Ex Parte Kuo et al

Board of Patent Appeals and Interferences

Feb 16, 2011

11218213 (B.P.A.I. Feb. 16, 2011)

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.
11/218,213 09/01/2005 Chi-I Kuo 2005U025.US 7950
7590 02/16/2011
Univation Technologies, LLC
Suite 1950
5555 San Felipe
Houston, TX 77056
EXAMINER
LU, C CAIXIA
ART UNIT PAPER NUMBER
1765
MAIL DATE DELIVERY MODE
02/16/2011 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
________________

Ex parte CHI-I KUO,
Tae Hoon Kwalk, Dongming Li, and Porter Clarke Shannon
________________

Appeal 2010-003638
Application 11/218,213
Technology Center 1700
________________

Before BRADLEY R. GARRIS, TERRY J. OWENS, and
MARK NAGUMO, Administrative Patent Judges.

NAGUMO, Administrative Patent Judge.

DECISION ON APPEAL1

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.
Appeal 2010-003638
Application 11/218,213

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A. Introduction2
Chi-I Kuo, Tae Hoon Kwalk, Dongming Li, and Porter Clarke
Shannon (“Kuo”) timely appeal under 35 U.S.C. § 134(a) from the final
rejection3 of claims 6 and 8-10, which are all of the pending claims. We
have jurisdiction under 35 U.S.C. § 6. We AFFIRM.
The subject matter on appeal relates to supported olefin
polymerization catalysts that are capable of producing bi- or multimodal
blends of polyolefins. (Spec. 2 [0004], 5 [0014].) The catalysts are said to
produce polymers having low gel content, i.e., polymers with low levels of
visible imperfections. (Id. at 3 [0005].)
Representative Claim 6 reads:
6. A supported multi-transition-metal catalyst composition
comprising:
(a) at least one nonmetallocene catalyst component and at
least one metallocene catalyst component;
(b) wherein the at least one nonmetallocene catalyst
component and the at least one metallocene component
are deposited on a support material that has
a D50 of less than about 30 microns and
a particle size distribution having a D90/D10 ratio of
less than about 6; and
(c) an activator;

2 Application 11/218,213, Catalyst Compositions Comprising Support
Materials Having an Improved Particle-Size Distribution, filed 1 September
2005. The specification is referred to as the “213 Specification,” and is cited
as “Spec.” The real party in interest is listed as Univation Technologies,
LLC (Supplemental Appeal Brief, filed 31 August 2009 (“Br.”), 2.)
3 Office action mailed 27 June 2008 (“Final Rejection”; cited as “FR”).
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Application 11/218,213

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(d) wherein the metallocene catalyst component is
represented by the formulae:
CpACpBMXn and CpA(A)CpBMXn
wherein each CpA and CpB are the same or different
and are substituted or unsubstituted cyclopentadienyl
rings or ligands isolobal to cyclopentadienyl, each
bound to M; M is a Group 4, 5, or 6 atom; X is
selected from the group consisting of C1 to C6 alkyls,
C6 aryls, C7 to C12 alkylaryls, fluorinated C1 to C6
alkyls, fluorinated C6 aryls, fluorinated C7 to C12
alkylaryls, chlorine and fluorine; n is 1 or 2;
and (A) is a divalent bridging group; characterized in
that at least one X is a fluorine or fluorinated
hydrocarbonyl.
(Br., Claims App. 1; indentation and paragraphing added.)
The Examiner has maintained the following ground of rejection:4
Claims 6 and 8-10 stand rejected under 35 U.S.C. § 103(a) in view
of the combined teachings of McCullough5 and Nowlin.6
B. Discussion
Findings of fact throughout this Opinion are supported by a
preponderance of the evidence of record.
Kuo argues that the Examiner failed to take the unpredictability of the
art into consideration and also failed to articulate a reason for the alleged

4 Supplemental Examiner’s Answer mailed 20 October 2010 (“Ans.”).
5 Laughlin G. McCullough and Agapios K. Agapiou, Polymerization
Process Using a Metallocene Catalyst System, U.S. Patent 6,894,131 B2
(17 May 2005), based on an application filed 18 June 2003.
6 Thomas E. Nowlin et al., Bimodal Molecular Weight Distribution
Polyolefins, U.S. Patent 5,539,076 (1996).
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obviousness of the combination of the teachings. (Br. 9-12.) In particular,
according to Kuo, the Examiner failed to show that the D90/D10 particle size
distribution ratio would have been expected on the basis of the applied prior
art. (Id. at 13.) Moreover, in Kuo’s view, the prior art fails to provide an
expectation of the increased productivity and improved polymer properties
obtained by the claimed invention. (Id.) In fact, Kuo urges, McCullough
teaches away from the claimed invention by teaching that metallocene
catalysts are less active and less productive when supported than when
unsupported. (Reply 8-9.)
The Examiner maintains that it would have been obvious to use the
supported metallocenes taught by McCullough as the metallocenes that are
supported, together with nonmetallocene catalysts, in the supported catalyst
systems taught by Nowlin. The Examiner points out that the fluorine-
substitution recited in part (d) is met by the catalysts described in Examples
10b and 13b in Table 6, at columns 28-29 of McCullough. (Ans. 3.)
Moreover, the Ineos ES-757 silica used in those examples as a catalyst
support is the same support recommended by Kuo in the 213 Specification
(Spec. 54-55 [0144]). (Id.) Thus, the use of a support meeting the size
distribution limitations is well-motivated by McCullough.
Kuo’s arguments, which are limited to claim 6, with which the
remaining claims stand or fall (Br. 4, 2d para.), are not persuasive of harmful
error. While it is true that the art of olefin polymerization is often
characterized as “unpredictable,” the force of that characterization against an
obviousness rejection depends on the scope of the claims and the teachings
of the prior art. In the present case, Nowlin provides a generic reasonable
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expectation of success for olefin polymerization using metallocene catalysts
and Ziegler-Natta catalysts on conventional supports. McCullough provides
a similar expectation of success for at least certain supported fluorinated
metallocene catalysts within the scope of those recited in part (d) of claim 6.
McCullough also provides a reason to use catalyst supports within the scope
of those recited in part (b) of claim 6. Indeed, adjacent to the passage cited
by Kuo as evidence of “teaching away” from using supported metallocene
catalysts, McCullough teaches that the fluorination makes up for the typical
loss of activity presented by metallocene catalysts in supported form. In
McCullough’s words, “Surprisingly, supporting the organometallic catalyst
compounds having a fluoride or a fluorine containing leaving group, the
activity and productivity loss is reduced or virtually eliminated. Further, it
has been found that a class of these fluorine-substituted metallocenes
improve polymerization reactor operability by reducing fouling.”
(McCullough, col. 4, ll. 4-9.) The polymerizations reported in Table 6, on
which the Examiner relies, are said to provide reduced reactor fouling due to
the fluorine and the small support particle size (35 μm or less). (Id.
at col. 29, ll. 18-29.)
Kuo’s generic “unpredictable” arguments are not supported by
credible evidence of record, and are directly contradicted by both
McCullough and Nowlin. To the extent Kuo’s arguments may be construed
as arguments for unexpected results, we note that unexpected results must be
commensurate in scope with the claimed subject matter. In this regard,
although the metallocene catalysts must have the fluorine or fluorinated
group X, they are otherwise very broad as to metals (groups 4, 5, or 6) and
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Cp groups (substituted or unsubstituted, and any group isolobal to Cp). The
“nonmetallocene catalyst component” is even broader, and includes all
metal-containing olefin polymerization catalysts (see Spec. 5 [0014],
defining “catalyst compound” as an olefin oligomerization or polymerization
catalyst comprising at least one Group 3 to Group 12 atom) that are not
metallocenes.
Kuo’s arguments that the Examiner failed to articulate a rational for
combining the teachings of the references are without merit. The
substitution of similar components (supported fluorine-substituted
metallocenes for substituted metallocenes) for similar purposes (supported
metallocene olefin polymerization catalysts) is a classical instance of prima
facie obviousness.
We have considered Kuo’s remaining arguments in the Reply that the
Examiner over-generalized the rationales for obviousness but find no
harmful error in the context of the applied art and the scope of the appealed
subject matter.
C. Order
We AFFIRM the rejection of claims 6 and 8-10 under
35 U.S.C. § 103(a) in view of the combined teachings of McCullough and
Nowlin.
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
Appeal 2010-003638
Application 11/218,213

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Univation Technologies, LLC
Suite 1950
5555 San Felipe
Houston TX 77056