09946960 (B.P.A.I. Oct. 5, 2011)

Ex Parte Savic

Board of Patent Appeals and InterferencesOct 5, 2011

09946960 (B.P.A.I. Oct. 5, 2011)

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. 09/946,960 09/06/2001 Zoran Savic 085449-0113 3875 22428 7590 10/05/2011 FOLEY AND LARDNER LLP SUITE 500 3000 K STREET NW WASHINGTON, DC 20007 EXAMINER PATTERSON, MARC A ART UNIT PAPER NUMBER 1782 MAIL DATE DELIVERY MODE 10/05/2011 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 BOARD OF PATENT APPEALS AND INTERFERENCES ____________ Ex parte ZORAN SAVIC ____________ Appeal 2010-010329 Application 09/946,960 Technology Center 1700 ____________ Before CHARLES F. WARREN, PETER F. KRATZ, and LINDA M. GAUDETTE, Administrative Patent Judges. GAUDETTE, Administrative Patent Judge. Appeal 2010-010329 Application 09/946,960 2 DECISION ON APPEAL Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s decision1 finally rejecting claims 2-4, 6, 8, 10, and 15-21, the only claims pending in the Application.2 We have jurisdiction under 35 U.S.C. § 6(b). An oral hearing was held on September 14, 2011. We REVERSE. The invention relates to a multilayer seamless tubular film for receiving pasty fillings. . . . [T]he tubular film comprises three layers: (l) an outer polymer layer is based on aliphatic or partially aromatic polyamides or copolyamides or blends thereof; (2) a middle polymer layer based on ethylene alkyl acrylate copolymers; and (3) an inner layer that comprising aliphatic or partially aromatic polyamides or copolyamides or blends and carboxyl containing ethylene copolymers as well as other polymers. (App. Br. 8.) Independent claim 16 is representative of the invention and is reproduced below from the Claims Appendix to the Appeal Brief: 16. A multilayer seamless tubular film comprising -an outer polymer layer in which the polymer comprises 70 to 100% by weight of aliphatic or partially aromatic polyamides or copolyamides or blends thereof, and 0 to 30% by weight of other polymers, -a middle polymer layer which consists essentially of 50 to 80% by weight of ethylene-methyl acrylate copolymers, wherein the methyl acrylate content is 5 to 30% by weight, and 20 to 50% by weight of ethylene-maleic anhydride copolymers, which contain 0.15 to 5% by weight of maleic anhydride units, and 1 Final Office Action mailed Nov. 12, 2008; Examiner’s Answer mailed Dec. 8, 2009 (“Ans.”) 2 (withdrawing the final rejection of claims 19-21 under 35 U.S.C. §112, first paragraph). 2 Appeal Brief filed Aug. 12, 2009 (“App. Br.”). Appeal 2010-010329 Application 09/946,960 3 -an inner polymer layer in which the polymer comprises 40 to 100% by weight of aliphatic or partially aromatic polyamides or copolyamides or blends thereof, 0 to 60% by weight of carboxyl-containing ethylene copolymers or their salts and 0 to 20% by weight of other polymers, the total amount of which gives 100% by weight. Appellant requests review of the following grounds of rejection (App. Br. 11): 1. claims 15 and 16 under 35 U.S.C. § 103(a) as unpatentable over Vicik3 (Ans. 3-4); and 2. claims 2-4, 6, 8, 10, and 17-21 under 35 U.S.C. §103(a) as unpatentable over Vicik in view of Beckwith4 (Ans. 4-7)5. Appellant raises several arguments in support of patentability. We discuss only the following issue, which we identify as dispositive of the appeal as to all appealed claims: Did the Examiner reversibly err in finding that Vicik teaches or suggests a multilayer seamless tubular film comprising a middle polymer layer consisting essentially of 20 to 50% by weight of ethylene-maleic anhydride copolymers as recited in the independent claims (claims 16 and 18)? The Examiner relies on the following disclosure in determining that Vicik suggests a middle polymer layer as claimed: [The] film has . . . a core layer comprising at least 60% by weight of one or more polyolefins such as low density polyethylene (LDPE), high density polyethylene (HDPE), linear low density polyethylene (LLDPE), very low density polyethylene (VLDPE), polypropylene, copolymers of ethylene with at least one C3-C10 α-olefin, and ethylene 3 US 5,549,943, issued Aug. 27, 1996. 4 WO 99/33653, pub. Jul. 08, 1999. 5 As pointed out by Appellant (App. Br. 15), the Examiner appears to rely solely on Vicik in rejecting claims 3, 4, 8, 10, and 17-21. Appeal 2010-010329 Application 09/946,960 4 polymers having at least one functional moiety selected from the group of esters, anhydrides, and carboxylic acids including copolymers of ethylene with a vinyl ester, copolymers of ethylene with an alkyl acrylate, and blends of such polyolefins. [(Col. 6, l. 65 - col. 7, l. 9.)] (Ans. 3-4 and 8.) Appellant argues Vicik’s polymers having anhydride functionality structurally differ from the claimed ethylene maleic anhydride polymers. (App. Br. 13-14.) Appellant asserts, more specifically, that the claimed ethylene maleic anhydride copolymer is obtained by a reaction between a copolymer such as ethylene vinyl acetate and maleic anhydride, while Vicik’s polymers are obtained by modifying ethylene vinyl acetate copolymers with an anhydride, resulting, e.g., in an ester. (Id. (citing Vicik col. 15, ll. 24-27 (“Suitable polymers of ethylene having an anhydride functionality include copolymers of ethylene and a vinyl ester such as vinyl acetate wherein the copolymers are modified with an anhydride functionality such as maleic anhydride.”)); see also, Rep. Br. 2-3 (illustrating the structural difference between the claimed copolymers and Vicik polymers).) In response to Appellant’s argument, the Examiner directs us to Vicik col. 7, ll. 5-7 (see supra pp. 3-4) and col. 12, ll. 11-12 and 15-17. (Ans. 8.) We are in agreement with Appellant that the relied-upon disclosure in Vicik fails to demonstrate that a polyolefin with an “anhydride functional moiety,” as disclosed in Vicik, is an ethylene maleic anhydride copolymer as claimed. (See Rep. Br. 2-3.) In sum, we determine a preponderance of the evidence supports Appellant’s position that Vicik fails to teach or suggest a multilayer seamless tubular film comprising a middle polymer layer consisting essentially of 20 to 50% by weight of ethylene-maleic anhydride copolymers as recited in independent claims 16 and Appeal 2010-010329 Application 09/946,960 5 18. Accordingly, we reverse the Examiner’s decision to reject appealed claims 2- 4, 6, 8, 10, and 15-21. REVERSED ssl