Ex Parte Altonen et al

Patent Trial and Appeal Board

Feb 1, 2017

13476197 (P.T.A.B. Feb. 1, 2017)

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.
13/476,197 05/21/2012 Gene Michael Altonen 32687/46076 7738
4743 7590 02/03/2017
MARSHALL, GERSTEIN & BORUN LLP
233 SOUTH WACKER DRIVE
6300 WILLIS TOWER
CHICAGO, IL 60606-6357
EXAMINER
HEITBRINK, JILL LYNNE
ART UNIT PAPER NUMBER
1743
NOTIFICATION DATE DELIVERY MODE
02/03/2017 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):
mgbdocket@marshallip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte GENE MICHAEL ALTONEN, CHARLES JOHN BERG JR.,
RALPH EDWIN NEUFARTH, GARY FRANCIS SCHILLER, JOHN
MONCRIEF LAYMAN, and RAINER SCHARRENBERG
Appeal 2016-001241
Application 13/476,197
Technology Center 1700
Before JEFFREY T. SMITH, WESLEY B. DERRICK, and
JANE E. INGLESE, Administrative Patent Judges.
INGLESE, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) from a final rejection of
claims 1 through 19.1 We have jurisdiction under 35 U.S.C. § 6(b).
STATEMENT OF THE CASE
Appellants’ invention is generally directed to an injection molding
method. App. Br. 1. Claim 1 illustrates the subject matter on appeal and is
reproduced below:
1 Final Office Action entered June 10, 2014 (“Final Act”), 2.
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Application 13/476,197
1. A method comprising:
(a) filling with a shot comprising a molten
thermoplastic material a mold cavity of a molding apparatus,
the shot comprising the molten thermoplastic material having a
melt pressure that, upon injection into the mold cavity, exceeds
a pre-injection pressure of the shot comprising the molten
thermoplastic material; and,
(b) while filling substantially the entire mold cavity
with the shot comprising the molten thermoplastic material,
maintaining the melt pressure substantially constant at less than
6000 psi,
wherein:
the thermoplastic material has a melt flow index of about
0. 1 g/10 min to about 500 g/10 min.
App. Br. 10, Claims Appendix.
Appellants (see generally App. Br.) request review of the Examiner’s
decision rejecting claims 1 to 19. The final rejections maintained by the
Examiner are set forth in the Answer entered November 5, 2015 (“Ans.”):
1. Claims 1—19 provisionally rejected for nonstatutory
obviousness-type double patenting over claims 1—20 of copending patent
application 13/476,178.
II. Claims 1—19 provisionally rejected for nonstatutory
obviousness-type double patenting over claims 1, 4, 5, and 21—37 of
copending patent application 13/601,338.
III. Claims 1—8 and 16—19 under 35 U.S.C. § 103(a) as
unpatentable over Sherman (US 3,025,567, issued March 20, 1962,
hereinafter “Sherman”) and Hegberg et al., Mixed Plastics Recycling
Technology (1992) (hereinafter “Hegberg”).
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Application 13/476,197
IV. Claims 1—8, 11, 12, and 16—19 under 35 U.S.C. § 103(a) as
unpatentable over Hettinga (US 5,853,630, issued December 29, 1998,
hereinafter “Hettinga”) and Hegberg.
V. Claims 9 and 10 under 35 U.S.C. § 103(a) as unpatentable over
Hettinga, Hegberg, and Hettinga (US 5,773,038, issued June 30, 1998,
hereinafter “Hettinga 038”).
VI. Claims 13—15 under 35 U.S.C. § 103(a) as unpatentable over
Sherman, Hegberg, and Sherman (US 2,871,516, issued February 3, 1959,
hereinafter “Sherman 516”).
VII. Claims 13—15 under 35 U.S.C. § 103(a) as unpatentable over
Hettinga, Hegberg, and Sherman 516.
OPINION
After review of the respective positions provided by Appellants and
the Examiner, we AFFIRM the Examiner’s rejection of claims 1—8 and 16 —
19 under 35 U.S.C. § 103(a) as unpatentable over Sherman and Hegberg
(Rejection III); rejection of claims 13—15 under 35 U.S.C. § 103(a) as
unpatentable over Sherman, Hegberg, and Sherman 516 (Rejection VI); and
provisional rejections of claims 1—19 for nonstatutory double patenting
(Rejections I and II); we REVERSE the Examiner’s rejection of claims 1—8,
11, 12, and 16—19 under 35 U.S.C. § 103(a) as unpatentable over Hettinga
and Hegberg (Rejection IV); rejection of claims 9 and 10 under 35 U.S.C.
§ 103(a) as unpatentable over Hettinga, Hegberg, and Hettinga 038
(Rejection V); and rejection of claims 13—15 under 35 U.S.C. § 103(a) as
unpatentable over Hettinga, Hegberg, and Sherman 516 (Rejection VII).
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Rejections I and II
Appellants do not contest the Examiner’s provisional rejection of
claims 1—19 on the ground of non-statutory obviousness-type double
patenting over claims 1—20 of copending patent application 13/476,178, and
do not contest the Examiner’s provisional rejection of claims 1—19 on the
ground of non-statutory obviousness-type double patenting over claims 1—20
of copending patent application 13/601,338. App. Br., generally.
We summarily sustain these rejections without comment. 37 C.F.R. §
41.37(c)(l)(iv); see also Manual of Patent Examining Procedure (MPEP) §
1205.02 (9th ed. Mar. 2014) (“If a ground of rejection stated by the
examiner is not addressed in the appellant’s brief, appellant has waived any
challenge to that ground of rejection and the Board may summarily sustain
it, unless the examiner subsequently withdrew the rejection in the
examiner’s answer.”).
Rejection III2
The dispositive issue on appeal for this rejection is: Did the Examiner
err in determining that Sherman discloses a method in which the pressure of
a thermoplastic material is maintained substantially constant while a mold
cavity is filled with the material as required by independent claim 1 ? On
this record, we answer this issue in the negative.
Appellants argue that Sherman does not disclose or suggest that the
pressurized air that drives the piston 51 provides substantially constant
2 Appellants argue claims 1—8 and 16—19 together. App. Br. 2—5.
Therefore, we select claim 1 as representative, and claims 2—8 and 16—19
will stand or fall with claim 1. 37 C.F.R. § 41.37(c)(l)(iv) (2015).
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pressure. App. Br. 4. Appellants argue that many factors could cause an air-
driven piston to provide variable pressure, including an air supply prone to
fluctuations, valves that control the air supply opening in a way that causes a
surge in air pressure, and air prone to uneven behavior when not carefully
regulated. Id. Appellants argue that Sherman does not discuss any of these
potential factors and does not explain how its apparatus is designed such that
the piston 51 provides a constant force, resulting in a substantially constant
pressure being exerted on the molten plastic. Id.
Claim 1 requires the pressure of a shot of molten thermoplastic
material3 to be maintained at substantially constant pressure of less than
6000 psi while the shot is injected into and fills substantially an entire mold
cavity.
The Examiner finds Sherman discloses a method for molding plastic
materials such as polyethylene and polystyrene (thermoplastic materials)
that involves extruding 35 a measured quantity of plastic material that has
been heated and plasticized, referred to as a mold charge (shot of molten
thermoplastic material), into a vertical chamber 45, and directing air under
pressure to a piston 51 above the vertical chamber 45. Final Act. 4—5;
Sherman col. 1,11. 9-12; col. 2,11. 45-61; col. 3,11. 29-48; col. 6,11. 19-23.
The Examiner finds that Sherman discloses that the compressed air moves
the piston 51 and a spacer 56 aligned beneath the piston 51 downwardly
under a low pressure of 500 to 3000 psi, encompassing the range recited in
claim 1, so that the spacer 56 contacts the heated plasticized material or
3 The Specification defines “melt pressure” as the pressure of a shot
comprising molten thermoplastic material as it is injected into and fills a
mold cavity of a molding apparatus. Spec. 8,11. 8—9.
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mold charge and moves it through the chamber 45 and into a large opening
71a in the cavity 71 of a mold 15. Final Act. 4—5; Sherman col. 3,11. 49-72;
col. 5,11. 16—27. The Examiner finds that Sherman discloses that due to the
large size of the opening 71a, the full pressure of the piston 51 is transmitted
to the mold charge from a time its forward end enters the mold cavity until
the entire charge enters, and is molded within, the cavity. Final Act. 4—5;
Sherman col. 3,11. 67—72. The Examiner finds that the pressure of the mold
charge would be maintained substantially constant while the mold cavity is
being filled as recited in claim 1 due to the full pressure of the piston being
transmitted to the mold charge during the mold filling process. Final Act. 4—
5. The Examiner cited Hegberg for describing the melt flow index of
thermoplastic materials suitable for use in Sherman’s method. Final Act. 5.4
Appellants have not directed us to evidence to support the assertion of
numerous factors that could cause the piston 51 disclosed in Sherman to
exert variable pressure on the thermoplastic mold charge in the disclosures
of Sherman or any other evidence of record. Appellants’ mere assertions
cannot take the place of evidence. In re De Blauwe, 736 F.2d 699, 705 (Fed.
Cir. 1984); In re Greenfield, 571 F.2d 1185, 1189 (CCPA 1978); In re
Pearson, 494 F.2d 1399, 1405 (CCPA 1974). Appellants have not
established that one of ordinary skill in the art would have understood the
compressed air exerted on the piston 51 disclosed in Sherman to be anything
other than air at constant pressure. Accordingly, Appellants’ unsupported
arguments are unpersuasive of reversible error.
Appellants also argue that Sherman’s disclosure of an impact arm
4 The Final Office Action contains a complete statement of the rejection on
appeal. Final Act. 4—5.
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designed to provide additional force to the piston 51 teaches away from a
substantially constant melt pressure as recited in claim 1. App. Br. 4—5.
Sherman discloses that “it may be desirable in connection with the use
of certain types of plastic materials” to give an extra impact to the piston
with an impact arm 132 that contacts the upper end of the piston 51.
Sherman col. 4,11. 24—36. We agree with the Examiner that Sherman’s
indication that “it may be desirable” to add extra impact to the piston 51 via
the impact arm 132 indicates that use of the impact arm 132 is not a required
aspect of Sherman’s method and is merely optional. Ans. 12. Sherman’s
disclosure of this optional impact arm 132 does not criticize or discredit
providing constant pressure to the piston 51. Accordingly, contrary to
Appellants’ arguments, Sherman does not teach away from maintaining
substantially constant melt pressure as recited in claim 1. In re Fulton, 391
F.3d 1195, 1201 (Fed. Cir. 2004) (“[t]he prior art’s mere disclosure of more
than one alternative does not constitute a teaching away from any of these
alternatives because such disclosure does not criticize, discredit, or
otherwise discourage the solution claimed”); In re Gurley, 27 F.3d 551,
552-53 (Fed. Cir. 1994).
We accordingly sustain the Examiner’s rejection of claims 1—8 and
16—19 under 35 U.S.C. § 103(a) as unpatentable over Sherman and Hegberg.
Rejection VI
Appellants rely on the arguments advanced in connection with the
Examiner’s rejection based on Sherman in view of Hegberg, and assert that
Sherman 516 fails to remedy the deficiencies of these references. App. Br.
8. Because we are unpersuaded of reversible error in the Examiner’s
rejection based on Sherman and Hegberg as discussed above, Appellants’
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position as to this ground of rejection is equally without merit. Accordingly,
we sustain the rejection of claim 13—15 under 35 U.S.C. § 103(a) as
unpatentable Sherman, Hegberg, and Sherman 516.
Rejections IV, V, and VII5
As discussed above, claim 1 requires the pressure of a shot of molten
thermoplastic material to be maintained substantially constant at less than
6000 psi while the shot is injected into and fills substantially an entire mold
cavity. Appellants’ Specification defines “substantially constant pressure”
as a pressure that does not fluctuate more than 30% upwardly or
downwardly from a desired melt pressure. Spec. 6,11. 30—33. Appellants’
Specification defines “substantially the entire mold cavity” as at least 70%
of a mold cavity. Spec. 9,11. 25—28. Accordingly, claim 1 requires the
pressure of a shot of molten thermoplastic material to not fluctuate by more
than 30% from a desired pressure of less than 6000 psi while the shot is
injected into and fills at least 70% of a mold cavity.
The Examiner contends that Figure 6 of Hettinga shows maintaining
pressure substantially constant while filling substantially an entire mold
cavity with molten thermoplastic material. Final Act. 6. However, we agree
with Appellants that Figure 6 of Hettinga fails to disclose that the pressure of
a shot of molten thermoplastic material does not fluctuate by more than 30%
5 We select claim 1, the broadest claim on appeal, as representative of claims
1—19, and decide the propriety of the rejection of claims 1—8, 11, 12, and
16—19 under 35 U.S.C. § 103(a) as unpatentable over Hettinga and Hegberg
(Rejection IV), the rejection of claims 9 and 10 under 35 U.S.C. § 103(a) as
unpatentable over Hettinga, Hegberg, and Hettinga 038 (Rejection V), and
the rejection of claims 13—15 under 35 U.S.C. § 103(a) as unpatentable over
Hettinga, Hegberg, and Sherman 516 (Rejection VII), based on claim 1
alone.
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from a desired pressure of less than 6000 psi while the shot is injected into
and fills at least 70% of a mold cavity. App. Br. 6—7.
Hettinga discloses an injection molding process, and describes Figure
6 as “a graphic representation of the injection pressure during the molding
process of the present invention.” Hettinga col. 1,11. 11—15; col. 4,11. 6—7.
Figure 6 is a plot of pressure on the Y axis versus the percentage of a mold
filled on the X axis. Hettinga Fig. 6. As Appellants point out, the Y axis of
Figure 6 does not include any units, and Hettinga’s description of Figure 6
does not provide any indication of the values for the pressures illustrated in
the figure. App. Br. 7; Hettinga col. 4,11. 6—7; col. 8,11. 24—26. In addition,
as Appellants also point, Hettinga does not indicate that Figure 6 is drawn to
scale. App. Br. 7. Accordingly, we agree with Appellants that there is no
way to determine the absolute values of the pressures illustrated in Figure 6
of Hettinga, and thus also no way to determine the degree of variation in the
values. Id. Therefore, the Examiner does not establish that Figure 6 of
Hettinga discloses substantially constant pressure that does not fluctuate by
more than 30% from a desired melt pressure as required by claim 1.
Moreover, although the Examiner contends that Figure 6 depicts
constant pressure that is reduced after 70% of a mold is filled, we agree with
Appellants that Figure 6 shows that a significant reduction in pressure occurs
before 70% of the mold is filled. Ans. 13; App. Br. 7. Therefore, the
Examiner also does not establish that Figure 6 of Hettinga discloses
substantially constant pressure while filling at least 70% of a mold cavity, as
required by claim 1.
Accordingly, on this record, we are persuaded that the Examiner’s
evidence and explanation are insufficient to establish prima facie
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obviousness. We therefore do not sustain the Examiner’s rejections under
35 U.S.C. § 103(a) of claims 1—19 as unpatentable over Hettinga and the
additional secondary references.
DECISION
For the reasons set forth above and in the Answer, the decision of the
Examiner to reject claims 1—19 under is affirmed.
TIME PERIOD
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1).
AFFIRMED
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