13364385 (P.T.A.B. May. 23, 2016)

Ex Parte George et al

Patent Trial and Appeal BoardMay 23, 2016

13364385 (P.T.A.B. May. 23, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/364,385 02/02/2012 157 7590 05/25/2016 Covestro LLC 1 Covestro Circle PITTSBURGH, PA 15205 FIRST NAMED INVENTOR Emmanuel George 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. BMS 122001/MD09-30/09-3 l 1384 EXAMINER W ASHVILLE, JEFFREY D ART UNIT PAPER NUMBER 1766 NOTIFICATION DATE DELIVERY MODE 05/25/2016 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): veronica. thompson@covestro.com US-IPR@covestro.com laura.finnell@covestro.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte EMMANUEL GEORGE, MARK A. KOSHUTE, BRIAN L. NEAL, CARL THOMPSON, and ADONA MARCUM Appeal2014-008068 Application 13/364,385 Technology Center 1700 Before KAREN M. HASTINGS, GEORGE C. BEST, and N. WHITNEY WILSON, Administrative Patent Judges. BEST, Administrative Patent Judge. DECISION ON APPEAL The Examiner finally rejected claims 1-18 of Application 13/364,385 under 35 U.S.C. Â§ 103(a) as obvious. Final Act. (Aug. 23, 2013). Appellants 1 seek reversal of these rejections pursuant to 35 U.S.C. Â§ 134(a). We have jurisdiction under 35 U.S.C. Â§ 6(b). For the reasons set forth below, we REVERSE. 1 Bayer MaterialScience LLC is identified as the real party in interest. Appeal Br. 1. Appeal2014-008068 Application 13/364,385 BACKGROUND The '385 Application describes polyurethane foams with decreased aldehyde emissions and a process for making these polyurethane foams. Spec. 1 :7-10. According to the Specification, the decrease in aldehyde emissions improves air quality for end users of car seats and beds constructed with these polyurethane foams. Id. at 1: 15. Claim 1 is representative of the '385 Application's claims and is reproduced below from the Claims Appendix to the Appeal Brief: 1. A polyurethane foam comprising the reaction product of: (1) a polyisocyanate component, with (2) an isocyanate-reactive component comprising: (a) at least one polyether polyol having a functionality of from 2 to 6, an OH number of from 18 to 238, and a number average molecular weight of from 160 to 8000; and (b) at least one filled polyol having an OH number of 18 to 32, a number average molecular weight of 2000 to 8000, and containing from 20 to 60% by weight of solids, which is selected from the group consisting of (i) styrene-acrylonitrile polymer polyols, (ii) polyisocyanate polyaddition (PIP A) polyols, and (iii) mixtures thereof; in the presence of (3) at least one blowing agent; ( 4) at least one catalyst; and ( 5) at least one surfactant; wherein ( 1) said polyisocyanate component additionally comprises ( 6) from 0.5 to 8 parts of trimerized hexamethylene diisocyanate per 100 parts of polyisocyanate, or (2) said isocyanate-reactive component additionally comprises (7) from 2 Appeal2014-008068 Application 13/364,385 2 to 5.5 parts of at least one polyhydrazodicarbonamide dispersion polyol per 100 parts of isocyanate-reactive component. Appeal Br. 13. REJECTION On appeal, the Examiner maintains the following rejection: Claims 1-18 are rejected under 35 U.S.C. Â§ 103(a) as unpatentable over the combination of Jenny2 and Dahm. 3 Final Act. 2. DISCUSSION Appellants argue for the reversal of the rejection to dependent claims 2---6, 8-12, and 14--18, as well as independent claims 7 and 13, on the basis of limitations present in independent claim 1. See Appeal Br. 2, 4--12. We, therefore, limit our analysis to claim 1 for the rejection of these claims. Claims 2-18 will stand or fall with claim 1. 37 C.F.R. Â§ 41.37(c)(l)(iv). Claim 1 is directed to a polyurethane foam comprising an isocyanate reactive component, which "additionally comprises ... from 2 to 5.5 parts of ... polyhydrazodicarbonamide dispersion polyol per 100 parts of isocyanate-reactive component." Appellants argue that the Examiner erred by finding that the combination of Jenny and Dahm describes or suggests such an isocyanate-reactive component, with the requisite parts of a poly- hydrazodicarbonamide dispersion polyol, in polyurethane foam. Appeal Br. 4---6, 8-10; Reply Br. 1-10, 12, and 13. 2 US 2008/0125507 Al, published May 29, 2008. 3 US Patent No. 4,042,537, issued August 16, 1977. 3 Appeal2014-008068 Application 13/364,385 The Examiner found that Jenny teaches all the limitations of claim 1 except that the reference is silent regarding a polyhydrazodicarbonamide dispersion polyol. Non-Final Act. 4 (Feb. 15, 2013). The Examiner found Dahm teaches "that the inclusion of at least 1 to 10% per 100 part[ s] polyol of hydrazines in polyurethane foams is required to improve properties." Id. at 4 (citing Dahm 10:27). The Examiner determined that because the disclosed range overlaps Appellants' claimed range of "2 to 5. 5 parts of ... polyhydrazodicarbonamide dispersion polyol per 100 parts of isocyanate- reactive component", claim 1 is prima facie obvious. Ans. 11. The Examiner asserted that Appellants' arguments to the contrary ignore Dahm' s teaching of "the final concentration [of polyhydrazodicarbonamide dispersion polyol] used .... " Id. at 12. These findings, conclusion of law, and assertion are insufficient to support the Examiner's rejection for two reasons. First, the Examiner's position regarding the final concentration of polyhydrazodicarbonamide dispersion polyol used in the isocyanate-reactive component is inconsistent with Dahm's disclosure. As Appellants argue, Dahm's teaching of the inclusion of at least 1 to 10% of polyhydrazo- dicarbonamide per 100 parts by weight of hydroxyl compound, see Dahm 10:27-30, is in reference to the solids content of an intermediate poly- hydrazodicarbonamide dispersion. See Reply Br. 4 (citing Dahm 9:67- 10:58); see also Dahm 17:34--35; 18:34--35 (last row of Examples 6-13 Table identifying amounts of "Solids content (%by weight)" of polyether dispersions). Dahm teaches that the "preparation of the dispersions may immediately precede foam formation", Dahm 6:67---68, and exemplifies the preparation of the intermediate dispersions in section "a. Preparation of the polyether dispersion" of Examples 1-3, 5-15, and 20-24. See, e.g., Dahm 4 Appeal2014-008068 Application 13/364,385 14:37---66. Teaching subsequent use of the intermediate, Examples 16-19 and Section "b. Production of ... foam" in Examples 1-3, 5-8, 14, 15,4 and 20-24 relate to production of polyurethane foams using the polyether dispersions prepared in Section "a." See, e.g., Dahm 14:67-15:4. Therefore, the disclosure that the Examiner relies upon, i.e., Dahm 10:27, does not teach or suggest the final concentration of polyhydrazo- dicarbonamide dispersion polyol in the claimed isocyanate-reactive component. Second, Dahm teaches that the final concentration of polyhydrazo- dicarbonamide dispersion polyol in the isocyanate-reactive component lies outside the claimed range. Reply Br. 6-11. For example, the lowest concentration of the claimed polyol that Dahm teaches is at least 33 parts of polyhydrazodicarbonamide dispersion polyol per 100 parts of isocyanate- reactive component. See id. at 8-9 (citing Dahm 23:5--49 (Example 21)). For the reasons set forth in the Briefs and above, Dahm's range of 1 to 10% of polyhydrazodicarbonamide per l 00 parts of hydroxyl compound does not teach or suggest "2 to 5.5 parts of ... polyhydrazo-dicarbonamide dispersion polyol per 100 parts of isocyanate-reactive component" as claimed. On this 4 Appellants argue "that the range of 1 to 10% mentioned by the Examiner is not the amount of polyhydrazodicarbonamide dispersion added to the isocyanate-reactive component[,] which is then used to prepare a polyurethane foam." Reply Br. 4 (emphasis added). We note that Examples 5-8, 14, and 15 do not disclose dispersion addition to an isocyanate-reactive component or substantial dilution of the intermediate polyether dispersion prior to production of the polyurethane foam. See, e.g., Dahm 17:9-56. Even without any such addition or subsequent dilution, Dahm teaches that the disclosed parts by weight of the polyhydrazodicarbonamide dispersion used to produce the foam in each of these Examples exceeds the range specified in claim 1. Id.; see also Reply Br. 8, Table A. 5 Appeal2014-008068 Application 13/364,385 record, a preponderance of evidence demonstrates that the Examiner erred in finding that the combination of Jenny and Dahm teaches all the limitations recited by claim 1. We, therefore, reverse the rejection of claims 1-18 of the '3 85 Application because the Examiner has not properly made out a prima facie case of obviousness. CONCLUSION For the reasons set forth above, we reverse the rejection of claims 1- 18 of the '385 Application. REVERSED 6