Ex Parte Gargalaka et al

Patent Trial and Appeal Board

Feb 21, 2018

13613975 (P.T.A.B. Feb. 21, 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.
13/613,975 09/13/2012 Joao Gargalaka JR. 73594-US-NP 1908
14268 7590 02/23/2018
The Dow Chemical Company/Cantor Colburn LLP
20 Church Street
22nd Floor
Hartford, CT 06103-3207
EXAMINER
GUO, TONG
ART UNIT PAPER NUMBER
1783
NOTIFICATION DATE DELIVERY MODE
02/23/2018 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):
ffuimpc@dow.com
u sptopatentmail @ C antorColburn .com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JO AO GARGALAKA, JR.,
FELIPE MARTINEZ BARRENECHE,
JORGE C. GOMES, and
NICOLAS C. MAZZOLA
Appeal 2016-005438
Application 13/613,975
Technology Center 1700
Before TERRY J. OWENS, WESLEY B. DERRICK, and
CHRISTOPHER C. KENNEDY, Administrative Patent Judges.
OWENS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
The Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’
rejection of claims 1—15. We have jurisdiction under 35 U.S.C. § 6(b).
The Invention
The Appellants claim a film. Claims 1 and 14 are illustrative:
1. A film structure suitable for use in thermoforming
applications, comprising:
a. an outer layer, where the outer layer comprises a
polymeric material selected from the group consisting of
propylene a-olefm [sic, a- olefin] copolymers, propylene
homopolymers, MDPE, or blends thereof, where said polymeric
Appeal 2016-005438
Application 13/613,975
material has a Vicat softening temperature of 90°C or greater,
and a total crystallinity in the range of 25 to 45%
b. a core, where the core layer comprises a linear low
density polyethylene having a density of 0.925 g/cm3 or less,
and a melt index of 4.0 g/10 min or less; and
c. an inner layer, where the inner layer comprises a linear
low density polyethylene having a density of from 0.865 to
0.925 g/cm3 and a melt index of less than 4.0 g/10 min,
wherein the total amount of polyethylene having a
density of 0.930 g/cm3 or greater is less than 25% by weight of
the entire film, and wherein the film structure is characterized
by comprising less than 5% by weight of the film of polyamide,
polyester, ethylene vinyl acetate, ionomers, polyvinyl chloride,
and/or cyclic olefin polymers; and wherein the film structure
has a total thickness of at least 100 pm.
14. A film characterized by comprising less than 5% by
weight of the film of polyamide, polyester, ethylene vinyl
acetate, ionomers, polyvinyl chloride, and/or cyclic olefin
polymers and wherein the film is characterized by having a
penetration of probe according to ASTM D5748 at 100°C of at
least 190mm.
Yoshimura
The References
US 4,390,587 June 28, 1983
Kong US 6,248,442 B1 June 19, 2001
Uehara US 2002/0187360 A1 Dec. 12, 2002
Manrique US 2009/0104424 A1 Apr. 23, 2009
Fraschini US 2009/0061129 A1 Mar. 5, 2009
Forloni US 2011/0039098 A1 Feb. 17, 2011
Mazzola US 2011/0171407 A1 July 14, 2011
The Rejections
The claims stand rejected under 35 U.S.C. § 103 as follows: claims 1—
5, 8—10, and 12—15 over Manrique in view of Yoshimura, Uehara and either
Fraschini or Forloni, claims 6 and 7 over Manrique in view of Yoshimura,
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Application 13/613,975
Uehara, either Fraschini or Forloni, and Kong, and claim 11 over Manrique
in view of Yoshimura, Uehara, either Fraschini or Forloni, and Mazzola.
OPINION
We affirm the rejections.
The Appellants argue the claims as a group, even though some
dependent claim rejections include an additional reference (App. Br. 3—7).
We therefore limit our discussion to one claim, i.e., claim 1. Claims 2—15
stand or fall with that claim. See 37 C.F.R. § 41.37(c)(l)(iv) (2012).
Manrique discloses a multilayer film which can comprise 1) a release
layer (which corresponds to the Appellants’ outer layer) made of a
polypropylene-ethylene interpolymer having less than about 60% total
crystallinity, 2) a linear low density polyethylene (LLDPE) core layer having
a density of 0.918 g/cm3 and a melt index of 0.85 g/10 min, and 3) a cling
layer (which corresponds to the Appellants’ inner layer) made of
polyethylene having a density of about 0.85 to about 0.91 g/cm3 flflf 62—64,
97). Regarding the multilayer film thickness, Manrique discloses (124):
[Ajlthough many compositions are employed for film
applications such as flexible packaging, or wrapping purposes,
the need still exists for cast or blown multilayer films having an
appropriate balance of properties. Such properties include, for
example[,] stretch, tear, cling, processability, impact resistance,
elasticity, puncture, tensile, as well as, recovery, shrink
characteristics, vacuum drawability abuse or implosion
resistance. It would be advantageous if such films could be
made having total thicknesses of from about 10 to about
50 microns.
Manrique’s particularly preferred maximum multilayer film thickness is
about 50 microns (1 52).
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Application 13/613,975
Yoshimura discloses a multilayer film comprising a crystalline
propylene/a-olefm copolymer having a Vicat softening point of not less than
100 °-C (col. 15,11. 47-57).
Uchara discloses a linear low density polyethylene film having a
density of 0.910—930 g/cm3, a melt index of 0.5—5.9 g/10 min, and good
stretchability (| 27).
Forloni discloses a package-application heat-shrinkable multilayer
film comprising 1) a microlayer sequence of repeating
(co)polyamide/(co)polyamide, (co)polyamide/(co)polyamide/(co)polyamide,
(co)polyamide/ethylene-vinyl alcohol copolymer, or
(co)polyamide/ethylene-vinyl alcohol copolymer/(co)polyamide
microlayers, 2) an outer polyolefin or thermoplastic (co)polyester layer, and
3) a tie layer between the microlayer sequence and the outer layer flflf 6—9).
Fraschini discloses a package-application heat-shrinkable multilayer
film comprising an outer heat-sealable polyolefin layer, an inner gas barrier
layer, and an outer abuse resistant layer, where the inner layer or the outer
abuse resistant layer is a polyamide layer comprising a major portion of one
or more amorphous polyamides flflf 16—19).
Forloni and Fraschini disclose a heat-shrinkable film thickness of
about 20 to about 120 pm and heat-shrink bag thicknesses of 40-120 pm
(Forloni 1107; Fraschini 1122). Fraschini also discloses that conventional
package-application flexible heat-shrinkable films typically have a 40-
160 pm thickness (1 5).
The Appellants assert that Manrique “specifically does not teach an
inner layer that comprises linear low density polyethylene that has a melt
index of less than 4.0 g/10 minutes” (App. Br. 4), and “there would be no
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Application 13/613,975
motivation or teaching in Uehara to replace an LDPE in a cling layer of
Manrique with LLDPE, as opposed to any other layer” (Reply Br. 3).
Manrique discloses in Comparative Example 4 a conventional cling
layer made of 95% LLPDE (density 0.918 g/cm3, melt index 0.85 g/10 min)
and 5% polyisobutylene flflf 2, 97, 98).1 *Manrique’s evidence shows that
compared to Manrique’s cling layer, the conventional cling layer has inferior
stretch cling but comparable unwinding noise (1 98). That evidence would
have indicated to one of ordinary skill in the art that although the
conventional cling layer’s stretch cling is somewhat inferior to that of
Manrique’s cling layer, the conventional cling layer would function
effectively in Manrique’s multilayer film. See In re Applied Materials, Inc.,
692 F.3d 1289, 1298 (Fed. Cir. 2012) (“A reference must be considered for
everything that it teaches, not simply the described invention or a preferred
embodiment.”). Moreover, Uehara would have indicated to one of ordinary
skill in the art that such a cling layer would provide the beneficial property
of good stretchability (| 27).
The Appellants argue that 1) “there is no suggestion or motivation to
modify the films of Manrique with the teachings of Fraschini or Forloni
because the release layer, core layer, and cling layer of Manrique are not
made from amorphous polymers, and while it may have been obvious to
make shrink films from amorphous materials such as amorphous
polyamides, of this thickness, that knowledge would not have led the person
of ordinary skill in the art to believe that the shrink films of Manrique could
1 The Appellants’ Specification states that “[additional [inner layer]
materials may be blended with the LLDPE and/or mLLDPE” (Spec. 7:27—
28).
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Application 13/613,975
simply be made thicker for use in thermoforming applications” (Reply
Br. 4), and 2) “[cjhanging the film thickness to be greater than
100 micrometers as presently claimed would change the balance of
properties in a manner not desired by Murakami and this would destroy its
invention” (App. Br. 6).
Regarding the prior art, the Appellants’ Specification states that “[f]or
flexible thermoformed packaging, coextrusion is usually used due [to] the
complexity of the structure resulting from the presence of polyamide (PA) or
polypropylene (PP) layers which are generally considered to be
indispensable due to their good thermo mechanical properties that
allows good thermoformability” (Spec. 1:14—17). Manrique discloses that
“[t]he multilayer films of the present invention may also be pre-formed by
any known method, such as, for example, by extrusion thermoforming, with
respect to the shape and contours of the product to be packaged” (1 85).
Manrique, therefore, would have indicated to one of ordinary skill in the art
that like the amorphous polyamide films referred to by the Appellants,
Manrique’s multilayer film is suitable for thermo forming applications,
including applications which require a multilayer film thickness greater than
Manrique’s particularly preferred 50 pm thickness (1 52), such as a
thickness of at least 100 pm.2,3
2 The Appellants’ preferred film total thickness range is 30—250 pm
(Spec. 8:21—22), which overlaps Manrique’s particularly preferred
multilayer film thickness range of at least about 10 pm to at most 50 pm
(1 52).
3 Such films would have the properties corresponding to their compositions
and thicknesses, including the probe penetration recited in the Appellants’
independent claim 14. See In re Papesch, 315 F.2d 381, 391 (CCPA 1963)
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Accordingly, we are not persuaded of reversible error in the
rejections.
DECISION/ORDER
The rejections under 35 U.S.C. § 103 of claims 1—5, 8—10, and
12—15 over Manrique in view of Yoshimura, Uehara and either Fraschini or
Forloni, claims 6 and 7 over Manrique in view of Yoshimura, Uehara, either
Fraschini or Forloni, and Kong, and claim 11 over Manrique in view of
Yoshimura, Uehara, either Fraschini or Forloni, and Mazzola are affirmed.
It is ordered that the Examiner’s decision 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).
AFFIRMED
(“From the standpoint of patent law, a compound and all of its properties are
inseparable; they are one and the same thing”).
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