Ex Parte LI

Board of Patent Appeals and Interferences

Apr 1, 2011

11713352 (B.P.A.I. Apr. 1, 2011)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte XIANGYANG LI
__________

Appeal 2010-011314
Application 11/713,352
Technology Center 1700
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Before DONALD E. ADAMS, ERIC GRIMES, and LORA M. GREEN,
Administrative Patent Judges.

GRIMES, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims to a
thermoplastic molding composition. The Examiner has rejected the claims
as obvious. We have jurisdiction under 35 U.S.C. § 6(b). We affirm.

STATEMENT OF THE CASE
Claims 1-14 are on appeal. The claims stand or fall together (Appeal
Br. 3). Claim 1 is representative and reads as follows:
Appeal 2010-011314
Application 11/713,352

2
1. A thermoplastic molding composition comprising
A) 60 to 99 percent by weight (pbw) aromatic poly(ester) carbonate
having a weight-average molecular weight of at least 25,000,
B) 1 to 40 pbw (co)polyester, wherein the weight of A) and B) totals
100 parts (100 parts resin),
C) 1 to 20 parts per 100 parts resin (phr) graft (co)polymer having a
core-shell morphology, comprising a grafted shell that contains polymerized
alkyl(meth)acrylate and a composite rubber core that contains
interpenetrated and inseparable polyorganosiloxane and poly(meth)alkyl
acrylate where the weight ratio of polyorganosiloxane/poly(meth)-
alkylacrylate/grafted shell is 70-90/5-15/5-15,
D) 2 to 20 phr phosphorous-containing compound,
E) 0.1 to 2 phr fluorinated polyolefin and
F) 0.1 to 15 phr boron compound having average particle diameter of
2 to 10 microns.

The Examiner has rejected all of the claims on appeal as obvious in
view of Seidel,1 Zobel,2 and Nodera.3 The Examiner finds that Seidel
discloses a composition that includes or would have made obvious all of the
limitations of claim 1 except that Seidel’s composition does not include a
boron compound (Answer 3). The Examiner finds that Zobel discloses a
similar composition containing zinc borate, and “state[s] that the particle
size of zinc borate is particularly preferably 2-10 microns (column 7, lines 7-
9)” (id.). The Examiner concludes that it “would have been obvious to one
having ordinary skill in the art … to add the fine particle size zinc borate to
the composition of Seidel et al. in order to improve the mechanical
properties of said composition and to further improve the flame-retardance

1 Seidel et al., US 7,067,567, June 27, 2006
2 Zobel et al., US 6,596,800, July 22, 2003
3 Nodera et al., US 6,369,142, Apr. 9, 2002
Appeal 2010-011314
Application 11/713,352

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of said composition since zinc borate is a known flame-retardant (see
column 9, line 26 of Zobel et al.)” (id.).
We adopt the Examiner’s findings regarding the scope and content of
the prior art (Answer 3-4) and his reasoning and conclusion that those
teachings would have made obvious the thermoplastic molding composition
of claim 1 (id.).
Appellant argues that the Examiner’s “statements regarding the rubber
modifier of Seidel et al. are in error…. [T]o one of ordinary skill in the art
Seidel et al. teach the preferred range of organosiloxane content as 30 to 99
wt%” (Appeal Br. 5).
This argument not persuasive. Component (C) of claim 1 requires a
graft (co)polymer having a composite rubber core comprising
polyorganosiloxane, where the polyorganosiloxane makes up 70-90% of the
graft (co)polymer (see claim 1). Appellant concedes that Seidel discloses
that the rubber core of its graft polymer preferably contains 30 to 99%
organosiloxane (Appeal Br. 5). Thus, Seidel’s preferred range encompasses
the claimed polyorganosiloxane range, making the claimed range prima
facie obvious. See In re Peterson, 315 F.3d 1325, 1330 (Fed. Cir. 2003)
(“[T]he existence of overlapping or encompassing ranges shifts the burden
to the applicant to show that his invention would not have been obvious.”).
Appellant also argues that “[e]ven though zinc borate is a flame
retardant, the Examiner has pointed to no evidence showing its effect in
different systems can be predicted. Therefore, … it is not reasonable to
assume zinc borate will have the same performance in [Seidel’s]
polycarbonate/polyester system” (Appeal Br. 5).
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Application 11/713,352

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This argument is also not persuasive. Appellant concedes that zinc
borate is a known flame retardant, and Zobel discloses its use in a
thermoplastic polycarbonate composition. Appellant has pointed to no
evidence to show that the functionality of zinc borate (or any other of
Zobel’s compounds) as a flame retardant varies depending on which
polymer composition it is included in. Thus, although the thermoplastic
polycarbonate composition of claim 1 differs from that of Zobel, one of skill
in the art would have had a reasonable expectation that the known flame
retardant zinc borate would function as a flame retardant in the composition
of claim 1.
SUMMARY
We affirm the rejection of claims 1-14 as obvious in view of Seidel
and Zobel.
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).

AFFIRMED

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