Ex Parte Rolland et al

Patent Trial and Appeal Board

Dec 7, 2015

12839902 (P.T.A.B. Dec. 7, 2015)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/839,902 07/20/2010 LOIC PIERRE ROLLAND
23906 7590 12/09/2015
EIDUPONTDENEMOURSANDCOMPANY
LEGAL PATENT RECORDS CENTER
CHESTNUT RUN PLAZA 721/2340
974 CENTRE ROAD, P.O. BOX 2915
WILMINGTON, DE 19805
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.
PP0116USNA 9113
EXAMINER
LAN, YAN
ART UNIT PAPER NUMBER
1782
NOTIFICATION DATE DELIVERY MODE
12/09/2015 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):
PTO-Legal.PRC@dupont.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte LOIC PIERRE ROLLAND
and JACQUES ANDRE
Appeal2014-002831
Application 12/839,902
Technology Center 1700
Before LINDA M. GAUDETTE, KAREN M. HASTINGS, and
N. WHITNEY WILSON, Administrative Patent Judges.
HASTINGS, Administrative Patent Judge.
DECISION ON APPEAL
Appellants 1 seek our review under 35 U.S.C. § 134(a) of the
Examiner's final decision rejecting claims 1-20 under 35 U.S.C. § 103(a).
We have jurisdiction over the appeal under 35 U.S.C. § 6(b ).
We AFFIRM.
Claim 1 is illustrative of the appealed subject matter (emphasis
added):
1. An article comprising a container wherein
the container includes a pouch or a bag;
1 The Real Party in Interest is stated to be the E. I. du Pont de Nemours and
Company (App. Br. 1 ).
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Application 12/839,902
the container has contained therein at least one phase change
material;
the container comprises or is produced from a film or sheet;
the film or sheet includes a multilayer structure comprises at
least one barrier layer;
the multilayer structure comprises at least one sealant layer
and at least one barrier layer;
the sealant layer include copolymer of ethylene
(meth)acrylic acid, ionomer derived from copolymer of ethylene
(meth)acrylic acid, or combinations thereof;
the barrier layer includes ethylene vinyl alcohol copolymer,
polyamide, polyester, polyvinylidene chloride, polycarbonate,
or combinations of two or more thereof
(App. Br. 14, Claims Appendix.)
The Examiner maintains, and Appellants appeal, the following
rejections under 35 U.S.C. § 103(a):
(a) Claims 1-8, 11-15, and 18-20 as being unpatentable over Salee
(U.S. Patent No. 5;630;961; issued May 20; 1997) in view of Hayes et al
(U.S. 2009/0123613 Al, published May 14, 2009) (hereinafter "Hayes");
and
(b) Claims 9,10, 16, and 17 as being unpatentable over Salee in view
of Hayes in view of Van den Broek (EP 1555120 Al, published July 20,
2005) and further in view of Merrill et al. (U.S. Patent No. 6,838,146 B2,
issued Jan. 4, 2005) (hereinafter "Merrill").
Appellants' arguments for claims 2-6 focus mainly on limitations
common to independent claim 1 (App. Br. 2-13, Reply Br. 1-2). In the
absence of arguments specific to their patentability, dependent claims 2---6
stand or fall with claim 1. 3 7 C.F .R. § 41.3 7 ( c )(iv). Appellants separately
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argue the remammg dependent claims, including those separately rejected
(App. Br. 2--4, 7, 8, 10-13).
ANALYSIS
Upon consideration of the evidence on this record and each of
Appellants' contentions, we find that the preponderance of evidence on this
record supports the Examiner's conclusion that independent claim 1 and all
of its dependent claims are unpatentable over the applied prior art.
Appellants have failed to show that the Examiner erred reversibly. We
sustain the Examiner's § 103 rejections, as listed in (a) and (b) above, of all
the appealed claims for essentially the reasons set out by the Examiner in the
Final Office Action and the Answer.
We add the following primarily for emphasis.
Rejection under 35 USC§ 103(a) (obviousness) (Rejection (a))
The Examiner relies on Salee for its disclosure of a thermal storage
unit, which includes a microwavable flexible pouch container (i.e., "wherein
the container includes a pouch" (claim 1)) (Final Act. 6), having contained
therein paraffin wax (i.e., "at least one phase change material" (claim 1))
(Final Act. 6). The Examiner relies upon Hayes to exemplify a pouch
having the multilayer film or sheet structure (i.e., "layers of ...
ionomer/tie/barrier" (Final Act. 7 (citing Hayes, claim 27))) comprising at
least one sealant layer and at least one barrier layer, as recited in claim 1.
The Examiner further finds Hayes discloses the requisite materials included
in the claimed sealant and barrier layers (Final Act. 7 (citing Hayes i-fi-f 14--
18, for a disclosure that "the [sealant] ionomer layer includes copolymer of
ethylene (meth)acrylic acid and/or ionomer derived from copolymer of
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ethylene (meth)acrylic acid" and Hayes i171, which discloses that "the
barrier layer [is] ... ethylene vinyl alcohol copolymer or polyamide")).
According to the Examiner, a person of ordinary skill would have
been motivated to modify Salee to use Hayes' multilayered packaging
film/ sheet as the material for constructing Salee' s thermal storage unit
pouch, which contains paraffin phase change material therein, because
Hayes teaches that multilayer ionomeric materials are known to have
excellent physical properties including: (i) heat sealing and adhesion, (ii)
structural integrity for packaging, and (iii) resistance to penetration by oils
and fats (Final Act. 7-8 (id. at 7, citing Hayes i-fi-12, 9, and 11)). According
to the Examiner, such properties would be useful in Salee' s pouch,
constructed with a sealant and a barrier layer, for secure containment of
Salee's phase change material, i.e., paraffin wax (Final Act. 6-8).
Appellants contend that Salee does not teach a multilayer film or sheet
(App. Br. 2-8). The Examiner, however, does not rely on Salee's disclosure
for the suggestion of a multilayer structure for a film or sheet (Final Act. 6).
Rather, the Examiner relies on Hayes' teaching of a "multilayer packaging
film/sheet" (id. at 7; Ans. 5, 13) and a finding that Salee discloses a nylon
fabric sheet (Ans. 12; Adv. Act. 2). "Non-obviousness cannot be established
by attacking references individually where the rejection is based upon the
teachings of a combination of references. . . . [The reference] must be read,
not in isolation, but for what it fairly teaches in combination with the prior
art as a whole." In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986).
Appellants further argue that Salee does not teach a sheet within the
meaning of claim 1 because, "[i]n plastics extrusion technology, ... a film
or sheet is a category different from [Salee's] 'fabric"' (App. Br. 6; see also,
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Application 12/839,902
Reply Br. l ). Appellants argue that Salees' fabric is not a "sheet" as claimed.
(e.g., App. Br. 4-6).
It is axiomatic that "the PTO must give claims their broadest
reasonable construction consistent with the specification . . . . Therefore, we
look to the specification to see if it provides a definition for claim terms, but
otherwise apply a broad interpretation." In re ICON Health & Fitness, Inc.,
496 F.3d 1374, 1379 (Fed. Cir. 2007).
The plain meaning of the word "sheet" encompasses the nylon fabric
sheet of Salee. Appellants' argument regarding the limited meaning of the
claim term "sheet" is unavailing. The Specification does not limit the
claimed "film or sheet" to construction via extrusion technology, as it
explicitly states that "[p ]referably, the film or sheet forming the container is
obtained by blown (co )extrusion, cast film mono/ co-extrusion or extrusion
coating" (emphasis added (Spec. 9, 11. 12-15)). Appellants have not
persuasively reasoned or directed us to persuasive evidence to establish that
the Examiner's interpretation is unreasonably broad, nor directed us to a
special definition in the Specification that would establish that the claim
term "sheet" does not encompass Salee' s nylon sheet. 2
Appellants further contend that Hayes does not disclose a multilayer
structure comprising a single polymer as a barrier layer because Hayes
2 Likewise, Appellants argue that the claim term "multilayer" should be
limited to its meaning according to "common knowledge ... in the polymer
film community" (App. Br. 4, see also id. at 6) and that "a multilayer
film ... contain[ s] two or more layers laminated" (emphasis added (id. at
8)), but the Specification explicitly provides that multilayer structures are
not limited to construction by lamination. "[A] multilayer structure can be
produced by a process including extrusion coating or lamination" (emphasis
added (Spec. 9, 11. 20-21)).
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discloses that its multilayer is produced from a resin that is a blend of
polyamide with an olefin copolymer and other elements (App. Br. 2, 9
(citing Hayes i-fi-1 21-29). This is not persuasive because the barrier layer of
claim 1 is not limited to a single polymer-the claim recites "combinations
of two or more" of "ethylene vinyl alcohol copolymer, polyamide, polyester,
polyvinylidene chloride, polycarbonate" (emphasis added). Furthermore, as
pointed out by the Examiner, claim 27 of Hayes explicitly discloses a
multilayer film, with a barrier layer constructed of polyamide material, as
recited in claim 1 (Ans. 15, see also Final Act. 7 (citing Hayes i171)).
Appellants further contend that Hayes does not disclose a multilayer
structure for packaging a phase change material (App. Br. 2, 8-11) because
Hayes does not suggest that an ionomer-containing film or sheet can be used
to store anything other than food (id. at 9).
Appellants' argument is not persuasive. Appellants have not adduced
any persuasive technical reasoning or evidence in response to the
Examiner's determination that the use of a multilayer packaging film/sheet
as exemplified by Hayes for the pouch sheet of Salee with its paraffin phase
change material therein would have been prima facie obvious, as such a
combination appears to be the use of known prior art elements according to
their established functions (see, e.g., Final Act. 6-7; see generally App. Br.,
Reply Br.). KSR Int 'l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007). ("The
combination of familiar elements according to known methods is likely to be
obvious when it does no more than yield predictable results.") Appellants
have not shown error in the Examiner's determination that the skilled artisan
would have appreciated that Hayes' multilayer packaging would securely
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contain not only oils and fats (i.e., lipids), but also other lipids, such as
Salee' s paraffin wax.
Furthermore, under the flexible inquiry set forth by the Supreme
Court, the PTO must take account of the "inferences and creative steps,"
such as the inference that Hayes' multilayer packaging could be used for
other lipids, that an ordinary artisan would employ. Ball Aerosol and
Specialty Container, Inc. v. Limited Brands, Inc., 555 F.3d 984, 993 (Fed.
Cir. 2009). It is well settled that a reference stands for all of the specific
teachings thereof as well as the inferences one of ordinary skill in this art
would have reasonably been expected to draw therefrom. See In re Fritch,
972 F.2d 1260, 1264---65 (Fed. Cir. 1992).
Appellants also have not shown error in the Examiner's determination
that the claim limitations of a polymer matrix containing paraffin (e.g.,
claims 7, 8, 10, 15, and 17) encompass Salee's use of paraffin in a
microwave-sensitive material of higher oligomers of propylene or ethylene
glycol for reasons explained by the Examiner (Ans. 14 (citing Salee col. 7,
11. 40-45; col. 8, 11. 1---6))
Thus, we affirm rejection (a).
Rejection under 35 USC§ 103(a) (obviousness) (Rejection (b))
Likewise, Appellants have not shown error in the Examiner's findings
that: (i) EP 1555120 teaches that zinc ions are among the known, suitable
metal ions for neutralizing carboxylic acid content to make the ionomeric
composite packaging film (Final Act. 11-12), and (ii) Merrill teaches that
expanded polystyrene foam and polyurethane foam are among the known
common suitable thermal insulation materials (Final Act. 12).
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Appellants have not identified reversible error in the Examiner's
determination that the claim limitations, respectively, of: (i) "an insulation
layer wherein the (meth)acrylic acid is partially or completely neutralized
with Zn ions" (e.g., claims 9, 10, 16, and 17) and (ii) "the insulation layer is
expanded polystyrene foam" (e.g., claims 9, 10, 16, and 17), are rendered
obvious when the applied prior art is considered as a whole.
Thus, we affirm rejection (b ).
DECISION
The Examiner's§ 103 rejections 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).
AFFIRMED
ELD
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