Ex parte Duffin

Board of Patent Appeals and Interferences

Sep 29, 1999

08241888 (B.P.A.I. Sep. 29, 1999)

Application for patent filed May 12, 1994.1
THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered today (1) was
not written for publication in a law journal and (2) is not binding
precedent of the Board.
Paper No. 14
UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________
Ex parte ROBERT J. DUFFIN JR.
____________
Appeal No. 1996-0708
Application No. 08/241,8881
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ON BRIEF
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Before KIMLIN, HANLON, and PAK, Administrative Patent Judges.
PAK, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on an appeal from the examiner’s final
rejection of claims 1 through 30 which are all of the claims
pending in the application.
Appeal No. 1996-0708 Page 2
Application No. 08/241,888
Claims 1, 10, 14 and 23 are representative of the subject
matter on appeal and read as follows:
1. A process for producing a flame proofing or fire
retardant concentrate comprises the step of dehydrating a
mixture of hydrated sodium antimonate and at least one polymer
in a vented or vacuum apparatus at a temperature above 200°C
and below 500°.
10. A process for flame retarding a polymer or resin
composition with the steps: (1) dehydrating a mixture of an
alkyl tetrabromophthalate and/or tribromophthalate and
brominated polystyrene at a temperature between 200°C and
300°C; (2) combining the dehydrated mixture with polymer or
resin in an extruder; and (3) dispersing by means of an
extruder to produce a flame-retarded composition.
14. A process for flame proofing a glass-filled
polyethylene terephthalate or polybutylene terphthalate
compositions with steps: (1) dehydrating a mixture of an alkyl
tetrabromophthalate and/or tribormophthalate
[sic, tribromophthalate] and hydrated sodium antimonate and
brominated polystyrene at a temperature between 200° and
300°C; (2) combining the dehydrated mixture with polyethylene
terephthalate or polybutylene terephthalate and glass fiber;
and (3) blending the ingredients to prepare a flame retarded
terephthalate composition.
23. A process for producing a flame proofing or fire
retardant pellet comprising the steps: (1) mixing 10 to 90
parts by weight sodium antimonate with a water content of
about 2.9% with 10 to 90 parts by weight carrier polymer and
0.5 to 1.5 parts by weight antioxidant to prepare a
concentrate precursor; (2) processing the concentrate
precursor in a vented or vacuum apparatus at a temperature
between 200°C and 500°C to remove the majority of the water
from the concentrate precursor within at least 30 minutes; and
Appeal No. 1996-0708 Page 3
Application No. 08/241,888
(3) pelletizing the dehydrated concentrate precursor to
produce a pellet with a moisture content below 0.2% by weight.
The prior art references of record relied upon by the
examiner are:
Touval 3,892,667 Jul. 1,
1975
Sandler 4,298,517 Nov. 3,
1981
Breitenfellner et al. 5,034,439 Jul. 23,
1991
(Breitenfellner)
The prior art references at page 5 of the specification
newly relied upon by the Board are:
Miyashita et al. 4,786,663 Nov. 22,
1988
(Miyashita)
Hanabusa 5,258,434 Nov. 2,
1993
(Filed Jan. 22, 1987)
Claims 1 through 30 stand rejected under 35 U.S.C. § 103
as unpatentable over the combined disclosures of Touval,
Breitenfellner and Sandler.
In reaching our decision in this appeal, we have reviewed
the specification, claims and prior art, including all of the
arguments advanced by both the examiner and appellants in
Appeal No. 1996-0708 Page 4
Application No. 08/241,888
support of their respective positions. As a consequence of
this review, we make the determinations which follow.
As evidence of obviousness of the claimed subject matter
under 35 U.S.C. § 103, the examiner relies on the combined
teachings of Touval, Breitenfellner and Sandler. The examiner
relies on Touval to demonstrate that dehydrating a mixture of
a hydrated sodium antimonate and a certain polymer during the
production of a flame proofing or fire retardant would have
been obvious to one of ordinary skill in the art. See Answer,
page 5-8. The examiner then relies on Breitenfellner and
Sandler to establish that the use of the claimed specific
polymers and other ingredients in the process of Touval would
have been obvious to one of ordinary skill in the art. See
Answer, pages 6-8. However, as indicated by appellants at
page 4 of the Reply Brief, Touval does not teach dehydrating a
mixture of a hydrated sodium antimonate and at least one
polymer. Touval teaches drying the hydrated sodium antimonate
prior to incorporating it to a polymer formulation for the
production of a flame proofing or fire retardant in an
extruder. See, e.g., column 6, line 3, column 7, lines 50-53.
Although the examiner appears to argue that Touval inherently
Appeal No. 1996-0708 Page 5
Application No. 08/241,888
dehydrates sodium antimonate during its processing in an
extruder with a polymer, see Answer, page 9, the examiner has
not established that the dried sodium antimonate described in
Touval is necessarily in hydrated form. This deficiency is
not remedied by either Sandler or Breitenfellner.
Accordingly, we are constrained to reverse the examiner’s
decision rejecting claims 1 through 30 under 35 U.S.C. § 103.
OTHER ISSUES
Upon return of this application to the examiner, the
examiner should consider the patentability of the claimed
invention in view of the teachings in Hanabusa and Miyashita.
Hanabusa, for example, discloses homogeneously mixing a
mixture in a V-blender and then melt-extruding the mixture in
a twin-screw extruder having a barrel temperature of 260°C.
See columns 9 and 10. The mixture includes polybutylene
terephthalate, a halogenated phenoxy compound, a hydrated
sodium antimonate and a fatty acid ester. See Tables 1-3 at
columns 9 and 10. The amount of water in the hydrated sodium
antimonate is expressed in terms of mol. See Table 1. Since
Hanabusa describes heating a mixture containing a hydrated
sodium antimonate and a polymer in the environment recited in
Appeal No. 1996-0708 Page 6
Application No. 08/241,888
claim 1, the hydrated sodium antimonate described in Hanabusa
appears to be inherently dehydrated in the presence of a
polymer as required by claim 1. See In re Best, 562 F.2d
1252, 1255, 195 USPQ 430, 433-34 (CCPA 1977). We have not
reviewed the applicability of Hanabusa on the remaining
pending claims in the present application. The examiner is
advised to compare the mixtures described in Hanabusa with the
claimed mixtures to determine whether Hanabusa also affects
the patentability of the remaining claims in the present
application. Similarly, Miyashita describes mixing heat-
treated or not-heat-treated sodium antimonates having
different hygroscopicities (reflect different moisture
contents) with a thermoplastic polyester (a polymer), and
organic and inorganic reinforcing agents in a ribbon blender
and extruder at a temperature of 240°C to 290°C. See column 4
together with column 5, Table 1. Since a hydrated sodium
antimonate and a polymer are mixed at a temperature within the
range recited in claim 1, it appears that the dehydrating step
recited in claim 1 is also inherent in the process described
in Miyashita. We have not reviewed the effect of Miyashita on
the remaining claims pending in the present application. The
Appeal No. 1996-0708 Page 7
Application No. 08/241,888
examiner is advised to compare other claimed features with the
disclosure of Miyashita to determine whether Miyashita also
affects the patentability of the remaining claims in the
present application.
In view of the foregoing, we reverse the examiner’s
decision rejecting claims 1-30 over the combined teachings of
Touval, Breitenfellner and Sandler and remand the application
to the
Appeal No. 1996-0708 Page 8
Application No. 08/241,888
examiner for appropriate action in accordance with the above
stated instructions.
REVERSED/REMAND
EDWARD C. KIMLIN )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
ADRIENE LEPIANE HANLON ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
CHUNG K. PAK )
Administrative Patent Judge )
CKP/jlb
Appeal No. 1996-0708 Page 9
Application No. 08/241,888
JAMES K. LUCHS
ELF ATOCHEM NORTH AMERICA INC.
PATENT DEPARTMENT
2000 MARKET STREET, 26TH FLOOR
PHILADELPHIA, PA 19103