Ex Parte Bergman et alDownload PDFPatent Trial and Appeal BoardMay 24, 201612979608 (P.T.A.B. May. 24, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 12/979,608 12/28/2010 Roger Bergman 21898 7590 05/26/2016 ROHM AND HAAS COMPANY c/o The Dow Chemical Company P.O. Box 1967 2040 Dow Center Midland, MI 48641 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. 68553 3317 EXAMINER VALDEZ, DEVE E ART UNIT PAPER NUMBER 1765 NOTIFICATION DATE DELIVERY MODE 05/26/2016 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): FFUIMPC@dow.com PTOL-90A (Rev. 04/07) lJ1..JITED ST ATES PATENT AND TRADEiviARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte ROGER BERGMAN, J. KEITH HARRIS, LIANG HONG, THOMAS KALANTAR, LINDA KIM-HABERMEHL, and MLADEN LADIKA Appeal2015-000480 Application 12/979,608 Technology Center 1700 Before PETERF. KRATZ, GEORGE C. BEST, and AVELYN M. ROSS, Administrative Patent Judges. ROSS, Administrative Patent Judge. DECISION ON APPEAL 1 Appellants2 appeal under 35 U.S.C. § 134(a) from a final rejection of claims 1---6. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 In our decision below, we refer to the Final Office Action appealed from, filed November 7, 2013 (Final Act.), the Appeal Brief filed April 7, 2014 (Appeal Br.), and the Examiner's Answer filed July 15, 2014 (Ans.). 2 Appellants identify the real party in interest as Dow Global Technologies LLC. Appeal Br. 2. Appeal2015-000480 Application 12/979,608 STATEMENT OF CASE The claims are directed to redispersible polymer powders stabilized with protective colloid compositions that include chelating agents. Spec. i-fi-f l and 9. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A water redispersible polymer powder comprising a co- dried admixture of a water insoluble film-forming polymer and a colloidal stabilizer, said colloidal stabilizer comprising a chelating agent and at least one water soluble polymer, wherein the amount of chelating agent is at least 0.1 % by weight based upon the weight of the water insoluble film-forming polymer, and the amount of the at least one water soluble polymer is at least 0.1 % by weight based upon the weight of the water insoluble film-forming polymer. Claims Appendix at Appeal Br. 10. REJECTIONS The Examiner made the following rejections: A. Claims 1-5 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Perello3 as evidenced by Aberle4 in view of Styron.5 Final Act. 3. B. Claim 6 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over Perello as evidenced by Aberle in view of Stryon with evidence provided by Drechsler. 6 Id. at 4. 3 Perello et al., WO 2008/140852 Al, published Nov. 20, 2008 (hereinafter "Perello"). 4 Aberle et al., US 2009/0223416 Al, published Sept. 10, 2009 (hereinafter "Aberle"). 5 Styron et al., US 6,554,894 B2, issued Apr. 29, 2003 (hereinafter "Styron"). 6 Drechsler, US 5,445,945, issued Aug. 29, 1995. 2 Appeal2015-000480 Application 12/979,608 C. Claims 1---67 stand provisionally rejected on the ground of nonstatutory obviousness-type double patenting as being unpatentable over claims 1-10 of copending Application No. 12/979,593. Id. at 5---6. Appellants seek review of all rejections, Rejections A---C. However, Appellants do not argue against the rejections for any single claim in particular, and instead argue the claims as a group. Appeal Br. 4--9 (discussing generally "the instant claims"). In addition, Appellants present arguments directed to both Rejections A and B together. 8 Id. Appellants' arguments are the same for Rejection Bas presented for Rejection A. Rejection C is not contested. Therefore, we focus our discussion on the rejection of claim 1 (Rejection A) to resolve the issues on appeal. 7 The Examiner rejects claims 1-10 (Final Act. 5---6) but claims 7-10 were obviously inadvertently included in the rejection by the Examiner. This is because the latter claims are identified as being withdrawn from consideration by the Examiner as being drawn to a non-elected invention; consequently, claims 7-10 are not subject to examination and being at issue on appeal given that the restriction requirement has not been withdrawn by the Examiner. Non-Final Act. i-f 6; Final Act. 1; Appeal Br. 3. Application No. 12/979,593 matured into U.S. Patent No. 8710131 on April 29, 2014. 8 We note that Appellants' Appeal Brief fails to comply with the requirements of 37 C.F.R. § 41.37 requiring that "[e]ach ground of rejection contested by appellant must be argued under a separate heading, and each heading shall reasonably identify the ground of rejection being contested (e.g., by claim number, statutory basis, and applied reference, if any). 37 C.F.R. § 41.37(c)(iv) (emphasis added). 3 Appeal2015-000480 Application 12/979,608 OPINION Rejection A: Obviousness The Examiner rejects claim 1 as unpatentable, under 35 U.S.C. § 103(a), over Perello, Aberle, and Styron. Final Act. 3--4. The Examiner finds that Perello discloses a redispersible polymer powder and an aqueous dispersion (p. 2, lines 17-18) wherein the redispersible polymer powder comprises a co-dried admixture of a copolymer of vinyl acetate/ethylene (which would read on a water-soluble film forming polymer) (p. 4, lines 20-21; p. 7, lines 5-17; and p. 8, lines 4-10) and 2 to 30% by weight of protective colloids .... Id. at 3. The Examiner also finds that the protective colloids of Perello "would read on colloidal stabilizer comprising water soluble polymer as required by the present invention." Id. Aberle teaches, according to the Examiner, that colloidal stabilizers reduce efflorescence. Id. The Examiner acknowledges that Perello does not teach a colloidal stabilizer comprising a chelating agent but finds that Styron teaches a chelating agent. Id. The Examiner then rationalizes that a person of ordinary skill in the art would have reason to combine Perello, Aberle, and Styron "for the benefit of reducing the efflorescence of the cement composition .... " Id. at 4. Appellants first argue that the cited art "at best discloses a mixture of several ingredients in which a water redispersible polymer powder and chelating agent are separate ingredients in a mixture; the art, even taken in combination does not incorporate a chelating agent into a redispersible polymer powder." Appeal Br. 4. Without more, Appellants' argument does not apprise us of reversible error by the Examiner. Claim 1 requires "[a] water redispersible polymer powder comprising a co-dried admixture of a water insoluble film-forming polymer and a 4 Appeal2015-000480 Application 12/979,608 colloidal stabilizer." Claims Appendix at Appeal Br. 10 (emphasis added). Perello teaches a redispersible polymer composition which "improve various properties of cement-based tile adhesives." Perello at 1. As the Examiner correctly finds (Final Act. 3; Ans. 6), Perello discloses a polymer powder that comprises a co-dried admixture of a vinyl ester of a monocarboxylic acid, preferably vinyl acetate/ethylene, and protective colloids, such as polyvinyl alcohol. Perello at 3 and 8. Protective colloids, or colloidal stabilizers, are taught by Aberle to be useful in the reduction of efflorescence in cementitious systems, like concrete and mortar. Aberle i-fi-1 1, 2, and 13. And, Styron teaches that chelating agents are also known to be useful for reducing efflorescence in cement compositions as well as increasing compressive strength. Styron col. 3, 11. 45-50. And, as the Examiner determined (Final Act. 3--4 ), the skilled person would have had reason to use the chelating agent of Styron as the colloidal stabilizer of Perello to achieve a reduction in efflorescence. The test for obviousness is not whether the claimed invention is expressly suggested in any one or all of the references, but whether the claimed subject matter would have been obvious to those of ordinary skill in the art in light of the combined teachings of those references. See In re Keller, 642 F.2d 413, 425 (CCPA 1981). Accordingly, we find no error in the Examiner's conclusions the claimed invention would have been obvious to the skilled artisan in light of the combined teachings of Perello, Aberle, and Styron. Next, Appellants argue that "[t]here is simply no reason in the art to combine the art as has been done in the final rejection." Appeal Br. 7. According to Appellants, the Examiner uses "Aberle to fill the gap between Perello (no chelating agent and no reason to include one) and Styron (no 5 Appeal2015-000480 Application 12/979,608 powder but chelating and reference to efflorescence)." Id. at 5. But, the Appellants argue that the link between Aberle-i.e., that colloidal stabilizers lead to reduced efflorescence-and Styron-i.e., that chelating agents lead to reduced efflorescence-is meritless. Id. at 5---6. Specifically, Appellants urge that Aberle does not teach "that colloidal stabilizers are key for reducing efflorescence," rather "it is only the organic component in Aberle that gives improvements against efflorescence." Id. at 6. Appellants' arguments are not persuasive of reversible error. Aberle clearly explains that it is the combination of "at least one organic component and at least one water-soluble organic polymeric protective colloid" that is important for reducing efflorescence. See Aberle Abstract, i-fi-f l, 13, 30, and 42--43. The inventive and comparative examples, cited by Appellants, is consistent with this finding. Id. i-fi-1 49-72. Specifically, the examples show reduced efflorescence where both the organic component and protective colloid (or colloidal stabilizer) are present-and not as Appellants suggest that the protective colloid is irrelevant. Id. Therefore, a preponderance of the evidence supports the combination as tendered by the Examiner. Rejection C: Provisional Obviousness-type Double Patenting The Examiner provisionally rejects claims 1---6 on the ground of nonstatutory obviousness-type double patenting over claims 1-10 of copending Application No. 12/979,593. Appellants do not argue the merits 6 Appeal2015-000480 Application 12/979,608 of the Examiner's rejection. Appeal Br. 8. We therefore summarily affirm the obviousness-type-double patenting rejection. CONCLUSION The Examiner did not reversibly err in rejecting claims 1-5 under 35 U.S.C. § 103(a) as being unpatentable over Perello as evidenced by Aberle in view of Styron. The Examiner did not reversibly err in rejecting claim 6 under 35 U.S.C. § 103(a) as being unpatentable over Perello as evidenced by Aberle in view of Stryon with evidence provided by Drechsler. The Examiner did not reversibly err in provisionally rejecting claims 1---6 on the ground of nonstatutory obviousness-type double patenting as being unpatentable over claims 1-10 of copending Application No. 12/979,593. DECISION For the above reasons, the Examiner's rejection of claims 1-6 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)(l )(iv) (2009). AFFIRMED 7 Copy with citationCopy as parenthetical citation