Ex Parte Mead et al

Board of Patent Appeals and Interferences

Oct 13, 2010

10723898 (B.P.A.I. Oct. 13, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte DAVID H. MEAD and DAVID MONTGOMEY ROGERS
____________

Appeal 2009-005137
Application 10/723,898
Technology Center 1700
____________

Before EDWARD C. KIMLIN, CHUNG K. PAK, and
BRADLEY R. GARRIS, Administrative Patent Judges.

KIMLIN, Administrative Patent Judge.

DECISION ON APPEAL1

This is an appeal from the final rejection of claims 7, 10, 11, 13, 14,
16-20, 25 and 26. Claim 7 is illustrative:

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.

Appeal 2009-005137
Application 10/723,898

2
7. A film prepared by applying to a substrate a plastisol
composition comprising a poly(vinyl chloride) polymer, at least
one plasticizer, and an infrared-reflective pigment in
a sufficient amount so that there is essentially no transmittance
of light of near infrared wavelength through the film, and
coalescing the applied composition to produce the film,
wherein the film is from about 2 mils to about 5 mils thick.

The Examiner cites the following references in the rejection of the
appealed claims:

Krafft 4,056,397 Nov. 1, 1977
Ravinovitch 4,424,292 Jan. 3, 1984
Stamper 4,574,103 Mar. 4, 1986
Lacatus 4,728,677 Mar. 1, 1988
Sullivan 6,416,868 B1 Jul. 9, 2002
Takai 2002/0147246 A1 Oct. 10, 2002
Tajima 2002/0177658 A1 Nov. 28, 2002
Crabb 2003/0008959 A1 Jan. 9, 2003

Appellants’ claimed invention is directed to a film comprising a
plastisol composition on a substrate. The plastisol composition comprises
poly(vinyl chloride) polymer, at least one plasticizer, and an infrared-
reflective pigment. The pigment is present in an amount such that there is
essentially no transmittance of light of near infrared wavelength through the
film. The film has a thickness of from about 2 mils to about 5 mils.
The appealed claims stand rejected under 35 U.S.C. § 103(a) as
follows:
(a) claims 7, 10, 11, 13, 16, 17, 19, and 20 over Ravinovitch in
view of Krafft,
(b) claims 14 and 18 over Ravinovitch in view of Krafft and
Sullivan, and
Appeal 2009-005137
Application 10/723,898

3
(c) claims 7, 10, 11, 13, 16, 17, 25 and 26 over Stamper in view
of Krafft.
Appellants do not present separate arguments for any particular claim
in the three groups of claims separately rejected by the Examiner.
Accordingly, the groups of separately rejected claims stand or fall together.
We have thoroughly reviewed each of Appellants’ arguments for
patentability. However, we are in complete agreement with the Examiner
that the claimed subject matter would have been obvious to one of ordinary
skill in the art within the meaning of § 103 in view of the applied prior art.
Accordingly, we will sustain the Examiner’s rejections for essentially those
reasons expressed in the Answer, and we add the following primarily for
emphasis.
We consider first the § 103 rejection of Ravinovitch in view of Krafft.
There is no dispute that Ravinovitch, like Appellants, discloses a film
prepared by applying to a substrate a plastisol composition comprising a
poly(vinyl chloride) polymer, at least one plasticizer, and an infrared-
reflective pigment. As recognized by the Examiner and urged by
Appellants, Ravinovitch does not expressly teach the claimed film thickness
of from about 2 mils to about 5 mils, and that the pigment is present in a
sufficient amount so that there is essentially no transmittance of light of near
infrared wavelength through the film. However, Ravinovitch teaches that
the pigment may be in capstock which is an outer weatherable layer in
coextended vinyl house siding and vinyl windows, and Appellants do not
contest the Examiner’s finding that capstock thicknesses were generally
known to be about 8 mils, which is in the order of the claimed range.
Appeal 2009-005137
Application 10/723,898

4
Also, Krafft teaches that the thickness of a film comprising a
reflective pigment is a result effective variable, and Appellants do not
dispute the Examiner’s finding that the pigment concentration is also a result
effective variable with respect to the reflectance. Accordingly, based on the
state of the prior art, we agree with the Examiner that it would have been a
matter of obviousness for one of ordinary skill in the art to resort to routine
experimentation to determine the optimum thickness and concentration of a
film comprising a reflective pigment in order to maximize it’s reflectivity. It
has generally been held that a change in concentration or thickness of a prior
art composition is a matter of obviousness for the skilled artisan in the
absence of objective evidence of unexpected results1578. See In re
Woodruff, 919 F.2d 1575, 1578 (Fed. Cir. 1990); In re Aller, 220 F.2d 454,
456 (CCPA 1955). In the present case, Appellants have proffered no such
evidence of unexpected results associated with the claimed thickness.
Appellants stress that Ravinovitch does not teach or suggest a
capstock thickness other than the 450 mils of Example 1. We agree with the
Examiner, however, that the reference is not limited to the test runs of the
example, and one of ordinary skill in the art would have reasonably
interpreted the reference as applicable to typical capstocks of the prior art
having thicknesses on the order of the claimed range.
Regarding the use of a sufficient amount of pigment so that there is
essentially no transmittance of near infrared wavelength through the film, we
concur with the Examiner that Ravinovitch’s object of lowering the heating
of house siding would have motivated one of ordinary skill in the art to use
the optimum amount of pigment to prevent transmission of all infrared
radiation.
Appeal 2009-005137
Application 10/723,898

5
Turning to the § 103 rejection over Stamper in view of Krafft, there is
no dispute that Stamper teaches a film prepared from a plastisol composition
comprising a plastisol grade vinyl chloride polymer and titanium dioxide, a
known reflector of infrared radiation. Also, the Examiner correctly points
out that Stamper teaches that the layers should be coated to their desired
thickness. While Appellants point to Stamper’s disclosure that each layer has
a thickness of from about 12 mils to 50 mils, we, for the reasons set forth
above, agree with the Examiner that it would have been obvious for one of
ordinary skill in the art to resort to routine experimentation to determine the
optimum thickness of the layer and concentration of the pigment therein.
Stamper’s objective of using titanium dioxide to improve the weatherability
and resistance to sunlight of the layer would have motivated one of ordinary
skill in the art to use the amount of pigment that reflects all radiation.
Appellants do not claim any pigment that is more effective than those used
in the prior art for reflecting sunlight and infrared radiation. Concerning
Appellants’ argument that one of ordinary skill in the art would not separate
the layers of Stamper, the Examiner properly points out that such separation
is not necessary to meet the claimed requirement for a film on a substrate.
As stated by the Examiner, “[t]he claimed film may be present as a layer in a
laminate” (Ans. 11, 1st full para.).
Appellants do not set forth a separate substantive argument for the
§ 103 rejection over Ravinovitch in view of Krafft and Sullivan but rely
upon the asserted deficiencies of the combination of Ravinovitch and Krafft.
In conclusion, based on the foregoing, the Examiner’s decision
rejecting the appealed claims is affirmed.
Appeal 2009-005137
Application 10/723,898

6
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)(v).

AFFIRMED

kmm

PPG INDUSTRIES INC
INTELLECTUAL PROPERTY DEPT
ONE PPG PLACE
PITTSBURGH, PA 15272