Ex Parte De Vos et al

Patent Trial and Appeal Board

Apr 18, 2017

13513252 (P.T.A.B. Apr. 18, 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.
13/513,252 06/01/2012 Roelof Franciscus Gerardus Maria De Vos 30135-US-PCT 3685
102091 7590 04/20/2017
Cantor Colburn LLP - SABIC Americas
20 Church Street
Hartford, CT 06103
EXAMINER
FINK, BRIEANN R
ART UNIT PAPER NUMBER
1768
NOTIFICATION DATE DELIVERY MODE
04/20/2017 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):
usptopatentmail@cantorcolbum.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ROELOF FRANCISCUS GERARDUS MARIA DE
VOS and DIMPHNA JOHANNA MARIA VAN BEEK
Appeal 2016-001164
Application 13/513,252
Technology Center 1700
Before TERRY J. OWENS, CATHERINE Q. TIMM, and
BRIAN D. RANGE, Administrative Patent Judges.
OWENS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
The Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 1, 3—8, 10, 11, and 16—21. We have jurisdiction under
35 U.S.C. § 6(b).
The Invention
The Appellants claim a method for adding an additive such as a metal
stearate to an ultrahigh molecular weight polyethylene powder composition.
Claim 1 is illustrative:
1. A process for the addition of additives to ultra high molecular
weight polyethylene, comprising:
Appeal 2016-001164
Application 13/513,252
adding a master fluff to virgin ultra high molecular weight
polyethylene powder,
wherein:
the master fluff comprises between 99.9 and 91.0 % wt. virgin ultra
high molecular weight polyethylene powder and between 0.1 and 9.0 % by
weight additive; and
the master fluff is added to ultra high molecular weight polyethylene
powder in continuous mixing equipment.
Takesue
Martin
Lefebvre
Gregg
Ehlers
The References
US 6,329,458 B1
US 7,235,082 B2
US 7,314,662 B2
US 2011/0070454 A1
AU-B-81637/94
Dec. 11,2001
June 26, 2007
Jan. 1, 2008
Mar. 24, 2011
June 29, 1995
Richard J. Lewis, Sr., Hawley’s Condensed Chemical Dictionary 703—04
(John Wiley & Sons, 13th ed. 1997) (hereinafter Lewis).
Ticona, GUR® ultra-high molecular weight polyethylene (PE-UHMW) 1—35
(Ticona GmbH 2001) (hereinafter Ticona).
Hans Zweifel et al., Plastics Additives Handbook 517—20 (Hanser, 6th ed.
2009) (hereinafter Zweifel).
The Rejections
The claims stand rejected under 35 U.S.C. § 103 as follows: claims 1,
3, 11, 19, and 20 over Gregg in view of Lefebvre, claims 1, 3—7, 10, 11, 16,
and 19—21 over Ehlers in view of Lewis, Gregg, and Lefebvre, claim 8 over
Ehlers in view of Lewis, Gregg, Lefebvre, and either Zweifel or Takesue,
and claims 17 and 18 over Ehlers in view of Lewis, Gregg, Lefebvre,
Ticona, and Martin.1
1 A rejection of claim 16 under 35 U.S.C. § 103 over Gregg in view of
Lefebvre is withdrawn in the Examiner’s Answer (Ans. 26).
2
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Application 13/513,252
OPINION
We affirm the rejections.
Rejection of claims 1, 3, 11, 19, and 20 over
Gregg in view of Lefebvre
The Appellants argue the claims as a group (App. Br. 4—10). The
Appellants address claims 3 and 19 under separate headings but do not
provide a substantive argument as to the separate patentability of those
claims (App. Br. 9—10). We therefore limit our discussion to the sole
independent claim among claims 1,3, 11, 19, and 20, i.e., claim 1. Claims
3, 11, 19, and 20 stand or fall with that claim. See
37 C.F.R. § 41.37(c)(l)(iv) (2012).
Gregg discloses a fouling-resistant ultrahigh molecular weight
polyethylene (AF-UHMPE) composition containing 86.5—99.5 wt%
UHMWPE powder, 0.1—5 wt% silver-containing biocide, 0.1—4 wt%
polychlorophenoxyphenol and 0.5-10 wt% organopolysiloxane, wherein
“[t]he silver-containing biocide and the polychlorophenoxyphenol
collectively reduce, or prevent, the growth of algae, fungus, bacteria, or
microbes” and can be fed to a molding operation alone or in combination, in
solid, powder or liquid form (|| 16, 19, 22, 25, 26, 28, 37). The
silver-containing biocide and the polychlorophenoxyphenol can be provided
as a concentrate, e.g., 10 wt% silver-zinc zeolite, 10 wt%
polychlorophenoxyphenol and 80 wt% carrier thermoplastic such as
UHMWPE (| 27). When the organopolysiloxane is a wax or gum, it and the
biocides can be provided as a master batch by incorporating them into
powdery UHMWPE in a cutting-type mixer (| 38). When the
organopolysiloxane is a liquid the amount of organopolysiloxane added
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Application 13/513,252
relative to the amount of UHMWPE in the biocide-containing master batch
preferably is such that a dry-appearing or powdery mixture is obtained
(139). Regardless of the organopolysiloxane’s form, “as uniform a
composition of the unconsolidated ingredients as possible is desired” (id.).
Lefebvre discloses a master batch comprising a polyethylene base and
a non-resinous component which can be a pigment, a UV stabilizer or an
anti-slip agent/anti-blocking mixture (col. 8,11. 38-50). Lefebvre teaches
that “[t]he composition of a masterbatch is not critical and the ratio of the
non-resinous agent to the polyethylene base may be appropriately adjusted,
depending on the required properties of the film, such as light transmission,
UV stability or slip and anti-blocking properties” (col. 8,11. 50-55), and that
“[a] person skilled in the art would be able to make necessary adjustments
and even if experimentation were required this would be of a routine nature
and would not involve the exercise of any inventive faculty” (col. 8,11. 55-
59).
The Appellants assert that “Gregg fails to disclose that their powdery
UHMWPE is a virgin ultra high molecular weight polyethylene powder, that
the masterbatch is added to a virgin ultra high molecular weight
polyethylene powder, or the relative amounts of the virgin ultra high
molecular weight polyethylene powder and the additive in the masterbatch”
(App. Br. 4).2
A reference encompasses not only what it expressly discloses, but also
what it would have fairly suggested to one of ordinary skill in the art. See In
re Lamberti, 545 F.2d 747, 750 (CCPA 1976). Gregg’s disclosure of
2 We address only the Appeal Brief because the assertions and arguments in
the Reply Brief are essentially the same as those in the Appeal Brief.
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Application 13/513,252
UHMWPE broadly (12) would have fairly suggested, to one of ordinary
skill in the art, use of either virgin or non-virgin UHMWPE.
The Appellants assert that “[i]f one skilled in the art were to consider
adding the ultra high molecular weight polyethylene anti-skid additive of
Lefebvre as the masterbatch of Gregg with an ultra high molecular weight
polyethylene, they would just be adding an ultra high molecular weight
polyethylene, which is no longer a masterbatch” (App. Br. 6—7). Lefebvre is
relied upon by the Examiner for its disclosure that one of ordinary skill in
the art would be able to adjust master batch compositions and that any
required experimentation would be routine (col. 8,11. 55—59), not for a
suggestion to add Lefebvre’s master batch to Gregg’s UHMWPE (Ans. 4—
5).
The Appellants argue that “[cjonsidering that there is no disclosure or
suggestion in any of the art of record that the presently claimed masterbatch
can have the effect of improving flow, it is not a result effective variable”
(App. Br. 6).
Establishing a prima facie case of obviousness does not require that
references solve the same problem solved by the Appellants. See In re
Kemps, 97 F.3d 1427, 1430 (Fed. Cir. 1996); In re Beattie, 974 F.2d 1309,
1312 (Fed. Cir. 1992); In re Dillon, 919 F.2d 688, 693 (Fed. Cir. 1990) (en
banc); In reLintner, 458 F.2d 1013, 1016 (CCPA 1972). Regardless,
Gregg’s disclosure that organopolysiloxane to be mixed with UHMWPE
preferably is combined with sufficient UHMWPE powder to form a
powdery master batch (|| 38—39) would have indicated to one of ordinary
skill in the art that the powdery master batch has improved flow relative to
the organopolysiloxane.
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Application 13/513,252
The Appellants assert that the examples in their Specification provide
evidence of unexpected results by evincing “that the present master fluff
shows an excellent and stable homogeneous dispersion, good flowability,
non-sticky behavior, no clustering, and no segregation during handling and
storage. (Paragraph [0020])” (App. Br. 8).
That assertion is not well taken because the Appellants have not set
forth a side-by-side comparison of the claimed invention with the closest
prior art which is commensurate in scope with the claims and provided
evidence that the results would have been unexpected by one of ordinary
skill in the art. See In re Baxter Travenol Labs., 952 F.2d 388, 392 (Fed.
Cir. 1991); In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984); In re
Grasselli, 713 F.2d 731, 743 (Fed. Cir. 1983); In re Clemens, 622 F.2d
1029, 1035 (CCPA 1980); In re Freeman, 474 F.2d 1318, 1324 (CCPA
1973); In re Klosak, 455 F.2d 1077, 1080 (CCPA 1972).
Rejection claims 1, 3—7, 16, 19 and 20 over Ehlers in view of Lewis,
Gregg and Lefebvre and claims 17 and 18 over Ehlers in view of
Lewis, Gregg, Lefebvre, Ticona, and Martin
The Appellants argue claims 1, 3—7, and 16—20 as a group
(App. Br. 10-14). The Appellants separately address claims 3—7, 16, and 19
and address claims 17 and 18 under a separate heading, but do not provide a
substantive argument as to the separate patentability of those claims
(App. Br. 13—14, 16—17). We therefore limit our discussion to the sole
independent claim among claims 1, 3—7, 16, 19, and 20, i.e., claim 1.
Claims 3—7, 16, 19, and 20 stand or fall with that claim. See
37 C.F.R. § 41.37(c)(l)(iv) (2012).
Ehlers discloses an ultrahigh molecular weight polyethylene molding
material comprising 0.05—5.0 wt% of a salt of a higher monocarboxylic acid,
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Application 13/513,252
the preferred salts being calcium, magnesium and zinc salts (p. 3,1. 36 —
p. 4,1. 5; p. 5,11. 9-18). “In order to ensure a uniform distribution of the
salts in the polyethylene, the components are expediently mixed as a powder
in conventional mixers or homogenizers. . . . The homogeneous mixture
may be further used directly or after agglomeration, for example to give
finely divided particles” (p. 6,11. 5—12).
Lewis provides a definition of “master batch” which states that “[t]his
method permits uniform dispersion of very small amounts (less than 1%) of
such additives as dry curing agents in rubber and colorants in plastics and
paints” (p.703).
The Appellants argue that Ehlers obtains uniform distribution and
that, therefore, one of ordinary skill in the art would not have added an
additional step of forming a master batch (App. Br. 11).
The suggestion to use a master batch would have been provided by
Lewis’ disclosure that a master batch permits uniform dispersion of very
small amounts (less than 1%) of additives such as dry curing agents in
rubber and colorants in plastics and paints (p.703) (e.g., Ehlers’ 0.05 wt%
magnesium soap (p. 4,11. 2-4; p. 5,11. 9—18)) and Gregg’s indication that a
master batch of an additive wax, gum or liquid in sufficient UHMWPE
powder to form a powdery master batch has improved flow relative to the
additive flflf 38—39).
The Appellants assert that they have shown unexpected results
(App. Br. 12, 17). That assertion is not well taken for the reason given
above regarding the rejection over Gregg in view of Lefebvre.
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Application 13/513,252
Rejection of claim 8 over Ehlers in view of Lewis,
Gregg, Lefebvre, and either Zweifel or Takesue
Claim 8 requires that claim 1 ’s additive is a precipitated metal stearate
acid scavenger.
Zweifel discloses that metal stearates are effective acid neutralizers
and that the two general processes for preparing them are a precipitation
process and a direct or fusion process (pp. 517—18).
Takesue discloses that metal soap such as magnesium stearate can be
prepared by a direct method and a double decomposition method (i.e.,
precipitation method) (col. 5,11. 30-36). “[T]he metal salt prepared by the
double decomposition method has high purity, a fine particle size and a
uniform distribution of particle size” (col. 5,11. 40-42).
The Appellants assert that neither Zweifel nor Takesue’s would have
led one of ordinary skill in the art to include in Ehler’s process an additional
step of forming a master batch because Ehlers already obtains uniform
distribution (App. Br. 14—15).
That assertion is not well taken for the reason give above regarding
the rejection over Ehlers in view of Lewis, Gregg, and Lefebvre.
For the above reasons we are not persuaded of reversible error in the
rejections.
DECISION/ORDER
The rejections under 35 U.S.C. § 103 of claims 1,3, 11, 19, and 20
over Gregg in view of Lefebvre, claims 1, 3—7, 10, 11, 16, and 19-21 over
Ehlers in view of Lewis, Gregg, and Lefebvre, claim 8 over Ehlers in view
of Lewis, Gregg, Lefebvre, and either Zweifel or Takesue, and claims 17
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Application 13/513,252
and 18 over Ehlers in view of Lewis, Gregg, Lefebvre, Ticona, and Martin
are affirmed.
It is ordered that the Examiner’s decision 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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