Ex Parte Gabriel et al

Patent Trial and Appeal Board

Nov 27, 2018

14359355 (P.T.A.B. Nov. 27, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/359,355 05/20/2014
4743 7590 11/29/2018
MARSHALL, GERSTEIN & BORUN LLP
233 SOUTH WACKER DRIVE
6300 WILLIS TOWER
CHICAGO, IL 60606-6357
FIRST NAMED INVENTOR
Claus Gabriel
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
29827 /48683 5152
EXAMINER
RODD, CHRISTOPHER M
ART UNIT PAPER NUMBER
1766
NOTIFICATION DATE DELIVERY MODE
11/29/2018 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):
mgbdocket@marshallip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CLAUS GABRIEL, MANORANJAN PRUSTY, MARTIN BAUMERT,
and NORBERT GUNTHERBERG
Appeal2018-001333
Application 14/359,355
Technology Center 1700
Before LINDA M. GAUDETTE, CHRISTOPHER C. KENNEDY, and
SHELDON M. McGEE, Administrative Patent Judges.
GAUDETTE, Administrative Patent Judge.
DECISION ON APPEAL 1
1 This Decision includes citations to the following documents: Specification filed
May 20, 2014 ("Spec."); Final Office Action dated Nov. 25, 2016 ("Final");
Appeal Brief filed May 10, 2017 ("Appeal Br."); Examiner's Answer dated Sept.
22, 2017 ("Ans."); and Reply Brief filed Nov. 17, 2017 ("Reply Br.").
Appeal2018-001333
Application 14/359,355
Appellant2 appeals under 35 U.S.C. § I34(a) from the Examiner's decision
finally rejecting claims 1-5, 7-9, 11-15, and 17-27, which constitute all the claims
pending in this application. Claims 6, 10, and 16 have been cancelled. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
The invention relates to thermoplastic, blow-moldable, polyamide molding
compositions which are said to have improved heat-aging resistance (HAR) and
good mechanical properties, e.g., melt stability during blow molding. Spec. 2:27-
30. Of the appealed claims, claims 1, 20, and 21 are independent. See generally
Appeal Br. A-1-A-7. Claim 1 is representative of the claims on appeal, and is
reproduced below:
1. A thermoplastic molding composition comprising
A) from 10 to 94% by weight of a polyamide,
B) from 10 to 25% by weight of an impact modifier made of
a copolymer I of
B1) from 35 to 89.9% by weight of ethylene
B2) from 10 to 60% by weight of 1-octene or I -butene
or propylene or a mixture of these and
B3) from 0.05 to 5% by weight of functional
monomers, wherein the functional monomers are
selected from the group consisting of carboxylic
acid groups, carboxylic anhydride groups,
carboxylic ester groups, carboxamide groups,
carboximide groups, amino groups, hydroxy
groups, epoxy groups, urethane groups, oxazoline
groups, and mixtures of these,
or made of a copolymer II of
2 The Applicant under 3 7 C.F .R. § 1.46, and, therefore, the Appellant under 3 5
U.S.C. § 134, is BASF SE, also identified by Appellant as the real party in interest.
Appeal Br. 4.
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Appeal2018-001333
Application 14/359,355
B1) from 50 to 98% by weight of ethylene
B4) from 2 to 50% by weight of acrylic acid or
methacrylic acid or a (meth)acrylate having from 1
to 18 carbon atoms, or
Bs) from Oto 20% by weight of functional monomers
selected from the group consisting of carboxylic
anhydride groups, epoxy groups, and mixtures of
these,
or a mixture of these,
C) from 0.1 to 10% by weight of a copolymer of
C1) from 50 to 95% by weight of styrene or substituted
styrenes of the general formula I or a mixture of
these
R-G CH2
in which R is an alkyl radical having from 1 to 8
carbon atoms or a hydrogen atom and R 1 is an
alkyl radical having from 1 to 8 carbon atoms and
n has the value 0, 1, 2, or 3, and
C2) from 5 to 50% by weight of structural units
derived from one or more dicarboxylic anhydrides,
D) from 0.001 to 20% by weight of iron powder wherein the
C content of component D) is from 0.01 to 1.2 g/100 g
when measured by a method based on ASTM E1019,
E) from 0.05 to 3% by weight of a copper-containing
stabilizer,
F) from 100 ppm to 5% by weight of alkali metal salts or
alkaline earth metal salts of oxo acids of phosphorus or a
mixture of these,
G) from O to 2% by weight of a polyethyleneimine homo- or
copolymer,
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Appeal2018-001333
Application 14/359,355
H) from O to 60% by weight of further additives selected
from the group consisting of a fibrous filler, a particulate
filler, a lubricant, a nigrosin, oxidation retarders, UV
stabilizers, dyes, pigments, nucleating agents, heat
stabilizers, flame retardants, mold release agents, and
plasticizers,
where the total of the percentages by weight of A) to H) is
100%, and where the molding composition exhibits a surface
roughness of class 3 or class 4.
Id. at A-1-A-2
The Examiner relies on the following references as evidence of
unpatentability:
Kelmchuk
Warner
Subramanian
Gittinger et al.
("Gittinger")
Prusty et al.
("Prusty")
us 3,691,131
us 5,061,757
us 5,122,570
US 6,737,462 B2
US 2012/0004353 Al
CAS Record for SMA-3000, September 30, 2015.
Sept. 12, 1972
Oct. 29, 1991
June 16, 1992
May 18, 2004
Jan.5,2012
Heat Stabilizers Plastics Additives & Compounding, pgs. 24----29,
August/September 1999.
The claims stand finally rejected under 35 U.S.C. § I03(a) as follows: (1)
claims 1-5, 7-9, 11-15, and 17-24 over Warner, Subramanian, Kelmchuk, and
Prusty, as evidenced by CAS Record for SMA-3000; (2) claims 1-5, 7-9, 11-15,
and 17-24 over Warner, Subramanian, Kelmchuk, and Prusty, as evidenced by
CAS Record for SMA-3000 and Heat Stabilizers (p. 24); and (3) claims 1-5, 7-9,
11-15, and 17-27 over Warner, Subramanian, Gittinger, and Prusty, as evidenced
by CAS Record for SMA-3000.
The Examiner finds Warner discloses a blow-moldable composition
comprising claim 1 components A, B ( copolymer II), and F-polyamide,
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Appeal2018-001333
Application 14/359,355
ethylene/acrylic ester copolymer, and sodium hypophosphite-in amounts that
overlap those recited in claim 1. Ans. 3-5 (citing Warner Table VI, Blend 1341).
The Examiner finds Warner discloses a composition comprising claim 1
components A, B (copolymer II), and C-polyamide, ethylene/acrylic ester
copolymer, and styrene/maleic anhydride resin (SMA}- in amounts that overlap
those recited in claim 1. See id. at 4 (citing Warner Table VI, Blend 1413). The
Examiner finds Warner does not disclose the function of SMA in the composition.
See id.
The Examiner finds Subramanian discloses that addition of small amounts of
an anhydride rich polymer substantially increases the melt viscosity of polyamides
and makes polyamides readily processible by blow molding. Ans. 4 ( citing
Subramanian 1 :45---60). Subramanian explicitly identifies SMA 3000 as a suitable
anhydride rich polymer. Subramanian 3:8-10. The Examiner finds one of ordinary
skill in the art would have included SMA 3000 in Warner's Blend 1341 to achieve
the benefits described in Subramanian, including high melt strength, which Warner
discloses is a property that renders its polyamide blends useful in blow-molding
applications. Ans. 4 (citing Warner 7:1-3). The Examiner cites CAS Record as
evidence that SMA 3000 is the same as SMA-3000P, the SMA compound used in
Appellant's examples (see Spec. 21:22-23). Ans. 5.
The Examiner finds Warner discloses that other additives can be added to
the composition, including antioxidants. Id. (citing Warner 5:65-6:10); see Warner
6:2--4. The Examiner finds "Kelmchuk teaches heat stabilized polyamide
compositions comprising a phenolic antioxidant, copper compound, metal halide
and sodium hypophosphite." Ans. 5; see Kelmchuk Abstract. Prusty discloses a
thermoplastic molding composition comprising a polyamide, 0.05 to 5 wt%
polyethyleneimine, 0.01 to 20 wt% iron powder, and other additives, including a
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Appeal2018-001333
Application 14/359,355
copper stabilizer in combination with a hindered phenol. Prusty ,r 104, Abstract.
The Examiner finds Kelmchuk teaches 0.001 to 0.03 wt% of copper compound and
Prusty teaches 0.05 to 3 wt% of copper compound. Ans. 6. The Examiner finds
that, based on these teachings, one of ordinary skill in the art would have added
Kelmchuk's copper-containing stabilizer composition to Warner's composition in
an amount of 0.05 to 3 wt% as recited for claim 1, component E, to provide
improved oxidative stability. Id. at 5---6. The Examiner finds the additional
components in Kelmchuk's stabilizer composition are capable of acting as heat
stabilizers----claim 1, component H. Id. at 6. In the second ground of rejection, the
Examiner relies on page 24 of Heat Stabilizers as evidence that Kelmchuk' s
hindered phenols are heat stabilizers/antioxidants which provide stability
during processing and resistance to thermal breakdown. Id. at 15.
In the third ground of rejection, the Examiner relies on Gittinger, rather than
Kelmchuk for a teaching that a "stabilizer mixture of copper compound, metal
halide and sodium hyphosphite leads to polyamide compositions which are highly
stable to thermo-oxidative and photo-oxidative aging" and have improved impact
properties. Id. at 23 ( citing Gittinger 1: 65---67, 3: 15-17, and 5: 1-5). The Examiner
finds the additional components in Gittinger' s stabilizer composition are capable of
acting as heat stabilizers----claim 1, component H. Id. at 24.
As to components D and G, the Examiner finds the ordinary artisan would
have included iron powder and polyethyleneimine in Warner's composition based
on Prusty's teaching that compositions comprising these components in
combination with a polyamide exhibit improved heat aging resistance. Id. at 6-7
(citing Prusty ,r,r 8, 13). The Examiner finds "[t]he data present in Appellant's
specification and the Gabriel declarations submitted throughout prosecution
demonstrates the addition of polyethyleneimine and/or Components D, E and G
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Appeal2018-001333
Application 14/359,355
always result[s] in the surface roughness being a 3 or 4." Ans. 8. The Examiner
thus determines Warner's composition, as modified based on the teachings of ( 1)
Subramanian, Kelmchuk, and Prusty, or (2) Subramanian, Gittinger, and Prusty,
inherently would exhibit a surface roughness of class 3 or class 4. Id. at 8, 25.
Appellant argues ( 1) the Examiner failed to identify evidence to support a
finding that one of ordinary skill in the art would have included both sodium
hypophosphite and SMA in Warner's composition (Appeal Br. 18-19), (2) there
would not have been a reason to include a hypophosphite in a composition
containing a metal halide, hindered phenol, and copper, because the examples in
Kelmchuk show no benefit to adding a hypophosphite (id. at 19-20), (3)
Specification pages 24 and 25 evidence that sagging ratio is not an inherent
property (Appeal Br. 24--25), and ( 4) the data and discussion in the Gabriel
Declarations provide evidence of unexpected results (id. at 20-22).
We have considered Appellant's arguments, but are not persuaded of
reversible error in the Examiner's conclusion of obviousness. The Examiner has
provided detailed findings of fact and fully explained the reasons why the ordinary
artisan would have modified Warner's composition in view of the secondary
references. See Ans. 3-31. The Examiner has identified persuasive evidence to
support these findings and reasons, and has explained in detail why Appellant's
arguments are not convincing of nonobviousness. See id. at 31--49. The Examiner
has also provided detailed explanations throughout the Answer as to why the
Declarations are not persuasive of unexpected results. See, e.g., Ans. 31-33, 40.
We add the following comments to address arguments made in the Reply Brief.
Appellant argues the references fail to disclose a reason to include sodium
hypophosphite in the polyamide composition. Reply Br. 2. There is no need for the
Examiner to provide a reason, however, because Warner's Blend 1341, the
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Appeal2018-001333
Application 14/359,355
composition that forms the basis of the Examiner's rejection, already includes
sodium hypophosphite (see Warner Table VI), and Warner does not limit the
number of "other additives" (see id.) that may be present in the inventive
compositions (see id. at 5: 65---66).
Appellant also argues the Examiner improperly refers to three patents which
are not included in the stated grounds of rejection. Reply Br. 2. We have not
considered these references or the Examiner's findings with respect to these
references in reaching our decision.
As indicated above, all remaining arguments advanced by Appellant,
including those not identified explicitly herein, have been fully addressed by the
Examiner and are unpersuasive for the reasons stated in the Answer.
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Appeal2018-001333
Application 14/359,355
1-5 7-9
' '
§ 103(a)
11-15, and
17-24
1-5 7-9
' '
§ 103(a)
11-15, and
17-24
1-5 7-9
' '
§ 103(a)
11-15, and
17-27
Summary
Order
Warner, Subramanian, 1-5 7-9
' ' Kelmchuk, and Prusty, as 11-15,
evidenced by CAS Record for and 17-24
SMA-300
Warner, Subramanian, 1-5 7-9
' ' Kelmchuk, and Prusty, as 11-15,
evidenced by CAS Record for and 17-24
SMA-3000 and Heat
Stabilizers
Warner, Subramanian, 1-5 7-9
' ' Gittinger, and Prusty, as 11-15,
evidenced by CAS Record for and 17-27
SMA-3000
1-5 7-9
' ' 11-15,
and 17-27
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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