12027581 (P.T.A.B. May. 29, 2014)

Ex Parte Rexin et al

Patent Trial and Appeal BoardMay 29, 2014

12027581 (P.T.A.B. May. 29, 2014)

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. 12/027,581 02/07/2008 Ornulf REXIN REXIN=3 5128 1444 7590 05/30/2014 Browdy and Neimark, PLLC 1625 K Street, N.W. Suite 1100 Washington, DC 20006 EXAMINER YOON, TAE H ART UNIT PAPER NUMBER 1762 MAIL DATE DELIVERY MODE 05/30/2014 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 ORNULF REXIN and ETIENNE AEPLI ____________ Appeal 2012-006217 Application 12/027,581 Technology Center 1700 ____________ Before EDWARD C. KIMLIN, CHUNG K. PAK, and MICHAEL P. COLAIANNI, Administrative Patent Judges. KIMLIN, Administrative Patent Judge. DECISION ON APPEAL This is an appeal from the final rejection of claims 1, 4, 5, 7, 9-14, and 16-27. We have jurisdiction under 35 U.S.C. Â§ 6(b). Claim 1 is illustrative of the subject matter on appeal and is appended to this decision. The Examiner relies upon the following references as evidence of obviousness: Bradley US 2007/0203282 A1 Aug. 30, 2007 Topoulos ('603) US 2008/0119603 A1 May 22, 2008 Topoulos ('502) US 2009/0005502 A1 Jan. 1, 2009 Appeal 2012-006217 Application 12/027,581 2 Appellants' claimed invention is directed to a filled polyamide molding material consisting of (A) at least one of the recited aliphatic polyamides, (B) a polyamide built up from units derived from isophthalic acid and hexamethylene diamine (6I), and units derived from terephthalic acid and hexamethylene diamine (6T), and (C) at least one of the recited filler components. The ratio of 6I to 6T is 60-80/20-40. Appealed claims 1, 4, 5, 11-14, 16-24, 26, and 27 stand rejected under 35 U.S.C. Â§ 103(a) as being unpatentable over Topoulos '502. Appealed claims 1, 4, 9-14, 16-24, 26, and 27 stand rejected under 35 U.S.C. Â§ 103(a) as being unpatentable over Topoulos '502 in view of Bradley. Claims 1, 4, 5, 7, 11-14, and 16-27 stand rejected under 35 U.S.C. Â§ 103(a) as being unpatentable over Topoulos '502 in view of Topoulos '603. In addition, claims 1, 4, 5, 7, 9-14, and 16-27 stand provisionally rejected on the ground of non-statutory obviousness-type double patenting as being unpatentable over claims 1-14 of U.S. Application No. 12/914,143. Appellants do not present separate, substantive arguments for any particular claim on appeal. Nor do Appellants present separate arguments for the Â§ 103 rejections including Bradley and Topoulos '603. Accordingly, all the appealed claims stand or fall with claim 1. We have thoroughly reviewed each of Appellants' arguments for patentability, as well as the Specification and Declaration data relied upon in support thereof. However, we are in complete agreement with the Examiner that the claimed subject matter would have been obvious to one of ordinary skill in the art within the meaning of Â§ 103 in view of the applied prior art. Appeal 2012-006217 Application 12/027,581 3 Accordingly, we will sustain the Examiner's rejections for essentially those reasons expressed in the Answer. There is no dispute that Topoulos '502, like Appellants, discloses a filled polyamide molding material comprising a blend of materials that correspond to the claimed components (A), (B), and (C). The principal argument advanced by Appellants is that Topoulos provides a "basket" or "shotgun" disclosure of aliphatic polyamides and semi-aromatic polyamides with no teaching to select the components presently claimed, and recited 6I/6T ratio. However, we agree with the Examiner that Topoulos provides a much more specific disclosure of the claimed components, and in amounts that fall within the claimed ranges. Topoulos '502 teaches that the molding material comprises 20-70 weight percent of a polyamide, 60-100 percent of which is an aliphatic polyamide and 0-40 percent of which is a semi-aromatic polyamide, such as 6I and 6T. Also, the reference specifically discloses four of the aliphatic polyamides recited in Appellants' Markush group, namely, polyamide 6,13, polyamide 6,14, polyamide 6,15, and polyamide 6,16 ([0025]). For the semi-aromatic polyamide which corresponds to claimed component (B), the reference prefers units derived from terephthalic acid and isophthalic acid, such as the presently claimed 6I and 6T. While Topoulos '502 does not disclose a particular ratio of 6I/6T, we agree with the Examiner that it would have been obvious for one of ordinary skill in the art to formulate a combination of the semi-aromatic polyamides in a ratio that falls within the broadly claimed range. It is well settled that it is a matter of obviousness for one of ordinary skill in the art to resort to routine experimentation to Appeal 2012-006217 Application 12/027,581 4 determine the optimum concentrations of known compositions, and that changes in concentrations of known compositions must be shown to produce unexpected results to gain patentability under Â§ 103. In re Woodruff, 919 F.2d 1575, 1578 (Fed. Cir. 1990); In re Aller, 220 F.2d 454, 456 (CCPA 1955). Appellants invite our attention to Tables 1 and 3 of the present Specification for a demonstration of unobvious results with respect to significantly lower water absorption for the claimed invention. However, we fully concur with the Examiner that the Specification data falls far short of being commensurate in scope with the degree of protection sought by the appealed claims. In particular, the data provides results for only a single aliphatic polyamide, PA164, whereas the appealed claims embrace six different aliphatic polyamides. Also, the inventive examples provide results for only one ratio of 6I/6T, i.e., 2/1, whereas the appealed claims encompass ranges of 1.5/1 to 4/1 for 6I/6T. Appellants' argument notwithstanding, it can hardly be said that the exemplified composition demonstrates a trend for all the compositions that fall within the claimed ranges. Furthermore, the data does not present a comparison to the closest prior art, since the BA6 and BA66 of the comparative Examples are not those preferred and exemplified by Topoulos '502. Appellants also rely upon the Harder Declaration for demonstrating that the ratio of 6I and 6T does matter. However, like the Specification data, the Declaration presents results for only one aliphatic polyamide and only one ratio of 6I/6T, and, therefore, the Declaration is not commensurate in scope with the claimed subject matter. Also, while the Declarant states that Appeal 2012-006217 Application 12/027,581 5 different ratios provide different results, it is axiomatic that the burden on Appellants is not to show the attainment of merely different results, but rather, unexpected results. Appellants, however, have not established that even the limited data representative e of the claimed invention would be considered truly unexpected by one of ordinary skill in the art. Appellants do not offer a substantive argument against the Examiner's obviousness-type double patenting rejection. Accordingly, we will sustain the Examiner's provisional rejection. In conclusion, based on the foregoing, we will sustain the Examiner's rejections. The decision of the Examiner is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a)(1)(iv). AFFIRMED cam Appeal 2012-006217 Application 12/027,581 6 Claim Appendix Appeal 2012-006217 Application 12/027,581 7