Ex parte Kobylivker et al.

Board of Patent Appeals and Interferences

Aug 16, 2000

08442617 (B.P.A.I. Aug. 16, 2000)

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not binding precedent of the Board.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. 17
UNITED STATES PATENT AND TRADEMARK OFFICE
_____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_____________
Ex parte PETER M. KOBYLIVKER, SIMON K. OFOSU,
SUSAN E. SHAWVER and ROGER L. LANCE
_____________
Appeal No. 1997-1795
Application 08/442,617
______________
ON BRIEF
_______________
Before KIMLIN, WALTZ and TIMM, Administrative Patent Judges.
KIMLIN, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal from the final rejection of claims 6-11
and 14, all the claims remaining in the present application.
Claim 6 is illustrative:
6. A nonwoven fabric comprising a web of bondable
thermoplastic polymer fibers comprised of a
biconsti-tuent blend of from about 95 to 50 weight
percent polypropylene having an isotacticity of at
least 98 percent, and from about 5 to 50 weight
percent of a
Appeal No. 1997-1795
Application No. 08/442,617
2
random block copolymer of polypropylene and
polyethy-lene having a melting point of below 160°C
and having about 3 percent random ethylene molecules
and about 9 percent block ethylene molecules.
The examiner relies upon the following references as
evidence of obviousness:
Kunimune et al. (Kunimune) 4,211,819 Jul. 08, 1980
Gessner 5,108,827 Apr. 28, 1982
Canadian Patent Application 2,126,014 Jun. 16, 1994
(Canadian '014)
Appellants' claimed invention is directed to a nonwoven
fabric comprising a biconstituent blend of polypropylene
having the recited isotacticity and a random block copolymer
of polypropylene and polyethylene having the recited amounts
of random ethylene molecules and block ethylene molecules.
Appealed claims 6-11 and 14 stand rejected under 35
U.S.C.
§ 103 as being unpatentable over Gessner in view of Kunimune
or Canadian '014.
Upon careful consideration of the opposing arguments
presented on appeal, we will not sustain the examiner's
rejection.
Appeal No. 1997-1795
Application No. 08/442,617
3
The examiner's conclusion of obviousness rests upon the
erroneous finding that Gessner discloses random block
copolymers
of ethylene and propylene at column 2, lines 1-6 and column 2,
lines 55-56. Gessner, at column 2, lines 1-6, discloses the
following:
a multiconstituent fiber having a fineness of 5 to
50 microns and up to 95 percent by weight of other
fibers. Said multiconstituent fiber is composed of
a highly dispersed blend of at least two different
immiscible thermoplastic polymers and has a dominant
continuous polymer phase and at least one
noncontinuous phase dispersed therein.
Manifestly, the above-quoted portion of Gessner makes no
reference to a random block copolymer of polypropylene and
polyethylene. Also, the examiner's additional reliance on
Gessner's disclosure at column 2, lines 55-56 is similarly
wanting. Lines 55 and 56 of column 2 are part of a list of
exemplary polymers that can be intimately mixed to form a
blend of different polymers. Line 55 cites block copolymers
of ethylene and propylene, whereas line 56 specifies random
Appeal No. 1997-1795
Application No. 08/442,617
4
copolymers of ethylene and propylene. Hence, Gessner teaches
that the polymer blend may comprise block copolymers and
random copolymers, but this is not tantamount to a disclosure
of a random block polymer of propylene and ethylene, i.e., a
single copolymer having both random ethylene molecules and
block ethylene molecules.
Consequently, since the examiner has factually
misrepresented the disclosure of Gessner, and has presented no
rationale why a blend of a block copolymer and a random
copolymer would have rendered obvious appellants' random block
copolymer, we cannot sustain the examiner's rejection.
Based on the foregoing, the examiner's decision rejecting
the appealed claims is reversed.
REVERSED
EDWARD C. KIMLIN )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
THOMAS A. WALTZ ) APPEALS AND
Appeal No. 1997-1795
Application No. 08/442,617
5
Administrative Patent Judge ) INTERFERENCES
)
)
)
CATHERINE TIMM )
Administrative Patent Judge )
vsh
Appeal No. 1997-1795
Application No. 08/442,617
6
James B. Robinson
Kimberly-Clark Corporation
Patent Department
401 North Lake Street
Neenah, WI 54956