Ex Parte 7772347 et al

Patent Trial and Appeal Board

Sep 29, 2016

90013030 (P.T.A.B. Sep. 29, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
90/013,030 10/16/2013 7772347
23643 7590 09/29/2016
Barnes & Thornburg LLP (IN)
11 S. Meridian Street
Indianapolis, IN 46204
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
65461/887650 4076
EXAMINER
KUGEL, TIMOTHY J
ART UNIT PAPER NUMBER
3991
MAILDATE DELIVERY MODE
09/29/2016 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KNAUF INSULATION, INC. & KNAUF INSULATION SPRL
Patent Owner and Appellant
Appeal2016-006368
Reexamination Control 90/013,030
US 7,772,347 B2
Technology Center 3900
Before ROMULO H. DELMENDO, RICHARD M. LEBOVITZ, and
RAEL YNN P. GUEST, Administrative Patent Judges.
LEBOVITZ, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on an appeal by Patent Owner from the Patent
Examiner's final rejection of claims 1-36 in the above-identifed ex parte
reexamination of US 7,772,347 B2. The Board's jurisdiction for this appeal
is under 35 U.S.C. §§ 6(b), 134(b), and 306. We affirm.
Appeal2016-006368
Reexamination Control 90/013,030
US 7, 772,34 7 B2
STATEMENT OF CASE
This appeal involves US 7, 772,34 7 B2 ("the '34 7 patent") which was
patented Aug. 10, 2010. A Request for Ex Parte Reexamination of the
'347 patent was submitted by a third-party requester on Oct. 16, 2013.
Claims 1-36 stand finally rejected by the Examiner. Final Rejection
("Final Rej.") (dated Jul. 24, 2015). Claims 1-28 are original claims, but
were amended during the reexamination proceeding. Claims 29-36 were
added during the reexamination proceeding.
The real parties in interest in this ex parte reexamination proceeding is
Knauf Insulation, Inc. and Knauf Insulation SPRL (collectively, "Patent
Owner"). Appeal Br. 2.
This ex parte reexamination is related to the ex parte and inter partes
reexaminations listed on pages 3--4 of the Appeal Brief.
The claims stand finally rejected by the Examiner as follows:
1. Claims 1-18 and 20-36 under 35 U.S.C. § 103(a)1 as obvious in
view of Hansen II2 and Worthington. 3 Final Rej. 7.
2. Claim 19 under 35 U.S.C. § 103(a) as obvious in view of Hansen
II, Worthington, and Gershu,4 Chen,5 and/or Koch. 6 Final Rej. 17
Patent Owner did not provide separate arguments for the claims.
Consequently, we choose claim 1 as representative to decide all issues in the
1 Pre-Leahy-Smith America Invents Act (Public Law 112-29).
2 US 2006/0111480 Al, published May 25, 2006.
3 US 3,513,001, patented May 19, 1970.
4 US 6,143,243, patented Nov. 7, 2000.
5 US 6,274,661 Bl, patented Aug. 14, 2001.
6 US 7,083,831 Bl, patented Aug. 1, 2006.
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appeal. 37 C.F.R. § 41.37(c)(iv). Claim 1 is reproduced below (underlining
and brackets indicate amendments relative to the original claim):
1. A method of making a collection of matter bound with a
melanoidin containing formaldehyde-free thermoset binder,
compnsmg:
preparing an aqueous solution containing reactants for
producing melanoidins, wherein the reactants include dextrose,
citric acid, and ammonia, wherein the ratio of the number of
moles of the citric acid to the number of moles of the dextrose
is about 1 :5, about 1 :6, or about 1 :7, and wherein a dry weight
of the dextrose makes up about 73% to about 96% of a total dry
weight of reactants in the aqueous solution;
disposing the aqueous solution onto the collection of
matter;
volatilizing the water to form a dehydrated reactive
mixture disposed upon the collection
of matter, and
polymerizing the dehydrated reactive mixture to form the
thermoset binder containing melanoidins cross-linked with the
citric acid.
REJECTIONS
Claim 1 is directed to a method of making a formaldehyde-free
thermoset binder. The binder contains melanoidins cross-linked with citric
acid.
The melanoidin is prepared from an aqueous solution that includes ( 1)
dextrose; (2) citric acid, and (3) ammonia. Claim 1 futher recites that ( 4)
"the ratio of the number of moles of the citric acid to the number of moles of
the dextrose is about 1 :5, about 1 :6, or about 1 :7." The claim also requires
that (5) "a dry weight of the dextrose makes up about 73% to about 96% of a
total dry weight of reactants in the aqueous solution."
The Examiner cited Hansen II for its teaching of a method of making
a binder with the same components as recited in claim 1. Hansen II teaches:
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A formaldehyde-free aqueous binder composition
comprises a binder component (A) obtainable by reacting
at least one alkanolamine with at least one carboxylic
anhydride and, optionally, treating the reaction product
with a base; and a binder component (B) which
comprises at least one carbohydrate.
Hansen II, Abstract.
The Examiner found that binder component (B) comprises a
carbohydrate, such as dextrose,7 meeting the corresponding limitation (1) of
claim 1. Final Rej. 8. The Examiner also found that Hansen II teaches (2)
citric acid and (3) ammonia. Id.
For (4) "the ratio of the number of moles of the citric acid to the
number of moles of the dextrose is about 1:5, about 1:6, or about 1:7," the
Examiner relied on calculations done by the Requester in the Request for
Reexamination filed Oct. 16, 2014, and the Examiner's own calculations.
Id. at 9-12.
The Examiner acknowledged that Hansen II does not describe ( 5) "a
dry weight of the dextrose makes up about 73 % to about 96% of a total dry
weight of reactants in the aqueous solution." Id. at 12-13. However, the
Examiner cited Worthington's description of a thermosetting binder
composition comprising the same components as Hansen II, where the
composition comprises "at least 51 % by weight" of carbohydrate, and
preferably "a proportion of carbohydrate lying within the range of from 7 5-
95% by weight of the composition." Worthington, col. 2, 11. 1--4; Final Rej.
7 "HANSEN II discloses that such is at least one carbohydrate, exemplifying
monosaccharides such as xylose, glucose and fructose (0033). The '347
patent describes dextrose as a synonym of glucose ('347 patent, 12: 11-49)."
Final Rej. 8.
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13. The Examiner determined that it would have been obvious to use the
amounts of the dextrose described by Worthington in Hansen II's binder
because "such concentrations were preferred to bind the similar composite
components." Final Rej. 13.
Was the reason to combine improper?
Patent Owner contends that the Examiner's rationale is improper
because Hansen II's binder and Worthington's binder are not used to bind
"'similar composite components."' Appeal Br. 13. Patent Owner states that
Hansen II's binder is for mineral fibers, while Worthington's binder is for
plastics and utilizes granular refractory materials. Id. Based on these stated
differences, Patent Owner argued that a skilled worker would not have
considered the binders suitable for use with similar components because "it
would have been appreciated by the person of ordinary skill that the
components to be bound (the fibers of Hansen II and the sand grains of
Worthington) have materially different properties due, at least in part, to
their vastly different sizes and shapes." Id. at 13-14.
This argument is not persasive because it conflicts with evidnce of
record. Hansen II would have suggested to one of ordinary skill in the art
that a given binder is suitable for binding various materials, including both
fibers and particulates such as sand. Specifically, Hansen II describes the
broad suitability of its binder composition as follows:
Although the formaldehyde-free aqueous binder composition
according to the present invention is particularly useful for
bonding mineral fibers, it may equally be employed in other
applications typical for binders and sizing agents, e.g. as a
binder for foundry sand, chipboard, cellulosic fibers, non-
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woven paper products, composites, molded articles, coatings
etc.
Hansen II, iJ 50 (emphasis added). Indeed, Hansen II expressly states its
binder can be used with sand (id.), one of the materials exemplified in
Worthington as common refractory materials in the foundry industry for
producing shell moulds and cores (Appeal Br. 14 ("sand grains" of
Worthington); Worthington, col. 4, 11. 19-23).
Similarly, Worthington also states that its binder can be used for other
purposes:
The present invention relates to thermosetting
compositions suitable for use as binders in the shell
moulding process (i.e. in the making of shell moulds or
cores or parts thereof) and for other purposes for which
thermosetting compositions are used as, for example, in
the production of plastic articles, in conjunction with
suitable fillers such as are commonly used in the plastics
industry ...
Worthington, col. 1, 11. 29-35 (emphasis added).
Because Hansen II discloses that its binder can be used for binding a
wide variety of materials such as fibers or sand, as does Worthington more
generally, a person having ordinary skill in the art would have reasonably
expected that Worthington's teachings concerning a similar binder would be
applicable for binders for not only sand, but also binders for fibers as
disclosed in Hansen II. Therefore, we find Patent Owner's argument that
Hansen II and Worthington do not bind similar components to be unavailing
and not factually supported when the disclosures are read in their entirety.
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Does Hansen !J's disclosure of an aqueous solution teach away from
Worthington?
Patent Owner also contends that "the teachings of Hansen II and
Worthington would actually have discouraged a person of ordinary skill in
the art from making the combination proposed by the Examiner" because:
Hansen II relates to "a formaldehyde-free aqueous
solution binder composition." Hansen II, ,-i [0001]
(emphasis added). By contrast, Worthington teaches a
thermosetting composition where formation should be
carried out in the absence of water (or, at the very least,
in a vanishingly small amount of water or liquid).
Appeal Br. 14.
We begin with Hansen II. Hansen II describes an "aqueous binder"
which is described as having "good water solubility." Hansen II, ,-i 7.
Examples 1-3 of Hansen II describe adding water to an amine and
carboxylic acid anhydride to make binder component Al. Id. at ,-i,-i 52-54.
Subsequently, the binder component Al is mixed with a monosaccharide
("glucose syrup") and other components. Id., ,-i,-i 56 and 58.
The Examiner found that it would have been obvious to use the
amounts of dextrose described by Worthington in Hansen II' s binder. Final
Rej. 13. Patent Owner contends this is error. Patent Owner points to
disclosure in Worthington about using powdered components, small
amounts of liquid (Worthington, col. 2, 1. 62 to col. 3, 1. 3), and how
Worthington teaches that the "presence of water in the composition
materially alters the course of the resinification reaction so the ingredients of
the composition are preferably anhydrous" (id. at col. 3, 11. 12-16). Based
on these disclosures, Patent Owner argues that Worthington teaches away
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from Hansen II, which uses "an aqueous solution comprising the binder
components." Appeal Br. 15.
However, Patent Owner's argument does not address Worthington's
full disclosure. In addition to the disclosure identified by Patent Owner,
Worthington describes an embodiment in which the amine and carboxylic
acid are combined to make "an aqueous solution of a water soluble
precondensate of the carboxylic acid and the amine" (Worthington, col. 5, 11.
18-20), and then adding the precondensate to the carbohydrate (see id., col.
4, 11. 41-73; carbohydrate can be the monosaccharide dextrose), similar to
Hansen II's description at ,-i,-i 52-54, 56, and 58 described above in which the
amine and acid are first combined with water to make component A 1 which
is subsequently mixed with carbohydrate.
Specifically, Worthington teaches:
The whole or a part of the amine constituent and a part of
the carboxylic acid constituent of the binder is
advantageously added to the remainder of the
constituents, after they have been mixed with the
refractory material, in the form of an aqueous solution of
a water soluble precondensate of the car boxy lie acid and
the amine. The precondensate may be made by
dissolving 60 to 90 parts by weight of the carboxylic acid,
preferably a tannin, and 40 to 10 parts by weight of the
amine, preferably melamine or dicyandiamide or a
mixture thereof in water and distilling off sufficient of
the water to leave a solution in which the concentration
of the precondensate is within the range of 40 to 60% by
weight, calculated on the solution. If desired, the
solution may be refluxed for a period to complete the
reaction prior to distilling off some of the water. When a
precondensate is added to the binder the proportion
added is generally about half a pint of solution to each 1
cwt. of sand.
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Worthington, col 5, 11. 14-31 (emphasis added). Worthington teaches that
the "use of such a precondensate results in binders which when used for
making shell moulds and cores gives greater strength in the investment
stage." Id. at col. 5, 11. 32-34.
Patent Owner acknowledges that water is utilized to make the
precondensate, but states that the water is distilled off and only a half pint of
the precondensate is added to the 100 pounds of sand. Appeal Br. 15.
Patent Owner argues that, when dextrose is subsequently added, the
resulting mixture is well above the solubility of dextrose and is therefore not
an aqueous solution of dextrose. Id. at 16.
The issue is whether the teachings8 in Worthington constitute a
teaching away from utilizing its dextrose concentrations in the aqueous
solution of Hansen II. "A reference may be said to teach away when a
person of ordinary skill, upon reading the reference, would be discouraged
from following the path set out in the reference, or would be led in a
direction divergent from the path that was taken by the applicant." In re
Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994).
We are not persuaded that the skilled worker would have been
discouraged from using Worthington's dextrose concentrations in Hansen II.
As discussed above, Hansen II and Worthington both describe an aqueous
solution of amine and carboxylic acid which is subsequently added to the
8 "The presence of water in the composition materially alters the course of
the resinification reaction so the ingredients of the composition are
preferably anhydrous. If the water content of the composition is not carefully
controlled variable products may be obtained." Worthington, col. 3, 11. 12-
16.
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monosaccharide (carbohydrate). ). Because the steps are substantially the
same, the skilled worker would have found both publications to be
complementary rather than divergent in terms of making a binder within the
scope of claim 1.
Worthington expressly makes a precondensate of carboxylic acid and
amine in water prior to combining with "the remainder of the constituents"
in order to confer greater strength to the binder. Id. at col. 5, 11. 14-34.
Worthington states that "sufficient" water can be distilled off the
precondensate"to leave a solution in which the concentration of the
precondensate is within the range of 40 to 60% by weight, calculated on the
solution." In other words, after distillation, the precondensate solution still
contains 40 to 60% by weight of water. Id. at col 5, 11. 14-31 (reproduced
above). For this reason, the skilled worker would not have been deterred
from using the conditions in Hansen II to make a binder with higher
monosaccharide content, even if more water is present.
As mentioned, Hansen II includes both fibers and "foundry sand" as
materials that can be bound or sized by its binder (Hansen II, ,-i 50).
Therefore, it is reasonable to use Worthington's dextrose concentrations in
Hansen II' s process when making a binder for fiber because both Hansen II
and Worthington suggest that a given binder has broad applicability
(Worthington, col. 4, 11. 19-23). We have not been directed to sufficient
evidence that these higher dextrose concentrations and the presence of water
would have led to a lack of a reasonable expectation of success for fibers.
In fact, Hansen II did not exclude concentrations above 40 wt%
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carbohydrate (i.e., dextrose), but rather stated that values of 40 wt% or less
were suitable "[fJor most applications." Hansen II, ii 36.9
Patent Owner performed calculations said to show that "Worthington
teaches a dextrose-water mixture (of at least 1.9 grams/ml) that is well above
the solubility of dextrose (0.91 grams/ml)." Appeal Br. 16. However, in
making this calculation, Patent Owner stated: "If the precondensate contains
only 10% water, or about 24 ml, 453 grams of added dextrose would equate
to about 19 g dextrose/ml." Id. Patent Owner did not identify how it arrived
at the value of 10% water and therefore we do not consider the calculation to
be reliable.
Nonetheless, even if it is true that Worthington's dextrose is not fully
soluble after addition of the precondensate, it would not have deterred the
skilled worker from using the dextrose with additional water as taught by
Hansen II because Hansen II' s conditions achieve success for making binder
with a high water content.
Patent Owner contends that Hansen II utilizes large amounts of water
compared to Worthington. Reply Br. 5. However, Patent Owner did not
dispute that Hansen II and Worthington use the same reactants, i.e., an
amine, carboxylic acid, and a carbohydrate. Thus, even though Worthington
may have used smaller amounts of water than Hansen II, the skilled worker
would have reasonably expected that larger amounts of water would achieve
9 "For most applications, the binder composition comprises 60 wt. % or
more, preferably 60 to 95 wt. % and more preferably 60 to 80 wt. %, of
binder component (A), and 40 wt.% or less, preferably 5 to 40 wt.% and
more preferably 20 to 40 wt.% of binder component (B) [carbohydrate],
based on the total solids content of components (A) and (B)." Hansen II, ii
36.
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success based on Hansen II's teaching of the addition ofwater. 10 We have
not been directed to evidence that increasing the concentrations of
carbohydrate in Hansen II would make the process inoperable. "[A]
reference may teach away from a use when that use would render the result
inoperable." In re ICON Health and Fitness, Inc., 496 F.3d 1374, 1381 (Fed.
Cir. 2007).
Was melanoidin made in Hansen II?
Claim 1 is directed to a method of making a formaldehyde-free
thermoset binder which contains melanoidins cross-linked with citric acid.
According to the '347 Patent, the reactants in the binder composition can
undergo a Maillard reaction which produces melanoidins. '347 Patent, col.
2, 11. 23-35. The specific Maillard reactants that produce the melanoidin are
described in the '347 Patent as "an amine reactant reacted with a reducing-
sugar carbohydrate reactant," such as an ammonium salt of a monomeric
polycarboxylic acid and a monosaccharide in its aldose or ketose form (id. at
col. 2, 11. 42--46). The Examiner acknowledged that Hansen II does not
describe the Maillard reaction nor melanoidin, but found that the same
reactants known to produce melanoidin via the Maillard reaction are present
in Hansen II, namely, "a carbohydrate, an amine that is an alkanolamine, and
a polycarboxylic acid." Answer 5; see also Final Rej. 8. Because the same
reactants in the same ratio are present in Hansen II as recited in the claims,
the Examiner had reasonable basis to find the melanoidin cross-linked with
10 For example, Hansen teaches: "The binder solution was made by diluting
the resin to about 40% solids with water." Hansen, col. 2, 11. 21-22.
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tricarboxylic acid was present. As held in In re Best, 562 F.2d 1252, 1255
(CCPA 1977):
Where, as here, 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. . . . Whether the
rejection is based on "inherency" under 35 U.S.C. § 102,
on "prima facie obviousness" under 35 U.S.C. § 103,
jointly or alternatively, the burden of proof is the same,
and its fairness is evidenced by the PTO's inability to
manufacture products or to obtain and compare prior art
products.
Patent Owner does not dispute that Hansen II describes the reactants
of a Maillard reaction. However, Patent Owner contends that Hansen II
does not produce melanoidin because
[I]n Examples 1-3, there is no residual alkanolamine
(e.g., DEA) to react with the carbohydrate (e.g., glucose)
at the time when Hansen II's Component Bis mixed with
Component A. In other words, Hansen II' s Examples 1-
3 fail to teach conditions in which both an amine and a
reducing sugar are present and available to engage in a
Maillard reaction.
Appeal Br. 21.
Patent Owner calculated that, in Examples 1-3 of Hansen II, there is
an excess of an excess of total carboxylic anhydride relative to the amount of
alkanolamine. Id. Patent Owner calculated the ratios of alkanolamine to
carboxylic anhydride in these examples to be 1:1.53, 1:1.29, and 1:1.21,
respectively. Id.
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Patent Owner's argument is not persuasive. As found by the
Examiner, Hansen II teaches "0.4-0.6 equivalent carboxy groups is used in
the preparation of binder component (A) in order to avoid too high an excess
of free unreacted acid, which may lead to displacement of the binder in the
curing oven (0025)." Final Rej. 7. Paragraph 25 of Hansen II is reproduced
below (emphasis added):
[0025] In the preparation of binder component (A), the
proportion of the alkanolamine and carboxylic anhydride
reactants is preferably selected such that the ratio of
equivalents of amine plus hydroxy groups (NH+OH)
[from the alkanolamine] to equivalents of car boxy groups
(COOH) is at least 0.4, more preferably at least 0. 6. By
employing these minimum ratios, a too high excess of
free unreacted acid is avoided which under specific
conditions could lead to a displacement of binder in the
curing oven, i.e. to a non-uniform distribution in amount
of binder between the bottom and top of the mineral wool
mat or web. Furthermore, high amounts of unreacted acid
= = may mcrease corrosiveness.
Hansen II discloses Example 1 having "a binder component (Al)
having an equivalent ratio of (NH+OH)/(COOH) of 0.85," Example 2
having "a binder component (A 1) having an equivalent ratio of
(NH+OH)/(COOH) of 1.0," and Example 3 also of 1.0. Hansen II, iii! 52-
54. In other words, in each of these examples, there is more carboxylic acid
than alkanolamine.
As the ratio of (NH+OH)/(COOH) increases, the proportion of
(NH+OH) increases, and since the NH and OH groups are fixed in the
alkanolamine (e.g., 2 OH to 1 NH in the diethanolamine used in Examples
1-3), the NH amine groups would also increase. Thus, the amine
component is necessarily increasing from Example 1 to Examples 2 and 3.
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While the minimum ratios taught by Hansen II have an excess of
carboxylic acid according to Patent Owner, Hansen II seeks to avoid "too
high" an excess of the carboxylic anhydride to the amine and hydroxyl
groups of the alkanolamine by requiring a minimum (NH+OH)/(COOH)
ratio of at least 0.4. Id., at ,-i 25. Hansen II does not expressly limit the
amount of alkanolamine present. There is no upper limit on the ratio is
prescribed by Hansen II and thus higher concentrations of alkanolamine are
permitted by Hansen II, including concentrations in which unreacted
alkanolamine is present when the monosaccharide is subsequently added.
Despite reference to paragraph 25 by the Examiner in the statement of the
rejection (Final Rej. 7) and by the Requester in the Request for
Reexamination (at 3 8), Patent Owner did not address that the disclosure in
Hansen II are minimums in their Briefs on Appeal.
We further note that the Examiner found that ammonia can be added
to Hansen II' s reaction mixture, which provides an additional source of
amine groups. Final Rej. 8. The ammonia is preferably added after the
reaction between the alkanolamine and the carboxylic anhydride has been
stopped. Hansen II, ,-i 30. The addition of ammonia at this step is further
evidence that there is no upper limit to the concentration of amine and that
such concentration could exceed the carboxylic acid concentration. Indeed,
we have not been directed to evidence that, at equilibrium, there would be no
amount of unreacted free amine present that would react with carboxylic
acid to form melanoidin.
For the foregoing reasons, we affirm the rejection of claim 1 as
obvious in view of Hansen II and Worthington. Claims 2-18 and 20-36 fall
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with claim 1 because separate reasons for their patentability were not
provided.
Patent Owner contends that Claim 19 is patentable for the same
reasons argued for claim 1. Appeal Br. 23. Because we did find these
arguments unpersuasive as explained above, we affirm the obviousness
rejection of claim 19.
TIME PERIOD
Requests for extensions of time in this ex parte reexamination
proceeding are governed by 37 C.F.R. § l.550(c). See 37 C.F.R. § 41.50(g).
AFFIRMED
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cc: Third Party Requester
JOHNS. PRATT, ESQ
KILPATRICK TOWNSEND & STOCKTON LLP
1100 PEACHTREE STREET; SUITE 2800
ATLANTA, GA 30309
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