Ex Parte Ringot

Patent Trials and Appeals Board

Jun 27, 2019

14115840 - (D) (P.T.A.B. Jun. 27, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/115,840 02/03/2014 Claude Ringot
35161 7590 07/01/2019
DICKINSON WRIGHT PLLC
1825 Eye St., NW
Suite 900
WASHINGTON, DC 20006
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.
338180-01002 5802
EXAMINER
KOLLIAS, ALEXANDER C
ART UNIT PAPER NUMBER
1767
NOTIFICATION DATE DELIVERY MODE
07/01/2019 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
dwpatents@dickinsonwright.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CLAUDE RINGOT
Appeal2017-007007
Application 14/115,840
Technology Center 1700
Before RAEL YNN P. GUEST, A VEL YN M. ROSS, 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 1-5 and 14--19. We have jurisdiction under
35 U.S.C. § 6(b).
We affirm.
1 We cite to the Substitute Specification ("Spec.") filed November 5, 2013;
Final Office Action ("Final Act.") dated September 15, 2016; Appellants'
Appeal Brief ("App. Br.") filed December 14, 2016; Examiner's Answer
("Ans.") dated February 15, 2017, and Appellants' Reply Brief ("Reply
Br.") filed March 29, 2017.
2 Appellants are the Applicants, COMP AGNIE GENERALE DES
ETABLISSEMENTS MICHELIN and MICHELIN RECHERCHE ET
TECHNIQUE S.A., which are identified in the Appeal Brief as the real
parties in interest (App. Br. 1 ).
Appeal2017-007007
Application 14/115,840
REJECTI0NS 3
I. Claims 1--4 and 19 stand rejected under 35 U.S.C. § I03(a) as
unpatentable over Vasseur. 4
II. Claims 1-5 and 14--18 stand rejected under 35 U.S.C. § I03(a) as
unpatentable over Lopitaux. 5
BACKGROUND
The subject matter on appeal relates to rubber compositions suited for
use in manufacture of tire treads. Spec. 1. Claim I-the sole independent
claim on appeal-reads:
1. A tire, a tread of the tire comprising a rubber composition
compnsmg:
from 3 5 to 65 phr of an emulsion styrene/butadiene
copolymer (E-SBR), wherein a content of trans-1,4-butadienyl
units is greater than 50% by weight, based on the total of the
butadienyl units in the E-SBR;
from 35 to 65 phr of a polybutadiene (BR);
optionally, from O to 30 phr of another diene elastomer,
wherein the diene elastomer is selected from the group
consisting of natural rubber (NR), synthetic polyisoprenes
(IRs), solution butadiene/styrene copolymers (SBRs),
butadiene/isoprene copolymers (BIRs ), isoprene/styrene
copolymers (SIRs ), and combinations thereof;
from 90 to 150 phr of a reinforcing inorganic filler,
wherein the reinforcing inorganic filler is silica;
a plasticizing system comprising:
3 The Examiner incorporates and maintains the rejections set forth in a prior
Non-Final Office action ("Non-Final Act.") dated May 23, 2016. Final Act.
2-3.
4 US 2004/0127617 Al, published July 1, 2004.
5 WO 2010/105984 Al, published September 23, 2010. Appellants do not
dispute the Examiner's reliance on US 2012/0065292 Al, published March
15, 2012, as an English language version of Lopitaux.
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Application 14/115,840
a hydrocarbon resin (A) exhibiting a Tg greater than
20°C in an amount between 10 and 60 phr, wherein the
hydrocarbon resin (A) is selected from the group consisting of
cyclopentadiene homopolymer or copolymer resins,
dicyclopentadiene homopolymer or copolymer resins, terpene
homopolymer or copolymer resins, Cs fraction homopolymer or
copolymer resins, C9 fraction homopolymer or copolymer
resins, a-methylstyrene homopolymer or copolymer resins, and
combinations thereof; and
a plasticizer (B) which is liquid at 20°C and exhibits a Tg
of less than -20°C in an amount between 10 and 60 phr selected
from the group consisting of liquid diene polymers, polyolefin
oils, naphthenic oils, paraffinic oils, DAE oils, MES oils,
TDAE oils, RAE oils, TRAE oils, SRAE oils, mineral oils,
ether plasticizers, ester plasticizers, phosphate plasticizers,
sulphonate plasticizers, and combinations thereof;
wherein the total amount of plasticizers, A+B, is between
50 and 100 phr.
Appeal Br. Exh. A (Claims Appendix).
OPINION
Rejection I
With regard to Rejection I, Appellants argue the claims as a group.
See App. Br. 4--11. In accordance with 37 C.F.R. § 4I.37(c)(l)(iv), we
select claim 1 as representative. Claims 2--4 and 19 stand or fall with
representative claim 1.
Relevant to Appellants' arguments on appeal, the Examiner finds that
Vasseur discloses a tire tread rubber composition having all of the recited
components within concentrations ranges that overlap the ranges recited in
claim 1. See Non-Final Act. 4--5. The Examiner also finds that Vasseur
discloses the same liquid plasticizer as is described in the Specification as
exhibiting a glass transition temperature within the recited range. Id. at 5.
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Application 14/115,840
Appellants argue that Vasseur does not recognize concentration of the
recited components as "result-effective operating parameter[ s] which could
contribute to the improved wet grip and wear resistance while maintaining
desirable rolling resistance." App. Br. 5. However, we do not read the
Examiner's rejection as involving optimization of component concentration.
Rather, the Examiner finds, and Appellants do not dispute, that Vasseur
discloses compositions formulated from the same components in
concentration ranges that overlap the recited concentration ranges. Thus, the
Examiner's obviousness determination is premised on Vasseur' s teaching of
a specific range of component concentrations that include, inter alia, obvious
concentrations within the recited ranges. When claimed ranges overlap or
lie inside ranges disclosed by the prior art for every component in a claim, a
prima facie case of obviousness is established. See In re Peterson, 315 F .3d
1325, 1329 (Fed. Cir. 2003); In re Geisler, 116 F.3d 1465, 1469-70 (Fed.
Cir. 1997). Indeed, the law is replete with cases in which the difference
between the claimed invention and the prior art is some range or other
variable within the claims. These cases have consistently held that the
Appellants must show that the particular range is critical, generally by
showing that the claimed range achieves unexpected results relative to the
prior art range. In re Woodruff, 919 F.2d 1575, 1578 (Fed. Cir. 1990). In
the instance case, Appellants have not made this showing.
Appellants also argue that the Examiner does not present evidence to
support the finding that Vasseur discloses a plasticizer having a glass
transition temperature less than -20°C. App. Br. 5. In response, the
Examiner points to Vasseur' s teaching of glycerol fatty acid triesters derived
from fatty acids comprising oleic acid (Ans. 8) (citing Vasseur ,r 67), and the
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Application 14/115,840
identification in the Specification of such glycerol triesters comprising oleic
acid as meeting the recited glass transition temperature (id. at 7) ( citing
Spec. 11 ). Appellants do not challenge the Examiner's evidence in the
Reply Brief. On this record, we are not persuaded of error in the Examiner's
finding that Vasseur teaches use of a plasticizer meeting the recited glass
transition characteristic.
Appellants argue that Vasseur does not teach a specific total
plasticizer concentration of 50-100 phr and a specific E-SBR concentration
of 35---65 phr, as recited in claim 1. App. Br. 6-7. These arguments do not
address the Examiner's finding that Vasseur discloses overlapping
concentration ranges for these components. Appellants further argue that
Vasseur does not teach a silica concentration within the recited range of 90-
150 phr. Id. at 6-7. The Examiner points to Vasseur's teachings at
paragraph 95 and claim 22 identifying use of silica at a concentration greater
than 70 phr, a range which encompasses and thus prima facie renders
obvious the claimed range. Ans. 13. Appellants do not challenge the
Examiner's evidence in the Reply Brief.
Finally, Appellants contend that evidence in the Specification and
Declaration demonstrate unexpected results achieved by the recited
composition. App. Br. 8-10. A showing of unexpected results generally
must be commensurate in scope with a claimed range. In re Harris, 409
F.3d 1339, 1344 (Fed. Cir. 2005). Appellants rely on measurements
reported in the Specification for a single inventive sample (C.3). App. Br. 9.
The Declaration points to the same sample described in the Specification. In
contrast, claim 1 encompasses numerous compositions characterized by
different component concentrations over substantially varied ranges.
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Application 14/115,840
Appellants have not demonstrated how that single composition serves as
persuasive evidence of an unexpected result over a range of formulations
that is commensurate with the claim.
For the foregoing reasons, Appellants' arguments do not persuade us
of reversible error. Rejection I is sustained.
Rejection II
With regard to Rejection II, Appellants again argue the claims as a
group. See App. Br. 11-17. We again select claim 1 as representative.
The Examiner finds that Lopitaux, like Vasseur, discloses a tire tread
rubber composition having all of the recited components within
concentrations ranges that overlap the ranges recited in claim 1. See Non-
Final Act. 7-9.
Appellants present essentially the same arguments as are presented
regarding the rejection over Vasseur-namely, that Lopitaux does not teach
the specifically recited component concentration ranges and does not
recognize such concentrations as result-effective variables. App. Br. 11-13.
These arguments are not persuasive for the same reasons give above in
connection with Rejection I.
Appellants also argue that Lopitaux does not suggest use of silica at a
concentration greater than 90 phr. Id. at 13-14. However, as Appellants
acknowledge (id. at 13), Lopitaux teaches silica at 20-200 phr, preferably
30-150 phr, both of which include concentrations greater than 90 phr.
Appellants argue that Lopitaux does not specify the content of trans-
1, 4-butadienyl units in the disclosed E-SBR. Id. at 14. The Examiner finds
the recited 1,4-butadienyl content is met or suggested by Lopitaux's teaching
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Application 14/115,840
ofE-SBR having a content oftrans-1,4-bonds of 15-75%. Ans. 40 (citing
Lopitaux ,r 25). Appellants neither challenge nor address the Examiner's
cited evidence in the Reply Brief.
Appellants' contention of unexpected results (App. Br. 16-17) is not
persuasive for the reasons set forth above in connection with Rejection I.
For the foregoing reasons, Appellants' arguments do not persuade us
of reversible error. Rejection II also is sustained.
DECISION
The Examiner's decision rejecting claims 1-5 and 14--19 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(a).
AFFIRMED
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