Ex Parte Heikkila

Patent Trials and Appeals Board

Mar 28, 2019

12276947 - (D) (P.T.A.B. Mar. 28, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/276,947 11/24/2008 Kurt E. Heikkila
134675 7590 04/01/2019
Tundra Composites, LLC
1700 Buerkle Road
White Bear Lake, MN 55110
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.
492.000lUSDl 5112
EXAMINER
NERANGIS, VICKEY M
ART UNIT PAPER NUMBER
1768
NOTIFICATION DATE DELIVERY MODE
04/01/2019 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):
fmorgan@tundracompanies.com
mdipietro@tundracompanies.com
eofficeaction@appcoll.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KURT E. HEIKKILA
Appeal2017-006261
Application 12/276,947
Technology Center 1700
Before JAMES C. HOUSEL, CHRISTOPHER L. OGDEN, and
DEBRAL. DENNETT, Administrative Patent Judges.
OGDEN, Administrative Patent Judge.
DECISION ON APPEAL 1
Appellant2 appeals under 35 U.S.C. § 134(a) from the Examiner's
decision rejecting claims 108-127 in the above-identified application. 3 We
have jurisdiction under 35 U.S.C. § 6(b ). We affirm.
1 The appeal record includes the following: Specification, Nov. 24, 2008
("Spec."); Final Office Action, May 24, 2016 ("Final Action"); Appeal Brief,
Sept. 21, 2016 ("Appeal Br."); Examiner's Answer, Dec. 15, 2016
("Answer"); Reply Brief, Feb. 9, 2017 ("Reply Br.").
2 According to the Appeal Brief, the real party in interest is Tundra
Composites, LLC. Appeal Br. 3.
3 The Examiner has withdrawn claims 1-71 and 87-99 from examination.
Final Action 1.
Appeal2017-006261
Application 12/276,947
I. BACKGROUND
Appellant's invention relates to an improved metal-polymer
composite. Spec. 1, 3. According to Appellant, the composite materials
"have improved rheology (e.g., melt flow) and improved viscoelastic (e.g.,
tensile extension) character." Appeal Br. 3. The Specification states that the
composite is not simply an admixture of metal and polymer, but a blend that
"resists separation" and "does not display the properties of the individual
components." Id. at 1-2. A coating on the metal particles comprises non-
reacted ends that "reduce the friction between particles preventing gouging
and allowing for greater freedom of movement between particles." Id. at 34.
Independent claim 108, which we reproduce below, is representative:
108. A shotgun shot or projectile comprising a metal
and polymer viscoelastic composite, the composite comprising:
(a) about 40 to about 96 vol.% of a metal particulate, the
particulate having a surface, the particulate comprising a pre-
treated particulate with an exterior coating on the surface of
about 0.005 to about 4 wt.% of an interfacial modifier, the
interfacial modifier coating comprising a non-reacted end of the
interfacial modifier to allow greater freedom of movement
between particulates compared to a composite with particulate
bonded to polymer or uncoated particulate; and
(b) a polymer phase;
wherein the viscoelastic composite is thermoplastic and has a
tensile elongation of about at least 5% and less than 10 wt. % of
the metal particulate is less than 10 microns based on a metal
particle distribution.
Appeal Br. 39 ( emphasis of key phrase added). Independent claim 117
mirrors claim 108, except that it more narrowly recites a composite
"consisting of' parts (a) and (b). Id. at 40. Claims 109-116 and 126 depend
directly or indirectly from claim 108, and claims 118-125 and 127 depend
directly or indirectly from claim 117. Appeal Br. 3 9--41.
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The Examiner's grounds of rejection are as follows:
Claims 126 and 127 are rejected under 35 U.S.C. § 112, paragraph 2,
as being indefinite. Answer 3.
Claims 108-113, 117-122, 126, and 127 are rejected under 35 U.S.C.
§ I03(a) as being unpatentable over Belanger4 in view of Ohkawa5 and
Bray. 6 Id. at 3---6.
Claims 115 and 124 are rejected under 35 U.S.C. § I03(a) as being
unpatentable over Belanger in view of Ohkawa, Bray, and Davis. 7 Id. at 7.
Claims 108-115, 117-124, 126, and 127 are rejected under 35 U.S.C.
§ I03(a) as being unpatentable over Amick8 in view of Ohkawa and Bray.
Id. at 7-10.
Claims 116 and 125 are rejected under 35 U.S.C. § I03(a) as being
unpatentable over Amick in view of Ohkawa, Bray, and Faires. 9 Id. at 10. 10
Appellant argues the claims as a group under each rejection, focusing
on claims 108 and 117. See Appeal Br. 19-3 7. Appellant adds no substantive
argument with respect to dependent claims 115, 116, 124, or 125. See id. at
26-27, 36. While Appellant makes specific arguments directed to dependent
claims 110, 111, 119, 120, 126, and 127, these arguments are substantially
the same as with respect to claims 108 and 117. See Appeal Br. 3 7.
Therefore, under 37 C.F.R. § 4I.37(c)(l)(iv), we limit our discussion under
4 Belanger et al., US 5,237,930 (issued Aug. 24, 1993) ("Belanger").
5 Ohkawa et al., US 4,891,399 (issued Jan. 2, 1990) ("Ohkawa").
6 Bray et al, US 6,048,379 (issued Apr. 11, 2000) ("Bray").
7 Davis et al., US 2001/0050020 Al (published Dec. 13, 2001) ("Davis").
8 Amick, US 2003/0143099 Al (published Jul. 31, 2003).
9 Faires, Jr., US 4,173,930 (issued Nov. 13, 1979) ("Faires").
10 The Examiner has withdrawn a rejection under the written description
requirement of 35 U.S.C. § 112. Answer 11.
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§ 103 to the grounds of rejection as they relate to independent claims 108
and 117. Claims 109-116 and 126 fall with claim 108, and claims 118-125
and 127 fall with claim 117.
II. DISCUSSION
A. Indefiniteness
Claims 126 and 127 recite the shotgun shot or projectile of claims 108
or 117, respectively, "wherein the interfacial modifier is not reactively
bonded to the polymer phase of the composite." Appeal Br. 41. The
Examiner states that, according to a declaration Appellant has submitted,
"the interfacial [modifier] has 'almost no bond' to polymer, ... which
suggests that there is some bonding." Answer 12 (citing Williams Deel.,
Dec. 16, 2014). Thus, the Examiner determines that "it is unclear if the
'reactively bonded' bonds are only formed from covalent bonding or any
other bonding which, within the broadest reasonable interpretation, can
include ionic, Van der Waals, inter alia." Id. at 3.
Appellant argues that the Examiner fails to demonstrate a prima facie
case of indefiniteness because "the polymer is not reacted with the particle
due to the presence of the interfacial modifier coating." Appeal Br. 19 11 ; see
also id. at 4 (citing Spec. 34:30-31 ("Coupling is maximized as the number
11 Appellant purports to "repeat[] and bring[] forward the previous
argument" on this issue, presumably from a prior filing. Appeal Br. 19.
However, we do not consider any argument that is not included in the
Appeal Brief. See 37 C.F.R. 4I.37(c)(iv) ("[A]ny arguments or authorities
not included in the appeal brief will be refused consideration by the Board
for purposes of the present appeal.").
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Application 12/276,947
of chemical bonds between the particulate surface and polymer is
maximized.")).
This argument is not persuasive of reversible error. Appellant has not
clarified what kind of reactive bonding claims 126 and 127 exclude between
the interfacial modifier and the polymer phase. Because the claims contain
an unclear phrase, we affirm the Examiner's rejection. See Ex parte
McAward, Appeal 2015-006416, 2017 WL 3669566, at *5 (PTAB Aug. 25,
2017) (precedential) (the USPTO considers a claim indefinite "when it
contains words or phrases whose meaning is unclear." ( quoting In re
Packard, 751 F.3d 1307, 1314 (Fed. Cir. 2014))).
B. Obviousness
Because they present very similar issues, we consider the obviousness
rejections based on Belanger and Amick together. According to the
Examiner, "Belanger discloses a frangible practice ammunition comprising a
mixture of fine copper powder and thermoplastic nylon resin." Answer 4
( citing Belanger abstract). The Examiner finds that Belanger discloses all the
limitations of claim 108, except (i) "the amount of wetting or coupling
agent" (which the Examiner identifies as the interfacial modifier), and (ii)
that, although Belanger teaches a tensile elongation of at least 1. 7%, 12 it
does not specifically disclose that the elongation is at least 5%. Id. ( citing
Belanger 3:4--7, 6:52---68).
Similarly, the Examiner finds that Amick "discloses articles such as
[a] bullet or shot formed from powders containing tungsten and at least one
12 According to Belanger, "If the percentage of elongation before breaking is
too low, the projectile will break up when deformed by the rifling of the
weapon." Belanger 3:9-12.
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binder." Answer 7 ( citing Amick abstract). The Examiner finds that Amick
discloses all the limitations of claim 108, except "(i) pre-treating the metal
particle with an interfacial modifier or (ii) the tensile elongation of the
composite which forms the bullet or shot." Id. at 7-8.
For the presence and amount of interfacial modifier in both rejections,
the Examiner relies primarily on Ohkawa. Id. at 4--5, 8-9. Ohkawa discloses
a thermoplastic molding composition with a metallic filler, and teaches
pretreating the filler particles with a "water repellant agent," which the
Examiner identifies as the interfacial modifier. Id. at 4, 8 ( citing Ohkawa
7: 11-13). According to the Examiner, Ohkawa teaches that "the water
repellant agent provides for good moldability, good molded appearance, high
mechanical properties, dimensional stability, and resistance against rusting"
when used in a concentration of 0.01-5 wt.% based on the amount of the
metallic filler. Id. (citing Ohkawa 1 :40-2:60, 2:9-17, 8:3-10).
Ohkawa teaches that
[ w ]hen the amount of the water repellent agent is too small, no
sufficient coupling effect can be exhibited between the surface
of the filler and the matrix phase so that the resultant molding
composition would be poor in the moldability. When the
amount thereof is too large, on the other hand, a phenomenon of
slipping may be caused due to the excessively strong effect of
lubrication between the filler surface and the matrix phase
leading to disadvantages ....
Ohkawa 8: 10-18. The Examiner finds that this passage "strongly suggests
that the water repellent agent is not reacted with [ the polymer] matrix
because there is lubrication between the filler surface and matrix phase (i.e.,
not 'excessive lubrication') when used in lower amounts like claimed and
therefore [ the composition] provides the claimed 'greater freedom of
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movement."' Answer 4--5 (citing Ohkawa 8: 14--26); accord id. at 8. Thus,
the Examiner determines,
Given that both Belanger and Ohkawa are drawn to
thermoplastic compositions comprising metallic filler treated
with wetting or coupling agent and further given that Ohkawa
teache[s] adding the wetting or coupling agent in an amount of
0.01-5 wt% based on amount of metallic filler, it would have
been obvious to one of ordinary skill in the art to [add] the
wetting or coupling agent of Belanger in an amount that
overlaps with claimed amounts.
Id. at 5; see also id. at 8-9 (with respect to the combination with Amick).
For the tensile elongation limitation, the Examiner turns to Bray,
which, according to the Examiner, "teaches that the tensile elongation is at
least 1.7%," because it teaches the use of Nylon 11 or Nylon 12 as the
thermoplastic polymer, 13 which have 390% and 320% elongation at break,
respectively. Id. at 5 (citing Bray 3:4--7, Table 2); accord id. at 9. The
Examiner determines,
Given that the combination of Belanger and Ohkawa teaches
the claimed composite ingredients consisting of thermoplastic
polymer and claimed metal particulate treated with an
interfacial modifier and further given that Nylon 11 and 12 are
ductile and highly elongatable matrix materials having tensile
elongation of 390% and 320%, respectively, as taught by Bray,
it would have been obvious to one of ordinary skill in the art to
obtain a composite comprising Nylon 11 or 12 mixture having
claimed tensile elongation of at least 5% as the interfacial
modifier provides for improved flexibility and mechanical
properties as taught by Belanger and Ohkawa, respectively.
13 Belanger and Ohkawa also suggest using Nylon 11 or 12. See Belanger,
Abstract, Ohkawa 4: 11-26. Amick teaches the use of nylon generally. See
Amick ,r 74.
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Application 12/276,947
Id. at 5-6; see also id. at 9 ( with respect to the combination with Amick and
Ohkawa).
Appellant argues that the Examiner reversibly erred in finding that the
prior art teaches (1) pretreating with an interfacial modifier, and (2) that the
composition resulting from the prior art combination has an interfacial
modifier comprising a non-reacted end, with the particle size, rheology
properties, and viscoelastic properties recited in the claims. See Appeal Br.
20, 28. For the reasons discussed below, we do not find these arguments
persuasive.
1. Whether the cited art teaches pretreating the particles
with an "interfacial modifier"
Appellant argues that the cited prior art references do not teach an
interfacial modifier as claim 108 recites, but instead, the references only
disclose the use of a "reactive coupling agent." Appeal Br. 7-8. According to
Appellant, a reactive coupling agent forms bonds "between the particles and
the polymer" and thereby "prevents formation of the rheology and
viscoelastic properties as claimed." Id. at 8. In particular, Appellant argues
that Ohkawa "uses a reactive coupling agent," and incorporating this agent
into Belanger's composition "would not result in the Belanger composite
exhibiting the presently claimed 'greater freedom of movement' of the
particles within the polymer phase." Id. at 22; see also id. at 33 (making a
similar argument with regard to combining Ohkawa with Amick). According
to Appellant, there is nothing in Ohkawa to support the assumption that the
water repellant agent is an interfacial modifier. Id.
These arguments do not persuade us that the Examiner reversibly
erred in identifying the water repellent agent in Ohkawa as an interfacial
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modifier. In construing the term interfacial modifier, we apply "the broadest
reasonable meaning of the words in their ordinary usage as they would be
understood by one of ordinary skill in the art, taking into account whatever
enlightenment by way of definitions or otherwise that may be afforded by
the written description contained in the applicant's specification." In re
Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997). The Specification states, "We
believe an interfacial modifier is an organic material that provides an
exterior coating on the particulate promoting the close association of
polymer and particulate." Spec. 11: 13-15. Its purpose is "to improve the
association of the particulate with the polymer," id. at 4: 17-18, "to promote
composite formation," id. at 7: 13-14, and "to overcome the forces that
prevent the matrix from forming a substantially continuous phase of the
composite," id. at 11 :9-11. An interfacial modifier may "fall into broad
categories ... dictated by metal particulate, polymer, and application." Id. at
33:20-23. Moreover, an interfacial modifier need not increase the melt flow
of the composite. See id. at 42:14--15, 43:7-8 (identifying SIA059I.O as an
interfacial modifier and stating that it "did not exhibit an increase in melt
flow").
In light of these passages in the Specification, and others that the
Examiner has identified, see Answer 18, we determine that the broadest
reasonable interpretation of the term interfacial modifier encompasses any
particle coating that aids in binding together the particles with the
surrounding polymer matrix. This interpretation would not disqualify a
"reactive coupling agent," or the water repellent agent of Ohkawa, as
interfacial modifiers. Thus, we find no reversible error in the Examiner's
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Application 12/276,947
determination that Ohkawa teach an interfacial modifier as claims 108 and
117 recite.
Appellant also argues that Belanger only discloses a reactive coupling
agent, and not an interfacial modifier, see Appeal Br. 19-20, that Belanger
contains no disclosure about pretreatment with the wetting agent, see id. at
21-22; see also Reply Br. 5 (arguing that pretreatment is a structural
limitation), and that neither Amick nor Bray discloses a particle coating of
any kind, see Appeal Br. 28, 30, 35.
These arguments do not persuade us of reversible error in the
Examiner's rejections. For the interfacial modifier limitation, the Examiner
does not rely solely on Belanger, Amick, or Bray, but on their combination
with Ohkawa. Id. at 20, 23. Moreover, Ohahwa clearly teaches pretreating
the particles with the water repellent agent. See Ohkawa 7:6-9 ("[I]t is
essential that the filler is subjected in advance to a surface treatment with a
water repellent agent in a specific amount.").
2. Whether the prior art combination has the properties
recited in the claims
Appellant argues that the prior art combination fails to teach the
properties of the composite material that are recited in claims 108 and 117,
including a non-reacted end of the interfacial modifier, the recited particle
size, thermoplastic character, and the tensile elongation. Appeal Br. 8-15,
21-25, 28-35. In particular, Appellant cites evidence found in submitted
declarations that discuss experiments using 3-y-(2-aminoethylamino) propyl
trimethoxy silane ( or the related triethoxy silane) as coupling agents in a
composite material. See id. at 9-15; Reply Br. 2-3; see also Ohkawa 7:30-
31 (listing these compounds as preferred silane coupling agents). According
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to Appellant, these experiments show that when one of these silanes is the
coupling agent, there is a reaction between the silane and the polymer, such
that the "composite material fails to exhibit the rheology and viscoelastic
character of the claimed materials." Appeal Br. 10; see also id. at 11.
The Examiner has shown, persuasively, that the combined teachings of
the prior art references would have directed a person of ordinary skill in the
art to a composition that has a range of properties overlapping those of the
composite material recited in claims 108 and 11 7. As outlined in the
discussion above, the Examiner demonstrates that a skilled artisan would
have used one of the interfacial modifiers that Ohkawa teaches, in the recited
amount, in order to improve moldability, molded appearance, mechanical
properties, dimensional stability, and rust resistance. See Answer 4, 9. A
skilled artisan would also have had reason to combine the selected interfacial
modifier with a compatible polymer, such as Nylon 11 or 12, which Bray
indicates would achieve the recited tensile elongation. See id. at 5---6, 9.
By showing that the prior art motivates a composite material that is
chemically the same or substantially the same as the recited material, the
Examiner has established a prima facie case of obviousness, and is entitled
to presume that the prior art composite has the same inherent properties as
the claimed composition. See E.I. DuPont de Nemours & Co. v. Synvina
C. V., 904 F.3d 996 (Fed. Cir. 2018) ("[A] primafacie case of obviousness
typically exists when the ranges of a claimed composition overlap the ranges
disclosed in the prior art." (quoting In re Peterson, 315 F.3d 1325, 1329
(Fed. Cir. 2003))). In such cases as this, "the PTO can require an applicant to
prove that the prior art products do not necessarily or inherently possess the
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characteristics of his claimed product." In re Best, 562 F.2d 1252, 1255
(CCPA 1977).
Appellant has not presented evidence sufficient to rebut this
presumption, for at least three reasons. First, Ohkawa teaches a broad range
of interfacial modifiers, not just 3-y-(2-aminoethylamino) propyl trimethoxy
or triethoxy silane. See Ohkawa 7:9---61. The Examiner finds that, given a
polymer binder and metal filler, a person of ordinary skill in the art would
have been able and motivated to select an appropriate coupling agent, from
among those that Ohkawa discloses, that provides the desired thermoplastic
character and moldability. See Answer 13. Appellant's submitted evidence
relates to the properties of composite materials using two closely related
silanes in combination with one of a small number of binders. See Appeal
Br. 9-15; Reply Br. 2-3. This evidence does not show that any other
combination of water repellant agent and binder, which the cited prior art
teaches, would inherently lack the thermoplastic and tensile elongation
properties recited in claims 108 or 11 7.
Second, Appellant has not shown a direct comparison between the
experimental conditions ( e.g., mixing time and temperature) of those
experiments, and the conditions disclosed in Ohkawa for coating the
particles and incorporating them into the binder.
Third and finally, Appellant has not pointed to sufficient evidence to
support the argument that "Ohkawa uses the wrong particle size" to achieve
the properties recited in claims 108 and 117. Appeal Br. 22. According to
Appellant, "[p ]articles much smaller than 10 microns are difficult to coat and
result[] in excess unnecessary coating materials." Id. at 24--25; see also id. at
30-32 (regarding the combination of Amick, Ohkawa, and Bray). However,
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as the Examiner correctly finds, Ohkawa teaches a particle size range of O .1-
20 microns, which overlaps the particle size distribution recited in claims
108 and 117. See Answer 20-21. Appellant has not pointed to evidence
sufficient to show that Ohkawa would have dissuaded a person of ordinary
skill in the art from using particles in the upper end of this range. See DePuy
Spine, Inc. v. Medtronic Sofamor Danek, Inc., 567 F.3d 1314, 1327 (Fed. Cir.
2009) ("A reference does not teach away ... if it merely expresses a general
preference for an alternative invention but does not 'criticize, discredit, or
otherwise discourage' investigation into the invention claimed." ( citing In re
Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004))).
Specifically regarding claim 117, Appellant argues that the closed
transitional phrase "consisting of' excludes various additives found in the
cited references, including a lubricant disclosed in Belanger; antioxidant,
lubricant, and carbon black additives disclosed in Ohkawa; a tin binder and
lubricant disclosed in Amick; and steel fiber disclosed in Bray. Appeal Br.
23-24 ( citing Belanger 5:37--42; Ohkawa 13: 1-80; Amick ,r 84, Bray claims
1, 19, 33, 43, 62).
This argument is not persuasive of reversible error. We agree with the
Examiner that a person of ordinary skill in the art would have regarded these
additives as optional. See Answer 23-24; see also Belanger 5:24 (disclosing
"a wetting agent or lubricant" in the alternative), 7:9-15 & 8:13-14
( dependent claim 8 adds a lubricant as an additional limitation to the metal-
polymer composite of claim 1 ); Ohkawa 9:67-10:7 ("If desired ... the
invention can be admixed with various kinds of additives ... according to
the intended application .... "); Amick ,r 1 (disclosing "at least one binder,"
which contemplates just one binder), ,r 83 ("[Metal-polymer composite]
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may, but does not necessarily, include a relatively small component, such as
between approximately O and approximately 1 wt % of a suitable
lubricant."); Bray 9:23-25 (describing fibers as an additive to "a tungsten
powder/polymeric binder composite material" to achieve a specific benefit).
Also, as the Examiner correctly notes, the Examiner's obviousness
rationale does not require incorporating into Belanger or Amick every
component disclosed in the secondary references. See Answer 23-24; see
also In re Keller, 642 F.2d 413,425 (CCPA 1981) ("The test for obviousness
is not whether the features of a secondary reference may be bodily
incorporated into the structure of the primary reference .... Rather, the test
is what the combined teachings of the references would have suggested to
those of ordinary skill in the art.").
Appellant also argues, with respect to claim 11 7, that a skilled artisan
would have been unsuccessful in achieving the properties of the claimed
invention, because using particles larger than 10 microns would require the
addition of fibers, which claim 117 excludes. See Appeal Br. 24--25 ( citing
Ohkawa 3:16-27, 6:21-24, 11:62-67, 12:1-50, 12:59, 18:65, 22:95, 14 26:54,
30:56, 31:31, 32:30, claims 1, 2); see also id. at 30-32 (regarding the
combination of Amick, Ohkawa, and Bray).
This argument is not persuasive of reversible error. While most of
Ohkawa's examples use small particles lacking fibers, and Ohkawa teaches
that fibers may be added "[ w ]hen a particular high impact strength is
desired," Ohkawa 6:32, Appellant does not direct our attention to a teaching
14 Because line 95 does not exist, we assume the intended line is 22:65.
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in Ohkawa that fibers are necessary to achieve the recited thermoplastic or
viscoelastic character when the particles are larger than 10 microns.
For the above reasons, and based on the Examiner's findings and
conclusions as a whole which we find persuasive, the preponderance of the
evidence supports the Examiner's conclusion of obviousness, and Appellant
has not shown reversible error. We therefore affirm the rejection of claims
108-27 on all grounds.
DECISION
The Examiner's decision is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended. See 37 C.F.R. §§ 1.136(a)(l )(iv), 41.50([)
(2018).
AFFIRMED
15