Ex Parte Datta et al

Patent Trial and Appeal Board

Jul 6, 2017

12192823 (P.T.A.B. Jul. 6, 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.
12/192,823 08/15/2008 Sudhin Datta 2007EM212/2 3524
23455 7590 07/10/2017
EXXONMOBIL CHEMICAL COMPANY
5200 BAYWAY DRIVE
P.O. BOX 2149
BAYTOWN, TX 77522-2149
EXAMINER
CHOI, PETER Y
ART UNIT PAPER NUMBER
1786
NOTIFICATION DATE DELIVERY MODE
07/10/2017 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):
chem.law.prosecution@exxonmobil.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SUDHIN DATTA, DEREK W. THURMAN, CHIA Y. CHENG,
LI WEN, and DAVID R. JOHNSRUD
Appeal 2016-004716
Application 12/192,8231
Technology Center 1700
Before PETER F. KRATZ, WESLEY B. DERRICK, and
ELIZABETH M. ROESEL, Administrative Patent Judges.
DERRICK, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from the final rejection of
claims 1-18, 20-23, and 25 under 35 U.S.C. § 103(a) over Allgeuer2 in view
of Clark3 and Rudisill.4 We have jurisdiction under 35 U.S.C. § 6.
We AFFIRM.
1 Appellants identify ExxonMobil Chemical Company as the real party in
interest. Appeal Br. 1.
2 Allgeuer et al., US 2008/0199673 Al, published August 21, 2008.
3 Clark et al., US 6,723,669 Bl, issued April 20, 2004.
4 Rudisill et al., US 2003/0003826 Al, published January 2, 2003.
Appeal 2016-004716
Application 12/192,823
THE INVENTION
The subject matter of the claims on appeal relates to a nonwoven
fabric. Specification filed August 15, 2008 (“Spec.”), Abstract.
Independent claims 1 and 2 are representative.
1. A nonwoven fabric comprising:
a. 5 wt% to 99 wt% of a first component comprising
a random copolymer of propylene, wherein the
first component has a melting point as determined
by DSC of from 20°C to 90°C, a heat of fusion as
determined by DSC of 1.5 J/g to 50 J/g,
stereoregular propylene crystallinity, a Melt Flow
Rate between 2000 g/10 min and 3000 g/10 min,
and a product of reactivity ratios (r^) of less than
1.5; and
b. 2 wt% to 70 wt% of a second component
comprising a propylene polymer or blends of
propylene polymers, wherein the second
component has a melting point as determined by
DSC greater than 110°C and a heat of fusion
greater than 60 J/g;
wherein the nonwoven fabric is formed by a process
comprising meltblowing a blend comprising the first
component and the second component through a die tip at
a primary air pressure of 5 to 10 psig onto a forming belt
at a distance away from the die (DCD) of 8 to 12 inches;
and
wherein the nonwoven fabric has a permanent set of less
than 60% and an air permeability of 23.8 to 49.2 ft3/ft2/min.
2. A nonwoven fabric comprising:
a. 5 wt% to 99 wt% of a first component comprising
a random copolymer of propylene and hexene,
wherein the first component has a melting point as
determined by DSC of from 20°C to 90°C, a heat
of fusion as determined by DSC 1.5 J/g to 50 J/g,
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Application 12/192,823
and a Melt Flow Rate between 2000 g/10 min and
3000 g/10 min; and
b. 1 wt% to 95 wt% of a second component
comprising a propylene polymer or blends of
propylene polymers having a melting point as
determined by DSC greater than 110°C and a heat
of fusion greater than 60 J/g;
wherein the nonwoven fabric is formed by a process
comprising meltblowing a blend comprising the first
component and the second component through a die tip at
a primary air pressure of 5 to 10 psig onto a forming belt
at a distance away from the die (DCD) of 8 to 12 inches;
and
wherein the nonwoven fabric has a permanent set of less
than 60% and an air permeability of 23.8 to 49.2 ft3/ft2/min.
Appeal Brief filed September 21, 2015 (“Appeal Br.”), (Claims Appendix)
10-11.
DISCUSSION5
We have reviewed the grounds of rejection set forth by the Examiner,
Appellants’ arguments and proffered evidence, and the Examiner’s
response.6 On this record, we are directed by Appellants to no reversible
error and we determine that a preponderance of the evidence supports the
Examiner’s conclusion of obviousness.
Appellants argue the patentability of independent claims 1 and 2 as a
group contending that the Examiner has failed to establish a prima facie case
of obviousness and, assuming a prima facie case was made, that unexpected
5 We refer to the Specification, the Final Office Action dated April 20, 2015
(“Final Act.”), the Appeal Brief, the Examiner’s Answer dated February 1,
2016 (“Ans.”), and the Reply Brief filed March 31, 2016 (“Reply Br.”).
6 Appellants’ Reply Brief contains no substantive argument. See generally
Reply Br.
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Application 12/192,823
results demonstrate the non-obviousness of the appeal claims. Appellants
rely on the dependency of further claims from either independent claim 1 or
claim 2 for the patentability of the remaining claims.
The Prima Facie Case
Allgeuer relates to propylene based nonwoven layers made by the
meltblown process. The Examiner relies on Allgeuer in the main for its
disclosure and teaching of polymer composition and properties of the
claimed nonwoven fabric. Ans. 2—4, 6, 8. As to the melt flow rate (MFR),
the Examiner finds Allgeuer teaches that its propylene based elastomers or
plastomers ideally have an MFR of 20 to 5000 g/10 min or alternatively of
2000 g/10 min. Ans. 3 (citing Allgeuer 142). Further, with respect to the
MFR, the Examiner finds the MFR to be a result effective variable for
polymer throughput and strength in stating “low molecular weight polymers
exhibit lower viscosities and higher melt flow rates, resulting in a high
throughput of polymer,” and “[i]n contrast, higher molecular weight
polymers typically exhibit higher strength, but higher viscosities and lower
melt flow rates.” Ans. 3. The Examiner further de facto determines that the
skilled artisan would arrive at the claimed range through no more than
routine optimization of the MFR value in forming a conventional meltblown
fabric. Ans. 3.
Clark also relates to polypropylene based nonwoven fabrics. The
Examiner relies on Clark for, inter alia, its teaching relating to conventional
polypropylenes, such as those in Allgeuer, including the melting point and
heat of fusion of polymer of the first and second polymers included in
nonwoven fabric. Ans. 6-7.
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Application 12/192,823
Rudisill relates to the meltblown fabric art, including composites of
spunbond sheets and meltblown sheets. The Examiner relies on Rudisill for
teaching the skilled artisan that a single component meltblown web
comprising fibers formed of, inter alia, propylene would provide an air
permeability in the range of 15 to 35 ft3/min/ft2 because composite sheets
provide this value, but the spunbond sheets alone provide air permeabilities
of between 141 and 218 ft3/min/ft2.7 Ans. 7-8 (citing Rudisill Abstract,
Tflf 14, 30, 32). The Examiner further finds Rudisill teaches a relatively low
air permeability, such as 15 to 35 ft3/min/ft2, to be predictably suitable for
wipes comprising meltblown fabrics. Ans. 8.
Appellants’ position that the Examiner failed to establish a prima facie
case are grounded on two general contentions; first, that the relied-on
combination of references does not disclose or suggest a non-woven fabric
having air permeability of 23.8 to 49.2 ft3/ft2/min and, second, that the
references do not teach or suggest the MFR range of 2000-3000 g/10 min.
Appeal Br. 5-8.
As to air permeability, Appellants argue that Allgeuer is silent, that
Clark discloses an air permeability significantly higher than that claimed,
and that Rudisill’s air permeability relates to that for a spunbond layer
comprising polyester and polyethylene and a meltblown layer comprising a
low density polyethylene. Appeal Br. 5-6. Contending improper hindsight
7 The units of ft3/min/ft2 indicate, on their face, the rate of flow of air in
cubic feet per square feet of sample area per minute, which is treated by the
Examiner as the equivalent of the units of ft3/ft2/min, used in the claims,
indicating the flow of air in cubic feet per minute per square foot; the
treatment of the two as equivalent stands uncontested. See generally Final
Act; Appeal Br.; Ans.; Reply Br.; see also Spec. 1194.
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Application 12/192,823
reconstruction, Appellants further argue that the Examiner is improperly
looking to Rudisill as disclosing the recited air permeability values because
it is not directed to the type of polymer used in the fabric of the invention.
Appeal Br. 6. Appellants further argue that one of ordinary skill would not
look to Rudisill for the air permeability of Allgeuer’s propylene-based
fabrics because of the differences in their composition and construction.
Appeal Br. 6.
On this record, we are not persuaded the Examiner erred reversibly for
the reasons well-expressed in the Examiner’s Answer. Ans. 10-11. As
highlighted by the Examiner, Appellants’ argument fails to address squarely
the rejection grounded on Rudisill “teach[ing] a conventional air
permeability for similar meltblown fabrics for use in similar applications.”
Ans. 11. Further, Appellants’ have not asserted that the proposed
modification to the fabric of Allgeuer in view of Clark would have been
beyond the capabilities of a person of ordinary skill in the art at the time of
the invention. Absent such an assertion, we “take account of the inferences
and creative steps that a person of ordinary skill in the art would employ”
and find a person of ordinary skill in the art would overcome those
difficulties within their level of skill. KSR Int'l Co. v. Teleflex Inc., 550 U.S.
398,418 (2007).
As to the MFR, Appellants contend that the disclosed ranges in
Allgeuer (1-5000 g/10 min) and Clark (greater than 800 g/10 min) are
“extraordinarily broad” relative to that claimed (between 2000 g/10 min and
3000 g/10 min). Appeal Br. 6-7 (citing Allgeuer 42^14; Clark col. 7,11. 40-
45). On the basis of relative breadth, Appellants argue that the Office “must
determine whether it would have been obvious ‘to select the claimed species
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Application 12/192,823
or subgenus from the disclosed prior art genus’” and sets forth factors the
“MPEP counsels . . . should be the focus.” Appeal Br. 7 (citing MPEP
§§ 2144.05(1), 2144.08(H)). Appellants argue that the factors; size of genus,
express teachings of the art, and teachings of structural similarity, weigh
sufficiently against obviousness. Appeal Br. 7-8.
On this record, we are not persuaded the Examiner erred in
determining that the narrower recited range did not render the claims
patentable over the prior art disclosing broader ranges. In our view, the
breadth of the prior art ranges is not so broad as to render the Examiner’s
reliance on an encompassing range improper and, further, we find
consideration of those factors relied on by Appellants support the
Examiner’s determination.
Allgeuer’s MFR range of 1-5000 g/10 min is 5 times as broad as the
claimed range of between 2000 g/10 min and 3000 g/10 min; however,
Appellants provide no analysis how this overlapping range compares to any
case in which our reviewing court has found reliance on an overlapping or
encompassing range improper, or to distinguish from cases where such
reliance was found proper. Appeal Br. 7. On this record, accordingly, we
find the presumption of obviousness of an overlapping range has not been
rebutted.
Further, as to the factors, we are directed to no persuasive evidence as
to how heavily, if at all, a breadth of five times weighs against obviousness
in this circumstance (see generally Appeal Br.) and Appellants’ argument as
to the lack of express teachings wholly fails to address that the Examiner’s
finding that the MFR is a result effective variable for polymer throughput
and strength (Final Act. 3; Ans. 3, 12-13). On this record, including the
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Application 12/192,823
analysis of factors Appellants identify (Appeal Br. 7-8), we are not apprised
of a basis on which the Examiner erred in determining that the claimed
subject matter was obvious over the applied prior art based on the subsumed
MFR range claimed. Appellants’ argument, accordingly, is not persuasive
of any harmful error. See Shinseki v. Sanders, 556 U.S. 396, 409 (2009)
(“[T]he burden of showing that an error is harmful normally falls upon the
party attacking the agency’s determination.” (citation omitted)).
Thus, on this record, we find the Examiner’s prima facie case of
obviousness well-founded.
Proffered Results to Rebut Prima Facie Case
Appellants contend that, assuming a prima facie case of obviousness
exists, “the present nonwovens exhibit unexpectedly superior air
permeability values” that rebut the prima facie case. Appeal Br. 8. In
support, Appellants contend that “[a]ll nonwoven fabrics made with . . .
FPC1, at the standard meltblowing process conditions recited in the claim
. . . exhibit air permeability within the much lower range of 23.8 to 49.2
ft3/ft2/min . . . compared to those fabrics without FPC1.” Appeal Br. 8-9
(citing Spec. Example 3, Samples 1.4, 1.5, 2.2, 2.3, 2.4, and 3.6; and
Example 4, Samples 1.5, 1.12).
Having considered the proffered evidence, we do not find it sufficient
to rebut the prima facie case. It is well established that Appellants bear the
burden of showing that the claimed invention imparts unexpected results. In
re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997); In re Klosak, 455 F.2d
1077, 1080 (CCPA 1972). To meet this burden, Appellants must show that
the results actually would have been unexpected, and that the unexpected
results are reasonably commensurate with the scope of protection sought by
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Application 12/192,823
the claim on appeal. In re Grasselli, 713 F.2d 731, 743 (Fed. Cir. 1983); In
re Clemens, 622 F.2d 1029, 1035 (CCPA 1980); Klosak, 455 F.2d at 1080.
As to the results being unexpected, Appellants do not direct us to any
statement in the Specification or elsewhere attesting to the unexpected
nature of the results or to any persuasive evidence that the results would
have been unexpected at the time of the invention. See generally Appeal Br.
The contention “that the present nonwovens exhibit unexpectedly superior
air permeability values” is not sufficient to bear Appellants’ burden. See,
e.g., Geisler, 116 F.3d at 1471 (“Geisler made no such assertion [that results
were unexpected] in his application. Nor did Geisler submit any such
statement through other evidentiary submissions, such as an affidavit or
declaration under Rule 132 ... . Instead, the only reference to unexpected
results was a statement by Geisler’s counsel. . . that Geisler’s results were
‘surprising.’”).
As to the results being commensurate with the scope of the claims, we
find Appellants’ contention that “every example of the application that falls
within the scope of Claims 1 and 2 results in a significantly lower air
permeability” insufficient because of the limited number of compositions
illustrated by the examples relative to the scope of the claims and the
absence of sufficient explanation why such a limited showing is sufficient.
First, Appellants rely on FPC1 as corresponding to the claimed first
component (Appeal Br. 8-9), however, FPCl’s composition and properties
(Spec. 120) is much narrower than the range of first components
encompassed by claims 1 and 2. In particular, the ratio of propylene to other
monomer, such as hexene (specified in claim 2), is not defined in the claims
and the various properties recited for the first component encompass ranges,
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Application 12/192,823
while FPC1 relied on by Appellants is characterized by having 13% hexene,
an MFR of 2200 g/10 min, and a heat of fusion of 24 J/g (Spec. 120).
Further, Appellants fail to sufficiently explain how, or if, the range of
first component FPC1 in compositions relied on as evidence establishes
unexpected results over the breadth of the recited ranges of first component
and second component. See generally Appeal Br. Still further, in reciting
that the meltblown blend “compris[es] the first component and the second
component” (claims 1-2), the recited percentage ranges of first component
and second component leave the claims open to further components.
For these reasons, Appellants have not shown evidence of unexpected
results commensurate with the scope of claims 1 and 2. See In re Harris,
409 F.3d 1339, 1343 (Fed. Cir. 2005) (holding that the applicant must show
unexpected results covering the scope of the claimed range or narrow the
claims).
On balance, the evidence of record weighs most heavily in favor of
the Examiner’s conclusion of obviousness of the claims.
DECISION
The Examiner’s decision rejecting claims 1-18, 20-23, and 25 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)(iv).
AFFIRMED
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