Ex Parte Ling et al

Board of Patent Appeals and Interferences

Feb 28, 2011

11114517 (B.P.A.I. Feb. 28, 2011)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte MICHAEL T.K. LING, ANGELES LILLIAN BUAN, TERESA
WHITE, VARSHA KALYANKAR, GREGG NEBGEN, SCOTT
EDWARDS and K.Z. HONG
__________

Appeal 2010-001011
Application 11/114,517
Technology Center 1700
____________

Before CHARLES F. WARREN, JEFFREY T. SMITH, and
MICHAEL P. COLAIANNI, Administrative Patent Judges.

COLAIANNI, Administrative Patent Judge.

DECISION ON APPEAL1

1The 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 2010-001011
Application 11/114,517

Appellants appeal under 35 U.S.C. § 134 the final rejection of claims
1, 2, 5-16, and 22-26. We have jurisdiction over the appeal pursuant to 35
U.S.C. § 6(b).
We REVERSE.
Appellants describe a polymer blend of a high density polyethylene
(HDPE) and a surface enhancing polymer, such as ethylene propylene diene
monomer terpolymer (EPDM), that may be fabricated into articles such as
films and overpouch containers for medical components (Spec. ¶¶ [004],
[005] and [0021]).
Claim 1 is illustrative:
1. A polymer blend comprising:
a high density polyethylene; and
a surface enhancing polymer of a crosslinked ethylene
propylene diene terpolymer dispersed in a polyolefin matrix.

Appellants seek review of the following rejections:
1. Claims 1 and 5 are rejected under 35 U.S.C. §§ 102(b)/103(a) as being
unpatentable over Wang (WO 02/31049 A1 published Apr. 18, 2002).
2. Claim 2, 6-16, and 22-26 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Wang in view of Tau (US 2003/0216518 A1
published Nov. 20, 2003).

DISPOSITIVE ISSUE
Does the Examiner’s stated rejection establish that Wang teaches or
would have suggested using a blend of HDPE and EPDM as required by
claim 1? We decide this issue in the negative.

FACTUAL FINDINGS (FF) & ANALYSIS
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Application 11/114,517

The Examiner finds that Wang on page 11 discloses that
“polypropylene” within the context of Wang’s invention “includes
homopolymers of propylene as well as reactor copolymer of polypropylene
which can contain from 1 to 20 wt.% ethylene derived units or other 4 to 6
carbon α-olefin comonomer derived units” (Ans. 3, 7). The Examiner
further finds that Wang’s page 11 disclosure teaches that other suitable
thermoplastic polyolefin resins include, inter alia, high density polyethylene
(HDPE). Id. The Examiner relies on these disclosures to teach that
“polypropylene” in the context of Wang includes a blend of HDPE and
polypropylene. Id.
In light of the Examiner’s interpretation of Wang’s page 11 disclosure
the Examiner reasons that Wang’s disclosure on page 2 in the background
section that thermoplastic elastomers (TPE) may be made of blends of
polypropylene and cured EDPM anticipates or would have rendered obvious
Appellants’ claimed invention.
Appellants argue that Wang’s definition of “polypropylene” and the
disclosure of HDPE are separate and distinguishable from one another (App.
Br. 13). Accordingly, Appellants contend that Wang does not teach a blend
of HDPE and EDPM as claimed (App. Br. 13). We agree.
The Examiner’s stated case for anticipation or obviousness over Wang
is based upon the erroneous finding that Wang teaches “polypropylene” is a
blend of HDPE and propylene. Wang’s page 11 disclosure is part of the
larger disclosure of suitable thermoplastic polymers for use in Wang’s
invention (Wang, 10, l. 11 to 11, l.15). Accordingly, when Wang states that
“[o]ther suitable thermoplastic polyolefin resins include high density
polyethylene (HDPE) . . .” Wang is plainly referring to a separate suitable
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Appeal 2010-001011
Application 11/114,517

thermoplastic material, not that the HDPE is part of the “polypropylene”
disclosure.
The Examiner improperly relies on this erroneous finding regarding
Wang’s definition of “polypropylene” to determine that Wang’s background
disclosure that thermoplastic elastomers made of polypropylene and EPDM
anticipate or would have rendered the claimed HDPE and EPDM blend
obvious. The Examiner offers no other explanation or rationale for finding
that Wang anticipates or would have rendered obvious the claimed
invention. The Examiner has not established a prima facie case of
anticipation or obviousness of the claimed invention over Wang.
For these reasons, we reverse the Examiner’s § 102(b) and § 103(a)
rejections over Wang.
The Examiner does not rely on Tau to teach a blend of HDPE and
EPDM. Accordingly, we reverse the § 103 rejection of Wang in view of
Tau for the same reasons noted above.

DECISION
The Examiner’s decision is reversed.
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).

ORDER
REVERSED

tc
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Appeal 2010-001011
Application 11/114,517

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