Ex Parte Mrozinski et al

Patent Trial and Appeal Board

Aug 22, 2018

13133427 (P.T.A.B. Aug. 22, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/133,427 06/08/2011
32692 7590 08/24/2018
3M INNOVATIVE PROPERTIES COMPANY
PO BOX 33427
ST. PAUL, MN 55133-3427
UNITED ST A TES OF AMERICA
FIRST NAMED INVENTOR
James S. Mrozinski
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.
64777US005 3199
EXAMINER
BROWE, DAVID
ART UNIT PAPER NUMBER
1617
NOTIFICATION DATE DELIVERY MODE
08/24/2018 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):
LegalUSDocketing@mmm.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JAMES S. MROZINSKI, RANDALL P. SWENSON,
KARL-DIETER WEILANDT, and JONATHAN F. HESTER
Appeal2017-008137
Application 13/133,427
Technology Center 1600
Before DEMETRA J. MILLS, ULRIKE W. JENKS, and
RYAN H. FLAX, Administrative Patent Judges.
MILLS, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134. The Examiner has rejected
the claims for obviousness. We have jurisdiction under 35 U.S.C. § 6(b ).
We REVERSE.
Appeal2017-008137
Application 13/133,427
NATURE OF THE INVENTION
"The present invention relates to microporous materials made of
ethylene chlorotrifluoroethylene [ECTFE] copolymer and to methods of
making such materials." Spec. 1.
Id.
Nucleating agents have been used in the preparation of
microporous materials. While certain materials have been successfully
employed as nucleating agents in various polymer systems, known
nucleating agents have failed to provide ECTFE microporous materials
with a desired morphology that is strong enough to withstand further
processing ( e.g., stretching, folding).
Methods for introducing nucleating agents into a
polymer/diluent system include 'pre-mixing' methods that first require
the preparation of a dispersion of nucleating agent in a diluent,
typically using a high shear mixer. Alternatively, nucleating agent
may first be dispersed in the polymer to make a compounded
'masterbatch.' But, when employed in a TIPS [thermally induced
phase separation] process for the manufacture of ECTFE micro porous
materials by extrusion, nucleating agents often agglomerate and/or fall
out of the solution/dispersion while travelling through the extrusion
system. Pre-mixing techniques have generally failed to provide either
a sufficiently rapid rate of ECTFE crystallization or a desired
morphology (e.g., a spherulitic matrix).
STATEMENT OF CASE
The following claim 4 7 is representative.
4 7. A microporous material, comprising:
a first layer comprised of a first layer spherulitic matrix comprising a
plurality of individual polymer domains of a first layer ethylene
chlorotrifluoroethylene copolymer connected to one another by radiating
fibrils and a plurality of first layer pores extending through the first layer
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Application 13/133,427
spherulitic matrix and having an average pore size greater than about 0.01
micrometer;
a first layer polymer crystallization nucleating agent uniformly
dispersed within the first layer ethylene chlorotrifluoroethylene copolymer in
an amount between 0.05 wt% and 1.0 wt%;
a second layer comprised of a second layer spherulitic matrix
comprising a plurality of individual polymer domains of a second layer
ethylene chlorotrifluoroethylene copolymer connected to one another by
radiating fibrils and a plurality of second layer pores extending through the
second layer spherulitic matrix and having an average pore size greater than
about O.01 micrometer;
a second layer polymer crystallization nucleating agent uniformly
dispersed within the second layer ethylene chlorotrifluoroethylene
copolymer; and wherein, the average pore size of the first layer spherulitic
matrix and the average pore size of the second layer spherulitic matrix are
different.
Cited References
PEREZ et al.
JING et al.
MROZINSKI et al.
Grounds of Rejection
US 6,331,343 B 1
US 2003/0198769 Al
WO 2010/071764 Al
Dec. 18, 2001
Oct. 23, 2003
June 24, 2010
Claims 47-56 stand rejected under pre-AIA 35 USC§ I03(a) being
unpatentable over Perez, in view of Mrozinski, and Jing.
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Appeal2017-008137
Application 13/133,427
FINDINGS OF FACT
The Examiner's findings of fact are set forth in the Final Action at
pages 3-12.
PRINCIPLES OF LAW
In making our determination, we apply the preponderance of the
evidence standard. See, e.g., Ethicon, Inc. v. Quigg, 849 F.2d 1422, 1427
(Fed. Cir. 1988) (explaining the general evidentiary standard for proceedings
before the Office).
"[O]bviousness requires a suggestion of all limitations in a claim."
CFMT, Inc. v. Yieldup Intern. Corp., 349 F.3d 1333, 1342 (Fed. Cir. 2003)
( citing In re Royka, 490 F .2d 981, 985 ( CCP A 197 4) ). When determining
whether a claim is obvious, an Examiner must make "a searching
comparison of the claimed invention - including all its limitations - with the
teachings of the prior art." In re Ochiai, 71 F.3d 1565, 1572 (Fed. Cir.
1995).
Obviousness Rejection
Claims 47-56 are rejected under 35 U.S.C. 103(a) as being
unpatentable over Perez in view of Mrozinski, and Jing.
that
The Examiner finds that Perez teaches each element claimed except
[P]erez et al. do not explicitly disclose that the nucleating agent is a
"polymer crystallization nucleating agent" in the amount of 0.05-1
wt%, that the average pore size is greater than about 0.01 micrometer,
and that the layers of the microporous material further comprise a
copolymer of tetrafluoroethylene and ethylene (ETFE), a copolymer
of tetrafluoroethylene, hexafluoropropylene and vinylidene fluoride
(THV), a copolymer of tetrafluoroethylene and hexafluoropropylene
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Appeal2017-008137
Application 13/133,427
(PEP), or combinations thereof. These deficiencies are cured by the
teachings of Mrozinski and Jing et al.
Ans. 6. The Examiner finds that Mrozinski
[ d]iscloses a microporous material comprising layers comprising a
spherulitic matrix comprising a plurality of individual polymer
particles connected to one another by radiating fibrils and a plurality
of pores extending through the matrix with average pore size greater
than 100 Angstroms; and a "polymer crystallization"nucleating agent
in an amount between 0.1-2.0 wt%; wherein the microporous material
exhibits excellent tensile strength and stretchability (i.e. is strong
enough to withstand being flexed, folded or pleated without breaking)
... ). The "polymer crystallization" nucleating agent is in the form of a
particulate dispersed in a thermoplastic polymer comprising a
polypropylene homopolymer, a polyethylene homopolymer, or a
polypropylene polyethylene copolymer (Col. 5, Ins. 28-32, 60-64).
The first layer is a stretched layer comprising a stretch ratio from 1 X 1
to 3X3, with an elongation of 10% to 300% in the machine direction,
the transverse direction, or both (Col. 5, Ins. 28-32, 60-64).
Ans. 5. The Examiner further finds that
[ J]ing et al. disclose a multilayered composite article comprising a
first layer, a second layer, a third layer, and a fourth layer, each layer
comprising a blend of i) an ethylene chlorotrifluoroethylene
copolymer (ECTPE) and ii) a copolymer of tetrafluoroethylene and
ethylene (ETPE), a copolymer of tetrafluoroethylene, hexafluoro-
propylene and vinylidene fluoride (THV), a copolymer of
tetrafluoroethylene and hexafluoropropylene (PEP), or combinations
thereof (abstract; Pghs. 0001, 0003, 0019, 0021, 0025, 0044, 0057,
0060). Each layer further comprises thermoplastic polyolefins (i.e.
polypropylene, polyethylene, etc.), as well as other agents that impart
tensile strength, resilience, flexibility, and durability to the composite
(i.e. is strong enough to withstand being flexed, folded or pleated
without breaking) (Pghs. 0003, 0044).
Ans. 6.
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The Examiner concludes that
[I]t would have been prima facie obvious for one of ordinary
skill in the art at the time of the present invention to combine the
respective teachings of Perez et al., Mrozinski and Jing et al., outlined
supra, to devise Appellant's presently claimed microporous material.
Ans. 6.
Appellants argue, among other things, that "the Office has not shown
that cited arts teach or suggest that the average pore size of the first layer
spherulitic matrix and the average pore size of the second layer spherulitic
matrix are different." App. Br. 13.
ANALYSIS
We conclude that the Examiner has not provided evidence to support
a prima facie case of obviousness.
Appellants argue that the disclosure of Perez in combination with
Mrozinski and Jing fails to disclose the explicitly recited features of claim
4 7 of "wherein, the average pore size of the first layer spherulitic matrix and
the average pore size of the second layer spherulitic matrix are different."
App. Br. 16.
The Examiner responds that
1. Perez expressly discloses multilayer articles ( Col. 13, lines
55---60; claim 3), that the multilayer articles can comprise "at least
one" film layer (i.e. one, two three, four, or more film layers), and that
a film layer comprises spherulites dispersed uniformly throughout the
thickness of the film layer (Col. 7, lines 12-13), and that these
"spherulites" are composed of semicrystalline polymers stretched to
thus form individual polymer domains from which radiate individual
fibrils.
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2. Perez teaches that this stretching imparts pores to the film
layers (Col. 1, lines 24--26; Col. 5, line 44--51). Perez certainly does
not expressly require that the first and second layers have the same
pore size. On the contrary, one of ordinary skill in the art would
recognize from the general description of Perez that the pore sizes in
the different layers can certainly be different.
3. As Perez explains, a subsequent fluid energy treatment
serves to so-called "fibrillate" the surface of at least one film layer,
and by "fibrillate" is meant to "expose" fibers (Col. 15, lines 26-28)
on that surface. Perez discloses multilayer film articles comprising at
least one fibrillated film layer and at least one additional (i.e. non-
fibrillated) porous layer (see Col. 13, lines 55---62).
4. Perez further teaches that orienting a film layer by stretching
in the machine and/or transverse direction imparts voids (i.e. pores) to
the film (Col. 1, lines 24--26; Col. 5, line 44--51). The size of the
voids (i.e. pores) is variable and proportional to the degree of
orientation (Col. 6, lines 23-25). Perez teaches that maximizing
orientation thus maximizes voiding which thus maximizes the ease
with which a porous film surface may be fibrillated (Col. 6, lines 16-
19). However, maximizing the degree of orientation compromises the
optimal integrity of the film (Col. 6, lines 6-13).
Ans. 11 (italicized emphasis added).
We are not persuaded by the Examiner's rationale. Claim 47 is
directed to a microporous material with two ethylene chlorotrifluoroethylene
layers, a first layer and a second layer, having two different, average pore
sizes greater than about 0.01 micrometer. At best, the Examiner has shown
that Perez discloses a multilayer film
comprising at least one film layer having a fibrillated film
layer of the invention and at least one additional porous or
non-porous layer. In such a multilayer construction, the
fibrillated film layer may be an exterior layer or an interior
layer. The additional layers of a multilayer article may
include non-woven fabrics scrims or webs, woven fabrics or
scrims, porous film, and non-porous film.
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Appeal2017-008137
Application 13/133,427
Col. 13, 11. 55-62. What is missing from the Examiner's analysis is why one
of ordinary skill in the art would have selected the average pore sizes of each
ethylene chlorotrifluoroethylene layer to be different, and would have
selected the average pore sizes of each layer to be greater than about 0.01
micrometer. The Examiner has not provided evidence in the cited prior art
to support that each element claimed would have been obvious in view of
the prior art as combined.
In addition, we do not find that the Examiner has provided evidence
that the prior art renders obvious the subject matter of claims 51 and 52.
The Examiner relies on Jing for the disclosure of fluoropolymer blends, but
Jing does not disclose that the nucleating agent is a fluoropolymer.
The preponderance of the evidence supports the Appellants'
arguments. The obviousness rejection is reversed.
CONCLUSION OF LAW
The cited references do not support the Examiner's obviousness
rejection, which is reversed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 3 7 C.F .R. § 1.13 6( a )(1 )(iv).
REVERSED
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