Ex Parte Gijsman et alDownload PDFPatent Trial and Appeal BoardMay 8, 201813981434 (P.T.A.B. May. 8, 2018) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/981,434 10/08/2013 23117 7590 05/10/2018 NIXON & V ANDERHYE, PC 901 NORTH GLEBE ROAD, 11 TH FLOOR ARLINGTON, VA 22203 FIRST NAMED INVENTOR Pieter Gijsman 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 ATTORNEY DOCKET NO. CONFIRMATION NO. BHD-4662-2595 8091 EXAMINER VO, HAI ART UNIT PAPER NUMBER 1788 NOTIFICATION DATE DELIVERY MODE 05/10/2018 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): PTOMAIL@nixonvan.com pair_nixon@firsttofile.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte PIETER GUSMAN, MARTIN PIETER VLASBLOM, GERARDUS ABEN, and HANS SCHNEIDERS Appeal2017-005904 Application 13/981,434 Technology Center 1700 Before BRADLEY R. GARRIS, JEFFREY B. ROBERTSON, and JANEE. INGLESE, Administrative Patent Judges. INGLESE, Administrative Patent Judge. DECISION ON APPEAL Appellants 1 request our review under 35 U.S.C. § 134(a) of the Examiner's decision to finally reject claims 1---6, 8-13, and 16-19. We have jurisdiction over this appeal under 35 U.S.C. § 6(b ). We AFFIRM. 1 Appellants identify DSM IP Assets B.V. as the real party in interest. Appeal Brief filed June 29, 2016 ("App. Br."), 2. Appeal2017-005904 Application 13/981,434 STATEMENT OF THE CASE Appellants claim a coated high strength fiber. App. Br. 4. Claim 1 illustrates the subject matter on appeal and is reproduced below: 1. A coated high strength fiber comprising an ultrahigh molecular weight polyolefin fiber, and a coating composition coated on the fiber, wherein the coating composition comprises a UV absorber in an amount between 2 wt.% and 80 wt.% compared to the total weight of the coating composition based on solids, and a cross-linked silicone polymer as a carrier for the UV absorber. App. Br. 12 (Claims Appendix) (spacing added). The Examiner sets forth the following rejections in the Final Office Action entered January 29, 2016 ("Final Act."), and maintains the rejections in the Examiner's Answer entered December 22, 2016 ("Ans."): I. Claims 1, 3, 4, 6, 8-13, and 162-19 under 35 U.S.C. § 103(a) as unpatentable over Bosman (US 2009/0165637 Al, published July 2, 2009) in view of Ching (US 4,316,033, issued February 16, 1982) and Kuck3 (US 2002/0122946 Al, published September 5, 2002); and II. Claims 2-5 under 35 U.S.C. § 103(a) as unpatentable over 2 It is apparent that claim 16 was inadvertently omitted from the heading for Rejection I because the subject matter of this claim is discussed in the body of the rejection. Final Act. 8. This inadvertent omission is harmless, particularly because Appellants do not present separate arguments specifically directed to claim 16. App. Br. 5-10. 3 The Examiner acknowledges in the Answer that Kuck was erroneously omitted from the heading for Rejection I on page 6 of the Final Action, and confirms that the rejection is based on a combination of Bosman, Ching, and Kuck. Compare Final Act. 6, with Ans. 6. 2 Appeal2017-005904 Application 13/981,434 Bosman in view of Ching, Kuck, and Stueber (Ultraviolet Stabilizers of the 2-(2 '-Hydroxyphenyl)-1,3,5-triazine Class: Structural and Spectroscopic Characterization, 99 J. Phys. Chem. 10097 (1995)). DISCUSSION Upon consideration of the evidence relied upon in this appeal and each of Appellants' contentions, we affirm the Examiner's rejections of claims 1-6, 8-13, and 16-19 under 35 U.S.C. § 103(a) for the reasons set forth in the Final Action, the Answer, and below. Rejection I Appellants argue claims 1, 3, 4, 6, 8-13, and 16-19 as a group. App. Br. 5-10. We accordingly select claim 1 as representative, and decide the appeal as to claims 1, 3, 4, 6, 8-13, and 16-19 based on claim 1 alone. 37 C.F.R. § 41.37(c)(l)(iv). Bosman discloses a load-bearing rope used in marine and commercial fishing applications that contains a plurality of strands comprising fibers made from ultra-high molecular weight polyethylene. i-fi-13, 24. Bosman discloses that a coating can be applied to the rope to enhance its resistance to abrasion and improve its bending fatigue life. i136, 37, 45. Bosman discloses that suitable coating materials include silicone compounds. i-fi-137, 40. The Examiner finds that Bosman is silent regarding inclusion of a UV absorber in the silicone coating applied to Bosman's rope, and relies on Ching for suggesting this feature. Final Act. 6-7. Ching discloses a silicone coating composition containing a UV stabilizer that imparts improved abrasion resistance and UV stabilization to thermoplastic organic polymer substrates coated with the composition. Abstract; col. 1, 11. 34--4 7. The 3 Appeal2017-005904 Application 13/981,434 Examiner determines that it would have been obvious to one of ordinary skill in the art at the time of Appellants' invention to substitute the silicone coating comprising a UV absorber taught by Ching for the silicone coating disclosed in Bosman to provide Bosman's "coated ultrahigh molecular weight polyolefin fibers with improved abrasion resistance and UV stabilization." Final Act. 7. The Examiner finds that this proposed combination of Bosman and Ching is "silent regarding a cross-linked silicone polymer," and the Examiner relies on Kuck to address this feature. Final Act. 7-8. Kuck discloses a tear-resistant strongly adherent coating composition comprising cross-linked silicone polymers. i-fi-12, 7, 8, 44, 45. The Examiner determines that it would have been obvious to one of ordinary skill in the art at the time of Appellants' invention to cross link the silicone in Ching's coating composition comprising a UV absorber-applied to Bosman's rope-to produce a more tear-resistant coating as taught by Kuck. Final Act. 8. Appellants argue that Bosman is silent regarding inclusion of a UV absorber in the coating described in the reference, and contend that paragraph 29 of Bosman makes clear that any additive, such as a stabilizer/UV absorber, may be incorporated in small amounts into the fibers of the rope, rather than the coating. App. Br. 5-7. Appellants assert that one of ordinary skill in the art would have incorporated the UV stabilizer disclosed in Ching into the ultra-high molecular weight polyethylene fibers of Bosman's rope instead of the coating, because "that is what ... Bosman[] instructs one to do." App. Br. 7. However, as the Examiner correctly finds, Ching's disclosure of a silicone coating composition containing a UV absorber that imparts 4 Appeal2017-005904 Application 13/981,434 improved abrasion resistance and UV stabilization would have led one of ordinary skill in the art to substitute such a coating composition for the silicone coating disclosed in Bosman to provide improved abrasion resistance and UV stabilization to Bosman's rope. Final Act. 7. We find no disclosure in Bosman indicating that the coating composition disclosed in Ching could not be successfully utilized to coat the rope comprising fibers made from ultra-high molecular weight polyethylene described in Bosman. Rather, Bosman broadly discloses that "[t]he rope can also further comprise any customary coating or sizing, which coating may protect the rope or act as lubricant to further enhance resistance to abrasion," and indicates that suitable coatings contain "silicone compounds." i-fi-135, 37, 40. In view of Ching's disclosure that the UV-absorber-containing silicone coating composition described in the reference imparts improved abrasion resistance as well as UV stabilization, one of ordinary skill in the art would have been led to apply such a "customary" silicone coating to Bosman's rope "to further enhance resistance to abrasion" and provide UV stabilization. Although Bosman does disclose that the fibers of the rope described in the reference may contain a customary additive such as a thermal stabilizer (i-f 29), this disclosure does not negate Bosman's teaching of coating the rope with "any customary coating"-such as the coating disclosed in Ching-"to further enhance resistance to abrasion." In re Mercier, 515 F.2d 1161, 1165 (CCPA 1975) ("[A]ll of the relevant teachings of the cited references must be considered in determining what they fairly teach to one having ordinary skill in the art."). Therefore, even if one of ordinary skill in the art would have included a thermal stabilizer in the fibers of Bosman's rope, the ordinarily skilled artisan would have recognized that 5 Appeal2017-005904 Application 13/981,434 also applying the UV-absorber-containing silicone coating disclosed in Ching to the rope as the "customary coating" taught in Bosman would provide the benefits of resistance to abrasion and UV stabilization. Cf In re Kerkhoven, 626 F.2d 846, 850 (CCPA 1980) ("It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition which is to be used for the very same purpose."). Appellants also argue that Kuck's disclosure of cross-linked silicone coatings would not have led one of ordinary skill in the art to use such a coating as a carrier for a UV absorber because Bosman teaches that any such additive/stabilizer should be in the fibers of Bosman's rope, not in the coating applied to the rope. App. Br. 8. However, as discussed above, one of ordinary skill in the art would have utilized the UV-absorber-containing silicone coating composition disclosed in Ching as the "customary coating" for Bosman's rope to provide resistance to abrasion and UV stabilization. As the Examiner correctly finds, Kuck's disclosure of a tear-resistant, strongly adherent coating composition comprising cross-linked silicone polymers reasonably would have led one of ordinary skill in the art to cross link the silicone in Ching's UV-absorber containing coating composition (applied to Bosman's rope) to enhance the tear-resistance and adherence of the coating. Final Act. 7-8. Appellants further argue that the Examiner's assertion that the lack of disclosure in Bosman of specifically excluding additives from the fibers of Bosman's rope would have suggested including such additives in the coating applied to the rope "amounts to mere erroneous speculation that is not 6 Appeal2017-005904 Application 13/981,434 supported by the facts" and "can only be derived from the present applicant's disclosure." App. Br. 6-7, 10; Reply Br. 1. However, Appellants appear to misapprehend the Examiner's statements, which are set forth in the Response to Arguments section of the Final Action and the Answer. Final Act. 3; Ans. 6. Rather than indicating that lack of disclosure in Bosman of excluding additives from the fibers of Bosman's rope would have suggested including such additives in the coating as Appellants assert, the Examiner correctly finds that paragraph 29 of Bosman does not limit use of a stabilizer/absorber to only the fibers of Bosman's rope, and further correctly finds Bosman does not disclose excluding the stabilizer/absorber from the silicone coating. Id. Therefore, considering the totality of the evidence relied upon in this appeal 4, a preponderance of the evidence weighs in favor of the Examiner's conclusion of obviousness. We accordingly sustain the Examiner's rejection of claims 1, 3, 4, 6, 8-13, and 16-19 under 35 U.S.C. § 103(a). Rejection II To address this rejection, Appellants rely on the arguments presented for Rejection I (discussed above), and argue that the additional reference applied in this rejection-Steuber-fails to cure the deficiencies of the combination of Bosman, Ching, and Kuck. App. Br. 10-11. Because we are unpersuaded of reversible error in the Examiner's rejection of claim 1 for the 4 We do not consider the arguments that Appellants present for the first time at pages 2-3 of their Reply Brief because Appellants do not show good cause for raising these arguments in their Reply Brief. 37 C.F.R. § 41.37( c )(1 )(iv); 37 C.F.R. § 41.41 (b )(2) (arguments raised for the first time in the Reply Brief that could have been raised in the Appeal Brief will not be considered by the Board unless good cause is shown). 7 Appeal2017-005904 Application 13/981,434 reasons discussed above, Appellants' position as to this rejection is also without merit. We accordingly sustain the Examiner's rejection of claims 2- 5 under 35 U.S.C. § 103(a). DECISION We affirm the Examiner's rejections of claims 1-6, 8-13, and 16-19 under 35 U.S.C. § 103(a). 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 8 Copy with citationCopy as parenthetical citation