10974385 (B.P.A.I. Jul. 31, 2009)

Ex Parte Farha

Board of Patent Appeals and InterferencesJul 31, 2009

10974385 (B.P.A.I. Jul. 31, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE ________________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ________________ Ex parte SAID FARHA ________________ Appeal 2009-005364 Application 10/974,385 Technology Center 1700 ________________ Decided:1 July 31, 2009 ________________ Before EDWARD C. KIMLIN, CHARLES F. WARREN, and TERRY J. OWENS, Administrative Patent Judges. OWENS, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE The Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s rejection of claims 1-8 and 12. Claims 9-11, 13, and 14, which are all of the 1 The two-month time period for filing an appeal or commencing a civil action, as recited in 37 C.F.R. § 1.304, begins to run from the Decided Date shown on this page of the decision. The time period does not run from the Mail Date (paper delivery) or Notification Date (electronic delivery). Appeal 2009-005364 Application 10/974,385 2 other pending claims, stand withdrawn from consideration by the Examiner. We have jurisdiction under 35 U.S.C. § 6(b). The Invention The Appellant claims an insulating label and a container comprising the insulating label. Claim 1 is illustrative: 1. An insulating label for maintaining the temperature of the contents of a package, the insulating label comprising: a polymeric thermoplastic closed cell foam having first and second surfaces and from about 5,000 to about 250,000 closed cells per cubic inch. The References Ast 5,085,906 Feb. 4, 1992 Handa 6,402,865 B1 Jun. 11, 2002 The Rejections Claims 1-8, and 12 stand rejected under 35 U.S.C. § 103 over Ast in view of Handa. OPINION We affirm the Examiner’s rejection. Issue Has the Appellant shown reversible error in the Examiner’s determination that the applied prior art would have rendered prima facie obvious, to one of ordinary skill in the art, an insulating label comprising a closed cell foam having about 5,000 to about 250,000 closed cells per cubic inch? Findings of Fact Ast discloses an adhesive label for a container such as a food container (col. 1, ll. 8-9, 28-34). The label includes a foamed polypropylene Appeal 2009-005364 Application 10/974,385 3 layer that “significantly improves the effectiveness of the thermal insulation of the container” (col. 2, ll. 43-45, 58-59; Fig. 1). Handa teaches that “[t]he excellent insulation properties of foams arise from the presence of closed cells containing air or a blowing agent” (col. 4, ll. 60-62), and that “[t]he greater the number of cells in a given volume, the greater the resistance to energy transfer” (col. 4, l. 67 – col. 5, l. 2). Handa discloses that nanofoams, which are polymer foams having very small cells, have been developed by others (col. 1, ll. 29-30).2 Analysis The Appellant argues that Handa “does not disclose or suggest using the polymeric materials for food containers” (Br. 3). The Appellant argues that Handa’s disclosure that the polymeric material has good electrical and sound insulating properties (in addition to good thermal insulation properties) (col. 1, ll. 55-57) supports the use of the polymeric material for coaxial cables and construction boards which, Handa discloses, are among the known uses of polymer foams generally (col. 1, ll. 13-15), but not for insulating labels (Br. 4). Handa’s polymeric material comprises polymer layers separated by narrow gas-containing gaps having a size of a few nanometers to a few micrometers (col. 1, ll. 62-66). Handa discloses (col. 4, l. 58 – col. 5, l. 2): The design of multilayered polymers is based on the analysis of polymer foams that are widely used for thermal and electrical insulation purposes. The excellent insulation properties of foams arise from the presence of closed cells containing air or a blowing agent 2 The Appellant acknowledges that Microfoam®, having approximately 50,000 closed cells per cubic inch, was commercially available in thick- nesses as small as 1/32 inch (Spec. § 0016). Appeal 2009-005364 Application 10/974,385 4 . . . . The greater the number of cells in a given volume, the greater the resistance to energy transfer. The disclosures that closed cells provide excellent insulation properties and that the resistance to energy transfer increases as the number of closed cells increases would have led one of ordinary skill in the art, through no more than ordinary creativity, to make Ast’s foam a closed cell foam and to use a large number of cells to provide the effective thermal insulation desired by Ast (col. 2, ll. 43-45). See KSR Int’l. Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007) (In making an obviousness determination one “can take account of the inferences and creative steps that a person of ordinary skill in the art would employ”). The Appellant argues that Handa does not disclose a cell density of about 5,000 to about 250,000 closed cells per cubic inch (Br. 5-6). Handa’s disclosures that the resistance to energy transfer increases as the number of cells in a given volume increases (col. 4, l. 67 – col. 5, l. 2) and that closed cell foams having nanometer-sized closed cells were known (col. 1, ll. 29-41) would have led one of ordinary skill in the art, through no more than ordinary creativity, to use nanometer-sized closed cells in Ast’s label to obtain the desired effective thermal insulation (col. 2, ll. 43-45), with the particular number of cells per cubic inch, such as a number in the range of about 5,000 to about 250,000, being selected based upon the desired degree of thermal insulation. Conclusion of Law The Appellant has not shown reversible error in the Examiner’s determination that the applied prior art would have rendered prima facie Appeal 2009-005364 Application 10/974,385 5 obvious, to one of ordinary skill in the art, an insulating label comprising a closed cell foam having about 5,000 to about 250,000 closed cells per cubic inch. DECISION/ORDER The rejection of claims 1-8 and 12 under 35 U.S.C. § 103 over Ast in view of Handa is affirmed. It is ordered that the Examiner’s decision 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 cam BANNER & WITCOFF, LTD. ATTORNEYS FOR CLIENT NO. 006943 10 SOUTH WACKER DR. SUITE 3000 CHICAGO IL 60606