Ex Parte Tippet et al

Patent Trial and Appeal Board

Nov 13, 2018

14268826 (P.T.A.B. Nov. 13, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/268,826 05/02/2014 Jon Tippet
25264 7590 11/15/2018
FINA TECHNOLOGY INC
PO BOX 674412
HOUSTON, TX 77267-4412
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.
COS-1336 8490
EXAMINER
ZEMEL, IRINA SOPJIA
ART UNIT PAPER NUMBER
1765
NOTIFICATION DATE DELIVERY MODE
11/15/2018 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):
tammy.brzozowski@total.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JON TIPPET, JOHN ASHBAUGH,
FENGKUI LI, DOUGLAS BURMASTER, JEFFREY E. NAIRN,
MARC MAYHALL, LELAND DANIELS, and
LEONARDO CORTES
Appeal2017-010618
Application 14/268,826 1
Technology Center 1700
Before LINDA M. GAUDETTE, JEFFREY B. ROBERTSON, and
SHELDON M. McGEE, Administrative Patent Judges.
McGEE, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134, Appellant seeks our review of the
Examiner's rejections of claims 1-13 and 15-25. 2 App. Br. 9-18.
1 Appellant is the Applicant, Fina Technology, Inc., which is also identified
as the real party in interest. App. Br. 5.
2 In the Final Office Action dated October 6, 2016 ("Final") the Examiner
refers to the "reasons of record." Final 2, 3. Thus, our Decision refers to the
Non-Final Office Actions dated November 10, 2015 ("Non-Final I.") and
April 25, 2016 ("Non-Final II."), which provide those "reasons of record."
We also refer to the Appeal Brief dated April 3, 2017 ("App. Br."), the
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Application 14/268,826
We have jurisdiction. 35 U.S.C. § 6.
We affirm.
BACKGROUND
The appealed subject matter is directed to polymer foams ( claims 1-
13, 15-18, 21, 22, 24, and 25) and methods of producing polymer foams
( claims 19, 20, and 23).
Claim 1 is illustrative of the appealed subject matter, and is copied
below from the Claims Appendix to the Appeal Brief, with emphasis added
to relevant limitations at issue in this appeal:
1. A polymer foam comprising:
[i)] a polymer composition comprising a propylene based
polymer having a molecular weight distribution of greater than
or equal to 8 as measured by GPC; and
[ii)] between 0.001 and 8 percent of a metallic acrylate
salt,
wherein the polymer foam comprises a density of less than
0.50 glee and an open cell content of less than 80%.
App. Br. 19.
REFERENCES
Zeitler et al. ("Zeitler") US 4,020,025
Alteepping et al. ("Alteepping") US 4,940,736
Ewen US 4,975,403
Shiga et al. ("Shiga") US 5,026,889
Buysch et al. ("Buysch") US 5,061,752
Park et al. ("Park") US 5,116,881
Zhao et al. ("Zhao") US 6,602,956 B 1
Li et al. ("Li' 152") US 2009/0326152 Al
Li et al. ("Li '838") US 2012/0034838 Al
Ninbo CN 102174209 A
Apr. 26, 1977
Jul. 10, 1990
Dec. 4, 1990
Jun.25, 1991
Oct. 29, 1991
May 26, 1992
Aug. 5, 2003
Dec. 31, 2009
Feb.9,2012
Sept. 7, 2011
Examiner's Answer dated June 6, 2017 ("Ans."), and the Reply Brief dated
August 7, 2017 ("Reply Br.").
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REJECTIONS
The claims are rejected under 35 U.S.C. § 103 as follows:
I. Claims 1-7, 15-21, and 23 over Zhao in combination with Ewen
or Shiga (Final 2-3; see also Non-Final I. 8-9).
II. Claims 8-10 over Zhao in combination with Ewen or Shiga, and
further in combination with Buysch (Final 3; see also Non-Final I. 11 ).
III. Claims 11-13 over Zhao in combination with Ewen or Shiga, and
further in combination with Li '152 or Li '838 (Final 3; Non-Final II.
3--4).
IV. Claim 22 over Zhao in combination with Ewen or Shiga, and
further in view of Zeitler (Final 4; Non-Final II. 4).
V. Claim 24 over Zhao in combination with Ewen or Shiga, and
further in view of Alteepping or Park (Final 4).
VI. Claim 25 over Zhao in combination with Ewen or Shiga, and
further in view ofNinbo (Final 4--5).
Rejection I
We address the claims separately to the extent they are so argued by
Appellant. 37 C.F.R. § 4I.37(c)(l)(iv).
Claim 1
The Examiner finds, and Appellant does not dispute, that Zhao
discloses a polymer foam comprising a polypropylene and a zinc diacrylate
salt in the amount recited in claim 1. Non-Final I. 8. The Examiner
acknowledges that Zhao does not expressly disclose the molecular weight
distribution (i.e., "MWD") of the polypropylene, but finds that
polypropylenes having the recited molecular weight distribution were known
in the art at the time of the invention. Id. at 9 ( citing Ewen and Shiga as
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evidence for this finding); see also Final 6 (explaining that "Ewen or Shiga
are merely used in the rejection as the evidence that metallocene polymers
that are already disclosed by Zhao exhibit various MWD, including the
claimed MWD"), and Ans. 6 ("Ewen and Shiga were referred to by the
examiner as evidence of common knowledge of such metallocene
[polypropylene] exhibiting MWD greater than 8 and their availability on the
market"). The Examiner thus determines that the skilled artisan would have
had a "reasonable expectation of achieving results consistent with the use of
[polypropylene] with [the] specific MWD in the absence of [a] showing of
unexpected results." Non-Final Act. I. 9. The Examiner also finds that the
recited foam density "is a common density for polyolefin-based foams," and
relies on Collins3 -prior art that is incorporated by reference into Zhao -
for evidentiary support for this finding. Id. at 10.
Appellant argues that the rejection of claim 1 is in error because the
art fails to teach or suggest the recited polymer foam density and molecular
weight distribution, and further because the Examiner has not provided a
reason to combine Ewen and Shiga with Zhao. App. Br. 9-12. For the
following reasons, we are not persuaded of reversible error in the
Examiner's rejection of claim 1.
Regarding the recited foam density, Appellant urges that the density
values disclosed in the evidentiary Collins reference are not applicable to
polypropylene foams, but rather are specific only to the polystyrene or
polyethylene foams exemplified in Collins. App. Br. 9-10. We disagree. It
is undisputed on this record that Collins - incorporated by reference into
3 US 4,323,528, issued April 6, 1982.
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Zhao - discloses foamed thermoplastics having density values within the
claimed range. 4 Zhao 9:63---66; Collins 1:8-13. Appellant has not identified
error in the Examiner's determinations that thermoplastic foams having the
recited density of "less than 0.50 glee" were known at the time of the
invention, and that the recited foam having such density would have been
obvious from Zhao's disclosure. Non-Final I. 10; Non-Final II. 7; Final 6;
Ans. 3--4. Zhao incorporates Collins' polyolefin foam extrusion process by
reference. Zhao 9:63-66. Collins' disclosure is generic to foamed
thermoplastics, and is not limited to the specific thermoplastics exemplified
therein. Collins 1: 8-13 ("This invention relates to methods and apparatus
for producing foamed thermoplastic, e.g., polystyrene or polyethylene."
( emphasis added)); see also id. at 5: 1-5 ("Thermoplastic polymers usable in
the present invention include polystyrene, high and low density,
polyethylene, polyvinylchloride, and any other thermoplastic polymer
suitable for use in manufacturing thermoplastic foams." ( emphasis added)).
Thus, because Zhao incorporates Collins by reference, we agree with the
Examiner (Ans. 4) that the skilled artisan would have reasonably expected
that Zhao's polypropylene foams, if prepared by Collins' process, would
exhibit a density value consistent with such process - i.e., "not more than 4
pounds per cubic foot." Collins 1: 12-13.
Regarding the molecular weight distribution of Zhao' s polypropylene,
Appellant focuses its arguments on the Examiner's identification of Ewen's
use of a metallocene catalyst to prepare the polypropylene. App. Br. 10-11.
Specifically, Appellant urges that "[t]he Examiner provides no reason why
4 Appellant also does not dispute the Examiner's finding that 4 pounds per
cubic foot is equal to 0.064 glee. Ans. 4.
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every one of near infinite number of metallocene catalyzed polypropylenes
must have a molecular weight distribution of greater than 8." Id. at 11. This
argument does not reveal error in the Examiner's obviousness determination
because it does not address the rationale as set forth in the rejection. As
explained in the Answer (Ans. 6), the rejection states that using a
polypropylene with the claimed molecular weight distribution would have
been obvious because such polymers were "well known in the art." Non-
Final I. 9. Appellant's focus on the metallocene catalysts used to prepare
polypropylene does not address, and thus does not identify error in, the
Examiner's determination that the skilled artisan would have had a
reasonable expectation of successfully using a polypropylene with the
recited molecular weight distribution in Zhao's compositions. Id.
We also find Appellant's conclusory argument that the Examiner does
not provide "reasons for [the] combination of the references" unpersuasive.
App. Br. 12. We discern no error in the Examiner's reliance on Ewen or
Shiga in the rejection because these evidentiary references establish that
polypropylene may generally have a molecular weight distribution of greater
than or equal to 8 as recited in claim 1. As determined by the Examiner
(Non-Final I. 9), the use of propylene based polymers with the recited
molecular weight distribution in Zhao' s compositions "would have been
obvious as a known [polypropylene] and with [a] reasonable expectation of
achieving results consistent with the use of' such polymers.
Thus, because Appellant has not identified reversible error in the
Examiner's rejection of claim 1, we sustain this rejection. Because
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Appellant does not argue claims 2-7, 15-21, or 23 separately, 5 we sustain
the rejection of these claims as well.
Re} ection II
Claim 8, dependent from claim 1, "further comprises from O.001 to 3
weight percent of a peroxydicarbonate peroxide." App. Br. 20.
The Examiner rejects claim 8 relying on the disclosures of Zhao and
Buysch in combination with Ewen or Shiga. Final 3; Non-Final I. 11. The
Examiner finds that Zhao discloses peroxides which function "as free radical
generating compounds," and that Buysch discloses the specifically recited
peroxydicarbonate peroxide as a "radical forming substance." Non-Final I.
11 ( citing Buysch 3 :40-60). Thus, the Examiner determines that "the
claimed peroxide carbonates are known functional equivalents to the
peroxides disclosed by Zhao as free radical generating compounds," and
their use in Zhao' s compositions "would have been obvious with [a]
reasonable expectation of adequate results." Id.
Appellant argues that the Examiner has not established that the
peroxides of Zhao and peroxidicarbonate peroxides of Buysch are
functionally equivalent. App. Br. 13-14. Specifically, Appellant urges that
the Examiner did not establish that the peroxydicarbonate peroxides
5 We do not consider Appellant's statements regarding claims 15, 16, and 19
to be separate arguments for patentability. App. Br. 12-13. The statements
provided regarding claims 15 and 16 are not specific to the limitations
appearing in these claims, and our Rules require greater specificity than the
skeletal assertion provided for claim 19. 37 C.F.R. § 4I.37(c)(l)(iv). See In
re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) ("[T]he Board [has]
reasonably interpreted Rule 41.3 7 to require more substantive arguments in
an appeal brief than a mere recitation of the claim elements and a naked
assertion that the corresponding elements were not found in the prior art.").
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disclosed by Buysch possess other characteristics exhibited by Zhao' s
preferred peroxides, e.g., "low volatility, higher decomposition temperature,
and lower residual odor." Id. at 14.
We disagree. To establish that Zhao's and Buysch's peroxides are
functionally equivalent for their disclosed purpose of forming free radicals,
the Examiner need not show that the separately disclosed peroxides are
identical in every respect. Here, the Examiner establishes that both Zhao' s
peroxides and Buysch' s peroxydicarbonate peroxides generate free radicals
during thermoplastic polymerization. Non-Final I. 11; see also Ans. 10-11
( explaining "[i]t is the Buysch reference that establishes functional
equivalency of the claimed peroxydicarbonate peroxides and the peroxides
disclosed in Zhao for the same function[,] i.e., as radical generation
compounds" (emphasis added)). It is obvious to those skilled in the art to
substitute one known equivalent for another. See In re Omeprazole Patent
Litigation, 483 F.3d 1364, 1374 (Fed. Cir. 2007) ("[T]his court finds no ...
error in [the] conclusion that it would have been obvious to one skilled in the
art to substitute one ARC [alkaline reactive compound] for another."); see
also In re Mayne, 104 F.3d 1339, 1340 (Fed. Cir. 1997) ("Because the
applicants merely substituted one element known in the art for a known
equivalent, this court affirms [the Board's ruling affirming the Examiner's
obviousness rejection].").
Appellant's arguments (Reply Br. 8-9) regarding Zhao's preference
for certain peroxides likewise do not persuade us of reversible error.
Specifically, Appellant's arguments regarding certain different preferred
embodiments of Zhao underscore the Examiner's point (Ans. 9-10)
pertaining to Zhao' s broad disclosure with respect to peroxides ( col 3, 11. 29-
34; col. 5, 1. 56 - col. 6, 1. 7). That is, Zhao's disclosure is not limited to its
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preferred embodiments for "[i]t is well settled that a prior art reference is
relevant for all that it teaches to those of ordinary skill in the art." In re
Fritch, 972 F.2d 1260, 1264 (Fed. Cir. 1992).
For these reasons, and those provided by the Examiner, we sustain the
rejection of claim 8, as well as claims 9 and 10 not separately argued.
Re} ections III & VI
Claim 11, dependent from claim 1, "further comprises from O.001 to 3
weight percent of a polar polymer." App. Br. 20. Claim 25 indirectly
depends from claim 11 and recites specific polar polymers such as
polyethylene glycol. Id. at 22.
Claim 11
The Examiner relies on the combined disclosures of Zhao, Ewen or
Shiga, and Li '83 8 or Li '152 ( collectively, "the Li references") in rejecting
claim 11. Final 3; Non-Final II. 3. The Examiner finds that each Li
reference discloses "that adding small amounts of polar polymer to olefin
based compositions not only improves some of the polymer composition[']s
properties, but also renders the compositions more biodegradable." Non-
Final II. 3. Thus, the Examiner reasons that adding a polar polymer such as
polylactic acid to Zhao's composition would have been obvious. Id. at 3--4.
Appellant argues that the Examiner failed to establish a motivation to
combine the Li references with Zhao and Ewen or Shiga because none of
these references "provide[s] a reason why one of ordinary skill in the art
would find a biodegradable foam to be advantageous," and fail to teach that
the foams formed of polypropylene and a polar polymer would be
biodegradable. App. Br. 14--15.
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For the following reasons, these arguments fail to reveal reversible
error in the rejection. First, we note that Appellant does not address the
Examiner's proffered motivation to add a polar polymer to obtain improved
compositional properties. Non-Final II. 3. Also, for the well-stated reasons
provided by the Examiner in the Answer (Ans. 11 ), we discern no persuasive
merit in Appellant's argument contesting the Examiner's determination that
the skilled artisan would have been motivated to make the foam more
biodegradable. App. Br. 14--15. We are likewise not persuaded by
Appellant's argument (Reply Br. 10) that making Zhao's composition
biodegradable would render it unsatisfactory for its intended purpose.
Appellant has produced no evidence demonstrating that enhanced
biodegradability would negate a given polymer's recyclability.
For these reasons, and those provided by the Examiner, we sustain the
Examiner's rejection of claim 11, as well as the rejection of claims 12 and
13 not separately argued.
Claim 25
The Examiner finds that Zhao, Ewen, and Shiga do not disclose the
polar polymers recited in claim 25, and relies on the disclosure ofNinbo to
address this difference. Final 5. The Examiner determines that it would
have been obvious to add the polar polymers disclosed in Ninbo such as
polycaprolactone to Zhao' s composition because Ninbo teaches that the
addition of such a polar monomer "renders the foamed polypropylene based
foams biodegradable with [a] controlled rate of degradation." Id.
Appellant relies on essentially the same arguments regarding
biodegradability as provided with respect to claim 11. App. Br. 18. We find
these arguments unpersuasive for the reasons already discussed, supra, and
sustain the Examiner's rejection of claim 25.
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Rejection IV
Claim 22 depends from claim 1 and requires the polymer foam to
have a narrower density range and open cell content than required by claim
1. App. Br. 22. The Examiner rejects claim 22 over Zhao and Zeitler, and
Ewen or Shiga as set forth in the Non-Final Office Action dated April 25,
2016. Non-Final II. 4.
Appellant argues that the Examiner failed to establish that Zeitler' s
process "is applicable to the foam of Zhao." App. Br. 16. This argument
does not persuade us of reversible error in the rejection. As well-stated by
the Examiner (Ans. 12), Zeitler's foams are predominantly polyolefin-based,
where such polyolefin may include polypropylene. Zeitler 2:18-23; see also
id. at 6:14--32 (where claim 1 expressly recites an "[e]xtrusion-foamable
composition" which may include up to 90% by weight of propylene.). We
agree with the Examiner's determination that the similarity of Zeitler' s
foams to those of Zhao would have provided the skilled artisan with a
reasonable expectation that Zhao' s propylene foam "may be modified to the
desired open cell/density content in a way similar to the disclosure of
Zeitler." Ans. 12.
It follows that we sustain the rejection of claim 22.
Rejection V
Claim 24, dependent from claim 1, requires the polymer foam to
comprise "a density of greater than 0.15 glee and less than 0.50 glee." App.
Br. 22. The Examiner again relies on the combined disclosures of Zhao and
Ewen or Shiga, and adds either Alteepping or Park, in determining that
claim 24 is obvious. Final 4. Specifically, the Examiner finds that both
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Alteepping and Park evince that the recited density range is common to
polypropylene foams.
Alteepping discloses "[a] method of producing a foamed product
having a density less than 0.2 g/cm3, which comprises foaming a
composition comprising a major proportion of a low viscosity polypropylene
component." Alteepping, Abstract. Park discloses "[a] thermoformable,
rigid or semi-rigid polypropylene foam sheet having a ... density of at least
2.5 lbs/ft3." Park, Abstract.
Appellant argues that "neither Park nor Alteepping teach[ es] a
'common density' for polypropylene foams," and that the skilled artisan
would not have been motivated to use such polypropylenes in Zhao' s
compositions. App. Br. 17. We discern no persuasive merit in these
arguments. Appellant's focus on what is or is not a "common density" for
polypropylene foams does not negate the Examiner's well-supported
findings that polypropylene foams having a density falling within the range
recited in claim 22 existed in the prior art at the time of the invention. Final
4; Alteepping, Abstract; Park, Abstract. Appellant advances no reasonable
argument supporting the assertion that the skilled artisan would not have
been motivated to use the polypropylene foams of Alteepping or Park in
Zhao' s composition as determined by the Examiner.
Therefore, for these reasons and for those provided by the Examiner,
the rejection of claim 24 is sustained. 6
6 We view the Alteepping and Park references as further evidence that
polypropylene foams having a density falling within the range recited in
claim 1, from which claim 24 depends, were known in the prior art at the
time of the invention.
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DECISION
The Examiner's final decision to reject claims 1-13 and 15-25 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
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