Ex Parte Drewniak et al

Board of Patent Appeals and Interferences

Apr 16, 2010

11322421 (B.P.A.I. Apr. 16, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
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Ex parte MARTA DREWNIAK and TARA THOMASSON
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Appeal 2009-012365
Application 11/322,421
Technology Center 1700
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Decided: April 16, 2010
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Before EDWARD C. KIMLIN, BRADLEY R. GARRIS, and
TERRY J. OWENS, 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 1-4, 6-22, and 24, which are all of the pending claims.
We have jurisdiction under 35 U.S.C. § 6(b).
The Invention
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The Appellants claim a thermoplastic polyolefin blend and articles
comprising the blend. Claim 1 is illustrative:
1. A thermoplastic polyolefin blend having a rigidity and impact
strength comprising:
a semi-crystalline polypropylene resin component in an amount
sufficient to impart rigidity to the blend; and
an elastomeric component in an amount sufficient to impart impact
strength to the blend and which comprises the combination of:
a propylene-based elastomer component having at least one isotactic
polypropylene sequence and being present in an amount of at least about 0.1
weight percent to less than 40 weight percent based on the total weight of
polymers in the blend, wherein the propylene-based elastomer component is
a propylene/alpha-olefin compolymer [sic] or terpolymer with a propylene
content of about 75 to about 97 weight percent, and
a styrene-based elastomer component that includes about 4 to about
45 weight percent styrene, which component is present in an amount of at
least about 0.1 weight percent of the blend.
The References
Ding 6,541,568 B1 Apr. 1, 2003
Handlin 2005/0197464 A1 Sep. 8, 2005

ExxonMobil Chemical, “Vistamaxx Specialty Elastomers Grades and
Datasheets” 1 (© 2006) (hereafter Vistamaxx).

The Rejections
Claims 1-4, 6-22, and 24 stand rejected under 35 U.S.C. § 103 over
King in view of Handlin and Vistamaxx.
OPINION
We affirm the rejection.
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Issue
Have the Appellants indicated reversible error in the Examiner’s
determination that the applied prior art would have rendered prima facie
obvious, to one of ordinary skill in the art, an elastomeric component
comprising a propylene based elastomer having a propylene content of about
75 to about 97 wt% and a styrene based elastomer including about 4 to about
45 wt% styrene?
Findings of Fact
Ding discloses a thermoplastic polyolefin blend comprising a
propylene-containing polymer base component, a toughening component
and a thermoplastic elastomer which preferably is a high styrene containing
block or random copolymer (abstract; col. 2, ll. 27-32). The base component
propylene-containing polymer can be semi-crystalline polypropylene (col. 2,
ll. 42-44). The toughening component can be an ethylene/propylene
copolymer or an ethylene/propylene/non-conjugated diene terpolymer
having a propylene content of about 10 to about 70 wt% (col. 4, l. 57 –
col. 5, l. 32). The amount of styrene monomer in the thermoplastic
elastomer advantageously is greater than 50 wt% (abstract; col. 4, ll. 2-4;
col. 6, ll. 16-19, 29-34, 49-52).
Handlin discloses a polymeric composition comprising 20-98 wt% of
one or more propylene polymers and 2-80 wt% of a selectively
hydrogenated block copolymer having a general formula which can be
S-E-S, where S is a polystyrene block and E is a block of polybutadiene,
polyisoprene or a mixture thereof (¶¶ 0009-10) (which are among the blocks
of Ding’s styrene block copolymers (col. 2, ll. 58-64)). Handlin’s propylene
polymers include Vistamaxx (¶ 0040), which is one of the Appellants’
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propylene-based elastomers (Spec. 11). The styrene content of the
hydrogenated block copolymer is 13-25% (¶¶ 0010, 0031). Handlin states
that the hydrogenated block copolymers have surprising compatibility with
polypropylene and poly-1-butene polymers and copolymers (¶ 0062).
Analysis
The Appellants argue that the propylene content of Ding’s toughening
component can only be less than 70 wt%, whereas the Appellants’ claims
require about 75 to about 97 wt% (Br. 4).
The upper limit of Ding’s toughening component’s propylene content
range actually is “about 70 weight percent” (col. 5, ll. 8-11, 26-29). The
Examiner finds that Ding’s “about 70” wt% overlaps the Appellants’ “about
75” wt% (Ans. 4). Because that finding is reasonable and the Appellants
have not challenged it, we accept it as fact. See In re Kunzmann, 326 F.2d
424, 425 n.3 (CCPA 1964).
The Appellants argue that Ding’s term “high styrene” means at least
about 50 wt% styrene, whereas the Appellants’ claims require about 4 to
about 45 wt% styrene (Br. 5).
The term “about” permits some tolerance. See In re Ayers, 154 F.2d
182, 185 (CCPA 1946). Thus, Ding’s “at least about 50 percent styrene”
(col. 6, ll. 51-52) includes amounts somewhat less than 50 percent, and the
Appellants’ “about 45 weight percent styrene” includes amounts somewhat
greater than 45 %. Thus, it appears that the styrene content ranges of Ding
and the Appellants overlap.
The Appellants argue that Handlin fails to teach or suggest semi-
crystalline polypropylene (Br. 5, 8). The Appellants argue that “Handlin et
al. teaches avoiding materials that decrease flexibility and increase haziness,
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which by definition is the characteristic of high crystalline polypropylene”
(Br. 5).
The Appellants’ claims require semi-crystalline polypropylene, not
high crystalline polypropylene. Regardless, Handlin’s disclosure that
propylene polymers generally are useful and that high clarity polymers are
merely a preference (¶ 0040) would have indicated to one of ordinary skill in
the art that the surprising compatibility of the hydrogenated block
copolymers with polypropylene (¶ 0062) applies to polypropylenes
generally, both crystalline and noncrystalline.
The Appellants argue that “Handlin et al. fails to teach or suggest the
semi-crystalline polypropylene which is an essential component of the blend
of the invention” (Br. 8).
The Appellants are improperly attacking Handlin individually when
the rejection is based on a combination of references. See In re Keller, 642
F.2d 413, 426 (CCPA 1981); In re Young, 403 F.2d 754, 757-58 (CCPA
1968). The polypropylene component of the composition of the primary
reference to Ding can be semi-crystalline polypropylene (col. 2, ll. 42-44).
The Appellants argue that “the Office Action ignored the fact that a
change in styrene content would greatly change the behavior of styrene-
based elastomers in blending with other polymers” (Br. 6).
That argument is not well taken because it is merely unsupported
attorney argument, and arguments of counsel cannot take the place of
evidence. See In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984).
Moreover, the argument does not appear to be consistent with the
Appellants’ broad styrene content range of about 4 to about 45 wt% recited
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in claim 1 and the broader range of about 4 to 90 wt% disclosed in the
Appellants’ Specification (Spec. 11).
The Appellants argue that in the examples in their Specification,
Comparative Example 3 shows a stress whitening rating of B while the
blend of Example 1 shows a stress whitening rating of A (Br. 6).
That argument is not well taken because the Appellants have not
provided a side-by-side comparison of the claimed invention with the closest
prior art which is commensurate in scope with the claims, and explained
why 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).
Regarding claim 24 which requires that “the styrene-based elastomer
component is selected from the group consisting of styrene-butadiene,
styrene-isoprene, styrene-butadiene-styrene, styrene-isoprene-styrene block
copolymers and mixtures thereof”, the Appellants argue that “Handlin
teaches only hydrogenated styrenic block copolymers, while the block
copolymers in new claim 24 are non-hydrogenated” (Br. 9).
That argument is not convincing because it is directed toward a
limitation which is not in the claim. See In re Self, 671 F.2d 1344, 1348
(CCPA 1982). Claim 24 does not require that the block copolymers are
non-hydrogenated. Moreover, the Appellants’ Specification indicates that
the block copolymers can be hydrogenated or non-hydrogenated (Spec. 11-
12).
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Conclusion of Law
The Appellants have not indicated reversible error in the Examiner’s
determination that the applied prior art would have rendered prima facie
obvious, to one of ordinary skill in the art, an elastomeric component
comprising a propylene based elastomer having a propylene content of about
75 to about 97 wt% and a styrene based elastomer including about 4 to about
45 wt% styrene.
DECISION/ORDER
The rejection of claims 1-4, 6-22, and 24 under 35 U.S.C. § 103 over
Ding in view of Handlin and Vistamaxx is 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

PL Initial;
sld

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