Schuhmann, Michael et al.

Patent Trials and Appeals Board

Apr 27, 2020

14240268 - (D) (P.T.A.B. Apr. 27, 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.
14/240,268 06/16/2014 Michael Schuhmann 109058.66331US 2118
23911 7590 04/27/2020
CROWELL & MORING LLP
INTELLECTUAL PROPERTY GROUP
P.O. BOX 14300
WASHINGTON, DC 20044-4300
EXAMINER
PATTERSON, MARC A
ART UNIT PAPER NUMBER
1782
NOTIFICATION DATE DELIVERY MODE
04/27/2020 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):
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mloren@crowell.com
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MICHAEL SCHUHMANN, HENRIK HUMMEL, and
ROLAND KELM
Appeal 2019-003732
Application 14/240,268
Technology Center 1700
Before ADRIENE LEPIANE HANLON, CATHERINE Q. TIMM, and
JAMES C. HOUSEL, Administrative Patent Judges.
HOUSEL, Administrative Patent Judge.
DECISION ON APPEAL1
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the
Examiner’s decision to reject claims 1, 3, and 5–24, which constitute all the
claims pending in this application. We have jurisdiction under
35 U.S.C. § 6(b).

1 An oral hearing was conducted on April 3, 2020. A copy of the hearing
transcript will be made of record upon its availability.
2 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42(a). Appellant identifies the real party in interest as Infiana Germany
GmbH & Co. KG. Appeal Brief (“Appeal Br.”) filed October 16, 2018, 1.
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Application 14/240,268

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We AFFIRM.
CLAIMED SUBJECT MATTER
The claims are directed to a multilayer film capable of linear tear
propagation. Spec. 1, Title. The multilayer film comprises a sequence of
three layers each based on at least one low-density polyethylene (“LDPE”)
with a density in the range from 0.915–0.930 g/cm3. Id. ¶ 2. The first and
third layers may be independently either this LDPE or a mixture of this
LDPE with at least one non-cyclic C2–C6 olefin homo- or co-polymer which
differs from the LDPE, while the second layer comprises a mixture of this
LDPE and at least one cycloolefin copolymer. Id. Appellant discloses that
the tear propagation force of this multilayer film both in the machine
direction and perpendicular to the machine direction (“transverse direction”)
is at most 1000 mN for film thickness of 60 µm. Id. In addition, Appellant
discloses that the ratio of the tear propagation force in the machine direction
to the tear propagation force in the transverse direction for this multilayer
film is from 2:1 to 1:2, and more preferably from 1.5:1 to 1:1.5. Id. ¶ 18.
Sole independent claim 1, reproduced below from the Claims
Appendix to the Appeal Brief, is illustrative of the claimed subject matter:
1. A multilayer film comprising a layer sequence of:
(a) a layer (a) based on at least one low-density
polyethylene (LDPE) with a density in the range from 0.915 to
0.930 g/cm3 or a mixture of (α) at least one low-density
polyethylene (LDPE) with a density in the range from 0.915 to
0.930 g/cm3 and of (β) at least one noncyclic C2-C6 olefin
homo- or copolymer which differs from polyethylene
component (α),
(b) a layer (b) based on a mixture of at least one low-
density polyethylene (LDPE) with a density in the range from
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0.915 to 0.930 g/cm3 and at least one cycloolefin copolymer,
and
(c) a layer (c) based on at least one low-density
polyethylene (LDPE) with a density in the range from 0.915 to
0.930 g/cm3 or a mixture of (α) at least one low-density
polyethylene (LDPE) with a density in the range from 0.915 to
0.930 g/cm3 and of (β) at least one noncyclic C2–C6 olefin
homo- or copolymer which differs from polyethylene
component (α),
wherein
a thickness of the layer (a) and the layer (c) is in each
case from 5 μm to 25 μm and a thickness of the layer (b) is
from 5 μm to 30 μm,
a tear propagation force for the multilayer film
determined by the Elmendorf test in accordance with DIN EN
ISO 6383-2 in a machine direction and a tear propagation force
for the multilayer film perpendicularly to the machine direction
are at most 1000 mN, and
a ratio of the tear propagation force in machine direction
to the tear propagation force perpendicularly to the machine
direction, is from 1.5:1 to 1:1.5, and
a puncture resistance of the multilayer film is at least 50
N, determined in accordance with ASTM El54-88 part 10.
REFERENCES
The Examiner relies on the following prior art patent and patent
application references, while Appellant relies on the following non-patent
literature reference:
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Application 14/240,268

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Name Reference Date
Sanford US 6,045,882 Apr. 04, 2000
Kunieda et al.
(“Kunieda”)
US 6,238,606 B1 May 29, 2001
Conrad et al. (“Conrad”) US 7,741,415 B2 June 22, 2010
Kuckertz et al.
(“Kuckertz”)
US 2004/0067331 A1 Apr. 08, 2004
Niepelt US 2004/0067382 A1 Apr. 08, 2004
Summers et al.
(“Summers”)
GB 2 397 065 A July 14, 2004
Zhang et al.
(“Zhang”)
Oriented Structure
and Anisotropy
Properties of
Polymer Blown
Films: HDPE,
LLDPE and LDPE,
POLYMER 45 (2004),
217–29
2004

REJECTIONS
The Examiner maintains, and Appellant requests our review of, the
following rejections under 35 U.S.C. § 103(a):
1. Claims 1, 3, 5, 7–13, 15, 16, 19, and 20 as unpatentable over
Summers as evidenced by Sanford;
2. Claim 6 as unpatentable over Summers as evidenced by Sanford,
and further in view of Conrad;
3. Claims 14 and 17 as unpatentable over Summers as evidenced by
Sanford, and further in view of Niepelt;
4. Claim 18 as unpatentable over Summers as evidenced by Sanford,
and further in view of Kunieda; and
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5. Claims 21–24 as unpatentable over Summers as evidenced by
Sanford, and further in view of Kuckertz.
OPINION
Appellant argues all the rejected claims as a single group, focusing on
the rejection of claim 1 over Summers and Sandford. Appeal Br. 5–16. In
accordance with 37 C.F.R. § 41.37(c)(1)(iv), we select independent claim 1
as representative, and dependent claims 3 and 5–24 stand or fall with claim
1.
With respect to claim 1, the Examiner finds that Summers discloses a
multilayer film comprising a core layer sandwiched between two outer
layers, the core layer comprising a blend of polyethylene and a cycloolefin
copolymer, and the outer layers include polyethylene, wherein the
polyethylene is selected from a group that includes LDPE. Ans. 3. The
Examiner further finds that Summers fails to disclose that the LDPE has a
density of 0.915–0.930 g/cm3, but finds that Sanford teaches that LDPE has
this density.3 Id. at 4. The Examiner finds that this film, made with the same
materials including LDPE as recited in claim 1, would have been expected to
have a puncture resistance of at least 50 N, tear propagation forces in the
machine and transverse directions of at most 1000 mN, and a ratio of tear
propagation forces in the machine direction to the transverse direction
between 1.5:1 and 1:1.5. Id. at 3 and 4. In addition, the Examiner concludes
that it would have been obvious to have selected LDPE as the polyethylene

3 Although the Examiner finds that Summers fails to disclose that the density
of LDPE is 0.915–0.930 g/cm3, we note that Summers actually teaches that
the polyethylene used may have densities from 0.915–0.935 g/cm3.
Summers 3. Thus, the rejection need not rely on Sanford.
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component of Summers’ film because Summers teaches that LDPE may be
selected from a group of polyethylene components. Id.
Appellant argues that Summers discloses a relatively thick multilayer
film, up to 145 µm, having a tear resistance in one direction that is much
larger than in a transverse direction, as well as a low puncture resistance.
Appeal Br. 5. Appellant contends that Summers teaches essentially the entire
genus of polyethylenes as suitable for its film, although conceding that
Summers explicitly lists LDPE in this group. Id. at 5–6. Appellant urges that
Summers only provides examples using linear low-density polyethylene
(“LLDPE”) and linear medium-density polyethylene (“LMDPE”). Id.
Appellant asserts that Sanford teaches multilayer films having copolymers of
ethylene and at least one C3–C10 α-olefin with a density of less than 0.915
g/cm3, and only discusses the density and branching characteristics of
LDPE. Id. at 6. Appellant further asserts that Sanford does not discuss tear
propagation force or puncture resistance, nor identify any properties of
LDPE that are different from other polyethylenes. Id. Therefore, Appellant
contends that the Examiner’s obviousness conclusion is both inconsistent
with Summers’ and Sanford’s teachings and without substantive support. Id.
at 8. Indeed, Appellant argues that there is nothing in Summers or Sanford
that suggests that tear propagation forces could or should be similar in both
directions, nor that the use of LDPE would somehow result in substantially
different properties than displayed for other polyethylenes. Id. at 9.
Appellant additionally argues that Summers fails to suggest that a
multilayer film having a thickness in the range recited in claim 1 would have
a puncture resistance of at least 50 N. Appeal Br. 11. Appellant notes that
Summers teaches only a single example having a puncture resistance over 50
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N, but for a film thickness of 126 µm. Id. Appellant directs attention to a
Wikipedia cite for LLDPE in support of an assertion that one would expect
LDPE to have a lower puncture resistance than LLDPE. Id. at 11–12.
Appellant contends that “it was therefore unexpected and surprising that the
multilayer films of the present invention showed a puncture resistance of at
least 50 N despite having at a maximum thickness of 80 μm.” Id. at 12.
Moreover, Appellant asserts that Zhang shows that LDPE and LLPDE
behave completely differently with respect to tear resistance and that it not
only would be difficult to predict the tear resistance of LDPE from LLDPE’s
tear behavior, but it would be even more difficult to predict the tear
resistance of mixtures of cycloolefin copolymer with LLDPE or LDPE.
Appeal Br. 10. As such, Appellant argues that Summers does not support the
Examiner’s obviousness position with regard to substituting LDPE for
LLDPE or LMDPE to obtain the film properties recited in claim 1. Id.
Essentially, Appellant argues that those of ordinary skill in the art,
“seeking to develop a film with the present invention’s tear strength and
propagation characteristics, thinness and puncture resistance, would not have
selected LDPE simply because this species was mentioned in passing in
Summer’s general description of the material genus.” Appeal Br. 13
(footnote omitted). Instead, Appellant contends that those of ordinary skill in
the art would have understood that the concept that all polyethylenes are
fungible is not correct, given that it was known in the art that LDPE,
LLDPE, and LMDPE do not behave the same in every application. Id. As
such, Appellant contends that the properties recited in claim 1 are
unpredictable and unexpected.
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Appellant’s arguments are not persuasive of reversible error because
they mischaracterize the basis of the rejection and, on this record, there is
insufficient support for unexpected results. We emphasize that Summers
itself suggests the interchangeability of LDPE and LLDPE in the multilayer
film. As such, Summers’ disclosure, not Appellant’s, is the basis for the
rejection. Further, the motivation for utilizing LDPE, which Summers
clearly teaches as an alternative, need not be the same as Appellant’s. See
KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398 (2007) (“In determining whether
the subject matter of a patent claim is obvious, neither the particular
motivation nor the avowed purpose of the patentee controls. What matters is
the objective reach of the claim. If the claim extends to what is obvious, it is
invalid under § 103.”). Appellant has not established that it would have been
beyond the ordinary skill in the art to follow Summers’ teaching on the use
of LDPE to produce a multilayer film as recited in claim 1.
Nor has Appellant provided evidence that the properties recited in
claim 1 are unexpected. To demonstrate unexpected results, Appellant must
show that any difference would not have been expected by one skilled in the
art at the time of invention. See In re Freeman, 474 F.2d 1318, 1324 (CCPA
1973) (an applicant must show “that the difference actually obtained would
not have been expected by one skilled in the art at the time of invention”).
Attorney argument does not suffice. See In re De Blauwe, 736 F.2d 699,
705 (Fed. Cir. 1984) (unexpected results must be established by factual
evidence).
In this regard, Summers discloses that tear resistance was a property
of concern when preparing multilayer films from polyethylene. Moreover,
Appellant’s own evidence, Zhang, teaches that it was known that a film’s
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properties are affected by the manner and conditions of the film’s
manufacture. For example, although Zhang teaches that tear resistance
behavior varies between LDPE, HDPE, and LLDPE, Zhang also teaches that
tear resistance is one of the important properties for package application
films. Zhang 218. Zhang additionally teaches that tear resistance in both the
machine and transverse directions of LDPE and LLDPE films depends on
the drawn-down ratio (“DDR”). Zhang 226, Table 5. Indeed, Zhang itself
teaches that with an appropriate DDR, the tear resistance in both the
machine and transverse directions for both LDPE and LLDPE can be made
to be substantially equal and low. Id. (compare Resin LLDPE-B at a DDR of
6 and Resin LDPE at a DDR of 6).
Moreover, at oral hearing, Appellant admitted that the method of
making the film impacts tear propagation properties. Transcript 7:1–12
(“The method of making absolutely has an effect on the properties of any of
these films.”). However, although Appellant discloses various production
parameters, Appellant fails to argue, much less demonstrate, that such
parameters differ from those taught in Summers and from those that would
have been within the ordinary skill in the art.
Similarly, although Appellant argues that Summers fails to teach a
puncture resistance of at least 50 N for a film having a thickness of 15–80
µm, we note that Summers not only suggests that its blown films preferably
should have a thickness of 50–80 µm, but that puncture resistances may be
made comparable with analogous films lacking the cyclic olefin copolymer
in the second or core layer. Summers 2:19–22 and 4:28–29. And again, we
note that Appellant has not established that the recited puncture resistance
property would have been unexpected to those of ordinary skill in the art.
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Accordingly, for the reasons given by the Examiner and set forth
above, we sustain the Examiner’s obviousness rejection of claim 1, as well
as the obviousness rejections of dependent claims 3 and 5–24.

CONCLUSION
The Examiner’s decision to reject claims 1, 3, and 5–24 under 35
U.S.C. § 103(a) as unpatentable over Summers as evidenced by Sanford,
alone, or further in view of Conrad, Niepelt, Kunieda, or Kuckertz, is
affirmed.
DECISION SUMMARY
In summary:
Claims
Rejected
35
U.S.C. §
Reference(s)/Basis Affirmed Reversed
1, 3, 5, 7–13,
15, 16, 19,
20
103(a) Summers, Sanford 1, 3, 5, 7–13,
15, 16, 19,
20

6 103(a) Summers, Sanford,
Conrad
6
14, 17 103(a) Summers, Sanford,
Niepelt
14, 17
18 103(a) Summers, Sanford,
Kunieda
18
21–24 103(a) Summers, Sanford,
Kuckertz
21–24
Overall
Outcome
1, 3, 5–24

Appeal 2019-003732
Application 14/240,268

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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