Ex Parte Patkar et al

Patent Trial and Appeal Board

Sep 8, 2016

13595390 (P.T.A.B. Sep. 8, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/595,390 08/27/2012 Mahesh Patkar
25264 7590 09/09/2016
FINA TECHNOLOGY INC
PO BOX 674412
HOUSTON, TX 77267-4412
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.
COS-1324 1265
EXAMINER
FINK, BRIEANN R
ART UNIT PAPER NUMBER
1768
MAILDATE DELIVERY MODE
09/09/2016 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 APPEAL BOARD
Ex parte MARESH PATKAR and MICHAEL MCLEOD
Appeal2015-003267
Application 13/595,390
Technology Center 1700
Before TERRY J. OWENS, BEYERL YA. FRANKLIN, and
JEFFREY R. SNAY, Administrative Patent Judges.
SNAY, Administrative Patent Judge.
DECISION ON APPEAL 1
Appellants2 appeal under 35 U.S.C. § 134(a) from the Examiner's
decision rejecting claims 1-21. We have jurisdiction under 35 U.S.C.
§ 6(b).
We affirm.
1 We cite to the Specification ("Spec.") filed Aug. 27, 2012, amended Dec.
20, 2013; Final Office Action ("Final Act.") mailed Mar. 31, 2014;
Examiner's Answer ("Ans."); and Appellants' Appeal Brief ("App. Br.")
and Reply Brief ("Reply Br.").
2 Appellants identify Fina Technology, Inc. as the real party in interest.
App. Br. 5.
Appeal2015-003267
Application 13/595,390
BACKGROUND
The subject matter involved in this appeal relates to polypropylene
resin articles and methods for their production. Spec. 2. Claims 1 and 8
illustrate the subject matter on appeal and are reproduced from the Claims
Appendix of the Appeal Brief as follows:
1. A method comprising:
supplying a polypropylene resin comprising 6 wt.% or
less xylene soluble material as measured by ASTM D5492-06;
blending the polypropylene resin with Zinc Stearate;
forming a molded article from the polypropylene resin;
and
autoclaving the molded article, wherein, after
autoclaving, the molded article exhibits a haze of between about
10 and about 20 as determined by ASTM Dl003 procedure "A".
8. An article comprising:
a polypropylene resin comprising 6 wt.% or less xylene
soluble material as measured by ASTM D5492-06; wherein the
polypropylene resin is blended with Zinc Stearate, and wherein,
after autoclaving, the article exhibits a haze of between about
10 and about 20 as determined by ASTM Dl003 procedure "A".
REJECTION
Claims 1-21 stand rejected under 35 U.S.C. § 103(a) as unpatentable
over Lopez3 and Fielding. 4
3 US 2010/0098586 Al, published Apr. 22, 2010 ("Lopez").
4 US 5,006,587, issued Apr. 9, 1991 ("Fielding").
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Application 13/595,390
DISCUSSION
Claims 1 and 8 are the sole independent claims on appeal. With
regard to the Rejection, Appellants argue claims 1-11, 13, 16-18, 20, and 21
as a group, and present separate, additional arguments for each of claims 12,
14, 15, and 19. App. Br. 12-19; Reply Br. 5-7. In accordance with
37 C.F.R. § 41.37(c)(l)(iv), we select claim 1 as representative and decide
the propriety of the Rejection as to claims 1-11, 13, 16-18, 20, and 21 based
on the representative claim alone. Separately argued claims 12, 14, 15, and
19 are separately addressed.
We sustain the Rejection for the reasons expressed in the Final Office
Action, the Answer, and below.
Claim 1
Appellants do not dispute the Examiner's findings that Lopez
discloses a method of forming a moided poiypropyiene resin article which
includes all of the steps recited in claim 1, except that Lopez uses calcium
stearate instead of zinc stearate in the resin composition. Compare Final
Act. 2-3 with App. Br. 12-19; Reply Br. 5-7. In determining that one of
ordinary skill in the art would have found it obvious to substitute zinc
stearate for calcium stearate in Lopez's method, the Examiner relied on
Fielding's teachings that both calcium stearate and zinc stearate were known
acid scavenger agents or acid neutralizers in polypropylene resin
compositions, and that use of zinc stearate instead of calcium stearate
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Application 13/595,390
resulted in an improved yellowness index. 5 Final Act. 3--4 (citing Fielding
col. 1, 11. 39--47). The Examiner also reproduced and relied on the
yellowness index data tabulated for Examples I-3 and I-4 at column 4 of
Fielding. Id. at 4 (reporting Yellowness Index values of 3.0 and 7.4
corresponding to use of zinc stearate and calcium stearate, respectively).
Appellants argue that Fielding also reports in connection with
Examples I-3 and I-4 that zinc stearate results in an inferior water carry-over
value in films. 6 App. Br. 12-14. However, Lopez-the principal
reference-regards molded polypropylene articles such as pipette tips,
centrifuge tubes and other laboratory articles, not films. Lopez i-fi-f 19, 20.
Fielding's observation of a water carry-over property that relates solely to
extrusion of films does not negate the fact that Fielding teaches that zinc
stearate yields an improved yellowness index as compared with calcium
stearate, or that one skilled in the art would have considered an improved
yeUowness index beneficiai in Lopez's moiding process.
Appellants also argue that "[ t ]he Examiner has not established that a
reduction in the yellowness index of a melt blended, water bath cooled film
would translate into a reduction in the yellowness index of an autoclaved
molded article." App. Br. 15-16; see also Reply Br. 5 ("Fielding does not
5 "Yellowness index is the magnitude of yellowness under daylight
illumination of homogenous, nonfluorescent, nearly colorless, transparent or
nearly white translucent or opaque plastics relative to magnesium oxide."
Fielding col. 2, 11. 39--43. Appellants do not dispute the Examiner's finding
that "Lopez also desires a low yellow index." Final Act. 4.
6 "Water carry-over is expressed as the rate at which a film can be extruded
before water is carried along with the film. The higher the water carry-over
value, the faster and more economically a resin film can be processed."
Fielding col. 2, 11. 49-53.
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Application 13/595,390
teach that the same alleged benefits on yellowness index would occur in an
article formed by a process other than the film production process disclosed
in Fielding."). We disagree, and are persuaded by the Examiner's reasoning,
see Ans. 9, that one of ordinary skill reasonably would have expected that
the improved yellowing property reported in Fielding relates to the
polypropylene resin material, rather than to the shape or form into which that
material is produced. 7 Fielding's reference to "polypropylene resins used
for films, fibers and molded articles," Fielding col. 1, 11. 13-14 (emphasis
added) is consistent with the Examiner's reasoning that the reported
properties of the resin material would stem from the material itself.
Appellants further argue that "the examples of Fielding are for
polypropylene homopolymers," and that "Lopez is directed to articles
produced from random copolymers of propylene." App. Br. 17-18.
However, as the Examiner pointed out at page 12 of the Answer, both Lopez
and Fieiding teach use of poiypropyiene homopoiymers and copoiymers.
Appellants do not dispute this finding in their Reply Brief.
For the foregoing reasons, we are persuaded that a preponderance of
the evidence before us supports the Examiner's findings and obviousness
determination as to claim 1.
7 We note that Fielding also reports an apparently reduced corrosivity rating
associated with the use of zinc stearate vs. calcium stearate. See Fielding
col. 4, 11. 26-29. However, Appellants do not present any argument in that
regard. Nor do we consider the different corrosivity rating data to outweigh
teaching that use of zinc stearate yields an improved yellowness index.
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Application 13/595,390
Claim 12
Claim 12 specifies that zinc stearate is present in the resin at about
0.07 wt.%. Appellants argue that the data presented in Tables 1 and 2 of the
Specification demonstrate unexpected results obtained by providing zinc
stearate at 0.07 wt.% compared with Pationic 940, which Appellants
represent to be a modified calcium salt derived from stearic and lactic acids.
App. Br. 16. However, as the Examiner observed, Ans. 10, Pationic 940 as
defined by Appellants is not the same as calcium stearate and is present in
the relied-upon examples at a different concentration (0.03% Pationic 940
vs. 0.07% zinc stearate ). Accordingly, the information relied upon by
Appellants is insufficient to demonstrate unexpected results achieved by
selection of zinc stearate over the calcium stearate taught by Lopez.
Claims 14 and 15
Appeiiants aiso argue that "Fielding provides no motivation for an
article that does not include any modified calcium salts," as is required by
claim 14, or "for an article in which zinc stearate is the only acid neutralizer
in the polypropylene resin," in accordance with claim 15. App. Br. 17.
Appellants do not respond in their Reply Brief to the Examiner's finding that
substituting zinc stearate for calcium stearate in Lopez's Example 7 "results
in a composition comprising only zinc stearate as the acid neutralizer and no
other calcium salts," Ans. 11. See also Final Act. 6 (identifying all of the
remaining additives listed in Lopez's Example 7 and reasoning that none
includes a calcium salt). Thus, Appellants' arguments is not persuasive of
reversible error in the Examiner's rejection of these claims.
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Claim 19
Claim 19 specifies that the polypropylene resin is "0.06% by weight
ethylene." The Examiner found, and Appellants do not dispute, that Lopez
teaches polypropylene copolymers in which ethylene comonomer is present
"from about 0.1 wt%," and that the phrase "about 0.1 wt%" in Lopez would
be understood by the skilled artisan as inclusive of 0.06% by weight.
Compare Final Act. 6 with App. Br. 12-19; Reply Br. 5-7. Appellants
argue that "[ t ]he Examiner has presented no evidence establishing that one
skilled in the art would [have] expected a propylene resin with 0.1 weight
percent ethylene to have the same properties as a propylene resin with 0.06
weight percent ethylene." App. Br. 19. We disagree. A prima facie case of
obviousness may exist where the claimed ranges or amounts do not overlap
but are merely close. Titanium Metals Corp. of America v. Banner, 778 F.2d
775, 783 (Fed. Cir. 1985). We agree that a difference between about 0.1 %
vs. 0.06 % ethyiene comonomer is siight, particuiariy in iight of Lopez's
disclosure of ethylene comonomer concentrations ranging from about 0.1 %
to as high as 5.0%, see Lopez i-f 45. Appellants' argument is not persuasive
of reversible error in the Examiner's determination that a change of the
ethylene comonomer content from about 0.1 % to 0.06% in Lopez's
primarily polypropylene resin article would have yielded any significant
change to the article's properties.
For the foregoing reasons, we also are persuaded that a preponderance
of the evidence before us supports the Examiner's findings and obviousness
determination as to each of claims 12, 14, 15, and 19.
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Accordingly, we sustain the Rejection.
DECISION
The Examiner's decision rejecting claims 1-21 is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136.
AFFIRMED
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