Ex Parte Reimers

Board of Patent Appeals and Interferences

Mar 12, 2009

10971593 (B.P.A.I. Mar. 12, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
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Ex parte JAY LEWIS REIMERS
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Appeal 2009-0191
Application 10/971,593
Technology Center 1700
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Decided:1 March 12, 2009
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Before CHUNG K. PAK, TERRY J. OWENS, and
JEFFREY B. ROBERTSON, Administrative Patent Judges.

ROBERTSON, Administrative Patent Judge.

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, begins to run from the Decided Date
shown on this page of the decision. The time period does not run from the
Mail Date (paper delivery) or Notification Date (electronic delivery).

Appeal 2009-0191
Application 10/971,593

DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s final
rejection of pending claims 1-22. (Examiner’s Answer entered July 12,
2007, hereinafter “Ans.”). We have jurisdiction pursuant to 35 U.S.C. §
6(b).
We REVERSE.
Appellant describes a process for preparing a polymer, which uses a
value for the turbidity of the process stream as a component of an algorithm
in order to monitor and/or control the process based on the polymer particle
size or concentration of polymer particles. (Spec. ¶ [0005]).
Claim 1 is representative of the claims on appeal and recites:
1. A process for preparing a polymer comprising preparing a
polymer using a process comprising at least one process stream,
the at least one process stream comprising a dispersed phase
fluid comprising polymer particles, and the process further
comprising contacting at least a portion of the at least one
process stream with a sensor probe connected to a turbidity
meter and passing light from a light source through the sensor
probe and into the turbidity meter; wherein the interaction of
the process stream and the light passing through the senor probe
is measured and used to define a value for the turbidity of the at
least one process stream; and wherein the value for the turbidity
of the at least one process stream is a component of an
algorithm used to determine in real time the polymer particle
size or the concentration of polymer particles in the at least one
process stream to monitor, control, or monitor and control the
process for preparing a polymer.

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Appeal 2009-0191
Application 10/971,593

The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Burke, Jr. 3,506,359 Apr. 14, 19702

The Examiner rejected claims 1-22 under 35 U.S.C. § 102(b) as being
anticipated by Burke. The Examiner found that Burke describes a process
for preparing a polymer as recited in the claims by preparing polystyrene
latex and other turbid materials, providing a light source and a sensor probe
to provide a means for monitoring and/or controlling the polymerization
reaction. (Ans. 3).
Appellant contends that Burke teaches analysis of samples, not a
process for preparing a polymer. (Br. 4). Appellant also contends that
Burke teaches the analysis of samples while the present claims recite a
method of in-line analysis of process streams in polymerization processes.
(Br. 4).

ISSUE
Based on the contentions of the Examiner and the Appellant, the issue
presented is: Has Appellant shown reversible error in the Examiner’s
finding that Burke discloses the recited process for preparing a polymer?
We answer this question in the affirmative.

FINDINGS OF FACT
The record supports the following Findings of Fact (FF) by a
preponderance of the evidence.

2 Hereinafter referred to as “Burke.”
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Appeal 2009-0191
Application 10/971,593

1. Burke describes a process for analyzing samples in order to
determine physical or mechanical properties by measuring optical
energy absorption of turbid suspensions such as polystyrene latex.
(Col. 1 ll. 23-49; col. 3, ll. 66-68).
2. Burke fails to disclose a process for preparing a polymer that is
monitored and/or controlled in real time by an algorithm including
a value of turbidity obtained through the interaction of light
passing through a sensor probe. (See Burke, generally).

PRINCIPLES OF LAW
“A claim is anticipated only if each and every element as set forth in
the claim is found, either expressly or inherently described, in a single prior
art reference.” Verdegaal Bros. v. Union Oil Co. of California, 814 F.2d
628, 631 (Fed. Cir. 1987), cert. denied, 484 U.S. 827 (1987).

ANALYSIS
Appellant’s arguments that Burke fails to disclose preparing a
polymer as recited in the appealed claims are persuasive. Burke describes a
process for analyzing polymer samples. (FF 1). Thus, Burke is directed to
the analysis of polymers that have already been prepared and not with
controlling and/or monitoring a process of preparing polymers. The
Examiner’s contention that the present claims do not specifically recite that
the polymers are prepared from their corresponding monomers does not
remedy Burke’s failure to disclose the recited real time monitoring and/or
controlling a process of preparing a polymer.
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Appeal 2009-0191
Application 10/971,593

Further, the Examiner does not address how Burke expressly or
implicitly describes the recited algorithm having a value of turbidity as a
component, which is used to determine in real time the concentration or
particle size of the polymer particles in order to monitor and/or control the
process. Indeed, Burke is silent as to the recited algorithm. (FF 2).
Therefore, Burke fails to expressly or inherently describe each and every
element of the present claims.

CONCLUSION
Appellant has shown reversible error in the Examiner’s finding that
Burke discloses the recited process for preparing a polymer.

ORDER
We reverse the Examiner’s decision rejecting claims 1-22 under 35
U.S.C. § 102(b) as being anticipated by Burke.
REVERSED

PL initial:
sld

FINA TECHNOLOGY INC.
P.O. BOX 674412
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