Ex Parte ALSEWAILEM et al

Patent Trial and Appeal Board

Jun 23, 2016

13275977 (P.T.A.B. Jun. 23, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/275,977 10/18/2011 Fares D. ALSEW AILEM
25570 7590 06/27/2016
Roberts Mlotkowski Safran Cole & Calderon, P.C.
7918 Jones Branch Drive
Suite 500
McLean, VA 22102
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.
P030 7571
EXAMINER
HILL, NICHOLAS E
ART UNIT PAPER NUMBER
1767
NOTIFICATION DATE DELIVERY MODE
06/27/2016 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):
lgallaugher@rmsc2.com
docketing@rmsc2.com
dbeltran@rmsc2.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Exparte FARES D. ALSEWAILEM and
Y AZEED A. BINKHEDER
Appeal2014-004256
Application 13/275,977
Technology Center 1700
Before TERRY J. OWENS, JEFFERY T. SMITH, and BRIAND. RANGE,
Administrative Patent Judges.
OWENS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
The Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's
rejection of claims 1, 2, 4--12, and 15-18. We have jurisdiction under
35 U.S.C. § 6(b).
The Invention
The Appellants claim a process for preparing a reinforced polymer
composite. Claim 1 is illustrative:
1. A process of preparing a reinforced polymer composite
having a fibril melt fracture surface, comprising:
blending a mixture of date pit particulate having an
average size of between about 0.25 mm and 1.0 mm with a
thermoplastic polymer;
Appeal2014-004256
Application 13/275,977
melting the mixture; and
forcing the melt through a die to produce the reinforced
polymer composite having a fibril melt fracture surface.
The References
Fares D. Alsewailem and Yazeed A. Binkhder, Preparation and
Characterization of Polymer/Date Pits Composites, J. REINFORCED
PLASTICS & COMPOSITES 1-7 (2009) (hereinafter Alsewailem).
A. Ghazanfari et al., Thermal and Mechanical Properties of Blends and
Composites from HDPE and Date Pits Particles 42 J. COMPOSITE
MATERIALS 77-89 (2011) (hereinafter Ghazanfari).
Rainer Wolf and Bansi Lal Kaul, Plastics Additives, ULLMANN's
ENCYCLOPEDIA IND. CHEM. 620-71 (2012) (hereinafter Wolt). 1
The Rejections
The claims stand rejected under 35 U.S.C. § 103 as follows: claims 1,
2, and 4--12 over Alsewailem in view of Ghazanfari and claims 15-18 over
Alsewailem in view of Ghazanfari and Wolf. 2
OPINION
We affirm the rejections.
Claims 1, 2 and 4-12
The Appellants argue the claims in two groups: 1) claims 1, 2, 4--6, 9,
and 12, and 2) claims 7, 8, 10, and 11. 3 We therefore limit our discussion to
1 There is no dispute as to whether Wolf is prior art.
2 Rejections of claims 1, 2, and 4--12 under 35 U.S.C. § 102(b) over
Alsewailem and claims 15-18 under 35 U.S.C. § 103 over Alsewailem in
view of Wolf are withdrawn in the Examiner's Answer (Ans. 2).
3 The Appellants address claims 7 and 10 and claims 8 and 11 under separate
headings, but rely upon substantially the same arguments with respect to
both groups (App. Br. 25-34).
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Application 13/275,977
one claim in each group, i.e., claims 1 and 7. The other claims in each group
stand or fall with the claim we address. See 37 C.F.R. § 41.37(c)(l)(iv)
(2012).
Claim 1
Alsewailem discloses a melt mixed high density polyethylene
(HDPE)/ date pit composite wherein the date pits have a 0.15 mm average
particle size (Abstract; p. 3).
Ghazanfari discloses a compression molded HDPE/date pit composite
wherein the date pits have a 0.18---0.6 mm particle size (i.e., pass a 30-mesh
sieve and retain on an 80-mesh sieve) (Abstract; p. 78).
The Appellants argue that Ghazanfari is nonanalogous art because the
problem addressed by the Appellants is how to "form composites having
unique surface characteristics upon melt processing of the composites,
without sacrificing the overall strength characteristics of the polymers, as
compared to the corresponding non-composited polymers" (Spec. i-f 16),
whereas Ghazanfari uses compression molding instead of melt processing
(Reply. Br. 11 ).
The test of whether a reference is from an analogous art is first,
whether it is within the field of the inventor's endeavor, and second, if it is
not, whether it is reasonably pertinent to the particular problem with which
the inventor was involved. See In re Wood, 599 F.2d 1032, 1036 (CCPA
1979). A reference is reasonably pertinent if, even though it may be in a
different field of endeavor, it is one which, because of the matter with which
it deals, logically would have commended itself to an inventor's attention in
considering the inventor's problem. See In re Clay, 966 F.2d 656, 659 (Fed.
Cir. 1992). Ghazanfari is in the Appellants' field of endeavor, which is "a
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Application 13/275,977
polymer composite of ground date pits disposed in a polymer matrix"
(Spec. i-f 1 ). Ghazanfari logically would have commended itself to the
Appellants' attention in considering the Appellants' problem as indicated by
the Appellants' discussion of Ghazanfari in their Specification (Spec. i-f 6).
Thus, Ghazanfari is analogous art.
The Appellants argue that one of ordinary skill in the art would not
have combined Alsewailem and Ghazanfari because "different
considerations would be needed to be taken into account for a dry mix
process and a melt mix process, such that one of skill in the art would not
have looked to Ghazanfari to modify the melt mix of Alsewailem"
(App. Br. 21-22).
That argument is not well taken because it is merely unsupported
attorney argument, and arguments of counsel cannot take the place of
evidence. See In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984)
The Appellants assert that Ghazanfari does not indicate that date pit
particle size is a result-effective variable with respect to polymer/date pit
particle composite mechanical properties (App. Br. 19-24; Reply Br. 3-5).
Ghazanfari and Alsewailem do not indicate a relationship between
date pit particle size and polymer/ date pit particle composite mechanical
properties. Nor is such a relationship indicated by the Appellants. The
Appellants state that in an exemplary embodiment "[t]he date pits are
advantageously ground or chopped to particulate of an average size of
between about 0.25 mm and 1.0 mm" (Spec. i-fi-121, 29), but the Appellants
provide no evidence of an effect of date pit particle size within or outside
that range on any polymer/date pit particle composite mechanical property.
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Application 13/275,977
The only evidence of record pertaining to the effect of date pit particle
size on a polymer/ date pit particle composite mechanical property is a
comparison of the Appellants' Figure 4 with Alsewailem's Figure 4(a).
Neither the Appellants nor Alsewailem discloses the particle size of the date
pits used in obtaining those figures. However, because those figures show
exactly the same effect of date pit particle content on composite tensile
strength, they indicate that composite tensile strength is unaffected by any
size difference between the Appellants' and Alsewailem's date pit particles.
Because the prior art does not indicate an effect of date pit particle
size on polymer/date pit particle composite properties, one of ordinary skill
in the art, through no more than ordinary creativity, would have used in
Alsewailem' s composite date pit particles having any size known to be
useful in polymer/date pit particle composites, including those within
Ghazanfari's range. See KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398, 418
(2007) (in making an obviousness determination one "can take account of
the inferences and creative steps that a person of ordinary skill in the art
would employ").
The Appellants assert that using their 0.25 mm-1.0 mm particles
instead of Alsewailem's 0.15 mm particles provides an unexpected
improvement in Izod impact strength (App. Br. 6-7).
That assertion is unconvincing due to lacking supporting evidence.
See De Blauwe, 736 F.2d at 705.
Claim 7
Claim 7, which depends indirectly from claim 1, requires that "the
reinforced polymer composite having a fibril melt fracture surface comprises
from 5 wt% to 30 wt% of date pit particulate from the variety sekari."
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Alsewailem discloses that the composite can contain 5--40 wt% date
pit particulate from the variety sekari (p. 3; Fig. 4(a)).
The Appellants assert that Alsewailem' s composite cannot have a
fibril melt fracture surface unless it contains date pit particles within the
Appellants' recited size range (App. Br. 25-26; Reply Br. 13-14).
That assertion is unpersuasive due to lacking supporting evidence.
See De Blauwe, 736 F.2d at 705. Moreover, as pointed out above, the record
indicates that one of ordinary skill in the art would have considered date pit
particles within Ghazanfari' s size range (which includes sizes within the
Appellants' recited range) to be suitable for making Alsewailem' s
composite. Because the composite would be made by the Appellants'
method (melt processing) using date pit particles within the Appellants' size
range, it would have the Appellants' composite' s fibril melt fracture surface
characteristic. See In re Papesch, 315 F.2d 381, 391(CCPA1963) ("From
the standpoint of patent law, a compound and all of its properties are
inseparable; they are one and the same thing").
Claims 15-18
The Appellants assert regarding claims 15-18 that "none of the prior
art used coupling agents and modifiers such as di-phenylmethane and EP-g-
MA [ethylene/propylene grafted with maleic anhydride] to modify
composite properties" (App. Br. 34) and "none of the references applied by
the Examiner show the features of the claimed invention" (Reply Br. 15).
Those assertions do not address the Examiner's rationale in rejecting
claims 15-18 (Ans. 5---6) and indicate reversible error therein. See In re
Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) (Rule 41.37 "require[s] more
substantive arguments in an appeal brief than a mere recitation of the claim
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elements and a naked assertion that the corresponding elements were not
found in the prior art").
Thus, we are not persuaded of reversible error in the rejections.
DECISION/ORDER
The rejections under 35 U.S.C. § 103 of claims 1, 2 and 4--12 over
Alsewailem in view of Ghazanfari and claims 15-18 over Alsewailem in
view of Ghazanfari and Wolf are affirmed.
It is ordered that the Examiner's decision is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED
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