2020004065 (P.T.A.B. Feb. 2, 2021)

ARKEMA FRANCE

Patent Trials and Appeals BoardFeb 2, 2021

2020004065 (P.T.A.B. Feb. 2, 2021)

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. 14/429,661 03/19/2015 Isabelle Tartarin 0078840-000168 2697 21839 7590 02/02/2021 BUCHANAN, INGERSOLL & ROONEY PC 1737 KING STREET SUITE 500 ALEXANDRIA, VA 22314-2727 EXAMINER HUHN, RICHARD A ART UNIT PAPER NUMBER 1764 NOTIFICATION DATE DELIVERY MODE 02/02/2021 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): ADIPDOC1@BIPC.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte ISABELLE TARTARIN, STEPHANIE NEUBAUER, and NICOLAS LAGRAIN Appeal 2020-004065 Application 14/429,661 Technology Center 1700 BEFORE BEVERLY A. FRANKLIN, KAREN M. HASTINGS, and JAMES C. HOUSEL, Administrative Patent Judges. FRANKLIN, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1–11 and 15–18. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 1 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 ARKEMA FRANCE. Appeal Br. 2. Appeal 2020-004065 Application 14/429,661 2 CLAIMED SUBJECT MATTER Claim 1 is illustrative of Appellant’s subject matter on appeal and is set forth below: 1. An aqueous organic peroxide emulsion composition devoid of protective colloid agent selected from a partially hydrolyzed polyvinyl acetate or cellulose derivatives, the emulsion consisting of: - from 10% to 65% by weight of one or more organic peroxides, - from 2% to 25% by weight of at least one antifreeze agent, - from 0.01% to 10% by weight of an emulsifying agent, - optionally at least one additive, - water, the amount of which is determined so as to form the remainder of the composition (up to 100%), wherein the emulsifying agent consists of a nonionic surfactant chosen exclusively from: - a block copolymer comprising three alkylene oxide blocks; or - an alkoxylated fatty alcohol; or - an alkoxylated fatty acid; or - an alkoxylated (hydrogenated or nonhydrogenated) vegetable or animal oil; or - a mixture of several of these components. REFERENCES The prior art relied upon by the Examiner is: Appeal 2020-004065 Application 14/429,661 3 Name Reference Date Lundin et al. US 5,270,271 Dec. 14, 1993 Westmijze WO 00/42078 July 20, 2000 “Freezing Points of Methanol-Water Solutions” graph. Surfactants Europa (“Hollis”) BASF Kolliphor EL Technical Information document (“BASF”). BASF Solubilizer Compendium (“Compendium”). Dow Tergitol L Series Surfactants product guide (“Dow”). Dow Biodegradable, Low Foam Surfactants for Automatic Dishwashing Applications presentation (“Dow presentation”). REJECTIONS 1. Claims 1, 6, 8–11, and 16–18 are rejected under (pre-AIA) 35 U.S.C. § 102(b) as being anticipated by Westmijze (as evidenced by Lundin and the “Freezing Points of Methanol-Water Solutions” graph). 2. Claim 4 is rejected under (pre-AIA) 35 U.S.C. § 102(b) as being anticipated by Westmijze (as evidenced by Hollis and the “Freezing Points of Methanol-Water Solutions” graph). 3. Claims 2, 3, 5, and 15 are rejected under (pre-AIA) 35 U.S.C. § 103(a) as being unpatentable over Westmijze in view of the BASF (as evidenced by Compendium and the “Freezing Points of Methanol- Water Solutions” graph). 4. Claim 7 is rejected under (pre-AIA) 35 U.S.C. § 103(a) as being unpatentable over Westmijze in view of Dow (as evidenced by the “Freezing Points of Methanol-Water Solutions” graph and the Dow presentation). Appeal 2020-004065 Application 14/429,661 4 OPINION We review the appealed rejections for error based upon the issues Appellant identifies, and in light of the arguments and evidence produced thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential) (cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) (“[I]t has long been the Board’s practice to require an applicant to identify the alleged error in the examiner’s rejections.”). Upon review of the evidence and each of the respective positions set forth in the record, we find that the preponderance of evidence supports Appellant’s position. We are in agreement with Appellant that the claim language specifically limits the emulsifying agents that may be used within the scope of the claimed composition to those enumerated in claim 1. Appeal Br. 9–10. Hence, we also agree with Appellant that the applied art does not meet the requirements of claim 1 for the reasons explained by Appellant in the record. Accordingly, we reverse each of the Examiner’s rejections on appeal for the reasons set forth by Appellant in the record. CONCLUSION We reverse the Examiner’s decision. DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 6, 8–11, and 16–18 102(b) Westmijze, Lundin and graph 1, 6, 8–11, and 16–18 4 102(b) Hollis and graph 4 Appeal 2020-004065 Application 14/429,661 5 2, 3, 5, and 15 103(a) Westmijze, BASF, Compendium and graph 2, 3, 5, and 15 7 103(a) Dow, graph, Dow presentation 7 Overall Outcome 1–11 and 15–18 REVERSED