Ex Parte Bartko

Board of Patent Appeals and Interferences

Jun 29, 2010

11100655 (B.P.A.I. Jun. 29, 2010)

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.
11/100,655 04/07/2005 Joseph P. Bartko FDN-2893 1625
7590 06/30/2010
Attn: William J. Davis, Esq
INTERNATIONAL SPECIALTY PRODUCTS
Legal Department
1361 Alps Road
Wayne, NJ 07470
EXAMINER
SANDERS, KRIELLION ANTIONETTE
ART UNIT PAPER NUMBER
1796
MAIL DATE DELIVERY MODE
06/30/2010 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte JOSEPH P. BARTKO
__________

Appeal 2009-015099
Application 11/100,655
Technology Center 1700
__________

Decided: June 30, 2010
__________

Before TONI R. SCHEINER, LORA M. GREEN, and STEPHEN WALSH,
Administrative Patent Judges.

WALSH, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) involving claims to
composition comprising a biocide and a processing additive. The Patent
Examiner rejected the claims on the ground of non-statutory obviousness-
type double patenting and as obvious. We have jurisdiction under 35 U.S.C.
§ 6(b). We reverse.
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STATEMENT OF THE CASE
The invention concerns compositions comprising a biocide, e.g., 3-
iodo-2-propynyl butyl carbamate (IPBC), and a processing additive. (Claim
1). The Specification explains that “IPBC is difficult to handle in industrial
products such as polymers and plastics, because it tends to be clumpy and
sticky.” (Spec. 1). Therefore, it is not “fed easily from blending equipment
and automatic feeding devices.” (Id.). According to the Specification, the
instant combination of a biocide and a processing additive provides a
composition “in the form of a free-flowing powder capable of being
processed conveniently into industrial polymer or plastic products by
automatic feeding equipment.” (Id. at 2). The Specification describes that
by mixing a resin with IPBC in calcium or zinc stearate, “the stickiness of
the IPBC biocide is eliminated and a free-flowing powder is obtained.” (Id.
at 5).
Claims 1-11, which are all the pending claims, are on appeal. Claims
1, 2 and 4 are representative and read as follows:
1. A composition comprising a biocide and a processing additive
therewith in the form of a free-flowing powder for facile incorporation into
an industrial matrix product which is a polymer, plastic or polymer-wood
composite.

2. A composition according to claim 1 wherein said biocide contains an
iodopropynyl group and is selected from iodopropynyl butyl carbamate
(IPBC), 3-iodopropynyl carbamate and 3-iodopropynyl-N-phenyl carbamate.

4. A composition according to claim 1 wherein said processing additive
is a combination of calcium stearate and/or zinc stearate and said polymer,
plastic or polymer-wood composite.

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The Examiner rejected the claims as follows:
• claims 1-11 as provisionally rejected on the ground of non-statutory
obviousness-type double patenting as being unpatentable over claims 1-14 of
co-pending Application No. 10/893,009 (‘009 application);1 and
• claims 1-11 as provisionally rejected on the ground of non-statutory
obviousness-type double patenting as being unpatentable over claims 1-11 of
co-pending Application No. 10/893,008 (‘008 application);2 and
• claims 1-11 under 35 U.S.C. §102(a) or (e) as anticipated by or, in
the alternative, under 35 U.S.C. §103(a) as being unpatentable over
Schwartz;3 and
• claims 1-11 under 35 U.S.C. §103(a) as being unpatentable over
Jiang.4

DOUBLE PATENTING
The Issue
A. The ‘009 Application
The Examiner’s position is that “[a]lthough the conflicting claims are
not identical, they are not patentably distinct from each other because the
components of the claimed compositions are essentially the same for each of
the claimed inventions….” (Ans. 4). According to the Examiner, each

1 Patent Application No. 10/893,009 by Joseph P. Bartko.
2 Patent Application No. 10/893,008 by Joseph P. Bartko.
3 Patent Application Publication No. US 2004/0191331 A1 by James Robert
Schwartz et al., published Sep. 30, 2004.
4 Patent Application Publication No. WO 2004/022846 A2 by Xino Jiang et
al., published Sep. 30, 2004.
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application claims a biocide, e.g., IPBC, an additive, e.g., calcium stearate,
and polyolefins. (Id.).
Appellant contends that the Examiner “failed to establish a prima
facie case of obviousness with respect to [the rejected] claims.” (App. Br.
10). Specifically, Appellant asserts that “the Examiner broadly concludes
that the claims are obvious variations since the claimed compositions
contain similar components” without any “analysis as to the differences
between the claimed subject matter [or any] indication as to why one of
ordinary skill in the art would conclude that the claimed subject matter was
an obvious variation of the invention defined in the copending application.”
(Id.). In particular, Appellant asserts that the ‘009 claims “fail[] to disclose
or suggest a composition containing a biocide and a processing additive
wherein the composition is in the form of a free-flowing powder as set forth
in the claims of the present application” and that the Examiner has not
addressed this difference. (Id. at 10-11).
The issue with respect to this rejection is whether the Examiner
established that instant claims 1-11 are patentably distinct from the ‘009
claims 1-14.
B. The ‘008 Application
The Examiner’s position is that the ‘008 application recites
“compositions formulated from all components of [the instant] claims.”
(Ans. 6). The Examiner found that although only the ‘008 claims include an
antioxidant, this component is not excluded from the instant claims. (Id.).
According to the Examiner, “[i]t would have been obvious to a person of
ordinary skill in the art at the time of applicant’s invention to either include
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or exclude the antioxidant component of the [‘008] application depending
upon whether or not antioxidative properties were desired.” (Id. at 6-7).
Appellant here again contends that the Examiner has “failed to
establish a prima facie case of obviousness with respect to [the rejected]
claims.” (App. Br. 11). Specifically, Appellant asserts that “[n]one of the
claims of the ‘008 application discloses or suggests a composition
containing a biocide and a processing additive wherein the composition is in
the form of a free-flowing powder to facilitate incorporation of the
composition into an industrial matrix product.” (Id.). According to
Appellant, “the Examiner has completely ignored this limitation in the
claims and fails to provide any reasoning as to how this element is met by
the claims of the ‘008 application.” (Id.).
Regarding instant claims 4, 8, and 10, Appellant further asserts that
the claims of the ‘008 application “fail to disclose or suggest a processing
additive containing either calcium stearate or zinc stearate,” as required by
instant claims 4, 8, and 10. (Id. at 11-12). According to Appellant, “the
[E]xaminer has failed to provide any basis for the conclusion of obviousness
with respect to these missing features.” (Id. at 12).
The issue with respect to this rejection is whether the Examiner
established that instant claims 1-11 are patentably distinct from the ‘008
claims 1-11.
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Findings of Fact
1. Instant claim 1 recites “[a] composition comprising a biocide and a
processing additive therewith in the form of a free-flowing powder for facile
incorporation into an industrial matrix product which is a polymer, plastic or
polymer-wood composite. (Claim 1).
2. Instant claim 4 recites that “said processing additive is a combination
of calcium stearate and/or zinc stearate and said polymer, plastic or polymer-
wood composite.” (Claim 4).
3. The Specification states that “by mixing in 1-2% of an appropriate
resin with the IPBC and/or mixing in 1% resin and 1% of a dry lubricant
such as calcium stearate or zinc stearate, the stickiness of the IPBC biocide
is eliminated and a free-flowing powder is obtained.” (Spec. 5)(emphasis
added).
4. The ‘009 application claim 1 recites “a concentrate comprising a
biocide and a stabilizer additive wherein said stabilizer additive is present in
an amount sufficient to protect the biocide against thermal degradation when
processed in a matrix at temperatures of up to 250°C.” (‘009 Application,
Claim 1).
5. The ‘009 application claim 4 recites that “said stabilizer additive is
calcium stearate.” (Id. at Claim 4).
6. The ‘009 application does not recite that the concentrate is in the form
of a free-flowing powder. (See id.).
7. The ‘008 application claim 1 recites “[a] composition comprising: (a)
a matrix, (b) a biocide, and (c) an antioxidant, in which said biocide exhibits
thermal stability at matrix processing temperatures up to 250°C.” (‘008
Application, Claim 1).
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8. The ‘008 application does not recite that the composition is in the
form of a free-flowing powder. (See id.).

Principles of Law
“[C]laims in an application are to be given their broadest reasonable
interpretation consistent with the specification and that claim language
should be read in light of the specification as it would be interpreted by one
of ordinary skill in the art.” In re Sneed, 710 F.2d 1544, 1548 (Fed. Cir.
1983).
An obviousness-type double patenting analysis entails two steps: (1)
construction of the claims of the patent and the claim in the application to
identify any differences, and (2) determination of whether the differences in
subject matter between the claims render the claims patentably distinct. See
Eli Lilly & Co. v. Barr Labs., Inc., 251 F.3d 955, 968 (Fed Cir. 2001).

Analysis
A. Claim Interpretation
The instant independent claim, claim 1, reads as follows:
“A composition comprising a biocide and a processing additive
therewith in the form of a free-flowing powder for facile incorporation into
an industrial matrix product which is a polymer, plastic or polymer-wood
composite.” (App. Br. 17).
We turn to the Specification for clarification as to whether it is the
composition, or simply the processing additive, that is “in the form of a free-
flowing powder.” See Sneed, 710 F.2d at 1548.
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The Specification states that “it is an object of this invention to
provide a composition containing a biocide, e.g. [IPBC, IPC, or IPPC], and
a processing aid, in form of a free-flowing powder capable of being
processed conveniently into industrial polymer or plastic products by
automatic feeding equipment.” (Spec. 2). The Specification also provides
an example describing samples, i.e., compositions, in which “a small amount
of calcium stearate and polyethylene granules [were] added to the IPBC.”
(Id. at 4). The Specification explained that “samples with calcium stearate
and polyethylene additive therein flowed easily.” (Id., emphasis added).
The Specification concluded that “by mixing in 1-2% of an appropriate resin
with the IPBC and/or mixing in 1% resin and 1% of a dry lubricant such as
calcium stearate or zinc stearate, the stickiness of the IPBC biocide is
eliminated and a free-flowing powder is obtained.” (Id. at 5, emphasis
added). Therefore, the Specification refers to an end product, i.e., the
composition as a whole, as being in the form of a free-flowing powder, and
not simply the additive component by itself.
In the light of the Specification, we interpret Claim 1 as reciting a
composition, that as a whole, is in the form of a free-flowing powder.
B. The ‘009 Application
We agree with Appellant (see App. Br. 10) that the Examiner has not
established a prima facie case of obviousness with respect to the rejected
claims. In the double-patenting rejection, the Examiner concludes that the
instant claims are obvious over the ‘009 claims without identifying the
differences between the claims and explaining why those differences would
not render the claims patentably distinct. See Eli Lilly, 251 F.3d at 968.
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Regarding the recitation in the instant claims of “a free-flowing
powder,” the Examiner stated in the Answer that “[i]t is expected that
calcium stearate, a salt, is in powder form,” and further, that the salt “is
commonly sold commercially in powder form.” (Ans. 6). However, this
remark does not support a conclusion of obviousness because we have
interpreted instant claim 1 as being directed to a composition that is a “free-
flowing powder” and not simply as comprising a processing additive that is
a free-flowing powder.
The Examiner has not provided sound reasoning that the expected
properties of calcium stearate or its commercially available form would have
rendered the claimed composition in the form of a free-flowing powder
obvious. (See Ans. 6). In the Answer, the Examiner additionally explained
that even if the processing additive was not in powder form, as expected, it
would have been within the ordinary skill in the art at the time of the
invention “to change the physical condition of a component to optimize or
alter its properties.” (Id.)(Emphasis added). However, this reasoning still
addresses only the form of the processing additive component and not the
form of the composition as a whole. In other words, what remains missing
from the Examiner’s remarks is some articulated and supported reasoning as
to why it would have been obvious to person of ordinary skill in the art at
the time of the invention to have changed the form of the ‘009 composition
to a free-flowing powder, as instantly claimed. Consequently, we do not
find that the Examiner established that the instant claims are not patentably
distinct from the ‘009 claims.
Accordingly, we reverse the double patenting rejection of claims 1-11
over the ‘009 application.
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C. The ‘008 Application
For the same reasons discussed supra, we agree with Appellant (see
App. Br. 11-12) that the Examiner has not established that forming the
composition of the claims of the ‘008 application “in the form of a free-
flowing powder for facile incorporation into an industrial matrix product
which is a polymer, plastic or polymer-wood composite,” as recited in the
instant claims, would have been prima facie obvious.
Further, we agree with Appellant that the Examiner has not provided
sound reasoning (see Ans. 6-8) as to why the requirement of the instant
claims for the processing additive to comprise “calcium stearate and/or zinc
stearate” would have been obvious over the ‘008 claims which do not recite
either of these compounds. Consequently, we do not find that the Examiner
established that the instant claims are not patentably distinct from the ‘008
claims.
Accordingly, we reverse the double patenting rejection of claims 1-11
over the ‘008 application.

ANTICIPATION/OBVIOUSNESS
The Issue
The Examiner’s position is that Schwartz disclosed a composition
comprising a particulate zinc material. (Ans. 9-10). The Examiner found
that Schwartz disclosed that a suitable zinc material is zinc stearate. (Id. at
10). The Examiner also found that Schwartz disclosed that its compositions
may further comprise one or more optional components, including polymers
and polyolefins. (Id.). The Examiner found that Schwartz disclosed that the
concentrations of optional components may range from about 0.001% to
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about 10%. (Id.). Additionally, the Examiner found that Schwartz disclosed
that its compositions may include one or more anti-fungal or anti-microbial
agents, such as IPBC. (Id.). According to the Examiner, “[a]ll of the
components of the presently claimed invention are met by Schwartz et al.”
(Id. at 11). Additionally, the Examiner concluded that “[i]t would have been
obvious to the ordinary practitioner of this art to select these particular
components from within the disclosure of Schwartz to formulate the
particulate zinc compositions of patentee’s disclosure.” (Id.).
Appellant contends that “Schwartz neither anticipates nor renders
obvious the claims on appeal.” (App. Br. 13). Specifically, Appellant
asserts that the Examiner “conveniently selects zinc stearate, a biocide and a
polymer from the various components in Schwartz” to reject the claims.
(Id.). According to Appellant, the instant claims are not anticipated because
Schwartz “fails to disclose a composition in the form of a free-flowing
powder and fails to disclose a composition containing a biocide and a
processing additive arranged as in the claim….” (Id.).
Additionally, Appellant asserts that the claims are not obvious
because “there is absolutely no motivation or suggestion in Schwartz for
providing compositions in the form of a free-flowing powder containing the
biocide and a processing additive.” (Id. at 14).
The issue with respect to this rejection is whether the claimed
invention would have been anticipated by Schwartz or, alternatively, would
have been obvious over Schwartz to a person of ordinary skill in the art at
the time the invention was made.

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Findings of Fact
9. Schwartz disclosed compositions comprising a particulate zinc
material. (Schwartz, abstract).
10. Schwartz disclosed that several examples of particulate zinc materials
useful in its invention, including zinc stearate. (Id. at [0034], [0045]).
11. Schwartz disclosed that the compositions of its invention “may further
comprise one or more optional components known for use in hair care or
personal care products….” (Id. at [0084]).
12. Schwartz disclosed that the individual concentrations of the optional
components may range from about 0.001% to about 10%.” (Id. at [0084]).
13. Schwartz disclosed numerous optional components including
polymers, polyolefins, and anti-microbial actives, e.g. IPBC. (Id. at [0085],
[0148], [0167]).
14. Schwartz disclosed various embodiments of its invention directed to a
composition “wherein the particulate zinc material has a particle size
distribution wherein 90% of the particles are less than 50 microns, in an
aqueous composition….” (Id. at [0016).
15. Schwartz does not expressly disclose that the composition of its
invention is in the form of a free-flowing powder.

Principles of Law
“A claim is anticipated only if each and every element as set forth in
the claim is found, either expressly or inherently described, in a single prior
art reference.” Verdegaal Bros. v. Union Oil Co. of California, 814 F.2d
628, 631 (Fed. Cir. 1987), cert. denied, 484 U.S. 827 (1987).
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The question of obviousness is resolved on the basis of underlying
factual determinations including (1) the scope and content of the prior art,
(2) any differences between the claimed subject matter and the prior art, (3)
the level of skill in the art, and (4) where in evidence, so-called secondary
considerations. Graham v. John Deere Co., 383 U.S. 1, 17-18 (1966).

Analysis
We agree with Appellant that the claims are not anticipated by
Schwartz. The Examiner has not sufficiently supported the conclusion that
the prior art disclosed a composition comprising a biocide and a processing
additive “in the form of a free-flowing powder for facile incorporation into
an industrial matrix product which is a polymer, plastic or polymer-wood
composite,” as recited in instant claim 1. Indeed, the Examiner did not make
any specific finding that the Schwartz either expressly or inherently
disclosed this challenged element. See Verdegaal Bros, 814 F.2d at 631 (“A
claim is anticipated only if each and every element as set forth in the claim is
found, either expressly or inherently described, in a single prior art
reference.”).
We also agree with Appellant that the claims are not obvious over
Schwartz. The Examiner rejection did not articulate reasoning showing that
Schwartz would have suggested to a skilled artisan at the time of the
invention formulating the disclosed compositions comprising a biocide and a
processing additive “in the form of a free-flowing powder,” as recited in
instant claim 1.
In the Answer, the Examiner stated that Schwartz’s disclosure of
“particulate zinc stearate is considered to meet appellant’s claim limitation
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to a free flowing processing additive powder.” (Ans. 11). However, this
reasoning is insufficient to show that the claim as a whole would have been
obvious. Claim 1 defines the composition, not simply the processing
additive, as a free-flowing powder.
Further, we find the Examiner’s remarks in the Answer regarding the
expected properties of calcium stearate or the ordinary skill in the art at the
time of the invention “to change the physical condition of a component to
optimize or alter its properties” (see Ans. 11-12) to be misdirected. Skill in
the art does not stand in for knowledge in the art. Knowledge in the art is
evidence under the first Graham factor, while skill in the art is weighed as
the third Graham factor. A reason to modify a prior art teaching can be
found as part of the scope and content of the art, and it can come from the
ordinary knowledge in the art, the nature the problem, or other sources. See,
e.g., In re Rouffet, 149 F.3d 1350, 1355 (Fed. Cir. 1998). The problem here
is that the rejection didn’t identify a reason to modify the prior art mixtures
of biocide and processing additives into a free-flowing powder. When no
reason is identified, and only “skill” is invoked, hindsight is inferred. See
Rouffet at 1357-58.

OBVIOUSNESS
The Issue
The Examiner’s position was that Jiang disclosed a composite
composed of wood fiber and plastic materials comprising an anti-microbial
compound. (Ans. 12). The Examiner found that Jiang disclosed that the
composite used quaternary ammonium alky salts as antimicrobial agents and
that these salts were combined with additional antimicrobial agents, i.e.,
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biocides. (Id.). Additionally, the Examiner found that Jiang taught that
suitable antimicrobial agents may be selected from IPBC and zinc
compounds such as zinc stearate. (Id.). The Examiner also found that Jiang
disclosed that suitable polymers for the composition included olefins. (Id. at
13). Therefore, the Examiner determined that Jiang included all of the
components of the claimed invention. (Id.). According to the Examiner, it
would have been obvious to a person of ordinary skill in the art at the time
of the invention to select any of the components disclosed in Jiang to
formulate the composites of Jiang. (Id.).
Appellants contend that Jiang “fails to provide sufficient guidance to
put one of ordinary skill in the art in possession of the claimed invention and
fails to disclose the claimed invention arranged as in the claim.” (App. Br.
15). Appellant also asserts that Jiang “fails to disclose or suggest a free-
flowing powder composition comprising a biocide and a processing additive
as set forth in the claims on appeal.” (Id.). According to Appellant, the
Examiner has not provided a rational basis as to why a skilled artisan would
have modified compositions disclosed in the prior art to arrive at a
composition in the form of a free-flowing powder. (Id. at 15-16).
The issue with respect to this rejection is whether the claimed
invention would have been obvious over Jiang to a person of ordinary skill
in the art at the time the invention was made.

Findings of Fact
16. Jiang disclosed “a polymer-cellulosic fiber composition comprising a
polymer, a cellulosic fiber, and a quaternary ammonium alkyl salt wherein
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the latter imparts antimicrobial properties to the composition and functions
as a lubricant during the formation of the composition.” (Jiang, Abstract).
17. Jiang disclosed that the quaternary ammonium alkyl salt may be used
with other biocides, including zinc compounds such as zinc stearate. (Id. at
p. 7, ll. 5-8; p. 15, Table 3).
18. Jiang disclosed that antimicrobial compounds which may be used with
the quaternary ammonium alkyl salts include IPBC. (Id. at p. 9, ll. 5).
19. Jiang disclosed that its compositions function as a lubricant and as an
antimicrobial. (Id. p. 1, ll. 18-19, Title).
20. Jiang did not expressly disclose that its compositions were in the form
of a free-flowing powder.

Principles of Law
The question of obviousness is resolved on the basis of underlying
factual determinations including (1) the scope and content of the prior art,
(2) any differences between the claimed subject matter and the prior art, (3)
the level of skill in the art, and (4) where in evidence, so-called secondary
considerations. Graham v. John Deere Co., 383 U.S. 1, 17-18 (1966).
Analysis
We agree with Appellant that the claims are not obvious over Jiang.
The Examiner’s rejection did not articulate any sound reasoning as to how
Jiang would have suggested to a skilled artisan at the time of the invention
formulating the disclosed compositions comprising a biocide and a
processing additive “in the form of a free-flowing powder for facile
incorporation into an industrial matrix product which is a polymer, plastic or
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polymer-wood composite,” as recited in instant claim 1. Indeed the
Examiner’s rejection did not address this claim limitation. (See Ans. 12-13).
Further, we do not find the Examiner’s remarks in the Answer
regarding the expected properties of calcium stearate or the ordinary skill in
the art at the time of the invention “to change the physical condition of a
component to optimize or alter its properties” (see Ans. 13-14) provide a
sufficient basis for establishing prima facie obviousness for similar reasons
to those discussed above. The rejection did not identify a reason to modify
the prior art mixtures of biocide and processing additives into a free-flowing
powder. When no reason is identified, and only “skill” is invoked, hindsight
is inferred. See Rouffet at 1357-58.

CONCLUSIONS OF LAW
The Examiner failed to establish that instant claims 1-11 are
patentably distinct from either the ‘009 claims 1-14 or the ‘008 claims 1-11.
Claims 1-11 would not have been anticipated by Schwartz.
Additionally, claims 1-11 would not have been obvious over Schwartz
to a person of ordinary skill in the art at the time the invention was made.
Claims 1-11 would not have been obvious over Jiang to a person of
ordinary skill in the art at the time the invention was made.

SUMMARY
We reverse the rejection of claims 1-11 as provisionally rejected on
the ground of non-statutory obviousness-type double patenting as being
unpatentable over claims 1-14 of co-pending Application No. 10/893,099
(‘099 application); and
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we reverse claims 1-11 as provisionally rejected on the ground of non-
statutory obviousness-type double patenting as being unpatentable over
claims 1-11 of co-pending Application No. 10/893,008 (‘008 application);
and
we reverse claims 1-11 under 35 U.S.C. §102(a) or (e) as anticipated
by or, in the alternative, under 35 U.S.C. §103(a) as being unpatentable over
Schwartz; and
we reverse claims 1-11 under 35 U.S.C. §103(a) as being unpatentable
over Jiang.

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).

REVERSED

lp

ATTN: WILLIAM J. DAVIS, ESQ
INTERNATIONAL SPECIALTY PRODUCTS
LEGAL DEPARTMENT
1361 ALPS ROAD
WAYNE NJ 07470