Ex Parte MaziersDownload PDFPatent Trial and Appeal BoardMay 9, 201411922126 (P.T.A.B. May. 9, 2014) Copy Citation 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”). Appeal 2012-010709 Application 11/922,126 2 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 Appeal 2012-010709 Application 11/922,126 3 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 Appeal 2012-010709 Application 11/922,126 4 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, Appeal 2012-010709 Application 11/922,126 5 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 Appeal 2012-010709 Application 11/922,126 6 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 Appeal 2012-010709 Application 11/922,126 7 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. Appeal 2012-010709 Application 11/922,126 8 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. Appeal 2012-010709 Application 11/922,126 9 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 bar Copy with citationCopy as parenthetical citation