Ex parte HERT et al.

Board of Patent Appeals and Interferences

Mar 30, 2000

08393746 (B.P.A.I. Mar. 30, 2000)

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not binding precedent of the Board.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. 21
UNITED STATES PATENT AND TRADEMARK OFFICE
__________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________
Ex parte MARIUS HERT and PATRICE PERRET
__________
Appeal No. 1997-1299
Application 08/393,746
___________
HEARD: March 23, 2000
___________
Before KIMLIN, JOHN D. SMITH and OWENS, Administrative Patent
Judges.
OWENS, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal from the examiner’s refusal to allow
claims 2, 3 and 9-13 as amended after final rejection. Claims
4-7 stand objected to as being dependent from a rejected
claim. Claims 1 and 8, which are the only other claims in the
application, have been canceled.
Appeal No. 1997-1299
Application 08/393,746
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THE INVENTION
Appellants’ claimed invention is directed toward a
process for preparing a multiphase thermoplastic composition
which comprises a matrix including at least one thermoplastic
polyamide or polyester resin and, dispersed therein, at least
one ethylene polymer which has units derived from unsaturated
epoxy monomers or from unsaturated acid anhydride monomers and
which partially encapsulates at least one thermoplastic
polyamide resin. Claim 12 is illustrative and reads as
follows:
12. A process for preparing a multiphase thermoplastic
composition comprising a mixture (I) that includes at least
one ethylene polymer (A) which has units derived from
unsaturated epoxy monomers or from unsaturated acid anhydride
monomers, and at least one thermoplastic polyamide resin (B)
which is partially encapsulated by the said ethylene polymer
(A), the said mixture (I) being dispersed in a matrix that
includes at least one thermoplastic polyamide or polyester
resin (C), wherein the respective melting temperatures of said
thermoplastic resins (B) and (C) are such that thermoplastic
resin (B) remains partially encapsulated by ethylene polymer
(A) during the manufacture or use of the said composition,
which process comprises the steps:
producing a mixture (I) in at least the first zone of a
kneading tool provided with at least two feed zones, moving
said mixture (I) upstream from said first zone, and
subsequently introducing the thermoplastic resin (C) into a
zone situated upstream of the zone for mixing the constituents
(A) and (B) of the mixture (I), and
dispersing the said mixture (I) in the said thermoplastic
Appeal No. 1997-1299
Application 08/393,746
In this claim, it appears that “upstream” should read1
“downstream”.
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resin (C).[1]
THE REFERENCES
Epstein (Epstein ‘859) 4,172,859 Oct. 30,
1979
Epstein (Epstein ‘358) 4,174,358 Nov. 13,
1979
Hironari et al. (EP ‘280) 0 268 280 May 25,
1988
(European patent application)
THE REJECTION
Claims 2, 3 and 9-13 stand rejected under 35 U.S.C. § 103
as being unpatentable over EP ‘280 in view of Epstein ‘859 and
Epstein ‘358.
OPINION
We have carefully considered all of the arguments
advanced by appellants and the examiner and agree with
appellants that the aforementioned rejection is not well
founded. Accordingly, we reverse this rejection.
Claim 12, which is the only independent claim, requires
that at least one thermoplastic polyamide resin is partially
Appeal No. 1997-1299
Application 08/393,746
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encapsulated by at least one ethylene polymer having units
derived from unsaturated epoxy monomers or from unsaturated
acid anhydride monomers.
EP ‘280 discloses a rubber-like polymer dispersed in an
amorphous polymer such that at least part of the rubber-like
polymer is in the form of a stringy structure or a two-
dimensional or three-dimensional network structure (page 5,
lines 36-37; page 6, lines 1-2 and 9-10). The rubber-like
polymer can be any rubber-like polymer having a storage shear
modulus at room temperature of 5 x 10 dyne/cm or less (page8 2
5, lines 17-19). The exemplified rubber-like polymers include
olefin rubber-like copolymers such as ethylene-propylene
rubber, ethylene-butene rubber and ethylene-propylene-butene
rubber (page 5, lines 20-24).
The Epstein references are relied upon by the examiner
for a suggestion to use in the EP ‘280 process an ethylene
polymer having units derived from unsaturated epoxy monomers
or from unsaturated acid anhydride monomers (answer, page 3).
The examiner argues that figures 3 and 4 of EP ‘280 show
a rubber-like polymer in the form of a network structure in an
Appeal No. 1997-1299
Application 08/393,746
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amorphous polymer such that the rubber-like polymer partially
encapsulates the amorphous polymer (answer, page 4). The
partial encapsulation referred to by the examiner appears to
be the regions in figures 3 and 4 where the rubber-like
polymer, which is the dark portion in each figure, surrounds
the amorphous polymer, which is the light portion. Even if
this argument is correct, for the following reason it is not
persuasive.
As pointed out by appellants (brief, page 12), in both
figures 3 and 4 of EP ‘280, the rubber-type polymer is a
styrene-butadiene rubber and the amorphous polymer is a
polyphenylene ether (page 2, lines 15-16 and 25; page 10,
lines 9-15). The examiner has not provided evidence or
technical reasoning which shows that if, instead of being a
styrene-butadiene rubber, the rubber-like polymer were an
ethylene polymer, particularly one having units derived from
unsaturated epoxy monomers or from unsaturated acid anhydride
monomers, and if this polymer formed a network structure in a
Appeal No. 1997-1299
Application 08/393,746
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thermoplastic polyamide rather than in a polyphenylene ether,
the network structure would be comparable to the network
structures shown in figures 3 and 4 of EP ‘280 and, therefore,
would provide the partial encapsulation relied upon by the
examiner.
Accordingly, we conclude that the examiner has not
carried the burden of establishing a prima facie case of
obviousness of the invention recited in any of appellants’
claims.
DECISION
The rejection of claims 2, 3 and 9-13 under 35 U.S.C.
§ 103 over EP ‘280 in view of Epstein ‘859 and Epstein ‘358 is
reversed.
REVERSED
Appeal No. 1997-1299
Application 08/393,746
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EDWARD C. KIMLIN )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
JOHN D. SMITH )
Administrative Patent Judge ) APPEALS AND
)
) INTERFERENCES
)
TERRY J. OWENS )
Administrative Patent Judge )
TJO/pgg
Pennie and Edmonds
1155 Avenue of The Americas
New York, NY 0036
Appeal No. 1997-1299
Application 08/393,746
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