Ex Parte Maziers

Patent Trial and Appeal Board

May 9, 2014

11922126 (P.T.A.B. May. 9, 2014)

UNITED STATES PATENT AND TRADEMARKOFFICE
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
11/922,126 11/10/2009 Eric Maziers F-955 5071
25264 7590 05/09/2014
FINA TECHNOLOGY INC
PO BOX 674412
HOUSTON, TX 77267-4412
EXAMINER
RAUDENBUSH, ELLEN SUZANNE
ART UNIT PAPER NUMBER
1782
MAIL DATE DELIVERY MODE
05/09/2014 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte ERIC MAZIERS
____________

Appeal 2012-010709
Application 11/922,126
Technology Center 1700
____________

Before TONI R. SCHEINER, RICHARD M. LEBOVITZ, and JEFFREY B.
ROBERTSON, Administrative Patent Judges.

LEBOVITZ, Administrative Patent Judge.

DECISION ON APPEAL
This appeal involves claims to rotomoulded articles. The Examiner
has rejected the claims as obvious. We have jurisdiction under 35 U.S.C.
§ 134. We affirm-in-part.

STATEMENT OF CASE
The claims are drawn to rotomoulded articles. “Rotomoulding is used
for the manufacture of simple to complex, hollow plastic products.”
Application No. 11/922,126, p. 1, ll. 10-11 (“the ’126 Application”).
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Claims 1-4, 6, 8, 9, and 21-35 are on appeal. The claims stand
rejected by the Examiner as follows:
1. Claim 21 under 35 U.S.C. § 112, second paragraph, as indefinite
for failing to particularly point out and distinctly claim the subject matter
which applicant regards as the invention.
2. Claims 1-3, 8, 9, 22-24, and 26 under 35 U.S.C. § 102(e) as
anticipated by US 2007/0254174 (“O’Brien”).
3. Claims 1-4, 8, 9, 22-26, 34, and 35 under 35 U.S.C. § 102(e) as
anticipated by US 2006/0251835 (“Maziers”).
4. Claims 21, 27, 28, 30, 31, and 32 under 35 U.S.C. § 102(b) as
being anticipated by US 2002/0183448 (“Tibbitt”).
5. Claim 6 under 35 U.S.C. § 103(a) as obvious over O’Brien or
Maziers in view of US 2002/0197499 (“Hirose”).
6. Claims 29 and 33 under 35 U.S.C. § 103(a) as obvious over
Tibbitt.
Claim 1 is representative and reads as follows (bracketed numbers
have been added to highlight certain limitations of the claim):
1. A multilayer rotomoulded article that comprises:
A) A first layer prepared from a powder or micropellets
blend comprising:
a) from 40 to 100 wt% based on the weight of
layer A) of a first powder or micropellets composition of from
50 to 99.9 wt% based on the weight of composition a) of [1] a
homo- or co-polymer of ethylene and of from 0.1 to 50 wt%
based on the weight of composition a) of [2a] an ionomer or
[2b] a combination of a functionalised polyolefin and an
ionomer;
b) from 0 to 60 wt% based on the weight of layer
A) of a second resin in powder or micropellets form prepared
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from [3] a polyolefin or from a non-polyolefin resin or a
mixture thereof, said second resin being the same as or different
from the first resin;
wherein resin powder b) is dry blended with composition
powder a);
B) A second layer, adjacent to the first layer, prepared
from [4] a polyamide and wherein the adhesion to the first layer
is provided by the composition of said first layer;
C) Optional additional layers.

§ 112, SECOND PARAGRAPH REJECTION
The Examiner contends that claim 21 is indefinite because the
preamble of the claim limits the article to a single layer but the body of the
claim refers to a second layer. Ans. 4-5.
We will not sustain this rejection. Claim 21 only refers to one layer.
The single layer is recited in the body of the claim to be a blend of two
compositions. There is no mentioned of a second layer. The Examiner’s
interpretation is not reasonable.

O’BRIEN ANTICIPATION REJECTION
The Examiner found that O’Brien describes a multilayer article
prepared by rotational molding comprising the recited layers of claim 1.
Appellant challenges the Examiner’s determination, arguing that O’Brien
does not describe a layer B comprising [4] a polyamide as recited in the
claim. App. Br. 13.
The Examiner found that O’Brien’s layer B corresponds to layer A of
instant claim 1; and that O’Brien’s layer C corresponds to layer B of instant
claim 1. Ans. 13. The Examiner found that layer B of O’Brien includes
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polyamides, citing paragraph 67 to support this finding. Id. Paragraph 67 of
O’Brien introduced the polyamides that can be used in its “invention.”
Subsequent paragraphs 72 and 81 clearly state that layer B includes
polyamides.
The Examiner further found that O’Brien states that layer C can be
“similar to or dissimilar from that of layer B.” Ans. 13; O’Brien, Abstract.
Since layer B includes polyamides, and layer C can be similar to layer B, the
Examiner found that “O’Brien discloses that the composition used for layer
C can be a polyamide.” Ans. 13.
Appellant contends “O’Brien does not state what ‘similar’ or
‘dissimilar’ means, nor does it provide any teaching or disclosure that ‘Layer
C can be a polyamide.’” Reply Br. 8.
O’Brien states that layer C can be “similar to or dissimilar from that
of layer B.” O’Brien, Abstract. While O’Brien does not explain what
“similar” means, it is common sense that “similar” would include at least a
“polyamide,” since a polyamide is one of the several components that can be
present in layer B. O’Brien ¶¶ 47, 67, 72, and 81. Reading “similar” to
exclude polyamides in layer C, when polyamides are explicitly mentioned as
a component of layer B, would essentially make the term “similar”
meaningless. The skilled worker would have reasonably interpreted
“similar” to include a layer C with polyamides because layer B comprises
polyamides (id. at ¶¶ 72 and 81), in addition to other components (id. at
¶ 47). One of ordinary skill in the art would have understood “similar” to
layer B to mean including at least one of the listed components of layer B,
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although not necessarily all. Otherwise, as discussed above, the disclosure
in O’Brien that layer C can be similar to layer B would have no meaning.
For the foregoing reasons, we affirm the rejection of claim 1. Claims
2, 3, 8, 9, 22-24, and 26 depend from claim 1, and were not separately
argued. Accordingly, these claims fall with claim 1. 37 C.F.R.
§ 41.37(c)(vii).

MAZIERS ANTICIPATION REJECTION
The Examiner found that Maziers describes all the elements of claim
1. Ans. 7-8. For the ionomer of claim 1 ([2a] or [2b]), the Examiner found
that the ’126 Application describes adding ionomers Priex 12031 and 30101
(id. at 14; ’126 Application 16:3-4) and that Maziers describes a maleic
anhydride grafted high density polyethylene which is the same compound as
Priex 12031 (Ans. 14).
Appellant argues that a maleic anhydride grafted high density
polyethylene is not an ionomer. The definition of “ionomer” set forth by the
Examiner is “a polymer that comprises repeat units of both electrically
neutral repeating units and a fraction of ionized units.” Final Office Action
dated Aug. 5, 2011, p. 9. Appellant contends that maleic anhydride grafted
high density polyethylene, i.e., Priex 12031, does not meet this definition.
Reply Br. 13-14.
The Examiner did not meet the burden of showing that the chemical
compound of maleic anhydride grafted high density polyethylene met the
definition of an ionomer as set forth in the Office Action. The basis of the
rejection is that Priex 12031, which corresponds to the maleic anhydride
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grafted high density polyethylene compound of Maziers, is supposedly
characterized in the ’126 Application as an ionomer. It is undisputed that
the ’126 Application refers to the “ionomers Priex 12031 and 30101.”
’126 Application 16:4. However, the evidence is insufficient that the
inventor intended to define Priex 12031 as an ionomer.
Generally, claim terms are:
Given their ordinary and customary meaning as
understood by a person of ordinary skill in the art when
read in the context of the specification and prosecution
history. There are only two exceptions to this general
rule: 1) when a patentee sets out a definition and acts as
his own lexicographer, or 2) when the patentee disavows
the full scope of a claim term either in the specification
or during prosecution.
[Thorner v. Sony Computer Entm’t Am. LLC, 669 F.3d 1362,
1365 (Fed. Cir. 2012)] (citation omitted). “To act as its own
lexicographer, a patentee must ‘clearly set forth a definition of
the disputed claim term’ other than its plain and ordinary
meaning.” Id. at 1365 (quoting CCS Fitness, Inc. v. Brunswick
Corp., 288 F.3d 1359, 1366 . . . (Fed. Cir. 2002)). “It is not
enough for a patentee to simply disclose a single embodiment
or use a word in the same manner in all embodiments, the
patentee must ‘clearly express an intent’ to redefine the term.”
Id. (citing Helmsderfer v. Bobrick Washroom Equip., Inc.,
527 F.3d 1379, 1381 . . . (Fed. Cir. 2008)).
Butamax(TM) Advanced Biofuels LLC v. Gevo, Inc., 109 USPQ2d 1701,
1706 (Fed. Cir. 2014).
In this case, despite the fact that the ’126 Application apparently listed
Priex 12031 as an ionomer in the written description, there is insufficient
evidence that the inventor intended to redefine the term “ionomer” to include
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polymers which contain no ions, as the definition requires. We thus reverse
the rejection of claims 1-4, 8, 9, 22-26, 34, and 35 as anticipated by Maziers.

TIBBITT ANTICIPATION REJECTION
Claims 21, 27, 28, 30, 31, and 32 require a single layer rotomoulded
article prepared from a dry blend which comprises a homo- or co-polymer of
ethylene. The Examiner found:
Tibbitt discloses that in the production of PET, terephthalic acid
is copolymerized with ethylene glycol [0027]. In such instance,
substitution of the desired molar equivalent amount of the
dihydroxy terminated species of Formula 1 in the
polycondensation reaction would result in a modified polyester
having some OSM segments in the copolymer at the expense of
a fewer ethylene segments [0027]. Thus, the copolymer of
Tibbitt includes ethylene monomers.
Ans. 12.
Appellant contends that Tibbitt does not disclose an ethylene
copolymer. App. Br. 15. We agree with Appellant. The claim requires a
homo- or co-polymer of ethylene. PET is a polymer of terephthalic acid and
ethylene glycol. Tibbitt ¶ 27. The presence of ethylene groups (“segments”)
in PET does not make it polymer of ethylene monomers as claim 21 would
be reasonably interpreted by one of ordinary skill in the art to require.
Accordingly, we reverse the rejection of claims 21, 27, 28, 30, 31, and 32 as
anticipated by Tibbitt.

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OBVIOUSNESS REJECTIONS
Claim 6
Claim 6 depends on claim 1, and further recites “wherein resin
composition a) of layer A) comprises an ionomer and a grafted
polyethylene.” The rejection of claim 6 in view of O’Brien and Hirose, and
Maziers and Hirose, is based on the obviousness of including an ionomer in
the compositions described by O’Brien and Maziers.

O’Brien and Hirose
We affirmed the rejection based on O’Brien as anticipating claim 1.
Appellant contends that “O’Brien does not teach or disclose an ionomer in
the layer cited by the Examiner as corresponding to the layer B of the Claim
1.” App. Br. 16. However, the rejection is based on the obviousness of
including an ionomer of Hirose in O’Brien’s composition. Ans. 10-11.
Appellant did not identify a defect in the Examiner’s reasoning and we find
none. We affirm the rejection of claim 6.

Maziers and Hirose
Appellant contends Maziers does not teach ionomers. App. Br. 16.
We agree, but the Examiner cited Hirose to make up for this deficiency and
gave a reason to have included it. Ans. 10. Appellant did identify a defect
in the Examiner’s reasoning. We affirm the rejection for the reasons given
by the Examiner.

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Claims 29 and 33
Claims 29 and 33 stand rejected as obvious in view of Tibbett.
Claims 29 and 33 depend from claim 27. We reversed the rejection of claim
27 as anticipated by Tibbitt. The obviousness rationale set forth by the
Examiner does not address this deficiency. Ans. 11. We thus are compelled
to reverse the rejection of claims 29 and 33, as well.

SUMMARY
The rejection of claims 1-3, 6, 8, 9, 22-24, and 26 is affirmed
The rejection of claims 4, 21, 25, and 27-35 is reversed

TIME PERIOD
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)(iv).

AFFIRMED-IN-PART

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