Dow Global Technologies LLC

Patent Trials and Appeals Board

Dec 14, 2020

2020001361 (P.T.A.B. Dec. 14, 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.
14/927,958 10/30/2015 Viraj Shah DOW 77029 PA/40224-359 1801
133320 7590 12/14/2020
The Dow Chemical Company/Dinsmore & Shohl LLP
Fifth Third Center
One South Main Street, Suite 1300
Dayton, OH 45402
EXAMINER
GILLETT, JENNIFER ANN
ART UNIT PAPER NUMBER
1789
NOTIFICATION DATE DELIVERY MODE
12/14/2020 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):
daytonipdocket@dinsmore.com
kimberly.koen@dinsmore.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte VIRAJ SHAH and RAJEN M. PATEL

Appeal 2020-001361
Application 14/927,958
Technology Center 1700
Before TERRY J. OWENS, BRADLEY W. BAUMEISTER, and
BRIAN D. RANGE, Administrative Patent Judges.
RANGE, Administrative Patent Judge.
DECISION ON APPEAL

Appeal 2020-001361
Application 14/927,958

2
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–17. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.
CLAIMED SUBJECT MATTER2
Appellant describes the invention as relating to “cushioning net
structures comprising a 3D random loop orientation.” Spec. ¶ 2. The
structure could be used as cushioning material for furniture, beds, seats, with
the net structure yielding, for example, durability, cushioning, and
breathability. Id. ¶¶ 3, 4. Claim 1 is illustrative:
1. A cushioning net structure comprising an ethylene/-
olefin copolymer blend arranged in a three-dimensional random loop
orientation, wherein a plurality of random loops are bonded together,
wherein the ethylene/-olefin copolymer blend excludes block
copolymers and comprises:
a homogeneously branched random ethylene/-olefin
copolymer and a heterogeneously branched random ethylene/-olefin
copolymer,
wherein the ethylene/α-olefin copolymer blend has:
a molecular weight distribution (MWD) of about 2.5 to
about 4.5, wherein MWD is defined as Mw/Mn with Mw being a

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies the real party in interest as Dow
Global Technologies, LLC. Appeal Br. 1.
2 In this Decision, we refer to the Final Office Action dated November 2,
2018 (“Final Act.”), the Appeal Brief filed June 6, 2019 (“Appeal Br.”), the
Examiner’s Answer dated October 9, 2019 (“Ans.”), and the Reply Brief
filed December 9, 2019 (“Reply Br.”).
Appeal 2020-001361
Application 14/927,958

3
weight average molecular weight and Mn being a number
average molecular weight;
a melt index (I2) of about 3.0 g/10 mins to about 25.0
g/10 mins when measured according to ASTM D1238 at 190°C
and 2.16 kg load;
a density of about 0.895 to about 0.925 g/cm3.

REFERENCES
The Examiner relies upon the prior art below in rejecting the claims
on appeal:
Name Reference Date
Shibata et al.
(“Shibata”)
US 4,429,079 Jan. 31, 1984
Kolthammer et al.
(“Kolthammer”)
US 5,844,045 Dec. 1, 1998
Chum et al.
(“Chum”)
US 6,316,549 B1 Nov. 13, 2001
Bramante et al.
(“Bramante”)
US 2009/0068436 A1 Mar. 12, 2009
Patel US 7,622,179 B2 Nov. 24, 2009

REJECTIONS
The Examiner maintains the following rejections on appeal:
A. Claims 1–14 and 17 under 35 U.S.C. § 103 as obvious over
Kolthammer in view of Patel. Ans. 4.
B. Claim 15 under 35 U.S.C. § 103 as obvious over Kolthammer in view
of Patel and further in view of Bramante, and Chum. Id. at 11.
C. Claim 16 under 35 U.S.C. § 103 as obvious over Kolthammer in view
of Patel and further in view of Shibata. Id. at 12–13.
Appeal 2020-001361
Application 14/927,958

4
OPINION
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 examiner’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. Thus, we affirm the
Examiner’s rejections for the reasons expressed in the Final Office Action
and the Answer. We add the following primarily for emphasis.
Appellant argues all rejections together, and Appellant argues
claims 1 and 13 separately while also arguing claims 11, 12, 13, and 17 as a
group. Appeal Br. 3–12.3 Therefore, consistent with the provisions of
37 C.F.R. § 41.37(c)(1)(iv) (2013), we limit our discussion to claims 1, 13,
and the group of claims 11, 12, 13, and 17. All other claims stand or fall
with claim 1.
With regard to claim 1, the Examiner finds that Kolthammer teaches
an ethylene/-olefin interpolymer having various characteristics with ranges
that overlap claim 1’s recited ranges. Ans. 4–5, 18 (citing Kolthammer). The
Examiner finds that Kolthammer teaches that its polymer “can be used for

3 Appellant refers to claim 14 in the Reply Brief (Reply Br. 3–6) but did not
argue claim 14 separately in the Appeal Brief. We do not consider separate
arguments for claim 14 for the first time in the Reply Brief. 37 C.F.R.
§ 41.41(b)(2) (“Any argument raised in the reply brief which was not raised
in the appeal brief . . . will not be considered by the Board for purposes of
the present appeal, unless good cause is shown.”).
Appeal 2020-001361
Application 14/927,958

5
producing fibers, such as spunbond, melt blown, and gel spun fibers used on
nonwoven fabric.” Id. at 4; see also Kolthammer 17:61–18:8 (teaching that
Kolthammer’s interpolymer composition may be used to make various fibers
as well as woven and nonwoven fabrics and structures made from such
fibers).
The Examiner finds that Kolthammer does not explicitly teach fibers
arranged in a three-dimensional random loop orientation with the random
loops bonded together thereby forming a cushioning net structure. Id. at 6.
The Examiner finds, however, that Patel teaches a cushioning net structure
comprising an ethylene/-olefin interpolymer (copolymer) along with
another polymer (an ethylene/-olefin copolymer blend) arranged in a three-
dimensional random loop orientation, wherein a plurality of random loops
are bonded together. Id. at 6 (citing Patel). The Examiner determines that it
would have been obvious to form the nonwoven of Kolthammer as a
cushioning net as taught by Patel “motivated by the desire of forming
conventionally known fiber structures formed of ethylene/-olefin
interpolymer blends predictably suitable for providing cushioning that would
benefit from having fiber with the good physical properties such as modulus,
yield strength, toughness, tear, and thermal properties as taught by
Kolthammer.” Id. at 6–7.
Appellant argues that a person of skill in the art would not have
combined the teachings of Kolthammer and Patel to arrive at claim 1
because Patel makes use of olefin block interpolymer, which has “vastly
different properties” than random copolymers. Appeal Br. 5–6. Appellant
further argues that net structures resulting from random copolymers, as
Appeal 2020-001361
Application 14/927,958

6
opposed to olefin block copolymers, will have different characteristics. Id.
at 6.
Appellant’s argument is not persuasive because Kolthammer teaches
that its polymer can be used to form, for example, “fibers (e.g., staple fibers,
melt blown fibers or spunbonded fibers . . . and gel spun fibers . . . both
woven and nonwoven fabrics . . . or structures made from such fibers . . .
and molded articles.” Kolthammer 17:61–18:8. Given this teaching, we
agree with the Examiner that a person of ordinary skill in the art would have
had a reasonable expectation of success in using Kolthammer’s polymer to
form the net structure as Patel teaches. Ans. 15.4 Moreover, the Examiner
provides a reason why a person of skill in the art would have used
Kolthammer’s polymer to form such a structure (id. at 6–7), and Appellant
does not persuasively dispute the Examiner’s stated rationale for combining
the references’ teachings.
Appellant also argues that a person of skill in the art would have no
reason to modify Kolthammer’s interpolymer to have melt properties
suitable for processing into a cushioning net structure. Appeal Br. 7. We
disagree. Kolthammer teaches melt indexes that overlap claim 1’s recited
melt index of 3.0 g/10 min to about 25.0 g/10 min. See Kolthammer 6:24–30
(teaching melt indexes from 0.1 g/10 min to 100 g/10 min and especially
from 0.5g/10 min to about 10 g/10 min); see also id. at Table 4 (disclosing
an example with a melt index of 3.3). Kolthammer, therefore, expressly
suggests (even within a preferred range) a suitable melt index. Ans. 16.

4 The Examiner also states that Appellant’s Specification teaches that a net
structure can be formed by a random polymer. Ans. 15. Here, we do not rely
on Appellant’s Specification when evaluating reason to combine.
Appeal 2020-001361
Application 14/927,958

7
Kolthammer further teaches that melt index is inversely proportional to
molecular weight (Kolthammer 6:22–23) while also suggesting that
molecular weight influences strength and tear properties (id. at 23:64–24:4).
As such, a person of skill in the art would have known to choose a melt
index within the ranges taught by Kolthammer to achieve desired properties.
Appellant also argues that the claimed structure has the unexpected
result of reduced height loss. Appeal Br. 7–8. Appellant relies on Table 5 of
the Specification to support this point. Id. A party asserting unexpected
results as evidence of nonobviousness has the burden of proving that the
results are unexpected. In re Geisler, 116 F.3d 1465, 1469–70 (Fed. Cir.
1997). The evidence of unexpected results must also be reasonably
commensurate with the scope of the claims. In re Peterson, 315 F.3d 1325,
1330–31 (Fed. Cir. 2003) (explaining that applicant may overcome a prima
facie case of obviousness by showing unexpected results but the showing of
unexpected results “must be commensurate in scope with the claims which
the evidence is offered to support” (internal quotes and citation omitted)). “If
an applicant demonstrates that an embodiment has an unexpected result and
provides an adequate basis to support the conclusion that other embodiments
falling within the claim will behave in the same manner, this will generally
establish that the evidence is commensurate with scope of the claims.” In re
Huai-Hung Kao, 639 F.3d 1057, 1068 (Fed. Cir. 2011).
Here, we agree with the Examiner that Appellant has not adequately
established unexpected results commensurate with the scope of claim 1.
Ans. 16. In particular, claim 1 permits a range of ethylene/-olefin
copolymer blends having, for example, a range of molecular weight
distributions, a range of melt indexes, and a range of densities. The data of
Appeal 2020-001361
Application 14/927,958

8
Table 5 only shows superior height loss as to one particular embodiment.
Appellant does not demonstrate a basis to conclude that other embodiments
within the claim will behave in the same manner. Appellant’s evidence of
unexpected results when considered with the totality of the evidence before
us does not identify error in the Examiner’s obviousness conclusion. We,
therefore, sustain the Examiner’s rejection of claim 1.
Dependent Claim 13 requires that the ethylene/-olefin blend have a
particular ratio of storage modulus. Appeal Br. 14 (Claims App.). Appellant
argues that the Examiner errs by relying on Patel’s teachings regarding
storage modulus rather than Kolthammer’s teachings to reach this recitation.
Appeal Br. 8–9. Appellant’s argument is unpersuasive for the reasons
explained below.
Our reviewing court has held that where “the claimed and prior art
products are identical or substantially identical, or are produced by identical
or substantially identical processes, the PTO can require an applicant to
prove that the prior art products do not necessarily or inherently possess the
characteristics of his claimed product.” In re Best, 562 F.2d 1252, 1255
(CCPA 1977); see also In re Spada, 911 F.2d 705, 708 (Fed. Cir. 1990)
(“[W]hen the PTO shows sound basis for believing that the products of the
applicant and the prior art are the same, the applicant has the burden of
showing that they are not.”).
Here, the Examiner finds that the claimed ethylene/-olefin blend and
Kolthammer’s ethylene/-olefin blend are the same or substantially the
same by comparing their known properties. Ans. 18. The Examiner’s finding
is sufficient to shift to Appellant some burden of proving that the prior art
product does not necessarily possess the claimed storage modulus
Appeal 2020-001361
Application 14/927,958

9
characteristic. Appellant, however, does not persuasively establish that
Kolthammer’s ethylene/-olefin blends are different from each other or have
different properties. Moreover, the Examiner persuasively reasons that a
person of skill would select properties within the ranges taught by Examiner
to reach the known modulus ratio that Patel teaches as acceptable. Ans. 19.
Thus, Appellant’s argument does not establish error in the Examiner’s
determination.
Appellant also argues that the Examiner relies on an improper theory
of inherency to reach the recitations of claims 11, 12, 13, and 17. Appeal
Br. 9–11; Reply Br. 5–6. Dependent claims 11, 12, and 13 each recite a
characteristic of claim 1’s ethylene/-olefin blend. Appeal Br. 14 (Claims
App.); see also Discussion of Claim 13 above. As explained above, the
Examiner finds that the claimed ethylene/-olefin blend and Kolthammer’s
ethylene/-olefin blend are the same or substantially the same by comparing
their properties. Appeal Br. 21. The Examiner, thus, could reasonably shift
the burden of establishing that the claimed blend and Kolthammer’s blend
have different properties to Appellant. In re Best, 562 F.2d at 1256.
Appellant presents no evidence or otherwise persuasive argument that would
meet this burden.
Claim 17 recites, “The cushioning net structure of claim 1, wherein
the cushioning net structure has a height loss of less than 3% as measured in
accordance with ASTM D 3574, Test B2.” Appeal Br. 15 (Claims App.).
Because the Examiner determines that the claimed ethylene/-olefin blend
and Kolthammer’s ethylene/-olefin blend are the same, the Examiner also
provides a reasonable basis for believing that a net structure made of these
same materials would have the same characteristics. In re Best, 562 F.2d at
Appeal 2020-001361
Application 14/927,958

10
1256. Appellant does not provide evidence or technical rationale why the
combined teachings of the references, as proposed by the Examiner, would
not result in the characteristics that claims 11, 12, 13, and 17 recite.
Appellant argues that obviousness cannot be based on inherency when
references are combined. Reply Br. 5–6. We disagree with Appellant’s legal
proposition. The Federal Circuit has stated, “inherency may supply a
missing claim limitation in an obviousness analysis where the limitation at
issue is the natural result of the combination of prior art elements.” Persion
Pharm. LLC v. Alvogen Malta Operations Ltd., 945 F.3d 1184, 1191 (Fed.
Cir. 2019) (internal quotes and citation omitted); see also Allergan, Inc. v.
Sandoz Inc., 726 F.3d 1286, 1294 n.1 (Fed. Cir. 2013) (“the inherency
doctrine may apply to an otherwise obvious claim as well.”). Courts have
long found inherent disclosures of prior art combinations. See, e.g., In re
Paul, 252 F.2d 306, 309 (CCPA 1958) (affirming rejection where claimed
“desirable result is inherent in the obvious combination of the references”).
Appellant cites Honeywell Int’l Inc. v. Mexichem Amanco Holding
S.A. DE C.V., 865 F.3d 1348, 1355 (Fed. Cir. 2017), to argue that
unexpected inherent properties may render a composition nonobvious.
Appeal Br. 11; Reply Br. 5–6. Honeywell, however, is distinguishable from
the present matter. In Honeywell, the Board determined that a person of
ordinary skill would have had a reasonable expectation of success in
combining the HFO-1234yf refrigerant with PAG lubricants. Honeywell Int’l
Inc., 865 F.3d at 1353. To support the combination, the Board relied on the
“inherent” stability of the HFO refrigerant in combination with the PAG
lubricant as supporting the rationale to combine. Id. Our reviewing court
held that the Board’s analysis was flawed because, although the stability
Appeal 2020-001361
Application 14/927,958

11
may have been inherent, if the stability was unknown there would not have
been a reason to combine. Id. at 1355.
Here, the Examiner’s stated reason to combine does not require
speculating on any inherent properties of the references’ combined
teachings. Ans. 6–7. Rather, the Examiner’s reason to combine the
references’ teachings is based on the beneficial properties of the
Kolthammer polymer as taught by Kolthammer along with Kolthammer
teaching that its polymer can form a variety of structures similar to the
netting of Patel. Id. at 6–7, 15. As explained above, Appellant does not
persuasively dispute these rationales to combine. Once the combination is
made, reliance on properties inherent to the combination is proper. See, e.g.,
Persion Pharm. LLC, 945 F.3d at 1191.
We are also not persuaded by Appellant’s citation to a decision by our
predecessor Board, Ex parte Vigano Appeal No. 2010-007666 (Application
No. 12/044,623) (BPAI (Jan. 3, 2012)). Reply Br. 5. Ex parte Vigano is not
precedential or binding on this panel. Moreover, the Vigano holding, much
like Honeywell, is based on lack of reason to combine the references in the
first instance. Vigano at 5–6.
Because Appellant’s arguments do not identify error, we sustain the
Examiner’s rejection of claims 11, 12, 13, and 17.

Appeal 2020-001361
Application 14/927,958

12
DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–14, 17 103 Kolthammer, Patel 1–14, 17
15 103 Kolthammer, Patel,
Bramante, Chum
15
16 103 Kolthammer, Patel,
Shibata
16
Overall
Outcome
1–17

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