Ex Parte Corley et al

Patent Trial and Appeal Board

Jun 8, 2017

13160964 (P.T.A.B. Jun. 8, 2017)

United States Patent and Trademark Office
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.
13/160,964 06/15/2011 Larry Steven Corley 10-09-EP01.US 4412
759033249
Hexion Inc.
12650 Directors Drive, Suite 100
Stafford, TX 77477
06/12/2017 EXAMINER
RODD, CHRISTOPHER M
ART UNIT PAPER NUMBER
1766
NOTIFICATION DATE DELIVERY MODE
06/12/2017 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):
tammy.hodges @ hexion.com
lisa.jones @ hexion.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte LARRY STEVEN CORLEY,
ROBERT DALE FARRIS, and CARLTON E. ASH
Appeal 2016-002927
Application 13/160,9641
Technology Center 1700
Before LINDA M. GAUDETTE, DONNA M. PRAISS, and
N. WHITNEY WILSON, Administrative Patent Judges.
PRAISS, Administrative Patent Judge.
DECISION ON APPEAL2
This is an appeal under 35U.S.C. § 134 from the final rejection of
claims 1—5, 7—10, and 12—22. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 Appellants identify the real party in interest as Hexion Inc. App. Br. 3
2 This decision makes reference to the Specification filed June 15, 2011
(“Spec.”), the Non-Final Office Action dated May 9, 2013 (“Non-Final
Act.”), the Final Office Action dated Jan. 15, 2015 (“Final Act.”), the
Appeal Brief filed Aug. 12, 2015 (“App. Br.”), the Examiner’s Answer
dated Nov. 12, 2015 (“Ans.”), and the Reply Brief filed Jan. 11, 2016
(“Reply Br.”).
Appeal 2016-002927
Application 13/160,964
The subject matter of this appeal “relates to curing compositions for
epoxy resin systems.” Spec. 2. Claim 1 is representative of the issues in
this appeal:
1. A composition comprising an epoxy resin system, the
epoxy resin system comprising a reaction product of:
an epoxy resin component; and
a curing agent component comprising:
a first amine compound represented by the formula:
R1
\
N—R2
/
R3 ,
wherein R1 and R2 each comprise an organic functional
group having from 1-6 carbon atoms, and R3 comprises an alkyl
group, having a backbone of 8-18 carbon atoms selected from
the group consisting of a linear alkyl group, a branched alkyl
group, a cyclic alkyl group, and combinations thereof; and
a second amine compound having one or more primary
amine groups, one or more secondary amine groups, or
combinations thereof, wherein the stoichiometric ratio of the -
NH bonds of the second amine compound to the epoxy groups of
the epoxy resin component is from about 1:20 to about 21:20 and
the molar ratio of the second amine compound to the first amine
compound is from about 0.01:1 to about 100:1.
App. Br. 84 (Claims Appendix).
The Examiner maintains, and Appellants appeal, the following
rejections under 35 U.S.C. § 103(a):3
3 Claims 6 and 11 stand objected to as being dependent upon a rejected base
claim. Final Act. 3.
2
Appeal 2016-002927
Application 13/160,964
1. Claims 1—5, 7—10, 12, 14—19, and 22 as unpatentable over Burton4
in view of Ushakov5;
2. Claims 1 and 13 as unpatentable over Burton, Ushakov, and
McWhorter;6 and
3. Claims 1 and 20-22 as unpatentable over Burton, Ushakov, and
Griffm.7
Ans. 2; App. Br. 9. Appellants argue the subject matter of independent
claim 1, and rely on those same arguments for dependent claims 2—5, 7—10,
and 12—22. App. Br. 10—82. In accordance with 37 C.F.R.
§ 41.37(c)(l)(iv), claims 2—5, 7—10, and 12—22 will stand or fall together
with claim 1.
ANALYSIS
The dispositive issues for this appeal are (1) whether the Examiner
erred in combining the disclosures of Burton and Ushakov and (2) whether
the Examiner erred in finding that Appellants’ evidence of secondary
considerations is insufficient to establish unexpected results. App. Br. 10-
82; Ans. 3 42; Final Act. 2—14; Non-Final Act. 21—36.
4 Burton et al., Epoxy Formulations Using Jeffamine Poly ether amines,
Huntsman Technical Brochure, published Apr. 27, 2005 (“Burton”).
5 Ushakov et al., RU 2189997, published Sept. 27, 2002 (“Ushakov”)
(citations herein are to the translation accompanying the Examiner’s Answer
dated Nov. 12, 2015 and the abstract accompanying the Examiner’s Non-
Final Rejection dated May 9, 2013).
6 McWhorter et al., US 4,051,195, issued Sept. 27, 1977 (“McWhorter”).
7 Griffm, WindPACT Turbine Design Scaling Studies Technical Area 1-
Composite Blades for 80- to 120- Meter Rotor, NREL Subcontractor Report
NREL/SR-500-29492, published Apr. 2001 (“Griffm”).
3
Appeal 2016-002927
Application 13/160,964
After review of the arguments and evidence presented by both
Appellants and the Examiner, we affirm the stated rejections.
Rejection 1
It is the Examiner’s position that the combination of Burton’s
epoxy/diamine formulation and Ushakov’s tertiary amine provides the
advantages of providing additional antifoaming properties to the epoxy resin
system and further minimizing bubble formation and discloses the subject
matter of claim 1 for the reasons stated on pages 21—26 of the Non-Final
Action, pages 4—13 of the Final Action, and pages 3—7 of the Answer. The
Examiner also finds that Appellants’ evidence of secondary considerations
fails to show unexpected results and also fails to be commensurate in scope
with the claims for the reasons stated on pages 29—33 of the Answer.
Regarding rejection 1, Appellants argue that the Examiner erred in
“extrapolat[ing] that ‘minimum bubble retention’, which is not defined in the
[Burton] reference, means that there is a foaming problem in the Jeffamine-
epoxy reaction of Burton et al. that needs to be solved.” App. Br. 10.
According to Appellants, foaming is not a problem in Burton because (1) the
need for defoamers is not mentioned in the reference even though the
Huntsman Corporation, which produced the Burton reference, sells
defoamers, (2) there is no chemical source for foaming in the Jeffamine-
epoxy reaction, and (3) retention means the act of keeping or air entrainment
rather than the creation of bubbles. Id. at 10—11, 14—15. Appellants further
argue that Ushakov discloses a tertiary amine curing agent for an anhydride
cure and that no motivation exists “to use [Ushakov’s] anhydride cure
catalyst as a ‘defoamer’ in a non-anhydride curing process, especially one
that has no foaming issues such as in Burton et al.” Id. at 11. According to
4
Appeal 2016-002927
Application 13/160,964
Appellants, Ushakov’s anhydride cure shows a different reaction from
Burton’s polyetheramine (Jeffamine) epoxy reaction and neither shows
foaming. Id. at 28—29. Regarding Burton’s disclosure of “other amines,”
Appellants contend that “the polyetheramine (Jeffamine) compounds of
Burton et al. and the teriary amine hardener catalyst of Ushakov et al. do not
have similar structures, do not have similar reaction mechanisms, and thus,
would not provide predictable or similar results to one another.” Id. at 26.
Appellants further contend that Burton provides no examples of its “other
amines” (id.) and that such a basis for combining Ushakov’s tertiary amine
is “so overbroad that the only way for the criteria not to be met is to add an
amine that prevents all reaction between the epoxy and the polyetheramine
(Jeffamine) compound, which, to one skilled in the art, is impossible to
conceive” (id. at 25). Nevertheless, Appellants also argue that the
Examiner’s combination lacks a reasonable expectation of success. Id. at
30-32.
Appellants also assert that the cited references “would not predict the
unexpected results of the properties of claims 14, 15, 18, and 19.” Id. at 12.
Appellants contend that the Examiner erred in finding their unexpected and
unpredictable results evidence in Tables 1—3 A of the Specification
(compared to a control mixture #1 that Appellants assert is similar to
Burton) insufficient to overcome the rejection as not commensurate with the
scope of the claims. Id. at 17, 21—24. According to Appellants,
nonobviousness of a broader claimed range can be supported by evidence of
testing a narrower range in this case because “one skilled in the art
reviewing the description of the patent application would be able to
determine a trend on the tertiary amine structures and results and reasonably
5
Appeal 2016-002927
Application 13/160,964
extend the probative value of the exemplified data to the scope of the recited
claims.” Id. at 22—23. Regarding the Examiner’s finding that the results
would have been expected due to the presence of more amine groups to react
with the epoxy groups of the resin, Appellants assert that the Examiner’s
calculations are incorrect. Id. at 24.
Appellants also request that “deference be provided the results of the
Russian prosecution of the same or similar claims regarding a Russian
language reference.” Id. at 18.
The Examiner responds that Appellants’ arguments challenging the
combination of art are unpersuasive because they limit Ushakov to only
teaching the tertiary amine as an anhydride curing catalyst when Ushakov
also teaches its function as a defoaming agent in epoxy cure systems. Ans.
19, 27—28. The Examiner includes with the Answer a human translation of
Ushakov, which discloses on page 4 an epoxy resin containing two or more
epoxide groups, an anhydride hardener, and a hardener catalyst, the tertiary
amine of Appellants’ claim 1, and further provides:
The presence of long hydrocarbon radicals C8-C28 imparts to the
tertiary amines properties of surface active substances, and in
concentrations that exceed the critical concentration of micella
formation (KKM), also properties of “micellar forming”
catalysts, and imparts to them additional functions of air escapes
(foam suppressors) and impact strength modifiers and electrical
properties.
Ans. 20 (quoting Ushakov 5—6). The Examiner finds that both Burton and
Ushakov are directed to the field of epoxy resins cured by amines where the
formation of voids in a cured resin system leads to stress concentrators
which could negatively impact the final mechanical properties of a structural
reinforced composite disclosed by Burton. Id. at 21. The Examiner finds
6
Appeal 2016-002927
Application 13/160,964
that it would have been obvious to a skilled artisan to combine Burton’s
disclosure of Jeffamine® as ideally suited for composites (Burton 37, para.
3) and providing minimum bubble retention with Ushakov’s disclosure that
the addition of tertiary amine to the epoxy system provides for antifoaming
and modifies impact toughness and electrical properties of the epoxy system
(Ushakov 5—6) “in order to further minimize the possibility of bubbling in
the composites of Burton.” Id. The Examiner also finds that the
combination would have had a reasonable expectation of success because
“adding more amines to the curing agent of Burton would not be considered
problematic because Burton discloses that blending other amines with
Jeffamine® can be done.” Id. at 22 (citing Burton 37, para. 4, line 7).
The Examiner responds to Appellants’ argument challenging the
expectation of success stating that “[tjhere is no evidence of record that the
dimethyldodecylamine would lose its defoaming capabilities in the
combination” and that Appellants admit that one of ordinary skill in the art
would have to add a compound to Burton that they know would affect
bubbles in Burton’s composite for the combination to be unsuccessful,
which is something a skilled artisan would not do. Id. at 22—23, 33—34, 39.
The Examiner also responds that the reasonable expectation of success need
not be with respect to the defoaming capabilities of dimethyldodecylamine,
but, rather, a successfully cured epoxy composition. Id. at 23. The
Examiner further responds that no declaration evidence has been submitted
by Appellants to show that Burton has a limitation on its disclosure of “other
amines,” bubbles are an issue with the epoxy formulations in Burton, and
that Appellants merely provide attorney speculation as to Huntsman
Corporation’s mindset if it meant anti-foaming when discussing bubbles in
7
Appeal 2016-002927
Application 13/160,964
the Burton references, which is entitled to very little weight. Id. at 24—27,
34—35, 37—38 (“bubbles are bubbles and suggest foaming from any source”
whether carbon dioxide or something else). The Examiner further states that
there is no evidence of record that any difference between Burton and
Ushakov’s curing reaction mechanisms would lead one of ordinary skill in
the art to reasonably conclude the combination would be unpredictable. Id.
at 37.
Regarding the showing of unexpected results, the Examiner responds
that the claims are much broader than the showing, specifically the data is
only for polyetheramine Jeffamine D-230, which is an amine with a specific
structure and two primary amine groups, in combination with another amine
not required by claim 1, isophorone diamine (IPDA), and the tertiary amines
dodecyldimethylamine (DDMA), decyldimethylamine (DMA), and
dimethylaminoethoxy ethanol (DMAEE), which are not commensurate in
scope with the tertiary amine of claim 1 because they all have methyl groups
for R1 and R2. Id. at 29—30. The Examiner further responds that “there [is]
no evidence that a skilled artisan would expect the same unexpected results
for the entire range of tertiary amines, molar ratios, second amines and
compounds taught in dependent claims” such as claim 13’s which recites a
polyacrylate or polymethyacrylate ester. Ans. 30—31. The Examiner also
finds that the showing of unexpected results is also not truly unexpected
with respect to the rate of Tg increase because systems with more curing
agent present would be expected to have cured more and samples with more
curing amine functionalities participating in the curing reaction would
produce more heat per unit time. Id. at 31—32. The Examiner points out that
regardless of whether there would be five curing functionalities instead of
8
Appeal 2016-002927
Application 13/160,964
the six calculated by the Examiner in Appellants’ system, the number of
curing functionalities in Appellants’ claimed diamine and tertiary amine
system is less than that in Burton’s system and, therefore, would be expected
to evolve less heat, leading to a reduced maximum exotherm temperature.
Id. at 32—33.
Finally, the Examiner explains that proceedings of a foreign patent
office have no influence on proceedings before the USPTO. Id. at 27.
In the Reply Brief, Appellants repeat their arguments that Burton does
not mention a defoamer and Ushakov discloses an anhydride-epoxy cure
catalyst asserted to be a defoamer. Reply Br. 2. Appellants also assert that
Burton’s purpose for blending amines with polyetheramines (Jeffamines) is
to increase glass transition temperature or to accelerate cure, and no
examples in Burton suggest including the specific tertiary amine anhydride
cure catalysts from Ushakov. Id. at 3. Regarding a reasonable expectation
of success, Appellants contend that the Examiner does not assert that
Ushakov’s tertiary amine would be a successful defoamer in Burton and that
the Jeffamine of Burton is already a curing agent so a successful cure does
not even require the presence of Ushakov’s anhydride cure catalyst. Id. at 4.
Appellants argue that a successful cure requires the exothermicity of the
reaction and the glass transition temperature/time curing rates of the
dependent claims and the cited references are silent as to these. Id. at 5.
Appellants also restate that responses to the Examiner’s rejections have been
made with the help of the inventors. Id. at 6.
Appellants’ arguments are not persuasive of error for the reasons
stated by the Examiner in the Non-Final Action, the Final Action, and the
Answer. We add the following primarily for emphasis.
9
Appeal 2016-002927
Application 13/160,964
First, Appellants’ argument that the Examiner erred in finding that
Burton broadly teaches minimizing bubbles in an epoxy resin and also
discloses composites of Jeffamine amines with other amines is not
persuasive because these factual findings are supported by the record.
Burton 37. Appellants’ argument that the Burton reference is the product of
a company that provides defoamers and, therefore, the absence of a specific
disclosure of including in epoxy resin composites an amine that is a
defoamer suggests that a defoamer should not be added to a composite that
includes a Jeffamine amine, is unpersuasive because “[a] person of ordinary
skill is also a person of ordinary creativity, not an automaton.” KSR Int 7
Co. v. Teleflex Inc., 550 US 398, 421 (2007). Appellants’ argument that
Burton does not suggest including defoamers because gases are not
generated by Burton’s epoxy resin system is also unpersuasive of error
because Appellants presume that the other amines disclosed by Burton
would not generate such gases. Moreover, Appellants do not dispute the
Examiner’s finding that Burton does not select carbon dioxide specifically
from entering the system via bubbles (Ans. 37). Therefore, Appellants’
argument that Burton does not disclose or suggest minimizing bubbles
regardless of their source is not supported by the record.
Second, Appellants’ argument that Ushakov does not provide a
motivation to use its tertiary amine as a defoamer in Burton’s process is not
persuasive of error because it does not address the Examiner’s grounds for
rejection over the combination of Burton and Ushakov. The Examiner relies
on Burton’s disclosure of minimizing bubbles in the epoxy resin system as
support for the articulated reason to combine the disclosures of Burton and
Ushakov. Final Act. 4—5; Ans. 21. Moreover, Ushakov is cited by the
10
Appeal 2016-002927
Application 13/160,964
Examiner for disclosing that its dimethyldodecylamine has the function of
an anti-foaming agent and is not limited to teaching that it also functions as
an amine curing catalyst. Final Act. 5—6; Ans. 19. Appellants do not
dispute that Ushakov discloses multiple functions for its tertiary amine,
including as a defoamer. Nor do Appellants provide evidence that the
defoaming properties of Ushakov’s tertiary amine would be negated in
Burton’s composite system (Ans. 22—23). Therefore, the Examiner did not
err in finding that Ushakov discloses that the tertiary amine
dimethyldodecylamine functions as a defoamer or “foam suppressor”.
Ushakov 5—6.
Third, Appellants’ argument that the Examiner erred in finding a
reasonable expectation of success from the combination of Burton’s teaching
of polyetheramine (Jeffamine) in an epoxy resin composite that includes
“other amines” with Ushakov’s teaching of the tertiary amine
dimethyldodecylamine is not persuasive because Appellants concede that a
skilled artisan would have had to know of an amine that would not be
successful for the combination to be unsuccessful. App. Br. 25; Reply Br. 4.
Moreover, the Examiner’s finding that Burton discloses combining
polyetheramine with other amines in a composite epoxy resin system is not
disputed by Appellants and supported by the record. Burton 37.
Fourth, Appellants’ argument that the Examiner erred in not giving
deference to the proceeding of Appellants’ corresponding Russian patent
application on the basis that one of the prior art references cited by the
Examiner required translation from the Russian language is unpersuasive for
many reasons. Appellants provide no authority for their proposition nor do
Appellants dispute the accuracy of the human translation provided by the
11
Appeal 2016-002927
Application 13/160,964
Examiner. The Examiner’s finding that Ushakov discloses
dimethyldodecylamine and its functions is explicitly disclosed in Ushakov
and, therefore, fully supported by the record. Ushakov 5—6 (“the presence of
long hydrocarbon radicals C8—C20 imparts to the tertiary amines properties
of. . . air escapes (foam suppressors) and impact strength modifiers and
electrical properties”). The logic of Appellants’ argument is also
undermined by the fact that the Burton reference does not require
translation. Suffice it to say that patentability of Appellants’ application that
is the subject of this appeal is governed by 35 U.S.C. § 101 et seq.
Fifth, we are not persuaded by Appellants’ argument that Tables 1—3 A
of the Specification evidence unexpected results. Appellants do not direct us
to any evidence to rebut the Examiner’s finding that the unexpected results
relied on by Appellants would have been expected due to the additional
amine groups (Ans. 32—33). Based on either the Examiner’s calculations or
Appellants’ calculations, the preponderance of the evidence in the cited
record on appeal supports the Examiner’s finding that “the more curing
amine functionalities participating in the curing reaction the more heat
would be produced per unit time” and accounts for the less heat evolved in
Appellants’ system compared to Burton’s as well as a reduced maximum
exotherm temperature (id.). Therefore, in view of the record before us, the
examples in the Specification having less amine functionalities than the
comparative prior art would be expected to have the reported results.
Sixth, Appellants’ assertion of surprising and unexpected results is
unpersuasive because Appellants merely direct us to comparative examples
in the Specification that allegedly show less favorable performance
compared to other examples. App. Br. 17. Such evidence is insufficient to
12
Appeal 2016-002927
Application 13/160,964
establish surprising or unexpected results commensurate with the scope of
claim 1, which includes multiple groups for both R1 and R2, as well as
molar ratios and second amines. Appellants do not explain adequately how
the cited examples from the Specification that use methyl groups for R1 and
R2 support the asserted unexpected results for the full scope of the claimed
R1 and R2 groups. Appellants’ argument that their limited data adequately
supports the broader scope of the claims (App. Br. 22—23) is not supported
by any evidence that a skilled artisan would be able to determine a trend
extending beyond the methyl group substitutions for R1 and R2 on the
claimed tertiary amine, let alone the entire range of molar ratios, second
amines, and other amines recited in the dependent claims (Ans. 30—31).
Therefore, we are not persuaded that the Examiner erred in finding
Appellants’ evidence of surprising and unexpected results is sufficient to
overcome the obviousness rejection over the combination of Burton and
Ushakov.
It is well settled that Appellants have the burden of showing
unexpected results. In re Freeman, 474 F.2d 1318, 1324 (CCPA 1973); In
reKlosak, 455 F.2d 1077, 1080 (CCPA 1972). Such burden requires
Appellants to proffer factual evidence that actually shows unexpected results
relative to the closest prior art, see In re Baxter Travenol Labs., 952 F.2d
388, 392 (Fed. Cir. 1991), and that is reasonably commensurate in scope
with the protection sought by the claims on appeal, In re Grasselli, 713 F.2d
731, 743 (Fed. Cir. 1983); In re Clemens, 622 F.2d 1029, 1035 (CCPA
1980); In re Hyson, 453 F.2d 764, 786 (CCPA 1972). The extent of the
showing relied upon by Appellants must reasonably support the entire scope
13
Appeal 2016-002927
Application 13/160,964
of the claims at issue. See In re Harris, 409 F.3d 1339, 1344 (Fed. Cir.
2005).
In sum, Appellants’ arguments are not persuasive of reversible error
in the Examiner’s rejection of claims 1—5, 7—10, 12, 14—19, and 22 over the
combination of Burton and Ushakov.
Rejection 2
Regarding rejection 2, Appellants repeat the arguments made with
respect to rejection 1, assert that McWhorter does not cure the deficiencies
of Burton and Ushakov, and contend that there is no reasonable expectation
of success because the acrylate groups of McWhorter are highly reactive
with primary and secondary amines of Burton. App. Br. 33—57.
The Examiner responds that Appellants have not provided any
evidence or arguments to rebut the reason to combine McWhorter with
Burton and Ushakov and that the tertiary amine of Ushakov would be
reasonably expected to maintain its functions such as anti-foaming because
the components of McWhorter and Burton would be reasonably expected to
react with each other and not the tertiary amine of Ushakov. Ans. 41.
Appellants’ arguments are not persuasive of error for the reasons
stated by the Examiner in the Non-Final Action, the Final Action, and the
Answer. We add the following primarily for emphasis.
Appellants’ arguments regarding the Examiner’s combination of the
teachings of Burton and Ushakov and that McWhorter does not cure the
deficiencies of Burton and Ushakov (App. Br. 33—57) are not persuasive for
the reasons discussed above. Appellants’ argument that the combination of
Burton and Ushakov with McWhorter would not have predictable results
because McWhorter discloses that its double bonds of the acrylate groups
14
Appeal 2016-002927
Application 13/160,964
are highly reactive (id. at 56) is not persuasive of error because Appellants
do not dispute the Examiner’s finding that the components of McWhorter
and Burton would be reasonably expected to react with each other and not
the tertiary amine of Ushakov (Ans. 41). Appellants’ argument that there is
no suggestion or motivation to substitute McWhorter’s epoxide resin
composition for the epoxy resin of Burton (App. Br. 56) is not persuasive
because it is conclusory. In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011).
Moreover, Appellants do not rebut the Examiner’s finding that the blend of
epoxy resin and polyacrylate or polymethacrylate ester taught by McWhorter
has “the advantage of providing low viscosity compositions with excellent
wetting characteristics with less ‘sweatout’ than similar coating that do not
contain the polyacrylate ester modification.” Ans. 14 (citing McWhorter
2:8-12).
Appellants’ arguments are not persuasive of reversible error in the
Examiner’s rejection of claims 1 and 13 over the combination of Burton and
Ushakov in further view of McWhorter.
Rejection 3
Regarding rejection 3, Appellants repeat the arguments made with
respect to rejection 1, assert that Griffin does not cure the deficiencies of
Burton and Ushakov, and contend that Griffin does not teach or suggest the
composite prepared using an epoxy resin composition of claim 1 as required
by claim 17 or further including a reinforcing fiber substrate as required by
claims 20 and 21. App. Br. 58—82.
The Examiner responds that Griffin teaches E-Glass/epoxy laminates
and Appellants’ arguments challenging the substitution of the epoxy of
15
Appeal 2016-002927
Application 13/160,964
Burton as modified by Ushakov are unpersuasive as all of the other
references use epoxy. Ans. 42.
Appellants’ arguments are not persuasive of error for the reasons
stated by the Examiner in the Non-Final Action, the Final Action, and the
Answer. We add the following primarily for emphasis.
Appellants’ arguments regarding the Examiner’s combination of the
teachings of Burton and Ushakov and that Griffin does not cure the
deficiencies of Burton and Ushakov (App. Br. 58—82) are not persuasive for
the reasons discussed above. Appellants’ argument that the combination of
Burton and Ushakov with Griffin would not have predictable results (id. at
81) is not persuasive of error because Appellants do not dispute the
Examiner’s finding that Griffin itself discloses that E-Glass/epoxy laminates
form windmill blades and therefore would be reasonably expected to
function as a windmill blade with the epoxy resin composite of Burton and
Ushakov (Ans. 42). Appellants’ argument that there is no suggestion or
motivation to modify the epoxide resin compositions of Burton and Ushakov
to form the windmill blades of Griffin (App. Br. 81) is not persuasive
because it is conclusory. In re Lovin, 652 F.3d at 1357. Moreover
Appellants do not rebut the Examiner’s finding that Griffin’s E-Glass/epoxy
laminate for forming windmill blades modified with the epoxy system taught
by Burton and Ushakov would have the advantage of modified impact
toughness due to the inclusion of Ushakov’s tertiary amine. Non-final Act.
36.
Appellants’ arguments are not persuasive of reversible error in the
Examiner’s rejection of claims 1 and 20—22 over the combination of Burton
and Ushakov in further view of Griffin.
16
Appeal 2016-002927
Application 13/160,964
DECISION
For the foregoing reasons, we affirm the Examiner’s rejection of
claims 1—5, 7—10, and 12—22 under 35 U.S.C. § 103(a).
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)(v).
AFFIRMED
17