Ex Parte Chen et alDownload PDFPatent Trial and Appeal BoardAug 14, 201815306771 (P.T.A.B. Aug. 14, 2018) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 15/306,771 10/26/2016 Lin Chen 140646 7590 08/16/2018 Cantor Colburn - SABIC General 20 Church Street 22nd Floor Hartford, CT 06103-3207 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. 14PLAS0127-US-PCT 8041 EXAMINER RIETH, STEPHEN EDWARD ART UNIT PAPER NUMBER 1764 NOTIFICATION DATE DELIVERY MODE 08/16/2018 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): USPTOPatentMail@cantorcolburn.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte LIN CHEN, HONGTAO SHI, SHUN WAN, and DAKE SHEN Appeal2018-006658 Application 15/306,771 1 Technology Center 1700 Before ROMULO H. DELMENDO, JEFFREY T. SMITH, and SHELDON M. McGEE, Administrative Patent Judges. DELMENDO, Administrative Patent Judge. DECISION ON APPEAL The Applicant (hereinafter "Appellant")2 appeals under 35 U.S.C. § 134(a) from the Primary Examiner's final decision to reject claims 1-18 and 20. 3 We have jurisdiction under 35 U.S.C. § 6(b). We affirm. 1 The subject application has been designated as "special" under the Patent Prosecution Highway Program and a granted petition pursuant to 37 C.F.R. § l.102(d) (Decision on Petition entered December 29, 2016). 2 The Appellant is the Applicant, SABIC Global Technologies B.V., which, according to the Brief, is the real party in interest (Appeal Brief filed March 2, 2018 (hereinafter "Appeal Br.") 2). 3 Appeal Br. 4--17; Reply Brief filed June 11, 2018 (hereinafter "Reply Br.") 2--6; Final Office Action entered September 11, 2017 (hereinafter "Final Act.") 2-10); Examiner's Answer entered April 11, 2018 (hereinafter "Ans.") 3-29). Appeal2018-006658 Application 15/306, 771 I. BACKGROUND The subject matter on appeal relates to a polycarbonate composition (Specification filed October 26, 2016 (hereinafter "Spec.") ,r,r 1, 2, 6). Representative claim 1 is reproduced from the Claims Appendix to the Appeal Brief (Appeal Br. 18), with key limitations emphasized, as follows: 1. A composition comprising, based on the total weight of polymers and flame retardants, 25 to 75 weight percent of an aromatic polycarbonate; 10 to 40 weight percent of a polycarbonate-polysiloxane block copolymer; 10 to 30 weight percent of a poly( alkylene terephthalate ); 5 to 20 weight percent of a flame retardant comprising 2 to 18 weight percent of an oligomeric or polymeric bis(aryloxy)phosphazene; and 2 to 18 weight percent of an organophosphine oxide, an oligomeric or polymeric aromatic phosphonate, or a combination thereof; and 0.05 to 5 weight percent of a drip retardant. II. REJECTIONS ON APPEAL On appeal, the Examiner maintains several rejections as follows: A. Claims 1-10, 12, 16-18, and 20 under 35 U.S.C. § 103 (AIA) as unpatentable over van der Weele et al. 4 (hereinafter "van der Weele"); B. Claims 13-15 under 35 U.S.C. § 103 as unpatentable over van der W eele in view of Chanda et al. 5 (hereinafter "Chanda"); C. Claims 1-9, 11, 17, and 18 under 35 U.S.C. § 103 as 4 US 2014/0107264 Al, published Apr. 17, 2014. 5 Manas Chanda and Salil K. Roy, "Industrial Polymers, Specialty Polymers, and Their Applications," Plastics Technology Handbook 1-69-1-71 (4th ed. 2007). 2 Appeal2018-006658 Application 15/306, 771 unpatentable over van der W eele in view of N akacho et al. 6 (hereinafter "N akacho "); D. Claims 1-3, 5-9, 11, 13-15, 17, and 18 under 35 U.S.C. § 103 as unpatentable over Eckel et al. 7 (hereinafter "Eckel") in view ofHoover8; E. Claims 1-3, 5-10, 12-15, 17, and 18 under 35 U.S.C. § 103 as unpatentable over Eckel in view of Hoover and Schmidt et al. 9 (hereinafter "Schmidt"); F. Claims 1, 2, 4--10, 12, 16, 17, and20underthejudicially- created doctrine of obviousness-type double patenting as unpatentable over claims 1-13 of US 8,779,040 B2 in view of Sina Ebnesajjad and Richard A. Morgan, Fluoropolymer Additives 134--138 (2012) (hereinafter "Morgan"); and G. Claims 13-15 under the judicially-created doctrine of obviousness-type double patenting as unpatentable over claims 1-13 of US 8,779,040 B2 in view of Morgan and Chanda. 10 (Ans. 3-29; Final Act. 2-10). 6 US 6,596,893 B2, issued July 22, 2003. 7 US 6,613,822 Bl, issued September 2, 2003. 8 EP O 524 731 Al, published January 27, 1993. 9 US 4,332,921, issued June 1, 1982. 10 The Examiner states that a rejection under 35 U.S.C. § 112(b) of claims 12, 16, and 20 and a rejection under 35 U.S.C. § 103 of claims 1-10, 12-18, and 20 as unpatentable over Ding et al. (US 2016/0340507, pub. November 24, 2016) in view of Eckel, both as set forth in the Final Action, have been withdrawn (Ans. 20). 3 Appeal2018-006658 Application 15/306, 771 III. DISCUSSION Rejections F and G. As the Examiner notes (Ans. 20), the Appellant does not provide any arguments against the two double patenting rejections-i.e., Rejections F and G. Therefore, we summarily affirm these rejections. Cf Hyatt v. Dudas, 551 F.3d 1307, 1314 (Fed. Cir. 2008) ("In the event of ... a waiver, the [Board] may affirm the rejection of the group of claims that the examiner rejected on that ground without considering the merits of those rejections."). Rejections A--C (based on van der Weele, Chanda, and Nakacho). The Appellant argues Rejections A through C collectively. Therefore, we address these rejections together, focusing primarily on claim 1, which we select as representative pursuant to 37 C.F.R. § 4I.37(c)(l)(iv). Unless separately argued within the meaning of this rule, all claims stand or fall with representative claim 1. The Examiner finds that van der W eele' s Examples 9 and 12 describe compositions meeting every limitation recited in claim 1, except these compositions include either a phosphonate or phosphazene flame retardant-not both as specified in the claim (Ans. 3--4). Relying on In re Kerkhoven, 626 F.2d 846, 850 (CCPA 1980), however, the Examiner concludes that "it would have been obvious to one of ordinary skill in the art to combine the compositions of Examples 9 and 12, each of which is taught by van der Weele as being suitable for the same purpose, in order to form a third composition to be used for the very same purpose" (Ans. 4). The Appellant's principal argument is that the rejection is flawed because the Inventors have shown more than mere additive effects in combining the two flame retardants (Appeal Br. 9-10). According to the 4 Appeal2018-006658 Application 15/306, 771 Appellant, the experimental data reported in the current Specification for Examples 1 and 2 and Comparative Examples 1-3 demonstrate unexpected results (id. at 8-9). We find no merit in the Appellant's position. As the Examiner points out (Ans. 22), van der Weele teaches the use of flame retardants singly or in admixture (van der Weele ,r,r 6-14, 27 ("The use of the terms 'a' and 'an' and 'the' and similar referents in the context of describing the invention ... are to be construed to cover both the singular and the plural .... ")). Given that van der W eele teaches either phosphonates or phosphazenes are suitable flame retardants (Tables 1 and 7 A), a person having ordinary skill in the art would have found it obvious to use a mixture of the two types of flame retardants with a reasonable expectation of success in obtaining their cumulative or additive effects. Kerkhoven, 626 F.2d at 850. Examples 1 and 2 and Comparative Examples 1-3 and 6 in the current Specification are insufficient to rebut the Examiner's prima facie case of obviousness for the reasons provided in the Answer (Ans. 20-22), which we adopt as our own. In this regard, Nakacho plainly teaches that the use of a crosslinked or non-crosslinked phosphazene in combination a halogen-free organic phosphorus compound provides a synergistic flame-retardant effect in a thermoplastic resin composition that may include a polycarbonate (Nakacho col. 5, 11. 42--48; col. 13, 11. 16-21). Therefore, the Appellant's allegation of unexpected results is directly refuted by documentary evidence in the form ofNakacho. Although the Appellant attempts to minimize N akacho' s teachings by arguing that the reference does not teach a polycarbonate-polysiloxane block copolymer as specified in claim 1 (Appeal Br. 11 ), that component is disclosed in van der W eele. In any event, 5 Appeal2018-006658 Application 15/306, 771 Nakacho's teachings concerning synergy apply to a wide variety of resin compositions ( col. 11, 11. 18---61 ). Moreover, the significance in the differences in results shown for the Specification examples is not explained fully, and, therefore, the proffered evidence is unpersuasive for that reason alone. In re Klosak, 455 F.2d 1077, 1080 (CCPA 1972) ("[I]t is not enough to show that results are obtained which differ from those obtained in the prior art: that difference must be shown to be an unexpected difference."). With respect to claim 13, which specifies the additional presence of an impact modifier in specified amounts, the Appellant argues that van der Weele does not provide any indication that reducing notch sensitivity and/or improving environmental stress cracking are recognized problems that would have prompted a person having ordinary skill in the art to consider the solution disclosed in Chanda (Appeal Br. 13). Chanda, however, teaches that polycarbonates modified with ABS (acrylonitrile and styrene grafted onto polybutadiene) resins and MBS (methyl methacrylate and styrene grafted onto polybutadiene) resins, which are disclosed as suitable impact modifiers in the subject application (Appeal Br. 20 (claim 14)), improve resistance to environmental stress cracking while retaining high impact strength (Chanda 1-71 ). Because van der Weele teaches polycarbonate- containing products that would benefit from improved environmental stress cracking and high impact strength ( van der W eele ,r,r 4--5), a person having ordinary skill in the art would have been prompted to combine the references in the manner claimed by the Inventors. For these reasons and those well-stated in the Answer, we sustain Rejections A---C. 6 Appeal2018-006658 Application 15/306, 771 Rejections D and E. The Examiner finds that Eckel's Example 3 describes a composition that meets most of the limitations recited in claim 1, but acknowledges the exemplified composition does not include a poly(alkylene terephthalate), a phosphonate or organophosphine oxide flame retardant, and a polycarbonate-polysiloxane block copolymer as required by the claim (Ans. 10-11). The Examiner finds further, however, that Eckel's disclosure as a whole would have suggested the further inclusion of a poly(alkylene terephthalate) and a phosphorus compound flame retardant (id. at 11 ). Regarding the polycarbonate-polysiloxane block copolymer, the Examiner finds that Hoover teaches thermoplastic blends of such a block copolymer with polycarbonate provides various advantages in terms of processing, low temperature impact strength, and flammability (id.). Therefore, the Examiner concludes that it would have been obvious to a person having ordinary skill in the art to combine Eckel and Hoover in the manner claimed by the Inventors (id.). The Appellant argues that "there is no motivation" to combine Eckel and Hoover in the manner claimed because "there is no teaching" that Hoover's polycarbonate-polysiloxane block copolymer is suitable in Eckel's composition that includes flame retardants (Appeal Br. 14). The Appellant's argument is unpersuasive to reveal any reversible error in the rejection because the Appellant fails to provide a technical explanation why the presence of flame retardants would negate Hoover's teachings regarding the polycarbonate-polysiloxane block copolymer. Indeed, Hoover, like Eckel, teaches flame retardants (Hoover 4, 11. 50-54). Lastly, the Appellant appears to be arguing that the Examiner's rejection is based on an impossible composition in which the amounts for 7 Appeal2018-006658 Application 15/306, 771 the components do not add up to 100% (Appeal Br. 16). We refer to the Examiner's rebuttal as set forth in the Answer (Ans. 28-29), which we find to be adequate. For these reasons and those well-stated in the Answer, we uphold Rejections D and E. IV. SUMMARY Rejections A through G are sustained. Therefore, the Examiner's final decision to reject claims 1-18 and 20 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). AFFIRMED 8 Copy with citationCopy as parenthetical citation