Ex Parte Tice et al

Patent Trial and Appeal Board

Nov 30, 2017

14350091 (P.T.A.B. Nov. 30, 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.
14/350,091 04/07/2014 Colleen M. Tice 71773-US-PCT 8452
76104 7590 12/04/2017
The Dow Chemical Company/Brooks Cameron & Huebsch
1201 MARQUETTE AVENUE SOUTH, SUITE 400
Minneapolis, MN 55403
EXAMINER
UTT, ETHAN A
ART UNIT PAPER NUMBER
1783
NOTIFICATION DATE DELIVERY MODE
12/04/2017 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):
DOW.DOCKETING@BIPL.NET
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte COLLEEN M. TICE,
TERESA P. KARJALA, LEI HAO,
XIAO B. YUN, and CHANG WU
Appeal 2017-004724
Application 14/350,091
Technology Center 1700
Before MICHAEL P. COLAIANNI, GEORGE C. BEST, and
N. WHITNEY WILSON, Administrative Patent Judges.
COLAIANNI, Administrative Patent Judge.
DECISION ON APPEAL
Appellants1 appeal the final rejection of claims 1—4, 6, 7, and 9-12
under 35 U.S.C. § 134(a). We have jurisdiction over the appeal pursuant to
35 U.S.C. § 6(b).
We AFFIRM.
1 Appellants identify the real party in interest as “Dow Global Technologies
LLC.” (Appeal Br. 2).
Appeal 2017-004724
Application 14/350,091
Appellants’ invention relates to a multi-layered shrink film (Spec.
1:16-17).
Claim 1 is illustrative (emphasis and some paragraphing added):
1. A multi-layered shrink film comprising:
at least three layers including two skin layers and at least one
core layer;
wherein at least one layer comprises from 20 to 65 weight
percent units derived from one or more ethylene-based polymer
compositions characterized by having CDC in the range of
from 90 to 130, a vinyl unsaturation of from 55 to 70
vinyls/1,000,000 C; a ZSVR in the range from at least 8 to 12; a
density in the range of 0.93 to 0.94 g/cm3, a melt index (I2) in
the range of from 0.3 to 0.6 g/10 minutes, a molecular weight
distribution (Mw/Mn) in the range of from 2 to 4, and a
molecular weight distribution (Mz/Mw) in the range of from 1.5
to 3; and
wherein the multi-layered film exhibits at least one
characteristic selected from the group consisting of 45 degree
gloss of at least 50%, a total haze of 15% or less, an internal
haze of 8% or less, 1% CD Secant Modulus of 43,000 psi or
greater, 1% MD Secant Modulus of 38,000 psi or greater, CD
shrink tension of at least 0.7 psi, and/or MD shrink tension of at
least 10 psi;
wherein the ethylene-based polymer is prepared via a solution
polymerization process s in the presence of a catalyst system
comprising a metal complex of a polyvalent aryloxyether.
Appeal Br. App. i (Claims App’x.).
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Appeal 2017-004724
Application 14/350,091
Appellants appeal the following rejection:
I. Claims 1—4, 6, 7, and 9-12 are rejected under 35 U.S.C.
§ 103(a) as unpatentable over Best2 in view of Konze3 (Final
Act. 2—8; Ans. 2—8).
Appellants’ arguments focus on the subject matter of independent
claim 1 (Appeal Br. 3—11; Reply Br. 4—7). We select claim 1 as
representative. Any claims not argued separately will stand or fall with our
analysis regarding the present independent claim 1. 37 C.F.R.
§ 41.37(c)(iv).
Appellants raise new arguments against the Examiner’s findings
regarding Konze’s teachings for the first time in the Reply Brief (Reply Br.
4—7). These arguments were not made in response to issues raised by the
Examiner for the first time in the Examiner’s Answer. Rather, Final Office
Action mailed Feb. 8, 2016, includes findings and conclusions regarding
Konze that are substantially similarly to those included in the Examiner’s
Answer (see, e.g., Final Act. 3-A (“Konze discloses ethylene-based polymer
compositions made according to the above process have densities of 0.885 to
0.940 g/cm3 . . . , a melt index (E) of less than 10.0 g/10 min . . . , and a
molecular weight distribution (Mw/Mn) of less than 3.0 . . .”); Ans. 3—4).4
In the “Response to Arguments’’ section of the Answer, the Examiner
2 US 2007/0260016 A1 to Best et al., published Nov. 8, 2007.
3 US 2010/0036069 Al to Konze et al., published Feb. 11, 2010.
4 See also the Examiner’s determination that Konze’s process renders
obvious each of the claimed ranges for CDC, vinyl unsaturation, ZSVR,
density, melt index (I2), molecular weight distribution (Mw/Mn), and
molecular weight distribution (Mz/Mw) (Final Act. 4; Ans. 4).
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Appeal 2017-004724
Application 14/350,091
merely responds to Appellants’ arguments regarding the rejection of claim 1
made in the principal Brief (Ans. 8—9). Therefore, we shall not consider
Appellants’ improperly raised new arguments included in the Reply Brief.
See 37 C.F.R. § 41.41(b)(l)(2); cf. Exparte Borden, 93 USPQ2d 1473, 1474
(BPAI 2010) (informative).
FINDINGS OF FACT & ANALYSIS
Appellants argue that the Examiner has reversibly erred because
neither Best nor Konze teaches all of the required limitations of claim 1
(Appeal Br. 8). In particular, Appellants contend that Best “discloses
metallocene-catalyzed linear low density polyethylene [LLDPE]
copolymers, copolymer blends, and articles made therefrom” {id. at 8 (citing
Best 12)). According to Appellants, such metallocene catalysis requires a n
bond between the metal and the cyclopentadienyl ring (Appeal Br. 8 (citing
Hawley’s Condensed Chemical Dictionary)). Appellants contrast Best’s
metallocene-catalyzed copolymers with the claimed catalyst system, which
is comprised of a metal polyvalent aryloxyether that does not include a n
bond (Appeal Br. 9).
Appellants’ arguments are not persuasive because the Examiner is not
modifying Best’s metallocene-catalyzed process for making LLDPE
polymers (Ans. 9). Rather, the Examiner’s modification proposes
incorporating Konze’s ethylene-based polymers made using a metal
polyvalent aryloxyether catalyst, and the properties associated with Konze’s
manufacturing process, into Best’s shrink film (id. ). As the Examiner found,
Best indicates that other ethylene-based polymers may be included with
Best’s inventive LLDPE polymers (id. (citing Best | 86)). Therefore,
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Appeal 2017-004724
Application 14/350,091
Appellants’ arguments highlighting distinctions between Best’s and Konze’s
processes fail to identify reversible error in the Examiner’s finding that the
applied prior art in combination teaches the multi-layered shrink film of
claim 1.
Appellants argue that the Examiner fails to provide the required
articulated reasoning with some rational underpinning as to why a person of
ordinary skill in the art would have selected Konze’s polymers as the second
polymer from a vast number of possibilities (Appeal Br. 10). Appellants
further argue that the Examiner’s proposed combination of Best and Konze
fails to disclose or suggest the particular combined claimed properties of the
claimed ethylene-based polymer compositions, namely the respective ranges
for CDC, vinyl unsaturation, ZSVR, density, melt index (I2), molecular
weight distribution (Mw/Mn), and molecular weight distribution (Mz/Mw)
{id. at 10-11). According to Appellants, “[t]he Examiner fails to appreciate
that the required combined properties of the present claimed invention is one
possibility from a vast number of possibilities which would be nearly
impossible to achieve without the help of hindsight from the present claimed
invention” {id. at 11).
Contrary to Appellants’ arguments, the Examiner’s rejection is
properly based upon a motivation to use Konze’s polymers, which have
particular applicability in molding and extrusion in film applications (Ans. 9
(citing, e.g., Konze 125)). We discern no reversible error in the Examiner’s
determination that such applications would have suggested suitability of
Konze’s polymers with Best’s polymeric compositions, which Best discloses
as suitable for extruded/molded films, housewrap, shrink films, etc. (Ans. 9
(citing Best || 91—93)).
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Appeal 2017-004724
Application 14/350,091
Contrary to Appellants’ arguments that the present claimed
invention’s required combination of properties of is one of a vast number of
possibilities, the Examiner’s rejection is properly based upon the teachings
of the applied references to adjust Konze’s disclosed process parameters to
achieve the claimed ranges for density, melt index (I2), and Mw/Mn as
needed because each of Konze’s process parameters affects the disclosed
characterization properties of the ethylene-based polymer compositions
(Ans. 3^4 (citing Konze Tflf 16, 35, 178—180)).
Furthermore, we note that Appellants do not dispute the Examiner’s
finding that Konze’s process is substantially similar to the process described
in the Specification (Ans. 4; compare Konze 6, 15, 30, 174, 177, 180;
Spec. 4:16—7:11). Thus Appellants’ arguments fail to identify reversible
error in the Examiner’s finding that Konze’s process parameters may be
adjusted to obtain an ethylene-based polymer composition characterized by
having a comonomer distribution constant (CDC) in the range of from 90 to
130; a vinyl unsaturation of from 55 to 70 vinyls/1,000,000 C; a zero-shear
viscosity ratio (ZSVR) in the range from at least 8 to 12; and a molecular
weight distribution (Mz/Mw) in the range of from 1.5 to 3 (Ans. 4).
Accordingly, the applied prior art would have suggested, within the
meaning of §103, the modifications of Best in view of Konze as found by
the Examiner. Appellants’ arguments do not persuasively refute the
Examiner’s reasoning supporting the stated rejection’s findings, reasoning,
and conclusions.
Thus, based on this record, we sustain this rejection.
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Appeal 2017-004724
Application 14/350,091
CONCLUSION
Therefore, on this record and for the above reasons, we sustain the 35
U.S.C. § 103(a) rejection of claims 1—4, 6, 7, and 9-12 over the cited prior
art.
DECISION
The Examiner’s § 103(a) rejection 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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