11326153 (B.P.A.I. Apr. 22, 2010)

Ex Parte Chakravarti et al

Board of Patent Appeals and InterferencesApr 22, 2010

11326153 (B.P.A.I. Apr. 22, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ____________ Ex parte SHREYAS CHAKRAVARTI, CHIEL ALBERTUS LEENDERS, BERNARDUS ANTONIUS SCHRAUWEN, and ROBERT DIRK VAN DE GRAMPEL ____________ Appeal 2010-000106 Application 11/326,153 Technology Center 1700 ____________ Decided: April 22, 2010 ____________ Before EDWARD C. KIMLIN, BRADLEY R. GARRIS, and MARK NAGUMO, Administrative Patent Judges. KIMLIN, Administrative Patent Judge. DECISION ON APPEAL This is an appeal from the final rejection of claims 1, 4, 5, 9-12, 14- 18, 20-26, and 28-31. We have jurisdiction under 35 U.S.C. § 6(b). Claim 1 is illustrative: Appeal 2010-000106 Application 11/326,153 1. A thermoplastic composition comprising: a polyester-polycarbonate copolymer comprising isophthalate- terephthalate-resorcinol ester units and carbonate units in a molar ratio of 20:80 to 80:20, and a poly(alkylene ester) copolymer comprising ethylene terephthalate units and 1,4-cyclohexanedimethylene terephthalate ester units in a molar ratio of 20:80 to 95:5, wherein the polyester-polycarbonate copolymer and the poly(alkylene ester) copolymer are present in the thermoplastic composition in a weight ratio of 20:80 to 80:20, wherein the sum of the mole percentage values of the isophthalate- terephthalate-resorcinol ester units in the polyester-polycarbonate copolymer, and of the mole percentage values of the 1,4- cyclohexanedimethylene terephthalate units in the poly(alkylene ester) copolymer, is a value greater than 40, and wherein a molded article having a thickness of 2.5 mm and consisting of the polyester-polycarbonate, the poly(alkylene ester) polymer, and less than or equal to 5 weight percent of an additive, has a haze of less than or equal to 5%, measured according to ASTM D1003-00. The Examiner relies upon the following references as evidence of obviousness (Ans. 2): Robeson 4,246,381 Jan. 20, 1981 Brunelle 6,306,507 B1 Oct. 23, 2001 Appellants’ claimed invention is directed to a thermoplastic composition comprising a polyester-polycarbonate copolymer and a poly(alkylene ester) copolymer. The polyester-polycarbonate copolymer comprises isophthalate-terephthalate-resorcinol (ITR) units and carbonate units. The poly(alkylene ester) copolymer comprises ethylene terephthalate 2 Appeal 2010-000106 Application 11/326,153 units and 1,4 cyclohexanedimethylene terephthalate (CHDM) ester units. The sum of the mole percentage values of the ITR units and the CHDM units is a value greater than 40. According to Appellants, “[u]nexpectedly, transparent compositions are obtained when the sum of the mole percent value of the ITR units in the polyester-polycarbonate and the mole percent value of the CHDM units in the polyester is a value greater than 40” (Br. sentence bridging 7-8). Appealed claims 1, 4, 5, 9-12, 14-18, 20-26, and 28-31 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Bruenelle in view of Robeson. Appellants have not separately argued any particular claim on appeal. Accordingly, all the appealed claims stand or fall together with claim 1. We have thoroughly reviewed each of Appellants’ arguments for patentability, as well as the Specification data relied upon in support thereof. However, we are in complete agreement with the Examiner that the claimed subject matter would have been obvious to one of ordinary skill in the art within the meaning of § 103 in view of the applied prior art. Accordingly, we will sustain the Examiner’s rejection for essentially those reasons expressed in the Answer, and we add the following primarily for emphasis. There is no dispute that Brunelle, like Appellants, discloses a thermoplastic composition comprising a polyester-polycarbonate copolymer comprising ITR ester units and carbonate units in the claimed molar ratio, and a poly(alkylene ester) copolymer comprising ethylene terephthalate units and CHDM ester units. Appellants also do not dispute the Examiner’s factual finding that Bruenelle teaches a preference for a minimum of 38 mole percent of ITR ester units in the polyester-polycarbonate copolymer. 3 Appeal 2010-000106 Application 11/326,153 As acknowledged by the Examiner, Brunelle does not disclose the mole percent of CHDM ester units in the poly(alkylene ester) copolymer. Hence, Brunelle does not provide an explicit teaching that the sum of the mole percentage values of the ITR ester units and CHDM ester units is greater than 40, as presently claimed. However, insofar as Brunelle prefers a minimum of 38 mole percent ITR units, as well as CHDM units in the poly(alkylene ester) copolymer, we are satisfied that Brunelle fairly teaches a preferred thermoplastic composition wherein the sum of the ITR and CHDM units is greater than 40. Moreover, we fully concur with the Examiner that Robeson evidences the obviousness of including a poly(alkylene ester) copolymer comprising a mole percentage of CHDM units in the thermoplastic composition of Brunelle which results in the sum of the ITR and CHDM units being significantly greater than the claimed value of 40. Robeson expressly teaches that it has been unexpectedly found that a poly(alkylene ester) copolymer comprising CHDM units improves the processability of a polyarylate in that it increases melt flow resulting in lowering of the molding temperature (col. 1, ll. 35-40). Robeson also teaches that the minimum amount of CHDM units in the poly(alkylene ester) copolymer is seven mole percent. Hence, it can be seen that when one of ordinary skill in the art follows the teachings of Brunelle and Robeson and uses only the disclosed minimum amounts of ITR units and CHDM units, their summation equals 45, a value well within the claimed range of greater than 40. Significantly, both Brunelle and Robeson disclose transparent thermoplastic compositions. We are not persuaded by Appellants’ argument that neither Brunelle nor Robeson teaches the importance of the claimed sum of the molar value 4 Appeal 2010-000106 Application 11/326,153 of ITR and CHDM units (Br. 8, first full para.). Like Appellants, both references are directed to transparent compositions and it is not necessary for a finding of obviousness that either reference explicitly teach the claimed value of 40 since the minimum of the preferred range for the amount of ITR units disclosed by Brunelle nearly coincides with the claimed range of greater than 40. Appellants rely upon Tables 3 and 4 of the present Specification to demonstrate that they have surprisingly found that the “application of this exquisitely simple tool of adding the molar percentage values of the two polymers can function as the sole necessary criteria for selecting combinations of two different copolymers, an ITR-PC and either PETG or PCTG” (Br. 10, second para.). However, we agree with the Examiner that Appellants’ data is not probative of non-obviousness since it does not present a comparison to the closest prior art. The highest value offered for comparison for the sum of the ITR and CHDM units is 30 percent whereas the minimum amount of ITR units referred by Brunelle is 38 percent, before the addition of the CHDM units taught by Brunelle and Robeson. In addition, Appellants have not established on this record that the results reported in the Specification would have been considered truly unexpected by one of ordinary skill in the art in light of the teachings of Brunelle and Robeson with respect to formulating transparent thermoplastic compositions. Furthermore, in our judgment, to the extent the Specification results can be considered unexpected, the substantial evidence provided by the prior art for the obviousness of making a thermoplastic composition having the claimed sum of ITR and CHDM units outweighs, on balance, the evidence of non- 5 Appeal 2010-000106 Application 11/326,153 obviousness. In re May, 574 F.2d 1082, 1092 (CCPA 1978); In re Nolan, 553 F.2d 1261, 1267 (CCPA 1977). In conclusion, based on the foregoing and the reasons well stated by the Examiner, it is our judgment that the evidence of obviousness presented by the Examiner outweighs the evidence of non-obviousness proffered by Appellants. Accordingly, the Examiner’s decision rejecting the appealed claims is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a) (2008). AFFIRMED ssl CANTOR COLBURN LLP - SABIC (LEXAN/CYCOLOY) 20 CHURCH STREET 22ND FLOOR HARTFORD, CT 06103 6