Ex Parte Hossan et al

Patent Trials and Appeals Board

Jun 26, 2019

14132672 - (D) (P.T.A.B. Jun. 26, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/132,672 12/18/2013
43249 7590 06/28/2019
CANTOR COLBURN LLP - SABIC (NORYL)
20 Church Street
22nd Floor
Hartford, CT 06103
FIRST NAMED INVENTOR
Robert John Hassan
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.
13PLAS0099-US-NP 6357
EXAMINER
WORRELL, KEVIN
ART UNIT PAPER NUMBER
1789
NOTIFICATION DATE DELIVERY MODE
06/28/2019 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):
usptopatentmail@cantorcolbum.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ROBERT JOHN HOSSAN and RICHARD PETERS
Appeal2018-009215
Application 14/132,672
Technology Center 1700
Before CHRISTOPHER C. KENNEDY, JEFFREY R. SNAY, and
SHELDON M. McGEE, Administrative Patent Judges.
SNAY, Administrative Patent Judge.
DECISION ON APPEAL 1
Appellant2 appeals under 35 U.S.C. § 134(a) from the Examiner's
decision rejecting claims 1-3, 5, 8-19, and 23. We have jurisdiction under
35 U.S.C. § 6(b).
We affirm.
1 We refer to the Specification ("Spec.") filed December 18, 2013; Final
Office Action ("Final Act.") dated November 2, 2017; Appellant's Appeal
Brief ("Br.") filed March 19, 2018; and Examiner's Answer ("Ans.") dated
July 12, 2018.
2 Appellant is Applicant, SABIC INNOVATIVE PLASTICS IP B.V.
According to the Appeal Brief, SABIC GLOBAL TECHNOLOGIES B.V.,
is the real party in interest. Br. 2.
Appeal2018-009215
Application 14/132,672
BACKGROUND
The subject matter on appeal relates to melt spun fibers formulated
from poly(phenylene ether) compositions that contain a processing aid.
Spec. ,r,r 3--4. It is stated that incorporating a processing aid, such as linear
low density polyethylene, improves processability during melt spinning,
possibly due to a layer of the processing aid adhering to the surface of the
spun fiber. Id. ,r 10. Claim 1 is illustrative:
1. A fiber,
wherein the fiber comprises a composition comprising:
50 to 99.9 weight percent of a poly(phenylene
ether);
0 .1 to 10 weight percent of a processing aid
comprising linear low density polyethylene; and
0 to 0.5 weight percent of a flame retardant;
wherein all weight percents are based on the total weight
of the composition; and
wherein the fiber comprises a core and a surface layer, and
wherein the surface layer comprises a majority of the linear low
density polyethylene in the composition.
Br. 14 (Claims Appendix).
Claims 12 and 14 similarly recite a fiber formulated from a
poly(phenylene ether) and linear low density polyethylene. See id. at 15-16.
REJECTIONS
I. Claims 1-3, 5, 10, 11, 13-16, 18, and 23 stand rejected under
35 U.S.C. § 103 as unpatentable over Mhetar3 and Gupta. 4
3 US 2004/0110902 Al, published June 10, 2004.
4 US 5,554,435, issued September 10, 1996.
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Application 14/132,672
II. Claims 8, 9, and 12 stand rejected under 35 U.S.C. § 103 as
unpatentable over Mhetar, Gupta, and Yates. 5
III. Claims 16-19 stand rejected under 35 U.S.C. § 103 as unpatentable
over Mhetar, Gupta, and Horibata. 6
OPINION
Rejection I
With regard to Rejection I, Appellant argues the claims as a group.
See Br. 4--11. We select claim 1 as representative of the group. All other
rejected claims stand or fall with claim 1.
Relevant to Appellant's arguments on appeal, the Examiner finds that
Mhetar discloses extruded fibers formulated from poly(phenylene ether) and
linear low density polyethylene. Final Act. 3. The Examiner finds that
Mhetar teaches the disclosed formulation reduces die lip buildup during
extrusion, such as melt spinning. Id. (citing Mhetar ,r,r 2, 7). The Examiner
states that "Mhetar does not appear to explicitly disclose wherein the fiber
comprises a core and a surface layer" as is recited in claim 1. Id. However,
the Examiner finds that Gupta teaches extruding heterogeneous fibers
formulated from poly(phenylene ether) or linear low density polyethylene in
a core/sheath configuration, and that the heterogeneous fibers exhibit
improved bonding with meltblown fibers to form fabrics having
advantageous barrier characteristics. Id. at 4, 10. The Examiner finds that
Gupta teaches that the heterogeneous fibers preferably provide polyolefin as
5 EP O 550 207 Al, published July 7, 1993.
6 JP 05-18552 A, published July 27, 1993, as translated.
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Application 14/132,672
the sheath layer. Id. at 4. Appellant does not directly dispute the foregoing
findings. See Br. 4--11.
Appellant argues the Examiner erred in finding that Gupta would have
provided one of ordinary skill with a reason to modify Mhetar's fibers to
have a core/sheath configuration. Br. 5. Particularly, Appellant argues that
Mhetar is concerned with reducing die lip buildup during extrusion of
polyphenylene ether compositions, whereas Gupta is concerned with
nonwoven structures. Id. at 5---6. Appellant further contends that Mhetar
only generically teaches fiber spinning. Id.
The foregoing arguments are not persuasive of reversible error. Both
Mhetar and Gupta identify melt spinning as a suitable process for producing
the disclosed fibers. See Mhetar ,r 2 (fiber spinning); Gupta 7:62---63
( spunbonded continuous filaments). The fact that Mhetar does not specify
use of the disclosed fibers to form non woven structures does not refute the
Examiner's finding that one of ordinary skill in the art would have had a
reason to configure Mhetar's disclosed fibers for that purpose, particularly in
light of Gupta's teaching of producing spunbound fibers from the same
materials to form multicomponent nonwoven structures. See also Mhetar
,r 2 ("The physical, electrical and chemical properties of polyphenylene ether
resin compositions make them ideal for a wide variety of industrial
applications.").
We find that the Examiner's obviousness determination is supported
by a preponderance of the evidence. Gupta discloses forming
multicomponent nonwoven structures comprising first and second fibers, in
which the second fibers can include polyphenylene ethers and have a
core/sheath structure in which the sheath component preferably is polyolefin
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Appeal2018-009215
Application 14/132,672
to improve bonding with polyolefin first fibers. Gupta 3: 11; 9:3-16. Mhetar
teaches including polyolefin, such as linear low density polyethylene, to
polyphenylene ethers to improve extrusion processability. Mhetar ,r 8.
Thus, the evidence supports the factual findings that Mhetar provides a
reason (processability) to include a polyolefin in melt spun polyphenylene
ether fibers, and Gupta provides a reason (improved bonding) to configure
polyphenylene fibers in a sheath/core configuration with polyolefin as the
sheath component. Appellant's argument that Mhetar does not also specify
forming core/sheath fibers in nonwoven components is not persuasive of
error in the Examiner's reliance on the combined teachings of Mhetar and
Gupta.
Appellant also argues that neither Mhetar nor Gupta addresses the
primary objectives of the instant invention-namely, to improve spinnability
and enable production of small diameter fibers having a high poly(phenylene
ether) content. Br. 8. However, "the motivation in the prior art to combine
the references does not have to be identical to that of the applicant to
establish obviousness." In re Kemps, 97 F.3d 1427, 1430 (Fed. Cir. 1996).
Appellant's argument that Mhetar does not specify a fiber comprising an
LLDPE-rice surface layer, and Gupta does not specify a fiber having the
recited component weight percent values (Br. 8-9), also is not persuasive of
reversible error. See In re Keller, 441 F .3d 977, 985-88 ("[T]he test [ for
obviousness] is what the combined teachings [ of the references] would have
suggested to those of ordinary skill in the art.").
Appellant argues that comparison of Example 1 and Comparative
Example 1 discussed in the Specification demonstrates an unexpected
improvement in spinning properties. Br. 10. Example 1 is identified as a
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Application 14/132,672
singular composition containing 70 parts poly(2,6-dimethyl-1,4-phenylene
ether), 30 parts polystyrene, and 2.4 parts linear low density polyethylene.
Spec. ,r,r 80, 81. A party asserting unexpected results as evidence of non-
obviousness has the burden of proving that the results are unexpected. In re
Geisler, 116 F.3d 1465, 1469-70 (Fed. Cir. 1997). The proffered evidence
must be reasonably commensurate in scope with the claim. In re Grasselli,
713 F.2d 731, 743 (Fed. Cir. 1983); In re Harris, 409 F.3d 1339, 1344 (Fed.
Cir. 2005). Here, although the composition identified in Example 1 falls
within the recited concentration ranges, claim 1 encompasses a significantly
broader range of compositions (50-99.9 weight percent poly(phenylene
ether) and 0.1-10 weight percent processing aid comprising LLDPE).
Appellant does not present evidence to support a determination that the
results exhibited by singular composition of Example 1 would reasonably
have been expected to result over the range of concentrations recited in the
claim.
For the foregoing reasons, Appellant does not persuade us of
reversible error in the Examiner's rejection of claim 1. Accordingly,
Rejection I is sustained.
Rejections II and III
With regard to each of Rejections II and III, Appellant argues that the
additional reference relied upon by the Examiner does not cure the
deficiency in the Examiner's reliance of Mhetar and Gupta in connection
with claim 1. Br. 11-12. Because we are not persuaded of any reversible
deficiency in the Examiner's reliance on Mhetar and Gupta, as discussed
above, we sustain Rejections II and III for the same reasons.
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Application 14/132,672
DECISION
The Examiner's decision rejecting claims 1-3, 5, 8-19, and 23 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
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