Ex Parte Silagy et al

Board of Patent Appeals and Interferences

Mar 7, 2011

10493126 (B.P.A.I. Mar. 7, 2011)

UNITED STATES PATENT AND TRADEMARK OFFICE
_________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte DAVID SILAGY,
GERARD REIGNIER,
and PHILIPPE BUSS
__________

Appeal 2009-012665
Application 10/493,126
Technology Center 1700
___________

Before ADRIENE LEPIANE HANLON, JEFFREY T. SMITH, and
LINDA M. GAUDETTE, Administrative Patent Judges.

HANLON, Administrative Patent Judge.

DECISION ON APPEAL1

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.
Appeal 2009-012665
Application 10/493,126

A. STATEMENT OF THE CASE
This is an appeal under 35 U.S.C. § 134 from an Examiner’s decision
finally rejecting claims 1, 2, 5, 7-14, 17, and 19. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.
The subject matter on appeal relates to a process for manufacturing a
film using a blow extrusion process. Referring to US 4,871,506 (Moulies),
the Appellants indicate that extruding semicrystalline fluid polymers is
tricky due to the forces which are applied to the extrudate. According to the
Appellants, these forces result in the formation of wrinkles in the film and an
uncontrolled film thickness distribution. Spec. 1:23-29. The process
disclosed in Moulies is said to overcome these problems and create
semicrystalline fluid polymer films having a uniform and controlled
thickness. Moulies 1:36-39.
According to the blow extrusion process of Moulies, a semicrystalline
fluid polymer, such as polyvinylidene fluoride (PVDF), is coextruded with
an incompatible thermoplastic resin. After cooling, the two coextruded
films are separated by conventional means, such as by winding the films
onto individual spools. Spec. 2:1-5; Moulies 2:26-35. The incompatible
thermoplastic resin serves as a support for the semicrystalline polymer
during extrusion and must have no affinity, especially no adhesion affinity,
for the semicrystalline polymer. Moulies 1:63-2:10.
The subject matter on appeal also relates to a blow extrusion process
wherein layers of fluoropolymer and incompatible thermoplastic polymer
(B) are coextruded. However, an additional layer of acrylic polymer (A) is
coextruded with these two layers wherein the layers of fluoropolymer and
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Application 10/493,126

acrylic polymer (A) are adjacent and adhere directly to each other. After
cooling the coextrudate, the layer of incompatible polymer (B) is separated
from a film consisting of layers of fluoropolymer and acrylic polymer (A).
The Appellants disclose that incompatible thermoplastic polymer (B)
must have no affinity, and in particular no adhesion affinity, with the
fluoropolymer and the polymer (A). Spec. 9:18-20.
Claim 1, reproduced below, is illustrative.
1. Process for manufacturing a film comprising at least one
layer of a thermoplastic fluoropolymers and at least one layer of
a polymer (A), in which blow extrusion process comprises the
steps of:

1) coextruding:

a) at least one layer of a thermoplastic
fluoropolymer;

b) at least one layer of a polymer (A), wherein
polymer (A) comprises an acrylic polymer:

c) at least one a layer of another thermoplastic
polymer (B) so that it forms a layer adjacent to the combination
of the layers extruded in a) and b),

wherein the thermoplastic polymer (B) being
incompatible with the fluoropolymer and the polymer (A) and
possesses an extrudate strength sufficient to support the layers
of fluoropolymer and polymer (A), and wherein said layers a)
and b) are adjacent and adhering directly to each other;

2) cooling the coextrudate; and

3) recovering by separation from the layer(s) of (B)
the film consisting of the layers of a) and b).

3
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Application 10/493,126

Br., Claims Appendix.2
The only Examiner’s rejection before us on appeal is the rejection of
claims 1, 2, 5, 7-14, 17, and 19 under 35 U.S.C. § 103(a) as unpatentable
over Moulies3 in view of Strassel4 and Baird.5,6
B. DISCUSSION
There is no dispute that the sole difference between the process
recited in claim 1 and the process disclosed in Moulies is that Moulies does
not disclose that a layer of an acrylic polymer is coextruded with the layers
of fluoropolymer and incompatible polymer. Ans. 4.7
The Examiner finds that Strassel discloses a method of coextruding a
bilayer film comprising a layer of PVDF and a layer of acrylic polymer. The
Examiner concludes that it would have been obvious to one of ordinary skill
in the art to modify the process of Moulies by coextruding a layer of acrylic
polymer adjacent to the PVDF layer in view of the teachings of Strassel.
Ans. 4.
The Appellants argue that the combination of references proposed by
the Examiner teaches away from the claims on appeal by requiring adhesion
rather than separation. In particular, the Appellants argue:

2 Appeal Brief dated January 5, 2009.
3 US 4,871,506 issued October 3, 1989.
4 US 5,242,976 issued September 7, 1993.
5 US 3,821,182 issued June 28, 1974.
6 The Appellants state, “The rejection of claim 17 is not being Appealed as it
is based on a secondary reference, and requires the support of claim 1.” Br.
2. However, the Appellants subsequently discuss claim 17 in the
“Arguments” section of the Appeal Brief. Br. 4. We interpret the
Appellants’ statement to mean that the patentability of claim 17 stands or
falls with the patentability of claim 1.
7 Examiner’s Answer dated April 1, 2009.
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Application 10/493,126

The acrylic of Strassel is an adhesive. The acrylic adhesive of
Strassel is meant to form a bond between a fluoropolymer and
an incompatible polymer. If the Strassel glue were used in a
blow-extrusion process, it would be impossible to separate the
film from the incompatible polymer as the final step – and thus
the Strassel glue would make the Moulies art unsatisfactory for
its intended use to make a separable film.

Br. 4.
The Examiner recognizes that “the acrylic of Strassel acts as an
adhesive between an incompatible material and a fluoropolymer.” Ans. 7.
Nonetheless, the Examiner directs our attention to the following coextrusion
configuration resulting from the combined teachings of Moulies and
Strassel:

Ans. 9.
The Examiner explains:
In this embodiment, which . . . meets the claims, . . . the
combination makes clear that the incompatible layer of Strassel
and the incompatible layer of Moulies would have been
understood to be referring to layers that perform different
functions. As such, the examiner submits one having ordinary
skill would have continued to employ an incompatible film
from Moulies (i.e. polymer layer B such as polyethylene) in
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Application 10/493,126

direct contact with the fluoropolymer of Moulies even in view
of the combination with Strassel that now adds a layer of
acrylic (i.e. polymer layer A) to the layer of fluoropolymer
while coextruding an incompatible material.[8]

Ans. 9. The Appellants do not explain why the Examiner’s position is
erroneous or argue that the proposed combination does not satisfy the
limitations of claim 1.
Our review of the record establishes that the Examiner’s position is
supported by a preponderance of the evidence. That is, based on the record
before us, we conclude that one of ordinary skill in the art would have
combined the teachings of Moulies and Strassel as proposed by the
Examiner to take advantage of the different functions of the incompatible
layers of Moulies and Strassel, i.e., support during coextrusion and
protection to the film surface. Therefore, the Examiner’s § 103(a) rejection
will be affirmed.
C. DECISION
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. § 1.136(a).
AFFIRMED

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8 Strassel discloses that this incompatible polymer may be a grafted acrylic
styrene-acrylonitrile-elastomer copolymer. Strassel 5:37-38.
6