Ex Parte Tau et al

Patent Trial and Appeal Board

Apr 26, 2017

12859500 (P.T.A.B. Apr. 26, 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.
F5221-00367 8066
EXAMINER
PIERCE, JEREMY R
ART UNIT PAPER NUMBER
1789
MAIL DATE DELIVERY MODE
12/859,500 08/19/2010
105118 7590 04/26/2017
Duane Morris LLP (Braskem)
IP DEPARTMENT
30 South 17th Street
Philadelphia, PA 19103-4196
Li-Min Tau
04/26/2017 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 PATENT TRIAL AND APPEAL BOARD
Ex parte LI-MIN TAU, GERT J. CLAASEN,
CHARLES R. CROSBY, III, ALECHIA CROWN,
and JOHN KAARTO1
Appeal 2016-004647
Application 12/859,500
Technology Center 1700
Before CHUNG K. PAK, JEFFREY T. SMITH, and JANE E. INGLESE,
Administrative Patent Judges.
PAK, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on an appeal under 35 U.S.C. § 134(a) from the
Examiner’s decision2 finally rejecting claims 1-19, and 21-23, which are all of the
claims pending in the above-identified application. We have jurisdiction under 35
U.S.C. § 6(b).
We AFFIRM.
1 Appellants identify the real party in interest as “Braskem America, Inc.”
Amended Appeal Brief filed August 27, 2015 (“App. Br.”) at 1.
2 Final Action mailed October 9, 2014 (“Final Act.”) at 3-10; the Examiner’s
Answer mailed February 10, 2016 (“Ans.”) at 2-9.
Appeal 2016-004647
Application 12/859,500
STATEMENT OF THE CASE
The subject matter on appeal is directed to “fabricated articles comprising
polyolefins, and preferably a new polypropylene impact copolymer composition
ideally suited for use in producing spunbond nonwovens having improved softness
and good tensile strength.” Spec. 1,11. 3-5. According to page 2, lines 6-21, of
the Specification:
In one embodiment the invention is a polypropylene impact
copolymer composition comprising from 60 to 90 percent by weight
of the impact copolymer composition of a matrix phase comprising a
homopolymer polypropylene or random polypropylene copolymer
comprising from 0.1 to 7 mol percent of units derived from ethylene
or C4-C10 alpha olefins; and from 10-40 percent by weight of the
impact copolymer composition of a dispersed, preferably partially
miscible phase comprising a propylene/alpha-olefin copolymer with
alpha-olefin content ranging from 6-40 mol percent wherein the
dispersed phase has a comonomer content which is greater than the
comonomer content in the matrix phase. The difference should be
sufficient, so that at least two distinct phases are present, although
partial miscibility is desired. Although the specific amount that
comonomer must be different in order to ensure distinct phases will
differ depending the molecular weight of the polymers, in general it is
preferred that the comonomer content in the dispersed phase is at least
10 mol percent greater (absolute), more preferably at least 12 mol
percent greater. The impact copolymer of this embodiment is further
characterized by having the ratio of the matrix MFR to the dispersed
phase MFR (also referred to as a beta/alpha value) being 1.2 or less.
Details of the appealed subject matter are recited in illustrative claim l,3
which is reproduced below from the Claims Appendix of the Appeal Brief (with
disputed limitations in italicized form):
3 The formula for determining a beta/alpha (p/a) ratio recited in claim 1 on appeal
was introduced during the prosecution of the above-identified application. It is
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Application 12/859,500
1. A fabricated article comprising a polypropylene impact copolymer
composition comprising:
a) from 60 to 90 percent by weight of the impact copolymer composition of
a matrix phase, said matrix phase comprising a homopolymer polypropylene or
random polypropylene copolymer having from 0.1 to 7 mol percent of units
derived from ethylene or C4-C10 alpha olefins; and
b) from 10 to 40 percent by weight of the impact copolymer composition of
a dispersed phase, said dispersed phase comprising a propylene/alpha-olefin
copolymer having from 6 to 40 mol percent of units derived from ethylene or C4-
C10 alpha olefins, wherein the dispersed phase has a comonomer content which is
greater than the comonomer content in the matrix phase;
wherein at least one component of the impact copolymer composition is
cracked, the dispersed phase is partially miscible within the matrix phase, and the
impact copolymer is characterized by having a beta/alpha (f/a) ratio of 0.95 or
less,
with (Fe/'ica)
where MFRi is the first reactor (matrix phase only), MFR2 is the second
reactor (overall impact copolymer), and Fc is the percent by weight of the dispersed
phase in the impact copolymer composition.
App. Br. 10, Claims Appendix.
The Examiner has maintained, and Appellants request review of, the
following grounds of rejection:
1. Claims 1-12, 15, 17-19, and 21-23 under 35 U.S.C. § 103(a) as
unpatentable over the combined disclosures of Ethiopia (US 2007/0173162 A1
different from the one disclosed at page 4 of the Specification, as originally filed.
In the event of further prosecution of the claimed subject matter, both the
Examiner and Appellants are advised to determine whether the recited formula
violates the written description requirement of 35 U.S.C. § 112 (a) or of 35 U.S.C.
§112 (pre-AIA), first paragraph.
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Application 12/859,500
published July 26, 2007), Newkirk (US 6,417,122 B1 issued July 9, 2002), and
Chatterjee (US 6,197,886 B1 issued Mar. 6, 2001);
2. Claims 1-5, 12, 15, and 16 under 35 U.S.C. § 103(a) as unpatentable
over the combined disclosures of Mehta (US 2006/0173132 A1 published Aug. 3,
2006), Newkirk, and Chatterjee;
3. Claims 13 and 14 under 35 U.S.C. § 103(a) as unpatentable over the
combined disclosures of Ethiopia, Newkirk, Chatterjee, and Kobylivker (US
5,460,884 issued Oct. 24, 1995); and
4. Claim 16 under 35 U.S.C. § 103(a) as unpatentable over the combined
disclosures of Ethiopia, Newkirk, Chatterjee, and Mehta. Final Act. 3-14; App.
Br. 4-5.
DISCUSSION4
Upon consideration of the evidence relied upon by the Examiner and
Appellants in light of each of Appellants’ arguments, we find that Appellants have
not identified reversible error in the Examiner’s determination that the applied
prior art would have rendered the subject matter recited in claims 1-19 and 21-23
obvious within the meaning of 35 U.S.C. § 103(a). 35 C.F.R. § 41.37(c)(l)(iv)
(2012); In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) (explaining that even if
the examiner had failed to make a prima facie case, the Board would not have
erred in framing the issue as one of reversible error because it has long been the
Board’s practice to require Appellants to identify or adequately explain the alleged
error in the examiner’s rejections). Accordingly, we sustain the Examiner’s
4 Appellants only focus on claim 1 and do not present any separate arguments
against the other rejected claims. App. Br. 5-9. Therefore, for purposes of this
appeal, we limit our discussion to claim 1. 37 C.F.R. § 41.37(c)(l)(iv) (2012).
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§ 103(a) rejections of the above claims for the reasons set forth in the Final Action
and the Answer. We add the following primarily for emphasis and completeness.
I. Rejections 1 and 2
(based on either Ethiopia or Mehta with Newkirk, and Chatterjee)
Appellants do not dispute the Examiner’s finding that:
Ethiopia relates to nonwoven fabrics, wherein the fibers of the
nonwoven fabric are made from a polymer blend of isotactic
polypropylene and a reactor grade propylene based elastomer. See
Abstract, entire document. With regard to the claimed matrix phase,
Ethiopia discloses that the isotactic polymer can be polypropylene
homopolymer. Paragraph [0064], With regard to the dispersed phase,
Ethiopia discloses that the reactor grade propylene elastomer can be
polypropylene, which is copolymerized with about 3 to about
15 percent by weight of units derived from ethylene. Paragraph
[0067]. Thus, the reactor grade propylene elastomer of Ethiopia
would have more comonomer content than the
polypropylene homopolymer, which has no comonomer content.
With regard to the relative amounts, Ethiopia discloses that the first
polymer [(polypropylene homopolymer)] is present in an amount
between 60 and 95% by weight and the second polymer
[(propylene/ethylene copolymer)] is present in an amount between 5
and 40% by weight of the blend. Paragraph [0098].
Compare Final Act. 3, with App. Br. 5-9. Nor do Appellants dispute the
Examiner’s finding that:
Mehta relates to a molded article comprising a heterogeneous blend of
(1) from 60 to 99 % by weight of a semi-crystalline polypropylene
having from 0 to 5 % by weight of an alpha olefin comonomer with
(2) from 1 to 40 % by weight of semi-amorphous polypropylene
having from 10 to 25% by weight of a C2 and/or C4 to CIO alpha-
olefin comonomer. See Abstract, entire document. Thus, the second
copolymer of Mehta would have more comonomer content than the
first polymer (or copolymer) of Mehta. The melt flow rates of each
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polymer are both preferably between 1 and 100 dg/min. Paragraphs
[0022] and [0023],
Compare Final Act. 7, with App. Br. 5-9.
Although Ethiopia or Mehta does not mention that its polypropylene
copolymer (propylene/ethylene copolymer) is partially miscible as required by
claim 1, the Examiner has correctly found that Newkirk teaches “multicomponent
fiber structures comprising propylene homopolymer[, polyethylene,] and
propylene-based copolymer blends[,]” wherein the propylene-based copolymer is
partially miscible. Final Act. 3 and 7; see Newkirk, Abstract and col. 10,11. 44-60.
The Examiner has also correctly found that:
Newkirk discloses that “[i]t is understood that varying levels of
miscibility can exist [and that] [b]oth immiscible and miscible
polymers may be added to a two component blend to impart
additional properties or benefits with respect to blend compatibility,
viscosity, polymer crystallinity or phase domain size.” Column 9,
lines 2-12. Newkirk also teaches that providing a polymer
component that is at least partially miscible provides the blend with
highly elongatable properties. Column 4, lines 31-34.
Final Act. 3-4 and 7-8. In the words of Newkirk (col. 8,1. 62-col. 9,1. 12)
(emphasis added.):
For the purposes of the invention, the term “polymer” is used in
a general sense, and is intended to include homopolymer, copolymers,
grafted copolymers, and terpolymers. The term blend is also used
generally herein, and is intended to include immiscible and miscible
polymer blends. The polymers are considered to be “immiscible” if
they exist separate, distinct phases in the molten state; all other blends
are considered to be “miscible. ” It is understood that varying levels
of miscibility can exist, and are also intended to be within the scope of
this invention. The multipolymer fibers are normally formed of a
polymer blend composed of two or more polymers, although blends
with more than two polymers may also be utilized, including those
with three or more polymer components. Both immiscible and
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miscible polymers may be added to a two component blend to impart
additional properties or benefits with respect to blend compatibility,
viscosity, polymer crystallinity or phase domain size.
Thus, notwithstanding Appellants’ arguments to the contrary, we find no
reversible error in the Examiner’s determination that the collective teachings of
either Ethiopia and Newkirk5 or Mehta and Newkirk would have led one of
ordinary skill in the art to employ the partially miscible propylene copolymer as
the propylene copolymer of the polymer blend taught by Ethiopia or Mehta, with a
reasonable expectation of successfully forming a fibrous polymer structure with
improved properties, such as elongation properties, blend compatibility, and
viscosity.
Appellants contend that “[n]o reference either alone or in combination,
discloses, teaches or suggests a polypropylene impact copolymer [composition]
with .... a p/a ratio of 0.95 or less.. .[as recited in claiml.]” App. Br. 6.
However, we find this contention unpersuasive of reversible error in the
Examiner’s § 103(a) rejections. The Specification, as originally filed, states that
“[t]he impact copolymer of this embodiment is further characterized by having the
ratio of the matrix MFR [(melt flow rate6)] to the dispersed phase MFR [(melt flow
5 To the extent that Newkirk, at column 3, lines 34-45 and column 10, lines 55—60,
may have further suggested including 1 to 5 percent of polyethylene in the polymer
blend of Ethiopia or Mehta, we note that claim 1, as recited, does not preclude the
presence of such amount of polyethylene. See also Mehta 199. Claim 1, by virtue
of using the transitional term “comprising,” permits the inclusion of elements and
steps, which are not specifically recited. In re Baxter, 656 F.2d 679, 686—87
(CCPA 1981) (“As long as one of the monomers in the reaction is [claimed]
propylene, any other monomer may be present, because the term ‘comprises’
permits the inclusion of other steps, elements, or materials.”)
6 Spec. 4,11. 4-5.
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rate)] (also referred to as a beta/alpha value [(p/a)] being 1.2 or less.” Spec. 2,11.
19-21; see also Spec. 10,11. 10-13. The Specification, as originally filed,
alternatively defines such beta/alpha value as follows:
“Beta/alpha” (b/a or p/a) is conceptually the ratio of the
dispersed phase (ethylene propylene rubber or EPR) molecular weight
to matrix phase molecular weight. It is normally measured as the
intrinsic viscosity (IV) of the dispersed phase divided by the IV of the
homopolymer or random copolymer matrix. However on a practical
level, as used in the production of impact copolymer polypropylene
products, b/a defines the ratio of the melt flow of the
homopolymer/random copolymer reactor product (Reactor No. 1) to
that of the overall impact copolymer reactor product (Reactor No. 2),
according to the following equation, with both melt flows measured
on stabilized powder samples. When the 5 beta/alpha is kept within
the specified range for in-reactor produced impact copolymers,
the product gel content can be minimized, rubber domain size can be
minimized.
p/«.- - IMCf-c/MM!) + U
Wherein MFRi is the first reactor (matrix phase only) and MFR2 is the
second reactor (overall ICP [(impact copolymer)]).
Spec. 6,1. 28-7,1. 11. “Fc’ refers to the percent by weight of the dispersed rubber
phase in the total impact copolymer.” Spec. 4,11. 17-18.
Although Ethiopia and Mehta do not specifically mention a beta/alpha (p/a)
ratio of 0.95 or less, as recited in claim 1, they teach employing a broad range of a
matrix melt flow rate (MFR) and a disperse phase melt flow rate (MFR) which
include ratios (also referred to as beta/alpha values) that encompass those
beta/alpha ratios recited in claim 1. Compare Ehiopia 32-36 and 94 and Mehta
21-29, with Spec. 2,11. 19-21 and 9,11. 3-17. In particular, the Examiner has
correctly found that “Ethiopia discloses a broad range of melt flow rates for both
the matrix phase polymer and the dispersed phase polymer [in addition to the
recited percentage of the dispersed phase in the impact copolymer composition
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discussed supra\.” Final Act. 4, citing Ethiopia ]Hf 31-36 (“isotactic polypropylene
homopolymer . . . having a melt flow rate in the range of from about 100 to about
2000 grams/10 minutes . . . said propylene based elastomer.. .having a melt flow
rate of from about 100 to about 2000 grams/10 minutes. ... In another aspect, an
isotatic polypropylene [homopolymer] having a melt flow rate in the range of from
about 2 to about 40 grams/10 minutes . . . said second polymer [(propylene based
elastomer)] has a melt flow rate of from about 0.5 to about 40 grams/10 minutes”).
Mehta also discloses a broad range of melt flow rates for the matrix phase polymer,
the dispersed phase polymer, and impact copolymer composition, in addition to the
recited percentage of the dispersed phase in the impact copolymer composition
discussed supra. Mehta ^fl[ 21-29 (“[S]aid semi-crystalline polymer [comprising
polypropylene] each having.. .a melt flow rate of 200 dg/min or less.. .said semi-
amorphous polymers [comprising propylene and from 10 to 25 weight % of one or
more C2 and/or C4 to CIO alpha-olefin comonomers] each having.. .a melt flow
rate of 0.1 to 200 dg/min.. .the blend has.. .a melt flow rate of 0.5 to 200 dg/min.”).
Consistent with these teachings of Ethiopia or Mehta, Chatterjee discloses
“utilizing a beta/alpha ratio as low as about 0.8” in the context of “polymer
compositions [or blends] containing a propylene polymer phase and a rubber phase
of propylene/ethylene copolymer” to obtain the polymer compositions or blends
having “improved abrasion and tear resistance[.]” Final Act. 4 and 8, citing
Chatterjee, col. 1,11. 21-25 and col. 2,11. 6-10. Chatterjee, like Mehta, also
discloses that the copolymer may be cracked to achieve specific melt flows as
required by claim 1. Compare Final Act. 4-5; compare Chatterjee, col. 2, 15-20
and Mehta ]H[ 207-213 with Spec. 9,11. 8-17. The specific melt flows of the
copolymer taught by Chatterjee are encompassed by both Ethiopia and Mehta.
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Compare Chatterjee, col. 2,11. 1-5, with Ethiopia Tflf 28-30, 34-36, and 94 and
Mehta Tflf 21-29. In the words of Chatterjee (col. 2,11. 1-20):
The Fc ranges between about 25% w to about 60% w. and
preferably about 40 % w to about 50% w. The melt flow (MF) of the
copolymer is between about 5 to 50 dg/min, preferably about 10 to
about 30 g/10 min by either reactor or controlled rheology
(visbreaking) modes.
The ratio of intrinsic viscosity of the rubber phase to the
intrinsic viscosity of the homopolymer phase (“IVR”), also called p/a,
should be between about 0.8 to about 1.6 and preferably about 1.3 to
about 1.6........
The copolymer may be cracked to achieve specific melt flows.
However, it is preferred that the cracking ratio (i.e., melt flow after
cracking to melt flow before cracking) be limited to less than about 2.
Said cracking may be accomplished with alkyl peroxides such as 2,5-
dimethyl-2,5-bis(t-butylperoxy) hexan or other peroxidic species.
Given the above teachings, we find that a preponderance of the evidence
supports the Examiner’s determination that the collective teachings of either
Ethiopia, Newkirk and Chatterjee or Mehta, Newkirk and Chatterjee would have
led one of ordinary skill in the art to form polymer compositions or blends having a
beta to alpha ratio of 9.5 to 8 (with or without cracking to obtain specific melt flow
rates such as those taught by Ethiopia, Mehta and Chatterjee), with a reasonable
expectation of successfully obtaining the polymer compositions or blends having
improved abrasion and tear resistance. See alsoln re Peterson, 315 F.3d 1325,
1329-30 (Fed. Cir. 2003) (“In cases involving overlapping ranges, we and our
predecessor court have consistently held that even a slight overlap in range
establishes aprima facie case of obviousness.”); In re Aller, 220 F.2d 454, 456
(CCPA 1955)(“[W]here the general conditions of a claim are disclosed in the prior
art, it is not inventive to discover the optimum or workable ranges by routine
experimentation.”).
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Appellants contend that “Ethiopia teaches away from a cracked component,
as presently claimed [because cracking alters the molecular weight distribution or
polydispersity of a polyolefin resin].” App. Br. 6. In support of this contention,
Appellants refer to part of paragraph 68 of Ethiopia, which states that “the term
‘reactor grade’ is as defined in US. Pat. No. 6,010,588 and in general refers to a
polyolefin resin whose molecular weight distribution (MWD) or polydispersity has
not been substantially altered after polymerization.'1'’ Id. However, we also find
this contention unpersuasive of reversible error.7
As correctly found by the Examiner and not disputed by Appellants:
First, the definition of “reactor grade” provided in Ethiopia includes
olefin resin whose polydispersity has not been substantially
altered after polymerization. Such a definition does not preclude a
minimum amount of polydispersity alteration, so long as the
polydispersity is not substantially altered. And this definition
of Ethiopia falls in line with the teachings of Chatterjee, which
encourages a minimum amount of cracking to be limited such that a
cracking ratio is less than about 2. Column 2, lines 15-20. So the
teachings of Ethiopia align with Chatterjee in that both acknowledge
some amount of cracking can be present, but if the cracking process is
used to alter melt flow rate, it should be kept to a minimum. See also
U.S. Patent No. 6,010,588 to Stahl et al., column 1, lines 11-
16 (“novel fibers and fabrics are made from isotactic polyolefins
which are a reactor-grade polymer useful for fiber formation without
being subjected to post-reactor treatment to lower molecular weight,
or having been subjected to post-reactor treatment without substantial
alteration of MWD of the polymer resin”) (emphasis added). Second,
7 In the event of further prosecution, both the Examiner and Appellants are advised
to determine whether this product-by-process limitation would have rendered the
claimed compositions or articles patentably different from the compositions
suggested by the collective teachings of the above prior art references. In re
Thorpe, 111 F.2d 695, 697 (Fed. Cir. 1985) (“If the product in a product-by­
process claim is the same as or obvious from a product of the prior art, the claim is
unpatentable even though the prior product was made by a different process.”)
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Appellant’s Claim 1 does not quantify the amount of cracking to be
done to the at least one polymer component.
Compare Final Act. 11, with App. Br. 5-9.
Thus, we concur with the Examiner that the collective teachings of Ethiopia,
Newkirk, and Chatterjee would have suggested applying a small amount of
cracking to modify the melt flow rate of the copolymer, with a reasonable
expectation of successfully obtaining the advantages stated by Ethiopia, Newkirk,
and Chatterjee. As explained by the Examiner, nowhere does Ethiopia alone or in
combination with Chatterjee, discourage one of ordinary skill in the art from
conducting such post-reactor treatment. In re Gurley, 27 F.3d 551, 553 (Fed. Cir.
1994) (“A reference may be said to teach away when a person of ordinary skill,
upon reading the reference, would be discouraged from following the path set out
in the reference, or would be led in a direction divergent from the path that was
taken by the applicant.”)
Appellants also contend that “one of ordinary skill in the art would [have
been] led in a direction contrary to the present invention, based on the teachings of
the [Chatterjee] reference.” App. Br. 8-9 and Reply Brief8 filed April 6, 2016
8 Any new arguments raised in the Reply Brief, which could have been raised in
the Appeal Brief, will not be considered by the Board for purposes of the present
appeal unless good cause is shown. 37 C.F.R. § 41.37(c)(l)(iv) (“Except as
provided for in §§ 41.41,41.47 and 41.52, any arguments or authorities not
included in the appeal brief will be refused consideration by the Board for purposes
of the present appeal.”); see also Ex parte Borden, 93 USPQ2d 1473, 1474 (BPAI
2010) (Informative) (explaining that under the previous rules, which are similar to
the current rules, “the reply brief [is not] an opportunity to make arguments that
could have been made in the principal brief on appeal to rebut the Examiner’s
rejections, but were not.”).
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(“Reply Br.”) at 2-3. In support of this contention, Appellants refer to the Abstract
of Chatterjee, which states in relevant part:
The present invention relates to compositions containing impact
copolymer compositions that are a blend of a propylene polymer
phase and a rubber phase in which the ethylene content of the rubber
phase is between about 75 to about 95% by weight. The rubber
content of the impact copolymer composition ranges between about
35% by weight to about 60% by weight. The crystallinity of the high
ethylene-content rubber phase provides overall improvement in film
properties and also balance of film tensile properties in the machine
and transverse directions. Compared to traditional impact copolymer
compositions having a low ethylene content-rubber phase, the
inventive copolymers having significantly enhanced melting and
crystallization peaks due to polyethylene-like crystallinity in the
rubber phase.
App. Br. 8-9 and Reply Br. 2. In so contending, Appellants ignore the collective
teachings of the applied prior art references.
As indicated supra, Ethiopia teaches forming a polymer blend that has 50 to
95 percent by weight of an isotactic polypropylene homopolymer and 5 to 50
percent by weight of a reactor grade propylene based elastomer having about 5 to
about 15 percent by weight of ethylene. See also Ethiopia 28-34 and 98. This
polymer blend, according to paragraph 2 of Ethiopia, is suitable for making cold
drawn textured fibers used in forming nowoven webs or fabrics having superior
abrasion resistance and excellent softness characteristics.
As also indicated supra, Mehta, like Ethiopia, teaches forming a polymer
blend having about 60 to 99 % by weight of a semi-crystalline polypropylene
having from 0 to 5 % by weight of an alpha olefin comonomer and about 1 to 40 %
by weight of semi-amorphous polypropylene having from 10 to 25% by weight of
a C2 and/or C4 to C10 alpha-olefin comonomer. See also Mehta 21-29 and
Abstract. Although Mehta teaches that polymer blends of this type may be useful
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for forming fibers, films, molded parts and nonwoven fabrics, it teaches using its
polymer brands to form molded parts having desired impact strength, elongation,
tensile strength, and Secant flexural modulus. Mehta Tflf 3^4 and 107-114.
Although Chatterjee teaches using the higher ethylene content in the rubber
phase than those recited in claim 1 for improving certain film properties, Ethiopia
and Mehta teach that the recited ethylene content in the rubber phase is useful for
forming fibers for nonwoven webs or fabrics having superior abrasion resistance
and excellent softness characteristics or molded parts having desired impact
strength, elongation, tensile strength, and Secant flexural modulus.
Thus, we find no reversible error in the Examiner’s determination that one of
ordinary skill in the art interested in forming nonwoven fabrics or molded parts
would have been led to employ the a polypropylene impact copolymer composition
or blend comprising the recited proportions of polypropylene homopolymer and a
polypropylene copolymer having the recited ethylene content taught or suggested
by either Ethiopia or Mehta, with a reasonable expectations of successfully
forming desired nonwoven fabrics or molded parts having desired properties.
Finally, Appellants contend that:
Table 2 of the present application lists Examples 10-12 with
p/a ratios falling within the scope of the present claims. As shown in
Table 3, such compositions exhibit superior characteristics in terms of
smoothness, cloth-like attributes, stiffness and noise intensity
(lower numbers indicating more favorable values) versus comparative
examples outside the scope of the present invention.
App. Br. 6-7 and Reply Br. 4. However, Appellants do not demonstrate, much
less argue, that these superior characteristics would have been unexpected by one
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of ordinary skill in the art.9 App. Br. 6-7 and Reply Br. 4; see also In re Skoner,
517 F.2d 947, 948 (CCPA 1975)(explaining that expected results are evidence of
obviousness just as unexpected results are evidence of unobviousness); In re Soni,
54 F.3d 746, 751 (Fed. Cir. 1995) (“Mere improvement in properties does not
always suffice to show unexpected results. . . .”). Nor do Appellants argue or
demonstrate that the claimed subject matter imparts unexpected superior results
relative to the closest prior art or that the showing in Examples 10-12 of Tables 2
and 3 is reasonably commensurate in scope with the degree of protection sought by
claim 1 on appeal. App. Br. 6-7 and Reply Br. 4; see also Baxter TravenolLabs.,
952 F.2d 388, 392 (Fed. Cir. 1991) (“[Wjhen unexpected results are used as
evidence of nonobviousness, the results must be shown to be unexpected compared
with the closest prior art.”); In re Harris, 409 F.3d 1339, 1344 (Fed. Cir. 2005)
(“Even assuming that the results were unexpected, Harris needed to show results
covering the scope of the claimed range. Alternatively Harris needed to narrow the
claims.”); In re Greenfield, 571 F.2d 1185, 1189 (CCPA 1978) (“Establishing that
one (or a small number of) species gives unexpected results is inadequate proof,
for ‘it is the view of this court that objective evidence of non-obviousness must be
commensurate in scope with the claims which the evidence is offered to support.’”)
(quoting In re Tiffin, 448 F.2d 791, 792 (CCPA 1971))
Accordingly, Appellants have not established reversible error in the
Examiner’s determination that a preponderance of the evidence leans heavily in
9 In re Klosak, 455 F.2d 1077, 1080 (CCPA 1972) (“the burden of showing
unexpected results rests on he who asserts them”). In re Heyna, 360 F.2d 222, 228
(CCPA 1966) (“It was incumbent upon appellants to submit clear and convincing
evidence to support their allegation of unexpected expected property.”).
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Appeal 2016-004647
Application 12/859,500
favor of the obviousness of the subject matter recited in claims 1-12, 15-19, and
21-23 within the meaning of 35 U.S.C. § 103(a).
II. Rejections 3 and 4
Appellants do not separately argue the Examiner’s decision rejecting claims
13 and 14 under 35 U.S.C. § 103(a) as unpatentable over the combined disclosures
of Ethiopia, Newkirk, Chatterjee, and Kobylivker and rejecting claim 16 under 35
U.S.C. § 103(a) as unpatentable over the combined disclosures of Ethiopia,
Newkirk, Chatterjee, and Mehta. Compare Final Act. 9-10, with App. Br. 5-9.
Appellants appear to rely on the same arguments advanced in connection with
Rejection 1 discussed supra. Compare Final Act. 9-10, with App. Br. 5-9.
Accordingly, based on the findings and reasoning set forth above,
Appellants have not established reversible error in the Examiner’s determination
that a preponderance of the evidence leans heavily in favor of the obviousness of
the subject matter recited in claims 13, 14, and 16 within the meaning of 35 U.S.C.
§ 103(a).
ORDER
In view of the foregoing, the decision of the Examiner to reject claims 1-19
and 21-23 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)(l)(iv).
AFFIRMED
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