BRASKEM S.A.Download PDFPatent Trials and Appeals BoardOct 14, 20212020004513 (P.T.A.B. Oct. 14, 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. 14/441,060 05/06/2015 Carolina Barreto Roma Martinelli F9373-00485 3745 105118 7590 10/14/2021 Duane Morris LLP (Braskem) IP DEPARTMENT 30 South 17th Street Philadelphia, PA 19103-4196 EXAMINER HAUTH, GALEN H ART UNIT PAPER NUMBER 1742 NOTIFICATION DATE DELIVERY MODE 10/14/2021 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): DGrowe@duanemorris.com idocketing@duanemorris.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte CAROLINA BARRETO ROMA MARTINELLI and MARCELO FARASH ____________ Appeal 2020-004513 Application 14/441,060 Technology Center 1700 ____________ Before JEFFREY B. ROBERTSON, CHRISTOPHER C. KENNEDY, and JANE E. INGLESE, Administrative Patent Judges. INGLESE, Administrative Patent Judge. DECISION ON APPEAL Appellant1 requests review under 35 U.S.C. § 134(a) of the Examiner’s final rejection of claims 1, 3, 8, 9, 22–25, 27, and 28.2 We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 1 “Appellant” refers to the “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies Braskem SA as the real party in interest. Appeal Brief filed January 21, 2020 (“Appeal Br.”), 1. 2 Final Office Action entered August 19, 2019 (“Final Act.”), 1. Appeal 2020-004513 Application 14/441,060 2 CLAIMED SUBJECT MATTER Appellant claims a method for preparing a product comprising a polyolefin and an adhesive. Appeal Br. 1–4. Claim 1, the sole pending independent claim, illustrates the subject matter on appeal, and reads as follows: 1. A method for preparing a product comprising a polyolefin and an adhesive, wherein the product is a co-extruded structure including a polyolefin layer and an ethylene vinyl acetate (EVA) adhesive layer, the method further comprising molding a polyurethane foam on the adhesive layer of the co-extruded structure, wherein molding the polyurethane foam comprises combining a polyol and an isocyanate in a mold, and curing the combined material, wherein the viscosity ratio between the polyolefin and the adhesive is from 0.5 to 2, and the vinyl acetate content in EVA is 8 to 21 wt%, and wherein said EVA has a fluidity rate between 0.1 and 800 g/10 min measured at 190°C/2.16 Kg, and the adhesive layer of the co-extruded structure is subjected to a treatment selected from corona, flame, plasma, radiation and combinations thereof. Appeal Br. 8 (Claims Appendix) (emphasis and spacing added). REJECTIONS The Examiner maintains the following rejections in the Examiner’s Answer entered March 6, 2020 (“Ans.”): I. Claims 1, 3, 8, 9, 25, and 28 under 35 U.S.C. § 103(a) as unpatentable over Haas (US 2005/0170189 A1, published August 4, 2005) in view of Michael (US 2001/0046587 A1, published November 29, 2001), Herridge (US 5,660,922, issued August 26, 1997), Newman (US 3,673,050, Appeal 2020-004513 Application 14/441,060 3 issued June 27, 1972), Ikishima (US 2012/0070661 A1, published March 22, 2012), and Arber (US 2009/0226747 A1, published September 10, 2009); II. Claims 22–24 under 35 U.S.C. § 103(a) as unpatentable over Haas in view of Michael, Herridge, Newman, Ikishima, Arber, and Kuniya (US 2004/0265361 A1, published December 30, 2004); and III. Claim 27 under 35 U.S.C. § 103(a) as unpatentable over Haas in view of Michael, Herridge, Newman, Ikishima, Arber, and Cageao (US 2007/0160793 A1, published July 12, 2007). FACTUAL FINDINGS AND ANALYSIS Upon consideration of the evidence relied upon in this appeal and each of Appellant’s contentions, we reverse the Examiner’s rejections of claims 1, 3, 8, 9, 22–25, 27, and 28 under 35 U.S.C. § 103(a) for reasons set forth in the Appeal Brief and below. Claim 1 requires the recited method to comprise forming a co- extruded structure including a polyolefin layer and an adhesive layer, and molding a polyurethane foam on the adhesive layer of the co-extruded structure by combining a polyol and an isocyanate in a mold. The Examiner finds that Haas discloses a process for forming a composite material used as a body component of a motor vehicle, such as a roof. Final Act. 3 (citing Haas ¶ 59). The Examiner finds that Haas’ process involves preparing a polyolefin (polypropylene or polyethylene) laminate preform, placing the preform into a mold, and molding a polyurethane foam onto the preform, so that “the polyurethane is adhesively joined to the preform material.” Final Act. 3 (citing Haas ¶¶ 14–19, 62, 65). The Examiner finds that Haas discloses that “the molding comprises combining a Appeal 2020-004513 Application 14/441,060 4 polyol and an isocyanate in a mold and curing the combined material to form a polyurethane foam.” Final Act. 3 (citing Haas ¶¶ 18, 66, 67). The Examiner finds that “Haas does not explicitly teach that the polyolefin is coextruded with an adhesive.” Final Act. 3. The Examiner finds, however, that “Michael teaches a similar process of bonding a polyolefin to a polyurethane foam” that involves coextruding a polyolefin with an adhesive “in order to ensure adhesion to the polyurethane.” Final Act. 3 (citing Michael ¶¶ 18–20, claims 1 and 6). The Examiner finds that products produced from Michael’s process are “useful for forming composite motor vehicle structural parts similar to the purpose of the product of Haas.” Final Act. 3 (citing Michael ¶ 2). In view of these disclosures in Michael, the Examiner concludes that it would have been obvious to one of ordinary skill in the art to form Haas’ polyolefin laminate preform by co-extruding a polyolefin with an adhesive to “promot[e] adhesion to the polyurethane foam,” because Haas and Michael “both relate to the formation of composite structures in which a polyolefin based laminate is bonded to polyurethane presenting a reasonable expectation of success.” Final Act. 3–4. On the record before us, however, the Examiner does not provide reasoning having rational underpinning that explains why one of ordinary skill in the art would have modified Haas’ process as the Examiner proposes, for reasons express by the Appellant (Appeal Br. 5–6), and discussed below. Haas discloses a process for producing a composite element comprised of an outer layer formed of a thermoplastic material, such as polyethylene and/or polypropylene, and a supporting layer formed of fiber- reinforced polyurethane, “in which the layers adhere to each other.” Appeal 2020-004513 Application 14/441,060 5 Haas ¶¶ 13–19, 61, 62. Haas discloses producing Haas’ composite element by introducing an outer thermoplastic layer into the bottom shell of a mold, applying components for forming polyurethane foam onto the outer layer, including at least one polyisocyanate and an isocyanate-reactive compound, reacting the polyurethane components in the mold, and removing the resulting polyurethane composite element from the mold. Haas ¶¶ 13–19, 65–67. Haas discloses that, as a result of this process, “[t]he supporting layer consisting of fiber-reinforced PU [polyurethane] is adhesively joined to the outer layer.” Haas ¶ 65. Haas further explains that the polyurethane formulation provides “a very good adhesive bond to all composite layers, i.e. the outer [thermoplastic] layer.” Haas ¶ 6. As discussed above, the Examiner determines that it would have been obvious to one of ordinary skill in the art to form Haas’ outer thermoplastic layer (polyolefin laminate preform) by co-extruding the thermoplastic material (polyolefin) with an adhesive, in order to “promot[e] adhesion to the polyurethane foam.” Final Act. 3–4. Haas explicitly indicates, however, that Haas’ process results in formation of a very good adhesive bond between the thermoplastic and polyurethane layers of Haas’ composite. The Examiner does not explain why, in view of this disclosure, one of ordinary skill in the art would have had any reason to modify Haas’ process to form Haas’ thermoplastic layer by co-extruding the thermoplastic material with an adhesive. In response to Appellant’s argument that use of an adhesive is not necessary to bond the layers of Haas’ composite (Appeal Br. 5), the Examiner indicates in the Answer that “[t]he [polyurethane] foam of Haas is explicitly taught to be desirably adhered to a [polyolefin] laminate Appeal 2020-004513 Application 14/441,060 6 structure,” and “inclusion of an adhesive layer as taught by Michael serves to improve such adhesion between polar and non-polar substrates such as polyurethane foam and polyolefins.” Ans. 10 (citing Haas ¶ 7). The Examiner, however, does not provide any objective evidence to support this assertion that including an adhesive in Haas’ thermoplastic layer would improve adhesion between the thermoplastic material and polyurethane layer of Haas’ composite. The Examiner’s unsupported assertion, therefore, amounts to mere speculation, which does not provide a sufficient factual basis to establish prima facie obviousness. In re Warner, 379 F.2d 1011, 1017 (CCPA 1967) (“The Patent Office . . . may not . . . resort to speculation, unfounded assumptions or hindsight reconstruction to supply deficiencies in its factual basis.”); In re Sporck, 301 F.2d 686, 690 (CCPA 1962). Consequently, on the record before us, the Examiner does not establish that one of ordinary skill in the art reasonably would have modified Haas’ method in view of Michael to arrive at a method for producing a product by forming a co-extruded structure including a polyolefin layer and an adhesive layer, and molding a polyurethane foam on the adhesive layer of the co-extruded structure by combining a polyol and an isocyanate in a mold, as required by claim 1. We, accordingly, do not sustain the Examiner’s rejection of claim 1, and claims 3, 8, 9, 22–25, 27, and 28, which each depend from claim 1, under 35 U.S.C. § 103(a). Appeal 2020-004513 Application 14/441,060 7 DECISION SUMMARY Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 3, 8, 9, 25, 28 103 Haas, Michael, Herridge, Newman, Ikishima, Arber 1, 3, 8, 9, 25, 28 22–24 103 Haas, Michael, Herridge, Newman, Ikishima, Arber, Kuniya 22–24 27 103 Haas, Michael, Herridge, Newman, Ikishima, Arber, Cageao 27 Overall Outcome 1, 3, 8, 9, 22– 25, 27, 28 REVERSED Copy with citationCopy as parenthetical citation