Ex Parte Effler et al

Patent Trial and Appeal Board

Sep 28, 2017

14118652 (P.T.A.B. Sep. 28, 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.
14/118,652 11/19/2013 Lawrence J. Effler 70814-US-PCT 5864
133320 7590 10/02/2017
The Dow Phemiral Pnmnanv/Dinsimnre Rr Shnhl T T P
EXAMINER
Fifth Third Center
One South Main Street, Suite 1300
ORTMAN JR., KEVIN C
Dayton, OH 45402 ART UNIT PAPER NUMBER
1782
NOTIFICATION DATE DELIVERY MODE
10/02/2017 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):
ffuimpc@dow.com
dowip@dinsmore.com
cprovini@dinsmore.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte LAWRENCE J. EFFLER, NILESH R. SAVARGAONKAR,
TERESA P. KARJALA, CRISTINA SERRAT, and JIAN WANG
Appeal 2017-001360
Application 14/118,652
Technology Center 1700
Before PETER F. KRATZ, GRACE KARAFFA OBERMANN, and
JEFFREY R. SNAY, Administrative Patent Judges.
KRATZ, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on an appeal under 35 U.S.C. § 134 from the
Examiner’s final rejection of claims 1—6. We have jurisdiction pursuant to
35 U.S.C. §6.
We affirm.
Appellants’ claimed invention is directed to a polyethylene blend
composition comprising a melt blending product of a heterogeneous linear
low density polyethylene with a first low density polyethylene and a second
low density polyethylene each having a density, a melt index, and, in the
case of the low density polyethylenes, a molecular weight distribution within
specified ranges with the proviso that the melt index of the first low density
Appeal 2017-001360
Application 14/118,652
polyethylene and second low density polyethylene are different from each
other.
Claim 1 is illustrative and reproduced below:
1. A polyethylene blend composition suitable for blown
film comprising the melt
blending product of:
from 0.5 to 5 percent or less by weight of a first low
density polyethylene 51 *having a
density in the range of from 0.915 to 0.935 g/cm3, and a
melt index (I2) in the range of from greater than 0.8 to less than
or equal to 5 g/10 minutes, and a molecular weight distribution
(Mw/Mn) in the range of from 6 to 10;
from 5 to 50 percent by weight of a second low density
polyethylene having a density in the range of from 0.915 to
0.935 g/cm3, and a melt index (I2) in the range of from 0.1 to
less than or equal to 5 g/10 minutes, and a molecular weight
distribution (Mw/Mn) in the range of from 6 to 10; with the
proviso that the second low density polyethylene has a melt
index (I2) that is different from the melt index (I2) of first low
density polyethylene;
from 44 percent or greater by weight of a heterogeneous
linear low density polyethylene having a density in the range of
from 0.917 to 0.950 g/cm3, and a melt index (I2) in the range of
from 0.1 to less than or equal to 5 g/10 minutes;
optionally a hydrotalcite based neutralizing agent;
optionally one or more nucleating agents; and
optionally one or more antioxidants.
The Examiner relies on the following prior art references as evidence
in rejecting the appealed claims:
1 The numeral “5” appearing after “polyethylene” seems to be an erroneous
inclusion in claim 1.
2
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Application 14/118,652
Kale et al. US 5,582,923 Dec. 10, 1996
Schramm et al. US 7,250,473 B2 July 31, 2007
Takao Usami et al., Fine-Branching Structure in High-Pressure, Low-
Density Polyethylenes by 50.10-MHz 13C NMR Analysis, 17:9
Macromolecules (1984) (“Usami”).
The Examiner maintains the following ground of rejection:
Claims 1—6 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Kale in view of Schramm, as evidenced by Usami.
Appellants’ arguments expose no reversible error in the Examiner’s
obviousness rejection; consequently, we affirm the stated rejection for
substantially the fact findings and reasons as set forth by the Examiner
(Final Act. 2—6, 10-14; Ans. 3—7, 10-15). We add the following for
emphasis.
Appellants argue the rejected claims together as a group. Accordingly
we select claim 1 as the representative claim on which we decide this appeal.
The Examiner finds, inter alia, that Kale teaches or suggests a
polyethylene composition blend that includes:
(a) at least one high pressure low density ethylene polymer having
a density, melt index and molecular weight distribution ratio within
ranges that overlap with the ranges for density, melt index, and
molecular weight ratio of the first and the second low density
polyethylene components of Appellants’ claim 1, as well as teaching
or suggesting a total amount of such low density polyethylene (about
5 to 25 percent, by weight) for Kale’s composition that corresponds
with the amount of low density polyethylene required for the
composition of claim 1; and
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Application 14/118,652
(b) about 75 to 95 weight percent of at least one ethylene/alpha-
olefin interpolymer, such as a heterogeneous substantially linear low
density polyethylene (LLDPE) having a melt index range and a
molecular weight distribution range that substantially overlaps with
and/or corresponds to the heterogeneous LLDPE requirements for the
composition of representative claim 1 (Pinal Act. 3^4; Kale, col. 5,11.
10-25, 56-60, col. 6,11. 65-67, col. 7,11. 1-6, col. 10,11. 30-35).
Based on Kale’s teaching of including at least one low density
ethylene polymer in the composition and Kale’s teaching of a bimodal
distribution coupled with the disclosure of Schramm of achieving a bimodal
distribution of polyethylene via blending of a higher molecular weight
ethylene polymer with a lower weight ethylene polymer to obtain a blended
material having desirable properties, the Examiner maintains that one of
ordinary skill in the art would have been obviously led to select low density
polyethylene having differing properties, such as molecular weight or melt
index, when employing more than one low density polyethylene for the
composition of Kale, as suggested by Kale as an option and particularly
given the additional teachings of Schramm with respect to selecting
polymers of differing molecular weights (melt indexes) in forming a blended
polyethylene product composition (Final Act. 4—6).
Appellants essentially argue that the Examiner’s proposed
combination of references fails because Schramm blends different molecular
weight LLDPE polymers, not LDPE polymers of differing melt indexes;
thus, the combination would not suggest the blended LDPE constituents
required by claim 1.
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Application 14/118,652
This argument is not persuasive of substantive error in the Examiner’s
obviousness determination for reasons stated by the Examiner in the Final
Office Action and the Answer. In this regard, the Examiner relies on Kale to
teach using more than one (at least one) LDPE constituent in the
composition of Kale (Ans. 11—12). Of course, when choosing to include
more than one LDPE, such as two LDPE’s, each LDPE could have the same
or a different melt indexes. For reasons presented by the Examiner, and as
made manifest to a skilled artisan when choosing to employ more than one
LDPE in the composition as suggested by Kale, the selection of a second
LDPE with a different melt index than that of a first LDPE would have been
a readily apparent option. Looked at another way, Appellants have not
proffered any reason as to why an ordinary skilled artisan would have been
limited to select other LDPE’s of only precisely the same melt index when
employing more than one LDPE for use in Kale’s composition. Kale
provides no such constraining instruction for using more than one LDPE in
the composition as otherwise suggested by Kale.
In addition, Appellants argue that the claimed subject matter is
attended by unexpected results in terms of improved output rates in forming
blown films as urged to be evinced by Table 3 of the subject Specification
showing comparative results for certain example compositions versus certain
comparative examples (App. Br. 9—10; Reply Br. 5—6; Spec. 11—16, Table
3).2
2 Appellants do not present a separate argument limited to dependent claim 2
which requires a composition, that when a blown film product is made,
allows for at least a 6 percent improvement in output rate relative to an
unspecified similar composition. In any event, we observe that the called for
improvement has not been shown to be unexpected and the similarity of the
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Application 14/118,652
For reasons set forth by the Examiner, the limited examples presented
for comparison in Table 3 fail to establish unexpected results, much less
unexpected results for a composition co-extensive in scope with the claimed
subject matter over the closest prior art (Ans. 14—15).
It follows that we shall sustain the Examiner’s obviousness rejection.
CONCLUSION
The Examiner’s decision to reject the appealed claims 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).
AFFIRMED
comparison composition is not delimited by the term “similar” in claim 2,
which renders the recited output rate improvement based on the
incompletely specified comparison composition as a limitation that would
not appear to further distinguish that claim from the applied prior art.
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