Ex Parte Fuchs et al

Board of Patent Appeals and Interferences

Jun 20, 2012

10593791 (B.P.A.I. Jun. 20, 2012)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
10/593,791 09/22/2006 Alexander Fuchs 124-192USFE6167 3239
74275 7590 06/21/2012
DILWORTH IP, LLC
2 CORPORATE DRIVE, SUITE 206
TRUMBULL, CT 06611
EXAMINER
KRYLOVA, IRINA
ART UNIT PAPER NUMBER
1764
MAIL DATE DELIVERY MODE
06/21/2012 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 ALEXANDER FUCHS,
GABRIELLA SARTORI, GERHARD KAUTZ,
RALF NICKLES, DANIELE BUGADA,
and NAGARAJAN GANESH
____________

Appeal 2011-004560
Application 10/593,791
Technology Center 1700
____________

Before BRADLEY R. GARRIS, CATHERINE Q. TIMM, and
BEVERLY A. FRANKLIN, Administrative Patent Judges.

GARRIS, Administrative Patent Judge.

DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134 from the Examiner's
decision rejecting claims 71-83 and 85-99. We have jurisdiction under
35 U.S.C. § 6.
We AFFIRM.
Appellants claim a propylene copolymer composition, having certain
MFR, tensile E modulus, and molar mass distribution Mw/Mn properties,
comprising from 50% to 80% by weight of a propylene copolymer A) and
from 20% to 50% by weight of a propylene copolymer B), wherein
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propylene copolymers A) and B) are desirably obtained using a metallocene
catalyst system (claim 71). Appellants also claim a film having certain haze
and dart impact properties comprising such a propylene copolymer
composition (claim 85).
Representative claims 71 and 85, the sole independent claims on
appeal, read as follows:
71. A propylene copolymer composition comprising:

A) from 50% to 80% by weight of a propylene copolymer comprising
from 0.05 to 0.99% by weight of at least one alpha olefin comprising from 2
to 10 carbon atoms, with the proviso that the alpha olefin is not propylene;
and

B) from 20% to 50% by weight of one propylene copolymer
comprising from about 7.01 to about 20.0% by weight of at least one alpha
olefin comprising from 2 to 10 carbon atoms, with the proviso that the alpha
olefin is not propylene;

said propylene copolymer composition further comprising:

(i) a MFR (230°C/2.16 kg) from about 1 to about 20 g/10 min;

(ii) a tensile E modulus according to ISO 527-2:1993 from about 400
to about 800 MPa; and

(iii) a molar mass distribution Mw/Mn ranging from 1.5 to 3.5.

85. A film comprising a propylene copolymer composition
comprising:

A) from 50% to 80% by weight of a propylene copolymer comprising
from 0.05 to 0.99% by weight of at least one alpha olefin comprising from 2
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to 10 carbon atoms, with the proviso that the alpha olefin is not propylene;
and

B) from 20% to 50% by weight of one propylene copolymer
comprising from about 7.01 to about 20.0% by weight of at least one alpha
olefin comprising from 2 to 10 carbon atoms, with the proviso that the alpha
olefin is not propylene;

wherein A) and B) are obtained using a catalyst system comprising at
least one metallocene compound, and the propylene copolymer composition
further comprises a MFR from about 1 to about 20, a tensile E modulus from
about 400 to about 800 MPa, and a molar mass distribution Mw/Mn ranging
from 1.5 to 3.5; and the film has a haze less than about 10.0% and a dart
impact greater than about 150 gms for a 1 mil thick film.

The Examiner rejects all claims under 35 U.S.C. § 103(a) as
unpatentable over Delaite (US 6,586,528 B2, issued Jul. 1, 2003) in view of
Langhauser (US 5,753,773, issued May 19, 1998), Job (US 2002/0037979
A1, pub. Mar. 28, 2002) and Rohrmann (US 5,103,030, issued Apr. 7,
1992).
The Examiner correspondingly (and alternatively) rejects claims 71,
73, 83, 85, 87, and 89 over the above references and further in view of
Kawamura (US 2002/0009563 A1, pub. Jan. 24, 2002).
Appellants' arguments are directed to independent claims 71 and 85
only (Br. 6-8). Therefore, the dependent claims under the rejection will
stand or fall with their parent independent claims.
Concerning the independent claims, the Examiner acknowledges that
Delaite's propylene copolymer composition is not disclosed as having been
obtained using a metallocene catalyst system or as having the claimed tensile
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E modulus and molar mass distribution properties (see, e.g., Final Office
Action (FOA) 3). However, the Examiner concludes that it would have been
obvious to produce the propylene copolymer composition of Delaite by
using a metallocene catalyst system in view of Langhauser, Job, and
Rohrmann (id. at para. bridging 5-6). In addition, the Examiner determines
that the resulting composition and the film made therefrom, as well as the
metallocene-catalyzed method by which they are made, are identical to those
claimed by Appellants and accordingly that the resulting composition and
film would intrinsically and necessarily possess the properties of claims 71
and 85 (id. at para. bridging 6-7).
Appellants point out that Langhauser is directed to a block copolymer
rather than a composition as defined by claim 71 (Br. 6). While this may be
true, Appellants fail to explain why Langhauser in combination with Job and
Rohrmann would not have suggested using a metallocene catalyst system for
making Delaite's propylene copolymer composition as proposed by the
Examiner. The significance of this failure is highlighted by Appellants'
concession of the metallocene teachings of Job and Rohrmann (id.).
Appellants state that "the combinations of these four references may
include an indefinite number of possible polymer compositions" (id.) and
that "it is almost impossible for a person of ordinary skill in the art to
recognize or come up with the instant claimed propylene copolymer
composition after reading these four references" (id.). Again, Appellants do
not embellish these statements with an explanation of why the Examiner's
proposed combination of reference teachings would not have been obvious.
For this reason, Appellants' statements are merely unembellished assertions
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of nonobviousness which fail to reveal harmful error in the Examiner's
rejection.
Appellants characterize the Examiner's position regarding the claimed
properties as "a conclusory statement" (id. at para. bridging 6-7). We cannot
agree. This position is logically based on the Examiner's determination that
the prior art combinations proposed above would result in a composition,
film, and metallocene-catalyzed method for their preparation which are
identical to those of claims 71 and 85. Significantly, Appellants do not
contest the Examiner's determination with any reasonable explanation of
why the Examiner's position is erroneous.
Finally, in the interest of completeness, we observe that Appellants do
not present additional arguments against the rejection which includes
Kawamura. Instead, Appellants merely state that Kawamura "does not add
any criticality to the Examiner's rejection" (id. at 8).
For the reasons stated above, it is our determination based on the
record before us that a conclusion of prima facie obviousness for claims 71
and 85 is supported by substantial evidence. We sustain, therefore, each of
the above § 103 rejections.
The decision of the Examiner is affirmed.
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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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