3d 1282, 1294 (Fed. Cir. 2012). 8 Decision 9 Upon consideration of the appeal, and for the reasons given herein, it 10 is 11 ORDERED that the decision of the Examiner rejecting all the 12 claims on appeal as unpatentable under § 103 over the prior art is affirmed. 13 ORDERED that the decision of the Examiner rejecting Claim 20 14 based on a lack of a written description is reversed. 15 FURTHER ORDERED that since our rationale differs from the 16 rationale of the Examiner, our affirmance is designated as a new rejection. 17 37 C.F.R. § 41.50(b), as amended 76 Fed. Reg. at 72297. 18 FURTHER ORDERED that our decision is not a final agency 19 action. 20 FURTHER ORDERED that within two (2) months from the 21 date of our decision, appellant may further prosecute the application on 22 appeal by exercising on of the two following options: 23 Appeal 2013-005926 Application 12/097,219 22 Option 1: Request that prosecution be reopened by 1 submitting an amendment or evidence or both. 37 C.F.R. § 41.50(b)(1), as 2 amended 76 Fed. Reg. at 72297. 3 Option 2: Request rehearing on the record presently 4 before the Board. 37 C.F.R. § 41.50(b)(2), as amended 76 Fed. Reg. at 5 72297. 6 FURTHER ORDERED that no time period for taking any 7 subsequent action in connection with this appeal may be extended under 8 37 C.F.R. § 1.136(a)(1)(iv). 9 AFFIRMED 10 37 C.F.R. § 41.50(b) 11 12 bar 13 Borealis BorECOTM BA222E Polypropylene Block Copolymer for Non-Pressure Pipes Page 1 of 1 Borealis BorECOTM BA222E Polypropylene Block Copolymer for Non-Pressure Pipes Categories: Polymer; Thermoplastic; Polypropylene (PP); Polypropylene, Extrusion Grade Material Notes: SorECO SA222E is a high molecular weight, low melt flow rate polypropylene block copolymer with superior stiffness and excellent impact properties. SorECO SA222E fulfills the requirements according to EN 1852-1/A 1 and is a PP-HM (polypropylene high modulus) material. SorECO SA222E is recommended for solid wall non-pressure piping especially in underground drainage and sewerage and soil and waste applications. Information provided by the Manufacturer. Vendors: No vendors are listed for this material. Please click here if you are a supplier and would like information on how to add your listing to this material. Physical Properties Metric English Comments Density 0.915 glee 0.0331 Ib/in3 ISO 1183 Melt Flow 0.25 g/10 min 0.25 g/1 0 min ISO 1133 @Load 2.16 kg, Temperature 230 "e @Load 4,76 Ib, Temperature 446 'F Mechanical Properties Metric English Comments Tensile Strength, Yield 33,0000 MPa 4786.25 psi At 50 mm/min; ISO 527-2 Elongation at Yield 8.0 % 8.0 % At 50 mm/min; ISO 527-2 Flexural Modulus 1.90 GPa 276 ksi At 2 mm/min; ISO 178 Charpy Impact, Notched 5.00 J/cm2 23.8 ft-lb/in2 ISO 179/1eA [iW 0.400 J/cm2 1.90 ft-lb/in2 @Temperature ·20.0 DC @Temperature ·4,00 "F ISO 179/1eA Processing Properties Metric English Comments Front Sarrel Temperature 200 - 220°C 392 428 OF Die Temperature 210 220 °C 410 428 OF Melt Temperature 210 - 230°C 410 - 446 OF Head Temperature 210 220 °C 410 428 OF Some of the values displayed above may have been converted from their original units and/or rounded in order to display the information in. a consistent format. Users requiring more precise data for scientific or engineering calculations can click on the property value to se,e the onglnal value as well as raw conversions to equivalent units, We advise that you only use the original value or one of its raw conversions In your calculations to minimize rounding error. We also ask that you refer to MalWeb's terms of use regarding this information. Click here to view all the property values for this data sheet as they were originally entered into MatWeb, HMS 0864 20.10.2004 Ed.8 Polypropylene DaployTM WB130HMS High-Melt Strength Polypropylene for Foam Extrusion Description Daploy WB130HMS resin is a propylene-based, structurally isomeric polymer, which combines significantly increased melt strength with largely improved drawability of the polymer melt Thus, the material is generally characterised by improved processability in polymer forming technologies where stretching flows OCCUL Deploy WB130HMS is specially designed for polypropylene foam extrusion, in particular for direct gassing technology. Depending on foam technology, densities of foamed materials in between 40 and 700 gil can be achieved. According to the application, Daploy WB130HMS can be used on its own or in blends with other grades of pp with lower melt strength Deploy WB130HMS is characterised by: - Combination of high strength and drawability in melt phase High stiffness High service temperature Foamability in foam extrusion processes, especially by direct gassing - Thermoformability of foamed materials based on Deploy WB130HMS Good insulating properties of foamed materials based on Daploy WB130HMS - Recyclability Application - Thermoformable, foamed films and sheets - lightweight packaging trays, beakers and containers Microwaveable food packaging Tachnical foams for automotive applications such as headliners, carpet backing, Door liners, parcel shelves, water shields, under-the-hood acoustic panels - Cushioning and protective packaging Thermal and acoustic insulation Daploy is a fnldemarll of Bowalis AIS. Oenmarfl Boreafl$ AlS ParaBelvej 16 DK-2800 Kongens lyngby (Denmark) Telephone: +45 45 96 60 00 Fax . +45 45 96 61 23 www.bmealisgroup.com III BOREALIS Polypropylene DaployTM WB130HMS Physical Properties" Typical Value" Unit Test Method Melt Flow Rate (230°C12.16 kg) 2.1 gl10 min ISO 1133 Aexural Modulus 1900 MPa ISO 178 Tensile 8trength at Yield 40 MPa 180527-2 Elongation at Yield 6 % 180527-2 Tensile Modulus 2000 MPa ISO 527-2 Charpy impact strength, notched (+23"C) 3.0 kJ/m2 ISO 17911eA Charpy Impact Strength, notched (-20·C) 1.0 kJ/m2 180 17911eA Heat delledion temperature (A) 60 ·C 18075-2 Heat delledion tempe!3ture (B) 110 ·C 18075-2 • Data should not be used for specific wm1<. - Injection moulded test specimen Processing Guidelines Daploy WB130HMS and its mixtures with linear standard polypropylenes may be processed on all conventional equipment for the manufacture of non-crosslinked polyoJefin foams with suitable tooling. Feasible foam density, thickness and quality depend on the polymers, blowing agents, processing aids and on the design of the foam extrusion equipment, as well as the chosen process parameters. The processing temperature, with normal residence times, should not exceed 260·C. Higher melt mmperatures could cause thermal oxidative damage, due to interaction with atmospheric oxygen, and could impair material properties. nshould be ensured that there is adequate ventilation during processing of Daploy WB130HMS and its mixtures with linear standard polypropylenes and continuous breathing of vapours should be avoided. The addition of processing aids or master batches can influence the properties of Deploy WB130HMS and its mixtures with linear standard polypropylenes. Delivery Natural granules with a bulk density of approximately 0.5 kg/l. II BOREALIS HMS 0864 20.10.2004 Ed.8 Polypropylene DaployTM WB130HMS Storage and handling Oaploy WB130HMS should be stored in dry conditions at temperatures below 50"C and protected from UV light Improper storage can initiate degradation, which results in odour generation and colour changes and can have negative effects on the physical properties of this prodlJ{;t Safety Daploy WB130HMSis not classified as a dangerous preparation. Dust and fines from the product carry a risk of dust explosion. All equipment should be properly earthed. Inhalation of dust should be avoided as it may cause irritation of the respiratory system. Small amounts of fumes are generated during processing of the product Proper ventilation is therefore required. Recycling The product is suitable for recycling using modem methods of shredding and cleaning. In-house production waste should be kept clean to facilitate direct recycling. Related Documents A Safety Datasheet is available on request Please contact your Borealis representative for more details on various aspects of safety, recovery and disposal of the product. The following related documents are available on request, and represent various aspects on the usability, safety, recovery and disposal of the product: Safety Data Sheet, SOS Environmental Fact Sheet liability statements on: - Compliance to Food Contact Regulations statement on Heavy Metals Borealis AJS Parallelvej 16 OK-2800 Kongens Lyngby (Denmark) Telephone: +45 45 96 60 00 Fax: +45 45 966123 www.borealisgroup.COIII II BOREALIS Polypropylene DaployTM WB130HMS Disclaimer The information contained herein is In our knowledge accurate and reliable as of the date of publication. 80realis extends no warranties and makes no representations as In the accuracy or completeness of the information contained herein, and assumes no responsibility regarding the consequences of its use or for any printing errors. Our products are intended for sale In industrial and commercial custnmers. H is the customer's responsibility to inspect and test our products in order In satisfy himself as In lhe suitabiity of lhe products for lhe custnmer's particular purpose. The custnmer is also responsible for lhe appropriate, safe and legal use, processing and handling of our products. Nothing herein shall constitute any warranty (express OJ" implied, of merchantability, fitness for a particular purpose, compliance with performance indicatnrs, conformity In samples or models, nOrHnfringement or otheJWise). nor is protection from any law OJ" patent In be inferred. No statement herein shall be construed as an endorsement of any product or process. Insofar as products supplied by Borealis or its subsidiary companies are used in conjunction with lhird party materials, it is lhe msponsibility of lhe custnmer In obtain all necessary information relating In the lhirrI party materials and ensure lhat 8orealis' products when used tngether with these materials are suitable for lhe customer's particular purpose. No liability can be accepted in respect of lhe use of Borealis' products in conjunction with olher materials. The information contained herein relates eKciusively In our products when no! used in conjunction with any lhird party materials. III BOREALIS Borealis AG NepolTM GB415HP Polypropylene, Unspecified n8X80* solutions NepolTM GB415HP Borealis AG - Polypropylene Page 1 of2 Monday, July 01, 2013 Units SI Action Legend (Open) General Information Product Description Nepol GB415HP is a special long glass fibre reinforced polypropylene grade, produced using Borealis Proprietary and exclusive, patented Nepol technology intended for injection moulding and extrusion. The glass fibres are chemically coupled to the polypropylene matrix. The grade is equipped with an extraordinary long-term high heat stabilisation package. Nepol GB415HP is providing outstanding mechanical properties such as high strength and high stiffness, excellent impact resistance and in addition outstanding performance in odour emission and fogging. The excellent properties of Nepol GB415HP make it suitable for: Structural parts in automotive interior such as dashboard carrier, door module carrier or structural seat parts. Nepol GB415HP is suitable as well for extrusion of profiles requiring very high stiffness, very high impact strength and low density. Due to its excellent combination of properties, Nepol GB415HP can, in many of these applications, substitute other engineering plastiCS or metal alloys. Material Status • Commercial: Active • Europe • North America • South America • Long Glass Fiber, 40% Filler by Weight • Heat Availability Features • Chemically Coupled • High Stiffness • Recyclable Material • Good Impact Resistance • High Strength • Heat Stabilized • Low to No Odor Uses • Automotive Applications • Automotive Interior Parts • Metal Replacement Forms • Pellets Processing Method • Extrusion • Injection Molding ASTM & ISO Properties 1 Physical Molding Shrinkage Nominal Value Unit 0.35 % ISO 294-4 Test Mechanical Nominal Value Unit Method Tensile Modulus (Injection Molded) 9000 MPa ISO 527-2 Tensile Stress (Break, Injection Molded) 140 MPa ISO 527-2 Tensile Strain (Break, Injection Molded) 2.5 % ISO 527-2 Test Impact Nominal Value Unit Method Charpy Notched Impact Strength ISO '~"__""'''_''_''_'_'''___ .~.__..._.._._.} 79I}e~ . ...__ 36 Charpy Unnotched Impact Strength ISO ....~_.__ ...... _....~._"~..._......._._.,,. _._".."_.".__ ...._. __ ~__".1?,,9!,!~lJ.. Multi-Axial Instrumented Impact Energy (3.00 mm, Injection Molded, Total 22.0 J ISO 6603-2 Penetration Energy) Thermal Nominal Value Unit Test Method 7/1/2013http://catalog.ides.com/Datashee t.aspx?I = 79718&E= 74843 Borealis AG NepolTM GB415HP Polypropylene, Unspecified Heat Deflection Temperature (1.8 MPa, Unannealed) 160°C Page 2of2 ISO 7S-2/A Vicat S()ftening Temperature 167°C ISO 306/ASO 145°C ISO 306/B50 Additional Information The value listed as Molding Shrinkage, ISO 294-4, was tested in accordance with Borealis test methods. Fogging, DIN 75201, lOOoe, 16 hr: 0.75 mg Emission, VDA 277: 45 I-1g e/g Information Injection Nominal Value Unit Processing (Melt) Temp 240 to 260°C 30.0 to 60.0 °e 30.0 60.0 MPa Slow-Moderate Dosing Speed: as low as possible within cycle time Back Pressure: as low as possible Notes 1 Typical properties: these are not to be construed as specifications. ® IDES~ UL and the UL logo are trademarks of UL LLC © 2013. All Rights Reserved. The information presented on this data sheet was acquired by UL IDES from the producer of the material. UL IDES www.ides.com makes substantial efforts to assure the accuracy of this data. However, UL IDES assumes no responsibility for the data values and strongly encourages that upon final material selection, data points are validated with the material supplier. 7/1/2013http://catalog.ides.com!Datasheet.aspx?I= 79718&E= 7 4843