Ex Parte Hütt et al

Patent Trial and Appeal Board

Jan 4, 2016

10545114 (P.T.A.B. Jan. 4, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
10/545,114 09/19/2005
123223 7590 01/06/2016
Drinker Biddle & Reath LLP (WM)
222 Delaware A venue, Ste. 1410
Wilmington, DE 19801-1621
FIRST NAMED INVENTOR
Detlef Hlitt
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.
074004-0140-US (286027) 8609
EXAMINER
SELLMAN, CACHET I
ART UNIT PAPER NUMBER
1715
NOTIFICATION DATE DELIVERY MODE
01/06/2016 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):
IPDocketWM@dbr.com
penelope.mongelluzzo@dbr.com
DBRIPDocket@dbr.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DETLEF HUTT, YVONNE DUPRE, KARL-HEINZ KOCHEM,
DIETER SCHEIDECKER 1
Appeal2014-002620
Application 10/545, 114
Technology Center 1700
Before BRADLEY R. GARRIS, WESLEY B. DERRICK, and
CHRISTOPHER L. OGDEN, Administrative Patent Judges.
GARRIS, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134, Appellants appeal from the Examiner's
rejections under 35 U.S.C. § 103(a) of claims 24--31 and 34--42 as
unpatentable over Touhsaent (US 6,013,353, issued Jan. 11, 2000) in view
of Mallory (US 2002/0031651 Al, published Mar. 14, 2002) and Chang (US
6,916,526 Bl, issued July 12, 2005) and claim 32 as unpatentable over these
1 Treofan Germany GmbH & Co. KG is identified as the real party in
interest. App. Br. 2.
Appeal2014-002620
Application 10/545, 114
references in combination with Wieners (US 6,838,042 Bl, issued Jan. 4,
2005). We have jurisdiction under 35 U.S.C. § 6.
We AFFIRM.
Appellants claim a method for manufacturing a metallized,
coextruded multilayered biaxially oriented polypropylene multilayer film
having an opaque vacuole-containing base layer and a metallized cover layer
as well as particular water vapor and oxygen permeabilities which comprises
treating the surface of the opaque film to be metallized with plasma
(independent claims 24 and 25).
A copy of representative claim 24, taken from the Claims Appendix of
the Appeal Brief, appears below.
24. A method for manufacturing a metallized, coextruded
multilayered biaxially oriented polypropylene multilayer film,
which has an opaque vacuole-containing base layer, said
vacuole-containing base layer being covered by one or more
layers and the film being metallized on the outer surface of this
cover layer or layers and the metallized film having a water
vapor permeability::::; 0.5 g/m2*day at 38°C and 90% relative
ambient humidity and an oxygen permeability of ::S50
cm3 /m2*day*bar at 23 °C and 50% relative ambient humidity
which comprises treating the surface of the opaque film to be
metallized with plasma directly before the metallization and
wherein the cover layer or layers have a total thickness of at
least 3 µm and the total thickness of the film is 20µm to
100 µm and the polypropylene is not manufactured using
metallocene catalyst and said base layer makes more than 50%
of the total thickness of the film and the metallized film has an
optical density of at least 2.0 to 4.
We sustain the above rejections for the reasons expressed in the Final
Action and in the Answer with the following comments added for emphasis.
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Application 10/545, 114
The Examiner finds that Touhsaent discloses a method for
manufacturing a metallized polypropylene multilayer film of the type
generally defined by the independent claims having thicknesses overlapping
the claimed thicknesses wherein the method includes a corona discharge
treatment which the Examiner regards as satisfying the claimed plasma
treatment (Final Action 2-3). The Examiner additionally finds that
Touhsaent does not disclose the claimed permeabilities and optical densities
(id. at 3). The Examiner relies on Mallory to evince that thickness is a result
effective variable with respect to water vapor and oxygen permeabilities or
barrier characteristics (id.). The Examiner concludes that it would have been
obvious to develop thickness ranges for the various layers of Touhsaent's
metallized film through routine experimentation in order to obtain suitable
water vapor/oxygen barrier properties especially because Touhsaent
discloses thickness values which overlap the claimed ranges (id.). The
Examiner relies on Chang to evince that optical density also is a result
effective variable affecting barrier properties and concludes that it would
have been obvious to develop a suitable range of optical densities for
Touhsaent's metallized film through routine experimentation (id. at 4).
Appellants argue that T ouhsaent' s corona discharge treatment is not a
"plasma treatment" as required by the claims (Br. 12-14). As support for
this argument, Appellants cite disclosures from the Specification and from
Mallory in which the terms plasma and corona or corona discharge are used
alternatively (id.).
However, Appellants' citations merely show that the above terms are
individually known in this art, not that the terms are mutually exclusive.
There is merit in the Examiner's finding that a corona discharge necessarily
produces plasma (Ans. 8), whereby Touhsaent's step of treating with corona
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Appeal2014-002620
Application 10/545, 114
discharge necessarily treats with plasma as required by the claims. This
finding is supported by Appellants' Specification teaching that a corona
discharge causes air above the film to ionize and react with the molecules of
the film surface (Spec. 20 (last full para.)). Appellants do not specifically
contend that, much less explain why, their claimed plasma differs from such
ionized air.
Appellants' discussion of Touhsaent and Mallory regarding the
claimed thicknesses and permeabilities (Br. 14--22) does not reasonably
address, and therefore does not show error in, the Examiner's obviousness
conclusion that the claimed thicknesses and permeabilities would have been
the consequence of routine experimentation to determine suitable values for
such result-effective variables (Final Action 3, Ans. 8-9).
Similarly, Appellants' contention regarding the melting point range of
dependent claim 31 (Br. 22) is not persuasive because it does not reasonably
address (i) the Examiner's finding that Touhsaent's 148°C melting point is
close enough to have suggested the l 50°C melting point in the claimed
range (Final Action 5) or (ii) the Examiner's additional finding that
Touhsaent discloses a broad melting point range of 125° to 190°C which
encompasses and therefore would have suggested the 150° to 160°C range
of claim 31 (Ans. 9).
Appellants' arguments concerning Wieners and Chang (Br. 23-26)
also are not convincing because they do not reasonably address the
Examiner's determination that the claimed densities are result-effective
variables whose values would have been the obvious consequence of routine
experimentation (Final Action 5, 8, Ans. 10).
We observe that Appellants make unembellished assertions that "their
data established unexpected superior results" (Br. 20) and that "the
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Appeal2014-002620
Application 10/545, 114
declaration [of record dated February 4, 2011] established unexpected
results over Touhsaent" (id. at 21 ). Because Appellants do not discuss or
even identify the data considered to evince unexpected results, these
unembellished assertions lack persuasive merit.
For the reasons given in the Final Action, the Answer, and above,
Appellants fail to show error in the Examiner's rejections of the appealed
claims.
The decision of the Examiner is affirmed.
TIME PERIOD
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l ).
kmm
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