BASELL POLYOLEFINE GMBH

Patent Trials and Appeals Board

May 21, 2021

2020003487 (P.T.A.B. May. 21, 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.
14/774,265 09/10/2015 Gianni Perdomi FE6785 7678
24114 7590 05/21/2021
LyondellBasell Industries
Legal IP Department
1221 McKinney Street, Suite 700
LyondellBasell Tower
Houston, TX 77010
EXAMINER
LOPEZ, RICARDO E.
ART UNIT PAPER NUMBER
1786
NOTIFICATION DATE DELIVERY MODE
05/21/2021 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):
legal-IP@lyondellbasell.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
_______________
BEFORE THE PATENT TRIAL AND APPEAL BOARD
_______________
Ex parte GIANNI PERDOMI,
JOHANNES GERHARD MULLER, and
ANKUR RASTOGI
_______________
Appeal 2020-003487
Application 14/774,265
Technology Center 1700
_______________

Before TERRY J. OWENS, LINDA M. GAUDETTE, and
DEBRA L. DENNETT, Administrative Patent Judges.

DENNETT, Administrative Patent Judge.

DECISION ON APPEAL1
Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the
Examiner’s decision to reject claims 18–25 of Appeal 2020-003487. See
Final Act. 1; Appeal Br. 1. We have jurisdiction under 35 U.S.C. § 6.

1 In our Decision, we refer to the Specification filed Sept. 10, 2015 (“Spec.”)
of Application 14/774,265 (“the ’265 Application”); the Final Office Action
dated Mar. 7, 2019 (“Final Act.”); the Advisory Action dated May 14, 2019
(“Advisory Act.”); the Appeal Brief filed July 25, 2019 (“Appeal Br.”); and
the Examiner’s Answer dated Dec. 10, 2019 (“Ans.”). Appellant did not file
a Reply Brief.
2 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42. Appellant
identifies Basell Polyolefine GmbH as the real party in interest. Appeal
Br. 3.
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Application 14/774,265

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For the reasons set forth below, we AFFIRM.
BACKGROUND
The subject matter of the ’265 Application relates to a multilayer fiber
obtained by multilayer film ribbons comprising at least a high density
polyethylene (HDPE) as the core layer and a propylene copolymer as the
skin layers. Spec. 1.
Claim 18 is representative of the ’265 Application’s claims and is
reproduced below from the Claims Appendix of the Appeal Brief.
18. A multilayer fiber comprising:
A) at least two outer layers (layer A) comprising:
a propylene/ethylene copolymer comprising 3.5–
6.5 wt% ethylene; a melt flow rate (MFR)
according to ISO 1133 (230°C, 2.16 kg) of 0.5–5
g/10 min; a fraction of polymer soluble in xylene
at 25°C ranging from 10 wt% to 17 wt% based on
the total weight of the copolymer and a tensile
modulus of 500-900 MPa; and
B) at least one core layer (layer B) between the at
least two outer layers, the layer B comprising a
high density polyethylene comprising a density of
0.942–0.958 g/cm3; and having a melt flow rate
(MFR; 190°C, 5.0 kg) of 0.3-5 g/10 min.
REFERENCES
The Examiner relies on the following prior art in rejecting the claims
on appeal:
Name Reference Date
Maruyama et al.
(“Maruyama”)
US 2003/0212193 A1 Nov. 13, 2003
Loos et al.
(“Loos”)
US 2004/0242103 A1 Dec. 2, 2004
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Application 14/774,265

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Sabic HDPE F04660 technical data sheet, available at https://
www.sabic.com/en/products/polymers/polyethylene-pe/sabic-
hdpe (“F04660”).
REJECTION
The Examiner maintains the rejection of claims 18–25 under 35
U.S.C. § 103 over Loos in view of Maruyama, further in view of F04660.
Final Act. 2–4; Ans. 3–5.
DISCUSSION
We review the appealed rejections for error based upon the issues
identified by Appellant 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 [E]xaminer’s rejections . . . .”). After considering the
evidence presented in this Appeal and each of Appellant’s arguments, we are
not persuaded that Appellant identifies reversible error in the Examiner’s
rejection.
Appellant argues the pending claims as a group. Appeal Br. 10–20.
We select claim 18 as representative. 37 C.F.R. § 41.37(c)(1)(iv) (2018).
The Examiner finds that the combination of Loos and Maruyama
teaches claimed layer A except for the tensile modulus, and the combination
of Loos and F04660 teaches claimed layer B. Final Act. 3–4. The Examiner
finds that the claimed tensile modulus is inherent to Maruyama’s copolymer.
Id. at 4. The Examiner determines that it would have been obvious to one of
ordinary skill in the art at the time of the invention to select Maruyama’s
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propylene copolymer as the propylene polymer in layer A of Loos to provide
transparency and impact resistance. Id. at 3–4.
Appellant argues that the Examiner failed to establish a prima facie
case of obviousness because:
(1) the proposed modification or combination of the prior art
would change the principle of operation of the art being
modified; (2) the modification of Loos with Maruyama would
render the multilayer structure of Loos unsatisfactory for its
intended purpose; and (3) the teachings of Loos teach away
from the claims as presented.
Appeal Br. 10. Appellant argues that Loos does not teach a multilayered
structure having a propylene copolymer/HDPE/propylene copolymer
structure. Id. Appellant argues that the multilayer structures of Loos are
either polypropylene/polypropylene/polypropylene (all polypropylene) or
polyethylene/polyethylene/polyethylene (all polyethylene), but are not
polypropylene/polyethylene/polypropylene. Id. (citing Loos ¶¶ 16–23).
Appellant argues that “Loos states without ambiguity that all components of
the material should be classified as the same material so that the recycled
product would be considered one material, instead of a blend of various
components.” Id. at 13 (citing Loos ¶¶ 9–11). Appellant adds that “Loos
goes out of its way to state ‘either’ polyethylene ‘or’ polypropylene,” and
this “makes it clear that a combination of polyethylene and polypropylene is
not intended” by Loos. Id. at 14 (citing Loos ¶ 11). Appellant also quotes
Loos’s statement that “it is important that components consist[] of one class
of material only.” Id.
Appellant’s reading of Loos as teaching that either polypropylene or
polyethylene—but not both—may be used in the laminated structure based
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on certain paragraphs of Loos fails to account for other paragraphs of Loos
that support a different reading, including the following:
In an embodiment of the invention, the outer layer or layers A
at least consist of a ethylene propylene copolymer . . . .
Particular good results have been achieved with such an outer
layer or layers in an embodiment wherein the central layer B is
a polyethylene.
Loos ¶ 20. Thus, Loos teaches that the outer layers may comprise a
propylene/ethylene copolymer and the core layer may comprise a
polyethylene. See Final Act. 3.
Although Loos states that the outer layers (A) of the polyolefin
multilayer film, tap, or yarn are “from the same class as the material of the
central layer B” (Loos ¶ 10), the reference does not define “class” of
material. See generally id. Loos states:
[I]t would be an advantage if all components of the material
could be classified as the same material, such as polypropylene
or polyethylene (including copolymers thereof wherein
propylene respectively ethylene forms the majority of the
monomeric units. The advantage thereof would be that the
resulting recycled material would still be one material, instead
of a blend of various components (no contamination).
Id. ¶ 9. Appellant relies on the statement as support that polyethylene,
polypropylene, and copolymers thereof are different classes of material. See
Appeal Br. 13. However, this statement in Loos is made immediately after
an explanation that glass fiber materials have the disadvantage that they
make it very difficult to recycle the materials in which they are incorporated,
and “[i]t would be very useful if the glass fibres could be replaced by
polymeric fibres or other polymeric reinforcement components, thereby
making it easier to recycle the composite materials.” Loos ¶ 8. Therefore,
Loos’s statement suggests an advantage where all components are
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polyolefins, rather than a combination of polyolefins and glass fibers. In
context, Appellant’s interpretation is not supported by more than attorney
argument. And, it is well settled that arguments of counsel cannot take the
place of factually supported objective evidence. See, e.g., In re Huang, 100
F.3d 135, 139–40 (Fed. Cir. 1996); In re De Blauwe, 736 F.2d 699, 705
(Fed. Cir. 1984). Moreover, Loos discloses “[i]t is also possible that in the
three-layer configuration (ABA), the two outer layers have a slightly
different composition.” Loos ¶ 25.
Appellant’s argument that modification of Loos with Maruyama
would render Loos’s multilayer structure unsatisfactory for its intended
purpose is based on Appellant’s contention that Loos requires each layer of
the multilayered structure to be either PE/PE/PE or PP/PP/PP. See Appeal
Br. 11. Because Appellant’s underlying contention regarding Loos’s
required structure is incorrect, as discussed supra, this argument also fails to
show reversible error.
Appellant argues that Loos’s embodiments support that polyethylene
or polypropylene—but not a combination of both—are used in the
multilayered structure. Appeal Br. 15–20.
Loos describes an embodiment in which the core layer is a
polypropylene and the outer layers are a polypropylene or a copolymer of
propylene with ethylene or another α-olefin. Loos ¶ 17. Loos also teaches
very good results with a random copolymer, such as a propylene-ethylene
random copolymer as the outer layer(s). Id. ¶ 18. Loos describes a
preference for using a propylene ethylene copolymer having an ethylene
content of between 1 and 25 mol.% as the material for the outer layers A, in
particular if the central layer is a polypropylene. Id. ¶ 21.
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However, Loos’s described embodiments and indicated preferences
does not permit us to ignore the broader teachings of the reference. “All the
disclosures in a reference must be evaluated, including nonpreferred
embodiments, and a reference is not limited to the disclosure of specific
working examples.” In re Mills, 470 F.2d 649, 651 (CCPA 1972) (internal
citations omitted). “The prior art’s mere disclosure of more than one
alternative does not constitute a teaching away from any of these alternatives
because such disclosure does not criticize, discredit, or otherwise discourage
the solution claimed . . . .” In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir.
2004); see also Meiresonne v. Google, Inc., 849 F.3d 1379, 1382 (Fed. Cir.
2017) (“A reference that ‘merely expresses a general preference for an
alternative invention but does not criticize, discredit, or otherwise discourage
investigation into’ the claimed invention does not teach away.” (quoting
Galderma Labs., L.P. v. Tolmar, Inc., 737 F.3d 731, 738 (Fed. Cir. 2013))).
Appellant makes no arguments for patentability in relation to
Maruyama or F04660. See generally Appeal Br.
For the above reasons, we sustain the rejection of claim 18 as obvious
over Loos in view of Maruyama and F04660. We sustain the rejection of
claims 19–25 for the same reasons.
DECISION SUMMARY
In summary:
Claims
Rejected
35
U.S.C. § Reference(s)/Basis Affirmed Reversed
18–25 103 Loos, Maruyama, F04660 18–25
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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) (2018).
AFFIRMED