Mavridis, Harilaos et al.

Patent Trials and Appeals Board

Dec 27, 2019

12806894 - (D) (P.T.A.B. Dec. 27, 2019)

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.
12/806,894 08/24/2010 Harilaos Mavridis 88-2239A 9479
24114 7590 12/27/2019
LyondellBasell Industries
Legal IP Department
1221 McKinney Street, Suite 700
LyondellBasell Tower
Houston, TX 77010
EXAMINER
BLACKWELL, GWENDOLYN
ART UNIT PAPER NUMBER
1762
NOTIFICATION DATE DELIVERY MODE
12/27/2019 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):
legal-IP@lyondellbasell.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte HARILAOS MAVRIDIS, DEBRA L. BERAN,
JEFFREY R. GOLDEN, JOACHIM T. M. PATER,
and GIAMPIERO MORINI

Appeal 2018-008916
Application 12/806,894
Technology Center 1700
____________

Before KAREN M. HASTINGS, MICHAEL P. COLAIANNI, and
JANE E. INGLESE, Administrative Patent Judges.

COLAIANNI, 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, 7, 9–12, 26, 27, and 31. We have
jurisdiction under 35 U.S.C. § 6(b). Appellant waives oral argument in this
appeal in the Notice of Hearing Response filed on December 16, 2019.
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 Equistar
Chemicals, LP. Br. 2.
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Appellant’s invention is directed to a method for producing linear low
density polyethylene grades having controlled xylene solubles and hexane
solubles (Spec. 1:5-7; Claim 1).
Claim 12 is representative of the subject matter on appeal:
1. A method for making linear low density polyethylene (LLDPE)
grades comprising:

(a) producing a first linear low density polyethylene by copolymerizing
ethylene with butene or hexene in the presence of a Ziegler-Natta catalyst
consisting of TiCl₄ supported on MgCl2, an alkylaluminum consisting of
trialkylaluminum, and an electron donor consisting of tetrahydrofuran,
wherein the alkylaluminum/electron donor molar ratio is 4.3-7.1;
(b) determining the dependency of xylene solubles or hexane extractables
on the first alkylaluminum/electron donor molar ratio;
(c) producing a second linear low density polyethylene wherein the step of
producing the second linear low density polyethylene comprises the steps of:
(i) copolymerizing ethylene with said butene or hexene in the
presence of said Ziegler-Natta catalyst, said alkylaluminum, and said
electron donor, and
(ii) producing a second alkylaluminum/electron donor molar ratio
by either:

(1) keeping constant the first alkylaluminum amount and varying the
first electron donor amount to produce a second electron donor amount; or,

2 Claim 1 recites producing a first linear low density polyethylene and
producing a second linear low density polyethylene. The claim is not clear
whether the product of the first linear low density polyethylene is fed and
used during the step of producing a second linear low density polyethylene.
It is also unclear if the result is a blended linear low density polyethylene.
We note that the Specification discloses that in the two reactor embodiment
the linear low density polyethylene produced in the first reactor is sent, in
part, to a second reactor for further reaction in forming the second linear low
density polyethylene where a blend of LLDPE is made (Spec. 5:28-32; 6:1-
7; 9:17-19). In the event of further prosecution, these observations should
be addressed.
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(2) keeping constant the first electron donor amount and varying the
first alkylaluminum amount to produce a second alkylaluminum amount;
wherein the LLDPE grades consist of a base resin density of 0.9184-0.9205
g/cm³.
Br. 12. (Claims App.).

Appellant appeals the following rejections:
1. Claims 1, 9–12, and 31 are rejected under 35 U.S.C. § 103 as
unpatentable over Jorgensen (US 6,187,866 B1, issued Feb. 13,
2001).
2. Claim 7 is rejected under 35 U.S.C. § 103 as unpatentable over
Jorgensen in view of Brita (US 2006/0089251 A1, published
Apr. 27, 2006).
3. Claims 26 and 27 are rejected under 35 U.S.C. § 103 as
unpatentable over Jorgensen in view of Mitsuno (US 6,667,675
B1, issued Dec. 23, 2003).
Appellant argues the claims under rejections (1) to (3) as a group (Br.
4–10). Therefore, we select claim 1 as representative of the group. 37 CFR
§41.37(c)(iv).

FINDINGS OF FACT & ANALYSIS
The Examiner’s findings and conclusions regarding the rejection of
claim 1 over Jorgensen are located on pages 3 to 5 of the Final Action.
We have fully considered Appellant’s arguments and we find that the
preponderance of the evidence favors the Examiner’s obviousness
conclusion for the reasons discussed in the Final Action and Answer. We
add the following analysis for emphasis.
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Appellant argues that Jorgensen does not teach a method of making
linear low density polyethylene (LLDPE) compositions by using the
required alkylaluminum/electron donor (activator) molar ratio (Br. 6).
Appellant contends that the Examiner is picking and choosing from
Jorgensen in an attempt to reconstruct the claimed subject matter (Br. 6).
Appellant argues that Jorgensen provides that the molar ratio of activator to
electron donors is from 0.1:1 to 1:1, which is significantly less than the
4.3:7.1 activator to electron donor ratio in the claims (Br. 6). Appellant
argues that the activator ratios required by claim 1 as well as the MgCl2
catalyst support, have not been shown to be result effective variables that
would have been optimized (Br. 8).
The Examiner finds correctly that Jorgensen teaches that the activator
to electron donor ratio affects the level of hexane extractables in the
resulting polymer (Final Act. 4; col. 17, lines 41–44). Jorgensen further
discloses that varying the activator 1 or activator 2 molar ratios to the
electron donor compound allows manipulation of the melt flow ratio (MFR)
and polymer bulk density, while allowing control of catalyst productivity
(col. 17, ll. 31–34). We agree with the Examiner that Jorgensen teaches that
the activator to electron donor ratio is a result effective variable for affecting
various properties of the resulting LLDPE. As a result effective variable it
would have been obvious to optimize the activator to electron donor ratio to
achieve a polymer having the desired properties. In this case, claim 1
includes an activator to electron donor ratio from 4.3 to 7.1. This ratio may
be normalized to a 1 to 1.65 ratio of activator to electron donor. Jorgensen’s
proviso in column 3 at lines 18 to 20 states “the mole ratio of the precursor
activator compound to the electron donor is in the range of about 0.1:1 to
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about 1:1” (emphasis added). Jorgensen’s disclosure includes ratios greater
than 1. In our view, the claimed activator to electron donor range from
1:1.65 (or 4.3:7.1 un-normalized to 1) would have been obvious in view of
Jorgensen’s disclosure that includes values of “about 1:1.” Appellant
proffers no evidence of unexpected results or criticality in the claimed
activator to electron donor ratio (Br. generally).
Appellant contends that Jorgensen teaches a methodology entirely
different for controlling extractables versus the instant invention such that
the relationship of alkylaluminum/THF to extractables levels for the claimed
method is neither obvious nor derivable from Jorgensen (Br. 7). Appellant
contends that Jorgensen changes the sum of the ratio of first activator (tri-n-
hexylaluminum (TnHAL) to tetrahydrofuran (THF) and the ratio of second
activator (diethylaluminum chloride (DEAC)) to THF to change the hexane
extractable levels (Br. 7–8). Appellant contends that the claims require that
the sum of the first activator to THF and second activator to THF remains
constant where only the triethylaluminum (TEAL) in the reactor is changed,
which is a significant improvement and inventive distinction over Jorgensen
(Br. 8). Appellant contends that the claimed method is faster than the prior
art method (Br. 9).
Contrary to Appellant’s arguments, claim 1 requires, in relevant part,
a step of producing a first linear low density polyethylene using an
alkylaluminum/electron donor ratio from 4.3 to 7.1 and a step of producing a
second linear low density polyethylene that includes a step of producing a
second alkylaluminum/electron donor molar ratio by either: (1) keeping
constant the first alkylaluminum amount and varying the electron donor
amount to produce as second electron donor amount or (2) keeping constant
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the first electron donor amount and varying the first alkylaluminum amount
to produce a second alkylaluminum amount (claim 1). Appellant’s argument
about the sum of the ratios of the first activator to THF and second activator
to THF and only varying the triethylaluminum amount is not persuasive
because those limitations argued do not appear in the claim. In re Self, 671
F.2d 1344, 1348 (CCPA 1982) (“Many of appellant’s arguments fail from
the outset because . . . they are not based on limitations appearing in the
claims.”). Moreover, Appellant’s argument about the faster response by
using the claimed method lacks any evidence to substantiate the argument.
No evidence has been proffered and we note that the claims do not recite any
particular time limitation.
The Examiner provides an analysis of this argument on page 8 of the
Answer. Specifically, the Examiner finds that Jorgensen shows in Examples
3 and 4 of Table III that first alkylaluminum amount (i.e., A1/ED of 0.39) is
changed to a second alkylaluminum amount (i.e., A1/ED of 0.51), while the
ratio of activator 2 to electron donor (i.e., A2/ED) is held relatively constant
(0.22 to 0.23). We adopt the Examiner’s response, which Appellant does
not challenge or otherwise respond to (no Reply Brief).
Appellant contends that Jorgensen prefers to use no catalyst support
but prefers silica as catalyst support if one is used (Br. 8). Appellant argues
that MgCl2 is chemically and structurally different from silica (Br. 8).
Although Jorgensen prefers not to use a catalyst support and patentee
prefers silica if one is used, the Examiner finds that Jorgensen does teach
that MgCl2 is used as part of the catalyst structure (Final Act. 3; Ans. 8).
Appellant does not respond or otherwise show reversible error with the
Examiner’s finding regarding the MgCl2. Accordingly, Appellant has not
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shown error in the Examiner’s finding that MgCl2 is part of Jorgensen’s
catalyst support structure.
Therefore, we affirm the Examiner’s § 103 rejections of all the claims
on appeal.

CONCLUSION
In summary:
Claims
Rejected
Basis  Affirmed Reversed
1, 9–12, 31 § 103   1, 9–12, 31

7

§103 Jorgensen and
Brita

7

26, 27 § 103 Jorgensen and
Mitsuno
26, 27
Overall Outcome
1, 7, 9–12, 26,
27, 31

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