Ex Parte Ericsson et al

Patent Trial and Appeal Board

Aug 30, 2017

13375165 (P.T.A.B. Aug. 30, 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.
13/375,165 02/09/2012 Jan S. Ericsson 82845-406677 1017
25764 7590 09/01/2017
Faegre Baker Daniels LLP
PATENT DOCKETING - INTELLECTUAL PROPERTY
2200 WELLS FARGO CENTER
90 SOUTH SEVENTH STREET
MINNEAPOLIS, MN 55402-3901
EXAMINER
STRAH, ELI D
ART UNIT PAPER NUMBER
1782
NOTIFICATION DATE DELIVERY MODE
09/01/2017 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):
PatentDocketing @ F aegreB D .com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JAN S. ERICSSON and JACOB JOHN1
Appeal 2017-000828
Application 13/375,165
Technology Center 1700
Before BEVERLY A. FRANKLIN, WESLEY B. DERRICK, and
AVELYN M. ROSS, Administrative Patent Judges.
FRANKLIN, Administrative Patent Judge.
DECISION ON APPEAL
1 Appellants identify the real party in interest as Uponor Innovation AB, the
assignee of record, which is a wholly owned subsidiary of Uponor
Corporation. Appeal Br. 3.
Appeal 2017-000828
Application 13/375,165
STATEMENT OF THE CASE
Appellants request our review under 35 U.S.C. § 134(a) of the
Examiner’s decision rejecting claims 1—20, which constitute all the claims
pending in this application. We have jurisdiction over the appeal under 35
U.S.C. § 6(b).
Claim 1 is illustrative of Appellants’ subject matter on appeal and is
set forth below:
1. A flexible polymeric pipe with an outer diameter of at
least 5/16 inch, with a burst strength of at least 300 psi,
the pipe consisting of:
a polymer blend comprising:
at least 95% by weight of the polymer blend of
polyethylene structural polymer;
between 0.1 % and 0.50% by weight of the
polymer blend of a cross-linking agent;
between 0.05% and 0.6% by weight of the polymer
blend of a phenolic antioxidant; and
between 0.01 % and 0.6% by weight of the
polymer blend of a hindered amine light stabilizer
selected from the group consisting of:
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Application 13/375,165
where R5 is a C2-C24 alkyl or allyl group; and optionally a
coating disposed on an outer surface of the polymer blend,
wherein the coating comprises at least one UV radiation cured
cross-linked polymeric layer.
The Examiner relies on the following prior art references as evidence
of unpatentability:
Speelman et al. (“Speelman”) US 4, 839, 405
Backman et al. (“Backman”) US 7,086,421 B2
Rowles et al. (“Rowles”) US 2007/0051418 Al
Johansson et al. (“Johansson”) WO 99/57474
Walter et al. (“Walter”) WO 2005/095838 Al
Herbst et al. (“Herbst”) EP 1 925 628 Al
June 13, 1989
Aug. 8, 2006
Mar. 8, 2007
Nov. 11, 1999
Oct. 13, 2005
Nov. 23, 2006
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Application 13/375,165
THE REJECTIONS
1. Claims 1, 3—8, 10-18 are rejected under pre-AIA 35 U.S.C.
§ 103(a) as being unpatentable over Walter, in view of Herbst, in view of
Backman, and in view of Rowles.
2. Claims 2 and 9 are rejected under pre-AIA 35 U.S.C. § 103(a) as
being unpatentable over Walter, in view of Herbst, in view of Backman, and
in view of Rowles, as applied to claims 1 and 5 above, and in further view of
Speelman.
3. Claims 19 and 20 are rejected under pre-AIA 35 U.S.C. § 103(a) as
being unpatentable over Walter, in view of Herbst, in view of Backman, and
in view of Rowles, as applied to claim 1 above, and in further view of
Johansson.
ANALYSIS
To the extent that Appellants have presented substantive arguments
for the separate patentability of any individual claims on appeal, we will
address them separately consistent with 37 C.F.R. § 41.37(c)(l)(vii).
Upon consideration of the evidence on this record and each of the
respective positions set forth in the record, we find that the preponderance of
evidence on this record supports the Examiner’s findings and conclusion that
the subject matter of Appellants’ claims is unpatentable over the applied art.
Accordingly, we sustain each of the Examiner’s rejections on appeal
essentially for the reasons set forth in the Final Office Action and in the
Answer, and add the following primarily for emphasis.
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Application 13/375,165
Appellants’ position primarily focuses on the argument that it would
not have been obvious to have added the combination of a sterically
hindered amine stabilizer and a phenolic antioxidant taught in Herbst to the
polyethylene blend of Walter because Herbst’s system is limited to vinyl
silane grafted polyolefins (Herbst, | [0001]), whereas Walter’s system is
limited to peroxide cross-linked ethylene polymers (Walter, p. 10,1. 28 — p.
14,1. 12). Appeal Br. 5—10.
It is the Examiner’s position that Walter teaches certain aspects of the
claimed invention but is silent regarding a crosslinked polyethylene polymer
pipe blend comprising 0.1-0.50 wt. % of a cross-linking agent, 0.05-0.6
wt. % of a phenolic antioxidant (AO), and 0.01-0.6 wt. % of a hindered
amine light stabilizer (HALS). Final Act. 6. The Examiner relies upon
Herbst for teaching this aspect of the claimed subject matter, and concludes
that it would have been obvious to “have added the combination of a
sterically hindered amine stabilizer and a phenolic antioxidant of Herbst to
the polyethylene blend of Walter to yield a polyethylene pipe that is formed
by an improved crosslinking process that has significantly accelerated
curing/crosslinking . . . and that has hardness property that can be
improved.” Final Act. 6—7.
Appellants argue that Walter discloses “[a] peroxide cross linked
ethylene polymer pressure pipe and a method for the preparation thereof.”
Walter, Abstract. Appellants state that, as stated in Walter, “[t]he polymer
pipe of the present invention is peroxide crosslinked.” Walter, p. 6,11. 22—
23. Appeal Br. 8. Appellants state that all examples and claimed
embodiments of Walter are peroxide cross-linked ethylene polymers or
methods of preparing a peroxide cross-linked ethylene polymer pressure
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Application 13/375,165
pipe. Walter, p. 10,1. 28—p. 14,1. 12; crosslinkability Table (p. 14); claims
1—13. Appellants argue that silane crosslinking is not mentioned in Walter.
Appeal Br. 8.
Appellants submit that, in contrast, Herbst is limited to vinyl silane
grafted polyolefins (Herbst, | [0001]). Appellants state that as described in
Herbst at | [0002], a typical silane crosslinking process includes grafting of
vinyl silane onto the polymer backbone, and then crosslinking of the silane
groups with water. Usually, the crosslinking or curing is done in steam
saunas or hot water baths for several hours, and at room temperature, the
curing process can take days or weeks. Herbst, | [0002], Appellants state
that Herbst solves this problem “by the combined use of an antioxidant and a
sterically hindered amine in the grafting and crosslinking step of vinyl
silanes with polyolefins. A significant acceleration of the curing step
thereby results.” Herbst, | [0003]. Appeal Br. 8—9.
Appellants submit that peroxide-driven methods of forming
polyethylene, such as those disclosed in Walter, are different and distinct
from silane-driven methods, such as those disclosed in Herbst. Appeal Br.
9. Appellants state that as noted at | [0002] of the Specification, in
peroxide-driven processes, crosslinking occurs under elevated heat and
pressure while in the silane-driven process, crosslinking requires heat and
moisture to form siloxane bridges. Id.
Appellants submit that there is nothing in Herbst to suggest that a
combination of a sterically hindered amine and a phenolic antioxidant for
increasing the crosslinking/curing rate of vinyl silane grafted polyolefins in
the presence of water or moisture would be effective in increasing the
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Application 13/375,165
crosslinking/curing rate of a peroxide cross-linked ethylene polymer
under elevated heat and pressure, as disclosed in Walter. Appeal Br. 9.
It is the Examiner’s position that because both Herbst and Walter use
peroxides to generate free radicals to enable crosslinking to occur, one
skilled in the art would have been motivated to have applied the teachings of
Herbst to the crosslinked polyethylene pipe of Walter with a reasonable
expectation of success. Final Act. 3; Ans. 10.
Appellants disagree and state that one skilled in the art would not have
reasonably expected that the combination of Herbst with Walter would result
in accelerated crosslinking in Walter based on both processes generating free
radicals because, in Herbst, the generation and crosslinking processes
are separate and distinct for the reasons presented on pages 9—10 of the
Appeal Brief, which we do not repeat herein. Appellants submit that thus it
would not have been obvious to have modified the pipe of Walter to include
the combination of a sterically hindered amine stabilizer and a phenolic
antioxidant of Herbst at least because it would not be predictable that a
combination of a sterically hindered amine and a phenolic antioxidant
effective in increasing the crosslinking rate for silane crosslinking would
similarly increase the crosslinking rate when applied to a completely
different crosslinking mechanism, such as peroxide crosslinking. Appeal Br.
9.
In response, the Examiner makes the point that the secondary
reference of Backman, for example, establishes that it is well known in the
art that polyethylene piping is commonly crosslinked by a variety of
processes that include the addition of peroxide and silane to enhance
physical and chemical properties. Backman, col. 2,11. 4—21; Ans. 10. The
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Examiner further states that Backman also establishes that it is well known
in the art to incorporate antioxidants (Backman, col. 2,11. 22—31), and
hindered amine light stabilizers into crosslinked polyethylene (PEX) piping
(Backman, col. 6,11. 8—20). Ans. 10. Notably, no dispute has been made in
the record by Appellants regarding these teachings of Backman, as no Reply
Brief has been filed. A factual finding not shown by the appellant to be
erroneous may be accepted as fact. In re Kunzmann, 326 F.2d 424, 425 n.3
(CCPA 1964). We also note that “[a]s long as some motivation or
suggestion to combine the references is provided by the prior art taken as a
whole, the law does not require that the references be combined for the
reasons contemplated by the inventor.” In re Beattie, 974 F.2d 1309, 1312
(Fed. Cir. 1992). We thus are unpersuaded of error regarding the
Examiner’sprima facie case.
Turning to Appellants’ evidence to rebut the prima facie case, on page
4 of the Appeal Brief, Appellants submit that the recited AO/HAFS
combination provides a degree of oxidative resistance that is surprisingly
greater than results expected based on polymer blends having only AO or
HAFS. We are in agreement with the Examiner’s stated response made on
8—9 of the Answer (which we do not repeat herein), and, for the reasons
stated therein, find Appellant’s rebuttal evidence pertaining to unexpected
superior results inadequate to rebut the prima facie case.
In view of the above, we affirm Rejection 1. Appellants rely upon the
same arguments for Rejections 2 and 3 relied upon for Rejection 1, so we
therefore also affirm these rejections. Appeal Br. 10.
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DECISION
Each rejection is affirmed.
TIME PERIOD
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv). See 37
C.F.R. § 1.136(a).
AFFIRMED
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