Ex Parte Collina et alDownload PDFPatent Trial and Appeal BoardFeb 17, 201612735278 (P.T.A.B. Feb. 17, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 121735,278 06/28/2010 24114 7590 02/19/2016 LyondellBasell Industries Legal IP Department 1221 McKinney Street, Suite 700 LyondellBasell Tower Houston, TX 77010 FIRST NAMED INVENTOR Gianni Collina 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. FE6442 3002 EXAMINER WRIGHT, SONYAN ART UNIT PAPER NUMBER 1672 NOTIFICATION DATE DELIVERY MODE 02/19/2016 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): legal-IP@ lyondellbasell. com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte GIANNI COLLINA and OFELIA FUSCO Appeal2013-006949 Application 12/735,278 Technology Center 1600 Before JEFFREYN. FREDMAN, ULRIKE W. JENKS, and JACQUELINE T. HARLOW, Administrative Patent Judges. FREDMAN, Administrative Patent Judge. DECISION ON APPEAL r-T"I .. • • .. 1 .. ,..... ,_ TT r'1 I'\ l\ -1,..... Al • "1 • "1 • , ims 1s an appear unaer j) u.~.L. s U4 mvo1vmg crnm1s to a prepolymerized catalyst component for the polymerization of olefins. The Examiner rejected the claims as obvious. We have jurisdiction under 35 U.S.C. § 6(b). We reverse. 1 Appellants identify the Real Parties in Interest as Basell Poliolefine Italia S.R.L. (see App. Br. 3). Appeal2013-006949 Application 12/735,278 Statement of the Case Background "The present invention further relates to a gas-phase process for the polymerization of olefins carried out in the presence of a catalyst system comprising said catalyst component" (Spec. 1 ). The Claims Claims 1-13 are on appeal. Independent claim 1 is representative and reads as follows: 1. Prepolymerized catalyst component for the polymerization of olefins CH2=CHR wherein R is hydrogen or a hydrocarbyl radical with 1-12 carbon atoms, having an average particle size equal to, or lower than, 30 µm comprising a solid catalyst component which comprises magnesium halide, a titanium compound having at least a Ti-halogen bond and at least two electron donor compounds one of which being selected from 1,3-diethers and the other one being selected from esters of aromatic mono or dicarboxylic acids, said solid catalyst component being prepolymerized with an olefin, having from 2 to 10 carbon atoms, wherein the amount of the olefin polymer so obtained is equal to, or lower than, 50g per g of solid catalyst component. The Issue The Examiner rejected claims 1-13 under 35 U.S.C. § 103(a) as obvious over Covezzi2 and Morini3 (Ans. 4--5). The Examiner finds that "Covezzi teaches a prepolymer-catalyst system for polymerization of olefins .... The catalyst component has particle dimensions in the range of 30 to 150 µm" (Ans. 5). The Examiner 2 Covezzi et al., EP 517,183 A2, published Dec. 9, 1992. 3 Morini et al., WO 99/57160 Al, published Nov. 11, 1999. 2 Appeal2013-006949 Application 12/735,278 finds that "Covezzi teaches the use of an inside electron donor and an outside electron donor" (Ans. 5). The Examiner acknowledges that "Covezzi does not teach that one electron donor is diether and the other is an ester of an aromatic mono or dicarboxylic acid" (Ans. 5). The Examiner finds that Morini teaches "one electron donor is selected from ethers containing two or more ether groups and the other electron donor is from esters of mono or polycarboxylic acids" (Ans. 5). The Examiner finds it obvious "to combine Morini with Covezzi in order to produce propylene polymers which, for high values of xylene insolubility, show a broad range of isotacticity" (Ans. 5). The issue with respect to this rejection is: Does the evidence of record support the Examiner's position that Covezzi and Morini render obvious a prepolymerized olefin catalyst "having an average particle size equal to, or lower than, 30 µm" as required by claim 1? Findings of Fact 1. Covezzi teaches that it "is known to continuously polymerize one or more olefins, such as ethylene or propylene, in the gas-phase in a reactor with a fluidized or mechanically stirred bed, in the presence of a catalyst" (Covezzi 2, 11. 10-11). 2. Covezzi teaches that the "process of the invention therefore offers the possibility, particularly with respect to the use of super-active catalysts having a specific activity of from 10 to 100 Kg/h of polymer per g of solid catalyst component and particle dimensions in the range of 30 to 150 µm, which catalyst cannot be used in other existing gas-phase processes, of obtaining spheriform polymers" (Covezzi 3, 11. 32-35). 3 Appeal2013-006949 Application 12/735,278 3. Covezzi teaches "prepolymerizing with the above catalyst, propylene or mixtures thereof with ethylene and/or other alpha olefins ... to form a propylene polymer ... in an amount of from 5 g polymer per g of solid catalyst component" (Covezzi 3, 11. 48-51 ). 4. The Specification teaches that "[a]s the average solid catalyst size is generally increased with the prepolymerization, it must be avoided to use a prepolymerization extent such that the average size of 30 µmis exceeded" (Spec. 10, 11. 25-27). 5. The Specification teaches that the solid catalyst "resulted to have an average particle size of 15[.]6 µm" and that after preparation of the pre-polymerize catalyst, the resulting pre-polymerized catalyst "contained 1.3 g of polyethylene per g of catalyst and had an average particle size of 27.7 µm" (Spec. 14, 11. 16-27). Principles of Law "Inherency ... may not be established by probabilities or possibilities. The mere fact that a certain thing may result from a given set of circumstances is not sufficient." MEHL/Biophile Int 'l. Corp. v. Milgraum, 192 F.3d 1362, 1365 (Fed. Cir. 1999). Where, as here, the prior art disclosure suggests the outer limits of the range of suitable values, and that the optimum resides within that range, and where there are indications elsewhere that in fact the optimum should be sought within that range, the determination of optimum values outside that range may not be obvious. In re Sebek, 465 F. 2d 904, 907 (C.C.P.A. 1972); see also In re Patel, 566 F. App'x 1005, 1010 (Fed. Cir. 2014) (unpublished), reh'g denied (Sept. 30, 2014). 4 Appeal2013-006949 Application 12/735,278 Analysis Appellants contend that "the Examiner has cited the catalyst dimension prior to ... the required prepolymerizaton step ... In the repolymerization step, the catalyst is pre-polymerized to an extent of at least 5 g polymer per g of solid catalyst component" (Br. 9). Appellants contend that "even if the average particle size of Covezzi' s catalyst component only increased by the amount corresponding to the 1.3 gig loading of Example 1, the resulting 12 µm increase would then increase Covezzi's pre-polymerized average particle size (lower limit) to 42 µm" (Br. 10). The Examiner responds that However, assuming arguendo that Covezzi does not teach the average particle size of the instant prepolymerized catalyst, particle size alone is not patentable absent a showing of unexpected results. Particle size is not a result effective variable. All particle sizes are expected to perform with the same or similar results in any reaction (Ans. 6). We find that Appellants have the better position. Claim 1 requires that the prepolymerized catalyst have an average particle size equal or lower than 30 µm. Covezzi teaches a catalyst sized in the range of 30 to 150 µm (FF 2) prior to prepolymerization with 5 g of polymer (FF 3). The Specification demonstrates that prepolymerization of catalyst with 1.3 g of polymer increased the catalyst particle size by 12.1 µm (FF 5) and teaches that sizes greater than 30 µmare undesirable (FF 4). Based on these facts, we agree that the evidence suggests that the particle size of Covezzi's prepolymerized catalyst component would 5 Appeal2013-006949 Application 12/735,278 necessarily exceed 30 µm, and therefore not inherently satisfy the average particle size required by claim 1. While we are not certain that Appellants' simple addition of 12.1 µm to the particle size is correct (cf Br. 10), because the radius of a particle increases as a square while volume increases as a cube, the Examiner provides no evidence that selection of a final prepolymerized catalyst particle size of 30 µm or less represents routine optimization or would have been otherwise obvious over the teaching of Covezzi or Morini. Indeed, the Examiner acknowledges that "[p ]article size is not a result effective variable", suggesting that the ordinary artisan would have no reason to optimize this variable. We are therefore constrained to reverse this rejection because there is no reason or evidence establishing any basis for a prepolymerized catalyst component for olefin polymerization having an average particle size equal to or lower than 30 µmas required by claim 1 and the other independent claims. Conclusion of Law The evidence of record does not support the Examiner's position that Covezzi and Morini render obvious a prepolymerized olefin catalyst "having an average particle size equal to, or lower than, 30 µm" as required by claim 1. SUMMARY In summary, we reverse the rejection of claims 1-13 under 35 U.S.C. § 103(a) as obvious over Covezzi and Morini. REVERSED 6 Appeal2013-006949 Application 12/735,278 dm 7 Copy with citationCopy as parenthetical citation