Ex Parte Rudolph et al

Board of Patent Appeals and Interferences

May 17, 2010

10795769 (B.P.A.I. May. 17, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte MICHAEL LEE RUDOLPH, GREGORY SCOTT BLACKMAN,
UDO DIETRICH BODE, VIOLETA LUNGU, and JOHN R. SHOCK
____________

Appeal 2010-000545
Application 10/795,769
Technology Center 1700
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Decided: May 17, 2010
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Before EDWARD C. KIMLIN, ADRIENE LEPIANE HANLON, and
CHUNG K. PAK, Administrative Patent Judges.

KIMLIN, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal from the final rejection of claims 1-74.1 We have
jurisdiction under 35 U.S.C. § 6(b).

1 Appellants’ statement at page 2 of the Brief referring to claims 16-74 is
considered harmless error. It is clear from the entirety of the Brief and the
Examiner’s Answer that the claims before us on Appeal are claims 1-74.
Appeal 2010-000545
Application 10/795,769

Claim 1 is illustrative:

1. A photosensitive element for use as a flexographic printing
plate comprising
a) a support,

b) at least one elastomeric photopolymerizable layer on the
support containing at least one elastomeric binder, at least one
ethylenically unsaturated compound photopolymerizable by
actinic radiation, and at least one photoinitiator or photoinitiator
system, the elastomeric photopolymerizable layer having a
surface opposite the support that defines a plane; and

c) a matted layer disposed above the surface of the
photopolymerizable layer comprising a polymeric binder and at
least one matting agent, the at least one matting agent capable of
forming depressions from the plane into the photopolymerizable
layer, and selected from the group consisting of

i) matting agents having a pore volume of ≥ 0.9 ml/g;

ii) matting agents having a BET surface of ≥ 150 m2/g;

iii) matting agents having an oil number of ≥ 150g/100g;

iv) matting agents having at least one crosslinkable
group; and

v) combinations thereof, wherein the matting agent is
present in an amount ≥ 10% by weight of the matted
layer.

The Examiner relies upon the following references as evidence of
obviousness (Ans. 3):
Frass 5,576,137 Nov. 19, 1996
Daems 6,551,759 B2 Apr. 22, 2003
De Voeght 6,994,026 B2 Feb. 07, 2006
Ueda EP 465034 Jun. 18, 1990
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Application 10/795,769

Horsten WO 94/11198 May 26, 1994

Appellants’ claimed invention is directed to a photosensitive element
for use as a flexographic printing plate. The element comprises a matted
layer disposed on the surface of the photopolymerizable layer. The matted
layer comprises matting agents having one of the five recited properties,
including matting agents having at least one crosslinkable group. According
to Appellants’ Specification, the claim language “matting agents having at
least one crosslinkable group” is intended to encompass photopolymerizable
and photocrosslinkable groups, preferably ethylenically unsaturated groups,
acryloyl groups and methacryloyl groups (Spec. 7).
The appealed claims stand rejected under 35 U.S.C. § 103(a) as
follows:
(a) claims 1-74 over Daems in view of Frass or Horsten,
(b) claims 1-74 over Ueda in view of Frass or Horsten, and
(c) claims 1-74 over De Voeght in view of Frass or Horsten.
Appellants do not separately argue any particular claim on appeal.
Accordingly, all the appealed claims stand or fall together with claim 1.
We have thoroughly reviewed each of Appellants’ arguments for
patentability. 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 § 103 in view of the applied prior art.
Accordingly, we will sustain the Examiner’s rejections for essentially those
reasons expressed in the Answer, and we add the following primarily for
emphasis.
There is no dispute that each of the primary references, Daems, Ueda
and Voeght, discloses, like Appellants, a photosensitive element that may be
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Application 10/795,769

used as a flexographic printing plate. There is also no dispute that Ueda
evidences what Appellants’ Specification acknowledges was known in the
art at the time of filing the present application, namely, the use of a matted
layer on the surface of a photopolymerizable layer. The principal argument
advanced by Appellants is that Daems, Frass, Horsten and Ueda neither
show nor suggest that particles in the matted layer are selected from those
having the group of properties recited in the appealed claims, or in the
claimed amount of ≥ 10% by weight of the matted layer that allows the
matting agent to form depressions in the photopolymerizable layer.
However, Appellants have not refuted the Examiner’s factual
determination that both Frass and Horsten disclose matting agents for
flexographic printing plates comprising polymeric particles having at least
one crosslinkable group as defined in Appellants’ Specification, i.e., Frass
teaches polymeric (meth) acrylates and Frass teaches polymeric particles
comprising crosslinkable acryloyl groups. The Examiner also has correctly
found that both Frass and Horsten teach that such polymeric particles can be
used in amounts greater than 10% by weight. Hence, Appellants have not
rebutted the Examiner’s legal conclusion that it would have been obvious for
one of ordinary skill in the art to employ the polymeric matting agents of
Frass and Horsten comprising crosslinkable groups in amounts greater than
10% by weight in covering the photopolymerizable layers of the three
primary references.
We also agree with the Examiner that Appellants have not established
that their silica matting agents having the claimed pore volume, BET surface
area and oil number are substantially different than the silica matting agents
that one of ordinary skill in the art would ordinarily employ in preparing a
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matted layer for a flexographic printing plate. Appellants have not made any
argument that matting agents within the scope of the appealed claims are
patentably different in any respect from those which one of ordinary skill in
the art would have selected from those commercially available.
Appellants refer to Specification Examples for demonstrating that
matting agent concentrations of less than 10% by weight are not capable of
forming depressions into the photopolymerizable layer. However,
Appellants have not provided the requisite analysis of the Specification data
which establishes that they have achieved any unexpected result by
preparing photosensitive elements within the scope of appealed claim 1. It is
not within the province of this Board to independently assess the probative
value of Specification data and interpret it in a light most favorable to the
Applicant. Moreover, Appellants have not addressed the Examiner’s finding
that Frass and Horsten teach the use of matting agents comprising
crosslinkable groups in amounts well in excess of the claimed 10% by
weight.
In conclusion, based on the foregoing and the reasons well stated by
the Examiner, the Examiner’s decision rejecting the appealed claims 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) (2008).
AFFIRMED

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