11992032 (B.P.A.I. Aug. 16, 2012)

Ex Parte Pater T.M. et al

Board of Patent Appeals and InterferencesAug 16, 2012

11992032 (B.P.A.I. Aug. 16, 2012)

UNITED STATES PATENT AND TRADEMARKOFFICE 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. 11/992,032 03/14/2008 Joachim Pater T.M. 124-202USFE6281 4124 74275 7590 08/17/2012 DILWORTH IP, LLC 2 CORPORATE DRIVE, SUITE 206 TRUMBULL, CT 06611 EXAMINER ENG, ELIZABETH ART UNIT PAPER NUMBER 1762 MAIL DATE DELIVERY MODE 08/17/2012 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ________________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ________________ Ex parte JOACHIM PATER T.M., PIETRO BAITA, GABRIELE MEI, and ANTONIO MAZZUCCO ________________ Appeal 2011-003341 Application 11/992,032 Technology Center 1700 ________________ Before ADRIENE LEPIANE HANLON, TERRY J. OWENS, and LINDA M. GAUDETTE, Administrative Patent Judges. OWENS, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-003341 Application 11/992,032 2 STATEMENT OF THE CASE The Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s rejection of claims 16-27 and 29, which are all of the pending claims. We have jurisdiction under 35 U.S.C. § 6(b). The Invention The Appellants claim a gas-phase polymerization process and apparatus. Claim 16 is illustrative: 16. A process for gas-phase polymerization of at least one alpha- olefin in presence of a polymerization catalyst system, the process comprising: a) continuously contacting a gas comprising the at least one alpha- olefin with the catalyst system in a gas-phase tubular reactor at a temperature from 30°C to 130°C to obtain a prepolymer comprising a polymerization degree up to 500 grams per gram of the polymerization catalyst system; b) continuously feeding the prepolymer to a successive gas-phase polymerization reactor, the successive gas-phase polymerization reactor being selected from fluidized bed reactors, stirred bed reactors, and gas-phase reactors, and the successive gas-phase polymerization reactor comprising interconnected polymerization zones;[1] wherein the gas-phase tubular reactor has a length/diameter ratio higher than 100. The References Ahvenainen US 5,179,180 Jan. 12, 1993 Weickert US 6,518,372 B1 Feb. 11, 2003 1 The Appellants’ Specification discloses “one or more gas-phase polymerization reactors selected from fluidized bed reactors, stirred bed reactors and reactors having interconnected polymerization zones” (Spec. 7- 8). Appeal 2011-003341 Application 11/992,032 3 The Rejections The claims stand rejected under 35 U.S.C. § 103 as follows: claims 16-24, 26, 27, and 29 over Weickert and claim 25 over Weickert in view of Ahvenainen. OPINION We affirm the rejections. The Appellants argue that Weickert teaches away from conventional fluidized bed reactors and loop reactors (Br. 6-8). Weickert does not use a conventional fluidized bed reactor or loop reactor. Weickert uses a gas-phase tubular reactor having a length/diameter ratio higher than 100, as required by the Appellants’ independent claims (16 and 29), followed by a trickle reactor, which is fluidized, and then a second tube reactor (col. 7, l. 59 – col. 8, l. 4). The trickle reactor and tube reactor are gas-phase reactors and comprise interconnected polymerization zones and, therefore, meet the requirements of the Appellants’ independent claims. The Appellants argue that a comparison of their Examples 3 and 4, wherein the powder fraction greater than 1000 µm is, respectively, 72.8 wt% and 71.6 wt%, with Comparative Example 1, wherein the powder fraction greater than 1000 µm is 38.6 wt%, shows that the claimed process produces unexpected results (Br. 8).2 For the following reasons the evidence relied upon by the Appellants, together with the applied prior art, does not support a conclusion of nonobviousness of the Appellants’ claimed process. 2 The Appellants provide no evidence of unexpected results regarding the apparatus claimed in claim 29. Appeal 2011-003341 Application 11/992,032 4 First, the Appellants do not identify the closest prior art, which appears to be Weickert, and provide a comparison of the claimed process with that prior art. See In re Baxter Travenol Labs., 952 F.2d 388, 392 (Fed. Cir. 1991); In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984). Second, it is not enough for the Appellants to show that the results for the Appellants’ process and the comparative examples differ. The difference must be shown to be an unexpected difference. See In re Freeman, 474 F.2d 1318, 1324 (CCPA 1973); In re Klosak, 455 F.2d 1077, 1080 (CCPA 1972). The Appellants’ Specification does not state that the results relied upon by the Appellants would have been unexpected by one of ordinary skill in the art, and the Appellants have provided no evidence to that effect. The Appellants’ mere attorney argument that the results would have been unexpected (Br. 8) 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); In re Greenfield, 571 F.2d 1185, 1189 (CCPA 1978); In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974). Also, as pointed out by the Examiner (Ans. 8), Weickert’s disclosure of a 1580 µm mean particle size (col. 8, l. 30) indicates that a particle size greater than 1000 µm would have been expected by one of ordinary skill in the art. Third, the evidence is not commensurate in scope with the claims. See In re Grasselli, 713 F.2d 731, 743 (Fed. Cir. 1983); In re Clemens, 622 F.2d 1029, 1035 (CCPA 1980). In Examples 3 and 4 relied upon by the Appellants (Br. 8) the prepolymerization degrees are respectively, 1.6 and 3.8 g prepolymer/g catalyst (Spec. 16: Table 2). The Appellants’ claims, however, encompass prepolymerization degrees which are infinitesimally small. The Appellants have not established that the powder fraction Appeal 2011-003341 Application 11/992,032 5 percentages greater than 1000 µ obtained in the relied-upon examples are representative of those which would be obtained using an infinitesimally small degree of prepolymerization. Thus, based upon evidence relied upon by the Examiner and the Appellants, we conclude that the Appellants’ claimed process and apparatus would have been obvious to one of ordinary skill in the art. DECISION/ORDER The rejections under 35 U.S.C. § 103 of claims 16-24, 26, 27, and 29 over Weickert and claim 25 over Weickert in view of Ahvenainen 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 sld