Ex Parte Cho et al

Patent Trial and Appeal Board

Nov 27, 2017

13681012 (P.T.A.B. Nov. 27, 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.
13/681,012 11/19/2012 Sangho Cho 74073-US-NP
(DOW0003US)
2479
14268 7590 11/29/2017
The Dow Chemical Company/Cantor Colburn LLP
20 Church Street
22nd Floor
Hartford, CT 06103-3207
EXAMINER
BOYLE, ROBERT C
ART UNIT PAPER NUMBER
1764
NOTIFICATION DATE DELIVERY MODE
11/29/2017 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):
ffuimpc@dow.com
u sptopatentmail @ C antorColburn .com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SANGHO CHO, GUORONG SUN, KAREN L. WOOLEY,
JAMES W. THACKERAY, and PETER TREFONAS III
Appeal 2016-008234
Application 13/681,012
Technology Center 1700
Before TERRY J. OWENS, JAMES C. HOUSEL, and
JEFFREY R. SNAY, Administrative Patent Judges.
HOUSEL, Administrative Patent Judge.
DECISION ON APPEAL1
Pursuant to 35 U.S.C. § 134(a), Appellants2 appeal from the
Examiner’s decision rejecting claims 1, 5—7, and 10-12. We have
jurisdiction over the appeal under 35 U.S.C. § 6(b).
We AFFIRM.
1 Our Decision refers to the Specification (“Spec.”) filed April 2, 2015,
Appellants’ Appeal Brief (“Appeal Br.”) filed February 16, 2016, the
Examiner’s Answer (“Ans.”) dated July 1, 2016, and Appellants’ Reply
Brief (“Reply Br.”) filed September 1, 2016.
2 The Appeal Brief identifies Applicants, ROHM AND HAAS
ELECTRONICS LLC and THE TEXAS A&M UNIVERSITY SYSTEM
(“Appellants”), as the real parties in interest. Appeal Br. 2.
Appeal 2016-008234
Application 13/681,012
STATEMENT OF THE CASE
The invention relates to a graft block copolymer and a method of
manufacturing the copolymer. Spec, 5—6. The copolymer comprises a
backbone polymer and a first graft polymer grafted onto the backbone
polymer, wherein the first graft polymer includes a surface energy reducing
moiety selected from a fluorine atom, a silicon atom, or a combination
thereof. Id. 1 5.
Claim 1, reproduced below from the Claims Appendix to the Appeal
Brief, is illustrative of the subject matter on appeal.
1. A graft block copolymer comprising:
a backbone polymer, where the backbone polymer is a
polynorbomene; and
a first graft polymer that comprises a surface energy
reducing moiety; the first graft polymer being grafted onto the
backbone polymer; where the surface energy reducing moiety
comprises a fluorine atom, a silicon atom, or a combination of a
fluorine atom and a silicon atom, where the first graft polymer is
a poly(fluorostyrene), a poly(tetrafluoro-hydroxy styrene), or a
combination thereof.
Independent claim 7 recites a method of manufacturing a graft block
copolymer comprising fluorostyrene and/or tetrafluoro-hydroxy styrene
polymer grafted to polynorbomene backbone. Independent claim 12 recites
an article comprising a cross-linked bottle-bmsh graft block copolymer
comprising fluorostyrene and/or tetrafluoro-hydroxy styrene polymer grafted
to polynorbomene backbone.
REJECTIONS
The Examiner maintains, and Appellants request our review of, the
following grounds of rejection:
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1. Claims 1, 5—7, and 10-12 on the ground of nonstatutory double
patenting as unpatentable over claims 1—10 of copending U.S. Patent
No. 9,447,220;3
2. Claims 1,5, and 6 on the ground of nonstatutory double
patenting as unpatentable over claims 1—8 of copending U.S. Patent
No. 8,822,130;
3. Claims 1,5, and 6 on the ground of nonstatutory double
patenting as unpatentable over claims 1—11 of copending U.S. Patent
No. 9,223,214;4
4. Claims 1, 5—7, and 10-12 under 35 U.S.C. § 103(a) as
unpatentable over Li5 in view of Cho;6
3 The Examiner’s Answer presents this rejection as provisional based on
claims 1—14 of copending U.S. Patent Application No. 13/681,002. Ans. 2.
Subsequent to the Answer, this copending application matured into the
above-cited U.S. patent with only claims 1—10. Therefore, we have
corrected this rejection to reflect that it is no longer provisional and is based
on the claims of the issued patent.
4 The Examiner’s Answer presents this rejection as provisional based on
claims 1—14 of copending U.S. Patent Application No. 13/681,026. Ans. 2.
Subsequent to the Answer, this copending application matured into the
above-cited U.S. patent with only claims 1—11. Therefore, we have
corrected this rejection to reflect that it is no longer provisional and is based
on the claims of the issued patent.
5 Zhou Li et al., Dynamic Cylindrical Assembly of Triblock Copolymers by a
Hierarchical Process of Covalent and Supramolecular Interactions, J. Am.
Chem. Soc. 133, 1228-1231 (2011) (“Li”).
6 Sungseo Cho et al., Investigation of a Fluorinated ESCAP based Resist for
157 nm Lithography, Adv. Resist Tech, and Processing XIX, Proc. SPIE
4690, 522-532 (2002) (“Cho”).
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5. Claims 1, 5—7, and 10—12 under 35 U.S.C. § 103(a) as
unpatentable over Liaw7 in view of Klauck-Jacobs8 and Sounik;9 and
6. Claims 1, 5—7, and 10-12 under 35 U.S.C. § 103(a) as
unpatentable over Liaw in view of Klauck-Jacobs and Cheng.10
ANALYSIS
Rejections 1—3: Obviousness-type Double Patenting
Appellants fail to respond to or otherwise contest these nonstatutory
double patenting rejections. See generally Appeal Br. and Reply Br.
Accordingly, we summarily affirm the Examiner’s nonstatutory double
patenting rejections. Ans. 2—3.
Rejection 4: Obviousness over Li in view of Cho
Appellants do not argue the claims separately, instead focusing on the
limitations of claim 1 only. In accordance with 37 C.F.R. § 41.37(c)(l)(iv),
claims 5—7 and 10—12 stand or fall with claim 1.
After review of the opposing positions articulated by Appellants and
the Examiner, the applied prior art, and Appellants’ claims, declaration
evidence, and Specification disclosures, we determine that Appellants’
arguments are insufficient to identify reversible error in the Examiner’s
7 Liaw et al., US 2005/0182220 Al, published August 18, 2005 (“Liaw”).
8 Klauck-Jacobs et al., US 2002/0058198 Al, published May 16, 2002
(“Klauck-Jacobs”).
9 Sounik et al., US 2004/0248039 Al, published December 9, 2004
(“Sounik”).
10 Cheng et al., US 2010/0022741 Al, published January 28, 2010
(“Cheng”).
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Application 13/681,012
obviousness rejection. In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011).
Accordingly, we affirm the stated obviousness rejections for substantially
the fact findings and the reasons set forth by the Examiner in the Examiner’s
Answer, which we adopt as our own. We offer the following for emphasis
only.
The Examiner finds Li teaches the copolymer of claim 1 including a
first graft polymer except for the provision of a surface energy reducing
moiety, such as fluorine, on the graft polymer. Ans. 3. However, the
Examiner finds Cho teaches fluorinated polymers derived from
fluorostyrene and 4-hydroxytetrafluorostyrene which fall within the scope of
claim 1 and provide resist materials that have reduced absorbance, form
good films, have acceptable thermal stability, and show good dry etch
resistance. Id. at 4. In addition, the Examiner finds Cho teaches the
fluorinated polymers have increased phenolic group acidity resulting in an
increased dissolution rate. Therefore, the Examiner concludes it would have
been obvious to use fluorinated styrene monomers, including
hydroxytetrafluorostyrene, in the graft polymers of Li because they provide
resist materials having improved properties. Id.
Appellants argue that neither Li nor Cho reasonably motivate the
specific selection of a grafted polymer having a surface energy reducing
moiety comprising fluorine or silicon in combination with the other
constituents of claim 1. Appeal Br. 6. According to Appellants, Cho
teaches fluorinated materials having lower absorbances than
poly(hydroxytetrafluorostyrene) and would be more suitable for combination
with Li. Id. Appellants also contend that because Cho teaches
poly(hydroxytetrafhiorostyrene) decomposes at 125°C, the ordinary artisan
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would not be motivated to select this polymer because it was well-known in
the preparation of photoresists to perform a conventional baking step at
temperatures of 150—350°C. Id. at 6—7.
For the reasons given by the Examiner (Ans. 9—11), which we adopt
as our own, Appellants’ arguments are not persuasive. In particular, we note
Appellants admit that the ordinary artisan “desirous or using a
material having the best absorption characteristics . . . would have . . .
selected a fully fluorinated styrene that does not contain hydroxyl groups as
can be seen in the Tables 1 and 2 of Cho.” Appeal Br. 6. As the Examiner
notes (Ans. 9), Appellants’ claim 1 is directed not only to the use of
poly(tetrafluoro-hydroxy styrene) as the first graft polymer, but alternatively
to the use of poly(fluorostyrene) as this first graft polymer. See claim 1.
Appellants disclose that the first graft polymer may be “a
poly(fluorostyrene) having 1 to 5 fluorine substituents on the styrenic
moiety.” Spec. 129. Accordingly, the scope of claim 1 includes each of the
fluorinated styrene monomers of Cho’s Table 1, including the fully
fluorinated styrene which Appellants admit would have been obvious to one
of ordinary skill in the art for use in Li.
Notwithstanding Appellants’ admission, we agree with the Examiner
the fact that other fluorinated styrene monomers have better absorbances
than hydroxytetrafluorostyrene, polymer J in Cho, does not teach away from
or otherwise render hydroxytetrafluorostyrene unobvious. See Ans. 9-10,
citing In re Lamberti, 545 F.2d 747 (CCPA 1976) and In re Mills, 470 F.2d
649 (CCPA 1972). “A reference does not teach away, however, if it merely
expresses a general preference for an alternative invention but does not
‘criticize, discredit, or otherwise discourage’ investigation into the invention
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claimed.” DePuy Spine, Inc. v. Medtronic Sofamor Danek, Inc., 567 F.3d
1314, 1327 (Fed. Cir. 2009) (citing In re Fulton, 391 F.3d 1195, 1201 (Fed.
Cir. 2004)). Moreover, “in a section 103 inquiry, ‘the fact that a specific
[embodiment] is taught to be preferred is not controlling, since all
disclosures of the prior art, including unpreferred embodiments, must be
considered.’” Merck & Co. v. Biocraft Laboratories Inc., 874 F.2d 804, 807
(Fed. Cir. 1989) (quoting In re Lamberti, 545 F.2d at 750.); cf In re Burckel,
592 F.2d 1175, 1179 (CCPA 1979). Indeed, each of the fluorinated
monomer alternatives set forth in Cho’s Tables 1 and 2 provide a reduced
absorbance over the non-fluorinated monomer and, therefore, the ordinary
artisan would have had a reasonable expectation of improved results with
each of the fluorinated monomer alternatives of Cho, not just with the fully
fluorinated, non-hydroxyl group containing monomer. Furthermore, as the
Examiner finds (Ans. 10), Cho teaches the acidic fluorinated phenol
monomer contributes to a high dissolution rate which would have motivated
the ordinary artisan to select fluorinated styrene monomers having a
hydroxyl moiety, including hydroxytetrafluorostyrene, for their improved
dissolution rate as well as their reduced absorbance.
We are likewise not persuaded by Appellants’ argument that one of
ordinary skill in the art would not select a polymer such as poly(tetrafluoro-
hydroxy styrene) as the first graft polymer in Li because Cho teaches this
polymer decomposes at 125°C, well below the conventional baking
temperatures of 150—350°C employed in the preparation of photoresists. As
the Examiner finds (Ans. 10), Appellants’ claims do not recite a baking step
or baking temperatures. In addition, the Examiner finds Li uses
temperatures well below this range. Id. Cho also uses temperatures well
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below this range. Cho 523 (“Polymers were coated on a bare silicon
substrate followed by a 110 °C bake for 60 seconds.”) As such, Appellants
have not persuasively shown that Cho’s fluorinated polymers, including
polyhydroxytetrafluorostyrene, would not have been used in Li because of a
mismatch between decomposition temperatures and the baking temperature.
Appellants argue that the Declaration under 37 C.F.R. 1.132 of
Guorong Sun (“Declaration”) evaluates the results of certain properties when
the claimed graft block copolymer is baked at different temperatures.
Appeal Br. 9. In particular, the Declaration presents data on film thickness
upon annealing of the copolymer at temperatures over 140°C for one hour.
Id.', Declaration | 5. Appellants indicate that the Declaration shows film
thickness after annealing increases significantly compared to no annealing
and that upon annealing under such conditions, only a low extent of
crosslinking is induced. Appeal Br. 9; see also Declaration | 6. The
Declaration further presents data from annealing the claimed graft block
copolymer at 90°C and 120°C. Appeal Br. 10; Declaration || 7—8.
According to Appellants, annealing at the higher temperature results in
significantly more crosslinking and a significant decrease in patterned line
height. Appeal Br. 11; Declaration 19. Finally, the Declaration presents
data on the claimed graft block copolymer annealed at 90°C and evaluated at
different, decreasing e-beam lithography (EBL) exposure dosages. Appeal
Br. 11—12; Declaration 19. Appellants assert that this data shows a
significant improvement in the three-dimensional features of patterned areas
when exposed to comparatively lower exposure dosage due to a decrease of
crosslinking in the space areas. Appeal Br. 12; Declaration 19.
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Application 13/681,012
As the Examiner notes (Ans. 12), Appellants fail to explain the
relevance of the Declaration data to the obviousness of claim 1 over Li in
view of Cho. Appellants’ claims do not recite any annealing step or
temperature, nor any property that is allegedly improved as a result of such
annealing. Appellants’ claims also do not recite any lithography step,
exposure dosage, nor any property that is allegedly improved as a result of
an exposure dosage. In re Klosak, 455 F.2d 1077, 1080 (CCPA 1972)
(noting that the burden of analyzing and explaining data to support
nonobviousness rests with Appellants); see also, In re Borkowski, 505 F.2d
713, 718 (CCPA 1974) (it is the Appellants’ burden to decipher declaration
evidence and explain its content).
In addition, the Examiner determines the Declaration is neither
commensurate in scope with the claims11 nor a comparison to the closest
prior art.12 Ans. 11—12. For example, the Declaration only tested
poly(tetrafluoro-hydroxy styrene) as the first graft polymer, whereas claim 1
recites poly(fluorostyrene) as an alternative first graft polymer. Declaration
3, 7, and 8. In addition, the tested graft block copolymer includes a
second graft polymer, poly(para-hydroxy styrene-co-N-phenyl maleimide),
whereas the claims do not recite a second graft polymer. The Declaration
fails to test, for comparison, any other first graft polymers, including the
non-fluorinated polymers of Li or the remaining fluorinated polymers of
Cho.
11 See In re Grasselli, 713 F.2d 731, 743 (Fed. Cir. 1983); In re Clemens,
622 F.2d 1029, 1035 (CCPA 1980); In re Hyson, 453 F.2d 764, 786 (CCPA
1972).
12 See In re Baxter Travenol Labs., 952 F.2d 388, 392 (Fed. Cir. 1991).
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For these reasons, the Declaration is of little probative value in
weighing the evidence relative to the Examiner’s prima facie case of
obviousness over the combination of Li and Cho.
Appellants next argue that the Specification provides evidence of
unexpected results. Appeal Br. 13. Appellants specifically direct our
attention to Examples 5—10 in support of unexpected results. Appellants
assert that when a polyhydroxystyrene is grafted onto a polynorbomene
backbone, as shown in Examples 7 and 8, there is a low degree of order as
compared to films from poly(tetrafluoro-para-hydroxy styrene) grafted onto
a polynorbomene backbone, as shown in Examples 5 and 6. Id. at 14.
Appellants further assert that thin films formed from the copolymers of
Examples 5, 6, and 7 are exposed to radiation and annealed, as described in
Example 10, the films from the polymers of Examples 5 and 6 “could create
patterns with full line integrities at each exposure dosage.” Id. Appellants
urge that the film formed from the polymer of Example 7 “only had rational
features for the 50 to 100 nm designed lines (Figure 4F), even at the
relatively higher dosage (400 pC/cm2).” Id. Appellants also urge that
Figure 4F for the Example 7 polymer shows “significantly greater line edge
roughening when compared with Figures 4A — 4D” for the Examples 5 and 6
polymers. Id.
Appellants’ arguments and Specification evidence are insufficient to
demonstrate unexpected results for the claimed invention. Initially, we note
that nowhere in the record, including the Declaration and the Specification,
do Appellants establish that the results shown in Declaration and the
Specification would have been unexpected to one of ordinary skill in the art.
Appellants’ attorney argument is insufficient alone to establish that the
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evidence presented in either the Declaration or the Specification was
unexpected. In re Geisler, 116 F.3d 1465, 1471 (Fed. Cir. 1997)
(Geisler made no such assertion [that results were unexpected]
in his application. Nor did Geisler submit any such statement
through other evidentiary submissions, such as an affidavit or
declaration under Rule 132 ... . Instead, the only reference to
unexpected results was a statement by Geisler’s counsel. . . that
Geisler’s results were ‘surprising.’).
Appellants’ attorney arguments to that effect cannot take the place of
evidence. In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984); In re
Greenfield, 571 F.2d 1185, 1189 (CCPA 1978); In re Pearson, 494
F.2d 1399, 1405 (CCPA 1974).
Moreover, a party asserting unexpected results as evidence of
nonobviousness has the burden of proving that the results are unexpected. In
re Geisler, 116 F.3d at 1469-70. Such burden requires Appellants to proffer
factual evidence that actually shows unexpected results relative to the closest
prior art, In re Baxter Travenol Labs, supra, and that is reasonably
commensurate in scope with the protection sought by claim 1 on appeal, In
re Grasselli supra', In re Clemens supra', In re Hyson supra. “[I]t is not
enough to show that results are obtained which differ from those obtained in
the prior art: that difference must be shown to be an unexpected difference.”
In re Klosak, 455 F.2d 1077 at 1080. The extent of the showing relied upon
by Appellants also must reasonably support the entire scope of the claims at
issue. See In re Harris, 409 F.3d 1339, 1344 (Fed. Cir. 2005).
Here, the Examiner has established that one of ordinary skill in the art
reasonably would have expected the use of fluorinated polymers of
polystyrene and polyhydroxystyrene in Li would have provided improved
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results due to their reduced absorbance. Ans. 9. Appellants fail to show
poly(fluorostyrene) and poly(tetrafluoro hydroxy styrene) yield results that
would have been unexpected by one of ordinary skill in the art even in light
of the expected improved results due to their known reduced absorbance. In
addition, we note that Figures 3 A—3C depict photomicrograph atomic force
images and Figures 4A-4H depict tapping mode AFM images of patterns,
but none of these images provides data for quantitative comparison, much
less image quality sufficient for qualitative comparison. Appellants also fail
to direct our attention to data in the Specification for quantitative
comparison, nor do we find any. The only qualitative comparison possibly
described in the Specification is the description of Figure 3 A showing the
polymer of Example 7 suggesting the formation of cylindrical assemblies of
low degrees of order and “noticeable phase separation,” whereas Figures 3B
and 3C showing the polymers of Examples 5 and 6 “exhibit[] sufficiently
homogenous surface topology.” Spec. Tflf 104 and 105; Appeal Br. 13.
However, Appellants do not discuss this qualitative comparison or otherwise
explain how it is sufficient to establish unexpected results.
The Specification data is also neither commensurate in scope with the
claims nor a comparison to the closest prior art for substantially the same
reasons as given above for the Declaration. The Specification Examples
cover only poly(tetrafluoro hydroxy styrene), and do not test any
poly(fluorostyrene) within the scope of claim 1. Moreover, the graft block
copolymers tested include a second graft polymer, poly(para-hydroxy
styrene-co-N-phenyl maleimide), whereas the claims do not recite a second
graft polymer. Finally, the Specification tests for comparison only a single
non-fluorinated graft polymer, polyhydroxystyrene, and not any other first
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graft polymers, including the polystyrene of Li or the remaining fluorinated
polymers of Cho.
For these reasons and those given by the Examiner (Ans. 13—16), we
are not persuaded that Appellants have carried their burden of establishing
unexpected results.
In their Reply Brief, Appellants argue for the first time: 1) that
“[substituting the hydrophobic polystyrene of Li with a hydrophilic poly
(hydroxyl tetrafluorostyrene) would place a hydrophilic moiety near the
polynorbomene;” 2) that Li teaches the participation of norbomenyl in
multiple radical polymerization steps, if not conducted correctly, may
destroy the later conversion to the molecular brush topology; and 3) the
increased solubility taught by Cho may hinder participation of the
polynorbomene in the multiple polymerization reactions. Reply Br. 2—3.
However, Appellants have not shown any good cause explaining why these
arguments were not raised in the Appeal Brief. Therefore, these arguments
have been waived and will not be considered. See 37 C.F.R. § 41.41(b)(2);
In re Hyatt, 211 F.3d 1367, 1373 (Fed. Cir. 2000) (noting that an argument
not first raised in the brief to the Board is waived on appeal); Ex parte
Nakashima, 93 USPQ2d 1834 (BPAI 2010) (informative) (explaining that
arguments and evidence not timely presented in the principal Brief will not
be considered when filed in a Reply Brief, absent a showing of good cause
explaining why the argument could not have been presented in the Principal
Brief); Ex parte Borden, 93 USPQ2d 1473, 1477 (BPAI 2010) (informative)
(“Properly interpreted, the Rules do not require the Board to take up a
belated argument that has not been addressed by the Examiner, absent a
showing of good cause.”).
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Rejections 5 and 6: Obviousness over Liaw in view of Klauck-Jacobs and
either Sounik or Cheng
Appellants do not argue the claims separately, instead focusing on the
limitations of claim 1 only. In accordance with 37 C.F.R. § 41.37(c)(l)(iv),
claims 5—7 and 10—12 stand or fall with claim 1.
After review of the opposing positions articulated by Appellants and
the Examiner, the applied prior art, Appellants’ claims, declaration evidence,
and Specification disclosures, we determine that Appellants’ arguments are
insufficient to identity reversible error in the Examiner’s obviousness
rejection. In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011). Accordingly,
we affirm the stated obviousness rejections for substantially the fact findings
and the reasons set forth by the Examiner in the Examiner’s Answer, which
we adopt as our own. We offer the following for emphasis only.
The Examiner finds Liaw teaches the copolymer of claim 1 including
a first graft polymer except for the provision of a surface energy reducing
moiety, such as fluorine, on the graft polymer. Ans. 5—6 and 7. However,
the Examiner finds Klauck-Jacobs teaches fluorinated polymers derived
from fluorostyrene and hydroxytetrafluorostyrene which fall within the
scope of claim 1 and that provide good transparency at extremely short
wavelengths for highly resolved relief images. Id. at 6 and 7. Therefore, the
Examiner concludes it would have been obvious to use fluorinated styrene
monomers in the graft polymers of Liaw because they provide good
transparency as desired by Liaw for producing highly resolved relief images.
Id.
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In addition, the Examiner finds Sounik teaches preparation of
photoresist compositions using RAFT polymerization and chain transfer
agents including dithioesters for enhanced purity and low polydispersity. Id.
Alternatively, the Examiner finds Cheng teaches preparation of crosslinked
brush copolymers using ROMP and RAFT polymerization and dithioester
with a higher degree of control over the entire macromolecular architecture
which avoids complicated and time consuming procedures, where the
product is a polynorbomene backbone and polystyrene side chains. Id. at 8.
Appellants argue only the combination of Liaw and Klauck-Jacobs,
and do not challenge the application of Sounik or Cheng. Appeal Br. 18.
Accordingly, we restrict our review to the combination of Liaw and Klauck-
Jacobs only.
Appellants argue that Klauck-Jacobs suffers from the same drawbacks
as Cho “because poly(4-hydroxyfluorostyrene) degrades at low temperatures
as disclosed by Cho (and where Klauck[-Jacobs] is also a contributor.)” Id.
at 18—19. However, as set forth above, we did not find any deficiency in
Cho nor were we persuaded that the initial decomposition temperature of
poly(4-hydroxyfluorostyrene) negated its use in the formation of a graft
brush copolymer with a polynorbomene backbone because the prior art
teaches use of annealing temperatures well below this decomposition
temperature. Ans. 17; Klauck-Jacobs 179.
Appellants further argue that the ordinary artisan would not substitute
poly(4-hydroxyfluorostyrene) for Liaw’s polystyrene because Liaw’s
Example 7 prepares the copolymer at a temperature of 130°C, which is
above the decomposition temperature of poly(4-hydroxyfluorostyrene).
Appeal Br. 19. We are not persuaded by this argument because Liaw
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teaches preparation of the grafted polynorbomene copolymer at
temperatures ranging from 50—150°C. Liaw ]Hf 29, 40, 48, etc., for example.
Thus, the ordinary artisan would have selected a temperature within this
range appropriate for the materials used. KSR Int’l Co. v. Teleflex Inc., 550
U.S. 398, 421 (2007) (A person of ordinary skill in the art is also a person of
ordinary creativity, not an automaton.)
Appellants also argue that they have shown that the claimed invention
demonstrates unexpected results. Appeal Br. 19. However, for the reasons
given above with regard to Rejection 5, we disagree. As such, we are not
persuaded that the claimed invention demonstrates unexpected results, much
less unexpected results sufficient to overcome the Examiner’s prima facie
case of obviousness over Liaw in view of Klauck-Jacobs.
In their Reply Brief, Appellants argue for the first time that the
ordinary artisan would not replace the polystyrene of Liaw with the
poly(hydroxytetrafluorostyrene) of Klauck-Jacobs “because its inclusion
would possible perturb the reaction of the polynorbomene with the
poly(hydroxyl tetrafluorostyrene) such that it would not be possible to form
the desired bmsh copolymers.” Reply Br. 3^4. However, Appellants have
not shown any good cause explaining why this argument was not raised in
the Appeal Brief. Therefore, this argument has been waived and will not be
considered. See 37 C.L.R. § 41.41(b)(2).
DECISION
Upon consideration of the record, and for the reasons given above and
in the Examiner’s Answer, the decision of the Examiner rejecting claims 1,
5—7, and 10-12 under 35 U.S.C. § 103(a) as unpatentable over Li in view of
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Cho, and Liaw in view of Klauck-Jacobs and either Sounik or Cheng, is
affirmed.
In addition, the decision of the Examiner rejecting on the ground of
nonstatutory double patenting claims 1, 5—7, and 10-12 as unpatentable
over claims 1—10 of copending U.S. Patent No. 9,447,220; claims 1, 5, and 6
as unpatentable over claims 1—8 of copending U.S. Patent No. 8,822,130;
and claims 1, 5, and 6 as unpatentable over claims 1—11 of copending U.S.
Patent No. 9,223,214, 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)(1).
AFFIRMED
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