Gkinosatis, Dimitris

Patent Trials and Appeals Board

Sep 18, 2020

2019003426 (P.T.A.B. Sep. 18, 2020)

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.
12/957,947 12/01/2010 Dimitris Gkinosatis 1406/686 2089
25297 7590 09/18/2020
Jenkins, Wilson, Taylor & Hunt, P.A.
3015 Carrington Mill Boulevard
Suite 550
Morrisville, NC 27560
EXAMINER
SHOSHO, CALLIE E
ART UNIT PAPER NUMBER
1787
NOTIFICATION DATE DELIVERY MODE
09/18/2020 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):
datcheson@jwth.com
usptomail@jwth.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
______________
BEFORE THE PATENT TRIAL AND APPEAL BOARD
______________
Ex parte DIMITRIS GKINOSATIS
______________
Appeal 2019-003426
Application 12/957,947
Technology Center 1700
______________
Before GEORGE C. BEST, DONNA M. PRAISS, and
MICHAEL G. McMANUS, Administrative Patent Judges.
BEST, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1, 2, 4, 5, 10, 14, 16, 18, 29–32, and
37–51 of Application 12/957,947. Final Act. (May 7, 2018). We have
jurisdiction under 35 U.S.C. § 6.
For the reasons set forth below, we affirm.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies Flexopack S.A. Plastics Industry as the
real party in interest. Appeal Br. 1.
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I. BACKGROUND
The ’947 Application describes a polymeric film comprising an odor
barrier material that can be used to pack malodorous waste. Spec. 1. For
example, the film can be shaped into a tube and stored in a compressed form
in a cassette. Id. at 1–2. The tube of material can then be dispensed from the
cassette and used to, e.g., dispose of soiled diapers. Id.
Claim 1 is representative of the ’947 Application’s claims and is
reproduced below from the Claims Appendix of the Appeal Brief.
1. A multilayer film having a weight less than 15 g/m² for
use in malodorous item packaging, where the film comprises at
least
(a) an outer layer consisting of polypropylene,
(b) a layer comprising an oxygen barrier material,
wherein the layer comprising the oxygen barrier
material comprises a saponified ethylene vinyl
ester copolymer (EVOH) and/or a polyamide,
(c) an inner layer comprising an ethylene alpha olefin
copolymer, and
(d) two intermediate layers comprising maleic
anhydride modified polyolefin; and
further wherein the multilayer film is produced by a hot blown
film method.
Appeal Br. 30 (paragraphing and indentation added).
During prosecution of the ’947 Application, Appellant entered three
declarations from George Roussos into the record. We refer to these
declarations as Roussos I (entered June 13, 2013), Roussos II (August 1,
2016), and Roussos III (March 24, 2017).
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II. REJECTIONS
On appeal, the Examiner maintains the following rejections:
1. Claims 1, 2, 5, 14, 18, 30, 32, 37–48, and 50 are rejected under 35
U.S.C. § 103(a) as unpatentable over the combination of Wuest2
and Gkinosatis.3 Final Act. 3.
2. Claims 4, 10, 16, 29, and 31 are rejected under 35 U.S.C. § 103(a)
as unpatentable over the combination of Wuest, Gkinosatis, and
Wolf.4 Final Act. 13.
3. Claim 37 is rejected under 35 U.S.C. § 103(a) as unpatentable over
the combination of Wuest, Gkinosatis, and either Rasanen5 or
Nair.6 Final Act. 15.
4. Claims 49 and 51 are rejected under 35 U.S.C. § 103(a) as
unpatentable over the combination of Wuest, Gkinosatis, and
Anzawa.7 Final Act. 17.

2 US 2004/0043238 A1, published March 4, 2004.
3 US 2009/0191392 A1, published July 30, 2009.
4 US 6,406,763 B1, issued June 18, 2002.
5 US 2007/0178285 A1, published August 2, 2007.
6 US 2003/0124452 A1, published July 3, 2003.
7 US 4,619,849, issued October 28, 1986.
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III. DISCUSSION
A. Rejection of claims 1, 2, 5, 14, 18, 30, 32, 37–48, and 50 over
Wuest and Gkinosatis
For the purposes of this appeal, Appellant divides the claims subject
to this ground of rejection into three groups. Appeal Br. 5–23. We address
each group of claims individually.
1. Claims 1, 2, 5, 14, 18, 30, 32, and 37–42
Appellant argues for reversal of the rejection of these claims on the
basis of limitations found in independent claims 1 and 38. Appeal Br. 5–19.
Accordingly, we limit our discussion to these claims. Claims 2, 5, 14, 18, 30,
32, 37, and 39–42 will stand or fall with the independent claim from which
they directly or indirectly depend.
The Examiner rejected independent claims 1 and 38 as unpatentable
over the combination of Wuest and Gkinosatis. Final Act. 3–13.
The Examiner found that Wuest describes a multilayer polymeric film
having an inner layer, an outer layer, and an oxygen barrier layer having the
composition recited in in claims 1 and 38. Id. at 3. The Examiner further
found that Wuest does not explicitly disclose both the specific polymeric
material required for its tie layers–which correspond to the claimed
intermediate layers—and a multilayer polymeric film meeting the weight per
unit area limitations recited in claims 1 and 38. Id. at 4.
The Examiner found that Gkinosatis describes a multilayer polymeric
film used to pack malodorous waste comprising an oxygen barrier layer and
having a weight of less than 16 g/m², which overlaps with the weight
limitations recited in claims 1 and 38. Id. The Examiner further found that
Gkinosatis describes the production of lightweight multilayer polymeric
films as extremely beneficial for the environment. Id. at 5 (citing Gkinosatis
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¶ 13). The Examiner also found that Gkinosatis’s multilayer polymeric film
includes an intermediate layer comprised of maleic anhydride modified
polyolefin, which is the material recited in claims 1 and 38. Id. at 4–5.
The Examiner found that it would been obvious to a person of
ordinary skill in the art to use Gkinosatis’s intermediate layer material in
Wuest’s multilayer polymeric film because Gkinosatis describes the
intermediate layer material as a useful tie layer in a multilayer polymeric
film. Id. at 5. The Examiner further found that Gkinosatis’s statement
regarding the environmental benefits of making lighter weight multilayer
polymeric films would have motivated a person of ordinary skill in the art at
the time of the invention to manufacture such films with the weight of less
than 15 g/m². Id.
Appellant alleges the following errors in the rejection of independent
claims 1 and 38: (1) at the time of the invention, a person having ordinary
skill in the art would not have had a reasonable expectation that Wuest and
Gkinosatis could be combined successfully in the manner relied upon by the
Examiner, Appeal Br. 6–10; (2) the Examiner made erroneous factual
findings regarding the content of the prior art, id. at 10–13; (3) the Examiner
did not consider Appellant’s evidence of unexpected results properly, id. at
11–18; and (4) the Examiner did not consider properly the evidence offered
in Roussos III, id. at 18–19. We address these arguments in turn.
First, Appellant argues that the manufacture of very thin multilayer
polymer packaging films is unpredictable. Id. at 6–7. Because of this
unpredictability, Appellant asserts that a person of ordinary skill in the art
would not have had a reasonable expectation that Wuest and Gkinosatis
could be successfully combined in the manner proposed by the Examiner. Id.
at 7–10.
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In making this argument, Appellant relies upon the opinion testimony
and evidence provided in Roussos III. Id. at 7–8 (citing Roussos III ¶¶ 5, 7,
9, 10). The cited portions of Roussos III state nothing more than the
unsurprising propositions that (1) making extremely thin films is difficult
and (2) decreasing a film’s thickness film changes the film’s mechanical
properties. Roussos III ¶¶ 7, 10. In our view, the cited portions of Roussos
III are not sufficient to establish that the manufacture of thin multilayer
polymeric films is especially unpredictable.
Second, Appellant argues that the Examiner made erroneous factual
findings regarding the content of the prior art. Appeal Br. 10–13. In
particular, Appellant argues that the Examiner erred by finding that Wuest
recognizes the criticality of using polypropylene in the outer layer. Id. at 10.
Appellant argues that Wuest does not recognize that the use of
polypropylene in the outer layer provides superior results in the context of
multilayer films weighing less than 15 g/m². Id. at 10–11.
We agree with Appellant.
In the Final Action, the Examiner relied upon Wuest’s paragraph 33 to
find that “Wuest does recognize the criticality of using polypropylene in the
outer layer.” Final Act. 23. This portion of Wuest, however, merely states
that a biaxially oriented polypropylene homopolymer or copolymer can be
used in “a certain preferred embodiment of the invention.” Wuest ¶ 33.
Wuest, however, describes a large number of polymers as potentially useful
as the outer layer of its multilayer polymeric film. Id. (“The outer layer 112
may include any polymeric layer that provides resistance to the packaging
film and may also provide dimensional stability, machinability, and abuse
and heat resistance.”). Without more, a statement that a particular polymer is
used in a preferred embodiment is not a recognition of criticality. Thus, the
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Examiner erred by finding that Wuest recognizes the alleged criticality of
using polypropylene in the outer layer of the multilayer polymeric film.
This error, however, does not mandate reversal of the rejection of
claims 1 and 38 unless Appellant has shown that using polypropylene as the
outer layer of the multilayer film actually is critical—i.e., provides
unexpected results.
Third, Appellant argues that the Examiner did not consider
Appellant’s evidence of unexpected results properly. Appeal Br. 7–18. In
particular, Appellant argues that the claimed multilayer polymeric film
unexpectedly combines a weight of less than 15 g/m2 and suitable
mechanical properties for use in packaging malodorous waste. Id. at 7 (citing
Roussos III ¶ 7).
We are not persuaded by Appellant’s arguments. Rather, we agree
with the Examiner that the results presented in the ’947 Application’s
Specification8 are insufficient to establish unexpected results with respect to
the full scope of claims 1 and 38. See Answer 19 (“The data [are] not
commensurate in scope with the scope of the present claims.”). For example,
Appellant presents experimental data from two exemplary multilayer
polymeric films. Appeal Br. 9 (Examples 1 & 2). In both these examples, the
same polypropylene copolymer of unspecified composition is used as the
outer layer. See Spec. 12 (describing PP1 as “Polypropylene copolymer”).
Claims 1 and 38 recite that the outer layer consists of polypropylene. The
Specification defines polypropylene:

8 These results are presented on pages 11–17 of the Specification. We thank
Appellant’s counsel for compiling the results in a single table. See Appeal
Br. 9.
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As used herein, the term “polypropylene” refers to
polymers incorporating propylene structural units. Examples of
these, [sic] are homo polypropylenes, random copolymers of
propylene and ethylene, block copolymers of propylene and
ethylene, copolymers or blends of propylene and rubber[ ](such
as blends of propylene and ethylene propylene rubber),
propylene ethylene alpha olefin terpolymers and others.
These polymers may be isotactic, syndiotactic or atactic.
Isotactic configuration is preferred.
Spec. 6. Given the essentially limitless number of possible polypropylene
copolymers that could be used as the outer layer of the claimed multilayer
polymeric film, a pair of examples using the same unspecified
polypropylene copolymer can hardly be said to be commensurate in scope
with claims 1 and 38.
Fourth, Appellant argues that the Examiner did not consider evidence
offered in Roussos III. Appeal Br. 18–19. In particular, Appellant notes that
the Examiner has objected to the use of terms like ‘believe’ in the Third
Roussos Declaration.” Id. at 18 (citing Final Act. 26). Appellant argues that
the Examiner’s objection indicates that the Examiner did not give any
weight to Roussos III.
We are not persuaded by this argument. In the passage in question, the
Examiner states that Appellant has only presented evidence of Roussos’s
belief and has not presented definitive evidence on the point at issue. See
Final Act. 26. The Examiner goes on to state that “even if there was [a]
proper side-by-side comparison, the data still would not be persuasive, given
that the data remains not commensurate in scope with the scope of the
claims.” Id. This indicates that the Examiner has considered the evidence in
question and found it wanting. We do not discern reversible error in the
Examiner’s consideration of Roussos III.
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For the reasons set forth above, we affirm the rejection of independent
claims 1 and 38. Thus, we also affirm the rejection of dependent claims 2, 5,
14, 18, 30, 32, 37, and 39–42.
2. Claims 43–46
Claims 43–45 depend, directly or indirectly, from independent claim
38. Claim 46 depends from independent claim 1. Appellant argues that these
claims are patentable over the asserted prior art for the same reasons that the
parent independent claims are patentable. Appeal Br. 19. In particular,
Appellant argues that the experimental data presented in the Specification
demonstrates unexpected results with respect to the subject matter of these
claims.
This argument is not persuasive because the experimental results still
are not commensurate in scope with the breadth of the claims for at least the
reasons discussed above.
Thus, we affirm the rejection of claims 43–46.
3. Claims 47, 48, and 50
Appellant argues that the rejection of independent claim 47 and its
dependent claims 48 and 50 should be reversed for essentially the same
reasons we have discussed in connection with independent claim 1. See
Appeal Br. 21–23.
Appellant’s arguments with respect to these claims are not persuasive
because the evidence of unexpected results remains incommensurate with
the scope of the claims.
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B. Rejection of claims 4, 10, 16, 29, and 31 over Wuest,
Gkinosatis, and Wolf
Appellant notes that claims 4, 10, 16, 29, and 31 depend, directly or
indirectly, from claim 1.9 Appeal Br. 23. Appellant argues that Wolf does
not cure the alleged defects in the rejection of claim 1 over the combination
of Wuest and Gkinosatis. Id. Thus, Appellant argues that the rejection of
claims 4, 10, 16, 29, and 31 should be reversed for the same reasons that the
rejection of claim 1 should have been reversed. Id.
For the reasons set forth above, we have affirmed the rejection of
claim 1. Thus, we also affirm the rejection of claims 4, 10, 16, 29, and 31.
C. Rejection of claim 37 over Wuest, Gkinosatis, and either
Rasanen or Nair
Appellant notes claim 37 depends from claim 1. Appeal Br. 24.
Appellant argues that neither Rasanen nor Nair cure the alleged defects in
the rejection of claim 1 over the combination of Wuest and Gkinosatis. Id.
Thus, Appellant argues that claim 37’s rejection should be reversed for the
same reasons that the rejection of claim 1 should have been reversed. Id.
For the reasons set forth above, we have affirmed the rejection of
claim 1. Thus we also affirm the rejection of claim 37.
D. Rejection of claims 49 and 51 over Wuest, Gkinosatis, and
Anzawa
Appellant presents separate arguments for the patentability of claims
49 and 51. Appeal Br. 25–28. Thus, we address each of these claims
separately.

9 We assume that the Appeal Brief's omission of claim 10 is an inadvertent
error.
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1. Claim 49
Appellant argues that the rejection of claim 49 should be reversed
because the combination of Wuest, Gkinosatis, and Anzawa does not teach
or suggest each and every element of claim 49. Appeal Br. 26. In particular,
Appellant argues that Anzawa does not cure the failure of Wuest and
Gkinosatis to describe or suggest a multilayer film having a weight of less
than 15 g/m². Id. at 25.
We are not persuaded by this argument. In rejecting independent
claim 47—from which claim 49 depends—the Examiner found that the
combination of Wuest and Gkinosatis suggested making a multilayer film
having a weight of less than 15 g/m² to reduce the environmental impact of
such films. Final Act. 9–11. The Examiner also found that the weight range
for the claimed multilayer polymeric film was prima facie obvious by virtue
of Gkinosatis’s description of its film as having a weight in a range that
overlaps the range recited in claim 47. Id. at 9.
Appellant further argues that it submitted evidence of unexpected
results with respect to the polymer films recited in claim 49. Appeal Br. 26.
Neither are we persuaded by this argument. For the reasons we have
discussed in connection with claim 1, we determine that the data presented
by Appellant are not commensurate in scope with the claims at issue.
For the reasons set forth above, we affirm the rejection of claim 49.
2. Claim 51
Appellant argues that the rejection of claim 51 should be reversed
because the combination of Wuest, Gkinosatis, and Anzawa, does not teach
or suggest each and every element of claim 51. Appeal Br. 28. In particular,
Appellant argues that Anzawa does not cure the failure of Wuest and
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Gkinosatis to describe or suggest a multilayer film having a weight of less
than 15 g/m². Id. at 26–27.
We are not persuaded by this argument. In rejecting independent
claim 47 (from which claim 51 ultimately depends), the Examiner found that
the combination of Wuest and Gkinosatis suggested making a multilayer
film having a weight of less than 15 g/m² to reduce the environmental
impact of such films. Final Act. 9–11. The Examiner also found that the
weight range for the claimed multilayer polymeric film was prima facie
obvious by virtue of Gkinosatis’s film description as having a weight in a
range that overlaps the range recited in claim 47. Id. at 9.
Appellant further argues that it submitted evidence of unexpected
results with respect to the polymer films recited in claim 51. Appeal Br. 26.
Neither are we persuaded by this argument. For the reasons we have
discussed in connection with claim 1, we determine that the data presented
by Appellant are not commensurate in scope with the claims at issue.
For the reasons set forth above, we affirm the rejection of claim 51.
IV. CONCLUSION
In summary:
Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 2, 5, 14, 18, 30,
32, 37–48, 50 103(a) Wuest, Gkinosatis
1, 2, 5, 14,
18, 30, 32,
37–48, 50

4, 10, 16, 29, 31 103(a) Wuest, Gkinosatis, Wolf 4, 10, 16, 29, 31
37 103(a) Wuest, Gkinosatis, Rasanen, Nair 37
49, 51 103(a) Wuest, Gkinosatis, Anzawa 49, 51
Overall Outcome
1, 2, 4, 5, 10,
14, 16, 18,
29–32, 37–51

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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