11126987 (B.P.A.I. Sep. 23, 2010)

Ex Parte Fitzharris Wall

Board of Patent Appeals and InterferencesSep 23, 2010

11126987 (B.P.A.I. Sep. 23, 2010)

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. 11/126,987 05/11/2005 Jennifer Elizabeth Fitzharris Wall 2003197P02 4855 7590 09/24/2010 Intellectual Property Law Department 823 The Goodyear Tire & Rubber Company 1144 East Market Street Akron, OH 44316-0001 EXAMINER FISCHER, JUSTIN R ART UNIT PAPER NUMBER 1791 MAIL DATE DELIVERY MODE 09/24/2010 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 JENNIFER ELIZABETH FITZHARRIS WALL ____________ Appeal 2009-015278 Application 11/126,987 Technology Center 1700 ____________ Before EDWARD C. KIMLIN, CATHERINE Q. TIMM, and LINDA M. GAUDETTE, Administrative Patent Judges. KIMLIN, Administrative Patent Judge. DECISION ON APPEAL1 This is an appeal from the final rejection of claims 25, 28, 36, and 38- 40. We have jurisdiction over the appeal pursuant to 35 U.S.C. § 6. Claim 25 is illustrative: 1 The two-month time period for filing an appeal or commencing a civil action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing, as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE” (paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery mode) shown on the PTOL-90A cover letter attached to this decision. Appeal 2009-015278 Application 11/126,987 2 25. A pneumatic rubber tire having a built-in non-black colored puncture sealing layer, wherein said puncture sealing layer contains an at least partially organoperoxide-deploymerized butyl rubber-based sealant layer positioned between a halobutyl rubber tire innerliner and a conjugated diene-based tire carcass, and wherein said puncture sealing layer is comprised of, based upon parts by weight per 100 parts by weight of said partially depolymerized butyl rubber, and wherein, however, and provided that said puncture sealing layer has a low strain storage modulus (G') dynamic viscoelastic property (100°C, 5 percent dynamic strain and 1 hertz) in a range of from about 10 to about 100 kPa; (A) a partially organoperoxide-depolymerized butyl rubber as a copolymer of isobutylene and isoprene, wherein said butyl rubber, prior to such depolymerization, is comprised of about 0.5 to about 5 percent units derived from isoprene, and correspondingly from about 95 to about 99.5 weight percent units derived from isobutylene; (B) particulate reinforcing filler comprised of: (1) about 20 to about 50 phr of precipitated silica having a BET surface area in a range of from about 50 to about 70 m2/g, or (2) about 12 to about 30 phr of precipitated silica having a BET surface area in a range of from about 110 to about 200 m2/g, or (3) about 15 to about 30 phr of precipitated silica having a BET surface area in a range of from about 50 to about 70 m2/g and about 5 to about 20 phr of clay, or (4) about 5 to about 25 phr of precipitated silica having a BET surface area in a range of from about 110 to about 200 m2/g and about 5 to about 20 phr of clay, or Appeal 2009-015278 Application 11/126,987 3 (5) about 15 to about 30 phr of precipitated silica having a BET surface area in a range of from about 50 to about 70 m2/g and about 5 to about 20 phr of calcium carbonate, or (6) about 5 to about 25 phr of precipitated silica having a BET surface area in a range of from about 110 to about 200 m2/g and about 5 to about 20 phr of calcium carbonate, or (7) about 15 to about 30 phr of precipitated silica having a BET surface area in a range of from about 50 to about 70 m2/g, about 5 to about 15 phr clay and about 5 to about 15 phr of calcium carbonate, or (8) about 5 to about 25 phr of precipitated silica having a BET surface area in a range of from about 110 to about 200 m2/g, about 5 to about 15 phr of clay and about 5 to about 15 phr of calcium carbonate; (C) from zero to 6 phr of short organic fibers; (D) a colorant of other than a black color wherein said colorant is selected from at least one of organic pigments, inorganic and dyes; and (E) from zero to about 20 phr of rubber processing oil, wherein said precipitated silica is a precipitated silica having been pre-treated with a polyethylene glycol having a weight average molecular weight in a range of from about 2,000 to about 15,000 prior to addition of said organoperoxide, (1) either in situ within the rubber composition prior to addition of said organoperoxide, or (2) prior to mixing said precipitated silica with the rubber composition, and wherein said butyl rubber of said sealant precursor is comprised of a plurality of butyl rubbers comprised of a first butyl rubber having a Mooney (ML1+4), 125°C, viscosity in a range of from about 35 to about 60 and at least one additional butyl rubber having a Mooney (ML1+4), 125°C, in a range of from about 25 to about 45, wherein the Mooney viscosity of said Appeal 2009-015278 Application 11/126,987 4 first butyl rubber is at least 10 Mooney viscosity units higher than the Mooney viscosity of said additional butyl rubber. The Examiner relies upon the following references as evidence of obviousness: Egan US 4,895,610 Jan. 23, 1990 Kawaguchi US 4,966,213 Oct. 30, 1990 Josef WO 99/48813 Sep. 30, 1999 Saito US 2005/0155058 A1 Aug. 21, 2003 Serra US 2005/0034799 A1 Feb. 17, 2005 The instant application is related to copending application, U. S. Serial No. 10/917,620, which is also presently before us on Appeal (Appeal No. 2010-003337). The claims of both applications are directed to a pneumatic rubber tire having a built-in non-black colored puncture sealing layer which comprises precipitated silica that has been treated with polyethylene glycol. The present claims also require that the butyl rubber of the sealant precursor is comprised of a plurality of butyl rubbers, including first and second butyl rubbers having the recited Mooney viscosities. Appealed claims 25, 28, 36, and 38-40 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Serra in view of Kawaguchi, Saito, Egan, and Josef. Appellant does not separately argue any particular claim on appeal. Accordingly, all the appealed claims stand or fall together with claim 25. We have thoroughly reviewed each of Appellant's 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 rejection for essentially those Appeal 2009-015278 Application 11/126,987 5 reasons expressed in the Answer and those set forth in our decision in the related appeal, which we decide concurrently herewith. A principal argument advanced by appellant is that the applied prior art does not teach or suggest treating the precipitated silica of Serra with polyethylene glycol. However, for the reasons set forth in our decision in the related appeal, we fully concur with the Examiner that Josef evidences the obviousness of using polyethylene glycol to treat the precipitated silica of Serra for the purpose of enhancing the dispersion of the silica in the rubber sealant composition. Appellant also maintains that "[n]owhere in Egan is there taught or suggested a use of a combination of two butyl rubbers having limitative spaced apart Mooney viscosity values" (Br. 8, 1st full ¶). However, Appellant has not refuted the Examiner's reasoning that Serra's teaching of using at least one thermally degradable polymer, such as butyl rubber, in the sealant composition would have made it obvious to one of ordinary skill in the art to use a mixture of butyl rubbers having different Mooney viscosities. Also, Appellant has not addressed the Examiner's finding that Egan teaches that tire sealant compositions comprise butyl rubber blends having a Mooney viscosity ranging from about 40 to about 58, which range overlaps the recited ranges of "about 35 to about 60" and "about 25 to about 45." Since it has been generally held that a claimed range which overlaps a range disclosed by the prior art is prima facie obvious, we find no error in the Examiner's legal conclusion that "[o]ne of ordinary skill in the art at the time of the invention would have found it obvious to use a variety of butyl rubber combinations, including those detailed by the claimed invention, absent any Appeal 2009-015278 Application 11/126,987 6 conclusive showing of unexpected results" (Ans. 7, 2nd full ¶). See In re Malagari, 499 F.2d 1297, 1303 (CCPA 1974). As a final point, we note that Appellant bases no argument upon objective evidence of nonobviousness, such as unexpected results attributed to treating precipitated silica with polyethylene glycol or to using a blend of butyl rubbers having viscosities within the claimed ranges. In conclusion, based on the foregoing, 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)(v). AFFIRMED cam INTELLECTUAL PROPERTY LAW – 823 THE GOODYEAR TIRE & RUBBER CO. 1144 EST MARKET STREET AKRON OH 44316-0001