Ex Parte Morimoto

Patent Trial and Appeal Board

Jun 8, 2017

13637382 (P.T.A.B. Jun. 8, 2017)

United States Patent and Trademark Office
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
13/637,382 09/26/2012 Ilisashi Morimoto 1000023-000226 3669
21839 7590 06/12/2017
BUCHANAN, INGERSOLL & ROONEY PC
POST OFFICE BOX 1404
ALEXANDRIA, VA 22313-1404
EXAMINER
PIZLALI, ANDREW T
ART UNIT PAPER NUMBER
1789
NOTIFICATION DATE DELIVERY MODE
06/12/2017 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
ADIPDOC1 @ BLPC.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte HISASHIMORIMOTO
Appeal 2016-006485
Application 13/637,382'
Technology Center 1700
Before LINDA M. GAUDETTE, MARK NAGUMO, and
BRIAN D. RANGE, Administrative Patent Judges.
RANGE, Administrative Patent Judge.
DECISION ON APPEAL
SUMMARY
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’
decision rejecting claims 1, 6-8, 11, and 12. We have jurisdiction.
35 U.S.C. § 6(b).
We REVERSE.
1 According to the Appellant, the real party in interest is MITSUI
CHEMICALS, INC. Appeal Br. 2.
Appeal 2016-006485
Application 13/637,382
STATEMENT OF THE CASE2
Appellant describes the invention as related to crimped conjugated
fibers that could be used in non-woven fabrics. Spec. 11. Appellant states
that the invention allows for non-woven fabric with excellent bulkiness and
softness. Id. at Tf 11.
Appellant’s Figure 1 depicts a fiber with two different portions:
eccentric core portion (a) 10 and sheath portion (b) 20. Spec. Fig. 1, If 60.
Appellant provides data supporting that the fiber may be improved if the
difference (i.e., the delta) between Mz/Mw ratios (i.e., ratios of Z-average
molecular weight to weight average molecular weight) for the material of the
two portions is controlled. Spec, f 41, Table 1; see also id. ^ 17 (defining
Mz and Mw) and fflf 42-44 (further explaining Mz as “reflecting more
precisely high-molecular weight components”). In particular. Appellant
indicates that spinnability is deteriorated if the delta is above 2.2 and that
crimp properties deteriorate if the ratio is below 0.1. Id.]f 41.
Claim 1, reproduced below with emphases added to certain key
recitations, is the only independent claim on appeal and is illustrative of the
claimed subject matter:
1. A crimped conjugated fiber having a cross-sectional
configuration wherein a cross section of the fiber comprises at
least two portions: a portion (a) and a portion (b),
the mass ratio of the portion (a) to the portion (b) [(a):(b)]
is in the range of 10:90 to 60:40,
2 In this decision, we refer to the Final Office Action dated May 14, 2015
(“Final Act.”), the Appeal Brief filed November 10, 2015 (“Appeal Br.”),
the Examiner’s Answer dated April 14, 2016 (“Ans.”), and the Reply Brief
filed June 10, 2016 (“Reply Br.”).
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Appeal 2016-006485
Application 13/637,382
the portion (a) comprises a propylene polymer (A)
and the portion (b) comprises a propylene/a-olefin random
copolymer (B),
the propylene polymer (A) has Mz/Mw(A) and the
propylene/a-olefin random copolymer (B) has Mz/Mw(B)
wherein the difference thereof [Mz/Mw(A) - Mz/Mw(B):
AMz/Mw] is in the range of 0.10 to 2.2, and
the propylene polymer (A) has a melting point [Tm(A)]
and the propylene/a-olefin random copolymer (B) has a melting
point [Tm(B)] wherein the difference thereof exceeds 10°C,
wherein the crimped conjugated fiber has an eccentric
core-sheath configuration in which the portion (a) is a core (a')
and the portion (b) is a sheath (b'), and
wherein [Tm(A)] is higher than [Tm(B)].
Appeal Br. 9 (Claims App’x; brackets original).
REFERENCES
The Examiner relies upon the prior art below in rejecting the claims
on appeal:
Aishima et al. US 3,900,678 Aug. 19, 1975
(hereinafter “Aishima”)
Kaneko et al. US 5,108,820 Apr. 28, 1992
(hereinafter “Kaneko”)
Halle et al. US 5,462,807 Oct. 31, 1995
(hereinafter “Halle”)
Neely et al. US 6,454,989 B1 Sep. 24, 2002
(hereinafter “Neely”)
REJECTIONS
The Examiner maintains the following rejections on appeal:
Rejection 1. Claims 1, 6-8, 11, and 12 under 35 U.S.C. § 103 as
unpatentable over Neely in view of Halle. Ans. 3.
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Application 13/637,382
Rejection 2. Claims 8 and 12 under 35 U.S.C. § 103 as unpatentable
over Neely in view of Halle and in further view of Kaneko. Id. at 6.
Rejection 3. Claims 1, 6-8, 11, and 12 under 35 U.S.C. § 103 as
unpatentable over Neely in view of Aishima in view of Halle. Id.
Rejection 4. Claims 8 and 12 under 35 U.S.C. § 103 as unpatentable
over Neely in view of Aishima in view of Halle and further in view of
Kaneko. Id. at 7.
ANALYSIS
Claim 1 requires a fiber having an eccentric core propylene
portion (a), and a sheath a-olefin random copolymer portion (b).
Appeal Br. 9 (Claims App’x). Claim 1 also requires that the delta (i.e., the
difference) between Mz/Mw(A) and Mz/Mw(B) be in the range of 0.10 to
2.2. Id.
For each rejection, the Examiner finds that Neely teaches a crimped
conjugate fiber comprising a propylene portion and a propylene/a-olefin
random copolymer portion. Ans. 3; 5-6 (citing, e.g., Neely 9:11-63). The
Examiner also finds that Neely teaches using a combination of
ESCORENE™ and ACHIEVE™ for the two portions and/or teaches using a
combination of the product of a traditional Zeigler-Natta catalyst reaction
and product of a metallocene catalyst reaction. Id. at 4-5 (citing Neely
3:22-24, 5:49-51, 6:25-36). The Examiner finds (based on, for example,
the teachings of Halle) that when these combinations are used, the Mz/Mw
difference as recited in claim 1 will be met. Id. at 4-5, 11. The Examiner
also finds that the Mz/Mw is a result effective variable. Final Act. 11.
Appellant first argues that the disclosure at Neely, column 6, results in
an eccentric core of polypropylene, made by a conventional Ziegler-Natta
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Appeal 2016-006485
Application 13/637,382
catalyst, having a relatively broad molecular weight distribution (higher
Mz/Mw), and a sheath of a polypropylene, made by a metallocene catalyst,
having a relatively narrow molecular weight distribution (lower Mz/Mw).
Appeal Br. 4-5 (citing Halle). As Appellant points out, the difference,
Mz/Mw(core) - Mz/Mw(sheath) would be negative, outside the range
of 0.1 to 2.2 required by claim 1. Id. at 5, first full para. Put another way,
Neely teaches a sheath-core fiber that is inside-out compared to the sheath-
core fiber required by claim 1. The Examiner has not explained what would
have motivated a person having ordinary skill in the art to alter these
teachings of Neely to arrive at the required molecular weight distribution.
Moreover, as Appellant points out, the ACHIEVE™ metallocene catalyzed
resin is a homopolymer, not a copolymer, as required by claim 1. Thus, the
Examiner has not shown that Neely would have suggested the compositions
required by claim 1.
Appellant also argues that “Neely et al. does not teach or suggest the
Mz/Mw of the second component which comprises a propylene/a-olefin.”
Appeal Br. 5; see also Reply Br. 2-3. Based on the present record, a
preponderance of the evidence supports Appellant’s position.
In particular, the Examiner relies on the example of Neely at column 9
(Neely 9:11-51) to find that Neely teaches a fiber having propylene portion
and a propylene-a-olefin copolymer. Ans. 8. Neely’s teachings regarding
use of ESCORENE™/ACHIEVE™ and/or a Zeigler-Natta catalyst
product/metallocene catalyst product, however, relate to different examples.
See id. at 11 (stating that ‘Neely does disclose another embodiment”
comprising ESCORENE™ and ACHIEVE™); see also Neely 6:25-65
(referring to a “first example” making use of ESCORENE™/ACHIEVE™
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Application 13/637,382
and/or the Zeigler-Natta/metallocene catalyst products), 8:54-9:51 (referring
to “further examples” that may have propylene portion and a propylene/a-
olefin). Moreover, the Examiner does not dispute that ACHIEVE™ is a
homopolymer rather than a propylene/a-olefin random copolymer. Ans. 11;
see also Appeal Br. 5.
The Examiner has not made findings persuasively demonstrating that,
more likely than not, the selection of polymers for the core and sheath as
taught in column 9 would result in the Mz/Mw delta recited by claim 1. The
evidence does not establish, for example, that a person of skill in the art,
when following the teachings at column 9 of Neely, would have understood
that the Mz/Mw delta inherent from the selection of certain materials
described at column 6 of Neely must be maintained. See Ans. 11 (“Neely
inherently teaches that the Mz/Mw difference between the first and second
components is to be within the range of 1.1 to 1.8.”).
Appellant also argues that the Examiner provides no evidence that a
person of skill in the art would have recognized the Mz/Mw delta recited in
claim 1 as a result-effective variable. Appeal Br. 6. On the present record,
we agree that the Examiner has not adequately established why a person of
skill in the art would recognize the delta as a result effective variable,
particularly for the teachings cited in column 9.
The Examiner’s use of additional references (Aishima, Kaneko, and
Halle) does not cure the error addressed above. Ans. 3-7. We, therefore, do
not sustain the Examiner’s rejections of claim 1 and do not sustain the
rejections of claims 6-8, 11, and 12 because those claims depend from
claim 1.
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DECISION
For the above reasons, we reverse the Examiner’s rejection of claims
1,6-8, 11, and 12.
REVERSED
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