Rick L. Adkins et al.

Patent Trials and Appeals Board

Jul 28, 2020

15138939 - (D) (P.T.A.B. Jul. 28, 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.
15/138,939 04/26/2016 Rick L. Adkins COV162003 9965
157 7590 07/28/2020
Covestro LLC
1 Covestro Circle
PITTSBURGH, PA 15205
EXAMINER
COONEY, JOHN M
ART UNIT PAPER NUMBER
1765
NOTIFICATION DATE DELIVERY MODE
07/28/2020 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):
US-IPR@covestro.com
laura.finnell@covestro.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte RICK L. ADKINS, BRIAN L. NEAL,
PETER UTHE, and JACK R. REESE
____________________

Appeal 2019-002766
Application 15/138,939
Technology Center 1700
____________________

Before KAREN M. HASTINGS, GEORGE C. BEST, and
N. WHITNEY WILSON, Administrative Patent Judges.

WILSON, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
February 12, 2018 decision finally rejecting claims 1–22 (“Final Act.”). We
have jurisdiction over the appeal 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 Covestro LLC as the real party in
interest (Appeal Br. 1).
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Application 15/138,939

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CLAIMED SUBJECT MATTER
Appellant’s disclosure generally relates to a process for producing a
flexible polyurethane foam (Abstract). The claimed process involves the use
of polymer polyols prepared with a DMC (double metal cyanide) catalyst
(Spec. ¶ 3). Details of the claimed method are set forth in representative
claim 1, which is reproduced below from the Claims Appendix to the Appeal
Brief:
1. A process for producing a flexible polyurethane foam,
comprising reacting
(I) at least one diisocyanate or polyisocyanate
component, with
(II) an isocyanate-reactive component comprising
(A) at least polyether polyol having a functionality
of from about 2 to about 6 and a molecular weight of from
about 700 to about 14,000;
(B) at least one polymer polyol having a solids
content of greater than about 20% by weight, a total ethylene
oxide content of up to about 25% by weight, having a viscosity
at 25°C of less than about 15,000 mPa.s, and comprising a
reaction product of
(1) at least one base polyol containing active
hydrogen atoms having a molecular weight of less than about
14,000 and a total ethylene oxide content up to about 40% by
weight, said base polyol being formed in the presence of a
DMC catalyst,
(2) at least one unsaturated monomer,
and,
(3) a preformed stabilizer,
in the presence of;
(4) at least one free radical initiator that
comprises a peroxide, and optionally
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(5) a chain transfer agent;
and
(C) one or more chain extenders and/or
crosslinking agents having a functionality of from about 2 to
about 3, and a molecular weight of from about 300 or less;
in the presence of
(III) one or more blowing agents,
and, optionally,
(IV) one or more additives and/or auxiliary agents;
at an Isocyanate Index of from about 90 to about 120.
REJECTION
Claims 1–22 are rejected under 35 U.S.C. § 103 as unpatentable over
Adkins2 in view of Sasaki.3
DISCUSSION
Appellant argues the claims together (see Appeal Br. 12).
Accordingly, we focus our analysis on the rejection of claim 1. The
remaining claims will stand or fall with claim 1.
The Examiner finds that Adkins discloses each of the limitations of
claim 1, except that (a) Adkins does not specify formation of flexible foams,
including through the use of chain extenders and/or crosslinkers and NCO
Index values as claimed, and (b) Adkins does not disclose the use of DMC
catalysts in forming the base polyol of the polymer polyol (Final Act. 2–3).
As to difference (a), the Examiner finds that Sasaki discloses formation of

2 Adkins et al., US 2014/0066536 A1, published March 6, 2014.
3 Sasaki et al., US 2013/0059936 A1, published March 7, 2013.
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flexible polyurethane foams formed through using polymer polyols, as well
as the missing chain extenders and/or crosslinkers and NCO Index values of
Adkins’s disclosure to be well known for purposes of achieving acceptably
formed flexible polyurethane foams (Final Act. 2–3). Therefore, according
to the Examiner, it would have been obvious to form the Adkins foams using
the missing chain extenders and/or crosslinkers and NCO index values
described by Sasaki to produce flexible polyurethane foams (Final Act. 3).
As to difference (b), the Examiner finds that Sasaki discloses that
DMC catalysts are well known as being used to form polyols as base polyols
in polymer polyols of overlapping makeup with those of Adkins (Final Act.
3, citing Sasaki ¶ 47). Therefore, the Examiner determines that it would
have been obvious to form base polyols in the Adkins process in the manner
provided for by Sasaki (i.e., using the DMC catalysts) to produce acceptable
base polyol (id.).
Appellant concedes that Adkins broadly discloses both the use of
DMC catalysts to produce the base polyols and the use of peroxides as free
radical initiators for preparing the polymer polyols (Appeal Br. 4).
Nevertheless, Appellant argues generally that the art would not have
suggested to a person of skill in the art that:
“flexible foams which exhibit improved stability would be
formed by reacting an isocyanate component with an
isocyanate-reactive component which comprises at least one
polymer polyol in which the base polyol was formed in the
presence of a DMC catalyst, and in which the free radical
initiator of the polymer polyol comprises a peroxide”
(id.). According to Appellant, “no information is disclosed by the Adkins et
al. reference related to the effect of a base polyol comprising a DMC
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catalyzed polyol and an initiator comprising a peroxide on a polymer polyol
and/or on a foam prepared from such a polymer polyol” (Appeal Br. 5).
Appellant further argues that Sasaki does not provide any basis for a
person of skill in the art to have expected that foams prepared from polymer
polyols in which the base polyol is a DMC catalyzed polyol and the free-
radical inhibitor is a peroxide would exhibit improved stability compared to
foams prepared from a conventional polymer polyol (Appeal Br. 5–6). This
argument is not persuasive.
It is well established that “rejections on obviousness grounds cannot
be sustained by mere conclusory statements; instead, there must be some
articulated reasoning with some rational underpinning to support the legal
conclusion of obviousness.” In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006),
cited with approval in KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418
(2007). Absolute predictability that the substitution will be successful is not
required. All that is required is a reasonable expectation of success. See In
re O’Farrell, 853 F.2d 894, 903–04 (Fed. Cir. 1988). In this instance, the
Examiner has provided an explanation of why a person of skill in the art
would have selected a DMC catalyzed polymer polyol and a peroxide
initiator (Final Act. 3). There is no dispute that the use of the DMC
catalyzed polyols and the peroxide would have been expected to work. In
fact, Appellant states that Adkins discusses the use of both. Appellant
argues that the use of those two components provides properties to the final
products which would not have been expected by a person of skill in the art
(Appeal Br. 4, 10–11).
It is well settled that Appellant has the burden of showing unexpected
results. In re Freeman, 474 F.2d 1318, 1324 (CCPA 1973); In re Klosak,
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455 F.2d 1077, 1080 (CCPA 1972). The burden requires Appellant to
proffer factual evidence that actually shows unexpected results relative to
the closest prior art, see In re Baxter Travenol Labs., 952 F.2d 388, 392
(Fed. Cir. 1991), and that is reasonably commensurate in scope with the
protection sought by the claims on appeal, In re Grasselli, 713 F.2d 731, 743
(Fed. Cir. 1983); In re Clemens, 622 F.2d 1029, 1035 (CCPA 1980); In re
Hyson, 453 F.2d 764, 786 (CCPA 1972).
In this instance we agree with the Examiner (Ans. 10) that Appellant’s
showing, as detailed on pages 11–12 of the Appeal Brief, are not
commensurate in scope with the claims. The claims cover a very large
number of permutations, including, for example, any possible diisocyanate
or polyisocyanate component, polyether polyols having functionalities from
2 to 6 and having molecular weights from about 700 to about 14,000, any
type of DMC catalyst, any type of chain transfer agent, any type of
unsaturated monomer, and any type of chain extender and/or crosslinking
agent (see, claim 1). The data provided by Appellant, as referenced in the
Appeal Brief, only covers the use of 3 different polyols and 2 different
initiators (see, Spec. Table 4, p. 49). This is not sufficiently broad to be
persuasive for claims which cover a huge number of variations in
composition, as noted above. While it is possible that the data shown so far
could, subject to the caveat below, support a determination that narrower
claims (which may or may not currently be on appeal) are patentable over
the cited art, Appellant has not presented such an argument.
Additionally, it is Appellant’s burden to demonstrate by evidence, and
not mere attorney argument, that the results relied upon would have been
unexpected by a person having ordinary skill in the art at the time of the
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invention. Baxter, 952 F.2d at 392. In this instance, Appellant has not
proffered any evidence in support of the contention that the cited data would
have been unexpected, instead only asserting, using attorney argument, that
“the present invention clearly results in foams which are more stable than
foams prepared from polymer polyols and azo initiators” (Appeal Br. 11).
The failure to provide persuasive evidence that the results would have
been unexpected is another reason why the findings of the Examiner are
sufficient to demonstrate the obviousness of the claims, notwithstanding the
alleged showing of unexpected results.
Appellant also argues that the polymer polyols produced by Sasaki are
different from the ones used in the claims on appeal (Appeal Br. 9–10). This
argument is not persuasive of reversible error, because the reliance on Sasaki
is merely to explain why a person of skill in the art would have used
particular chain extenders/crosslinkers/catalysts/NCO index values in the
Adkins process. The rejection does not rely on substituting Sasaki’s
polymer polyols into the Adkins process (Final Act. 3).
Accordingly, for the foregoing reasons we determine that Appellant
has not demonstrated reversible error in the rejection on appeal.
CONCLUSION
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1–22 103 Adkins, Sasaki 1–22
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