10512388 (B.P.A.I. Sep. 28, 2011)

Ex Parte Maziers

Board of Patent Appeals and InterferencesSep 28, 2011

10512388 (B.P.A.I. Sep. 28, 2011)

UNITED STATES PATENT AND TRADEMARK OFFICE _________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES __________ Ex parte ERIC MAZIERS __________ Appeal 2011-001756 Application 10/512,388 Technology Center 1700 ___________ Before ADRIENE LEPIANE HANLON, MARK NAGUMO, and KAREN M. HASTINGS, Administrative Patent Judges. HANLON, Administrative Patent Judge. DECISION ON APPEAL A. STATEMENT OF THE CASE This is an appeal under 35 U.S.C. § 134 from an Examiner’s decision rejecting claims 15-22 and 24-34. Claim 35 is also pending but has been withdrawn from consideration. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. Appeal 2011-001756 Application 10/512,388 2 The subject matter on appeal relates to a hollow article produced by rotationally molding a polyethylene resin. The Appellant discloses that rotational molding is used for the manufacture of simple to complex, hollow plastic products and can be used to mold a variety of materials such as polyethylene, polypropylene, polycarbonate, or polyvinyl chloride. Spec. 1, ll. 13-15. The Appellant discloses that polyethylene represents more than 80% of the polymers used in the rotational molding market.1 Spec. 1, ll. 8-9. The hollow articles of the claims on appeal comprise a polyethylene resin produced in the presence of a metallocene catalyst having a bis-cyclopentadienyl ligand structure or a bridged bis-indenyl ligand structure. Claim 15, reproduced below, is illustrative. 15. A rotationally molded hollow article produced by rotational molding of a polyethylene resin and having a wall structure comprising of a polyethylene resin produced by the polymerization of ethylene in the presence of a metallocene catalyst having a bis- cyclopentadienyl ligand structure or a bridged bis-indenyl ligand structure. Br., Claims Appendix.2 The only Examiner’s rejection before us on appeal is the rejection of claims 15-22 and 24-34 under 35 U.S.C. § 103(a) as unpatentable over the combination of Maziers3 and Kioka.4 1 Rotational molding is also known as rotomolding. Roy J. Crawford & James L. Throne, Rotational Molding Technology 1 (William Andrew Publishing 2002) (copy in Appendix B of the Appeal Brief dated June 15, 2010). 2 Appeal Brief dated June 15, 2010. 3 EP 1 138 702 dated October 2001. The Examiner relies on US 2004/0121098 A1 published June 24, 2004, as evidence of the disclosure of EP 1 138 702. Examiner’s Answer dated August 10, 2010 (“Ans.”), at 3. The Appellant does not Appeal 2011-001756 Application 10/512,388 3 The Appellant does not present separate arguments for any of the claims on appeal. Therefore, the patentability of claims 15-22 and 24-34 will be based on the patentability of claim 15. 37 C.F.R. § 41.37(c)(1)(vii) (2010). B. DISCUSSION There is no dispute on this record that Maziers discloses hollow polyethylene articles wherein the polyethylene is produced in the presence of a metallocene catalyst having a bis-indenyl ligand structure as recited in claim 15. However, the Appellant argues that the polyethylene articles disclosed in Maziers are blow molded rather than rotationally molded as recited in the claims on appeal.5 Br. 3. The Examiner recognizes as much and relies on Kioka to establish that it is conventional in the art to rotationally mold ethylene polymers to prepare articles having desired shapes. The Examiner concludes that it would have been obvious to one of ordinary skill in the art to rotationally mold the polyethylene of Maziers in view of the teachings of Kioka “in order to provide articles with improved appearance (high gloss) and mechanical properties and with shapes not possible or as economically produced as by blow molding processes.” Ans. 3-4. The Appellant argues that there is no teaching or suggestion in the art of record to use the polymer of Maziers in a rotational molding process, regardless of whether Kioka teaches rotational molding because Kioka does not teach that polymers used in blow molding may be used in rotational molding to the same effect. Br. 4. object. Therefore, we will also rely on US 2004/0121098 A1 as evidence of the disclosure of the EP 1 138 702 in this Decision on Appeal. 4 US 5,324,805 issued June 28, 1994. 5 The rejection of claims 15-22 and 24-34 under § 102/103 over Maziers alone was withdrawn in the Office Action dated January 19, 2010. See Ans. 4. Appeal 2011-001756 Application 10/512,388 4 The Appellant’s argument is not persuasive of reversible error. The evidence of record establishes that rotational molding and blow molding were both known to be conventional methods for producing polyethylene articles at the time of the Appellant’s invention. See Kioka 9:43-49; see also Spec. 1:8-9 (polyethylene represents more than 80% of the polymers used in the rotomolding market); Rotational Molding Technology 6 (polyethylene, in its many forms, represents about 85% to 90% of all polymers that are rotationally molded). The evidence of record also establishes that the properties of articles produced by these conventional processes vary based on the process used. See Rotational Molding Technology 6-7, 10 (comparing properties of articles produced by rotational molding and blow molding). Thus, it is reasonable to conclude that one of ordinary skill in the art would have selected a particular process based on the intended use of the polyethylene article to be produced. We further note that Maziers teaches that the disclosed polyethylene may be blow molded in a continuous extrusion or coextrusion blow molding machine. See, e.g., Maziers, para. [0043]. Thus, on this record, it is reasonable to conclude that the metallocene-produced polyethylene of Maziers is sufficiently machinable such that it would be suitable for producing articles using other conventional processes, such as rotational molding. See In re O’Farrell, 853 F.2d 894, 903 (Fed. Cir. 1988) (“Obviousness does not require absolute predictability of success.”). Significantly, the Appellant does not direct us to any credible evidence establishing that the Examiner’s factual findings or conclusions of law are erroneous. Likewise, the Appellant does not direct us to any credible evidence of unexpected results. Appeal 2011-001756 Application 10/512,388 5 For the reasons set forth above and in the Examiner’s Answer dated August 10, 2010, the § 103(a) rejection will be affirmed. C. 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). AFFIRMED tc