Ex Parte Demain

Board of Patent Appeals and Interferences

Jun 30, 2010

10498620 (B.P.A.I. Jun. 30, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
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Ex parte AXEL DEMAIN
__________

Appeal 2009-007554
Application 10/498,620
Technology Center 1700
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Decided: June 30, 2010
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Before MICHAEL P. COLAIANNI, CATHERINE Q. TIMM, and
KAREN M. HASTINGS, Administrative Patent Judges.

COLAIANNI, Administrative Patent Judge.

DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134 the final rejection of claims
37-47. We have jurisdiction over the appeal pursuant to 35 U.S.C. § 6(b).
We AFFIRM.
Appellant discloses a process of producing polyolefin fiber product in
which syndiotactic polypropylene (sPP) and isotactic polypropylene (iPP)
for the fibers with sPP predominantly forming the sheath and iPP
predominately forming the core (Spec. 4).
Appeal 2009-007554
Application 10/498,620

Claim 37 is illustrative:
37. A process for producing a polyolefin fiber product comprising:

(a) providing a core polymer material portion of said fiber product
comprising a polyolefin component selected from a group consisting of a
propylene polymer produced with a Ziegler-Natta catalyst, an isotactic
propylene polymer produced with a metallocene catalyst, a polyethylene
resin and mixtures thereof;

b) providing a syndiotactic propylene polymer incorporating at least
one filler additive selected from the group consisting of an anti-static
additive, carbon black fillers, and mixtures thereof;

(c) dry blending said syndiotactic propylene polymer with said core
material polymer to produce a blend, wherein the amount of syndiotactic
propylene polymer added in the blend is up to 15 wt% based on the total
weight of the blend without the filler additive; and

(d) extruding said blend to produce a polymer fiber product
comprising a core layer and a surface layer with said surface layer
containing from 50-90 wt.% of the syndiotactic propylene polymer in said
fiber product.

The Examiner relies on the following prior art references as evidence
of unpatentability:

Galambos US 5,455,305 Oct. 03, 1995
Iwanami US 5,621,046 Apr. 15, 1997
Demain EP 1041180 A1 Oct. 04, 2000

Appellant appeals the following rejections:
1. Claims 37, and 40-47 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Demain in view of Galambos.
2. Claims 38 and 39 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Demain in view of Galambos and Iwanami.
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With regard to rejection (1), Appellant argues the claims as a group of
which we select claim 37 as representative (App. Br. 9-11). With regard to
rejection (2), Appellant argues the claims as a group of which we select
claim 38 as representative (App. Br. 11-12).

ISSUES
1. Did the Examiner err in determining that one of ordinary skill in the
art would have combined the teachings of Galambos and Demain in
order to produce a polypropylene product having improved properties,
including resiliency and shrinkage, in the rejection of claim 37? We
decide this issue in the negative.
2. Did the Examiner err in determining that one of ordinary skill in the
art would have combined Iwanami’s teaching to combine linear low
density polyethylene and syndiotactic propylene containing polymer
with Demain in view of Galambos’ polypropylene product to
manufacture a polypropylene product having improved impact
strength, stiffness, heat resistance and elongation in the rejection of
claim 38? We decide this issue in the negative.

PRINCIPLE OF LAW
The test for obviousness is what the combined teachings of the
references would have suggested to one of ordinary skill in the art. In re
Keller, 642 F.2d 413, 425 (CCPA 1981).

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Application 10/498,620

FACTUAL FINDINGS AND ANALYSIS
We adopt the Examiner’s findings on pages 4-5 of the Answer as our
own.
Issue (1)
Appellant argues that there is no reason to combine Demain and
Galambos (App. Br. 10). Appellant argues that Demain does not suggest
modifying the syndiotactic polypropylene (sPP) to contain an additive and
Galambos only teaches a blend of isotactic polypropylene (iPP) and sPP
with a third polymer, not the claimed process (App. Br. 10). Appellant
contends that there is nothing in Demain or Galambos to provide a reason
for making the leap from the sPP/iPP fibers of Demain and a sPP/iPP blend
with additives of Galambos to the claimed invention (App. Br. 11).
Appellant’s arguments are unpersuasive because they attack the
references individually instead of addressing what the combined teachings
would have suggested to one of ordinary skill in the art as is the basis of the
Examiner’s rejection. Keller, 642 F.2d at 425. Specifically, the Examiner
relies on Demain as teaching that when a blend of sPP and iPP is spun, the
sPP preferentially migrates toward the outer portion (sheath) of the fiber
(Ans. 4-6) and Galambos as teaching a sPP/iPP polypropylene product
where additives may be included in either the sPP, iPP, or both (Ans. 4 and
6). Galambos teaches a yarn made of fibers containing sPP/iPP, which may
further contain additives, has improved resiliency and shrinkage (col. 2, ll.
40-48; col. 8, ll. 10-14).
Based on these teachings as a whole, the Examiner properly concludes
that it would have been obvious to combine Galambos’ teaching to include
additives in a sPP/iPP fiber to produce resiliency in the fiber with Demain’s
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sPP/iPP fiber to produce a polypropylene product having improved
resiliency and shrinkage (Ans. 4 and 6-7).
Notably, Appellant does not specifically challenge the Examiner’s
reason for combining the teachings of Demain and Galambos (App. Br. 9-
11). Instead, Appellant improperly argues that the references individually
fail to suggest using an additive in the sPP layer (App. Br. 9-11), which is
contrary to the teachings of Galambos noted above. The reasonable reading
of Galambos’ column 8, lines 10-14 disclosure provided by the Examiner
includes that additives may be included in either or both of the polymers
used to make the fiber, which includes sPP, for the purpose of producing a
resilient fiber (Ans. 6). Accordingly, the Examiner did not err in finding that
the combined teachings of the references would have suggested the subject
matter of claim 37 for the stated reasons of record.
We affirm the Examiner’s § 103 rejection of claims 37, and 40-47
over Demain in view of Galambos.

Issue (2)
Appellant argues that there is no reason (or reasonable expectation of
success) to combine the teachings of Iwanami, Galambos and Demain (App.
Br. 11-12). Appellant contends that since Iwanami teaches a copolymer of
sPP, not that the resin is sPP there would have been no reason to combine
Iwanami’s teachings with Galambos and Demain (App. Br. 11-12).
As with issue (1), Appellant’s arguments are unpersuasive because
they attack the references individually and fail to address the Examiner’s
stated case. The Examiner relies on Iwanami to teach blending linear low
density polyethylene into a polypropylene product having syndiotactic
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polypropylene (Ans. 5). Iwanami further teaches that the polypropylene
resin composition has well balanced impact strength, stiffness, and heat
resistance (col. 1, ll. 31-33). Based on Iwanami’s teachings and the
teachings of Demain and Galambos noted above, the Examiner concludes
that it would have been obvious to combine linear low density polyethylene
with the polypropylene product of Demain and Galambos to achieve a
polypropylene product having improved impact strength, stiffness, heat
resistance, and elongation (Ans. 5).
Appellant has not challenged the Examiner stated reason for making
the combination (App. Br. 11-12). Indeed, Appellant never argues against
the Examiner’s combination of Iwanami’s linear low density polyethylene
with the sPP/iPP fiber of Demain and Galambos. Instead, Appellant argues
that Iwanami does not teach sPP or the claimed fiber structure; features that
the Examiner relies upon Demain and Galambos to teach. Nevertheless, the
Examiner responds to Appellant’s argument that Iwanami does not teach
sPP by finding that Iwanami’s block polymer contains sPP blocks and thus
has sPP characteristics (Ans. 7). Appellant does not respond to this finding
in a responsive brief.
Because the Examiner’s reason for combining the references, which is
based upon the teachings of the references, and his finding that Iwanami’s
sPP block polymers have sPP characteristics would have suggested the
proposed combination of Demain, Galambos and Iwanami remain
unchallenged, we perceive no error on the part of the Examiner.
Moreover, the teachings of the references as a whole indicate that
blending Iwanami’s linear low density polyethylene with Demain’s and
Galambos’ sPP to make the fiber would have reasonably been expected to
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improve the various characteristics of the fiber as determined by the
Examiner (Ans. 5).
For the above reasons, we affirm the § 103 rejection of claims 38 and
39 over Demain in view of Galambos and Iwanami.

DECISION
The Examiner’s decision is affirmed.
TIME PERIOD
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1).

AFFIRMED

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