12740299 (P.T.A.B. Dec. 28, 2015)

Ex Parte Attal et al

Patent Trial and Appeal BoardDec 28, 2015

12740299 (P.T.A.B. Dec. 28, 2015)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 121740,299 07/15/2010 Jamel F. Attal 16171 7590 12/30/2015 The Dow Chemical Company/ The JL Salazar Law Firm, pllc 1934 W. Gray Suite 401 Houston, TX 77019 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 ATTORNEY DOCKET NO. CONFIRMATION NO. 66679A-US-PCT 7441 EXAMINER CHRISS, JENNIFER A ART UNIT PAPER NUMBER 1786 NOTIFICATION DATE DELIVERY MODE 12/30/2015 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 paralegal @j lsalazar. com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte JAMEL F. ATTAL, JOUKO VYORYKKA, and PEKKA SALMINEN Appeal2014-005454 Application 12/7 40,299 Technology Center 1700 Before CATHERINE Q. TIMM, BEYERL YA. FRANKLIN, and AVEL YN M. ROSS, Administrative Patent Judges. TIMM, Administrative Patent Judge. DECISION ON APPEAL 1 STATEMENT OF CASE Appellants2 appeal the Examiner's decision to reject claims 1, 12, and 13 under 35 U.S.C. Â§ 103(a) as obvious over VanSumeren3 in view of Cook4 and Kuribayashi. 5 We have jurisdiction under 35 U.S.C. Â§Â§ 6(b) and 134(a). 1 In our opinion below, we refer to the Final Office Action filed August 13, 2013 (Final), the Appeal Brief filed December 16, 2013 (Br.), and the Examiner's Answer filed January 17, 2014 (Ans.). 2 Appellants identify the real party of interest as Dow Global Technologies, LLC. Br. 2. 3 VanSumeren et al., U.S. 2008/0009586 Al, published Jan. 10, 2008 (hereinafter "VanSumeren"). Appeal2014-005454 Application 12/740,299 We AFFIRM. The claims are directed to a coating composition. Appellants do not argue any claim apart from the others. Br. 7-9. We select claim 1 as representative for deciding the issue on appeal. Claim 1 reads: 1. A coating composition consisting essentially of: at least 50 percent by weight of a dispersion comprising; from 20 to 50% by weight of at least one or more base polymers selected from the group consisting of an ethylene-based thermoplastic polymer, a propylene-based thermoplastic polymer, and mixtures thereof; wherein said ethylene-based thermoplastic polymer is an ethylene/alpha-olefin interpolymer; and wherein said propylene-based thermoplastic polymer is a propylene/alphaolefin interpolymer; at least one or more polymeric stabilizing agents; and water; wherein said dispersion has a pH in the range of from 8 to 10.5, 1 to 10 percent by weight of a crosslinker selected from the group consisting of zinc ammonium carbonate, and zirconium ammonium carbonate, and 2 to 15 percent by weight of styrene/acrylic resin solution; wherein said composition has a blocking temperature in the range of least 75Â° C. according to Variable Temperature Blocking Test. 4 Cook et al., U.S. 4,447,570, issued May 8, 1984 (hereinafter "Cook"). 5 Kuribayashi et al., U.S. 2004/0009294 Al, published Jan. 15, 2004 (hereinafter "Kuribayashi"). 2 Appeal2014-005454 Application 12/740,299 Claims Appendix of the Br. i-ii. OPINION There is no dispute that VanSumeren suggests formulating a coating including the dispersion of claim 1, but fails to disclose including 1-10 wt% of a zinc ammonium carbonate or zirconium ammonium carbonate crosslinker and 2-15 wt% of a styrene/acrylic resin solution. Compare Final 3-5 with Br. 5-6. The Examiner relies upon Cook as providing evidence that it would have been obvious to the ordinary artisan to include the crosslinker and upon Kuribayashi as evidence that it would have been obvious to include the styrene/acrylic resin solution. Final 6. The issue is whether Cook teaches away from adding the crosslinker of Cook to VanSumeren's coating composition. See Br. 7-9. Appellants allege Cook teaches away from the combination because Cook requires a binder emulsion having a pH of less than about 7, for example pH of 5. 5-7, preferably pH of 6.5-7, i.e., pH ranges lower than the pH range of 8-10.5 required by claim 1. Br. 8-9, citing Cook, col. 11, 11. 43--45. Appellants contend that the Examiner fails to address this difference in pH. Br. 9. First, we disagree with Appellants' contention that the Examiner failed to address the difference in pH. The Examiner finds that VanSumeren teaches providing the dispersion with a pH of 4--14, with a preferred range of 8.5-10. Final 4; Ans. 8. VanSumeren's preferred pH range is the same as Appellants' claimed range. It is VanSumeren that teaches the dispersion composition. Second, Cook's lower pH range is not a teaching away from selecting a known crosslinker for its known crosslinking function. "[I]n general, a reference will teach away if it suggests that the line of development flowing from the reference's disclosure is unlikely to be productive of the result 3 Appeal2014-005454 Application 12/740,299 sought by the applicant." In re Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994). The portion of Cook cited by Appellants merely discloses that pre-adjusting the pH to less than about 7 "several days before coating is frequently beneficial in increasing the cure rate." Cook, col. 11, 11. 43--46. Thus, the pH may be higher when the coating is made and up to "several days before coating." Moreover, Cook only states that there is a benefit to lowering the pH, Cook does not state that crosslinking will not take place at a higher pH. Even if the lower pH were viewed as providing a better cure rate, 'just because better alternatives exist in the prior art does not mean that an inferior combination is inapt for obviousness purposes." In re Mouttet, 686 F.3d 1322, 1334 (Fed. Cir. 2012). Here, there is no dispute that Cook teaches a vinyl acetate ethylene olefinically unsaturated carboxylic acid interpolymer latex collodially suspended in water, and treating it with a zirconium crosslinking agent such as ammonium zirconium carbonate. Compare Final 6 with Br. 6. Appellants do not argue that the interpolymer of Cook is in any way different from those suggested by VanSumeren. 6 Br. 7-9. "The combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results." KSR Int 'l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007). Appellants provide no evidence that they obtain an unpredictable or unexpected result. CONCLUSION We sustain the Examiner's rejection. 6 In fact, Cook's interpolymers appear to be within the scope of VanSumeren's interpolymer genus. See VanSumeren i-fi-120, 28, 105, and 112. 4 Appeal2014-005454 Application 12/740,299 DECISION The Examiner's decision is affirmed. TIME PERIOD FOR RESPONSE No time period for taking any subsequent action in connection with this appeal maybe extended under 37 C.F.R. Â§ 1.136(a)(l). AFFIRMED cdc 5