Ex Parte Heslop et al

Board of Patent Appeals and Interferences

Nov 10, 2011

10492754 (B.P.A.I. Nov. 10, 2011)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
10/492,754 04/16/2004 David Heslop 4702-129 3128
23117 7590 11/14/2011
NIXON & VANDERHYE, PC
901 NORTH GLEBE ROAD, 11TH FLOOR
ARLINGTON, VA 22203
EXAMINER
CHEUNG, WILLIAM K
ART UNIT PAPER NUMBER
1762
MAIL DATE DELIVERY MODE
11/14/2011 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
________________

Ex parte DAVID HESLOP and ERIC OSMONT
________________

Appeal 2010-007909
Application 10/492,754
Technology Center 1700
________________

Before CHARLES F. WARREN, TERRY J. OWENS, and
MICHAEL P. COLAIANNI, Administrative Patent Judges.

OWENS, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
The Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 1-6, which are all of the pending claims. We have
jurisdiction under 35 U.S.C. § 6(b).
The Invention
The Appellants claim a process for controlling the (co)polymerization
of olefins. Claim 1 is illustrative:

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Application 10/492,754

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1. A process for controlling the (co)polymerization of olefins in a
continuous polymerization reactor comprising:

a) performing olefin (co)polymerization in the presence of a
polymerization catalyst in a continuous polymerization reactor;

b) selecting the operating conditions for the production of a given
polymer grade;

c) measuring the value of the chain branching level (CBL) of said
produced polymer, said value being within a range of 1 to 7 and being the
average frequency of branches along a (co)polymer backbone and at its
extremity expressed in number of branches per thousand carbons; and

d) controlling the flexural modulus of the polymer produced by
taking one or more actions with respect to the operating conditions to
maintain said CBL, said flexural modulus being between 700 and 1400 MPa.

The References
Fulks 4,532,311 Jul. 30, 1985
Brown 6,218,484 B1 Apr. 17, 2001

The Rejections
The claims stand rejected as follows: claims 1-4 under
35 U.S.C. § 102(b) over Fulks, and claims 5 and 6 under 35 U.S.C. § 103
over Fulks in view of Brown.
OPINION
We reverse the rejections. We need to address only the independent
claims (1 and 2) which require measuring (claim 1) or determining (claim 2)
a polymer’s chain branching level (CBL) and taking one or more actions
with respect to operating conditions for producing the polymer (claim 1) or
adjusting polymerization reactive conditions (claim 2) such that the CBL is
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Application 10/492,754

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maintained between 1-7, thereby controlling the polymer’s flexural modulus
between 700 and 1400 MPa.1
Fulks discloses, with respect to polymerization of alpha olefins in
certain fluid bed reactors using certain titanium compound or magnesium
compound catalysts supported on a porous silica substrate, that after a brief
period of operation, sheets of fused polymeric material form in the reactor
and plug product discharge systems, forcing shutdown of the reactor (col. 1,
ll. 41-43; col. 2, l. 61; col. 2, l. 68 – col. 3, l. 4; col. 4, ll. 25-32, 43-46).
Fulks reduces or eliminates sheeting by treating the reactor vessel walls,
prior to the commencement of polymerization, with a chromium-containing
compound in which the chromium has a valence of 2 or 3 (col. 4, ll. 51-55;
col. 10, ll. 13-19).
The Examiner argues that Fulks’ Examples 1-8 show operating
temperatures being varied in a controlled manner to obtain polymers having
different degrees of short chain branching (Ans. 3).
The Examiner does not point out, and it is not apparent, where Fulks’
Examples 1-8 include any disclosure regarding degrees of short chain
branching.
The Examiner argues that “[i]n view of the fact that ‘CBL’ can be
measured from analytical methods, such [as] flexural modulus or the density
properties of the polymer produced because [of] their excellent correlation
with ‘CBL’, the examiner has a reasonable basis that the controlling [of] any

1 The Examiner does not rely upon Brown for any disclosure that remedies
the deficiency in Fulks as to the independent claims or, in the rejection of
claims 5 and 6, rely upon any obviousness rationale regarding the limitations
in the independent claims (Ans. 5-6).
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one of the three properties argued, would inherently control the other two
properties as well” (Ans. 9)
In support of the argument that CBL can be measured from flexural
modulus the Examiner relies (Ans. 6, 8) upon the Appellants’ disclosure that
“[a]ccording to a preferred embodiment of the present invention, and for the
purposes of the present invention and appended claims, measurement of the
chain branching level (CBL) of the produced polymer means a numerical
measurement obtained by using an experimental analytical procedure which
is applied to the produced polymer” (Spec. 5:5-9). That disclosure says
nothing about CBL being measured from flexural modulus. The Appellants’
disclosed techniques for measuring CBL are nuclear magnetic resonance,
Fourier transform infrared spectrometry, and pyrolysis coupled with gas
chromatography (Spec. 4:15-16, 26-28).
In support of the argument that CBL can be measured from density
the Examiner relies upon the Appellants’ Figures 1-3 and argues that
because, according to those figures, flexural modulus correlates well with
both CBL and density, CBL must correlate well with density (Ans. 10-11).
The Appellants have provided two declarations by David Heslop (filed
Jan. 30, 2006 and Sep. 28, 2006) which show that there is no linear
relationship between CBL and density (Jan. 30, 2006 declaration ¶ 4; Fig. 1)
or between log (1/CBL) and density (Sep. 28, 2006 declaration ¶¶ 3, 6;
Fig. 1), and have provided a third declaration (filed Mar. 8, 2007) where in
Heslop states that “I am not aware of any simple mathematical relationship
between CBL and density or vice versa” (¶ 4). The Examiner has provided
no evidence to the contrary.
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The Examiner argues that Fulks “clearly disclose[s] a sample having a
density of 0.965 [Table 1, Example 8] which inherently possess[es] the
claimed ‘CBL’ range of 1 to 7 and the claimed flexural modulus of 700 to
1400 MPa” (Ans. 4).
Both of the Appellants’ Figures 1 and 2 show that a product density of
0.965 corresponds to a flexural modulus above1400 MPa, not to a flexural
modulus within the 700-1400 range required by the Appellants’ claims. As
pointed out above, the Examiner has not established that a density of 0.965
necessarily correlates with a CBL within the Appellants’ 1-7 range.
Thus, the Examiner has not carried the burden of establishing a prima
facie case of anticipation over Fulks by pointing out where all of the claim
limitations appear, either expressly or inherently, in that reference. See In re
Spada, 911 F.2d 705, 708 (Fed. Cir. 1990); Corning Glass Works v.
Sumitomo Elec. U.S.A., Inc., 868 F.2d 1251, 1255-56 (Fed. Cir. 1989); In re
King, 801 F.2d 1324, 1327 (Fed. Cir. 1986).
DECISION/ORDER
The rejections of claims 1-4 under 35 U.S.C. § 102(b) over Fulks, and
claims 5 and 6 under 35 U.S.C. § 103 over Fulks in view of Brown are
reversed.
It is ordered that the Examiner’s decision is reversed.
REVERSED

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