Ex Parte Berti et al

Patent Trial and Appeal Board

Oct 5, 2012

11654425 (P.T.A.B. Oct. 5, 2012)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
11/654,425 01/17/2007 Douglas A. Berti COS-930CON 7076
7590 10/05/2012
David J. Alexander
P.O. Box 674412
Houston, TX 77167
EXAMINER
ZEMEL, IRINA SOPJIA
ART UNIT PAPER NUMBER
1765
MAIL DATE DELIVERY MODE
10/05/2012 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
____________________

PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte DOUGLAS A. BERTI, JOSE M. SOSA,
and JAY REIMERS
____________________

Appeal 2011-009342
Application 11/654,425
Technology Center 1700
____________________

Before BRADLEY R. GARRIS, FRED E. McKELVEY, CHUNG K. PAK,
Administrative Patent Judges.

McKELVEY, Administrative Patent Judge.

DECISION ON APPEAL

Statement of the case
Fina Technology Inc. (“applicant”), the real party in interest (Brief, page 1), 1
seeks review under 35 U.S.C. § 134(a) of a final rejection dated 26 August 2010. 2
The application has been published as U.S. Patent Application Publication 3
2007/0135529 A1. 4

Appeal 2011-009342
Application 11/654,425

2

In support of prior art rejections, the Examiner relies on several references, 1
only two of which are relevant to issues addressed on the merits in applicant’s 2
Brief. 3

Kasehagen et al.
“Kasehagen”
“A New Multifunctional
Peroxide Initiator for
High Molecular Weight,
High Productivity, and
Long-Chain Branching,”
Society of Plastic
Engineering, Annual
Technical Conference,
5 pages

2002

Organic Peroxides
Atofina Organic
Peroxides Technical
Bulletin, “Luperox®
JWEB50: A new initiator
for high molecular weight
GPPS and improved
productivity, 3 pages

2001

Kasehagen has five pages none of which have a printed page number. The 4
copy of Kasehagen in the record we have considered has renumbered pages 2-5 5
with the first page being unnumbered. 6
Organic Peroxides has three pages none of which have a printed page 7
number. 8
Applicant does not contest the prior art status of Kasehagen or Organic 9
Peroxides, both of which are facially prior art under 35 U.S.C. § 102(b). 10
Claims on appeal 11
Claims 1-3, 5-6, and 8-20 are on appeal. Brief, page 2; Answer, page 2. 12

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In discussing rejections in the Brief (pages 5-6), applicant refers to Claims 4 1
and 7. The Examiner correctly points out, however, that Claims 4 and 7 have been 2
cancelled. Answer, page 4; see also Brief, page 2. 3
The Examiner has entered numerous rejections relying on various references 4
pointing out how each reference applies to particular claims. Answer, pages 4-9. 5
In the Brief, applicant’s argument in support of reversal focuses only on 6
deficiencies said to exist in Kasehagen and Organic Peroxide. Separate arguments 7
for the various claims are not presented. Hence, we will decide the appeal on the 8
basis of Claim 1 (37 CFR § 41.37(c)(1)(vii)) and applicant’s arguments addressing 9
Kasehagen and Organic Peroxide. 10
Claim 1, which we reproduce from the Claim Appendix of the Appeal Brief 11
(page 8), reads [matter in brackets and indentation added (see 37 C.F.R. § 1.75(i)) 12
added; principal limitations in issue in italics]: 13
A method for producing a polymer article comprising: 14
[1] continuously polymerizing at least one vinylaromatic 15
monomer in the presence of at least one multifunctional initiator 16
selected from the group consisting of trifunctional and tetrafunctional 17
initiators, and at least one lower functionality initiator selected from 18
the group consisting of difunctional and monofunctional initiators [to 19
produce a polymerized product1]; 20

1 The matter within these brackets is added to provide an antecedent for “the
polymerized product” which appears twice later in Claim 1. In the event of further
prosecution, applicant may wish to appropriately amend Claim 1.

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[2] foaming the polymerized product with a blowing agent; 1
and 2
[3] recovering a polymer article, 3
wherein the polymerized product exhibits 4
[a] a Mz of at least about 400,000 and 5
[b] a MFI of greater than about 3 and 6
[c] MWD of from about 2.5 to about 4.0; and 7
where 8
[i] the lower functionality initiator is present in an amount 9
ranging from about 50 to about 1000 ppm, based on the vinylaromatic 10
monomer and 11
[ii] the multifunctional initiator is present in an amount 12
ranging from about 100 to about 1200 ppm, based on the 13
vinylaromatic monomer. 14
Mz is a calculated average molecular weight discussed in ¶ 0027 of the 15
Specification. MFI means melt flow index. MWD means molecular weight 16
distribution. A suitable vinylaromatic monomer is styrene. 17
Analysis 18
Applicant presents three main arguments in support of its appeal. 19
Argument 1 20
According to applicant, Kasehagen does not teach, show, or suggest where 21
the lower functionality initiator is present in an amount of 50-1000 ppm or where 22
the multifunctional initiator is present in an amount of 100-1200 ppm. Brief, 23

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page 4. “Lower” means mono- and di-functional. “Multi” means tri- and tetra-1
functional. 2
In the Final Rejection (pages 3-4), the Examiner found that Kasehagen 3
describes amounts falling within the 50-1000 and 100-1200 ranges of Claim 1. 4
The Examiner’s finding is based on information in Kasehagen reported as A[O], 5
which means ppm of active oxygen. The Brief seemingly does not address the 6
Examiner’s finding. The Examiner repeats the range overlap finding in the 7
Answer (pages 10-11). A Reply Brief was not filed. On the record before us, the 8
findings of the Examiner essentially are not challenged. Relevant data includes 9
information in Table 1 (BDF A[O] wt% = 9.82 and TFP A[O] wt% = 3.32) and 10
Table 2 (BDF concentration ppm A[O] =18.0 and TFP concentration ppm 11
A[O] = 8.5] of Kasehagen. Based on the data, the Examiner found that Kasehagen 12
describes the use of 183 ppm BDF and 256 ppm TFP, amounts which are within 13
the ranges of Claim 1. The Examiner’s findings are supported by the evidence. 14
We, like the Examiner, find that the claimed 50-1000 and 100-1200 ranges of 15
Claim 1 are described by Kasehagen. 16
Argument 2 17
Applicant’s second argument is that Kasehagen does not suggest how one 18
skilled in the art would have expected a polymer having a MWD of from 2.5 to 19
4.0. Brief, page 4. In the Answer, the Examiner found (page 5) that the 20
polymerization process described by Kasehagen is substantially identical to the 21
claimed process. On that basis, the Examiner found (page 5) that it is reasonable to 22
believe that the properties as claimed are inherently met by the polymers described 23
by Kasehagen. No reply was filed. We agree with the Examiner that the 24

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Kasehagen method and the claimed method are substantially identical. Applicant 1
seems to argue that the processes are not identical, it appearing that applicant 2
believes there are “missing features” in the Kasehagen article. Brief, page 5. 3
Unfortunately, applicant has not favored us with an identification of those “missing 4
features” apart from those already addressed above. Since applicant has not 5
explained why both would not yield similar products, we hold that the Examiner 6
has made out a reasonable (and unrebutted) case that the Kasehagen products 7
reasonably could have the claimed MWD range. In re Best, 562 F.2d 1252 (CCPA 8
1977); In re Spada, 911 F.2d 705 (Fed. Cir. 1990). 9
Argument 3 10
Applicant argues that Kasehagen is deficient because it is said to describe a 11
“batch” process as opposed to the claimed “continuous” process. At the outset, we 12
find the argument curious in light of the fact that one of the named inventors (Sosa) 13
has described continuous polymerization in one of his prior patents—a continuous 14
process for making polystyrene products. Specification, ¶ 0039, last four lines. 15
The Examiner called applicant’s attention to a continuous pilot plant process 16
explicitly described by Kasehagen. Final Rejection, page 2; see also Kasehagen, 17
unnumbered page 1, col. 2, last line through unnumbered page 2, col. 1, first full ¶. 18
Applicant’s response on appeal is that the pilot plant process described by 19
Kasehagen does not describe other limitations in Claim 1. Brief, pages 4-5. The 20
Examiner’s finding that one skilled in the art would have known how to conduct a 21
continuous polystyrene process vis-à-vis a polystyrene batch process is supported 22
by the record. We have no doubt that one skilled in the art would have been able 23
to determine whether a particular circumstance call for use of a batch or continuous 24

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process given the fact—which we cannot imagine applicant denying—that both 1
continuous and batch processes for making polystyrene products are well-known. 2
Lastly, we note that the Examiner’s “continuous” process holding is consistent 3
with applicable precedent, including In re Dinot, 319 F.2d 188, 194 (CCPA 1963) 4
(cited by the Examiner—Answer, page 6.). See also In re Korpi, 160 F.2d 564, 5
566 (CCPA 1947) (case in which it was held to be obvious to convert batch 6
process into continuous process) and In re Lincoln, 126 F.2d 477, 479 (CCPA 7
1942). 8
Other arguments 9
We have considered applicant’s remaining arguments and find none that 10
warrant reversal of the Examiner’s rejections. Cf. In re Antor Media Corp., ___ 11
F.3d ___, ___, 2012 WL 3055928, 103 USPQ2d 1555, 1563 (Fed. Cir. 2012). 12
Decision 13
Upon consideration of the appeal, and for the reasons given herein, it is 14
ORDERED that the decisions of the Examiner rejecting claims 1-3, 15
5-6, and 8-20 over the prior art are affirmed. 16
FURTHER ORDERED that no time period for taking any subsequent 17
action in connection with this appeal may be extended under 37 C.F.R. 18
§ 1.136(a)(1)(iv). 19
AFFIRMED 20
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