Ex Parte Fennis et al

Patent Trial and Appeal Board

Mar 6, 2018

13813466 (P.T.A.B. Mar. 6, 2018)

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.
13/813,466 01/31/2013 Paulus Jacobus Fennis TS 2465-US-PCT 6362
23632 7590 03/08/2018
SHF! T OH miUPANY
EXAMINER
P 0 BOX 576 RIOJA, MELISSA A
HOUSTON, TX 77001-0576
ART UNIT PAPER NUMBER
1768
NOTIFICATION DATE DELIVERY MODE
03/08/2018 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):
USPatents@Shell.com
Shelldocketing@cpaglobal.com
shellusdocketing@cpaglobal.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PAULUS JACOBUS FENNIS, MARTINUS JOHANNES MARIA
LELIEVELD, and WILLEM KARZIJN1
Appeal 2017-005865
Application 13/813,466
Technology Center 1700
Before BRADLEY R. GARRIS, JEFFREY B. ROBERTSON, and
BRIAN D. RANGE, Administrative Patent Judges.
GARRIS, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134, Appellants appeal from the Examiner’s
rejections under 35 U.S.C. § 103(a) of claims 1—5 and 11—16 as unpatentable
over Eleveld (US 6,403,667 Bl, iss. June 11, 2002) in view of Fogg (US
6,455,603 Bl, iss. Sept. 24, 2002) and claims 6—10 as unpatentable over
Eleveld in view of Chauk (US 2006/0025492 Al, Feb. 2, 2006). We have
jurisdiction under 35 U.S.C. § 6.
We AFFIRM.
1 Shell Oil Company is identified as the real party in interest (Br. 2).
Appeal 2017-005865
Application 13/813,466
Appellants claim a process for the preparation of a polymer polyol
that comprises polymerizing a mixture including a polymerization initiator
of a certain formula, wherein the step of polymerizing occurs substantially in
the absence of a preformed stabilizer (independent claims 1 and 6).
A copy of representative claim 1, taken from the Claims Appendix of
the Appeal Brief, appears below.
1. A process for the preparation of a polymer polyol having a
solid polymer content which is at most 60 wt.%, which process
comprises mixing a base polyol, one or more ethylenically
unsaturated monomers, a polymerization initiator, optionally a
macromer, and optionally a chain transfer agent, and
polymerizing the mixture thus obtained at a temperature of
below 120°C, wherein the initiator is of formula
Rl-C(=0)-0-0-R2 (I)
wherein R1 is an alkyl group and R2 is an alkyl group of
formula
-C(R3)(R4 )-C(R5)(R6)(R7) (II)
wherein R3 and R4 are the same or different and are an
alkyl group, R5, R6 and R7 are the same or different and are a
hydrogen atom or an alkyl group wherein the step of
polymerizing the mixture occurs substantially in the absence of
a preformed stabilizer and wherein the base polyol is a
polyetherpolyol with a nominal functionality of greater than 2.5
and a molecular weight in the range of from 200 to 14000.
Appellants do not present arguments specifically directed to
dependent claims 2—5 and 7—16 (see Br. 3 4). As a consequence, these
dependent claims will stand or fall with their parent independent claims of
which claim 1 is representative.
We sustain the Examiner’s § 103 rejections for the reasons given in
the Final Office Action, the Answer, and below.
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Appeal 2017-005865
Application 13/813,466
It is undisputed that Eleveld forms a terpolymer stabilizer during
formation of a polymer polyol using a peroxide initiator albeit not the
peroxide initiators encompassed by claims 1 and 6 (see, e.g., Eleveld col. 2,
11. 27—35, col. 5,11. 17—26). It also is undisputed that each of Fogg and
Chauk prepares a polymer polyol in the presence of a preformed stabilizer
using a peroxide initiator, wherein Fogg’s tert-butyl peroxy-2-ethyl-
hexanoate initiator (Fogg col. 6,11. 10—22) is within the scope of claim 1 and
Chauk’s 1,1,3,3-tetramethylbutyl peroxy-2-ethylhexanoate initiator (Chauk
190) is within the scope of claim 6.
In rejecting the independent claims, the Examiner concludes that it
would have been obvious to use as Eleveld’s initiator the above-mentioned
initiators of Fogg (Final Action 4) or Chauk (id. at 6—7).
Appellants correctly point out that Eleveld’s initiator functions to
initiate terpolymerization to form stabilizer while also initiating
polymerization to form polymer polyol whereas the initiators of Fogg and
Chauk are “only needed to initiate the polymerization of the [polymer
polyol] because the preformed stabilizer is already present” (Br. 3, 4).
Appellants then argue without embellishment that “[i]t would not have been
obvious to one of ordinary skill in the art to replace the initiator taught by
Eleveld [] with the initiator taught by [Fogg or Chauk] that requires a
preformed stabilizer be present in the mixture” (id. at 3, 4).
We perceive no convincing merit in Appellants’ apparent belief that
an artisan would not have had a reasonable expectation of successfully using
the peroxide initiator of Fogg or Chauk as the peroxide initiator of Eleveld to
form the latter’s stabilizer as well as polymer polyol. As pointed out by the
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Appeal 2017-005865
Application 13/813,466
Examiner, Eleveld’s disclosure of peroxide initiators broadly is “evidence
that there would be a reasonable expectation of success in the use of any
known peroxide initiator [such as the peroxide initiators of Fogg and Chauk]
for the polymerization of monomers in the preparation of polymer polyols
[via the process of Eleveld]” (Ans. 5—6). Significantly, Appellants do not
challenge the Examiner’s point in the record of this appeal (i.e., no Reply
Brief has been filed).
In addition, we observe that Fogg and Chauk teach using the same
peroxide initiators for preparing both the preformed stabilizer (Fogg col. 5,
11. 44—60; Chauk 171) and the polymer polyol (Fogg col. 6,11. 10-22; Chauk
190). These teachings reinforce the proposition that the peroxide initiators
of Fogg and Chauk would have had a reasonable expectation of successfully
performing the function of Eleveld’s peroxide initiators wherein both the
stabilizer and polymer polyol are formed together.
In summary, Appellants’ above quoted argument fails to reveal error
in the Examiner’s § 103 rejections of independent claims 1 and 6 as well as
dependent claims 2—5 and 7—16.
The decision of the Examiner 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)(l)(iv).
AFFIRMED
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