Ex Parte Jarus

Patent Trial and Appeal Board

Jan 16, 2013

12519678 (P.T.A.B. Jan. 16, 2013)

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.
12/519,678 06/17/2009 David Jarus 1200625N US 5119
35227 7590 01/16/2013
POLYONE CORPORATION
33587 WALKER ROAD
AVON LAKE, OH 44012
EXAMINER
SZEKELY, PETER A
ART UNIT PAPER NUMBER
1761
MAIL DATE DELIVERY MODE
01/16/2013 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 PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte DAVID JARUS
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Appeal 2011-010547
Application 12/519,678
Technology Center 1700
____________________

Before CATHERINE Q. TIMM, BEVERLY A. FRANKLIN, and
GEORGE C. BEST, Administrative Patent Judges.

TIMM, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF CASE
Appellant brings this appeal under 35 U.S.C. § 134 seeking reversal of
the Examiner’s decision to reject claims 1, 2, 5-11, and 14-18 under 35
Appeal 2011-010547
Application 12/519,678
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U.S.C. § 103(a) as obvious over Chung1 in view of Lin2 or Muyldermans3.
We have jurisdiction under 35 U.S.C. § 6(b).
For the reasons presented by the Examiner in the Answer, we
AFFIRM. We add the following for emphasis.
OPINION
Appellant does not argue any claim apart from the others (Br. 5-8).
Therefore, in accordance with 37 C.F.R. § 41.37(c)(1)(vii), we select claim 1
as representative to resolve the issues on appeal. Claim 1 is directed to a
type of thermoplastic elastomer called a thermoplastic vulcanizate (Claim 1;
Spec. ¶ [0003]). A thermoplastic vulcanizate is a crosslinked elastomer, and
has a rubbery discontinuous phase within a thermoplastic continuous phase
(id.). Claim 1 requires the addition of a set of heat stabilizers, one of which
is a phosphite said to stabilize the thermoplastic phase, and another is an
aromatic amine said to stabilize the elastomeric phase. Claim 1 reads as
follows:
1. A high temperature thermoplastic vulcanizate,
comprising:
(a) a thermoplastic phase of polymer selected from the
group consisting of homopolymers and copolymers of lower α-
olefins having 6 or less carbon atoms,
(b) an elastomeric phase of polymer selected from the
group consisting of natural rubber, polyisoprene rubber,
styrenic copolymer elastomers, polybutadiene rubber, nitrile
rubber, butyl rubber, and olefinic elastomer, and combinations
thereof, and

1 Chung et al., US 2007/0037931 A1, pub. Feb. 15, 2007.
2 Lin et al., US 2006/0116456 A1, pub. Jun. 1, 2006.
3 Muyldermans et al., US 2004/0242721 A1, pub. Dec. 2, 2004.
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Application 12/519,678
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(c) a set of heat stabilizers at least one of which stabilizes
the thermoplastic phase and at least one of which stabilizes the
elastomeric phase,
wherein one of the heat stabilizers which stabilizes the
thermoplastic phase polymer is a phosphite, and
wherein one of the heat stabilizers which stabilizes the
elastomeric phase polymer is an aromatic amine.
(Claims App’x at Br. 9.)
There is no dispute that Chung describes a thermoplastic vulcanizate
(TPV) having a thermoplastic phase and an elastomeric phase and
containing a phosphorous stabilizer that can be a phosphite (Compare Br. 5
with Ans. 3; see also Chung, ¶¶ [0010], [0043]). Nor is there any dispute
that Chung further discloses optionally adding aromatic amine heat
stabilizers to the phosphorous stabilized TPV (Compare Br. 5 with Ans. 3;
see also Chung, ¶ [0046]). While we agree with Appellant that Chung fails
to set forth a specific example of the stabilizer combination, nonetheless,
Chung suggests the addition of both types of stabilizers to a two phase TPV.4
Because Chung specifically suggests adding an aromatic amine heat
stabilizer to a TPV containing a thermoplastic phase, an elastomeric phase,
and a phosphite stabilizer, we cannot agree with Appellant that the prior art
fails to suggest the claimed composition (Br. 6). “[A] reference is not
limited to the disclosure of specific working examples.” In re Mills, 470
F.2d 649, 651 (CCPA 1972). Moreover, it is reasonable to conclude that the
additives would stabilize the various phases as claimed, given the identical

4 The secondary references each provide further evidence that phosphites
and aromatic amines were known stabilizers for use in polymer
compositions such as TPVs (Lin, ¶¶ [0014] and [0034]); Muyldermans, ¶¶
[0090] and [0092-93]).
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Application 12/519,678
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or substantially identical nature of the components of the composition to
those disclosed by Appellant. It appears the genus of phosphite stabilizers
that will stabilize the thermoplastic phase is not especially limited (Spec.
¶ [00028]), nor is the genus of aromatic stabilizers that will stabilize the
elastomeric phase (Spec. ¶ [00032]).
Nor, as argued by Appellant, do the specific examples of Chung
“teach away” from combining the phosphite and aromatic amine stabilizers
(Br. 7). Disclosed examples do not constitute a teaching away from a
broader disclosure. In re Susi, 440 F.2d 442, 446 n.3 (CCPA 1971).
Appellant contends that comparative data in the Specification
demonstrates that the composition had “superior long term heat aging and
resulted in a high temperature TPV” and had superior results for OIT
[Oxygen Induction Time] at 220 °C. (Br. 7-8, citing Spec. Examples 1-9
compared to Comparative Examples A-C; ¶¶ [00067-72]; Table 5; Examples
10-17 compared to Comparative Examples D and E; and Table 10).
However, Appellant has not responded to the Examiner’s reasonable
determination that the higher concentrations of stabilizers in Examples 1-9
as compared to Comparative Examples A-C (0.2% versus 0.5-1.3%) would
have been expected to provide better heat stabilization (Ans. 5). Nor has
Appellant responded to the Examiner’s further determination that it is not
clear how a comparison of Examples 10-17 to Comparative Examples D and
E provides evidence of unexpected results (id.). Appellant has the burden to
show unexpected results. In re Piasecki, 745 F.2d 1468, 1472 (Fed. Cir.
1984). That burden has not been met here.
CONCLUSION
We sustain the Examiner’s rejection.
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Application 12/519,678
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DECISION
The Examiner’s decision is affirmed.
TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1).

AFFIRMED

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