MERCK PATENT GMBH

Patent Trials and Appeals Board

Oct 2, 2020

2019006881 (P.T.A.B. Oct. 2, 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.
15/558,815 09/15/2017 Mark GOEBEL MERCK-4629 1013
23599 7590 10/02/2020
MILLEN, WHITE, ZELANO & BRANIGAN, P.C.
2200 CLARENDON BLVD.
SUITE 1400
ARLINGTON, VA 22201
EXAMINER
VISCONTI, GERALDINA
ART UNIT PAPER NUMBER
1722
NOTIFICATION DATE DELIVERY MODE
10/02/2020 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):
docketing@mwzb.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte MARK GOEBEL, ROCCO FORTTE, LARS LIETZAU,
and CHRISTIAN HOCK
____________

Appeal 2019-006881
Application 15/558,815
Technology Center 1700
____________

Before N. WHITNEY WILSON, MONTÉ T. SQUIRE, and
JANE E. INGLESE, Administrative Patent Judges.

SQUIRE, Administrative Patent Judge.

DECISION ON APPEAL1

Appellant2 appeals under 35 U.S.C. § 134(a) from the Examiner’s
decision to finally reject claims 1–21, which are all of the claims pending in
this application. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 This Decision refers to the Specification filed Sept. 15, 2017 (“Spec.”);
Final Office Action dated Jan. 2, 2019 (“Final Act.”); Appeal Brief filed
Mar. 29, 2019 (“Appeal Br.”); Examiner’s Answer dated July 22, 2019
(“Ans.”); and Reply Brief filed Sept. 23, 2019 (“Reply Br. “).
2 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies Merck Patent GmbH as the real party
in interest. Appeal Br. 1.
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CLAIMED SUBJECT MATTER
The invention relates to liquid-crystalline media (LC media)
comprising thiophene derivatives which are stabilised by sterically hindered
amines or amine derivatives, i.e., hindered amine light stabilisers (HALS),
and to liquid-crystal displays (LC displays) which contain these LC media.
Spec. 1; Abstract. Claim 1 illustrates the subject matter on appeal and is
reproduced below from the Claims Appendix to the Appeal Brief:
1. A liquid crystal medium comprising:
one or more compounds of formula I,

in which the individual radicals have the following meanings:
R1 and R2 each, independently of one another,
denote H, F, Cl, Br, -CN, -SCN,
-NCS, SF5 or straight-chain or
branched alkyl having 1 to 12 C
atoms, in which, in addition, one or
more non-adjacent CH2 groups may
each be replaced, independently of
one another, by-CH=CH-, -C≡C-, -O-,
-CO-, -CO-O-, -O-CO-, or -O-CO-O-
in such a way that O atoms are not
linked directly to one another, and in
which, in addition, one or more H
atoms may be each replaced by F, Cl
or Br,
A0, A1 and A2 each, independently of one another,
denote phenylene-1,4-diyl, in which,
in addition, one or two CH groups
may each be replaced by N and one or
more H atoms may each be replaced
by halogen, CN, CH3, CHF2, CH2F,
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CF3, OCH3, OCHF2 or OCF3,
cyclohexane-1,4-diyl, in which, in
addition, one or two non-adjacent
CH2 groups may each be replaced,
independently of one another, by O or
S and one or more H atoms may each
be replaced by F, or cyclohexene-
1,4-diyl, bicyclo[ 1. l. l]pentane-
1,3-diyl, bicyclo[2.2.2]octane-1,4-
diyl, spiro[3.3]heptane-2,6-diyl,
tetrahydropyran-2,5-diyl or
1,3-dioxane-2,5-diyl,
Z1 and Z2 each, independently of one another,
denote -CF2O-, -OCF2-, -CH2O-,
-OCH2, -CO-O-, -O-CO-, -C2H4-,
-C2F4-, -CF2CH2, -CH2CF2,
-CFHCFH-, -CFHCH2, -CH2CFH-,
-CF2CFH-, -CFHCF2, -CH=CH-,
-CF=CH-, -CH≡CF-, -CF=CF-, -C≡C-
or a single bond,
m and n each, independently of one another,
denote 0, 1, 2 or 3;
one or more compounds selected from the group of the
compounds of the formula II,

in which
q denotes 1 or 2,
p denotes (2-q)
Z11 and Z12 each, independently of one another, denote
-O-, -(C=O)- or a single bond, but do not
both simultaneously denote -O-,
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r and s each, independently of one another, denote 0
or 1,
Y11 to Y14 each, independently of one another, denote
alkyl having 1 to 4 C atoms and alternatively
also, independently of one another, one or
both of the pairs (Y11 and Y12) and (Y13 and
Y14) together denote a divalent group having
3 to 6 C atoms,
R11 on each occurrence, independently of one
another, denotes H, alkyl, O-alkyl,
O-cycloalkyl, O• or OH,
Sp11 denotes a straight-chain or branched alkyl
chain having 2-20 C atoms, in which one or
more –CH2– groups may each be replaced
by -O-, but two adjacent –CH2– groups
cannot be replaced by -O-, or denotes a
hydrocarbon radical which contains a
cycloalkyl or alkylcycloalkyl unit and in
which one or more –CH2– groups may each
be replaced by -O-, but two adjacent –CH2–
groups cannot be replaced by -O-; and
one or more compounds selected from the group of the
compounds of the formula VIII-1a,

in which
R0 denotes an alkyl or alkoxy radical having I
to 15 C atoms, where, in addition, one or
more CH2 groups in these radicals may each
be replaced, independently of one another,
by -C≡C-, -CF2O-, -CH=CH-, , ,
-O-, -CO-O- or -O-CO- in such a way that O
atoms are not linked directly to one another,
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and in which, in addition, one or more H
atoms may each be replaced by halogen,
X0 denotes F, Cl, CN, SF5, SCN, NCS, or a
halogenated alkyl radical, halogenated
alkenyl radical, halogenated alkoxy radical
or halogenated alkenyloxy radical, each
having up to 6 C atoms.
Appeal Br. 17–19 (key disputed claim language italicized and bolded).
REFERENCES
The Examiner relies on the following prior art references as evidence
in rejecting the claims on appeal:
Name Reference Date
Jansen et al. (“Jansen”) US 8,486,297 B2 July 16, 2013
Wittek et al. (“Wittek”) US 8,906, 261 B2 Dec. 9, 2014
REJECTIONS
On appeal, the Examiner maintains (Ans. 3) the following rejections:
1. Claims 1–21 are rejected under 35 U.S.C. § 103 as being
unpatentable over Wittek (“Rejection 1”). Ans. 3.
2. Claims 1–21 are rejected under 35 U.S.C. § 103 as being
unpatentable over Jansen (“Rejection 2”). Ans. 11.
OPINION
Having considered the respective positions the Examiner and
Appellant advance in light of this appeal record, we affirm the Examiner’s
rejections based essentially on the fact-finding and reasoning the Examiner
provides in the Answer and Final Office Action. We add the following
primarily for emphasis.
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Rejection 1
The Examiner rejects claims 1–21 under § 103 as obvious over
Wittek. Ans. 3–10. In response, Appellant presents arguments for the
patentability of claims 1–14 as a group, and claim 4 and claim 6,
respectively, under separate headings/groupings in the Appeal Brief (Appeal
Br. 3–9), which we address in turn below.
Claims 1–21
Appellant presents argument for the patentability of claims 1–14 as a
group but does not present separate argument for the patentability of claims
15–21. Appeal Br. 3–8. We select claim 1 as representative and claims 2–21
stand or fall with claim 1. 37 C.F.R. § 41.37(c)(1)(iv).
The Examiner determines that Wittek teaches or suggests a liquid
crystal medium satisfying the limitations of claim 1 and concludes the
reference would have rendered the claim obvious. Ans. 3–10, 18–20. On this
appeal record, we determine a preponderance of the evidence and sound
technical reasoning support the Examiner’s findings regarding the teachings
of Wittek and the Examiner’ conclusion that the reference would have
rendered the liquid crystal medium of claim 1 obvious to a person having
ordinary skill in the art. Wittek, Title, Abstract, 4:11–15, 4:21–30, 6:40–55
(formulae I1, I2), 7:1–40 (formulae I6–I11), 9:50–11:5 (formulae I32–I36,
I38–I43), 11:25–12:15 (formulae I47–I53), 11:40–55 (formulae II, III),
14:15–55 (formulae IV–VIII), 18:50–65 (formulae VII-1a, VII-1b),
19:30–40 (formula VIIIa), 21:60–22:10 (formulae X, XI), 28:40–50
(formula XXVI), 59–60, 65–66 (third compound at bottom of page), 69–70
(third compound at bottom of page), 71–72 (first compound at top of page).
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Appellant argues the Examiner’s rejection should be reversed because
one of ordinary skill in the art would not have arrived at the claimed
composition based on Wittek’s disclosure. Appeal Br. 3. In particular,
Appellant contends
the Wittek et al. disclosure provides no guidance to lead
one of ordinary skill in the art to select from the vast
number of possible combinations of compounds,
encompassed by the numerous formulas disclosed by
Wittek et al., so as to arrive at a composition in accordance
with Appellants’ claims.
Id. at 3. Appellant further contends Wittek “provides no hints, suggestions or
guideposts that would lead one of ordinary skill in the art to select from all
the possible liquid crystal mixtures generically encompassed by [Wittek’s]
broad . . . disclosure.” Id. at 4.
Relying on decisions in In re Baird and In re Jones, Appellant argues
that, because Wittek describes “an extremely broad genus generically
encompassing a vast number of liquid crystal mixtures” and “a seemingly
infinite number of ways . . . available to one of ordinary skill in the art to
prepare liquid crystal mixtures,” Wittek’s disclosure does not provide
motivation sufficient to lead one of ordinary skill to arrive at any particular
claimed embodiment. Id. at 4–5 (citing In re Baird, 16 F.3d 380, 383 (Fed.
Cir. 1994); In re Jones, 958 F.2d 347, 350 (Fed. Cir. 1992)); see also Reply
Br. 3 (arguing “the disclosure of Wittek et al. presents one of ordinary skill
in the art with numerous possible selections of compounds, encompassing a
seemingly infinite number of composition embodiments”).
We do not find Appellant’s arguments persuasive of reversible error
in the Examiner’s rejection based principally on the fact-finding and
reasoning the Examiner provides at pages 3–10 and 17–20 of the Answer.
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As the Examiner finds (Ans. 3–7), Wittek discloses thiophene compounds
falling within the scope of the “one or more compounds of formula I”
recitation of claim 1, namely, Wittek’s compounds of the formulae I1, I2,
I6–I11, I32–I36, I38–I43, and I47–I53. Wittek, Abstract, 6:40–55 (I1, I2),
7:1–40 (I6–I11), 9:50–11:5 (I32–I36, I38–I43), 11:25–12:15 (I47–I53). As
the Examiner further finds (Ans. 9–10), Table D of Wittek discloses
compounds falling within the scope of “one or more compounds selected
from the group of the compounds of the formula II” as claimed, and that the
compounds “can be added to the LC media.” See Wittek, 59–60, 65–66
(third compound at bottom of page), 69–70 (third compound at bottom of
page), 71–72 (first compound at top of page).
As the Examiner also finds (Ans. 7–9), regarding “one or more
compounds selected from the group of the compounds of the formula
VIII-1a,” Wittek discloses compounds falling within the scope of that
recitation of the claim, including for example, Wittek’s compound of the
formula VII-1a (Wittek, 18:55). See also Wittek, 11:40–55 (II, III),
14:15–55 (IV–VIII), 18:50–65 (VII-1a, VII-1b), 19:30–40 (VIIIa),
21:60–22:10 (X, XI), 28:40–50 (XXVI). Wittek further discloses an LC
medium comprising one or compounds of formula VII-1a as being preferred.
Wittek, 18:45–55. As the Examiner finds and explains (Ans. 7, 18), Wittek
also recognizes the use of thiophene compounds in LC media to achieve
certain desired properties, including, for example, a broad nematic phase
range and a low threshold voltage. Wittek, 4:7–15.
Thus, in view of Wittek’s disclosures, we agree with the Examiner
(Ans. 10, 18–20) that a person having ordinary skill in the art would have
found it obvious to use three or more of Wittek’s thiophene compounds an
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liquid crystal medium to arrive at a mixture falling within the scope of the
claimed liquid crystal medium and had a reasonable expectation of success
that a mixture of such compounds, each identified as suitable, would provide
desired results. Merck & Co., Inc. v. Biocraft Labs., Inc., 874 F.2d 804,
808–09 (Fed. Cir. 1989) (“[T]he ‘joint use [of magnesium oxide and calcium
carbide] is not patentable’ where the prior art teaches ‘that both magnesium
oxide and calcium carbide, individually, promote the formation of a nodular
structure in cast iron, and it would be natural to suppose that, in
combination, they would produce the same effect and would supplement
each other.”’) (internal citation omitted); In re Kerkhoven, 626 F.2d 846, 850
(CCPA 1980) (citation omitted) (“It is prima facie obvious to combine two
compositions each of which is taught by the prior art to be useful for the
same purpose, in order to form a third composition which is to be used for
the very same purpose.”); see also KSR Int’l Co. v. Teleflex, Inc., 550 U.S.
398, 416 (2007) (“The combination of familiar elements according to known
methods is likely to be obvious when it does no more than yield predictable
results.”).
Appellant’s arguments do not reveal reversible error in the
Examiner’s factual-findings, analysis, and conclusions in this regard.
Appellant’s arguments regarding Wittek’s disclosure providing no guidance
to one of ordinary skill in the art to select from a vast number of possible
combinations of compounds and liquid crystal mixtures (Appeal Br. 3–4) are
not persuasive because the fact that Wittek “discloses a multitude of
effective combinations does not render any particular formulation less
obvious.” Merck, 874 F.2d at 807. See also In re Arkley, 455 F.2d 586, 587
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(CCPA 1972) (“[P]icking and choosing may be entirely proper in the
making of a [§] 103, obviousness rejection.”).
Moreover, as the Examiner finds (Ans. 3–10) and we discuss above,
Wittek discloses compounds for LC media, which fall squarely within
formulae I, II, and VII-1a, as recited in claim 1, and describes certain of the
compounds as preferred classes of compounds for which only a limited
amount of picking and choosing is necessary to arrive at the compounds
represented by formulae I, II, and VII-1a, as claimed.
We do not find Appellant’s arguments regarding In re Baird and In re
Jones persuasive because the cases are inapposite to the facts of the current
case. In Baird, 16 F.3d at 383, the court held that a “disclosure of millions of
compounds does not render obvious a claim to three compounds, particularly
when that disclosure indicates a preference leading away from the claimed
compounds” (emphasis added). In Jones, 958 F.2d at 350, the court held that
the prior art reference disclosed a “potentially infinite genus of ‘substituted
ammonium salts”’ (emphasis added) without listing the claimed salt and that
the PTO failed to provide a reason for combining other references in the
manner claimed.
Here, in contrast, Wittek does not teach or lead away from the
composition of the claimed liquid crystal medium and does not teach a
potentially infinite genus but, instead, lists a finite number of preferred
classes of compounds of relatively narrow scope––any of which may be
selected and used in LC media to achieve Wittek’s stated goals, either alone
or in combination. See Wittek 4:11–15 (disclosing “certain thiophene
derivatives are used in LC media, in particular in LC media having positive
dielectric anisotropy, and in MLC, TN, STN and IPS displays” and “[t]hese
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thiophene derivatives result in LC media having the desired properties
indicated above”). Moreover, the claims themselves cover an extremely
large number (too large to specifically count) of specific compounds, not
simply the very limited number of compounds covered by the claim in
Baird.
Appellant further argues the Examiner’s rejection should be reversed
because Wittek does not disclose a specific example of a mixture that
includes all of the compounds recited in the claim. Appeal Br. 5–6. In
particular, based on Examples 1–3 of Wittek, Appellant contends that none
of Wittek’s examples discloses or suggests a specific LC mixture containing
compounds of formulae I, II, and VII-1a, as recited in the claim. This
argument is not persuasive because Wittek’s disclosure is not limited to the
disclosures in its working examples or preferred embodiments. In re Applied
Materials, Inc., 692 F.3d 1289, 1298 (Fed. Cir. 2012) (“A reference must be
considered for everything that it teaches, not simply the described invention
or a preferred embodiment.”); see also In re Mills, 470 F.2d 649, 651
(CCPA 1972) (“[A] reference is not limited to the disclosure of specific
working examples.”); Merck, 874 F.2d at 807 (explaining “all disclosures of
the prior art, including unpreferred embodiments, must be considered”).
Appellant also argues the Examiner’s rejection should be reversed
because it is based on impermissible hindsight. Appeal Br. 6–7. This
argument is not persuasive because it is conclusory and unsupported by
persuasive evidence in this appeal record. In re De Blauwe, 736 F.2d 699,
705 (Fed. Cir. 1984). Moreover, as we discuss above, we find the
Examiner’s rejection is based on explicit disclosures in Wittek, and what
those disclosures considered as a whole reasonably would have suggested to
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one of ordinary skill in the art, rather than based on impermissible hindsight
reconstruction, as Appellant argues. See In re McLaughlin, 443 F.2d 1392,
1395 (CCPA 1971) (acknowledging that “[a]ny judgment on obviousness is
in a sense necessarily a reconstruction based upon hindsight reasoning” but
such reconstruction is proper “so long as it takes into account only
knowledge which was within the level of ordinary skill at the time the
claimed invention was made and does not include knowledge gleaned only
from applicant's disclosure”).
Lastly, Appellant argues that the claimed invention yields unexpected
results. Appeal Br. 7–8; Reply Br. 3–4. In particular, Appellant contends that
“[t]he combination of compounds of Appellants’ formulas I, II, and VIII-la
provides a liquid crystal mixture that has both high dielectric anisotropy as
well as high stability.” Appeal Br. 7 (citing Spec. 66–67). See also Reply Br.
4 (arguing “compared to base mixture M2, base mixture M1 with its higher
polarity is associated with a lower stability under UV exposure” and “[t]his
is what one of ordinary skill in the art would predict”).
In attempting to overcome a prima facie case of obviousness by
showing unexpected results, the burden rests with Appellant to establish
(1) that the alleged unexpected results presented as being associated with the
claimed invention are, in fact, unexpected, (2) that the comparisons are to
the disclosure of the closest prior art, and (3) that the supplied evidentiary
showing is commensurate in scope with the claimed subject matter. See In re
Klosak, 455 F.2d 1077, 1080 (CCPA 1972).
Appellant’s alleged showing of unexpected results does not satisfy the
requisite burden. Appellant has not sufficiently established that the alleged
unexpected results presented as being associated with the claimed invention
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are, in fact, unexpected. Appellant does not make clear what the unexpected
results are and how that is reflected or shown in the data. As the Examiner
explains (Appeal Br. 20), the fact that Appellant may have “recognized
another advantage which would flow naturally from following the
suggestion of the prior art cannot be the basis for patentability when the
difference would otherwise [have been] obvious.” Ex parte Obiaya, 227
USPQ 58, 60 (BPAI 1985). Appellant also does not adequately show or
explain why the alleged “advantageous” results (Appeal Br. 8) Appellant
contends are associated with the claimed liquid crystal medium are
considered to be unexpected results and not just typical results obtained by
one of ordinary skill in the art. Klosak, 455 F.2d at 1080 (“[T]he burden of
showing unexpected results rests on [the party] who asserts them.”).
Moreover, Appellant has not sufficiently established that the alleged
showing of unexpected results is commensurate in scope with the claims.
Appellant’s claims are broader in scope than the examples tested and
Appellant does not explain sufficiently why the examples tested are
representative of the overall scope of the claims. For example, the inventive
examples Appellant relies on for showing unexpected results uses a base
mixture that contains a specific compound (“CCQU-3-F”) Appellant
contends corresponds to the compound of “formula VIII-1a” of the claim.
Appeal Br. 7 (citing Spec. 66). The claims, however, are not limited to that
specific CCU-3-F compound tested by Appellant or a compound of formula
VIII-1a having only those specific properties of the CCU-3-F compound
tested by Appellant. Thus, absent more, we are not persuaded Appellant
provides data sufficient to show that the alleged unexpected results are
commensurate in scope with the claims. See In re Kao, 639 F.3d 1057, 1068
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(Fed. Cir. 2011) (“Evidence of secondary considerations must be reasonably
commensurate with the scope of the claims.”).
In view of these deficiencies, Appellant’s assertion that “the
combination of a compound of Appellants’ formula II and a compound of
Appellants’ formula VIII-1a provides an unexpected and advantageous
result” (Appeal Br. 8) is conclusory and, without more, insufficient to
establish unexpected results. De Blauwe, 736 F.2d at 705 (“It is well settled
that unexpected results must be established by factual evidence. Mere
argument or conclusory statements in the specification does not suffice.”).
Claims 4 and 6
Although Appellant nominally presents separate arguments for the
patentability of claims 4 and 6, enumerated under separate headings at pages
8 and 9 of the Appeal Brief, respectively, Appellant does not present any
new or additional substantive argument. Rather, Appellant repeats and relies
principally on the same arguments it previously discusses and presents
above in response to the Examiner’s rejection of claim 1. See Appeal Br. 8–9
(asserting for both claims 4 and 6 “the Wittek et al. disclosure does not lead
one or ordinary skill in the art to select, from all the possible mixtures
encompassed by the generic disclosure of Wittek et al.”).
Thus, based on the fact-finding, conclusions, and analysis the
Examiner provides in this appeal record, and for principally the same
reasons discussed above for sustaining the Examiner’s rejection of claim 1,
we sustain the Examiner’s rejection of claims 4 and 6.
Accordingly, we affirm the Examiner’s rejection of claims 1–21 under
35 U.S.C. § 103 as obvious over Wittek.
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Rejection 2
The Examiner rejects claims 1–21 under § 103 as obvious over
Jansen.3 Ans. 11–17 (citing Jansen, Title, Abstract, 12:20–15:35 (formulae
I1–I25), 20:1–10 (formulae II–III), 21:35–22:10 (formulae IV–VIII),
26:5–10 (formulae VII-1a, VIII-1a), 29:1–17 (formulae X, XI), 35:5–15
(formula XXVI), 75–76:25 (second compound at top of page), 81–82 (two
compounds at top of page)). In this rejection, the Examiner relies on and
applies Jansen in essentially the same way the Examiner relies on and
applies Wittek above in Rejection 1.
In response to this rejection, Appellant does not present any additional
substantive arguments. Rather, Appellant repeats and relies on essentially
the same arguments it previously discusses and presents above in response to
the Examiner’s Rejection 1. Compare Appeal Br. 10–14 (Rejection 2) with,
Appeal Br. 3–8 (Rejection 1).
Thus, based essentially on the fact-finding, conclusions, and analysis
the Examiner provides in this appeal record, and for principally the same
reasons we discuss above for sustaining the Examiner’s rejection of claims
1–21 under 35 U.S.C. § 103 as obvious over Wittek, we affirm the
Examiner’s rejection of claims 1–21 under 35 U.S.C. § 103 as obvious over
Jansen.

3 Jansen is directed to LC media comprising thiophene derivatives and its
disclosure is similar to the disclosure of Wittek. Compare Jansen (Title,
Abstract) with, Wittek (Title, Abstract).
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CONCLUSION
In summary:
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–21 103 Wittek 1–21
1–21 103 Jansen 1–21
Overall
Outcome
1–21

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)(iv).
AFFIRMED