Ex Parte Chau

Patent Trial and Appeal Board

Nov 30, 2017

13276953 (P.T.A.B. Nov. 30, 2017)

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.
13/276,953 10/19/2011 Chieh-Chun Chau M094-0098US 2046
119932 7590
Lee and Hayes, PLLC
601 W. Riverside Avenue
Suite 1400
Spokane, WA 99201
EXAMINER
VO, HAI
ART UNIT PAPER NUMBER
1788
NOTIFICATION DATE DELIVERY MODE
12/04/2017 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):
lhpto@leehayes.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CHIEH-CHUN CHAU
Appeal 2017-003548
Application 13/276,953
Technology Center 1700
Before MICHAEL P. COLAIANNI, GEORGE C. BEST, and
N. WHITNEY WILSON, Administrative Patent Judges.
COLAIANNI, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals the final rejections
of claims 1—7, 9, 18, and 19.2 Claims 10-17 and 20, the other claims
pending in this application, stand withdrawn from consideration by the
Examiner. We have jurisdiction over the appeal pursuant to 35 U.S.C.
§ 6(b).
We AFFIRM.
1 Appellant identifies the real party in interest as “Multisorb Technologies,
Inc.” (Br. 4).
2 We note that Appellant canceled claims 1—6, 9, and 19 subsequent to the
final rejection. (See Amendment dated April 28, 2016, entered by the
Examiner on May 13, 2016).
Appeal 2017-003548
Application 13/276,953
The ’953 Application relates to biodegradable packaging material
with oxygen absorption properties and controlled gas permeability (Spec.
Tflf9—12). According to the Specification, such material provides improved
oxygen and/or water vapor scavenging, thereby preventing degradation of
the packaged item(s) {id. at 114).
Claims 7 and 18 are illustrative (emphasis added):
7. A sheet, comprising:
at least one porous layer comprising a blend of a polyolefin
and a biodegradable resin;
at least one of an oxygen absorber and a water absorber; and
at least one substantially nonporous polyolefin resin layer,
wherein
the at least one porous layer has an oxygen
permeability between approximately 775 cc-mil/(100 in2-
day-atm) and approximately 10,000 cc-mil/(100 in2-day-
atm), and comprises between 2% and 90% pores by volume,
and
the oxygen absorber is present in the substantially
nonporous polyolefin resin layer.
18. An extruded sheet, comprising:
a first layer comprising an at least partially miscible blend of
substantially amorphous polylactic acid and a polyolefin,
wherein
the polyolefin of the first layer comprises at least one
of polypropylene and polyethylene,
the first layer comprises a single-phase layer having a
plurality of substantially uniform pores formed by the
polylactic acid, and the plurality of pores are formed by
stretching the extruded sheet, the first layer permitting
passage of gaseous oxygen and water vapor therethrough, and
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Application 13/276,953
the first layer has an oxygen permeability between
approximately 775 cc-mil/(100 in2-day-atm) and
approximately 10,000 cc-mil/(100 in2-day-atm);
a nonporous second layer comprising a polyolefin and an
oxygen absorber, wherein
the polyolefin of the second layer comprises at least
one of polypropylene and polyethylene, and
the oxygen absorber comprises particles of at least one
of silica gel, molecular sieve, activated carbon, and iron
dispersed throughout the polyolefin of the second layer, and
the oxygen absorber comprises between 10% and 50%,
by weight, of a total loading of the extruded sheet; and
a third layer substantially identical to the first layer, wherein
the first layer is disposed on a first side of the second
layer,
the third layer is disposed on a second side of the
second layer opposite the first side, and
the thickness of the stretched extruded sheet is between
25 microns and 250 microns.
Claims App. (Br. Replacement Sheet 4, 6—7 dated April 28, 2016)).
Appellant appeals the following rejection:
I. Claims 7 and 18 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Ishizaki (WO 2007/123272; Nov. 1, 2007
and the English language equivalent US 8,580,381 B2; Nov. 12,
2013) in view of Kagawa (US 5,352,108; Oct. 4, 1994), and
further in view of Sumi (US 2010/0003882 Al; Jan. 7, 2010)
(Ans. 2).3
3 The Examiner has withdrawn the rejection of claims 1, 6, 7, 9, and 19
under 35 U.S.C. § 103(a) as unpatentable over Kagawa in view of Sumi
(Ans. 8).
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Appeal 2017-003548
Application 13/276,953
FINDINGS OF FACT & ANALYSIS
The Examiner’s findings and conclusions regarding Ishizaki, Kagawa,
and Sumi, are located on pages 2—15 of the Answer.
Claim 7
Appellant argues that the Examiner’s applied prior art does not teach
or suggest the limitation “wherein the at least one porous layer has . . .
between 2% and 90% pores by volume” recited in claim 7 (see Br.
Replacement Sheet 10). In particular, Appellant asserts that the Examiner
“acknowledges that Kagawa does not teach or suggest these features” (id.).
Thus, Appellant concludes that “a prima facie case of obviousness has not
been established with respect to claim 18 because all the features of the
claim 18 have not been considered and given weight” (id. at 16).
Appellant’s assertion regarding the Examiner’s findings is incorrect.
Although the Examiner acknowledges that “Kagawa does not specifically
disclose the porous layer comprising ... a porosity of 2 to 90%,” the
Examiner found that Kagawa teaches or suggests the claimed limitation
(Final Act. 5—6; Ans. 4—5, 9). As the Examiner found,
[t]he biaxially stretched polypropylene film has an oxygen
permeability of 105 cc/m2 -24 hr. 25°C or 6452 cc-mil/100 in2-
day-atm... within the claimed range. It appears that the porosity
is dictated by the oxygen permeability; hence, it is not seen that
the porous film of Kagawa could not have the claimed porosity
as the oxygen permeability is within the claimed range.
(Ans. 9 (citing Kagawa Table 1)). Moreover, we note that the Specification
discloses that “[controlling the size and number of the pores controls
oxygen and water vapor permeability” (Spec. 124). Therefore, Appellant’s
arguments fail to identify reversible error in the Examiner’s finding that
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Application 13/276,953
Kagawa teaches or suggests the limitation requiring 2% and 90% pores by
volume in at least one porous layer.
Claim 18
L The claimed porous layers.
Appellant argues that it would not have been obvious to add
Kagawa’s two porous layers in combination with Ishizaki’s barrier layer 3
because doing so would serve no purpose and would increase the cost of
Ishizaki’s film (Br. 14). Appellant further argues that “there would be no
need for two such layers in Ishizaki since Ishizaki has a barrier layer 3” (id.).
Appellant’s arguments are not persuasive because they fail to identify
reversible error in the Examiner’s reasoned determination that one of
ordinary skill in the art would have recognized that
substitution of the porous films of Kagawa for the inner and outer
layers [of Ishizaki] would provide the packaging container
having better barrier property such that the contents of the
container can be preserved for a long period of time by
controlling the permeation amounts of oxygen gas, carbon
dioxide gas and water vapor diffusing through the porous films.
(Ans. 11; see also Kagawa Abstract). Furthermore, we note that Ishizaki
discloses that “containers using a gas-barrier resin prevent[] the permeation
of oxygen from the exterior . . .” (Ishizaki 1:29—30). In other words,
incorporation of Kagawa’s porous layers would not prevent Ishizaki’s
barrier layer 3 from functioning as intended. Therefore, we agree with the
Examiner that one of ordinary skill would have been motivated to combine
the teachings of Ishizaki and Kagawa.
Appellant argues that Kagawa does not teach or suggest the limitation
“a first layer . . . having a plurality of substantially uniform pores” recited in
claim 18 (see Br. 15). In particular, Appellant asserts that “although
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Application 13/276,953
[Kagawa’s] manufacturing apparatus . . . may form a number of recesses in a
porous film that are uniformly spaced, Kagawa provides no indication that
the pores of the porous film are ‘substantially uniform’” (id.).
Appellant’s arguments are not persuasive because “[i]t is well settled
that a prior art reference is relevant for all that it teaches to those of ordinary
skill in the art.” In reFritch, 972 F.2d 1260, 1264 (Fed. Cir. 1992). In this
instance, Kagawa expressly discloses using synthetic diamond particles,
each with a diameter of 30—35 pm, to form recesses “having an average
opening width of about 10 pm and an average depth of about 10 pm . . .
uniformly formed at a density of about 180,000/cm2” (Kagawa 31:8—11;
31:22—26). Appellant has not shown that it was unreasonable for the
Examiner to find that Kagawa’s disclosed recesses are substantially uniform
within the meaning of claim 18.
Appellant argues that Sumi does not teach or suggest that the first and
third layers are comprised of a single-phase because “Sumi expressly states
that the disclosed resin composition is made up of incompat[i]ble
components” (Br. 16).
We are not persuaded by Appellant’s arguments because they fail to
address the Examiner’s proposed modification of Kagawa’s polypropylene
resin by Sumi’s polylactic acid. As the Examiner determined,
[i]t has been known and obvious in the art that incorporation of
the PLA of Sumi in the polypropylene film of Ka[gaw]a would
induce the formation of the pores around the PLA resin particles
during biaxial stretching of the film because the PLA resin
particles are incompatible with the polypropylene resin matrix
(Ans. 5—6). We note that the known incorporation of PLA, i.e., polylactic
acid, into polypropylene resin describes single-phase layer components
recited in the instant claim. Therefore, Appellant’s arguments fail to identity
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Application 13/276,953
reversible error in the Examiner’s finding that Kagawa and Sumi teach or
suggest a “single-phase layer” as recited in claim 18.
IE The claimed oxygen absorber comprises between 10% and
50%, by weight, of a total loading of the extruded sheet.
Appellant argues that the Examiner has not established that Ishizaki
teaches or suggests the claimed loading range for the totality of the extruded
sheet {see generally Br. 16—18). Appellant acknowledges Ishizaki discloses
that oxygen-absorbing resin layer 4 includes an oxygen absorber blended
with a resin “in an amount from 1 to 100 parts by weight and, particularly, 5
to 70 parts by weight per 100 parts by weight of the resin” {id. at 17, citing
Ishizaki 6:13—15). Appellant contends, however, that Ishizaki provides no
indication of the weight of the remaining layers of the disclosed multi-layer
film.
Appellant’s arguments do not identify reversible error in the
Examiner’s finding that Ishizaki suggests, based on a disclosed thickness
ratio, that the loading of the oxygen absorber relative to total weight of the
film is in the range from 0.18% to 18% by weight, which overlaps the
claimed range {see Ans. 2—3, 6). Furthermore, Appellant does not dispute
the Examiner’s finding that the content of the oxygen absorber relative to the
total loading of the film is a result-effective variable (id. at 13—14).
Therefore, the preponderance of the evidence favors the Examiner’s
finding and conclusion that, in the absence of unexpected results, it would
have been obvious to the ordinary skilled artisan to use the film having a
content of the oxygen absorber between 10% and 50%, by weight, of a total
loading of the extruded sheet, motivated by the desire to provide the film
adequate oxygen-absorbing capability {id.; see also Ishizaki 1:65—66).
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III. The claimed thickness of the stretched extruded sheet between
25 microns and 250 microns.
Appellant argues that the Examiner has not established that Ishizaki
teaches or suggests the requisite “thickness of the stretched extruded sheet
... between 25 microns and 250 microns” recited in claim 18 (see Br. 18).
In particular, Appellant asserts that Ishizaki fails to disclose the thickness of
adhesive resin layers 2a, 2b or the gas-barrier resin layer 3 (id.). Thus,
Appellant concludes that it is impossible to know the overall thickness of the
sheet, without knowing the respective thicknesses of the remaining layers of
Ishizaki’s multilayer sheet (id.).
Appellant’s arguments are not persuasive because they fail to identify
reversible error in the Examiner findings. As the Examiner found, the
thickness ratio disclosed in Ishizaki’s Example 3 indicates that adhesive
resin layers 2a, 2b have a relatively insignificant thickness in comparison to
the thickness of the other layers (Ans. 14). Furthermore, Appellant does not
dispute that Ishizaki discloses the combined thickness of the inner and outer
layers and the oxygen absorbing layer (see Br. 18). Nor does Appellant
dispute the Examiner’s finding that Ishizaki’s Example 3 discloses “that the
thickness of the EVOH layer is half the thickness of the oxygen absorbing
layer, i.e., from 5 to 50 microns” (Ans. 14; see Br. 18; see also Ishizaki 7:2—
3 (“a gas-barrier resin as ethylene/vinyl alcohol [i.e., EVOH] copolymer”)).
We thus discern no reversible error in the Examiner’s finding that the total
thickness of Ishizaki’s film, including adhesive resin layers 2a, 2b and gas-
barrier resin layer 3, ranges from 25 to 650 microns, which overlaps the
claimed range (Ans. 3, 6—7).
Therefore, based on this record, we sustain this rejection.
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CONCLUSION
Accordingly, on this record and for the above reasons, we sustain the
35 U.S.C. § 103(a) rejection of claims 7 and 18 over Ishizaki in view of
Kagawa and further in view of Sumi.
DECISION
The Examiner’s § 103(a) rejection 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)(l)(iv).
AFFIRMED
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