Ex Parte Musgrave et al

Patent Trials and Appeals Board

Feb 25, 2013

11906605 - (D) (P.T.A.B. Feb. 25, 2013)

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.
11/906,605 10/02/2007 Mike Musgrave COS-1103 RCE 8208
25264 7590 02/26/2013
FINA TECHNOLOGY INC
PO BOX 674412
HOUSTON, TX 77267-4412
EXAMINER
HUHN, RICHARD A
ART UNIT PAPER NUMBER
1764
MAIL DATE DELIVERY MODE
02/26/2013 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 APPEALBOARD
____________

Ex parte MIKE MUSGRAVE, DANG LE, LUYI SUN,
and DAVID SMITH
____________

Appeal 2011-009559
Application 11/906,605
Technology Center 1700
___________

Before BRADLEY R. GARRIS, MICHAEL P. COLAIANNI, and
JAMES C. HOUSEL, Administrative Patent Judges.

HOUSEL, Administrative Patent Judge.

DECISION ON APPEAL

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Appellants seek our review under 35 U.S.C. § 134 of the Examiner’s
final decision rejecting claims 1-20. We have jurisdiction over the appeal
under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.1

THE REJECTIONS
The Examiner has maintained the following rejections:
Rejection 1: Claims 1-8 and 16-20 have been rejected under
35 U.S.C. § 112, first paragraph, as failing to comply with the written
description requirement. Ans. 4.
Rejection 2: Claims 7, 15, and 19 have been rejected under 35 U.S.C.
§ 112, first paragraph, as failing to comply with the written description
requirement. Ans. 5.
Rejection 3: Claims 1-19 have been rejected under 35 U.S.C.
§ 102(b) as anticipated by Marczinke. Ans. 6-8.
Rejection 4: Claims 1-20 have been rejected under 35 U.S.C.
§ 103(a) as unpatentable over Marczinke. Ans. 8-12.
Rejection 5: Claims 6, 14, and 16-19 have been rejected 35 U.S.C.
§ 103(a) as unpatentable over Marczinke in view of Morini. Ans. 12-14.
Product Claims 1, 7, and 16, and method Claim 9 are illustrative of
the subject matter on appeal:
1. An injection stretch blow molded (ISBM) article formed of a
single polymer, wherein the polymer is a propylene based
random copolymer exhibiting a molecular weight distribution

1 Our Decision refers to Appellants’ Brief (App. Br.) filed September 30,
2010, and the Examiner’s Answer (Ans.) mailed February 18, 2011.
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of from about 9 to about 20 and a unimodal molecular weight
distribution.

7. The article of claim 1, wherein the propylene based random
copolymer exhibits a melt flow rate (as measured by ASTM
D1238L) of from about 2g./10 min. to about 30 g./10 min.

9. A method of forming an injection stretch blow molded
article formed of a single polymer, comprising:

providing the single polymer, wherein the single polymer is a
propylene based random copolymer exhibiting a molecular
weight distribution of from about 9 to about 20 and the single
polymer is formed in a single reaction zone;

injection molding the propylene based random copolymer into a
preform; and

stretch-blowing the preform into an article.

16. An injection stretch blow molded (ISBM) article formed of
a single polymer, wherein the polymer is a propylene based
random copolymer formed from a Ziegler-Natta catalyst
comprising a succinate internal donor and exhibiting a
unimodal molecular weight distribution.

App. Br., Claims App’x (emphasis added).

ANALYSIS
Appellants set forth separate, substantive arguments for claims as
grouped in the rejections, but do not separately argue the patentability of the
claims in each rejection group. Accordingly, for Rejection 1, claims 2-8 and
16-20 stand or fall together with independent claim 1; for Rejection 2,
claims 15 and 19 stand or fall together with claim 7; for Rejections 3 and 4,
claims 2-8, 10-15, and 17-20 stand or fall together with their respective
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independent claims 1, 9, and 16; for Rejection 5, all claims being argued as a
group, we select claim 16 to address the merits of Appellants’ arguments
regarding these claims. See 37 C.F.R. § 41.37(c)(1)(vii) (2011).
Rejection 1
“[The written description] inquiry is a factual one and must be
assessed on a case-by-case basis.” Purdue Pharma L.P. v. Faulding, Inc.,
230 F.3d 1320, 1323 (Fed. Cir. 2000). “In order to satisfy the written
description requirement, the disclosure as originally filed does not have to
provide in haec verba support for the claimed subject matter at issue.” Id.
Nonetheless, the disclosure must convey with reasonable clarity to those
skilled in the art that the inventor was in possession of the invention. Id.,
(“Put another way, one skilled in the art, reading the original disclosure,
must immediately discern the limitation at issue in the claims.”). While the
written description requirement does not demand either examples or an
actual reduction to practice, actual “possession” or reduction to practice
outside of the specification is not enough. Ariad Pharmaceuticals, Inc. v.
Eli Lilly and Co., 598 F.3d 1336, 1352 (Fed. Cir. 2010). Rather, it is the
specification itself that must demonstrate possession. Id.
The Examiner finds that the original disclosure as filed does not
provide in haec verba support for the claim limitation “unimodal molecular
weight distribution”. Ans. 4. Moreover, the Examiner finds that the original
disclosure also does not implicitly support this limitation. Id. In particular,
the Examiner finds that Specification paragraph [0029] fails to mention any
modality of the polymer. Id. While the Examiner finds that this paragraph
discusses the types and numbers of reactors, and various reaction
parameters, the Examiner finds no indication that any particular modality of
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the polymers is specifically envisioned. Id. The Examiner further finds that
the use of a single reactor does not imply a unimodal molecular weight
distribution, instead finding that “it is possible to prepare bi- or multi modal
polymers in a single reactor, e.g. by using multiple catalysts.” Id. The
Examiner therefore concludes that the claim limitation “unimodal molecular
weight distribution” lacks adequate written descriptive support and is new
matter. Id.
Appellants argue that “[t]he Examples clearly demonstrate use of
unimodal polymer, including 7525MZ, as does the attached material data
sheet regarding 7525MZ, which is a unimodal polymer.” Br. 3; Br.
Evidence App’x. However, the Examiner responds that the data sheet fails
to provide any indication of the modality of the 7525MZ polymer’s
molecular weight distribution. Ans. 15. Moreover, the Examiner responds
that while the examples include the 7525MZ polymer, there is no evidence
or other indication in the specification that this polymer or any of the other
example polymers have a unimodal molecular weight distribution. Id. In
addition, the Examiner finds that even if example 7525MZ polymer
inherently has a unimodal molecular weight distribution, such would not
provide adequate written descriptive support for the broadly claimed genus
of propylene based random copolymers. Id. at 15. The Examiner therefore
concludes that the claim limitation “unimodal molecular weight distribution”
lacks adequate written descriptive support and is new matter. Id.
Having reviewed the record including the data sheet for the 7525MZ
polymer, we are in agreement with the Examiner that there is nothing in the
original written description supporting a polymer having a “unimodal
molecular weight distribution”, either expressly or impliedly. The Examiner
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made a prima facie determination that the number of reactors (i.e. a single
reactor) is not determinative of the product polymer’s modality. Appellants
have failed to direct our attention to any evidence rebutting the Examiner’s
determination that the number of reactors is not determinative of the product
polymer’s modality. Appellants fail to direct our attention to any portion of
the data sheet indicating the 7525MZ polymer has this property, nor do we
find any. Appellants fail to direct our attention to any portion of the original
disclosure indicating that any of the disclosed example polymers have this
property, nor do we find any. Finally, we agree with the Examiner that even
if the single example 7525MZ polymer inherently has a unimodal molecular
weight distribution, such is insufficient to support the more broadly claimed
genus of propylene based random copolymers having a unimodal molecular
weight distribution. Appellants provide neither argument nor evidence
supporting the proposition that disclosure of a single species of a genus
provides adequate written descriptive support that inherent, but undisclosed
properties of the species are possessed by all members of the genus. In re
Curtis, 354 F.3d 1347, 1356 (Fed. Cir. 2004) (“a disclosure of a species does
not always suffice to describe broadly claimed subject matter.”). As such,
we sustain Rejection 1 for the reasons given by the Examiner.
Rejection 2
The Examiner finds that the original disclosure as filed does not
provide in haec verba support for the claim limitation “as measured by
ASTM D1238L”. Ans. 5. The Examiner finds that the designation “L”
appended to ASTM D1238 is the portion that lacks adequate written
descriptive support. Id. Moreover, the Examiner finds that the original
disclosure also does not implicitly support this limitation. Id. In particular,
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the Examiner finds that Specification paragraph [0041] makes no mention of
the melt flow test conditions. Id. The Examiner further finds that while the
data sheet for the 7525MZ polymer discloses the ASTM D1238L test for
determining the melt flow for this polymer, “there is no indication in the
specification as originally filed that the more generally claimed polymers
had a melt flow within the scope of the presently recited range and test
conditions.” Id. In other words, even if the 7525MZ polymer of the
example has a melt flow in the recited range as tested by ASTM D1238L,
such fails to support that all the polymers within the scope of the disclosed
test ASTM D1238 would likewise share the same melt flow property
claimed.
Appellants argue that the properties of the 7525MZ polymer are
inherently included by virtue of the reference to this polymer in
Specification paragraph [0041]. Br. 4. Further, Appellants contend that the
testing method recited in the data sheet was properly incorporated into the
Specification and as such, is not new matter. Id.
In response, the Examiner notes that the test conditions for measuring
the melt flow rate are critical given the claim limitation directed to the melt
flow rate. Ans. 17. The Examiner finds that melt flow rate is directly
dependent on the test conditions, which have only been disclosed by
reference to ASTM D1238, not to ASTM D1238L. Id. Presumably, the test
conditions for ASTM D1238 may be different from ASTM D1238L. Id. at
19. In addition, the Examiner finds that even though the data sheet shows
example 7525MZ polymer inherently has a melt flow rate as measured by
ASTM D1238L within the recited range, such fails to support a shift in the
genus class of propylene based random copolymers disclosed from those
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having a melt flow rate within the recited range under ASTM D1238 to
those having a melt flow rate within this range under ASTM D1238L. Id. at
18. The Examiner also disputes Appellants’ contention that the testing
method from the data sheet was properly incorporated into the Specification.
Id. at 18-19. The Examiner therefore concludes that the claim limitation
“ASTM D1238L” lacks adequate written descriptive support and is new
matter. Id. at 19-20.
Having reviewed the record including the data sheet for the 7525MZ
polymer, we are in agreement with the Examiner that there is nothing in the
original written description supporting a genus of propylene based random
copolymers having melt flow rates “(as measured by ASTM D1238L)” of
from about 2g./10 min. to about 30 g./10 min, either expressly or inherently.
The Examiner made a prima facie determination that the melt flow rate
value is dependent on the test conditions. Appellants fail to direct our
attention to any portion of the original disclosure or the data sheet indicating
otherwise, nor do we find any. Appellants have failed to direct our attention
to any evidence rebutting the Examiner’s determination that the claimed
genus of propylene based random copolymers would not be the same for
either ASTM D1238 and ASTM D1238L, nor do we find any.
We further agree with the Examiner that even though the single
example 7525MZ polymer inherently has a melt flow rate within the claimed
range as measured by ASTM D1238L, such is insufficient to support the
more broadly claimed genus of propylene based random copolymers having
melt flow rate within the range as measured by this newly disclosed test.
Contrary to Appellants’ contention, the testing method recited in the data
sheet was not properly incorporated into the Specification. The standard for
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determining whether and to what extent a patent application incorporates
material is whether one of ordinary skill in the art would understand the
application as describing with sufficient particularity the material to be
incorporated. Harai v. Lee, 656 F.3d 1331, 1334 (Fed. Cir. 2011).
Appellants fail to direct our attention to any portion of the original
disclosure mentioning ASTM D1238L, or any portion attempting in any way
to incorporate this test from the data sheet. The original disclosure provides
nothing informing one of ordinary skill in the art as to Appellants’ desire to
rely on any test other than ASTM D1238 when determining the melt flow
rate of the genus of propylene based random copolymers. As such, we
sustain Rejection 2 for the reasons given by the Examiner.
Rejection 3
The Examiner finds that Marczinke discloses injection stretch blow
molded articles formed from a propylene based random copolymer having a
molecular weight distribution of about 9. Ans. 6. Appellants argue that
Marczinke’s teaching that the molecular weight distribution is at most 6 fails
to read on the claimed distribution range of about 9 to about 20. Br. 4. The
Examiner responds that the disclosure does not provide an express definition
for the term “about” as used in the claimed distribution range. Ans. 20.
Nonetheless, the Examiner looks to the molecular weight distribution of the
example A, the 7525MZ polymer for providing guidance on the meaning of
this term. The issue before us therefore is: Does example A provide
guidance as to the meaning of the term “about” as applied to the recited
molecular weight distribution such that Marczinke’s teaching of “at most 6”
reads on “about 9”. We answer this question in the negative and therefore
will not sustain this rejection.
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The Examiner’s reliance on the molecular weight distribution of the
7525MZ polymer is premised on Appellants’ reliance in their arguments on
the disclosure of this polymer as an indicator of the modality of the
molecular weight distribution as well as the test condition for determining
the melt flow rate. Since Appellants are arguing the inherent properties of
the 7525MZ polymer support limitations on the claimed genus of polymers,
the Examiner concludes that the molecular weight distribution of this
polymer should similarly be used for assessing this same property for the
claimed genus. While we understand the temptation to rely on Appellants’
arguments for written descriptive support based on the 7525MZ polymer,
such reliance is contrary to the original disclosure and cannot form the basis
for supporting an anticipatory rejection of the claims. Initially, as set forth
above, we have not found Appellants’ arguments regarding the 7525 MZ
polymer to be persuasive. In addition, a plain reading of the Specification
compels a contrary view of the 7525MZ polymer relative to the claimed
invention.
“In one embodiment, the ISBM articles generally include a propylene
based random copolymer having a molecular weight distribution of from
about 9 to about 20.” Spec. ¶ [0004]. Further, Appellants describe the
propylene based random copolymers of the invention as exhibiting a broad
molecular weight distribution “of at least 9”, contrasting that against
conventional propylene having molecular weight distribution “of from about
5 to about 7”. Spec. ¶ [0035]. Appellants express the need for propylene
based preforms that could be used to produce defect-free production of
injection stretch blow molded articles. Spec. ¶ [0002]. Finally, Appellants
compare three example polymers, Polymer “A” (the 7525MZ polymer),
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Polymer “B”, and Polymer “C”. Spec. ¶ [0041]. Polymer “A has a
molecular weight distribution of 6.4. Id. Polymers “B” and “C” have
molecular weight distributions of 10. Id. Polymers “B” and “C” are less
affected by temperature, indicating a broader processing window for
injection stretch blow molding, than Polymer “A”. Spec. ¶ [0042]. Finally,
bottles made from Polymer “A” resulted in more bottle defects than those
made from Polymers “B” and “C”. Spec. ¶ [0047]. One of ordinary skill in
the art when reading Appellants’ Specification would reasonably conclude
that Polymer “A”, having a narrower processing window and more defects
as well as a molecular weight distribution well below 9, is not within the
scope of the claimed invention. As such, the Examiner’s reliance on
Polymer “A” to support a broad interpretation of the meaning of “about 9” to
include 6 is misplaced. We find that the meaning of the claim limitation
“about 9” would not include the molecular weight distribution of
Marczinke’s “at most 6”. Accordingly, we will not sustain this rejection as
to claims 1-15 and 17.
With regard to claims 16, 18, and 19, the Examiner finds that
Marczinke teaches an injection stretch blow molded article made from a
propylene based random copolymer, made in a single reaction zone with a
single catalyst which will produce a unimodal molecular weight distribution.
Ans. 6. The Examiner acknowledges that Marczinke fails to name a
polymer made by a Ziegler-Natta catalyst comprising a succinate internal
donor. Id. at 7. However, the Examiner finds that the catalyst is a process
limitation, and that the product claimed is structurally indistinguishable from
that of Marczinke. Id. at 7-8. The Examiner also finds that Marczinke
teaches that the polymers may be formed by Ziegler-Natta catalysts. Id. at
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22; Marczinke, col. 2, ll. 30-50. Indeed, the Examiner notes that
“Appellant[s] ha[ve] not specified in what way the electron donor in the
catalyst composition is critical to the structure of the polymer resulting from
the polymerization process.” Ans. 23.
Appellants argue that while Marczinke discloses “that polymers may
be formed by either by Ziegler-Natta or metallocene catalysts”, Marczinke
uses metallocene catalysts to form injection stretch blow molded articles.
Br. 5. Moreover, Appellants argue that the catalyst “utilized in
polymerization reactions determine the properties of the polymer produced
and ultimately the article formed with that polymer.” Id. For support of this
argument, Appellants direct our attention to the Specification Examples as
evidence of the criticality of the succinate based Ziegler-Natta catalyst. Id.
We note that Polymer “A” was formed using a “conventional Ziegler-Natta
catalyst”, while Polymers “B” and “C” were both formed using a “succinate
based Ziegler-Natta catalyst”. Spec. ¶ [0041]. The molecular weight
distribution of Polymer “A” is below the recited “about 9 to about 20” range.
Id. Moreover, the polymer formed with conventional Ziegler-Natta catalyst
results in narrower processing windows and narrower molecular weight
distributions of from about 5 to about 7. Spec. ¶¶ [0020], [0035], and
[0039].
We find Appellants’ Specification evidence supports their argument
that the succinate based Ziegler-Natta catalyst is significant to the polymer
made thereby. Accordingly, we do not sustain this rejection with regard to
claims 16, 18, and 19.
Rejection 4
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The Examiner finds that while Marczinke fails to teach a propylene
based random copolymer having a molecular weight distribution of from
about 9 to about 20, “it is within the ordinary level of skill in the art to adjust
the molecular weight distribution of a polymer in order to control its
physical properties, such as glass transition temperature, melt flow rate, melt
viscosity, impact resistance, and processability for a given intended use of
the polymer.” Ans. 9. The Examiner further finds that the reaction
parameters of Marczinke’s process of making the propylene based random
copolymer are result effective variables “because changing them will clearly
affect the type of product obtained, including the polymer’s physical
properties such as its molecular weight distribution.” Id. The Examiner
concludes it would have been obvious to have utilized appropriate reaction
conditions for the process of Marczinke so as to produce desired end results,
including a molecular weight distribution within the scope of the claims. Id.
at 10.
Appellants argue that Marczinke contains no suggestion or incentive
to utilize a polymer with a broad, rather than narrow, molecular weight
distribution. Br. 6. Appellants also argue that one skilled in the art would
not have a reasonable expectation of success in injection stretch blow
molding using a broad molecular weight distribution. Id. Appellants
therefore contend that because Marczinke does not teach or suggest use of a
polymer with a broad molecular weight distribution in an injection stretch
blow molding process with a reasonable expectation of success, this
rejection is based on impermissible hindsight. Id.
We find that though Marczinke teaches the polymerization reaction
conditions are not critical and may be varied over a considerable range,
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Marczinke also teaches that the molar mass distribution obtainable with
metallocene catalysts “is generally in the range from 1.2-6.0, preferably
from 1.5 to 3.0.” Marczinke, col. 10, ll. 39-44. Marczinke does teach that
the molar mass distribution can be adjusted (id. at ll. 19-25 and 45-49), but
there is no indication that the adjustment could result in a substantially
broader distribution of about 9, nor is there any indication as to why one
would have done so. Absent such guidance, we do not find sufficient
support for concluding that optimization of Marczinke’s polymerization
reaction conditions would have resulted in the molecular weight distribution
claimed.
Claims 16, 18, and 19 do not include the molecular weight
distribution range of about 9 to about 20. These claims recite that the
Ziegler-Natta catalyst used is succinate based internal donor. The Examiner
bases this rejection on the same reasoning set forth above for Rejection 3.
Appellants’ rebuttal is likewise the same as set forth above. We find for
substantially the same reasons articulated above, that the Examiner has
failed to articulate reasoning with rational underpinning sufficient to support
the legal conclusion of obviousness. See In re Kahn, 441 F.3d 977, 988
(Fed. Cir. 2006) (“[R]ejections on obviousness grounds cannot be sustained
by mere conclusory statements; instead, there must be some articulated
reasoning with some rational underpinning to support the legal conclusion of
obviousness”) (quoted favorably in KSR Intern. Co. v. Teleflex Inc., 550
U.S. 398, 418 (2007).
Accordingly, we do not sustain this rejection.
Rejection 5
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Initially, we note that claims 6, 14, and 17 all include the molecular
weight distribution of about 9 to about 20. We further note that the
Examiner’s rejection of these claims is dependent on the same reasoning
relied in Rejection 4. Thus, for the same reasons we do not sustain
Rejection 4, we similarly do not sustain this rejection as applied to claims 6,
14, and 17.
Turning to claims 16, 18, and 19, the Examiner finds that Marczinke
teaches an injection stretch blow molded article formed from a single
propylene based random copolymer, wherein the copolymer is formed using
either a Ziegler-Natta or metallocene catalyst in a single reaction zone which
will produce a unimodal weight distribution. Ans. 12. The Examiner
acknowledges that Marczinke does not specify that the Ziegler-Natta catalyst
comprises a succinate internal donor. Id. at 13. However, the Examiner
finds that Morini teaches use of Ziegler-Natta catalysts comprising succinate
internal donors for polymerizing olefins, particularly propylene. Id. at 14.
We note that Morini teaches that broad molecular weight distributions are
preferred to improve processability of the polymers and better quality of
molded products. Morini, ¶ [0002]. The Examiner concludes it would have
been obvious to one of ordinary skill in the art to have used a Ziegler-Natta
catalyst including a succinate internal donor as taught by Morini in the
propylene polymerization process of Marczinke. Id.
Appellants argue Marczinke necessarily requires use of a metallocene
catalyst. Br. 7. Therefore, Appellants contend that combination of the
Ziegler-Natta catalyst of Morini would destroy the intended function of
Marczinke. Id. Appellants contend Marczinke overcomes the difficulties of
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using polypropylene for forming injection stretch blow molded articles
through the use of metallocene catalysts. Id.
The Examiner responds that Marczinke’s metallocene catalyst is a
preferred embodiment, but Ziegler-Natta catalysts may also be used. Ans.
26. Further, the Examiner notes Appellants fail to indicate how the use of
Morini’s specific succinate based Ziegler-Natta catalyst would destroy
Marczinke’s intended function. Id. The Examiner finds that the proposed
modification of the process of Marczinke to use Morini’s succinate based
Ziegler-Natta catalysts would still result in propylene based random
copolymers. Id. We agree. In other words, Appellants have not adduced
any persuasive technical reasoning or otherwise in response to the
Examiner’s reasonable determination that an artisan would have, using no
more than ordinary creativity, modified Marczinke’s propylene
polymerization process to include Morini’s succinate based Ziegler-Natta
catalysts for enhanced processability. Accordingly, the preponderance of the
evidence supports the Examiner’s § 103 rejection of claims 16, 18, and 19
over the combination of Marczinke and Morini.

DECISION
The decision of the Examiner is affirmed with regard to the rejections
of claims 1-8 and 15-20 under 35 U.S.C. §112, first paragraph, as failing to
comply with the written description requirement, and of claims 16, 18, and
19 under 35 U.S.C. § 103(a) over Marczinke in view of Morini, but reversed
with regard to the rejections of claims 1-19 under 35 U.S.C. § 102(b) and
claims 1-20 under 35 U.S.C. § 103(a) over Marczinke, and reversed with
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regard to rejection of claims 6, 14, and 17 under 35 U.S.C. § 103(a) over
Marczinke in view of Morini.
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).

AFFIRMED-IN-PART