Ex Parte Noble

Board of Patent Appeals and Interferences

Oct 18, 2011

12038549 (B.P.A.I. Oct. 18, 2011)

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.
12/038,549 02/27/2008 Larry Allen NOBLE 070178-153 5837
70471 7590 10/18/2011
PHAN LAW GROUP PLLC
P.O. BOX 748
ALEXANDRIA, VA 22313-0748
EXAMINER
PAK, HANNAH J
ART UNIT PAPER NUMBER
1764
MAIL DATE DELIVERY MODE
10/18/2011 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte LARRY ALLEN NOBLE

__________

Appeal 2010-006033
Application 12/038,549
Technology Center 1700
___________

Before KAREN M. HASTINGS, MICHAEL P. COLAIANNI, and
RAY LYNN P. GUEST, Administrative Patent Judges.

HASTINGS, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2010-006033
Application 12/038,549

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A. STATEMENT OF THE CASE
This is a decision on appeal under 35 U.S.C. § 134 from an
Examiner’s decision finally rejecting claims 1-9, which are all of the
pending claims, under 35 U.S.C. § 103.
Claims 1-3, 5, 6, 8, and 9 stand rejected as being unpatentable over
Eisinger (EP 0735058 A1, published Oct. 2, 1996) in view of Harlin (US
6,476,161 B1, issued Nov. 5, 2002). Claims 4 and 7 stand rejected as
unpatentable over the combined prior art of Eisinger, Harlin, and Mori (US
2005/0047985 A1, published Mar. 3, 2005).
We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
Claim 1, reproduced below, is illustrative of the subject matter on
appeal.

1. A process for polymerizing one or more olefins in a fluidized-bed
reactor comprising a gas distribution grid, said process comprising:

introducing one or more scouring balls into the reactor above
the gas distribution grid; and

carrying out olefin polymerization in the presence of said
scouring balls.

B. DISCUSSION
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Application 12/038,549

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During examination, the Examiner bears the initial burden of
establishing a prima facie case of obviousness. In re Oetiker, 977 F.2d
1443, 1445 (Fed. Cir. 1992).
After review of the respective positions provided by Appellant and the
Examiner, we agree with Appellant that the Examiner has not met the
burden in this case for substantially the reasons set forth by Appellant in
their Briefs. We add the following for emphasis.
Appellant’s invention is directed to the use of scouring balls during
olefin polymerization, and to prevent or reduce agglomeration or
accumulation on or around a gas distribution grid in a fluidized bed olefin
polymerization process (Spec. [0005], [0006]). Appellant defines that the
“scouring balls” must be “substantially non-fluidizable” under process
conditions (Spec. [0010]). In one embodiment, the balls are plastic and have
“a diameter ranging from 8 to 10 inches”, and “preferably weigh about 9 to
18 lbs each” (Spec. [0014]).
The Examiner relies upon the inert particles of Eisinger to meet the
claim limitation of “scouring balls” (Ans. 4, 6-8). The Examiner concludes
that it is Appellant’s burden to establish that the scouring balls of Eisinger
“are not substantially non-fluidizable” and also states “Eisinger does not
indicate that its inert silica particles as being fluidized or fluidizable” (Ans.
7).
However, we agree with Appellant that the Examiner has not
adequately explained why, nor provided any evidence to support the
assertion that, the nano and micro-sized inert particles of Eisinger (Eisinger
p. 3, ll. 40-55) would have been expected to behave as scouring balls that
Appeal 2010-006033
Application 12/038,549

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would be “substantially non-fluidizable” under process conditions in
accordance with Appellant’s definition thereof in the Specification (Spec.
[0008]). See App. Br. 4-5; Reply Br. 1-2.
Indeed, the preponderance of the evidence supports Appellant’s
position that Eisinger’s inert particles would be fluidized during the
fluidized bed process under its polymerization conditions, since the inert
particles are “at least 2.5 times smaller” than Eisinger’s polymer particles
and serve as the main or primary site for formation of its polymer particles
which are fluidized under process conditions (Reply Br. 2).
The Examiner’s rejection and response to argument presented in the
Answer does not adequately address the concerns raised by the Appellant
outlined above. “[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.” KSR Int’l. Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007)
(quoting In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)).
The Examiner has not relied upon any other reference to remedy this
deficiency (generally Ans.).
In light of these circumstances, a preponderance of the evidence
supports the Appellant’s position, and the § 103(a) rejections of all the
claims will be reversed.
C. DECISION
The decision of the Examiner is reversed.
REVERSED
Appeal 2010-006033
Application 12/038,549

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kmm