Ex Parte Cecchin et al

Board of Patent Appeals and Interferences

Feb 23, 2001

08437489 (B.P.A.I. Feb. 23, 2001)

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The opinion in support of the decision being entered
today was not written for publication and is not
precedent of the Board.
Paper No. 36
UNITED STATES PATENT AND TRADEMARK OFFICE
________________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
________________
Ex parte GIULIANO CECCHIN and ENEA GARAGNANI
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Appeal No. 1998-1909
Application 08/437,489
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HEARD: FEBRUARY 7, 2001
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Before GARRIS, OWENS and DELMENDO, Administrative Patent Judges.
OWENS, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal from the examiner’s final rejection of
claims 1, 2, 4 and 5, which are all of the claims remaining in
the application.
Appeal No. 1998-1909
Application 08/437,489
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THE INVENTION
The appellants claim a thermoplastic elastomeric composition
formed by dynamically crosslinking a recited crystalline polymer
of propylene and an amorphous, unsaturated elastomeric olefin
polymer. Claim 1 is illustrative:
1. A thermoplastic elastomeric composition consisting
essentially of:
A) from 10 to 80% by weight of at least one crystalline
polymer of propylene containing from 0.05 to 15% in moles of
ethylenic unsaturation and having an isotactic index greater than
70%, or a mixture of the above polymer with a saturated
thermoplastic olefin polymer in quantities lower than or equal to
80% by weight of (A);
B) from 20 to 90% by weight of an amorphous, unsaturated
elastomeric olefin polymer;
said composition having been dynamically cross-linked with a
cross-linking agent comprising a free radical generator, and
wherein said ethylenic unsaturation is incorporated into said
crystalline polymer by reacting propylene with at least one diene
selected from the group consisting of 1,3-butadiene, isoprene,
1,3-pentadiene, 1,4-hexadiene, dicyclopentadiene and 2-
ethylidene-5-norbornene.
THE REFERENCES
Fischer 3,806,558 Apr. 23, 1974
Cecchin et al. (Cecchin) 0 171 025 Feb. 12, 1986
(European patent application)
THE REJECTION
Claims 1, 2, 4 and 5 stand rejected under 35 U.S.C. § 103 as
being unpatentable over Cecchin in view of Fischer.
Appeal No. 1998-1909
Application 08/437,489
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OPINION
We reverse the aforementioned rejection. We need to address
only claim 1, which is the sole independent claim.
Cecchin discloses a copolymer of propylene and butadiene
having an aggregate 1,3-butadiene content of from 0.1 to 15 wt%
and an isotacticity index higher than 80% (page 3, lines 19-24;
page 4, lines 27-28). This copolymer is comparable to the
appellants’ claim 1 component A. Cecchin does not disclose the
appellants’ claim 1 component B or dynamic crosslinking.
Fischer discloses thermoplastic elastomeric dynamically
partially cured blends of an essentially amorphous monoolefin
copolymer rubber, such as ethylene-propylene copolymer (EPM)
rubber or ethylene-propylene-non-conjugated diene terpolymer
(EPDM) rubber, with a polyolefin resin such as polypropylene or
polyethylene (col. 1, lines 13-20; col. 2, lines 25-28). The
dynamic partial curing takes place in the presence of a curative
such as a peroxide. See id. Thus, Fischer discloses the
appellants’ claim 1 component B and dynamic curing, but does not
disclose component A.
Appeal No. 1998-1909
Application 08/437,489
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The examiner argues that Cecchin suggests that the
appellants’ claim 1 component A can be used as a compatibilizer
for Fischer’s polypropylene and EPDM rubber (answer, page 5).
Cecchin discloses that the copolymer can be used as a
compatibilizer for polypropylene and the other materials
disclosed therein, one class of which is unsaturated polymers
(page 7, lines 18-19; page 9, line 27 - page 10, line 5). The
appellants’ claim 1, however, requires that components A and B
are dynamically crosslinked, and the examiner has not explained
why, even if Cecchin would have fairly suggested, to one of
ordinary skill in the art, using the appellants’ component A as a
compatibilizer for polypropylene and EPDM rubber, the reference
would have fairly suggested, to such a person, crosslinking the
appellants’ component A and EPDM rubber in Fischer’s process.
The examiner argues that it would have been prima facie
obvious to one of ordinary skill in the art to use Fischer’s
components with Cecchin’s copolymer because Cecchin’s disclosure
embraces use of such components (answer, page 5). The disclosure
in Cecchin relied upon by the examiner appears to be the teaching
that the disclosed copolymers can be co-vulcanized with other
unsaturated polymers (page 7, lines 18-19). The examiner,
however, has not established 1) that “other unsaturated polymers”
Appeal No. 1998-1909
Application 08/437,489
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would have fairly suggested the appellants’ component B to one of
ordinary skill in the art, and 2) either that the disclosures of
co-vulcanization and dynamic crosslinking would have fairly
suggested, to one of ordinary skill in the art, dynamically
crosslinking Cecchin’s copolymer with the other saturated
polymers, or that a co-vulcanized material is the same or
substantially the same as one which has been dynamically
crosslinked.
The examiner argues that it would have been prima facie
obvious to one of ordinary skill in the art to substitute
Cecchin’s copolymer for Fischer’s polypropylene because the
higher unsaturated content would cause the compression set of the
product to be enhanced (answer, page 5). The portion of Fischer
relied upon by the examiner in support of this argument (col. 7,
lines 25-31), however, says nothing about the effect of
unsaturated content on compression set.
For the above reasons, we conclude that the examiner has not
carried the burden of establishing a prima facie case of
obviousness of the invention recited in any of the appellants’
claims.
Appeal No. 1998-1909
Application 08/437,489
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DECISION
The rejection of claims 1, 2, 4 and 5 under 35 U.S.C. § 103
over Cecchin in view of Fischer is reversed.
REVERSED
BRADLEY R. GARRIS )
Administrative Patent Judge )
)
)
)
TERRY J. OWENS ) BOARD OF PATENT
Administrative Patent Judge ) APPEALS AND
) INTERFERENCES
)
)
ROMULO H. DELMENDO )
Administrative Patent Judge )
TJO/ki
Appeal No. 1998-1909
Application 08/437,489
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Joanne L. Horn
P. O. Box 15439
Wilmington, DE 19850-5439