Ex Parte Chevillard et al

Board of Patent Appeals and Interferences

Jan 31, 2012

11267984 (B.P.A.I. Jan. 31, 2012)

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.
11/267,984 11/07/2005 Cyril Chevillard COS-1016 CIP 4978
25264 7590 01/31/2012
FINA TECHNOLOGY INC
PO BOX 674412
HOUSTON, TX 77267-4412
EXAMINER
HUSON, MONICA ANNE
ART UNIT PAPER NUMBER
1742
MAIL DATE DELIVERY MODE
01/31/2012 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte CYRIL CHEVILLARD,
SON NGUYEN, GERHARD GUENTHER,
and VINCENT HENRI BARRE
____________

Appeal 2010-009901
Application 11/267,984
Technology Center 1700
____________

Before BRADLEY R. GARRIS, CHUNG K. PAK, and
CATHERINE Q. TIMM, Administrative Patent Judges.

GARRIS, Administrative Patent Judge.

DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134 from the Examiner's
rejection under 35 U.S.C. § 102(b) of claims 1-11, 14-16, 18, and 34-39
as anticipated by Mack et al. (US 5,962,598, patented Oct. 5, 1999). We
have jurisdiction under 35 U.S.C. § 6.
We AFFIRM.
Appellants claim a method for optimizing a first property of
polyethylene (independent claims 1, 34, and 38).
Appeal 2010-009901
Application 11/267,984

2
Representative claim 34 reads as follows:
34. A method for optimizing a first property of polyethylene
comprising: selecting a catalyst; polymerizing ethylene monomer in the
presence of the catalyst and individually a first free radical initiator to give a
first polyethylene resin, and polymerizing ethylene monomer in the presence
of the catalyst and individually at least a second radical initiator to give at
least a second polyethylene resin; forming polyethylene films from the
resins; measuring a first property and a second property of the polyethylene
films; optimizing a property tradeoff of the resin by examining the ratio of:

% variation in the first property
% variation in the second property

of the polyethylene film from each resin and selecting the free radical
initiator giving the highest ratio; and forming subsequent polyethylene film
from the resin made with the catalyst and the selected free radical initiator.

Appellants request review of the § 102 rejection of claims 1-5 and
34-39 only (Br. 9). Because no request (or argument) has been presented for
the § 102 rejection of claims 6-11, 14-16, and 18, we summarily sustain the
rejection as to these claims.
Regarding claims 1-5 and 34-39, Appellants initially present the
following argument in favor of novelty:
Independent Claims 1, 34 and 38 are limited to
“comparing a first polyethylene resin having a first free radical
initiator with at least a second polyethylene resin having at least
a second free radical initiator; measuring a first property and a
second property of each resin; examining a ratio of percent
variation of the first property divided by the percent variation of
the second property; and selecting the free radical initiator giving
the highest ratio.” This claimed limitation is distinguishable
from the disclosure of Mack.

(Br., para. bridging 11-12).
Appeal 2010-009901
Application 11/267,984

3

This argument is unpersuasive because none of independent claims 1,
34, and 38 contain the above quoted recitation.
Appellants also argue that "Mack discloses comparing a resin
containing an amount of free radical initiator with a resin containing no free
radical initiator, whereas the present invention is limited to comparing a
resin containing a first free radical initiator with a resin containing a second
free radical initiator" (Br. 12).
The Examiner is unpersuaded by this argument "because Mack does
compare a first resin containing a first free radical initiator to a second resin
containing a second free radical initiator (Column 7, lines 54-67; Column 8,
lines 1-17)" (Ans. 4). The Examiner explains that "the first free radical
initiator [of Mack] comprises oxygen at 2 volume percent, and the second
free radical initiator comprises oxygen at 5 volume percent, or 10 volume
percent" (id.).
Significantly, Appellants do not contest the Examiner's above finding
(i.e., no Reply Brief has been filed). As a consequence, Appellants have
failed to show error in the Examiner's finding that Mack discloses the sole
distinction argued by Appellants.
We also sustain, therefore, the § 102 rejection as to claims 1-5 and
34-39.
The decision of the Examiner 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).
AFFIRMED
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