Ex Parte Lederer et al

Patent Trial and Appeal Board

Mar 8, 2017

13379475 (P.T.A.B. Mar. 8, 2017)

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.
13/379,475 01/25/2012 Klaus Lederer MPG-020949US PCT 3926
26294 7590 03/10/2017
TAROLLI, SUNDHEIM, COVELL & TUMMINO L.L.P.
1300 EAST NINTH STREET, SUITE 1700
CLEVELAND, OH 44114
EXAMINER
RIETH, STEPHEN EDWARD
ART UNIT PAPER NUMBER
1764
NOTIFICATION DATE DELIVERY MODE
03/10/2017 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):
rkline @ tarolli. com
docketing@tarolli.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KLAUS LEDERER, MICHAEL LOTTE, ERWIN KASTNER,
JULIANE BRAUN, and WOLFGANG STOCKREITER
Appeal 2015-008065
Application 13/379,475
Technology Center 1700
Before ROMULO H. DELMENDO, JAMES C. HOUSEL, and
N. WHITNEY WILSON, Administrative Patent Judges.
WILSON, Administrative Patent Judge.
DECISION ON APPEAL
Appellants1 appeal under 35 U.S.C. § 134(a) from the Examiner’s
July 10, 2014 decision finally rejecting claims 15—26 (“Final Act.”). We
have jurisdiction over the appeal under 35 U.S.C. § 6(b).
We affirm.
i Appellants identify the real party in interest as Borealis AG (Appeal Br. 2).
Appeal 2015-008065
Application 13/379,475
CLAIMED SUBJECT MATTER
Appellants’ invention is directed to an automotive interior article
comprising a polypropylene composition which in turn comprises five
components: (1) a heterophasic polypropylene H-PP1, (2) a heterophasic
polypropylene H-PP2, (3) a high density polyethylene (HDPE), (4)
inosilicate, and (5) phenolic antioxidants, wherein components (1)—(3) are
the only polymer components. The composition optionally comprises
phosphorus antioxidants. The claimed composition also has a specified melt
flow rate (MFR) and headspace emission values. Details of the claimed
method are set forth in independent claim 15, which is reproduced below
from the Claims Appendix of the Appeal Brief:
15. Automotive interior article comprising at least 50 wt. %
based on said article of a polypropylene composition having
a melt flow rate MFR2 (230°C) measured according to ISO
1133 of 7.0 to 30.0 g/10 min, the polypropylene composition
comprises, as polymer components, only a heterophasic
polypropylene (H-PP1), a heterophasic polypropylene
(HPP2), and a high density polyethylene (HDPE), wherein
the polypropylene composition comprises:
(a) at least 25.0 wt. % of the heterophasic
polypropylene (H-PP1) and
(b) at least 25.0 wt. % of the heterophasic
polypropylene (H-PP2) and
(c) at least 3.0 wt. %, of the high density polyethylene
(HDPE),
(d) 10,000 to 550,000 ppm inosilicate,
(e) 100 to 5,000 ppm of phenolic antioxidants, and
(f) optionally 100 to 5,000 ppm of phosphorous
antioxidants based on the polypropylene composition, and
further wherein
(g) said heterophasic polypropylene (H-PP1)
(gl) comprises a polypropylene matrix being a
propylene homopolymer and an elastomeric
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Appeal 2015-008065
Application 13/379,475
copolymer, said elastomeric copolymer comprises
units from propylene and ethylene and/or C4 to
C20 a-olefm
(g2) has comonomer content of 18 to 22 wt. %
based on said heterophasic polypropylene (H-
PP1), said comonomer is ethylene and/or at least
one C4 to C20 a-olefm, and
(g3) has a xylene cold soluble (XCS) content
measured according to ISO 6427 of 15.0 to 40.0
wt.% based on the heterophasic polypropylene
(H-PP1 ), and further wherein
(h) said heterophasic polypropylene (H-PP2)
(hi) comprises a polypropylene matrix being a
propylene homopolymer and an elastomeric
copolymer, said elastomeric copolymer comprises
units from propylene and ethylene and/or C4 to
C20 a-olefm,
(h2) has comonomer content of 1 .0 to 20.0 wt. %,
based on said heterophasic polypropylene (H-PP2),
said comonomer is ethylene and/or at least one C4 to
C20 a-olefm, and
(h3) has a xylene cold soluble (XCS) content
measured according to ISO 6427 of 5.0 to 30.0
wt. %, based on the heterophasic polypropylene
(H-PP2) and
(h4) optionally a melt flow rate MFR2 (230°C)
in the range of 10.0 to 40.0 g/10 min, and further
wherein
(i) the article has a headspace emission measured
according to VOA 277:
(11) of all volatiles together of the
polypropylene composition of equal or below
120 pgC/g, and/or
(12) of 2-methyl-1-propene of the
polypropylene composition of not more than
70 pgC/g.
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Appeal 2015-008065
Application 13/379,475
DISCUSSION
Claims 15—26 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Chapman2 as evidenced by Innovadex.3 The details of the
rejection are set forth in the Examiner’s Answer at pages 2—13.
Appellants advance three general arguments urging reversal of the
rejection: (1) Chapman and Innovadex do not teach or suggest an
automotive interior article comprising the recited composition with its
recited components and having the claimed headspace emissions; (2) the
Examiner has not provided a reasonable rationale to modify the plasticized
hetero-phase polyolefins of Chapman to arrive at the claimed invention; and
(3) the claimed composition provides unexpected results compared to the
prior art (Appeal Br. 6).
With regards to Arguments (1) and (2), Appellants contend that
Chapman does not teach a polypropylene composition having the
components and ranges recited in claim 15 (Appeal Br. 8). Appellants do
not dispute the Examiner’s findings that Chapman discloses each of the
components and ranges set forth in claim 15 (see, e.g. Reply Br. 6—7), but
argue that “Chapman’s disclosure of numerous potential formulations of
hetero-phase compositions with broad composition ranges, many possible
additives and/or fillers, and properties” could not have rendered claim 15
obvious (Reply Br. 6).
However, Appellants do not dispute the Examiner’s findings that
Chapman has examples which disclose all but 4 of the elements recited in
claim 15: (a) at least 3.0 wt% of high density polyethylene, (b) 100 to 5,000
2 Chapman et al., US 2008/0045638 Al, published February 21, 2008.
3 Innovadex, Irgafox 168 Description; cited in PTO-892 mailed 06/19/2013.
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Appeal 2015-008065
Application 13/379,475
ppm of phenolic antioxidant, (c) an ethylene content of 18-22 wt% for H-
PP1, and (d) a composition which includes only H-PP1, H-PP2, and HDPE
as polymeric components (Ans. 13, Reply Br. 5—6). The Examiner finds that
each of the limitations are set forth in Chapman, even though they are not
exemplified (Ans. 13, citing Chapman, || 151,1227, 392, 431—433). For
example, Chapman teaches that it’s ICP’s (which correspond to the claimed
HPP’s) preferably have 3—30 wt% of polyethylene, which overlaps with the
claimed amount of 18—22 wt% (Chapman, 1151). Chapman also discloses
the use of non-polymeric plasticizers in its compositions, which would mean
that its compositions would only contain the claimed polymeric materials
(Chapman, 1227). Chapman further teaches that its compositions may
contain phenolic antioxidants in amounts of 200—5000 ppm, which is within
the range recited in claim 15 (Chapman, 1392). Finally, Chapman discloses
that it compositions may include up to 25 wt% of HDPE (Chapman, 1431).
Thus, Chapman exemplifies or otherwise teaches all of the elements
of the claimed invention. If the rejection were an anticipation rejection
under 35 U.S.C § 102, that the reference does not disclose all of the claim
elements in a single example might require reversal. In reArkley, 455 F.2d
586, 587—88 (CCPA 1972). However, the rejection is an obviousness
rejection under § 103(a), and while a plurality of the predecessor to our
reviewing court admonished against picking and choosing and combining
various disclosures in order to establish an anticipation rejection, “[sjuch
picking and choosing may be entirely proper in the making of a 103,
obviousness rejection, where the applicant [is] afforded an opportunity to
rebut with objective evidence any inference of obviousness which may arise
from the similarity of the subject matter which he claims to the prior art.”
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Application 13/379,475
Id. In this instance, Chapman explicitly recites that each of the recited
components of the claimed composition may be used. This recitation is
sufficient to set forth a prima facie case of obviousness.
With regards to the limitations stemming from the headspace
emissions measured according to VDA 277, the Examiner determined that
because Chapman suggests a composition made using the claimed
components in the claimed amounts, the burden shifts to Appellants to show
that they would not have the claimed headspace (Ans. 10, citing In re Spada,
911 F.2d 705, 709 (Fed. Cir. 1990). Notwithstanding the arguments set
forth at pages 11—12 of the Appeal Brief, Appellants have not persuasively
shown that Chapman’s compositions which have the claimed components in
the claimed amounts would not have the claimed headspace emissions.
Appellants also argue that they have overcome the prima facie case of
obviousness by a showing of unexpected results (Appeal Br. 17—20). The
burden rests with Appellants to establish (1) that the alleged unexpected
results presented as being associated with the claimed invention are, in fact,
unexpected, (2) that the comparisons are to the disclosure of closest prior art,
and (3) that the supplied evidentiary showing is commensurate in scope with
the claimed subject matter. See In re Klosak, 455 F.2d 1077, 1080 (CCPA
1972).
In this instance, the showing by Appellants is not commensurate in
scope with the claimed subject matter. As explained by the Examiner (Ans.
16—17), the claims recite broad ranges of components, but only a single
inventive example is offered in support of the claim of unexpected results.
Appellants offer no persuasive technical reasoning or evidentiary showing
that, based on this single example, similar results would have been expected
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Appeal 2015-008065
Application 13/379,475
over the entire range of components and amounts. This single example is
not enough the show that the entire scope of the claimed invention would
have been expected to show unexpected results. As such, the showing is
insufficient to overcome the prima facie case of obviousness. Even if we
credit Appellants’ assertion that “the unexpected results from substituting an
ino silicate for talc would be expected to occur throughout the claimed
range” (Appeal Br. 20) — and we note that Appellants’ do not offer evidence,
as opposed to attorney argument, in support of this assertion — Appellants
have not addressed the other variations in the compositions which fall within
the scope of claim 15.
CONCLUSION
We AFFIRM the rejection of claims 15—26 under 35 U.S.C. § 103(a)
as being unpatentable over Chapman as evidenced by Innovadex.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See
37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
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