Ex parte Peltz et al.

Board of Patent Appeals and Interferences

Oct 22, 1998

08090676 (B.P.A.I. Oct. 22, 1998)

Application for patent filed July 13, 1993.1
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THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered
today (1) was not written for publication in a law
journal and (2) is not binding precedent of the Board.
Paper No. 17
UNITED STATES PATENT AND TRADEMARK OFFICE
________________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
________________
Ex parte JOHN H. PELTZ and GLENN H. PRICE
________________
Appeal No. 95-2719
Application No. 08/090,6761
________________
ON BRIEF
________________
Before KIMLIN, JOHN D. SMITH and WALTZ, Administrative Patent
Judges.
KIMLIN, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal from the final rejection of claims 1-4,
all the claims in the present application. Claim 1 is
illustrative:
1. A low smoke and flame retardant composition
comprising a vinylidene fluoride polymer and from about 0.02
Appeal No. 95-2719
Application No. 08/090,676
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to about 2.0 percent by weight of said composition of calcium
tungstate.
The examiner relies upon the following references as
evidence of obviousness:
Taguchi et al. (Taguchi) 4,585,703 Apr. 29, 1986
Oka et al. (Oka) 4,696,989 Sep. 29, 1987
Hannecart 4,898,906 Feb. 6, 1990
As is readily apparent from illustrative claim 1 above,
appellants' claimed invention is directed to the addition of
calcium tungstate to a vinylidene fluoride polymer in order to
render the polymer flame retardant along with a reduced smoke-
generating capability.
Appealed claims 1-4 stand rejected under 35 U.S.C. § 103
as being unpatentable over Hannecart and Oka in view of
Taguchi.
Upon careful consideration of the opposing arguments
presented on appeal, we will not sustain the examiner's
rejection.
Hannecart employs molybdenum derivatives, such as calcium
molybdate, as a smoke reducer and flame retardant for
vinylidene fluoride polymers. Recognizing that Hannecart
provides no teaching or suggestion of utilizing appellants'
calcium tungstate in composition with a vinylidene fluoride
Appeal No. 95-2719
Application No. 08/090,676
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polymer, the examiner relies upon Taguchi. However, Taguchi
is directed to a method of treating wood or a woody material
to improve its water resistance, weatherability,
rustproofness, water-resistant and solvent-resistant fire
retardancy, bug resistance, corrosion resistance and ease of
processing (column 1, lines 5 et seq.). Taguchi's process
entails treating the wood with a mixture or reaction product
of a polymeric compound and a phosphonic acid compound and,
optionally, the treatment composition may contain any one of a
number of silicon-containing inorganic compounds, magnesium-
containing inorganic compounds, calcium-containing inorganic
compounds, etc. (column 1, lines 26-39). In a list of
calcium-containing inorganic compounds that impart a higher
level of fire retarding property to the woody material,
Taguchi discloses calcium tungstate.
The flaw in the examiner's reasoning is that neither
Taguchi, nor any other prior art of record, teaches or suggests
the use of calcium tungstate as a flame retardant for a
vinylidene fluoride polymer. Indeed, the examiner has
presented no evidence that calcium tungstate is a flame
retardant for any material other
Appeal No. 95-2719
Application No. 08/090,676
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than wood. In the absence of any prior art teaching that
calcium tungstate was a known flame retardant for, at minimum,
polymeric materials, in general, there is no factual basis to
support the examiner's legal conclusion that it would have been
obvious for one of ordinary skill in the art to use calcium
tungstate as a flame retardant for a vinylidene fluoride
polymer. At best, the evidence of record may suggest that it
might have been obvious to try calcium tungstate as a flame
retardant for a vinylidene fluoride polymer. Manifestly, this
is not the proper legal standard for determining obviousness
within the meaning of 35 U.S.C. § 103.
The Oka patent cited by the examiner makes no mention of
calcium tungstate. Regarding the examiner's application of
Oka, we note the examiner's statement that "Hannecart is
deemed the more relevant primary reference" (page 6 of
Answer).
In conclusion, based on the foregoing, it is our judgment
that the examiner has not established a prima facie case of
obviousness for the claimed subject matter. Accordingly, the
examiner's decision rejecting the appealed claims is reversed.
REVERSED
Appeal No. 95-2719
Application No. 08/090,676
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EDWARD C. KIMLIN )
Administrative Patent Judge )
)
)
)
JOHN D. SMITH ) BOARD OF PATENT
Administrative Patent Judge ) APPEALS AND
) INTERFERENCES
)
)
THOMAS A. WALTZ )
Administrative Patent Judge )
clm
William D. Mitchell
ELF Atochem North America, Inc.
Patent Dept. - 26th Floor
2000 Market St.
Philadelphia, PA 19103-3222
Appeal No. 95-2719
Application No. 08/090,676
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