Ex Parte Wang et al

Patent Trial and Appeal Board

Feb 28, 2018

14366325 (P.T.A.B. Feb. 28, 2018)

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.
14/366,325 06/18/2014 Shujun J. Wang 67910US004 2332
32692 7590 03/02/2018
3M INNOVATIVE PROPERTIES COMPANY
PO BOX 33427
ST. PAUL, MN 55133-3427
EXAMINER
VAZQUEZ, ELAINE M
ART UNIT PAPER NUMBER
1788
NOTIFICATION DATE DELIVERY MODE
03/02/2018 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):
LegalUSDocketing@mmm.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SHUJUN J. WANG, JAYSHREE SETH,
JINGJING MA, MARK A. WOLTERS, VIVEK BHARTI,
and STEPHEN W. BANY
Appeal 2017-005580
Application 14/366,325
Technology Center 1700
Before DONNA M. PRAISS, JEFFREY R. SNAY, and
DEBRA L. DENNETT, Administrative Patent Judges.
PRAISS, Administrative Patent Judge.
DECISION ON APPEAL1
This is an appeal under 35 U.S.C. § 134 from the Final Rejection of
claims 1—3 and 6—20. App. Br. 3; Ans. 2. We have jurisdiction under 35
U.S.C. § 6(b).
We AFFIRM.
1 In our opinion we refer to the Specification (filed June 18, 2014)
(“Spec.”), the Final Office Action (entered Apr. 5, 2016) (“Final Act.”), the
Appeal Brief (filed Aug. 8, 2016) (“App. Br.”), the Examiner’s Answer
(entered Dec. 16, 2016) (“Ans.”), and the Reply Brief (filed Feb. 15, 2017)
(“Reply Br.”).
Appeal 2017-005580
Application 14/366,325
The subject matter of this appeal relates to “pressure sensitive
adhesive compositions that contain olefin block copolymers.” Spec. 1:4—5.
According to the Specification, pressure sensitive adhesives possess the
following properties at room temperature: “(1) aggressive and permanent
tack, (2) adherence with no more than finger pressure, (3) sufficient ability
to hold onto an adherend, and (4) sufficient cohesive strength to be removed
cleanly from the adherend.” Id. at 1:13—16. Hot melt adhesives are
described in the Specification as “solids at room temperature, but become
tacky and flowable at elevated temperatures, and then re-solidity upon
cooling.” Id. at 1:11—12.
Claim 1 is illustrative below (disputed limitations italicized):
1. A composition blend comprising:
at least one olefmic block copolymer wherein the olefmic
block copolymer comprises at least one block comprising
crystalline ethylene, wherein the at least one block comprising
crystalline ethylene comprises less than 30% by weight
of the olefmic block copolymer,
and wherein the olefmic block copolymer has a density
of less than 0.90 g/cm3 (grams cubic centimeter), and a melt
temperature of from about 100°C to about 120°C;
at least one elastomeric polymer, and
at least one tackifying resin, wherein the blend comprises
a hot meltprocessable pressure sensitive adhesive.
App. Br. 11 (Claims Appendix).
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Appeal 2017-005580
Application 14/366,325
The Examiner maintains, and Appellant2 appeals, the following
rejections:
1. Claims 1—3, 7—17, and 193 stand rejected under 35 U.S.C. § 102(e)
as anticipated by Alper;4
2. Claim 6 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Alper in view of Quinn;5
3. Claim 18 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Alper in view of Aoyama;6 and
4. Claim 20 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Alper in view of Mussig.7
Appellant argues the rejection of claim 1 and relies on those same
arguments with respect to claims 2, 3, and 6—20. App. Br. 3—9. In
accordance with 37 C.F.R. § 41.37(c)(l)(iv), and in view of the lack of
argument over the subsidiary rejections, claims 2, 3, and 6—20 will stand or
fall together with claim 1.
2 Appellant is the Applicant, 3M Innovative Properties Company. The real
parties in interest are identified in the Appeal Brief as 3M Company and its
affiliate 3M Innovative Properties Company. App. Br. 2.
3 Claims 4 and 5 are not included in the rejection because these claims have
been cancelled. Final Act. 2.
4 Alper et al., US 2011/0021103 Al, published Jan. 27, 2011 (“Alper”).
5 Quinn et al., US 6,582,829 Bl, issued June 24, 2003 (“Quinn”).
6 Aoyama et al., US 2010/0317802 Al, published Dec. 16, 2010
(“Aoyama”).
7 Mussig et al., US 2011/0067799 Al, published Mar. 24, 2011 (“Mussig”).
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Appeal 2017-005580
Application 14/366,325
OPINION
The dispositive issue for this appeal is whether the Examiner erred in
in finding that Alper discloses a pressure sensitive adhesive composition that
comprises an elastomeric polymer as required by claim 1.
After review of the arguments and evidence presented by both
Appellant and the Examiner, we affirm the stated rejections.
The Examiner finds that Alper discloses the composition required by
claim 1 for the reasons stated on pages 2—3 of the Final Office Action.
In the Appeal Brief, Appellant argues that Alper discloses hot melt
adhesives and not Appellant’s pressure sensitive adhesives that are hot melt
processable. App. Br. 4. According to Appellant, hot melt adhesives are
thermoplastics, which means they melt and flow upon heating and upon
cooling return to their original state whereas pressure sensitive adhesives are
viscoelastic, which means they have viscous flow properties as well as
elastomeric (rubber-like) properties. Id. at 4—5. Appellant contends that, by
definition, a hot melt adhesive is not a pressure sensitive adhesive, therefore,
Alper’s compositions are a different class of materials. Id. at 5. Appellant
asserts that Alper’s polymer blend differs from the claimed blend because
Alper combines an olefin block copolymer with a thermoplastic material
whereas claim 1 requires a blend of an olefin block copolymer with an
elastomer. Id. at 6 (quoting Alper | 58, “Any of a variety of well-known and
readily available thermoplastic materials can be used as the secondary
polymer in the adhesive compositions.”).
Appellant further asserts that the rejection over Alper
“misunderstand[s] that the olefin block copolymers (OBC) of Alper are
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Application 14/366,325
thermoplastic elastomers.” Id. at 7. Appellant contends that Comert8 does
not evidence that pressure sensitive adhesives and hot melt adhesives are not
mutually exclusive, but, rather, “[t]he materials in Comert are thermoplastic
elastomers (styrene-isoprene-styrene copolymers)” which Comert describes
as pressure sensitive adhesives that can be processed as hot melts, the same
as Appellant’s compositions. Id. (citing Comert 1:8—12). According to
Appellant, thermoplastic elastomeric block copolymers include end blocks
that are thermoplastic and mid-blocks that are elastomeric giving them both
the properties of a thermoplastic, making them suitable for use in hot melt
adhesives, as well as elastomeric properties, making them suitable for use in
pressure sensitive adhesives. Id. Because it has both features, the
component blended with it is said to determine whether it functions as a
thermoplastic or an elastomer. Id. Appellant concedes that “Alper does
include a thermoplastic elastomer as a component” but argues that Alper’s
composition is a hot melt adhesive and not a pressure sensitive adhesive
because Alper blends a thermoplastic with an OBC thermoplastic elastomer.
Id.
The Examiner responds that Alper teaches a composition with a
degree of pressure sensitivity that can be increased or decreased with the
addition of one or more secondary polymers. Ans. 9 (citing Alper | 69).
Regarding the different characteristics of hot melt and pressure sensitive
adhesives, the Examiner finds such compositions are not mutually exclusive
and that pressure sensitive adhesives can be thermoplastic as evidenced by
Comert. Id. The Examiner also finds that Alper specifies that the secondary
thermoplastic material can be acrylonitrile-butadiene-styrene elastomers,
8 Comert et al., US 4,725,641, issued Feb. 16, 1988 (“Comert”).
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Application 14/366,325
indicating that an elastomer can be thermoplastic. Id. at 10 (citing Alper
| 59). The Examiner additionally finds the materials recited in Appellant’s
claim 7, which recites “wherein the elastomeric polymer comprises a
styrene-based block copolymer, a (meth)acrylate based copolymer, or a
polyolefin elastomer,” are all disclosed as examples of Alper’s secondary
polymer. Id. (citing Alper | 59). Finally, the Examiner notes that Alper
discloses that pressure is used to bond two substrates together with Alper’s
adhesive. Id. (citing Alper || 44, 45).
In the Reply Brief, Appellant maintains that the “materials” of Alper
and the claimed composition are “of different classes” in terms of being hot
melt adhesives or pressure sensitive adhesives. Reply Br. 2. According to
Appellant, Comert does not disclose thermoplastic materials, but, rather,
thermoplastic elastomers which are a “hybrid material” that cannot be
“lumped in either with thermoplastic materials or elastomeric materials”
although there are thermoplastic elastomers that are “primarily like
elastomers.” Id. Appellant asserts that the Examiner erred in finding that
Alper teaches a pressure sensitive adhesive “because Alper teaches
thermoplastic materials and does not teach thermoplastic elastomeric
polymers.” Id. Regarding Alper’s secondary polymer materials identified
by the Examiner, Appellant contends that they “are thermoplastic
elastomeric block copolymers which are not elastomers they are hybrid
materials.” Id. at 3^4.
For the reasons discussed below, Appellant’s arguments fail to
identity a reversible error in the Examiner’s claim interpretations and
findings as to Alper. In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011).
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Application 14/366,325
We are not persuaded that the Examiner erred in finding that Alper
discloses an elastomeric polymer as a secondary polymer for adding to an
olefmic block copolymer. Appellant does not dispute that Alper discloses
the olefmic block copolymer required by claim 1. Nor does Appellant
dispute that Alper teaches the addition of a secondary polymer and
tackifying resin. The problem with Appellant’s argument that Alper does
not teach a pressure sensitive adhesive because Alper’s secondary polymer
is said to be thermoplastic and not elastomeric (App. Br. 6; Reply Br. 2 4) is
that Appellant has not adequately shown the materials identified in Alper’s
paragraph 59 are not elastomeric. As the Examiner finds, Alper discloses
“elastomers” among the secondary polymer in the adhesive composition.
Ans. 10; Final Act. 2. This finding is supported by the record. Alper | 59.
The Examiner also finds that Alper discloses the same materials that
Appellant claims are elastomeric in Appellant’s dependent claim 7. Ans. 10;
Alper | 59; App. Br. 11 (Claims Appendix). Appellant does not dispute
these findings of the Examiner. Essentially, Appellant’s sole argument that
the secondary polymer materials identified in paragraph 59 of Alper do not
teach an elastomeric polymer is that “Alper calls the secondary polymer a
thermoplastic.” Reply Br. Appellant concedes that “Alper does include a
thermoplastic elastomer as a component” (App. Br. 7), but does not
adequately explain why a thermoplastic elastomer is not an elastomeric
polymer within the meaning of claim 1. Based on the positions of both the
Examiner and Appellant, the preponderance of the evidence supports the
Examiner’s finding that Alper discloses an elastomeric polymer as the
secondary polymer in its adhesive composition.
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Application 14/366,325
We also are not persuaded that the Examiner erred in finding that
Alper discloses a pressure sensitive adhesive composition. According to
Appellant, what makes Alper’s composition a hot melt adhesive is Alper’s
title, Alper’s statement that the invention relates to hot melt adhesives,
Alper’s diaper assembly embodiment that does not require a lot of pressure
to form the bond, and Alper’s statement that the secondary polymer is
thermoplastic. App. Br. 4—6. Appellant describes the difference between a
thermoplastic elastomeric block copolymer forming a hot melt adhesive and
a pressure sensitive adhesive is the blend with either a thermoplastic or an
elastomer, respectively. Id. at 7. As discussed above, the Examiner’s
finding that Alper discloses elastomeric polymers as the secondary polymer
to add to the olefmic block copolymer is supported by the preponderance of
the evidence in the cited record on appeal. Accordingly, the Examiner’s
finding that Alper discloses a pressure sensitive adhesive composition
likewise is supported by the preponderance of the evidence cited in this
appeal because Alper discloses adding an elastomeric polymer to the same
olefmic block copolymer as Appellant. Moreover, Appellant does not
adequately rebut the Examiner’s finding that Alper teaches a composition
with a degree of pressure sensitivity that can be increased or decreased with
the addition of one or more secondary polymers. Ans. 9 (citing Alper 169).
Based on the cited record on appeal, we are not persuaded of error in
the Examiner’s rejection of claim 1. Accordingly, we affirm the stated
rejections of claims 1—3 and 6—20.
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Application 14/366,325
DECISION
For the foregoing reasons, we affirm all of the Examiner’s rejections.
No time period for taking any subsequent action in connection with
this Appeal may be extended under 37 C.F.R. § 1.136(a)(1).
AFFIRMED
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