Ex Parte Douglas et al

Board of Patent Appeals and Interferences

Feb 29, 2008

10468487 (B.P.A.I. Feb. 29, 2008)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte BRUCE F. DOUGLAS and JOHN B. LETTS
____________

Appeal 2007-12601
Application 10/468,487
Technology Center 1700
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Decided: February 29, 2008
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Before PETER F. KRATZ, JEFFREY T. SMITH, and
LINDA M. GAUDETTE, Administrative Patent Judges.

SMITH, Administrative Patent Judge.

DECISION ON APPEAL
This is a decision on an appeal under 35 U.S.C. § 134 from the
Primary Examiner’s final rejection of claims 1, 3, and 5-29. 2 We have
jurisdiction pursuant to 35 U.S.C. § 6.

1 An oral hearing was held on October 23, 2007.
Appeal 2007-1260
Application 10/468,487

According to Appellants, the invention is directed to a method for
manufacturing polyurethane and polyisocyanurate foams, the method
comprising charging at least one blowing agent in a polyol component to an
in-line continuous mixer and contacting a blowing agent and polyol mixture
with an isocyanate component. Claim 1 is representative of the invention
and is reproduced below:
1. A method for manufacturing polyurethane and polyisocyanurate
foams, the method comprises the steps of:

charging at least one blowing agent and a polyol component to
an in-line continuous mixer at a pressure of less than about 3,400 kPa,
wherein the at least one blowing agent and the polyol component are
continuously charged from separate streams;

mixing the at least one blowing agent and the polyol component
in the in-line continuous mixer to dissolve or emulsify the blowing
agent in the polyol component and thereby provide a B-side stream;

contacting the B-side stream with an isocyanate component at a
dispensing head to provide a foam formulation; and

dispensing the foam formulation from the dispensing head,
wherein the residence time of the B-side stream, from its exit from the
in-line continuous mixer to its exit from the dispensing head as part of
the foam formulation, is less than about 5 minutes.

The Examiner has relied on the following prior art reference as
evidence of unpatentability:
2 We note that Appellants have not included claims 27-29 in the statement of
the claims on appeal. (See Br. 1-3). However, Appellants have included
arguments for claim 27 in the discussion of the rejected claims. (Br. 6). The
Examiner includes the claims 27-29 in the stated rejection in the Answer.
(Ans. 3).
2
Appeal 2007-1260
Application 10/468,487

Fishback 5,837,742 Nov. 17, 1998

ISSUES ON APPEAL
Claims 1, 3, and 5-29 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Fishback (Ans. 3-5). 3
Appellants contend the Examiner has mischaracterized the claimed
invention and that Fishback does not teach or suggest introducing separate
streams of components within an in-line mixer or bringing them together
within a mixer. Appellants contend that “one of skill in the art would
understand that the remixing or agitation of the polyol/blowing agent blend
within the in-line mixer taught by Fishback would occur at pressures above
3,400 kPa” (Br. 4).
The Examiner contends that Fishback describes the manufacturing of
polyisocyanurate foams wherein one stream comprises the isocyanate
compound and a separate stream comprises a polyol and a blowing agent
(Ans. 3). Regarding the mixing pressure, the Examiner contends that the
present record does not establish a distinction between the pressure utilized
in Fishback and the claimed invention (Ans. 4).
Accordingly, the issues presented on the record in this appeal are as
follow: Does Fishback disclose, teach, or suggest methods for
manufacturing polyisocyanurate foams wherein stream A comprises the
isocyanate compound and stream B comprises a polyol and a blowing agent?
Would a person of ordinary skill in the art would have been led to employ

3 Appellants have not presented separate arguments for claims 5, 6, 8-11, 14-
26, 28, and 29 on appeal (See Br. generally). These claims will stand or fall
with the subject matter of claim 1. We will address Appellants’ arguments
for claims 3, 7, 12, 13, and 27.
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Appeal 2007-1260
Application 10/468,487

the claimed mixing conditions, and if so, are Appellants’ arguments
sufficient to rebut any prima facie case of obviousness established by the
Examiner?
We determine that the Examiner has established a prima facie case of
obviousness in view of the reference evidence, which prima facie case has
not been adequately rebutted by Appellants’ arguments. Therefore, we
AFFIRM the rejection presented in this appeal essentially for the reasons
stated in the Answer, as well as those reasons set forth below.
OPINION
We determine the following factual findings from the record in this
appeal:
Fishback describes the manufacturing of polyisocyanurate based
foams wherein an isocyanate compound is mixed with a polyol compound
combined with a hydrocarbon blowing agent premix. Fishback discloses the
blowing agent is mixed into the polyol composition prior to reacting the
foaming reaction (col. 8, ll. 64-68).
Appellants acknowledge that Fishback discloses the polyol
component and the blowing agent are premixed in a tank using a drill press
that is subsequently gravity fed into a day tank prior to pumping the mixture
into an impingement mixhead (Br. 3-4). Appellants contend that Fishback is
silent on the exact pressure of the agitation within the in-line mixer (Br. 4).
Regarding the teachings of Fishback, Appellants (Br. 6) state:
Notably, the mixing of blowing agent and polyol in
Fishback occurs in a premix tank and is thereafter transferred to
a day tank for storage until needed. One skilled in the art
would know that such prior art mixing methods occur at
ambient pressures.
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Appeal 2007-1260
Application 10/468,487

Under 35 U.S.C. § 103, the factual inquiry into obviousness requires a
determination of: (1) the scope and content of the prior art; (2) the
differences between the claimed subject matter and the prior art; (3) the level
of ordinary skill in the art; and (4) secondary considerations. See Graham v.
John Deere Co., 383 U.S. 1, 17-18 (1966). “[A]nalysis [of whether the
subject matter of a claim is obvious] need not seek out precise teachings
directed to the specific subject matter of the challenged claim, for a court
can take account of the inferences and creative steps that a person of
ordinary skill in the art would employ.” KSR Int’l Co. v. Teleflex, Inc.,
127 S. Ct. 1727, 1740-41 (2007), quoting In re Kahn, 441 F.3d 977, 988
(Fed. Cir. 2006); see also In re Bozek, 416 F.2d 1385, 1390 (CCPA 1969)
(“Having established that this knowledge was in the art, the examiner could
then properly rely, as put forth by the solicitor, on a conclusion of
obviousness ‘from common knowledge and common sense of the person of
ordinary skill in the art without any specific hint or suggestion in a particular
reference.’”).
Applying the preceding legal principles to the factual findings in the
record of this appeal, we determine that the Examiner has established a
prima facie case of obviousness, which case has not been adequately
rebutted by Appellants’ arguments. As shown by the factual findings above,
we determine that Fishback clearly describes manufacturing
polyisocyanurate based foams wherein an isocyanate compound is mixed
with a polyol compound combined with blowing agent. Fishback does not
identify specific pressure requirements for pre-mixing the polyol compound
with a blowing agent. As such, a person of ordinary skill in the art would
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Appeal 2007-1260
Application 10/468,487

have reasonably expected that the polyol component and the blowing agent
could have been mixed under appropriate pressure conditions. The claimed
invention specifies charging blowing agent and a polyol component to an in-
line continuous mixer at a pressure of less than about 3,400 kPa. This claim
language includes all pressures below 3,400 kPa, including normal
atmospheric pressure. Appellants have not directed us to evidence which
establishes that remixing/agitation of a polyol compound with a blowing
agent within an in-line mixer was known by persons of ordinary skill in the
art to always occur at pressures above 3,400 kpa (see Br. 4). We determine
that Fishback presents sufficient evidence for a person of ordinary skill in
the art to perform the method of the claimed invention. Therefore, we
determine that it would have been well within the ordinary skill in this art to
perform the method of producing polyisocyanurate based foams comprising
contacting an isocyanate compound containing stream with a stream
comprising a polyol and a blowing agent.
Appellants contend that the claimed invention is patentable because
the blowing agent and the polyol component are continuously charged from
separate streams to form the reaction stream not including a day tank (Br. 4).
We do not agree. The claimed invention does not exclude continuously
charging the individual components into a separate tank prior to mixing with
the stream comprising the isocyanate component. In fact, the claimed
invention requires the blowing agent and the polyol component to be
combined to formulate the B-side stream which is subsequently mixed with
the stream comprising the isocyanate component.
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Appeal 2007-1260
Application 10/468,487

Appellants’ arguments regarding claims 7, 12, 13, and 27 are not
persuasive. As to claims 7, 12, and 13, Appellants identify the specific
characteristic of the in-line mixer and comment that Fishback does not
provide the details of the mixer utilized. (Br. 5). These arguments are not
persuasive because Appellants have not established the patentable
distinction of the characteristics of the mixer from those known in the art.
Regarding claim 27, Appellants identify the pressure range of 100kPa to
about 860kPa. (Br. 6). This range encompasses ambient conditions.
We note Appellants have not relied upon evidence of unexpected
results in rebuttal to the Examiner’s prima facie case of obviousness.
For the foregoing reasons and those stated in the Answer, we affirm
all grounds of rejection presented in this appeal.
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)(iv).
AFFIRMED

tf/ls

Bridgestone Americas Holding Inc
Chief Intellectual Property Counsel
1200 Firestone Parkway
Akron, OH 44317-0001
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