14189935 - (D) (P.T.A.B. Sep. 30, 2020)

Huhtamaki Films Germany GmbH & Co., KG

Patent Trials and Appeals BoardSep 30, 2020

14189935 - (D) (P.T.A.B. Sep. 30, 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. 14/189,935 02/25/2014 Matthias MAUSER 122391-5033 1571 157354 7590 09/30/2020 Morgan, Lewis & Bockius LLP (OC) 600 Anton Boulevard Suite 1800 Costa Mesa, CA 92626-7653 EXAMINER FIGG, LAURA B ART UNIT PAPER NUMBER 1781 NOTIFICATION DATE DELIVERY MODE 09/30/2020 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): judith.troilo@morganlewis.com karen.catalano@morganlewis.com ocipdocketing@morganlewis.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte MATTHIAS MAUSER and MICHAEL SCHUHMANN Appeal 2020–000022 Application 14/189,935 Technology Center 1700 BEFORE BEVERLY A. FRANKLIN, JAMES C. HOUSEL, and MERRELL C. CASHION, JR., Administrative Patent Judges. FRANKLIN, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 10–17. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as Infiana Germany GmbH & Co. KG. Appeal Br. 3. Appeal 2020-000022 Application 14/189,935 2 CLAIMED SUBJECT MATTER Claim 10 is illustrative of Appellant’s subject matter on appeal and is set forth below: 10. A label comprising: a foil with at least one first layer comprising at least 50 wt% of random heterophasic polypropylene (block) copolymer, paper and pressure-sensitive adhesive, wherein the thickness of the first layer is at least 5 μm and the total thickness of the foil is at least 20 μm, and wherein the label has a resistance against curling and the foil is recyclable. REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Breen US 5,240,789 Aug. 31, 1993 Furst US 2004/0109985 A1 Jun. 10, 2004 Torsdal EP 1 561 782 A1 Oct. 8, 2005 THE REJECTIONS 1. Claims 11, 12, 15, and 16 are rejected under 35 U.S.C. § 103 as being unpatentable over Furst in view of Torsdal. 2. Claims 10, 13, 14, and 17 are rejected under 35 U.S.C. § 103 as being unpatentable over Furst in view of Torsdal and further in view of Breen. Appeal 2020-000022 Application 14/189,935 3 OPINION We review the appealed rejections for error based upon the issues Appellant identifies, and in light of the arguments and evidence produced thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential) (cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) (“[I]t has long been the Board’s practice to require an applicant to identify the alleged error in the examiner’s rejections.”). Upon review of the evidence and each of the respective positions set forth in the record, we find that the preponderance of evidence supports the Examiner’s position in the record. Accordingly, we affirm each of the Examiner’s rejections on appeal essentially for the reasons set forth in the record by the Examiner, and add the following for emphasis. We note our dterminations with regard to Rejection 2 is dispositive for Rejection 1. Appellant does not make separate arguments in support of patentability of any particular claim or claim grouping. Appeal Br. 9. Accordingly, the claims subject to each ground of rejection will stand or fall with claim 10. See 37 C.F.R. § 41.37(c)(1)(iv). We refer to the Examiner’s statement of Rejection 2 as set forth on pages 5–7 of the Final Office Action.2 The Examiner combines Furst in view of Torsdal, concluding that it would have been obvious to one of ordinary skill in the art to have modified the polypropylene layer of Furst with the 10–70% random heterophasic polypropylene of Torsdal because the random heterophasic polypropylene of Torsdal would provide the film 2 A discussion of the reference to Breen is unnecessary for disposition of this appeal. Appeal 2020-000022 Application 14/189,935 4 of Furst with an improved surface by lacking irregularities, and providing high flexibility. Final Act. 6. Appellant argues that combining Torsdal with Furst would render Furst unsatisfactory for its intended purpose. Appeal Br. 7–8. Appellant states that Furst relies on two layers, each having a different coefficient of thermal expansion in order to avoid curling. Appellant submits that replacing or supplementing the top layer (layer 6) of Furst with the thermoplastic alloy composition of Torsdal would necessarily change the coefficient of thermal expansion for one of the layers in Furst, and that this would no longer guarantee the avoidance of curling. In response, the Examiner states that Furst is explicitly open to modifying the polypropylene of the top layer by including other polypropylene derivatives (Ans. 4; Furst, ¶34). Hence, the Examiner finds it obvious to employ the 10–70 wt% of the random heterophasic polypropylene taught by Torsdal. Ans. 4. Further, as the Examiner notes, Appellant does not direct attention to any evidence in the record in support of the position that combining Torsdal with Furst would render Furst unsatisfactory for its intended purpose. Ans. 4. As the Examiner explains, arguments of counsel cannot take the place of evidence in the record. In re Schulze, 346 F.2d 600, 602 (CCPA 1965); In re Geisler, 116 F.3d 1465 (Fed. Cir. 1997). Therefore, Appellant’s arguments do not identify reversible error in the Examiner’s determination of obviousness. With regard to Appellant’s argument directed to unexpected results and criticality of the claimed range presented on pages 8–9 of the Appeal Appeal 2020-000022 Application 14/189,935 5 Brief, we are unpersuaded by these arguments for the reasons provided by the Examiner on pages 5–7 of the Answer. In view of the above, we affirm Rejections 1 and 2. CONCLUSION We affirm the Examiner’s decision. DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 11, 12, 15, 16 103 Furst, Torsdal 11, 12, 15, 16 10,13, 14, 17 103 Modified Furst, Breen 10, 13, 14, 17 Overall Outcome 10–17 TIME PERIOD FOR RESPONSE No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED