Ex Parte MarkhartDownload PDFBoard of Patent Appeals and InterferencesNov 5, 200911344653 (B.P.A.I. Nov. 5, 2009) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ________________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ________________ Ex parte GARY T. MARKHART ________________ Appeal 2009-009314 Application 11/344,653 Technology Center 2800 ________________ Decided: November 5, 2009 ________________ Before EDWARD C. KIMLIN, CHARLES F. WARREN, and MARK NAGUMO, Administrative Patent Judges. NAGUMO, Administrative Patent Judge. DECISION ON APPEAL Appeal 2009-009314 Application 11/344,653 2 A. Introduction1 Gary T. Markhart (“Markhart”) timely appeals under 35 U.S.C. § 134(a) from the final rejection2 of claims 45-74, 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 apparatuses and methods for thermally developing flexographic printing elements. According to the 653 Specification, among the novel and nonobvious aspects of the invention are the incorporation, in a single apparatus, of the exposing, developing, and post-exposure detack steps, which are said to have been traditionally carried out in separate devices. Claims 45 and 46 illustrate the principal issues of contention, and are reproduced infra from the Claims Appendix to the Principal Brief on Appeal. 45. An apparatus for exposing and developing a flexographic printing element, the apparatus comprising: means for supporting, and preferably rotating, a printing element; 1 Application 11/344,653, Apparatus and Method for Thermally Developing Flexographic Printing Elements, filed 1 February 2006, as a CON of 10/891,351, filed 14 July 2004, now U.S. Patent 7,041,432, which is a CIP of 10/811,763, filed 29 March 2004, now U.S. Patent 6,998,218. The specification is referred to as the “653 Specification,” and is cited as “Spec.” The real party in interest is listed as MacDermid Printing Solutions, LLC. (Appeal Brief under 37 C.F.R. § 41.37, filed 15 September 2008 (“Br.”), 1.) 2 Office action mailed 5 June 2008 (“Final Rejection”; cited as “FR”). Appeal 2009-009314 Application 11/344,653 3 means for exposing a surface of the printing element to actinic radiation to selectively crosslink and cure a portion of the surface of the printing element; and means for thermally developing the exposed surface of the printing element comprising a) means for softening or melting non-cross-linked photopolymer on the exposed surface of the printing element; b) at least one element that is contactable with the surface of the printing element and capable of moving across at least a portion of the length of the printing element to remove the softened or melted non-crosslinked photopolymer; and c) means for maintaining contact between the at least one contactable element and the printing element. (Claims App., Br. 15; indentation added.) 46. The apparatus according to claim 45, further comprising means for detacking and post-curing the printing element, wherein said means for detacking and post-curing the printing element are capable of moving over at least a portion of the printing element. (Claims App., Br. 15; indentation added.) The Examiner has maintained the following grounds of rejection:3 A. Claims 45-47, 49-52, 54-58, 61-64, 66, and 67 stand rejected under 35 U.S.C. § 103(a) in view of the combined teachings of Johnson4 and Gelbart.5 3 Examiner’s Answer mailed 6 January 2009. (“Ans.”). 4 Melvin Harry Johnson, Method and Apparatus for Thermal Processing a Photosensitive Element, U.S. Patent 6,797,545 B1 (28 September 2004), accorded the benefit under 35 U.S.C. § 371 of 19 February 2002. Appeal 2009-009314 Application 11/344,653 4 B. Claims 48, 59, and 60 stand rejected6 under 35 U.S.C. § 103(a) in view of the combined teachings of Johnson, Gelbart, and Huck.7 C. Claims 53 and 65 stand rejected8 under 35 U.S.C. § 103(a) in view of the combined teachings of Johnson, Gelbart, and Okamoto.9 D. Claims 68-72 and 74 stand rejected under 35 U.S.C. § 103(a) in view of the combined teachings of Johnson, Gelbart, and Huck. E. Claim 73 stands rejected under 35 U.S.C. § 103(a) in view of the combined teachings of Johnson, Gelbart, Huck, and Okamoto. Markhart has limited the arguments against the Examiner’s rejections to certain limitations recited in the independent claims (claims 45, 56, and 68), and in dependent claims 46, 57, and 71. Most critically, according to Markhart, Johnson does not suggest performing the steps of actinically exposing and thermally developing the flexographic printing elements in a single apparatus, “especially when taking into consideration the elevated temperatures required for thermal development as compared to the temperature required for imaging and exposing and also the differences in the processing steps.” (Id. at 8, 1st para.) In Markhart’s view, Gelbart does not make up for these deficiencies, and actually teaches away from 5 Daniel Gelbart, Non-Permanent Inkjetted Flexographic Mask, U.S. Patent 6,861,203 B2 (1 March 2005), based on an application filed 12 December 2002. 6 Rejection B combines Final Rejections 2 and 4. 7 W.F. Huck, U.S. Patent 2,997,951 (1961). 8 Rejection C combines Final Rejections 3 and 5. 9 Masaya Okamoto, U.S. Patent 6,490,424 B2 (3 December 2002). Appeal 2009-009314 Application 11/344,653 5 performing the developing step in the same apparatus as the imaging and exposing steps. (Id. at 8, last para.) As for the further component or step of detacking and post-curing recited in claims 46, 57, and 71, Markhart argues that Johnson does not perform “a separate post-curing step after the printing element has been thermally developed” (id. at 9, 2d full para.; see also 12, 4th para.), as required, according to Markhart, by the claims. B. Findings of Fact (FF) Findings of fact throughout this Opinion are supported by a preponderance of the evidence of record. The 653 Specification 1. The 653 Specification teaches that it is highly desirable in the flexographic printing art to eliminate chemical processing of the printing elements in order to speed up the printing process (Spec. 2, ll. 5-7) in the production of newspapers and other publications (id. at ll. 15-17). 2. This goal has been obtained by providing a photopolymer layer on a flexographic printing element that is selectively cured by exposure to actinic radiation. (Spec. 3, ll. 5-16.) 3. The photopolymer is chosen to have a substantial difference between the melt temperature of the cured and the uncured polymers. (Spec. 2, ll. 30-32.) 4. The exposed printing element is developed by heating to a temperature above the melt temperature of the unexposed, uncured polymer, but below the melt temperature of the exposed, cured polymer, generally at Appeal 2009-009314 Application 11/344,653 6 least about 70° C, and removing the melted polymer, leaving the cured polymer in place. (Spec. 3, l. 18, to 4, l. 2.) 5. The softened or melted polymer can be removed by a process generally referred to as “blotting,” in which “the heated printing element is contacted with a material that will absorb or otherwise remove the softened or melted uncured photopolymer.” (Spec. 4, ll. 1-4.) 6. Removal of the softened or melted polymer can also be accomplished by a doctor blade positioned adjacent to the printing element. (Spec. 13, ll. 28-33.) 7. According to the 653 Specification, “exposing, developing and post exposure/detack steps have traditionally been carried out in separate devices.” (Spec. 5, ll. 26-27.) 8. A drawing of an embodiment of the claimed flexographic printing apparatus is shown in Fig. 5, which is reproduced infra: {Fig. 5 is said to show a printing apparatus} Appeal 2009-009314 Application 11/344,653 7 9. Printing element l6, with imaged surface 14 (Spec. 11, ll. 28-29) is supported on the unlabeled shaft that is journaled in unlabeled bearings at either end.10 10. Means for exposing the surface of the printing element to a source of actinic radiation 52 is said to comprise, typically, one or more UV light sources. (Spec. 15, ll. 12-17.) 11. Blotting material 20, which contacts the surface of the printing element is carried by heatable roll 12, which is movably mounted on shaft 26 (Spec. 14, ll. 9-11) and which functions as the means for softening or melting the non-crosslinked photopolymer (Spec. 11, l. 21, to 12, l. 1). 12. As shown in Fig. 1 (not reproduced here), alternatively, a separate means 50 for softening or melting the non-crosslinked photopolymer may be provided as an infrared heater or hot air heater. (Spec. 12, ll. 21-25.) 13. In an alternative embodiment, the developing apparatus may comprise a doctor blade positioned in place of the blotting material. (Spec. 13, ll. 28-33.) 14. Means for detacking and post-curing the printing element 16 is said to be provided by device 54 (Spec. 16, ll. 15-22), although no details of the structure or functioning of device 54 are provided in the 653 Disclosure. 15. Means for maintaining contact between the contactable element 12 and the printing element 16 is provided by an air or hydraulic cylinder 18, shown in Fig. 1 (not reproduced here). (Spec. 12, ll. 27-30.) 10 For clarity, labeled elements are presented in bold font regardless of how they are presented in the references of record. Appeal 2009-009314 Application 11/344,653 8 Johnson 16. Johnson describes an apparatus for thermally developing an exposed flexographic printing sheet 16. 17. Photosensitive flexographic printing sheet 16 comprises a flexible substrate 15 that has been coated with radiation-curable composition layer 17 and exposed to actinic radiation through, e.g., an image-bearing mask, resulting in cross-linked (“cured”) regions and uncross-linked, “uncured” regions. (Johnson, col. 8, l. 45, through col. 10, l. 2.) 18. According to Johnson, “the cured irradiated portions [of layer 17 of sheet 16] have an elevated melting temperature, and are insoluble in flexographic printing inks under normal conditions.” (Johnson, col. 10, ll. 1-5.) 19. “Normal conditions” are said to include flexographic plate temperatures of between about 12° C and 31° C. (Johnson, col. 10, ll. 5-7.) Appeal 2009-009314 Application 11/344,653 9 20. The Johnson developing apparatus is illustrated in Fig. 15, which is shown below (element labels not helpful for understanding this appeal have been deleted for clarity): {Fig. 15 (redacted) shows a flexographic printing element developing device} 21. Drum 18 is mounted for rotation on stationary support frame 12, and carries photosensitive element sheet 16 (see Fig. 14, not shown here). (Johnson, col. 21, ll. 43-53.) 22. Heater 300 heats the sheet 16 sufficiently to liquefy the unexposed regions. (Johnson, col. 21, ll. 53-62.) 23. Absorbent nonwoven web 76 is brought into contact with sheet 16 by heated drum 78 (in back of element 315: see Fig. 17a, not shown here) to remove the liquid material. (Johnson, col. 22, ll. 21-29; cf. id. at col. 17, ll. 8-16, describing related embodiment shown in Fig. 6.) Appeal 2009-009314 Application 11/344,653 10 24. Johnson teaches that “[t]he photosensitive element composition layer 17 is heated to between 40 and 200° C (104-392° F) while in contact with the absorbent material.” (Johnson, col. 10, ll. 18-20.) 25. “The absorbent material contacts surface 27 of the radiation curable layer of the heated photosensitive element,” Johnson continues, “and absorbs the liquefied portions 31 of the elastomeric polymer from the unirradiated portions of the composition layer 17, forming a flexographic printing plate in which portions 31 are removed as shown to form a relief pattern or surface.” (Johnson, col. 10, ll. 20-26.) 26. Cooling means 355 comprises a blower 356 and an optional shroud 358, and is “positioned where the photosensitive element sheet 16 is separated from the absorbent material web 76 for cooling the photosensitive element sheet.” (Johnson, col. 23, ll. 55-62.) 27. Johnson does not describe exposure of the printing element to actinic radiation in the disclosed developing apparatus. Gelbart 28. Gelbart describes methods for exposing photosensitive flexographic printing plates in which the printing plate is coated and exposed in a single apparatus. (Gelbart, col. 2, ll. 28-39.) 29. The use of a single apparatus is said to avoid handling-induced damage to the printing plates. (Gelbart, col. 2, l. 39.) Appeal 2009-009314 Application 11/344,653 11 30. Gelbart notes that “[s]ome of the advantages of the invention are obtained by performing two or more steps that are conventionally performed in separate apparatus in a single apparatus.” (Gelbart, col. 3, ll. 10-12.) 31. In particular, Gelbart describes, in Figure 2, item 36, a UV light source for curing, i.e., crosslinking, a photosensitive layer 18B on photosensitive printing plate 18. (Gelbart, col. 4, ll. 54-col 5, l. 1.) 32. Gelbart does not describe an apparatus that exposes and develops a flexographic printing element. C. Discussion As the Appellant, Markhart bears the procedural burden of showing harmful error in the Examiner’s rejections. See, e.g., In re Kahn, 441 F.3d 977, 985-86 (Fed. Cir. 2006) (“On appeal to the Board, an applicant can overcome a rejection [under § 103] by showing insufficient evidence of prima facie obviousness”) (citation and internal quote omitted). Arguments not timely raised have been waived. 37 C.F.R. § 41.37(c)(1)(vii) (2009), second sentence. Markhart’s substantive arguments for the patentability of claims 45, 56, and 68 are substantially the same. Similarly, Markhart’s arguments for the patentability of claims 46, 57, and 71 are substantially the same. No other claims are identified as being separately patentable. Accordingly, all claims stand or fall with claims 45 and 46. 37 C.F.R. § 41.37(c)(1)(vii). Markhart’s argument that the Examiner erred because neither Johnson nor Gelbart describes combining actinic exposure and thermal development of a flexographic printing element in a single apparatus is not persuasive. Appeal 2009-009314 Application 11/344,653 12 As the Examiner correctly points out, the test for obviousness depends on the combined teachings of the references, not on the deficiencies of the individual references. In this case, Gelbart’s teaching that advantages of less handling-induced damage arising from the combination of functions from separate devices in a single apparatus would have suggested to a person having ordinary skill in the art the desirability of combining the actinic exposure and thermal developing functions in a single apparatus. Markhart’s argument that the references do not suggest a blotting material supported by at least one roll, in combination with thermal developing, imaging, and exposing (Br. 7, last para.) is not well taken. Claim 45 does not require that the blotting material11 be supported by at least one roll. Markhart’s further argument that the elevated temperatures required for thermal development would have discouraged the addition of actinic exposure to the thermal development apparatus are not supported by citation to substantial evidence of record. Moreover, Johnson indicates that a “normal temperature” for the flexographic printing element is in the range of 12-31° C (Johnson, col. 10, 11. 1-7), and that development can be conducted at temperatures as low as 40° C (id. at col. 10, l. 19). Markhart has not explained why a person having ordinary skill in the art would not have been able to accommodate ambient temperatures and a temperature only a few degrees above ambient in a single apparatus. Nor has Markhart shown that even the 200° C upper end of the development temperature range would have been beyond the level of ordinary skill to accommodate. Still 11 We understand the term “blotting material” to include an absorbent material or a doctor blade: see the description of the term “blotting” in the 653 Specification at page 4, ll. 1-4, quoted supra at page 6, FF 5. Appeal 2009-009314 Application 11/344,653 13 less has Markhart directed our attention to any teachings in either Johnson or Gelbart that the proposed combination cannot, or should not be done. Para- Ordnance Manufacturing, Inc. v. SGS Importers International, Inc., 73 F.3d 1085, 1090 (Fed. Cir. 1995) (to teach away, a reference must state that it “should not” or “cannot” be used in combinations with the other reference). Markhart’s arguments that Johnson does not perform a detacking and post curing step after the printing element has been thermally developed is not persuasive of harmful error. Markhart has not explained how the cooling means 355 described by Johnson differs in structure or function from the otherwise uncharacterized means 54 for detacking and post curing shown in Figure 5 of the 653 Specification. Finally, we note that Markhart has not raised any arguments for patentability based on secondary considerations such as unexpected results. On the present record, we conclude that Markhart has failed to prove harmful error in the Examiner’s rejections. D. Order We AFFIRM the rejection of claims 45-47, 49-52, 54-58, 61-64, 66, and 67 under 35 U.S.C. § 103(a) in view of the combined teachings of Johnson and Gelbart. We AFFIRM the rejection of claims 48, 59, and 60 under 35 U.S.C. § 103(a) in view of the combined teachings of Johnson, Gelbart, and Huck. Appeal 2009-009314 Application 11/344,653 14 We AFFIRM the rejection of claims 53 and 65 under 35 U.S.C. § 103(a) in view of the combined teachings of Johnson, Gelbart, and Okamoto. We AFFIRM the rejection of claims 68-72 and 74 under 35 U.S.C. § 103(a) in view of the combined teachings of Johnson, Gelbart, and Huck. We AFFIRM the rejection of claim 73 under 35 U.S.C. § 103(a) in view of the combined teachings of Johnson, Gelbart, Huck, and Okamoto. 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 PL Initial: sld Appeal 2009-009314 Application 11/344,653 15 JOHN L. CORDANI CARMODY&TORRANCE LLP P.O. BOX 1110 50 LEAVENWORTH STREET WATERBURY, CT 06721-1110 Copy with citationCopy as parenthetical citation