Ex Parte Ludemann et alDownload PDFPatent Trial and Appeal BoardSep 14, 201612677721 (P.T.A.B. Sep. 14, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 12/677,721 03/11/2010 Simpert Ludemann 72584 7590 09/16/2016 HUNTSMAN TEXTILE EFFECTS ( GERMANY ) GMBH LEGAL DEPARTMENT 10003 WOODLOCH FOREST DRIVE THE WOODLANDS, TX 77380 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 ATTORNEY DOCKET NO. CONFIRMATION NO. TE925006 2660 EXAMINER BUIE-HATCHER, NICOLE M ART UNIT PAPER NUMBER 1767 NOTIFICATION DATE DELIVERY MODE 09/16/2016 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): USPatents@huntsman.com joanne_cutlip@huntsman.com martha_ victory@huntsman.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Exparte SIMPERT LUDEMANN, RULE NIEDERSTADT, WRGEN RIEDMANN, and DANIEL WILSON Appeal2015-005600 Application 12/677,721 Technology Center 1700 Before CATHERINE Q. TIMM, KAREN M. HASTINGS, and MONTE T. SQUIRE, Administrative Patent Judges. PERCURIAM. DECISION ON APPEAL Appellants 1 appeal under 35 U.S.C. § 134 from the Examiner's rejection under 35 U.S.C. § 103(a) of claims 1-10 as unpatentable over at least the basic combination of Dirschl et al. (US 2004/0249165 A 1, published Dec. 9, 2004) ("Dirschl"), Greenwood et al. (US 4,742, 140, issued May 3, 1988) ("Greenwood"), and Ishikawa et al. (US 6,211,284 Bl, issued Apr. 3, 2001) ("Ishikawa"). 2 We have jurisdiction over the appeal under 1 According to Appellants, the real party in interest is Huntsman Textiles Effects (Germany) GmbH LLC (Br. 3). 2 While the Examiner applies additional references to claims 7-9 (Ans. 8, 9), Appellants rely upon their arguments with respect to claim 1 for all the claims on appeal (Br. 11-18). Appeal2015-005600 Application 12/677,721 35 U.S.C. § 6(b). We affirm. Upon consideration of the evidence of record and each of Appellants' contentions as set forth in the Appeal Brief filed Nov. 7, 2014, we determine that Appellants have not demonstrated reversible error in the Examiner's rejection (e.g., Ans. 2-7 (mailed March 3, 2015)). We sustain the rejection for the reasons expressed by the Examiner in the Final Office Action and the Answer. We add the following for emphasis. Appellants argue the claims as a group. Accordingly, all of the claims stand or fall with claim 1 (see Br. 11-18 (see also Claims App.)). Appellants do not dispute the Examiner's findings with respect to Dirschl and Greenwood and Ishikawa; rather, they allege that Ishikawa teaches away from the use of its polyoxyalkylene-functional diorganopolysiloxane (which corresponds to component B of Appellants' claim 1) because Ishika\'l/a teaches that it needs to be used in conjunction with another polyoxyalkylene-functional diiorganosiloxane containing an amino-functional group (see generally Br. 13, 14). This argument is not persuasive. As the Examiner points out, neither the claims nor Dirschl preclude the use of other siloxanes (Ans. 7). Appellants then state that "[a]ssuming arguendo that appellant's composition of claim 1 is rendered obvious," the Specification examples evince unexpected results (Br. 15). It is well established that the burden of showing unexpected results rests on the person who asserts them by establishing that the difference between the claimed invention and the closest prior art was an unexpected difference. See In re Klosak, 455 F .2d 1077, 1080 (CCP A 1972). Further, the showing of unexpected results must 2 Appeal2015-005600 Application 12/677,721 be commensurate in scope with the claims. See In re Peterson, 315 F .3d 1325, 1330-31 (Fed. Cir. 2003). Appellants have not shown reversible error in the Examiner's findings that the evidence relied upon by Appellants (two inventive examples as set forth in the Specification) is not compared to the closest prior art (Dirschl), and is not commensurate in scope with the breadth of claim 1 and, therefore, is not persuasive evidence of nonobviousness (Ans. 8). The decision of the Examiner is 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 3 Copy with citationCopy as parenthetical citation