Ex Parte Bellet et al

Patent Trial and Appeal Board

Mar 29, 2016

11721713 (P.T.A.B. Mar. 29, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
111721,713 08/13/2009
23599 7590 03/31/2016
MILLEN, WHITE, ZELANO & BRANIGAN, P,C
2200 CLARENDON BL VD.
SUITE 1400
ARLINGTON, VA 22201
Gaelle Bellet
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.
ATOCM-0387 2685
EXAMINER
BLACKWELL, GWENDOLYN
ART UNIT PAPER NUMBER
1782
NOTIFICATION DATE DELIVERY MODE
03/31/2016 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):
docketing@mwzb.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte GAELLE BELLET, NICOLAS AMOUROUX, and
FREDERIQUE PERY
Appeal2014-007370
Application 11/721,713
Technology Center 1700
Before JEFFREY T. SMITH, MICHAEL P. COLAIANNI, and
BRIAND. RANGE Administrative Patent Judges.
RANGE, Administrative Patent Judge.
DECISION ON APPEAL
SUMMARY
Appellants 1 appeal under 35 U.S.C. § 134(a) from a rejection of
claims 1--4 and 6-21. Appeal Br. 8-10 (Claim Appendix). We have
jurisdiction. 35 U.S.C. § 6(b ).
We AFFIRM.
1 According to the Appellants, the real party in interest is "ARKEMA
FRANCE." Appeal Br. 1.
Appeal2014-007370
Application 11/721,713
STATEMENT OF CASE
Appellants describe the present invention as a multilayer tube. App.
Br. 1. The tube could be used for transferring petrol in a motor vehicle or
for delivering compressed air. Spec. 1:13-20. Claim 1, reproduced below, 2
is the only independent claim on appeal and is illustrative of the claimed
subject matter:
1. A multilayer tube consisting of, in its radial direction from
the outside inwards:
- an outer layer (1) made of polyamide,
- a tie layer(2) comprising by weight:
1 to 50% of an impact modifier that is elastomers or
very low density polyethylene, said impact modifier being
completely or partly functionalized,
per 99 to 50% of a blend of a 6-rich copolyamide 6/12 and
of a 12-rich copolyamide 6/12,
- optionally an EVOH layer (3),
- optionally a tie layer,
- an inner layer (4) made of polyamide 12 (PA 12), polyamide 6
(PA 6) or a PA 6-polyolefin blend with a PA 6 matrix and a
dispersed polyolefin phase,
optionally an inner layer ( 4a) that adheres to layer ( 4), and
contains an electrically conductive material said inner layer ( 4a)
being present when layer ( 4) is essentially free of electrically
conductive material,
the layers being successive and adhering to one another in their
respective contact zones.
2 We have reproduced the formatting of the claim, including the use
indentations and bullet points, as claim 1 appears in the claim appendix of
Appellants' brief. Appeal Br. 8 (Claim App'x).
2
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Application 11/721,713
REFERENCES
The Examiner relied upon the prior art below when rejecting the
claims on appeal:
Merzig er
(hereinafter, "Merziger '153")
Flepp et al.
(hereinafter, "Flepp")
Merziger et al.
(hereinafter, "Merziger '288")
Bell et
US 6,302,153 Bl Oct. 16, 2001
US 2002/0012806 Al Jan. 31, 2002
US 2003/0124288 Al July 3, 2003
US 2004/0071913 Al Apr. 15, 2004
REJECTIONS
The Examiner made the following rejections:
Rejection 1. The Examiner rejected claims 1--4, 6-17, 19, and 21
under 35 U.S.C. § 103 as unpatentable over Merziger '288.
Rejection 2. The Examiner rejected claim 18 under 35 U.S.C. § 103
as unpatentable over Merziger '288 and Bellet.
Rejection 3. The Examiner rejected claim 20 under 35 U.S.C. § 103
as unpatentab le over Merzig er '2 8 8 and Merzig er ' 15 3.
Rejection 4. The Examiner rejected claims 1--4, 6-17, 19, and 21
under 35 U.S.C. § 103 as unpatentable over Flepp and Merziger '288.
Rejection 5. The Examiner rejected claim 18 under 35 U.S.C. § 103
as unpatentable over Flepp, Merziger '288 and Bellet.
Rejection 6. The Examiner rejected claim 20 under 35 U.S.C. § 103
as unpatentable over Flepp, Merziger '288, and Merziger '153.
ANALYSIS
Rejection 1. The Examiner first rejects independent claim 1 and
dependent claims 2--4, 6-17, 19, and 21 as obvious in view ofMerziger
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Application 11/721,713
'288. Appellants do not separately argue any of the dependent claims, and
we therefore limit our discussion to claim 1. See 37 C.F.R. § 41.37(c)(l)(iv)
(2013). Appellants present two arguments as why the Examiner's
conclusion is erroneous with respect to claim 1, and we address each
argument below.
First, Appellants argue that it would not have been obvious to
implement a tube without the second tie layer of Merziger '288. Appeal Br.
2-3. We disagree. Merziger '288 teaches a tube lacking a second tie layer.
In particular, Merziger '288 at paragraphs 19-263 explains that EP 1036967
describes a tube which does not have the second tie layer and provides
adequate "cold impact resistances" but that the second tie layer may be
necessary "should the tube be placed under partial vacuum .... " Final Act.
3; Merziger '288 i-f 19-26.
We find that a person of ordinary skill in the art would have been
inclined to combine the EP 1036967 tube as described by Merziger '288
with the tie layer materials described in latter portions of Merziger '288.
Merziger '288 teaches that the EP 1 036 967 tube as described has good cold
impact resistance "which remains the most important mechanical
consideration." Merziger '288 i-f 26; Ans. 11-12. This tube could be
predictably improved with the tie layer materials of Merziger '288 in the
same way the materials two tie layer tube embodiment of Merziger '288
because this material allows "good adhesion between the layers in question."
Id. i-f 57; Final Act i-f 8. Cf KSR Int 'l. Co. v. Teleflex Inc., 550 U.S. 398, 417
3 For brevity, we refer to the "EP 1036967" tube below. In doing so, we
refer to the teaching of Merziger '288 at paragraphs 19-26. The Examiner
did not separately assert EP 1036967 as a prior art reference.
4
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Application 11/721,713
(2007) ("if a technique has been used to improve one device, and a person of
ordinary skill in the art would recognize that it would improve similar
devices in the same way, using the technique is obvious .... ").
Appellants submit that a person of skill in the art would not use the EP
1036967 tube as described by Merziger '288 because Merziger '288
suggests that this tube could partly delaminate and become blocked if the
tube is under partial vacuum. Appeal Br. 3; Merziger '288 i-f 26. In reply,
Appellants attempt to further buttress this point by citing FR 9903215 (the
priority document to EP 1036967) as "confirm[ing] the presence of a
vacuum in a fuel hose." Reply Br. 3. We do not agree with Appellants'
reasoning. The record before us does not establish that the EP 1036967 tube
requires the additional tie layer between the conducting inner layer and the
inter layer. Neither Merziger '288 nor EP 1036967 suggest that the
problematic partial vacuum always exists; indeed, Merziger '288 suggests
just the opposite by stating that EP 1036967 is inadequate only "should the
tube be under a partial vacuum." Merziger '288 i-f 26; Ans. 11-12.
Moreover, one of skill in the art reasonably would have expected that the
"good adhesion" of the Merziger '288 tie layer materials would improve
upon the EP 1036967 tube. Merziger '288 i-f 57; Final Act i-f 8. As such, we
do not agree with Appellants' position that use of a tube lacking a second tie
layer would not have been obvious.
As a second argument, Appellants assert that Merziger '288 does not
disclose a tie layer comprising an elastomer (such as, for example, ethylene
propylene rubber often referred to as "EPR") or very low density
polyethylene ("VLDPE") as recited by claim 1. Appeal Br. 4. As explained
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Application 11/721,713
infra, we are not persuaded by this argument because use ofVLDPE or an
elastomer as a tie layer would have been obvious in view of Merziger '288.
Merziger '288 teaches that its tie layer may be "any product allowing
good adhesion between the layers in question .... " Merziger '288 i-f 57. In
particular, Merziger '288 teaches that the tie layer comprises about 6-rich
copolyamide 6/12 and 12-rich copolyamide 6/12 combined with about 30%
of a functionalized polyolefin. Final Act. 2; Merziger '288 i-fi-157, 91, 95.
The functionalized polyolefin may be "polyethylene, polypropylene,
copolymers of ethylene with at least one alpha-olefin, blends of these
polymers .... " Id. at i-f 59. VLDPE is an example of a "copolymer of
ethylene with at least one alpha-olefin." See Merziger '288 i-fi-1 133-134.
Merziger '288 also teaches that, for its inner layer of tubing,
"copolymers of ethylene with propylene, butane, hexane, or octane" could
be utilized. Merziger '288 at 140, 141. VLDPE is a copolymer of ethylene
with propylene, butane, hexane, or octane. Final Act. 2-3; see also Merziger
'288 i-fi-1 132-134 (explaining that VLDPE could be utilized for inner layer).
Merziger '288 also teaches use of a PE/EPR blend as a functionalized
polyolefin. Id. at 139. Use ofVLDPE or EPR in conjunction with the inner
layer is similar in nature to its use as a tie layer. Final Act 2-3. Thus, we
agree with and adopt the Examiner's finding that
[g]iven both the broad disclosure of functionalized ethylene
alpha olefin in the initial paragraphs [i.e., in Merziger i-f 58] and
the definition of specific alpha olefins later in the specification
of Merziger [i.e., in id. at i-fi-1 140, 141 ], one of ordinary skill in
the art would have been motivated to use and would have a
reasonable expectation of success in using the specific
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Application 11/721,713
functionalized alpha olefins taught by Merziger (such as EPR)4
as the broadly claimed functional ethylene alpha olefin of the
tie layer.
Ans. 12-13.
Based the above findings of fact, we agree with the Examiner's
conclusion that it would have been obvious to use the referenced polyolefin
of paragraphs 139-142 ofMerziger '288 (in particular, VLDPE or EPR) as
the functionalized polyolefin of paragraph 59 of Merziger '288. Final Act.
3; Ans. 12-13. Use of VLDPE or EPR in this manner is no more than a
predictable use of prior art elements according to established functions.
Accordingly, we agree with the Examiner that the subject matter of claim 1
would have been obvious in view of Merziger '288. KSR Int 'l. Co. v.
Teleflex Inc., 550 U.S. 398, 417 (2007). Accordingly, we sustain the
Examiner's rejection of claims 1--4, 6-17, 19, and 21 as obvious in view of
Merziger '288.
Rejections 2, 3. Appellants rely upon their arguments with respect to
claim 1 in addressing the Examiner's second and third rejections. Appeal
Br. 5. Appellants proffer no particular or persuasive arguments regarding
the content or combining of the Bellet and Merziger '153 references. Id.
Thus, we adopt the Examiner's uncontested findings of fact in paragraphs 14
and 17 of the final rejection, and we sustain these rejections for the reasons
explained above.
Rejection 4. The Examiner also rejects independent claim 1 and
dependent claims 2--4, 6-17, 19, and 21 as obvious in view ofFlepp as
4 We note that the Examiner references EPR as one example in this
quotation, but the reasoning also applies for VLDPE.
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Appeal2014-007370
Application 11/721,713
modified by Merziger '288. Final Act. 7-10. With respect to this rejection,
Appellants do not separately argue any of the dependent claims. We
therefore limit our discussion to claim 1. Claims 2--4, 6-1 7, 19, and 21
stand or fall with that claim. See 37 C.F.R. § 41.37(c)(l)(iv) (2013).
The Examiner found that Flepp teaches a four layer hose and that
[ o ]ne of ordinary skill in the art would be motivated to use the
tie layer of Merziger et al. as the tie layer of Flepp et al. as the
tie layers of Merziger et al[.] have been good shown to have
good adhesion ... this would enable one to use one tie layer for
all materials used in the invention of Merziger et al.
Final Act. 7, 8. The Examiner also found "this is also merely substituting a
known material for a known purpose." Id. Applicant does not dispute these
findings of fact (Ans. 5---6), and we therefore adopt these findings. Cf Ex
parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential) (holding that
Board's appellate review is based upon "issues identified by appellant")
(citation omitted).
Appellants argue that "Flepp fails to disclose or suggest layer (2) of
the present claims." Appeal Br. 5. Flepp does, however, teach a tie layer.
Flepp i-f 5; Final Act 7-10. For the reasons explained above and provided by
the Examiner, we agree with the Examiner's conclusion that it would have
been obvious to use the tie layer materials taught by Merziger '288 in
conjunction with the tube of Flepp. Thus, we sustain this rejection.
Rejections 5-6. It appears that Appellants again rely upon their
arguments with respect to claim 1 in arguing against rejections five and six.
Appellants again proffer no particular or persuasive arguments regarding the
content or combining of the Bellet and Merziger '153 references. Thus, we
adopt the Examiner's uncontested findings of fact in paragraphs 27 and 30
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Application 11/721,713
of the final rejection, and we agree with and sustain the Examiner's
obviousness conclusions with respect to these rejections.
DECISION
For the above reasons, we affirm the Examiner's rejections.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED
9