13121978 (P.T.A.B. May. 18, 2018)

Ex Parte Morimoto et al

Patent Trial and Appeal BoardMay 18, 2018

13121978 (P.T.A.B. May. 18, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/121,978 03/31/2011 21839 7590 05/22/2018 BUCHANAN, INGERSOLL & ROONEY PC POST OFFICE BOX 1404 ALEXANDRIA, VA 22313-1404 FIRST NAMED INVENTOR Hisashi Morimoto 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 ATTORNEY DOCKET NO. CONFIRMATION NO. 1000023-000203 4117 EXAMINER PIZIALI, ANDREW T ART UNIT PAPER NUMBER 1789 NOTIFICATION DATE DELIVERY MODE 05/22/2018 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): ADIPDOC 1@BIPC.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte HISASHI MORIMOT0 1 and Kazuhiko Masuda Appeal2017-007609 Application 13/121,97 8 Technology Center 1700 Before BEYERL YA. FRANKLIN, MARK NAGUMO, and JEFFREY R. SNAY, Administrative Patent Judges. NAGUMO, Administrative Patent Judge. DECISION ON APPEAL Hisashi Morimoto and Kazuhiko Masuda ("Morimoto") timely appeal under 35 U.S.C. Â§ 134(a) from the Final Rejection2 of all pending claims 1, 2, 4--9, 11, 14, 17, 19, 20, 22, 24, and 25. We have jurisdiction. 35 U.S.C. Â§ 6. We reverse. 1 The real party in interest is identified as Mitsui Chemicals, Inc. (Appeal Brief, filed 1 December 2016 ("Br."), 2.) 2 Office Action mailed 3 November 2015 ("Final Rejection"; cited as "FR"). Appeal2017-007609 Application 13/121,978 A. Introduction 3 OPINION The subject matter on appeal relates to crimped conjugated polypropylene fibers, which are said to provide nonwoven fabrics with improved softness, bulkiness, and mechanical strength. (Spec. 1, 11. 13-18.) An idealized geometry of an "exposed eccentric core-sheath composite fiber," which is preferred for its excellent crimping properties (Spec. 25, 11. 13-15.), is shown in Figure 1, below. 20 {Figure 1 shows an exposed eccentric core-sheath composite fiber} As can be seen, core a4 (labeled 10), comprised of polypropylene (A), is exposed by partially surrounding sheath b (labeled 20), comprised of distinct polypropylene (B). 3 Application 13/121,978, Crimped conjugatedfiber and nonwovenfabric comprising the same, filed 31 March 2011 as the national stage under 35 U.S.C. Â§ 371 of PCT/JP2009/068241, filed 23 October 2009, claiming the benefit of an application filed in Japan on 29 October 2008. We refer to the "'978 Specification," which we cite as "Spec." 4 Throughout this Opinion, for clarity, labels to elements are presented in bold font, regardless of their presentation in the original document. 2 Appeal2017-007609 Application 13/121,978 The composite fibers are formed by melting the two polypropylenes in separate extruders and spinning from a composite spinning nozzle. (Id. at 31, 11. 3---6.) The molten fibers are quenched, preferably by blowing air, whereupon the fibers develop crimps. (Id. at 31, 1. 24--32, 1. 4.) The crimped fibers are collected, for example on a belt conveyer, and subsequently entangled, preferably by thermally fusion bonding the fibers by embossing, yielding a nonwoven fabric said to have excellent strength. (Id. at 32, 11. 9-17.) Prior art conjugated polypropylene fibers are said to require significantly different polymers for the production of satisfactory crimped fibers. In particular, Neely5 (cited at id. 4 [0008]), is said to describe crimped conjugated fibers obtained by "melt spinning the first component and the second component having different properties from each other" (id. at 2, 11. 1-12; emphasis added), such as differing MFR ["melt flow rate"] and molecular weight distributions (id. at 2, 1. 19-3, 1. 1). However, the Specification reports, "spinnability and crimp properties are insufficient." (Id. at 3, 11. 5---6.) Moreover, when the MFRs of the two components differ significantly, the molten fibers "can be curved immediately after [being] spun from the nozzle and can adhere and contaminate the nozzle face." (Id. at 4, 11. 7-8.) Moreover, according to the '978 Specification, "[i]n the case of identical MFR, a combination should consist of a propylene homopolymer and a propylene/a-olefin random copolymer having different melting points ( crystallization temperatures)." (Id. at 3, 11. 18-21.) But, in the words of 5 Full cite at 6 n. 11, infra. 3 Appeal2017-007609 Application 13/121,978 the '978 Specification, "[i]t has been considered difficult to obtain crimped conjugated fibers from a combination of similar polymers, in particular propylene homopolymers or propylene/a-olefin random copolymers having similar MFR (melt flow rate.)" (Id. at 3, 11. 21-23.) Morohashi seeks patent protection for crimped conjugate fibers in which the two kinds of polypropylenes that have "relatively similar melting points and MFR." (Id. at 4, 1. 19-20.) The critical difference is said to be in the ratios Mz/Mw of the core polymer and the sheath polymer, L'iMz/Mw = Mz/Mw (A)- Mz/Mw (B). Mz, the "Z-average molecular weight," Mw, the "weight-average molecular weight, and Mn, the "number average molecular weight," are defined by the formulas [bars over Mz, etc., indicating averages have been omitted] ~M~ NÂ· M =L.. i i z ~ M~ NÂ· L.. l l ~M~ NÂ· M =L.. i i w ~M-NÂ· L.. l l where Mi is the molecular weight of the ith polypropylene polymer and Ni is the number of moles of that polymer. (Spec. 18, 11. 2-5 (Mz); and Polymer Chemistry6, Ev. App. 7-8, equations 3.13, 3.12, and 3.11, respectively.) Mz.is said "to reflect more precisely the high-molecular weight components in a polymer ... than the usual molecular weight distribution Mw/Mn." (Id. at 11. 7-11.) The Specification reveals that the quantities Mz and Mw 6 An excellent overview of various average molecular weight distributions is provided in the excerpt of the Exhibit provided by Morimoto in the Evidence Appendix to the Brief, Charles E. Carraher, Jr., Polymer Chemistry, 6th ed., Marcel Dekker, Inc., New York (2003) ("Polymer Chemistry") (filed 7 November 2014 during examination). (Cited as "Ev. App.") 4 Appeal2017-007609 Application 13/121,978 are measured by gel permeation chromatography ("GPC") with reference to polystyrene standards (id. at 19, 11. 19--21 ), using standard conversion methods (id. at 20, 11. 18-19). In prior art crimped fibers, the absolute difference in the melting temperatures of the core polymer (A) and the sheath polymer (B), ILiTml, must be at least 10Â°C. In marked contrast, in fibers of the invention, that temperature difference is less than 5Â°C. (Id. at 20, 1. 20-21, 1. 8.) Moreover, the MFR of core polypropylene (A) is similar to that of sheath polypropylene (B), i.e., 0.8 :S MFR(A)/MFR(B) :S 1.2.7 Sole independent claim 1 is representative and reads: A crimped conjugated fiber having a cross-sectional configuration wherein: a cross section of the fiber comprises at least a portion (a) and a portion (b ), the mass ratio of the portion (a) and the portion (b) [(a):(b)] is in the range of 10:90 to 55:45, the portion (a) comprises a propylene polymer (A) and the portion (b) comprises a propylene polymer (B), the propylene polymer (A) has Mz/Mw (A) and the propylene polymer (B) has Mz/Mw (B) wherein the difference thereof [Mz/Mw (A)- Mz/Mw (B): L'iMz/Mw] is in the range of 0.30 to 2.2, the propylene polymer (A) has a melting point [Tm (A)] and the propylene polymer (B) has a melting point [Tm (B)] 7 The Specification states that all ranges include the limits of the ranges. (Spec. 19, 11. 3-5.) 5 Appeal2017-007609 Application 13/121,978 wherein the absolute value of the difference of the melting points is in the range of O to 5Â°C, and the ratio of MFR (A) of the propylene polymer (A) to MFR (B) of the propylene polymer (B) is in the range of 0.8 to 1.2. (Br., Claims App. 1; some indentation, paragraphing, and emphasis added; square brackets original.) The Examiner maintains the following grounds of rejection 8, 9, 10 : A. Claims 1, 2, 4--9, 11, 14, 17, 19, 20, 22, 24, and 25 stand rejected under 35 U.S.C. Â§ 102(b ), alternatively under 35 U.S.C. Â§ I03(a) in view of the combined teachings of Neely, 11 Ellul, 12 and Bamberger. 13 Al. Claims 9, 22, 24, and 25 stand rejected under 35 U.S.C. Â§ I03(a) in view of the combined teachings of Neely, Ellul, Bamberger, and Kaneko. 14 8 Examiner's Answer mailed 24 February 2017 ("Ans."). 9 Because this application was filed before the 16 March 2013, effective date of the America Invents Act, we refer to the pre-AIA version of the statute. 10 The Examiner (Ans. 8) identifies application 13/637,382 (issued 9 January 2018 as U.S. Patent No. 9,863,067) as involving a related appeal [(2016-006485 (12 June 2017; rev'd)]. The subject matter is similar (but mutually exclusive), and the principal references are common. 11 James Richard Neely et al., Process of making a crimped multicomponent fiber web, U.S. Patent No. 6,454,989 Bl (2002). 12 Maria D. Ellul et al., Thermoplastic elastomers having improved processing and physical property balance, U.S. Patent No. 6,451,915 Bl (2002). 13 Roger Lee Bamberger and Moses Olukayode Jejelowo, Polymerization catalysts, their production and use, U.S. Patent No. 6,143,854 (2000). 14 Akira Kaneko et al., Soft nonwovenfabric of filaments, U.S. Patent No. 5,108,820 (1992). 6 Appeal2017-007609 Application 13/121,978 A'. Claims 1, 2, 4--9, 11, 14, 17, 19, 20, 22, 24, and 25 stand rejected under 35 U.S.C. Â§ 103(a) in view of the combined teachings of Neely, Ellul, Bamberger, and Aishima. 15 A'l. Claims 9, 22, 24, and 25 stand rejected under 35 U.S.C. Â§ 103(a) in view of the combined teachings of Neely, Ellul, Bamberger, Aishima, and Kaneko. B. Discussion The Board's findings of fact throughout this Opinion are supported by a preponderance of the evidence of record. The Examiner finds, inter alia, that Neely describes a conventional Ziegler-Natta polymerized polypropylene as a first component corresponding to polymer (A), and a second polypropylene with a narrow molecular weight distribution made by a metallocene catalyst, such as ACHIEVEÂ® (available from Exxon Chemical Company) corresponding to polymer (B). (FR 4.) The Examiner finds that Neely does not disclose the Mz/Mw ratio for either polymer. (Id.) But, the Examiner finds, Bamberger discloses that conventional Ziegler-Natta polymerized polymers have Mz/Mw > 2.5; and that Ellul discloses ACHIEVEÂ® polymers having Mz/Mw ratios of about 1.6-1.7. (Id.) On this basis, the Examiner concludes that "Neely appears to teach the claimed L'iMz/Mw (0.30 to 2.2) between polymer (A) and polymer (B) with sufficient specificity." (Id.) Morimoto urges the Examiner erred harmfully in these findings because Bamberger describes the Mz/Mw parameter for LLDPE, linear low density polyethylene, not polypropylene. (Br. 4, 11. 10-15.) The Examiner 15 Itsuho Aishima et al., Composite filaments and process for the production thereof, U.S. Patent No. 3,900,678 (1975). 7 Appeal2017-007609 Application 13/121,978 has not, Morimoto argues, shown that Bamberger's teachings are relevant to the Ziegler-Natta polymerized polypropylenes described by Neely. (Id. at 11. 16-22.) Morimoto argues further that, in the absence of an upper limit to Mz/Mw, "the L'iMz/Mw range between two kinds of propylene polymers in Neely is unclear." (Id. at 11. 23-27.) The weight of the evidence supports Morimoto' s arguments. Even a case of "apparent" inherency must be proven (by a preponderance of the evidence) to be an inevitable outcome of the foundational findings. In the present case, the Examiner has not explained how Bamberger's teachings regarding Ziegler-Natta polymerized linear low density polyethylene relate to the polydispersity of conventional Ziegler-Natta polymerized polypropylene. Moreover, without a reasonable upper bound on the value of Mz/Mw of conventional polypropylene, it cannot be determined that L'iMz/Mw is necessarily in the range of 0.30 to 2.2. Thus, there is an inadequate basis to determine that the L'iMz/Mw condition required by the claims is met. The anticipation rejection falls for this reason alone. Moreover, the Examiner's finding that Ellul equates the term "polydispersity number" with either Mw/Mn or Mz/Mw (Ans. 8, 11. 17-19, citing Ellul, col. 6, 11. 8-15) is not persuasive that Neely's use of the term "polydispersity number" would have been understood by persons having ordinary skill in the art as referring to either ratio. As Polymer Chemistry explains, the number-average, weight-average, and Z-average molecular weights correspond to first, second, and third "moments" or "power" averages, and they characterize heterogeneous molecular weight systems. (Ev. App. 8.) Indeed, Polymer Chemistry states that "[t]he ratio of Mw/Mn is a measure of polydispersity and is called the polydispersity index." (Id. at 8 Appeal2017-007609 Application 13/121,978 last para.; bar indicating averages over symbols omitted, emphasis added.) Thus, while all weighted averages (moments) would have been recognized as characterizing the molecular weight distribution, i.e., to be measures of the polydispersity, absent an express special definition, only weight average molecular weight would have been referred to as the "polydispersity index" or "polydispersity number." The Examiner has not directed our attention to any indication of an idiosyncratic definition or use of the term by Neely. The Examiner finds further that Neely discloses that the first polymer component must differ from the second polymer component. (FR 5, 1st para., citing Neely, para. bridging columns 5---6.) The Examiner concludes that it would have been obvious to vary L'iMz/Mw between the components "because it is understood my one of ordinary skill in the art that the greater the L'iMz/Mw between polymer (A) and polymer (B) the greater the resulting crimp and it has been held that discovering an optimum value of a result effective variable involves only routine skill in the art." (Id.) However, as Morimoto points out (Br. 6-8, Â§ c ), Neely is silent regarding Mz/Mw. Thus, on the present record, the Examiner has not established that L'iMz/Mw would have been recognized as a result-effective variable for crimp. Moreover, Morimoto points out that Comparative Examples 4---6 of the '978 Specification demonstrate that larger values of L'iMz/Mw do not necessarily mean more crimps. (Id. at 7, 11. 3-6.) We conclude the rejection for obviousness fails for these additional reasons. Morimoto argues further that there is no basis for selecting polypropylene (A) for the core and polypropylene (B) for the sheath to have 9 Appeal2017-007609 Application 13/121,978 the ratio MFR(A)/MFR(B) in the range of 0.8 to 1.2, as required by claim 1. (Br. 7-8.) Ellul discloses that the ACHIEVEÂ® polymers have MFRs of 700 dg/min and 1500 dg/min, whereas the Ziegler-Natta conventional polymers disclosed by Bamberger has MIRs ( equivalent to MFRs) of about 24 to about 29 (Bamberger Table 4). Morimoto concludes that the low-polydispersity polypropylenes as the second component for Neely's composite fibers will not allow the ratio MFR(A)/MFR(B) to be met. (Br. 7, penultimate para.) Again, the preponderance of the evidence supports Morimoto. Consistently, as Morimoto points out (Br. 8, 11. 18-19) conventional Ziegler- Natta polymerized polypropylenes disclosed by Neely have MFR of about 35. Thus, the ratios MFR(A)/MFR(B) would not have been expected, reasonably, to be in the range of 0.38 to 1.2 required by claim 1. The Examiner's further findings regarding additional limitations and the teachings of the additional references do not cure any of the defects of Neely, Bamberger, and Ellul as references supporting obviousness of claim 1. We therefore reverse the appealed rejections. C. Order It is ORDERED that the rejection of claims 1, 2, 4--9, 11, 14, 17, 19, 20, 22, 24, and 25 is reversed. REVERSED 10