Ex Parte Daga et alDownload PDFPatent Trial and Appeal BoardMay 8, 201814026651 (P.T.A.B. May. 8, 2018) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 14/026,651 09/13/2013 52674 7590 Baker & Hostetler LLP 1170 Peachtree Street NE Suite 2400 Atlanta, GA 30309-7676 05/10/2018 FIRST NAMED INVENTOR Vikram K. Daga 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. 092474.023060 (l 1PLAS021 l CONFIRMATION NO. 1216 EXAMINER JOHNSTON, BRIEANN R ART UNIT PAPER NUMBER 1768 NOTIFICATION DATE DELIVERY MODE 05/10/2018 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): eofficemonitor@bakerlaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte VIKRAM K. DAGA and JAMES L. DERUDDER Appeal2016-007733 Application 14/026,651 Technology Center 1700 Heard: April 19, 2018 1 Before MARK NAGUMO, JAMES C. HOUSEL, and CHRISTOPHER C. KENNEDY, Administrative Patent Judges. HOUSEL, Administrative Patent Judge. DECISION ON APPEAL 2 Pursuant to 35 U.S.C. § 134(a), Appellant3 appeals from the Examiner's decision rejecting claims 1-19, 23-39, 42--47, 49, 50, 52-55, 1 A copy of the oral hearing transcript has been made of record. 2 Our decision refers to the Specification (Spec.) filed September 13, 2013, the Examiner's Final Office Action (Final Act.) dated April 28, 2015, Appellants' Appeal Brief (Appeal Br.) filed January 28, 2016, the Examiner's Answer (Ans.) dated June 20, 2016, and Appellants' Reply Brief (Reply Br.) filed August 17, 2016. 3 Appellant is the Applicant, SABIC Global Technologies B.V., which, according to the Appeal Brief, is the real party in interest (Appeal Br. 1 ). Appeal 2016-007733 Application 14/026,651 58---64, and 66-75. We have jurisdiction over the appeal under 35 U.S.C. § 6(b). We AFFIRM. STATEMENT OF THE CASE The invention relates to "polycarbonate compositions comprising mineral fillers which also [] have increased flow and impact properties" (Spec. i-f 5). These compositions include "one or more polycarbonate polymers, an impact modifier, a mineral filler, and a poly(alkylene oxide) additive" (id.). According to Appellant, such compositions provide molded parts that, at 60°, exhibit a greater gloss as compared to molded parts having the same thermoplastic, the same wt.% of the same impact modifier, the same wt.% of the same mineral filler, but in the absence of the poly( alkylene oxide) additive (id. i-f 198). Claim 1, reproduced below from the Claims Appendix to the Appeal Brief, is illustrative of the subject matter on appeal. 1. A thermoplastic composition comprising a. a thermoplastic polymer component comprising at least one polycarbonate; b. an impact modifier component; c. from about 8 wt% to about 30 wt% of a mineral filler component selected from the group consisting of talc, clay, and wollastonite, wherein the combined weight percent value of all components does not exceed 100 wt%; d. a poly( alkylene oxide) additive component comprising poly( ethylene oxide), or poly(propylene oxide), or a combination thereof; and e. a styrene acrylonitrile copolymer component, wherein when measured at an angle of 60°, a molded article formed from the thermoplastic composition exhibits a greater gloss as compared to a molded article formed from an identical 2 Appeal 2016-007733 Application 14/026,651 reference composition comprising the same thermoplastic polymer component, the same weight percentage of the same impact modifier component, the same weight percentage of the same mineral filler component, and the same weight percentage of the same styrene acrylonitrile copolymer component, but in the absence of the poly(alkylene oxide) additive component. REJECTIONS The Examiner maintains, and Appellants request our review of, the following grounds of rejection under 35 U.S.C. § 103: 1. Claims 1-19, 23, 24, 26-39, 42--47, 49, 50, 52-55, 58---64, 66- 69, and 71-75 as unpatentable over DeRudder,4 as evidenced by Varshney5 and He; 6 and 2. Claims 25 and 70 as unpatentable over DeRudder, as evidenced by V arshney and He, and further in view of N odera. 7 ANALYSIS Appellant provides separate arguments for claim 1, claim 52, claims 11-14 and 67 as a group, claims 45 and 62 as a group, and claims 46 and 63 as a group, but does not separately argue Rejection 2 above. Therefore, we select claims 1, 11, 45, 46, and 52 to address Appellant's arguments. Claims 1-10, 15-19, 23-39, 42--44, 47, 49, 50, 53-55, 58---61, 64, 66, and 68-75 stand or fall with claim 1, claims 12-14 and 67 stand or fall with claim 11, claim 62 stands or falls with claim 45, and claim 63 stands or falls with claim 46. 37 C.F.R. § 41.37(c)(l)(iv) (2015). 4 US 2009/0036593 Al, published February 5, 2009. 5 US 2008/0311207 Al, published December 18, 2008. 6 US 2014/0275372 Al, published September 18, 2014. 7 US 6,331,584 Bl, issued December 18, 2001. 3 Appeal 2016-007733 Application 14/026,651 Claim 1 The Examiner finds DeRudder teaches compositions comprising at least one polycarbonate, an impact modifier component, poly(alkylene oxide) component including polyethylene oxide (PEO) and polypropylene oxide (PPO), and a styrene acrylonitrile (SAN) copolymer component, wherein the composition may include up to 150 parts of a filler, such as talc or wollastonite (Ans. 2-3). 8 Because DeRudder suggests, but does not specifically disclose, an embodiment in which the mineral filler is included with the other above-mentioned components, the Examiner concludes that it would have been obvious to have included up to 150 parts talc or wollastonite filler to DeRudder's compositions, particularly the composition of Example 8 (id. at 3). The Examiner finds that doing so provides a composition comprising 29-78 wt.% total polycarbonate, 8-21 wt.% impact modifier, up to 60 wt.% filler, 0.2---0.5 wt.% poly(alkylene oxide) component, and 2-5.5 wt.% styrene acrylonitrile copolymer component (id.). Because this range of mineral filler (up to 60 wt.%) overlap the mineral filler range recited in claim 1 (8-30 wt.%), the Examiner further concludes the overlapping portion would have been prima facie obvious (id. at 3--4). The Examiner acknowledges that DeRudder does not teach higher gloss at 60° for the composition with the poly(alkylene oxide) component as compared to the same composition without this component (Ans. 4). Nonetheless, the Examiner determines that because the composition of 8 Appellant does not dispute the Examiner's reliance on and findings with regard to Varshney and He. Accordingly, we need not further address either of these references in this decision. 4 Appeal 2016-007733 Application 14/026,651 claim 1 would have been prima facie obvious over DeRudder's composition, this prior art composition would inherently have the same gloss property as recited in claim 1 (id. at 4--6, citing MPEP 2112.0l(I-II)). Appellant argues that the Examiner has failed to establish that DeRudder's composition would inherently have the claimed gloss property (Appeal Br. 7). In this regard, Appellant contends that DeRudder does not anticipate the composition of claim 1 and does not disclose the gloss property (id.). Appellant urges that the threshold for applying inherency in an obviousness context is higher than in an anticipation context (id. at 8). In support of this position, Appellant cites In re Rijckaert, 9 F .3d 1531, 1534 (Fed. Cir. 1993), Ex parte Vigano, 2011 WL 6960346, *2-3 (BP AI Dec. 30, 2011), and In re Newell, 891F.2d899 (Fed. Cir. 1989), each of which held that inherency cannot be predicated on what is unknown (Appeal Br. 8-9; see also Reply Br. 3--4). Appellant asserts that "[g]loss is affected by the components of the composition" (id. at 9). According to Appellant, "[i]t is reversible error to rely upon an allegedly inherent disclosure to support rejections under 35 U.S.C. § 103(a) with no factual finding that the purported inherent feature was ever recognized by a person of ordinary skill in the art at the time of the invention" (id.). Appellant asserts that the Examiner ignores controlling law supporting the existence of a recognition requirement for inherency in the obviousness context, including Jones v. Hardy, 727 F.2d 1524, 1530 (Fed. Cir. 1984), In re Naylor, 369 F .2d 765, 768 (CCPA 1966), andin re Papesch, 315 F.2d 381, 391(CCPA1963). Appellant next argues that the claimed compositions possess unexpectedly improved gloss and Izod notched impact resistance properties as compared to prior art compositions (Appeal Br. 10). Appellant directs 5 Appeal 2016-007733 Application 14/026,651 attention to the Specification, Table 5, as showing an improvement in gloss and notched impact strength as compared to a reference composition including a filler, but lacking the poly( alkylene oxide) component (id.). Appellant asserts that DeRudder's Example 8 actually exhibits a decrease in notched impact strength from 23°C to -30°C as compared to the Example 6 composition lacking a poly( alkylene oxide) component (id.). As such, Appellant contends that DeRudder teaches away from the claimed composition (id.). Appellant further urges that the Specification describes examples using both talc and wollastonite as fillers, and that Appellant need not show unexpected results over an entire claimed range, but only need provide evidence that the composition possesses superior and unexpected properties in one of a spectrum of common properties (Appeal Br. 11, citing In re Chupp, 816 F.2d 643, 646 (Fed. Cir. 1987)). Appellant also asserts that a showing of unexpected results for a narrow portion of a claimed range is sufficient if a skilled artisan would be able to ascertain a trend in the results allowing a reasonable extension of those results over the entire claimed range (id., citing In re Clemens, 622 F.2d 1029, 1036 (CCPA 1980)). Appellant contends that the showing of unexpected results relates to the combination of the filler and a PEO additive, not the selection of a particular polycarbonate blend or impact modifier, and that the showing "fully explores how changes in filler and PEO additive component affect the properties of the thermoplastic composition" (Appeal Br. 11-12). According to Appellant, there is nothing in the record to suggest that different polycarbonate blends or impact modifiers would affect the 6 Appeal 2016-007733 Application 14/026,651 unexpected results shown for the combination of filler and a PEO additive (id. at 12). Whether an invention has produced unexpected results is a question of fact. In re Mayne, 104 F.3d 1339, 1343 (Fed. Cir. 1997). "[T]here is no hard-and-fast rule for determining whether evidence of unexpected results is sufficient to rebut a prima facie case of obviousness." Kao Corp. v. Unilever US., Inc., 441F.3d963, 970 (Fed. Cir. 2006); see also In re Dillon, 919 F.2d 688, 692-93 (Fed. Cir.1990) ("[e]ach situation must be considered on its own facts."). However, a party asserting unexpected results as evidence of nonobviousness has the burden of proving that the results are unexpected. In re Geisler, 116 F.3d 1465, 1469-70 (Fed. Cir. 1997). 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 claim 1 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). "[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." In re Klosak, 455 F.2d 1077, 1080 (CCPA 1972). The extent of the showing relied upon by Appellants also must reasonably support the entire scope of the claims at issue. See In re Harris, 409 F.3d 1339, 1344 (Fed. Cir. 2005). We begin by noting that the Examiner's evidence in support of obviousness is strong because the only difference between the composition 7 Appeal 2016-007733 Application 14/026,651 of claim 1 and that of DeRudder is an explicit example of the use of mineral filler in the examples of Table 2, specifically in Example 8, and DeRudder itself suggests the use of mineral filler in the disclosed thermoplastic compositions in amounts that encompass the recited range. We note further that Appellant makes numerous references to prior responses, as well as broadly referring to the examples in the Specification, but fails to analyze and explain these examples with any particularity. 9 Moreover, the only property recited in each of the independent claims is improved gloss, yet the only results demonstrating such is set forth in Table 5 which use a single mineral filler, talc, at a single amount, 15%, and only either 0.25% or 0.75% of a tri-block copolymer of polyethylene oxide- polypropylene oxide-polyethylene oxide. Appellant attributes the improved gloss results to the presence, not of the mineral filler in the amount of 8- 30%, but of the poly(alkylene oxide) component (Spec. i-f 316, "Surprisingly, as quantified in Table 5, a further visible benefit of incorporating the PEO based additives ... is an improvement in surface gloss of the molded parts."). Only a single comparative example, Example Cl, is provided in Table 5, a thermoplastic composition lacking the poly(alkylene oxide) component, but which is otherwise nearly identical to the inventive Examples E2-E9 (id. i-f 311, Table 4). No comparison has been made to the closest prior art, DeRudder, Example 8, or to any thermoplastic 9 Indeed, only during Appellant's argument during oral hearing did Appellant direct attention to any evidence that Appellant's gloss results would have been surprising or unexpected (see Spec. i-f 316). Also, no further argument was presented at oral hearing for any other property of the claimed thermoplastic compositions. 8 Appeal 2016-007733 Application 14/026,651 compositions containing the poly( alkylene oxide) component, but lacking a mineral filler. Appellant also fails to direct our attention to any evidence that these gloss results are commensurate in scope with claim 1, which covers any amount and kind of polycarbonate, any amount and kind of impact modifier, any amount and kind of SAN, mineral filler in amounts from 8-30%, wollastonite and clay instead of talc as the mineral filler, and any poly(alkylene oxide) additive containing either PEO or PPO besides tri- block PEO-PPO-PEO copolymers in any amount. We are mindful that Appellant need not show unexpected results for more than one of a spectrum of properties for a composition or for more than necessary such that the ordinary artisan would have reasonably expected those results to extend to the remainder of the scope of a claim. Here, although Appellant has argued that the ordinary artisan would have been able to discern a trend in the results, again Appellant fails to direct our attention to evidence or otherwise provide a persuasive explanation supporting any trend in the gloss results commensurate with the entire scope of claim 1. Turning to the other argued property, Izod notched impact resistance (NII), we note claim 1 does not mention this property. In addition, Appellant fails to explain with any particularity the results in the Specification regarding this property. Nonetheless, we note that Table 7 presents results without filler which appear to demonstrate that NII decreases when the poly( alkylene oxide) component is added (Spec. i-f 318, Table 7, "The data suggest that for PEO additives, the impact strength improves only for filled PC/ ABS formulations."). Table 9 presents results for mineral filler at 5% and 25% which appears to demonstrate that NII 9 Appeal 2016-007733 Application 14/026,651 decreases at 5% filler, but increases at 25% filler (id. i-f 320, Table 9). Table 11 presents NII results for a second mineral filler, wollastonite, at 15%, which appear to be similar to the NII results for talc at 15% (id. i-f 322, Table 11). Finally, Table 13 presents NII results for talc at 8%, with and without a poly(alkylene oxide) component, which shows improved NII at 8% talc and both 0.25% and 0.75% of the poly(alkylene oxide) component. Finally, although Appellant fails to direct our attention to any evidence that these results would have been unexpected to one of ordinary skill in this art, we note Appellant states that these results indicate "a surprising synergy between filler and PEO additive that manifests itself only when there is significant filler in the formulation" (id. i-f 324). Appellant asserts that these results "illustrate improved properties for thermoplastic compositions that include a filler in combination with a PEO additive component, and fully explore how changes in filler and PEO additive component affect the properties of the thermoplastic compostion" (Appeal Br. 11 ). With regard to the mineral filler, Appellant points out that the results use both talc and wollastonite (id.). Appellant also argues that the showing of unexpected results relates to the filler and PEO additive, not the selection of a particular PC blend or impact modifier, and asserts these latter components are not relevant to the showing of unexpected results (id. at 12). According to Appellant, there is nothing in the record to suggest that different PC polymers or impact modifiers would affect the unexpected results relating to the use of a mineral filler and a PEO additive together (id.). With regard to the mineral fillers recited in claim 1, talc, wollastonite, and clay, Appellant demonstrates similar results for talc and wollastonite. 10 Appeal 2016-007733 Application 14/026,651 The Examiner has not provided any technical reasoning or evidence teaching or suggesting that one of ordinary skill in the art, armed with results for talc and wollastonite, would not have expected similar successful results for clay at loadings within the claimed range. However, Appellant does not demonstrate that either wollastonite or clay would have been expected to similarly fail to provide improved results at amounts below 8%. Moreover, Appellant fails to direct our attention to any evidence that these NII results are commensurate in scope with claim 1, which covers any amount and kind of polycarbonate, any amount and kind of impact modifier, any amount and kind of SAN, and any poly( alkylene oxide) additive containing either PEO or PPO besides tri-block PEO-PPO-PEO copolymers in any amount. Again, we are mindful that Appellant need not show unexpected results for more than would have been necessary to persuade the ordinary artisan, reasonably, that those results extend to the remainder of the scope of a claim. Here, although Appellant has argued that the ordinary artisan would have been able to discern a trend in the results, again Appellant fails to direct our attention to evidence or otherwise provide a persuasive explanation supporting any trend in the NII results commensurate with the entire scope of claim 1. Finally, with regard to Appellant's argument that "the Examiner ignores controlling law supporting the existence of a recognition requirement for inherency in the context of obviousness," we note that the caselaw to which Appellant refers does not address the situation before us in this appeal. In Rijckaert, the court found that the applied prior art neither disclosed a claimed relationship between time expansion/ compression and three recited variables, nor two of these three variables. In addition, the 11 Appeal 2016-007733 Application 14/026,651 court found that the prior art did not even describe the use of time expansion/compression as a means of optimally filling tracks. As such, the court did not accept the PTO' s description of the claimed relationship in its brief as prior art, nor that fulfilling this relationship would have been inherent in the prior art. Further, unlike Vigano, which is not precedential, there is evidence in this record to indicate that the gloss limitation is a property attributed only to the addition of the poly( alkylene oxide) component to the polycarbonate thermoplastic composition, rather than a synergistic property of the entire composition or between the poly( alkylene oxide) component and the filler. Also, unlike Vigano, the Examiner's obviousness conclusion arises, not from the proposed combination of materials from two different references, but from the proposed combination of materials suggested by a single reference. In Jones v. Hardy, the court found there was no support in the record for finding that one skilled in the art would have noted an allegedly inherent feature and would have converted this observance to the claimed invention. In other words, unlike here, there was evidence suggesting that the feature went unrecognized for years and the obviousness conclusion required conversion of this observation to create the claimed invention. In Naylor, the inherency position rejected by the court involved combining the teachings of two references to arrive at a process for producing a product, a rubbery polybutadiene containing at least 80% of the 1,2 addition, that neither reference taught or suggested, and that the Examiner conceded could not have been predicted. In Newell, the court found that the inventive belt drive system achieved significantly enhanced power transmission to the tape of a tape 12 Appeal 2016-007733 Application 14/026,651 cassette as compared with the prior art. Although the PTO asserted that the modifying the prior drive system's with a belt drive would inherently provide better power transfer, the court held this to be "a retrospective view of inherency" absent some teaching or suggestion which supports the selection and use of the various elements in the claimed combination. In other words, the Newell court held that the basis for combining reference teachings to arrive at a claimed invention cannot be predicated on a feature or property not recognized by the prior art. At oral hearing, Appellant further cited to Millenium Pharmaceuticals, Inc. v. Sandoz, Inc., 862 F.3d 1356 (Fed. Cir. 2017), Honeywell International Inc. v. Mexichem Amanco Holding S.A. ED C. V., 865 F.3d 1348 (Fed. Cir. 2017), and In re Stepan Co., 868 F.3d 1342 (Fed. Cir. 2017), in furtherance of their argument that the Examiner's obviousness rejection is in error because it relies on inherency. In Millenium, the court noted that there was no evidence that the result of the combination of prior art would have been expected or intended (Millenium, 862 F.3d at 1367). In Honeywell, the court emphasized that "dismissing properties of the claimed invention as merely inherent, without further consideration as to unpredictability and unexpectedness, erred as a matter of law" (Honeywell, 865 F.3d at 1355). In Stepan, the court reversed the PTO for failing to explain why it would have been "routine optimization" to select and adjust the claimed surfactants and achieve a cloud point above at least 70°C, improperly rejecting relevant evidence of nonobviousness, and improperly shifting the burden of proving patentability (Stepan, 868 F.3d at 1348- 1349). However, in each of these cases, a claimed property was improperly found to be inherent only after combining the teachings of the prior art and 13 Appeal 2016-007733 Application 14/026,651 without any expectation that the property would necessarily flow from the combined teachings. Unlike the above cases, the inherent feature here is indicated to be a result, not of the combination with mineral filler, but of the composition of Example 8, with or without the filler. Thus, the Examiner's obviousness conclusion is not predicated on that which is unknown, i.e., that gloss can be improved with the addition of a poly( alkylene oxide) component, but on the explicit suggestion to add mineral filler within the same reference. The Examiner's rejection is based on the finding that the gloss property would have been an inherent property of the Example 8 composition, i.e., this property is inseparable from the Example 8 composition as compared to an equivalent composition lacking the poly( alkylene oxide) component. In re Kubin, 561F.3d1351, 1357 (Fed. Cir. 2009) ("Even if no prior art of record explicitly discusses the [limitation], [applicants'] application itself instruct that [the limitation] is not an additional requirement imposed by the claims on the [claimed invention], but rather a property necessarily present in [the claimed invention]"); Ex parte Obiaya, 227 USPQ 5 8, 60 (BP AI 1985) ("The fact that appellant has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the difference would otherwise have been obvious."). As we indicated above, Appellant attributes the improved gloss, not to the component missing from DeRudder's Example 8 (i.e., the mineral filler), but to a component already present in this example (i.e., the polyalkylene oxide). Thus, although DeRudder is silent regarding the gloss of the Example 8 composition, it was reasonable for the Examiner to find that the 14 Appeal 2016-007733 Application 14/026,651 gloss of the Example 8 composition necessarily would be greater than a composition without the poly( alkylene oxide) component. Appellant has provided no evidence that the gloss result is associated with or dependent on the presence of the mineral filler, which is the only feature different from DeRudder' s Example 8 composition. Accordingly, for these reasons and those given in the Examiner's Answer, we will sustain the Examiner's obviousness rejection of claim 1. Claim 11 Claim 11 depends from claim 1 and further requires that the impact modifier component comprises a methacrylate-butadiene-styrene (MBS) polymer composition. The Examiner finds DeRudder teaches an MBS impact modifier in Example 8 (Ans. 2). Appellant urges that because claim 11 limits the impact modifier component to one comprising MBS, Appellant's Examples E2-E15, which use an MBS core-shell type impact modifier, provide evidence of unexpected results commensurate in scope with this claim. This argument is not persuasive because Appellant's claims still broadly recite any amount and kind ofMBS polymer, any amount and kind of polycarbonate, any amount of impact modifier, any amount and kind of SAN, mineral filler in amounts from 8-30%, wollastonite and clay instead of talc as the mineral filler, and any poly( alkylene oxide) additive containing either PEO or PPO besides tri-block PEO-PPO-PEO copolymers in any amount. Thus, although claim 11 is limited as to one of the recited components, the impact modifier, Appellant has not shown that their evidence of unexpected results is commensurate with the full scope of claim 15 Appeal 2016-007733 Application 14/026,651 11. Accordingly, we will sustain the Examiner's obviousness rejection of claim 11. Claims 45 and 46 Claims 45 and 46 each depend from claim 1 and further require that, at 23°C and at 0°C, respectively, a molded part formed from the thermoplastic composition exhibits a greater NII compared to a molded part formed from an identical composition, but in the absence of the poly( alkylene oxide) additive component. Appellant argues that DeRudder teaches that the presence of the poly( alkylene oxide) component would lead to a decrease in impact strength and, therefore, teaches away from the claimed composition (Appeal Br. 14). At 23°C, Appellant asserts that DeRudder' s Example 8 has no substantial increase in impact strength with the poly( alkylene oxide) component compared to Example 6, which lacks this component (id.). At -30°C, Appellant asserts that the impact strength of Example 8 is lower than that of Example 6 (id.). Appellant believes that extrapolating this data to 0°C reveals that Example 8 would have a lower impact strength than for Example 6 (id. at 15). Appellant's arguments are not persuasive of reversible error. We note that claim 45 does not recite any amount or degree of increase in impact strength when using the poly( alkylene oxide) component. Because DeRudder's Example 8 has an impact strength at 23°C that is greater than that of Example 6, DeRudder' s Example 8 satisfies the recited notched Izod impact strength limitation of claim 45. With regard to claim 46, Appellant believes that DeRudder's impact strength data at -30°C may be used to extrapolate that, at 0°C, the ordinary artisan would expect that DeRudder 16 Appeal 2016-007733 Application 14/026,651 teaches lower impact strength when the poly(alkylene oxide) component is present than when it is not. However, as the Examiner notes, -30°C is appreciably lower than 0°C. Appellant fails to explain what the asserted relationship would be between impact strength at each of -30°C, 0°C, and 23°C, e.g., linear, polynomial, exponential, logarithmic, etc. Thus, extrapolation of impact strength data as Appellant urges would necessarily be highly speculative and, therefore, of little probative value. Further, only Table 5 contains impact strength data at each of 0°C and 23°C. 1° For each of Appellant's examples, impact strength decreases by a greater percentage between 23 °C and 0°C for the examples including poly( alkylene oxide) component than for those without this component. If the relationship between impact strength and temperature were linear, extrapolation of this data would suggest negative values for impact strength at -30°C, an impossible result. Accordingly, we decline to credit Appellant's proposed extrapolation from the data as substantial support for Appellant's argument that De Rudder teaches away from use of poly( alkylene oxide) use in the thermoplastic compositions or that Appellant's impact strength results are unexpected at 0°C. We will sustain the Examiner's obviousness rejection of claims 45 and 46. Claim 52 10 Table 7 also contains data at these two temperatures, but because this data lacks the mineral filler, it cannot support Appellant's argument of unexpected results as to the combination of the poly( alkylene oxide) component and the mineral filler. 17 Appeal 2016-007733 Application 14/026,651 Independent claim 52 is reproduced below from the Claims Appendix to the Appeal Brief. 52. A thermoplastic composition, comprising a. from about 40 wt% to about 80 wt% of a thermoplastic polymer component comprising: i. a first polycarbonate; ii. a second polycarbonate; b. from greater than about 0 wt% to about 40 wt% of an impact modifier component comprising an acrylonitrile-butadiene-styrene polymer composition, a bulk polymerized acrylonitrile-butadiene- styrene, or a methacrylate-butadiene-styrene polymer composition, or a methacrylate-butadiene polymer composition or combinations thereof; c. from about 8 wt% to about 30 wt% of a mineral filler component selected from the group consisting of talc, clay, and wollastonite; d. from greater than about 0 wt% to about 2 wt% of a poly( alkylene oxide) additive component comprising poly( ethylene oxide), or poly(propylene oxide), or a combination thereof; and e. from about 9 wt% to about 11 wt% of a styrene acrylonitrile copolymer component, wherein when measured at an angle of 60°, a molded article formed from the thermoplastic composition exhibits a greater gloss as compared to a molded article formed from an identical reference composition comprising the same thermoplastic polymer component, the same weight percentage of the same impact modifier component, the same weight percentage of the same mineral filler component, and the same weight percentage of the same styrene acrylonitrile copolymer component, but in the absence of the poly( alkylene oxide) additive component. Appellant argues that, to the extent the showing of unexpected results is deficient due to the recitation of the polycarbonate in claims 1 and 54, that deficiency should not extend to claim 52 because it recites a first and second polycarbonates and each of Examples E2-E 15 include first and second polycarbonates (Appeal Br. 13). This argument is not persuasive because it 18 Appeal 2016-007733 Application 14/026,651 merely applies to a portion of the lack of commensurate in scope concern raised by the Examiner with regard to Appellant's showing of unexpected results. Even as to the polycarbonate component, claim 52 does not recite any characteristic or property of either polycarbonate, whereas Appellant's examples (as well as DeRudder's Example 8) used specific high and low molecular weight BP A polycarbonates (30,000 and 22,000). We note Appellant's disclose extensive variety in the polycarbonate component chemistry, molecular weights, and amounts (Spec. i-fi-150-90). Thus, we remain unconvinced that Appellant's showing of unexpected results is commensurate in scope with claim 52. Accordingly, we will sustain the Examiner's obviousness rejection of claim 52. DECISION Upon consideration of the record, and for the reasons given above and in the Examiner's Answer, the decision of the Examiner rejecting claims 1- 19, 23-39, 42--47, 49, 50, 52-55, 58-64, and 66-75 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)(l ). AFFIRMED 19 Copy with citationCopy as parenthetical citation