Ex Parte Lungu

Board of Patent Appeals and Interferences

Feb 24, 2010

11344019 (B.P.A.I. Feb. 24, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
_________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte ADRIAN LUNGU
__________

Appeal 2009-003084
Application 11/344,019
Technology Center 1700
___________

Decided: February 24, 2010
___________

Before ADRIENE LEPIANE HANLON, CHUNG K. PAK, and
CHARLES F. WARREN, Administrative Patent Judges.

HANLON, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2009-003084
Application 11/344,019

2
A. STATEMENT OF THE CASE
This is an appeal under 35 U.S.C. § 134 from an Examiner’s decision
rejecting claims 20-22, 25-27, 29, 30, and 33-38.1 We have jurisdiction
under 35 U.S.C. § 6(b). We AFFIRM.
Claim 20, reproduced below, is directed to a process for making a
flexographic printing plate.
20. A process for making a flexographic printing plate
comprising:

(a) providing a photosensitive element comprising a
support and a photopolymerizable elastomeric layer on the
support, the photopolymerizable layer comprising a binder, at
least one monomer, a photoinitiator, an onium salt and a leuco
dye;

(b) imagewise exposing the photopolymerizable layer
to actinic radiation forming polymerized portions and
unpolymerized portions in the layer;

(c) treating the element of (b) to remove the
unpolymerized portions and form a relief surface having raised
areas; and prior to treating step (c), backflash exposing the
photopolymerizable layer through the support to actinic
radiation to form a floor that contrasts in color with the raised
areas of the relief surface.

Br., Claims Appendix (emphasis added).2
Similarly, claim 34 recites a process for making a printing plate
comprising, inter alia, the steps of:
(b) backflash exposing the photopolymerizable layer to
actinic radiation to form a floor; and

1 Claim 28 is also pending but has been objected to as being dependent on a
rejected base claim. Final Office Action dated March 22, 2007, at 3.
2 Appeal Brief dated October 24, 2007.
Appeal 2009-003084
Application 11/344,019

3

(c) imagewise exposing the photopolymerizable layer to
actinic radiation forming polymerized portions and
unpolymerized portions in the layer, and coloring the
polymerized portions;

wherein the layer . . . has a contrast in color between the
polymerized portions and the floor.

Br., Claims Appendix.

The only Examiner’s rejection before us on appeal is the rejection of
claims 20-22, 25-27, 29, 30, and 33-38 under 35 U.S.C. § 103(a) as
unpatentable over Araki3 in view of the Appellant’s admission4 and Fan.5
B. ISSUE
The Appellant argues the patentability of claims 20-22, 25-27, 29, 30,
and 33-38 as a group. Br. 5-6. Thus, the sole issue on appeal, raised by
representative claims 20 and 34, is:
Do the combined teachings of Araki and Fan render obvious the step
of backflash exposing the photopolymerizable layer to form a floor that
contrasts in color with the polymerized portions of the photopolymerizable
layer or the raised areas of the relief surface as recited in the claims on
appeal?
We answer this question in the affirmative.
C. FINDINGS OF FACT
1. Araki

3 JP 59-211036 published November 29, 1984. We refer to the English
translation of record in the instant Application.
4 Spec. 1:12-3:21.
5 US 5,760,880 to Fan et al. issued June 2, 1998.
Appeal 2009-003084
Application 11/344,019

4
Araki discloses a photopolymerizable image-forming composition
comprising a binder consisting of a polymeric material, photopolymerizable
monomer or oligomer, photopolymerization initiator, reducing dye, and a
VI b group onium salt-type photoactivator having an optical absorption
wavelength range different from the photopolymerization initiator. Araki
2:31-36.
The Examiner found, and the Appellant does not dispute, that Araki
discloses a photopolymerizable composition comprising the same or similar
materials as the photopolymerizable composition recited in the claims on
appeal. Ans. 3, 4.6
Araki discloses that the composition may be used for the preparation
of relief print plates. Araki 6:1-2.
Araki discloses that the light-exposed part of the composition
develops color by the photoactivation-oxidation of the reducing dye with the
VI b group onium salt-type photoactivator, making it easy to distinguish the
exposed part of the composition from the unexposed part. Araki 6:15-21.
2. Fan
Fan discloses a process for making a flexographic printing plate. Fan
1:8-12.
The process usually includes a back exposure or backflash step. The
backflash step is a blanket exposure to actinic radiation through the support
layer to create a shallow layer of polymerized material, or a floor, on the
support side of the photopolymerizable layer. The floor provides improved
adhesion between the photopolymerizable layer and the support layer, helps

6 Examiner’s Answer dated March 25, 2008.
Appeal 2009-003084
Application 11/344,019

5
highlight dot resolution, and also establishes the depth of the plate relief.
Fan 13:30-39.
Fan discloses that the backflash exposure can take place before, after,
or during other imaging steps. Fan 13:39-41.
Fan discloses that exposure time generally ranges from a few seconds
up to about a minute. Fan 13:45-47.
D. PRINCIPLES OF LAW
The test for obviousness “is what the combined teachings of the
references would have suggested to those of ordinary skill in the art.” In re
Keller, 642 F.2d 413, 425 (CCPA 1981).
Facts relevant to a determination of obviousness include (1) the scope
and content of the prior art, (2) any differences between the claimed
invention and the prior art, (3) the level of skill in the art, and (4) any
relevant objective evidence of obviousness or non-obviousness. KSR,
127 S. Ct. 1727, 1734 (2007); Graham, 383 U.S. 1, 17-18 (1966).
All disclosures of the prior art must be considered. In re Lamberti,
545 F.2d 747, 750 (CCPA 1976).
In order for a showing of “unexpected results” to be probative
evidence of non-obviousness, it falls upon the Appellant to at least establish:
(1) that there actually is a difference between the results obtained through
the claimed invention and those of the prior art; and (2) that the difference
actually obtained would not have been expected by one skilled in the art at
the time of invention. In re Freeman, 474 F.2d 1318, 1324 (CCPA 1973).
Furthermore, “objective evidence of nonobviousness must be
commensurate in scope with the claims.” In re Lindner, 457 F.2d 506, 508
(CCPA 1972).
Appeal 2009-003084
Application 11/344,019

6
E. ANALYSIS
The Examiner found that Araki does not specifically discuss backflash
exposing the photopolymerizable composition. Nonetheless, the Examiner
found that Fan teaches that it is common practice to backflash a
photopolymerizable layer through a support to create a floor. Ans. 3-4.
The Appellant does not dispute the Examiner’s conclusion that it
would have been obvious to one of ordinary skill in the art to backflash the
photopolymerizable layer of Araki to create a floor. Instead, the Appellant
argues that the combined teachings of Araki and Fan do not show or suggest
that backflash exposing the photopolymerizable layer of Araki would form a
floor that contrasts in color with the raised areas of the relief surface. Br. 5.
We disagree. Fan discloses that the backflash step creates a floor, or
shallow layer of polymerized material, on the support side of the
photopolymerizable layer. Fan discloses that the exposure time generally
ranges from a few seconds to about a minute. On this record, it is reasonable
to conclude that backflash exposing the photopolymerizable composition of
Araki for as little as a few seconds would result in little, if any, color change
in the composition. See Br. 5 (backflash exposure is typically much shorter
than the main exposure).
The Appellant also argues that the thickness of the Appellant’s
photopolymerizable layer is at least 10 to 25 times thicker than the
photopolymerizable layer used in Araki. Br. 4. However, claims 20 and 34
do not recite the thickness of the photopolymerizable layer. See In re Self,
671 F.2d 1344, 1348 (CCPA 1982) (arguments based on limitations not
appearing in the claims fail at the outset). Moreover, the Appellant has
failed to establish that the thickness of the photopolymerizable layer in Araki
Appeal 2009-003084
Application 11/344,019

7
would have prevented the formation of a floor that contrasts in color with the
polymerized portions of the photopolymerizable layer or the raised areas of
the relief surface.
Finally, comparing the results reported in Example 1 and Comparative
Example 1 in the Appellant’s Specification, the Appellant argues that not all
printing plates retain a color change between the floor and the raised
portions of the plate surface after post exposure. Br. 4-5.
To the extent the Appellant is relying on these Examples to establish
unexpected results, the Appellant has failed to demonstrate that the results
reported are in fact unexpected. Freeman, 474 F.2d at 1324. For example,
the mixtures described in Example 1 and Comparative Example 1 contain
different amounts of an iodonium salt and leuco dye. Spec. 23:32-34, 25:25-
27. The Appellant has failed to explain why the retention results reported in
Example 1 would have been unexpected to one or ordinary skill in the art in
view of the different amounts of iodonium salt and leuco dye used in the
Examples. In this regard, we note that the Appellant discloses that “it is
believed that not all the leuco dye was consumed during the main exposure
step” in Comparative Example 1. Spec. 26:11-13.
In addition, claims 20 and 34 do not recite an amount of an onium salt
or leuco dye, a post-treating step, or a photopolymerizable layer that retains
the color contrast between the floor and the raised areas of the plate surface
after post exposure or a post-treating step. Lindner, 457 F.2d at 508.
F. DECISION
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).
Appeal 2009-003084
Application 11/344,019

8

AFFIRMED

PL Initial:
sld

E I DU PONT DE NEMOURS AND COMPANY
LEGAL PATENT RECORDS CENTER
BARLEY MILL PLAZA 25/1122B
4417 LANCASTER PIKE
WILMINGTON, DE 19805