Ex Parte Hustad et al

Patent Trial and Appeal Board

Jun 20, 2018

13397470 (P.T.A.B. Jun. 20, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/397,470 02/15/2012
14268 7590 06/22/2018
The Dow Chemical Company/Cantor Colburn LLP
20 Church Street
22nd Floor
Hartford, CT 06103-3207
Phillip Dene Rustad
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.
72336-US-NP
(RHA0079US)
1803
EXAMINER
RUMMEL, IAN A
ART UNIT PAPER NUMBER
1785
NOTIFICATION DATE DELIVERY MODE
06/22/2018 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
usptopatentmail@CantorColbum.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Exparte PHILLIP DENE RUSTAD, PETER TREFONAS III,
SHIH-WEI CHANG, and ERIN BETH VOGEL
Appeal2017-008252
Application 13/397,470
Technology Center 1700
Before KAREN M. HASTINGS, BRIAND. RANGE, and
MERRELL C. CASHION, JR., Administrative Patent Judges.
CASHION, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
This is an appeal under 35 U.S.C. § 134(a) from a non-final rejection
of claims 1-7 and 16-18. We have jurisdiction under 35 U.S.C. § 6.
We AFFIRM.
The claimed invention is directed to a polymer composition useful as
a surface modification layer in the production of self-assembled films. Spec.
Appeal2017-008252
Application 13/397,470
,r,r 6, 7, 36, 45--47. Claim 1 is illustrative of the subject matter on appeal and
is reproduced below:
1. A polymer composition, comprising a random copolymer derived
by reacting:
a monomer represented by formula ( 1):
H R 1
I I
C=C
I I
11 c=o
I
0
I
H (l)
where R1 is an alkyl group having 1 to 10 carbon atoms; or a
monomer having a structure represented by the formula (2):
H ll
I Y'
C'.=C
I I
n c=:=:o
I
0
I
R, (2}
where R1 is a hydrogen or an alkyl group having 1 to 10 carbon atoms
and R2 is a C1-10 alkyl, a C3_10 cycloalkyl, or a C?-10 aralkyl group; with a
monomer that has at least one fluorine atom substituent and that has a
structure represented by the formula (3):
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Appeal2017-008252
Application 13/397,470
H Ri
I I
C=C
I I
H c=o
I
0
I
R:~ (3)
where R1 is a hydrogen or an alkyl group having 1 to 10
carbon atoms and R3 is a C2-10 fluoroalkyl group; and where the
copolymer has a reactive endgroup that comprises a carboxylic
acid group, an epoxy group, a silane group, or a combination
comprising at least one of the foregoing groups; where the
reactive endgroup is along a chain backbone of the random
copolymer.
Appellants 1 (App. Br. 9) request review of the following rejections
from the Examiner's Non-Final Action dated May 18, 2016:
I. Claims 1--4, 6, and 16-18 rejected underpre-AIA 35 U.S.C. §
I03(a) as unpatentable over Cheng (US 7,521,090 Bl, issued April 21, 2009.
II. Claims 1-3, 5, and 7 rejected under pre-AIA 35 U.S.C. § I03(a)
as unpatentable over Toyooka (US 5,288,825, issued February 22, 1994).
Appellants do not argue any claim separate from the other in either
rejection. See generally App. Br. Accordingly, we select claim 1 as
representative of the subject matter before us for review on appeal for both
rejections and decide the appeal of both rejections based on the arguments
made by Appellants in support of the patentability of claim 1.
1 The real party in interest is identified as Rohm and Haas Electronic
Materials LLC and Dow Global Technologies LLC .. App. Br. 2.
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Appeal2017-008252
Application 13/397,470
OPINION
Prior Art Rejections
After review of the respective positions provided by Appellants and
the Examiner, we AFFIRM the Examiner's prior art rejections of claims 1-7
and 16-18 for the reasons presented by the Examiner. We add the following
for emphasis.
Rejection based on Cheng
Cheng is directed to polymer compositions useful as surface
modification layers ( orientation control layers) in the production of self-
assembled layers. Cheng col. 4, 11. 3 5-51. The Examiner finds Cheng
teaches a random copolymer composition derived from a monomer that has
at least one fluorine atom substituent (2,2,2-trifluoroethyl (meth)acrylate)
and a methacrylic acid monomer ( ethyl (meth)acrylate) that corresponds to
the subject matter of independent claim 1. Non-Final 3; Cheng col. 8, 1. 1-
col. 9, 1. 5. The Examiner determines that the inclusion of acrylic acid,
methacrylic acid and epoxide groups in the random copolymer would
necessarily result in polymer chains having a reactive carboxylic acid or
epoxy end-groups. Non-Final Act. 3--4.
Appellants argue that the reactive species in Cheng's polymer
compositions are not located at the chain ends and are therefore not end-
groups. App. Br. 12, 14; Reply Br. 3. Appellants further contend that
Cheng provides no details of end-groups for the disclosed polymer
composition embodiments Formulae 1 and 2. App. Br. 12; Reply Br. 5-6;
Cheng col. 8, 11. 5-25.
We are unpersuaded by these arguments. It is well settled that a
reference stands for all of the specific teachings thereof as well as the
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Appeal2017-008252
Application 13/397,470
inferences one of ordinary skill in the art would have reasonably been
expected to draw therefrom. See In re Fritch, 972 F.2d 1260, 1264---65 (Fed.
Cir. 1992). Chen discloses a surface modification technique relying on end-
group functionalization of polymers as known. Cheng col. 2, 11. 6-21.
Therefore, one skilled in the art would have inferred from this disclosure that
Cheng's surface modification polymers would also include reactive end-
groups as asserted by the Examiner. Non-Final Act. 3--4. Given this
disclosure, Appellants have not adequately explained why one skilled in the
art would not have expected Cheng's polymers to have reactive end-groups,
such as the ones noted by the Examiner, particularly as the polymerization
would have to terminate at some point for the polymer to perform its desired
function. Thus, Appellants have not pointed to error in the Examiner's
determination of obviousness.
Accordingly, we affirm the Examiner's prior art rejections of claims
1--4, 6, and 16-18 under 35 U.S.C. § 103 (a) based on Cheng for the reasons
presented by the Examiner and given above.
Rejection based on Toyooka
The Examiner finds Toyooka teaches a random copolymer made from
dodecafluoroheptyl methacrylate and methyl methacrylate, with the optional
inclusion of other (metha)acrylic monomers, including acrylic or
methacrylic acid. Non-Final Act. 2; Toyooka col. 2, 11. 50-53, 60-64, col. 3,
11. 8-26, claims 3, 8, and 9. The Examiner determined that it would have
been obvious to one skilled in the art to arrive to the claimed invention from
the disclosure of T oyooka because the inclusion of acrylic acid or
methacrylic acid in the random copolymer would necessarily result in
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Appeal2017-008252
Application 13/397,470
polymer chains having a reactive carboxylic acid or epoxy end-groups.
Non-Final Act. 2-3.
Appellants argue Toyooka does not teach reactive end-groups for its
fluoroalkyl acrylates. App. Br. 9. According to Appellants, there would
also be no motivation to modify Toyooka to include reactive end groups
because Toyooka uses the fluoroalkyl acrylates as lubricating agents and
including end groups in Toyooka's fluoroalkyl acrylates would either
promote crosslinking or an increase in molecular weight of the composition
that would detrimentally impact its lubricating effect. Id. at 9-10.
Appellants' arguments that reactive end-groups in the composition of
Toyooka would impact the composition's lubricating effect are unavailing
and do not point to error in the Examiner's determination of obviousness.
These arguments are unsupported by objective evidence. Appellants, at
most, have provided mere attorney arguments and such arguments of
counsel cannot take the place of evidence. See In re De Blauwe, 736 F.2d
699, 705 (Fed. Cir. 1984); In re Payne, 606 F.2d 303, 315 (CCPA 1979).
To the extent that Appellants also argue that T oyooka provides no
details of end-groups for the disclosed polymer composition (Reply Br. 6),
Appellants have not adequately explained why one skilled in the art would
not have expected the Toyooka's polymers to have reactive end-groups,
particularly as the polymerization would have to terminate at some point for
the polymer to perform its desired function.
Accordingly, we affirm the Examiner's prior art rejections of claims
1-3, 5, and 7 under 35 U.S.C. § 103 (a) based on Toyooka for the reasons
presented by the Examiner and given above.
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Appeal2017-008252
Application 13/397,470
DECISION
The Examiner's prior art rejections of claims 1-7 and 16-18 under 35
U.S.C. § 103(a) are affirmed.
TIME PERIOD
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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