UNIVATION TECHNOLOGIES, LLC

Patent Trials and Appeals Board

Sep 8, 2020

15117363 - (D) (P.T.A.B. Sep. 8, 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.
15/117,363 08/08/2016 Sun-Chueh Kao 2014U018-US-PCT 7744
76104 7590 09/08/2020
The Dow Chemical Company/Brooks Cameron & Huebsch
1201 MARQUETTE AVENUE SOUTH, SUITE 400
Minneapolis, MN 55403
EXAMINER
QIAN, YUN
ART UNIT PAPER NUMBER
1732
NOTIFICATION DATE DELIVERY MODE
09/08/2020 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):
DOW.DOCKETING@BIPL.NET
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SUN-CHUEH KAO, FRANCIS C. RIX, CHING-TAI LUE,
MARK G. GOODE, and DONGMING LI
Appeal 2019-006726
Application 15/117,363
Technology Center 1700
Before KAREN M. HASTINGS, JEFFREY B. ROBERTSON, and
MICHAEL G. MCMANUS, Administrative Patent Judges.
ROBERTSON, Administrative Patent Judge.
DECISION ON APPEAL1

1 This Decision includes citations to the following documents: Specification
filed August 8, 2016 (“Spec.”); Final Office Action mailed February 1, 2019
(“Final Act.”); Appeal Brief filed June 3, 2019 (“Appeal Br.”); Examiner’s
Answer mailed July 12, 2019 (“Ans.”); and Reply Brief filed September 12,
2019 (“Reply Br.”).
Appeal 2019-006726
Application 15/117,363

2
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the
Examiner’s decision to reject claims 17, 19, 21–26, 31, 33, 39, 40, and 42.
Appeal Br. 6. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
CLAIMED SUBJECT MATTER
Appellant states the invention relates to a catalyst system including a
first catalyst compound and a second catalyst compound that are
co-supported to form a commonly supported catalyst system. Spec. ¶ 8.
The catalyst system is used in a method of polymerizing olefins to produce a
polyolefin polymer with a multimodal composition distribution. Id. Claim
17, reproduced below, is illustrative of the claimed subject matter (Appeal
Br., Claims Appendix 15):
17. A catalyst composition comprising a first catalyst
compound and a second catalyst compound that are co-
supported forming a commonly supported catalyst system,
wherein the first catalyst compound comprises the following
formula:
(C5HaR1b)(C5HcR2d)HfX2
wherein each R1 is independently H, a hydrocarbyl group, a
substituted hydrocarbyl group, or a heteroatom group; each R2
is independently H, a hydrocarbyl group, a substituted
hydrocarbyl group, or a heteroatom group; a and c are ≥ 3; a+b
= c+d = 5; at least one R1 and at least one R2 is a hydrocarbyl or
substituted hydrocarbyl group; adjacent R1 and R2 groups are
optionally coupled to form a ring; and each X is independently

2 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42(a). Appellant identifies Univation Technologies, LLC, a wholly
owned subsidiary of DOW Inc., as the real party in interest. Appeal Br. 3.
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a leaving group selected from a labile hydrocarbyl, substituted
hydrocarbyl, or heteroatom group, or a divalent radical that
links to an R1, or R2 group;
and the second catalyst compound comprises the following
formula:
,

wherein each R3 or R3a is independently H, a hydrocarbyl
group, a substituted hydrocarbyl group, or a heteroatom group,
wherein each R3 or R3a are optionally the same or different; and
each X is independently a leaving group selected from a labile
hydrocarbyl, a substituted hydrocarbyl, a heteroatom group, or
a divalent radical that links to an R3 group.

REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Wu et al.
hereinafter “Wu”
US 2007/0043248 A1 February 22, 2007
Muruganandam et al. US 2010/0063227 A1 March 11, 2010
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Application 15/117,363

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hereinafter
“Muruganandam”
Follestad et al.
hereinafter
“Follestad”
WO 01/09200 A1 February 8, 2001
Reybuck et al.
hereinafter
“Reybuck”
Journal of Polymer Science: Part
A: Polymer Chemistry, vol. 42,
3323–3331. “Ethylene/1-Hexene
Copolymerization with
Tetramethyldisiloxane-Bridged
Bis(indenyl) Metallocenes.”
February 26, 2004
REJECTIONS
1. The Examiner rejected claims 17, 19, 21, 24–26, 31, 33, 39, and 40
under pre-AIA 35 U.S.C. § 103(a) as unpatentable over Wu and
Reybuck. Final Act. 4–6.
2. The Examiner rejected claims 22 and 23 under pre-AIA 35 U.S.C.
§ 103(a) as unpatentable over Wu and Follestad. Final Act. 6–7.
3. The Examiner rejected claim 42 under pre-AIA 35 U.S.C. § 103(a)
as unpatentable over Wu, Reybuck, and Muruganandam. Final
Act. 7–8.

OPINION
Rejection 1
Appellant presents arguments only with respect to claim 17 subject to
this rejection. See Appeal Br. 6. Thus, we select claim 17 as representative
for disposition of this rejection, with the patentability of the remaining
claims standing or falling with claim 17. 37 C.F.R. § 41.37(c)(1)(iv).
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The Examiner’s Rejection
In rejecting claim 17 as obvious over Wu and Reybuck, the Examiner
found Wu discloses a catalyst for polymerization comprising a carrier,
supported alkylaluminum and two or more catalysts of metallocenes, but Wu
does not specifically disclose the second catalyst compound recited in claim
17. Final Act. 4–5. The Examiner found Reybuck discloses a
tetramethyldisiloxane-bridged bis(indenyl) zirconocene dichloride catalyst
for polymerization as in claim 17. Id. at 5. The Examiner determined it
would have been obvious to have combined the meso form of
tetramethyldisiloxane-bridged bis(indenyl) zirconocene dichloride of
Reybuck with the catalyst system disclosed by Wu because the meso form of
the metallocene provides high activity for ethylene polymerization, is the
most stable conformation, and shows a higher 1-hexene selectivity and a
high product of reactivity. Id.

Appellant’s contentions
Appellant contends that Wu discloses several critical factors for
optimum results, which includes proper choice of metallocene catalysts, and
that Wu expressly discloses the metallocene catalysts are unbridged. Appeal
Br. 9. Thus, Appellant contends Wu teaches away from using the bridged
metallocene catalysts disclosed in Reybuck. Id. Appellant argues that using
the bridged metallocene catalysts disclosed in Reybuck in the process of Wu
would defeat the intended purpose of Wu, which is to have high
productivity, because Reybuck discloses the bridged metallocene catalysts
disclosed therein have low productivity. Id. at 10–11. Appellant argues that
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the reasoning provided by the Examiner, namely the more stable
conformation and higher 1-hexene activity of the meso form of the bridged
metallocene catalyst, is not sufficiently supported by Reybuck because
Reybuck discloses the stability and 1-hexene selectivity is not with respect
to all catalysts, but only as compared with the rac form of the catalyst. Id. at
11. Appellant argues one of ordinary skill would not have combined
Reybuck’s catalyst, which is disclosed for copolymerization of ethylene/1-
hexene where the majority of polymers produced are solids at room
temperature, with Wu, which discloses poly-alpha olefins that are liquids at
room temperature and used for lubricating oils. Id. at 12.

Issue
Has Appellant demonstrated reversible error in the Examiner’s
position that one of ordinary skill in the art would not have utilized the
bridged metallocene catalysts disclosed in Reybuck in conjunction with the
catalyst system disclosed in Wu?

Discussion
We are not persuaded by Appellant’s arguments. Initially, we agree
with the Examiner that Wu does not teach away from the use of bridged
metallocene catalysts. See Ans. 6. That is, although Appellant contends that
Wu discloses unbridged metallocene catalysts are “critical” for the process
described in Wu (see Wu ¶ 84), we observe that Wu discloses the catalyst
compositions may be mixed with other known polymerization catalysts to
achieve desired polymer or oligomer blends and further discusses the
influence of bridging on choosing reactor residence times. Wu ¶¶ 193, 199.
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Thus, Wu allows for the presence of bridged metallocene catalysts as
disclosed in Reybuck. Cf. In re Kerkhoven, 626 F.2d 846, 850 (CCPA 1980)
(“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 to be used for the very same purpose.... [T]he idea of
combining them flows logically from their having been individually taught
in the prior art.”) (Citations omitted). Moreover, the Examiner’s rejection
still includes the presence of an unbridged hafnium metallocene catalysts
disclosed to be “critical” in Wu. Final Act. 4.
We are also not persuaded by Appellant’s argument that due to the
“high productivity” disclosed in Wu (Wu ¶ 21) and the productivity
concerns with the bridged metallocene catalysts disclosed in Reybuck
(Reybuck p. 3325), one of ordinary skill in the art would not have combined
Wu with Reybuck. In particular, Wu discloses productivity may be
sacrificed depending on the desired characteristics of the product. Wu
¶ 200. As discussed above, the Examiner’s rationale relies in part on higher
1-hexene selectivity of the meso tetramethyldisiloxane-bridged bis(indenyl)
zirconocene dichloride of Reybuck, and as such, is consistent with Wu’s
disclosure that productivity may be sacrificed in order to obtain desired
oligomers, polymers, or blends thereof.
In this regard, Appellant’s argument that Reybuck only provides
comparisons between the meso and rac forms of the tetramethyldisiloxane-
bridged bis(indenyl) zirconocene dichloride catalyst is not persuasive,
because Reybuck expressly discloses the meso form exhibits higher 1-
hexene when compared to other catalysts such as 2,2-bridged complex
ethylene bis(2-indenyl) zirconium dichloride. Reybuck 3329. Such
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comparisons provide support for the Examiner’s rationale as to why one of
ordinary skill in the art would have utilized the particular catalyst of
Reybuck in Wu’s system.
Last, we are not persuaded by Appellant’s arguments that because the
polymers produced in Reybuck are mostly solids, one of ordinary skill in the
art would not have used such catalysts in producing poly-alpha olefins that
are liquids at room temperature and used for lubricating oils. As pointed out
by the Examiner, Reybuck and Wu disclose example polymerization
conditions that are different from one another. Ans. 6, citing Wu, Table 1A,
Table 3; Reybuck, Table 1. We do not find such examples to limit the
teachings of either Reybuck or Wu, such that one of ordinary skill in the art
would have been limited by the examples of either reference, particularly in
view of our discussion of Wu above. Indeed, even the examples of the
number average molecular weights and polydispersity obtained in Reybuck
(Table 1) significantly overlap with the broad ranges disclosed in Wu (¶¶ 47,
48).
Accordingly, we affirm the Examiner’s rejection of claim 17, and
claims 19, 21, 24–26, 31, 33, 39, and 40 dependent therefrom as obvious
over Wu and Reybuck.

Rejections 2–3
Appellant does not set forth separate arguments with respect to claims
22 and 23, subject to Rejection 2, and claim 42, subject to Rejection 3, rather
relying on the dependency of these claims from claim 17. Appeal Br. 6.
Accordingly, we affirm the Examiner’s rejection of claims 22, 23, and
42.
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DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
17, 19, 21,
24–26, 31,
33, 39, 40
103 Wu, Reybuck 17, 19, 21,
24–26, 31,
33, 39, 40

22, 23 103 Wu, Follestad 22, 23
42 103 Wu, Reybuck,
Muruganandam
42
Overall
Outcome
17, 19, 21–
26, 31, 33,
39, 40, 42

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