Ex Parte KohlweyerDownload PDFPatent Trial and Appeal BoardJan 31, 201812789483 (P.T.A.B. Jan. 31, 2018) Copy Citation United States Patent and Trademark Office 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. 12/789,483 05/28/2010 Christian Kohlweyer 11733 8715 27752 7590 02/02/2018 THE PROCTER & GAMBLE COMPANY Global IP Services Central Building, C9 One Procter and Gamble Plaza CINCINNATI, OH 45202 EXAMINER WIECZOREK, MICHAEL P ART UNIT PAPER NUMBER 1712 NOTIFICATION DATE DELIVERY MODE 02/02/2018 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): centraldocket. im @ pg. com pair_pg @ firsttofile. com mayer.jk @ pg. com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte CHRISTIAN KOHLWEYER Appeal 2017-004032 Application 12/789,483 Technology Center 1700 Before CATHERINE Q. TIMM, CHRISTOPHER C. KENNEDY, and JENNIFER R. GUPTA, Administrative Patent Judges. GUPTA, Administrative Patent Judge. DECISION ON APPEAL1 Appellant2 appeals under 35 U.S.C. § 134(a) from the Examiner’s decision rejecting claims 17—21 and 23—27. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 In this Decision, we refer to the Specification filed May 28, 2010 (“Spec.”), the Non-Final Office Action mailed February 22, 2016 (“Non- Final Act.”), the Appeal Brief filed August 23, 2016 (“Br.”), and the Examiner’s Answer mailed November 3, 2016 (“Ans.”). 2 Appellant identifies the real party in interest as The Procter & Gamble Company. Br. 1. Appeal 2017-004032 Application 12/789,483 The subject matter on appeal relates to methods for making and treating flexible films. Spec. 1,11. 5. Claim 17, reproduced below from the Claims Appendix of the Appeal Brief, is illustrative of the claims on appeal. 17. A method for making a decorative flexible film, the method comprising steps of: a. providing a flexible polyolefin film having a film caliper from 10 to 250 microns, and having a first side and a second side; b. flame treating then plasma treating the first side to form a treated first side; c. flame treating then plasma treating the second side to form a treated second side; d. only partially printing the treated first side with ink, to form a treated and printed first side with printed and unprinted parts; and e. metallizing the treated second side, to form a treated and metallized second side, and to provide the decorative flexible film, which visually presents both the printed ink and the metallization when viewed from the printed side, through the unprinted parts. Br. 9 (Claims App.). REJECTIONS The Examiner maintains the following rejections on appeal: Rejection I: Claims 17—21 under pre-AIA 35 U.S.C. § 103(a) as unpatentable overNassi et al. (US 2008/0318036 Al, published December 25, 2008) (“Nassi”) in view of Wu et al. (US 5,922,161, issued July 13, 1999) (“Wu”), Minato et al. (US 2004/0191489 Al, published September 30, 2004) (“Minato”), and Posey (US 2007/0031654 Al, published February 8, 2007) (Non-Final Act. 3—7); 2 Appeal 2017-004032 Application 12/789,483 Rejection II: Claim 23 under pre-AIA 35 U.S.C. § 103(a) over Nassi, Wu, Posey, and Scarbrough et al. (US 2006/0019074 Al, published January 26, 2006) (“Scarbrough”) (Non-Final Act. 7—8); and Rejection III: Claims 24—27 under pre-AIA 35 U.S.C. § 103(a) over Nassi, Wu, Posey, Scarbrough, and Minato (Non-Final Act. 9). DISCUSSION Appellant argues the claims subject to the first-stated ground of rejection as a group. Br. 4—7. Appellant does not present separate substantive arguments for the patentability of separately rejected claims 23—27, and instead relies on the arguments provided for claim 17. Id. at 7. Thus, we select claim 17 as representative of the rejected claims, and the remaining claims on appeal will stand or fall with claim 17. See 37C.F.R. §41.37(c)(l)(iv). Upon consideration of the evidence on this record and each of Appellant’s contentions, we find that the preponderance of evidence supports the Examiner’s conclusion that the subject matter of Appellant’s claims is unpatentable over the applied prior art. We sustain the Examiner’s § 103(a) rejections essentially for the reasons set out by the Examiner in the Non-Final Office Action and Answer. We add the following. The Examiner finds that Nassi teaches a multilayer metallized plastic film for packaging having a thickness of 20 microns. Non-Final Act. 3 (citing Nassi Abstract, 191; Fig. 4). The Examiner finds that Nassi teaches that the film includes a plastic layer A comprised of polypropylene (corresponding to the “second side” of claim 17’s film) on which a metal layer M is deposited, and a printable layer C (corresponding to the “first 3 Appeal 2017-004032 Application 12/789,483 side” of claim 17 ’s film). Id. The Examiner also finds that Nassi teaches that plastic layer A is flame treated and subsequently plasma treated prior to deposition of the metal layer. Non-Final Act. 4 (citing Nassi Tflf 51—55). The Examiner relies on Wu for claim 17’s step (b)—“flame treating then plasma treating the first side to form a treated first side.” The Examiner finds that Wu teaches a method for modifying or tailoring surfaces of polymeric materials. Non-Final Act. 4 (citing Wu Abstract). The substrates of Wu include polymeric sheets and films comprised of polyolefins, such as polypropylene and polyethylenes. Non-Final Act. 4 (citing Wu 3:48 — 4:12). Wu teaches various techniques for modifying the surface of a polymer including flame treatment and plasma treatment and combinations thereof to enhance the bonding ability of the polymeric material to coating materials and inks. Non-Final Act. 4 (citing Wu 4:13—23, 8:31—45, 8:64 — 9:4). The Examiner determines that one of ordinary skill in the art would have been led, based on Wu, to perform a combination of flame treatment and plasma treatment, prior to printing, of Nassi’s printable layer C to form a treated “first side” of Nassi’s film to enhance the bonding of the polymeric material to inks. Non-Final Act. 4—5. The Examiner relies on Minato for claim 17’s step (d)—“only partially printing the treated first side with ink, to form a treated and printed first side with printed and unprinted parts.” The Examiner finds that Minato teaches a packaging material that includes a base material onto which a printed layer, by applying ink, is formed. Non-Final Act. 5 (citing Minato 1 5; Fig. 1). Minato’s Figure 1 depicts a packaging material with a partially printed base layer. Id. The Examiner determines that one of ordinary skill in the art would have been led, based on Minato, to partially 4 Appeal 2017-004032 Application 12/789,483 print Nassi’s treated printable layer C, as modified by Wu, to form a treated and printed “first side” of Nassi’s film with printed and unprinted parts. Non-Final Act. 5. The Examiner relies on Posey for teaching a film that “visually presents both the printed ink and the metallization when viewed from the printed side, through the unprinted parts,” as required by claim 17 ’s step (e). The Examiner finds that Posey teaches a film material with a metallized side for use as a packaging material. Non-Final Act. 6 (citing Posey Abstract, 4, 56). Posey teaches that its base film/substrate is formed from a polymer/plastic including polyolefins such as polypropylene. Non-Final Act. 6 (citing Posey 1 63). Posey further teaches that the base film/substrate is substantially transparent. Non-Final Act. 5 (citing Posey 1 62). The Examiner determines that because it was known in the art to use transparent polymer films as a base layer in a packaging material, as taught by Posey, one of ordinary skill in the art would have substituted Posey’s transparent polymer layer for Nassi’s layer A, with a reasonable expectation of success. Final Act. 5; Ans. 2. Appellant argues that the Examiner fails to establish that claim 17 is prima facie obvious because the Examiner does not provide a sufficient reason for combining Posey and Nassi. Br. 4. Appellant’s argument is not persuasive of reversible error. As the Examiner persuasively explains, both Nassi and Posey are directed to forming barrier films used as packaging materials for food products. Ans. 2; Nassi Abstract; Posey 12. Both Nassi and Posey teach that the base/substrate of the barrier film may be comprised of polypropylene. Nassi 1 57; Posey 1 63. Posey further teaches that it was known for the 5 Appeal 2017-004032 Application 12/789,483 polypropylene base/substrate of its film to be transparent. Thus, a preponderance of the evidence supports the Examiner’s reasoning that one skilled in the art, using no more than ordinary creativity, would have predictably used Posey’s transparent polypropylene base/substrate, a known substrate for films used for packaging food products, as Nassi’s substrate layer A, and that such substitution would still allow for the formation of Nassi’s barrier (metallized) layer. Ans. 3; see KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007) (“The combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results.”). Appellant’s argument that there is no reasonable expectation that Wu’s flame/plasma treatment would be successful when used on Nassi’s sealable/printable layer is without persuasive merit. Br. 5. “Only a reasonable expectation of success, not absolute predictability, is necessary for a conclusion of obviousness.” In re Longi, 759 F.2d 887, 897 (Fed. Cir. 1985). Appellant has not provided sufficient explanation or directed us to evidence in the record to persuade us that it would have been unreasonable to expect that Wu’s flame/plasma treatment would provide Nassi’s polymeric layer C, which can be comprised of the same types of polymeric materials as disclosed in Wu (compare Nassi 164, with Wu 3:37— 4:6), with improved bonding to inks. Nor has Appellant directed us to any evidence that Wu’s flame/plasma treatments would have had a negative effect on the sealability of Nassi’s polymeric layer C. Appellant’s argument that Nassi teaches away from modifying Nassi as proposed by the Examiner (Br. 5—6) is not persuasive because Appellant fails to persuasively identify any disclosure in Nassi that teaches away from 6 Appeal 2017-004032 Application 12/789,483 the Examiner’s proposed modifications. See In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004) (explaining that a reference teaches away when it criticizes, discredits, or otherwise discourages the claimed solution). Appellant argues that because Nassi’s paragraph 37 teaches that transmission of light has a negative effect on packaged food products, it teaches away from substituting Posey’s transparent substrate for Nassi’s plastic layer A. Br. 5. This argument is not persuasive because, in addition to discussing the negative effects of light transmission on packaged food products, Nassi’s paragraph 37 also teaches that transmission of light is prevented by using a barrier, such as Nassi’s metal layer M. The Examiner’s proposed modification of Nassi’s film, based on the teachings of Wu, Minato, and Posey, includes Nassi’s metal layer M on the external surface of plastic layer A. See Non-Final Act. 3—7. Wu teaches that flame treating “generally lead[s] to a noticeable increase in surface hydrophilicity,” (Wu 1:57—59). Appellant contends that because Nassi teaches that the barrier of the metallized film should provide an adequate barrier to water vapor (Nassi Tflf 38—39), it teaches away from flame and plasma treating Nassi’s printable layer C, as proposed by the Examiner. Br. 5 (citing Non-Final Act. 4). This argument is not persuasive because, as discussed above, the Examiner’s proposed modification of Nassi’s film, based on the teachings of Wu, Minato, and Posey, includes Nassi’s metal layer M as a barrier on the external surface of plastic layer A. Non-Final Act. 3—7. According to Nassi, its first plastic layer, which comprises a propylene-alpha-olefm copolymer, in combination with plasma treatment, anchors metal layer M to plastic layer A, providing Nassi’s metallized film with “a drastic reduction in the transmission of. . . water 7 Appeal 2017-004032 Application 12/789,483 vapor as compared with films currently known on the market.” Nassi 1 55. On this record, Appellant has not provided an adequate explanation or directed us to sufficient evidence that flame and plasma treating Nassi’s printable layer C would adversely affect the permeability of water vapor through Nassi’s metallized film. Appellant also argues that because Nassi teaches that additional processing steps reduce the effectiveness of barrier properties, it teaches away from flame and plasma treating Nassi’s printable layer C. Br. 5 (citing Nassi ^fl[44—48). This argument is not persuasive because Nassi’s paragraphs 44 through 48 do not discourage additional processing steps generally. Rather, these paragraphs simply teach that cutting and transit operations, which cause mechanical stress on the metallized surface, may cause deterioration of the barrier properties of the metallized films. Appellant contends that because Nassi teaches “materials with high costs are undesirable” (Nassi 141), it teaches away from flame and plasma treating Nassi’s printable layer C, as proposed by the Examiner (Non-Final Act. 4—5) because, according to Wu, plasma treating requires an “expensive process apparatus” and is a “high cost” operation. Br. 6 (citing Wu 2:13— 18). This argument is not persuasive because Nassi’s paragraph 41 simply discusses the undesirability of using certain materials because of performance variations and high production costs. In addition, Nassi teaches flame and plasma treating plastic layer A, and thus, is not concerned with the expense or high cost associated with such treatments. Cf. In re Farrenkopf, 713 F.2d 714, 718 (Fed. Cir. 1983) (“That a given combination would not be made by businessmen for economic reasons does not mean that persons 8 Appeal 2017-004032 Application 12/789,483 skilled in the art would not make the combination because of some technological incompatibility. Only the latter fact would be relevant.”) Appellant argues that the cited combination is nonobvious because the cited references, independently or in combination, do not describe, teach, or suggest a packaging material that uses a transparent material in combination with a metallized side as claimed in claim 17. Br. 6. Appellant’s argument is not well-taken because Posey teaches using a metallized barrier layer in combination with a transparent polymeric layer. Posey 56, 62—63. In view of the foregoing, we sustain the rejections under pre-AIA 35 U.S.C. § 103(a) of claims 17—21 and 23—27. DECISION For the above reasons, the rejections of claims 17—21 and 23—27 are 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 9 Copy with citationCopy as parenthetical citation