Ex Parte Rivett et alDownload PDFPatent Trial and Appeal BoardDec 20, 201613038797 (P.T.A.B. Dec. 20, 2016) Copy Citation United States Patent and Trademark Office 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. 13/038,797 03/02/2011 Janet W. Rivett D-44419-01 9531 28236 7590 12/22/2016 T AW nF.PARTMF.NT EXAMINER SEALED AIR CORPORATION KHATRI, PRASHANT J P.O. BOX 464 DUNCAN, SC 29334 ART UNIT PAPER NUMBER 1783 NOTIFICATION DATE DELIVERY MODE 12/22/2016 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): lisa, brown @ sealedair.com brandie. sullivan @ sealedair. com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte JANET W. RIVETT, RICHARD M. DAYRIT, SCOTT W. BECKWITH, DREW SPEER, and CYNTHIA L. EBNER Appeal 2015-005118 Application 13/038,797 Technology Center 1700 Before MICHAEL P. COLAIANNI, DONNA M. PRAISS, and CHRISTOPHER L. OGDEN, Administrative Patent Judges. COLAIANNI, Administrative Patent Judge. DECISION ON APPEAL Appeal 2015-005118 Application 13/038,797 Appellants appeal under 35 U.S.C. § 134 the final rejection of claims 1, 3, and 6. We have jurisdiction over the appeal pursuant to 35 U.S.C. § 6(b). We AFFIRM. Appellants’ invention is directed to a multilayer oxygen barrier film comprising a bulk layer and a microlayer section comprising a plurality of microlayers (Spec. 2: 17—19). Claim 1 is illustrative: A multilayer active oxygen barrier film comprising: a) a bulk layer; and b) a microlayer section comprising a plurality of microlayers, wherein at least one of the plurality of microlayers comprises an active oxygen barrier composition, wherein the microlayer section comprises at least one microlayer comprising a passive oxygen barrier composition; and wherein the microlayer section comprises between 10 and 1,000 microlayers, and wherein at least 20% of the microlayers comprise the active oxygen barrier composition. Appellants appeal the following rejection: Claims 1,3, and 6 are rejected under 35 U.S.C. § 103(a) as unpatentable over Beckwith et al. (US 2009/0061061 Al, published Mar. 5, 2009) in view of DeLassus (Barrier Polymers, Kirk-Othmer Encyclopedia of Chemical Technology 375^107 (2002)). Appellants’ arguments focus on claim 1 only (Br. 2—7). Claims 3 and 6 will stand or fall with our analysis of claim 1. 2 Appeal 2015-005118 Application 13/038,797 FINDINGS OF FACT & ANALYSIS The Examiner finds that Beckwith teaches all the limitations of claim 1, except for the number microlayers being between 10 and 1000 (Ans. 2—3). The Examiner finds that DeLassus discloses that the permeability is the sum of the layer thickness/permeability quotient of the layer and further, the thickness of the overall layer when increased reduces permeability {id. at 3). The Examiner concludes that it would have been obvious to have 10 or more layers in the laminate of Beckwith in order to provide improved oxygen impermeability {id.). Appellants argue that Beckwith and DeLassus fail to teach forming microlayers (Br. 2—3). Appellants contend that the disclosure on page 18 of the Specification establishes a meaning of microlayers where the microlayers are thinner than the bulk layers. Id. Appellants’ disclosure on page 18 of the Specification does not constitute a definition of microlayers. Rather, the Specification at page 18 discloses that “generally” the thicknesses of the microlayers will be less than the thicknesses of the bulk layers. Moreover, the microlayers are described as being “any suitable thickness” (Spec. 18). The Examiner finds that the ratio of microlayer thickness to bulk layer thickness may be “about 1:1.1,” which includes a 1:1 ratio (Ans. 4). In other words, the Specification discloses the bulk layer and microlayer may both have the same thickness. The Examiner reasonably finds that the claimed microlayers includes Beckwith’s layer thicknesses for the oxygen scavenging layers of the film {id. at 2). Accordingly, Appellants’ arguments regarding a particular meaning of microlayers is not persuasive. 3 Appeal 2015-005118 Application 13/038,797 Appellants argue that Beckwith and DeLassus would not have suggested ten or more layers in a multilayer film (Br. 3). Beckwith, however, teaches that there may be four active and passive barrier layers (Representative Example 7,1 87). The Examiner finds that DeLassus teaches that thicker layers impart better oxygen impermeability to a barrier layer (Ans. 3). The Examiner concludes that it would have been obvious to increase the number of barrier layers to 10 layers or more in order to improve the oxygen impermeability of the film. Id. Appellants’ argument does not specifically address or otherwise show error with the Examiner’s findings and conclusion regarding what the teachings of Beckwith and DeLassus would have suggested to the ordinarily skilled artisan. Appellants argue that the data in the Specification establishes unexpected results (Br. 3—8). Appellants contend that comparative examples 1 to 4, 5, and 6 and examples 7, 8, 13, 15, and 17 all have similar total barrier layer thicknesses {id. at 3—4). Appellants argue that Tables 7 and 8 on pages 45 and 46 of the Specification show that the oxygen transmission rate (OTR) of inventive examples 13 and 15 was significantly improved over the films of comparative examples 1 and 2 (Br. 4—5). Appellants contend that Table 9 on page 47 of the Specification shows that microlayered examples 13, 14, and 15 showed substantially improved barrier performance despite having less oxygen scavenger material present {id. at 5). Appellants contend that their evidence in the Specification is commensurate in scope with the claimed invention {id. at 5—6). Appellants contend that the Specification includes examples falling within the description of passive oxygen barrier and active oxygen barrier {id. at 6). 4 Appeal 2015-005118 Application 13/038,797 Appellants’ claim 1 is broad in that it only recites “a bulk layer” and “a plurality of microlayers wherein at least one of the plurality of microlayers comprises an active oxygen barrier composition ... at least one microlayer comprising a passive oxygen barrier composition.” Claim 1 includes any and all bulk materials or active or passive oxygen barriers. Appellants’ examples relied upon to show unexpected results are limited to only a few particular materials (Spec. 34—36). Although Appellants are correct that they do not need to test every embodiment within the scope of the claims, citing In re Kao, 639 F.3d 1057 (Fed. Cir. 2011), the court in Kao held that there must be adequate basis to support the conclusion that other embodiments falling within the claim behave in the same manner. Kao, 639 F.3d at 1068. Appellants make no allegation that the evidence is adequate to support that embodiments outside the disclosed examples would behave in the same manner (Br. 7). Appellants’ evidence is not commensurate in scope with the claims. On this record, we affirm the Examiner’s § 103(a) rejection over Beckwith in view of DeLassus. DECISION The Examiner’s decision 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). ORDER AFFIRMED 5 Copy with citationCopy as parenthetical citation