BOREALIS AGDownload PDFPatent Trials and Appeals BoardMay 3, 20212021000642 (P.T.A.B. May. 3, 2021) Copy Citation 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. 14/782,576 10/05/2015 Katja Klimke MPG-024796US PCT 1725 26294 7590 05/03/2021 TAROLLI, SUNDHEIM, COVELL & TUMMINO L.L.P. 1300 EAST NINTH STREET, SUITE 1700 CLEVELAND, OH 44114 EXAMINER LOPEZ, RICARDO E. ART UNIT PAPER NUMBER 1786 NOTIFICATION DATE DELIVERY MODE 05/03/2021 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): docketing@tarolli.com rkline@tarolli.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte KATJA KLIMKE, MARKUS GAHLEITNER, DAVIDE TRANCHIDA, ALBRECHT DIX, JAMES ELLIOTT ROBINSON, ANN WATSON, and AUDREY FRENOT JOHANSSON Appeal 2021-000642 Application 14/782,576 Technology Center 1700 Before BEVERLY A. FRANKLIN, KAREN M. HASTINGS, and JANE E. INGLESE, Administrative Patent Judges. HASTINGS, 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 1–10 and 12–15. See Final Act. 1. We have jurisdiction under 35 U.S.C. § 6(b). We reverse. 1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as Borealis AG. Appeal Br. 2. Appeal 2021-000642 Application 14/782,576 2 CLAIMED SUBJECT MATTER The claims are directed to a cable having an insulation layer comprising a polymer composition. Spec. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A cable having a conductor and at least one insulation layer comprising a polymer composition (PC) comprising: (a) at least 98 wt.%, based on the total weight of the polymer composition (PC), of a crystalline polypropylene (PP) homo- or copolymer having a melt flow rate according to ISO 1133 (230°C/2.16 kg) in the range of 1.0 to 10.0 g/10 min, a ratio of the weight and number average molecular weight Mw/Mn as calculated from the molecular weight distribution determined by size exclusion chromatography according to ISO 160140 in the range of from 2.2 to 6.0, and a comonomer content of below 5.0 wt.%, wherein the comonomers are ethylene and/or a C4 to C10 α-olefin, (b) 0.5 up to 2.0 wt.%, based on the total weight of the polymer composition (PC), of an adhesion promoter (AP) being a maleic anhydride modified polypropylene homo- or copolymer and/or an acrylic acid modified polypropylene homo- or copolymer having a melt flow rate MFR2 (230°C/2.16 kg) in the range of from 2 to 500 g/10 min, (c) 0.0001 to 1.0 wt.%, based on the total weight of the polymer composition (PC), of a polymeric α-nucleating agent (pNA), and (d) optionally 0.02 to 1.0 wt.%, based on the total weight of the polymer composition (PC), of a soluble α-nucleating agent (sNA), wherein the crystalline polypropylene (PP) homo- or copolymer, the maleic anhydride modified polypropylene homo- or copolymer and/or an acrylic acid modified polypropylene homo- or copolymer, and the polymeric α-nucleating agent (pNA) are the only polymer components in the polymer composition (PC). Appeal 2021-000642 Application 14/782,576 3 Independent claim 12 recites a process for producing the cable according to claim 1, including forming the polymer composition (Claims App. 22, 23). REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Mehta US 2003/0092816 A1 May 15, 2003 Wasserman US 2005/0241820 A1 Nov. 3, 2005 Leboeuf US 2007/0004860 A1 Jan. 4, 2007 Hughes US 2010/0285253 A1 Nov. 11, 2010 Pham US 2011/0266027 A1 Nov. 3, 2011 Nakashima US 2012/0217037 A1 Aug. 30, 2012 REJECTIONS Claims 1‒10, 12, and 14‒152 are rejected under 35 U.S.C. § 103 as being unpatentable over Wasserman, Hughes, Leboeuf, Pham, and Mehta. Final Act. 3. Claim 13 is rejected under 35 U.S.C. § 103 as being unpatentable over Wasserman, Hughes, Leboeuf, Pham, Nakashima, and Mehta. Final Act. 7. OPINION The Examiner bears the initial burden of presenting a prima facie case of obviousness. In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992). “[R]ejections on obviousness grounds cannot be sustained by mere 2 It is harmless error that the Examiner did not include claim 6 in the statement of the final rejection (Final Act. 3), as this claim is addressed in the rejection (Final Act. 6). Appeal 2021-000642 Application 14/782,576 4 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), quoted with approval in KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007). Upon consideration of the evidence of record and each of Appellant’s contentions as set forth in the Appeal Brief, as well as the Reply Brief, we conclude that the preponderance of the evidence supports Appellant’s position that the Examiner has not met the burden in this case for substantially the same reasons as set forth by Appellant in the Briefs. Accordingly, we reverse the Examiner’s § 103 rejections of all the claims on appeal. The Examiner finds that Wasserman teaches a cable having a conductor and at least one insulation layer comprising a polymer composition, where the polymer composition comprises a polypropylene homo- or copolymer and nucleating agents (Ans. 4‒5). The Examiner relies on Hughes for the teaching of a propylene polymer useful in wire and cable sheathing, where the polymer is at least 60 wt.% propylene and between 0 and 40 wt.% ethylene (Ans. 5). The Examiner also relies upon the polymer of Hughes for its Mw/Mn and melt flow ratio to meet the corresponding claim limitations. Id. The Examiner relies on Leboeuf to teach the recited adhesion promoter (Ans. 5). Pham is brought in to teach the recited polymeric α-nucleating agent (Ans. 6). To establish a prima facie case of obviousness, an examiner must show that each and every limitation of the claim is described or suggested by the prior art or would have been obvious based on the knowledge of those of ordinary skill in the art. In re Fine, 837 F.2d 1071, 1074 (Fed. Cir. Appeal 2021-000642 Application 14/782,576 5 1988). “[T]he Examiner bears the burden of establishing a prima facie case of obviousness based upon the prior art. ‘[The Examiner] can satisfy this burden only by showing some objective teaching in the prior art or that knowledge generally available to one of ordinary skill in the art would lead that individual to combine the relevant teachings of the references.’” In re Fritch, 972 F.2d 1260, 1265 (Fed. Cir. 1992) (citations omitted). Notably, a preponderance of the evidence supports Appellant’s position that the Examiner reversibly erred in finding a reason within the prior art to include the adhesion promoter of Leboeuf in the polymeric composition of Wasserman (Appeal Br. 15; Reply Br. 9, 10). The Examiner’s obviousness conclusion is based on the finding of a suggestion within Leboeuf that the presence of the adhesion promoter that is a maleic anhydride modified polypropylene homo- or copolymer and/or an acrylic acid modified polypropylene homo-or copolymer in a polymeric composition provides a polymeric composition with rheology properties efficient for use in co-extrusion processes (Ans. 6). The Examiner further asserts that the polymeric composition comprising the maleic anhydride modified polypropylene homo- or copolymer and/or an acrylic acid modified polypropylene homo-or copolymer adheres well to metal films (Ans. 13‒14). The teachings of Wasserman and Lebouef relied upon by the Examiner (Final Act. 4‒5) fail to provide the necessary suggestion to support the obviousness conclusion and, thus, the Examiner’s proposed combination appears to be based on improper hindsight reasoning rather than a preponderance of the evidence from within the prior art and/or the technical skill of the ordinary artisan. The Examiner’s position is that one of ordinary skill would have included the adhesion promoter of Leboeuf in the Appeal 2021-000642 Application 14/782,576 6 polymeric composition of Wasserman to promote the adherence of the polymeric composition to metal, and improve the rheological properties of the polymeric composition (Ans. 6, 14). However, Wasserman is directed to a polypropylene cable jacket (Title). Wasserman provides no indication that an adhesion promoter is contemplated as part of the inventive polypropylene polymer composition (generally Wasserman). Nor does Wasserman speak to adhering the polypropylene polymer composition to a metal film. Id. The disclosure of Leboeuf is directed to metallized films, primarily for use in food packaging, where the presence of the maleic anhydride modified polypropylene homo- or copolymer and/or an acrylic acid modified polypropylene homo-or copolymer provides a polymeric composition promotes adhesion to a metal film substrate (Leboeuf ¶¶ 2, 3, 9, 14). Indeed, the jacketed cables of Wasserman may include fiber optic cables (Wasserman ¶ 11), where adherence to metal would be of no concern. In light of these circumstances, the preponderance of evidence does not supports the Examiner’s determination that one would have included the additive of LeBoeuf into the cable jacket insulation layer of Wasserman. A preponderance of the evidence also supports Appellant’s position that the Examiner has not adequately explained how the combination of Wasserman and Hughes provides a polymer composition comprising at least 98 wt.%, based on the total weight of the polymer composition (PC), of a crystalline polypropylene (PP) homo- or copolymer and a comonomer content of below 5.0 wt.%, wherein the comonomers are ethylene and/or a C4 to C10 α-olefin (Appeal Br. 11‒13; Reply Br. 7‒9). Appeal 2021-000642 Application 14/782,576 7 The Examiner does not establish that the additional reference applied in the § 103 rejection of dependent claim 13 cures these deficiencies and/or otherwise provides another rationale that cures these deficiencies. Accordingly, we reverse the § 103 rejections of claims 1‒10 and 12‒ 15 which all rely upon an impermissible hindsight reconstruction of the polymer composition of Wasserman to include the adhesion promoter of Leboeuf. CONCLUSION The Examiner’s § 103 rejections are REVERSED. DECISION SUMMARY Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1–10, 12, 14, 15 103 Wasserman, Hughes, Leboeuf, Pham, Mehta 1–10, 12, 14, 15 13 103 Wasserman, Hughes, Leboeuf, Pham, Nakashima, Mehta 13 Overall Outcome 1–10, 12–15 REVERSED Copy with citationCopy as parenthetical citation