Ex Parte De Munck et al

Board of Patent Appeals and Interferences

Aug 21, 2012

10568699 (B.P.A.I. Aug. 21, 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.
10/568,699 09/29/2006 Nicolaas A. De Munck 2003M091 7132
23455 7590 08/22/2012
EXXONMOBIL CHEMICAL COMPANY
5200 BAYWAY DRIVE
P.O. BOX 2149
BAYTOWN, TX 77522-2149
EXAMINER
HEINCER, LIAM J
ART UNIT PAPER NUMBER
1767
MAIL DATE DELIVERY MODE
08/22/2012 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 NICOLAAS A. DE MUNCK, CLAUDIUS GOSSE,
and RAPHAEL FRANS CAERS
________________

Appeal 2011-002019
Application 10/568,699
Technology Center 1700
________________

Before EDWARD C. KIMLIN, CATHERINE Q. TIMM, and
MICHAEL P. COLAIANNI, Administrative Patent Judges.

KIMLIN, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal from the final rejection of claims 10-12, 19, 23 and
26-28. We have jurisdiction under 35 U.S.C. § 6(b).
Claim 10 is illustrative:
10. A process for the production of a plasticiser ester comprising:

(i) esterifying an acid or an anhydride with an alcohol containing
from 6 to 13 carbon atoms to form a crude ester; then
Appeal 2011-002019
Application 10/568,699

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(ii) treating the crude ester with a base to form a treated ester; then
without a stripping step to remove excess alcohol prior to step
(iii),

(iii) filtering the treated ester to separate a liquid product; then

(iv) stripping the liquid product to form a stripped material; then

(v) treating the stripped material with activated carbon; and then

(vi) filtering the product of step (v), in the presence of a filter aid, to
remove the adsorbent from the plasticiser ester;

wherein the plasticizer ester comprises a di-alkyl phthalate selected
from at least one of the group consisting of di-2-ethyl hexyl phthalate, di-
isononyl phthalate, and di-isodecyl phthalate, characterised by a carbonyl
number below 0.2 mg KOH/g, a light ends content of less than 1000 ppm wt,
and a liquid volume resistivity (LVR) (in units of 1012 ohm.cm) that is:

i) greater than about 0.3 in the case where di-alkyl is di-2-ethyl hexyl;

ii) greater than about 0.6 in the case where di-alkyl is di-isononyl; and

iii) greater than about 1.35 in the case where di-alkyl is di-isodecyl.

The Examiner relies upon the following references as evidence of
obviousness (Ans. 3):
Godwin 4,543,420 Sep. 24, 1985
Schlosberg 5,798,319 Aug. 25, 1998
Ageishi 5,880,310 Mar. 09, 1999

Appellants’ claimed invention is directed to a process for producing
di-alkyl phthalate plasticizer esters. The process entails, inter alia, forming a
crude ester and filtering the ester to separate a liquid product without
stripping excess alcohol prior to the filtering step.
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Appealed claims 10-12, 19, 23, and 26-28 stand rejected under 35
U.S.C. § 103(a) as being unpatentable over either Godwin or Ageishi in
view of Schlosberg.
Appellants do not present separate arguments for any particular claim
on appeal. Accordingly, all the appealed claims stand or fall together with
claim 10.
We have thoroughly reviewed each of Appellants’ arguments for
patentability. 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 rejections for the reasons set
forth in the Answer, which we incorporate herein, and we add the following
for emphasis only.
The principal argument advanced by Appellants is that, contrary to the
claimed process, Schlosberg performs a stripping step prior to the filtration
step. Appellants, in their Reply Brief, cite Schlosberg’s disclosure in
column 5, line 40 through column 6, line 9 which teaches removal of water
in a vacuum flash step which, according to Appellants, is a stripping step.
However, Appellants’ argument is not germane to the claimed subject matter
which does not preclude removing water before filtering. Appellants’
claimed process recites filtering the treated ester without removing alcohol
before the filtration step. As acknowledged by Appellants, Schlosberg
discloses removing excess alcohol by stripping after the filtration step, as
presently claimed.
Furthermore, we agree with the Examiner that both Schlosberg and
Appellants’ Specification make a distinction between the flashing and
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Application 10/568,699

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stripping steps. Schlosberg describes the removal of water as a flash step
and the removal of alcohol as a stripping step. Also, Appellants’
Specification teaches that a flash step is preferred and would not negatively
impact the process of making the plasticizers.
Appellants also maintain that assuming, arguendo, that the Examiner
has established a prima facie case of obviousness, the combination and
sequence of the claimed steps achieve “the unexpected results demonstrated
in the examples in Specification” (App. Br. 11, second para.). However, as
noted by the Examiner, Appellants’ argument is unavailing since they have
“not explained how the data establishes unexpected results” (Ans. 8, first
para.). Manifestly, it is not within the province of this Board to
independently review Appellants’ Specification and interpret data in a light
most favorable to Appellants’ position. Hence, in the absence of any
explanation provided by Appellants regarding the Specification data, the
Examiner’s prima facie case of obviousness stands unrebutted.
In conclusion, based on the foregoing and the reasons well stated by
the Examiner, 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)(1)(iv).
AFFIRMED

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