Ex Parte Silvernail et al

Patent Trial and Appeal Board

Sep 20, 2017

13875592 (P.T.A.B. Sep. 20, 2017)

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.
13/875,592 05/02/2013 Nathan J. Silvernail 10007147D1GC 8880
24959 7590
PPG Industries, Inc.
IP Law Group
One PPG Place
39th Floor
Pittsburgh, PA 15272
09/20/2017 EXAMINER
TAI, XIUYU
ART UNIT PAPER NUMBER
1759
MAIL DATE DELIVERY MODE
09/20/2017 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 PATENT TRIAL AND APPEAL BOARD
Ex parte NATHAN J. SILVERN AIL, STEVEN D. PERRINE,
MICHAEL J. PAWLIK, and RICHARD F. KARABIN
Appeal 2016-006058
Application 13/875,592
Technology Center 1700
Before CHUNG K. PAK, JEFFREY R. SNAY,
and MICHAEL G. McMANUS, Administrative Patent Judges.
McMANUS, Administrative Patent Judge.
DECISION ON APPEAL
The Examiner finally rejected claims 1—11 of Application 13/875,592
under 35 U.S.C. § 103(a) as obvious. Final Act. (April 20, 2015) 2—11.
Appellants1 seek reversal of these rejections pursuant to 35 U.S.C. § 134(a).
We have jurisdiction under 35 U.S.C. § 6.
For the reasons set forth below, we AFFIRM.
1 PPG Industries, Inc. is identified as the real party in interest. Appeal Br. 1.
Appeal 2016-006058
Application 13/875,592
BACKGROUND
The present application relates to methods for treating metal
substrates, including ferrous substrates, such as cold rolled steel and
electrogalvanized steel. Abst. The methods include three steps: (a)
contacting the substrate with a pretreatment composition including a group
IIIB or IVB metal and an electropositive metal, (b) contacting the substrate
with a cationic post rinse composition, and (c) electrophoretically depositing
a coating composition on the substrate. Id. The post rinse composition is
taught to improve the throwpower of the subsequently applied
electrodepositable coating composition. Id.
Claims 1,8, and 11 are representative of the pending claims and are
reproduced below:
1. A method for coating a substrate comprising:
(a) contacting the substrate with a pretreatment solution
comprising no more than 5000 ppm of a group IIIB and/or a
group IVB metal and no more than 500 ppm of an
electropositive metal, and optionally no more than 5000 ppm of
a reaction accelerator, wherein an amount of nitrate introduced
to the pretreatment solution results from the introduction of the
group IIIB metal and/or group IVB metal in its nitrate form, the
electropositive metal in its nitrate form, or a combination
thereof;
(b) contacting the substrate with an cationic resin-based
post rinse composition comprising a cationic resin; and
(c) electrophoretically depositing an anionic
electrodepositable coating composition onto the substrate.
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8. The method of Claim 1, wherein the throwpower of the
anionic electrodepositable coating composition is increased by
at least 6% compared to the throwpower of said anionic
electrodepositable coating composition applied to the substrate
without step (b).
11. The method of Claim 1, wherein a molar ratio of nitrate
to group IIIB and/or group IVB metal is no greater than 9.8:1.
Appeal Br. 15, 16 (Claims App.).
REJECTIONS
On appeal, the Examiner maintains the following rejections:
1. Claims 1—11 are rejected under 35 U.S.C. § 103(a) as obvious
over McMillen et al. (US 2009/0032144 Al, pub. Feb. 5, 2009) (hereinafter
“McMillen”) in view of Warburton et al. (US 2004/0079647 Al, pub. April
29, 2004) (hereinafter “Warburton”). Final Act. 3—6.
2. Claims 1—11 are further rejected under 35 U.S.C. § 103(a) as
obvious over McMillen in view of Warburton and Matsukawa et al. (US
2004/0163736 Al, pub. Aug. 26, 2004) (hereinafter “Matsukawa”). Id. at 6—
11.
DISCUSSION
Rejection 1. The Examiner rejected claims 1—11 as obvious over
McMillen in view of Warburton. Id. at 3—6. Appellants argue that such
rejection is in error as to all rejected claims on the following bases: 1) a
person of ordinary skill in the art would not have had reason to combine the
teachings of McMillen and Warburton and such person would have lacked a
reasonable expectation of success (Appeal Br. 6—7); 2) the Examiner did not
give due weight to Appellants’ objective evidence of nonobviousness {id. at
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7—10); and 3) Appellants have demonstrated unexpected and surprising
results (id. at 10-11). Appellants offer separate argument as to dependent
claims 8 and 11. Id. at 11—12.
Reason to Combine/Expectation of Success
Appellants argue that the rejection of claims 1—11 is erroneous
because a person of ordinary skill in the art would not have combined the
teachings of McMillen and Warburton as proposed by the Examiner. Id. at
6—7. Appellants assert that one of skill in the art would have expected that
contacting the pretreated substrate with a post rinse prior to
electrodeposition of the coating composition would have led to adverse
effects such as poor adhesion due to a non-electrophoretically applied resin
being coated between the pretreatment and the electrophoretically applied
resin (electrocoat). Id. at 6. That is, Appellants argue that a person of
ordinary skill in the art would not have had a reasonable expectation of
success.
Appellants cite the Silvemail Declaration2 in support of such
proposition. The Silvemail Declaration provides, in part, as follows:
[A]s one skilled in the art of pretreatments for metal substrates,
I would have expected that contacting the pretreated substrate
with a post-rinse prior to electrodepositing the coating
composition would have led to adverse effects such as poor
adhesion due to a non-electrophoretically applied resin being
coated between the pretreatment and the electrophoretically
applied resin (electrocoat). This, in turn, would lead to poor
corrosion performance. Additionally, a phenomenon known to
the industry as mapping, or visible variation in electrocoat
2 Declaration of named inventor Nathan Silvemail, Ph.D., filed February 19,
2015 (the "Silvemail Declaration").
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fillmbuld [sic], is expected because it is difficult to apply a
uniform non-electrophoretically resin to a pretreatment. The
uneven application of the resin layer is expected to lead to
uneven electrocoat application (mapping) due to variability in
surface conductivity.
Silvemail Declaration | 8.
“Ordinarily, the PTO accepts statements in declarations at face value.
However, like other judicial and quasi-judicial tribunals, the PTO need not
accept at face value a statement in a declaration when there is objective
evidence in the record for questioning the statement.” Ex parte Daniels, 40
USPQ2d 1394, 1409 n.14 (Bd. Pat. App. Int. 1996), reversed on other
grounds, In re Daniels, 144 F.3d 1452 (Fed. Cir. 1998). Further, the
submission of objective evidence of patentability does not mandate a
conclusion of patentability in and of itself. In re Chupp, 816 F.2d 643 (Fed.
Cir. 1987).
Here, the Examiner finds that Warburton teaches to use a post rinse
prior to electroplating. Final Act. 4 16. Warburton teaches as follows:
The process includes contacting the substrate surface first with
a solution comprising a Group IIIB and/or IVB metal-
containing compound and a nitrate, and then with a second
solution comprising a reaction product of an epoxy and an
amine, phosphorus or sulfur containing compound. A film­
forming resin is then deposited on the substrate and cured.
Substrates treated by the process of the present invention
demonstrate excellent corrosion resistance and are also
disclosed herein.
Warburton, Abstract (emphasis added); see also Warburton | 5. Warburton,
like McMillen, further teaches that this deposition step can be by
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electrocoating. Compare Id. 66, 82—84,3 with McMillen 148. Warburton
additionally teaches that the post rinse solution (termed “second
pretreatment solution” in Warburton) may include certain specific
compounds to “improve adhesion to the metal substrate.” Id. 122.
Accordingly, there is objective evidence in the record indicating that a post
rinse treatment step followed by an electrocoating step was known and
conveyed certain benefits. Thus, we find no error in the Examiner’s
determination that the foregoing teachings in Warburton are entitled to
greater weight than the cited statements in the Silvemail Declaration. See
Velanderv. Garner, 348 F.3d 1359, 1371 (Fed. Cir. 2003) (“In giving more
weight to prior publications than to subsequent conclusory statements by
experts, the Board acted well within [its] discretion.”); Yorkey v. Diab, 601
F.3d 1279, 1284 (Fed. Cir. 2010) (Board has discretion to give more weight
to one item of evidence over another “unless no reasonable trier of fact could
have done so”).
“Obviousness does not require absolute predictability of success. . . .
For obviousness under § 103, all that is required is a reasonable expectation
of success.” In re O’Farrell, 853 F.2d 894, 903-04 (Fed. Cir. 1988). Here,
Appellants have not shown error in the Examiner’s finding that a person of
ordinary skill in the art would have had a reasonable expectation of success
based on the collective teachings of McMillen and Warburton.
Accordingly, the Examiner’s finding that a person of ordinary skill in
the art would have had reason to combine the post rinse composition
3 The panel notes that Paragraphs 83 and 84 of Warburton (regarding
electrocoating) are substantially reproduced in the present application as
Paragraphs 67 and 68.
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treatment step of Warburton with the method of McMillen and would have
had a reasonable expectation of success in doing so has not been shown to
be erroneous.
Objective Evidence of Nonobviousness
Appellants further argue that the Examiner did not give due weight to
their objective evidence of nonobviousness. Appeal Br. 7—10. In support of
this argument, Appellants reiterate that the Silvemail Declaration indicates
that a person of ordinary skill in the art would not have expected that the
postrinse treatment did not impair corrosion resistance. Id. at 7. Appellants
further note that Warburton teaches three different coating methods
(solventbome coating, powder coating, and electrocoating) and argue that
“the general teachings of Warburton do not apply to each method of coating
disclosed therein.” Id. at 7.
Appellants review the examples of Warburton and argue that the
examples show improved corrosion performance for solventbome coatings
but are silent as to the performance of electrocoatings and powder coatings.
Id. at 8—9. As a result, Appellants infer that one should regard the teachings
of Warburton regarding corrosion resistance and improved adhesion as
limited to solventbome coatings. This, however, would unreasonably limit
Warburton.
Warburton discusses solventbome and powder coatings flflf 66—81)
and then states that “[alternatively, the treated substrate can be coated by
electrocoating.” Warburton | 82. Warburton further teaches that “an
adherent film of the electrodepositable composition will deposit in a
substantially continuous manner on the metal substrate.” Id. | 83.
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Appellants argue that, since Warburton teaches several coating
methods, a person of ordinary skill “would have understood that the general
disclosure in Warburton with respect to improved adhesion did not apply to
substrates coated according to all paint methods disclosed therein because of
the significant differences in depositing the respective coating compositions,
especially with respect to the distinctly unique process of electrocoating a
substrate.” Appeal Br. 9—10 (underscoring in original).
“It is well settled that a prior art reference is relevant for all that it
teaches to those of ordinary skill in the art.” In re Fritch, 972 F.2d 1260,
1264 (Fed. Cir. 1992). Appellants have not cited to any portion of
Warburton that teaches or suggests that electrocoating is undesirable or
somehow outside the scope of its disclosure. Appellants seek to attach
meaning to Warburton’s teaching of three different coating methods. The
fact that a reference “discloses a multitude of effective combinations does
not render any particular formulation less obvious.” See Merck & Co., Inc.
v. Biocraft Labs., Inc., 874 F.2d 804, 807 (Fed. Cir. 1989) (“[I]n a section
103 inquiry ‘. . . all disclosures of the prior art, including unpreferred
embodiments, must be considered.’”) (quoting In re Lamberti, 545 F.2d 747,
750 (CCPA 1976)). The fact that Warburton teaches that solventbome
coating, powder coating, and electrocoating are each suitable for its coating
composition indicates or implies that they are useful for providing
equivalent or similar advantages. See KSRInt’l Co. v. Teleflex Inc., 550
U.S. 398, 418 (2007) (in making an obviousness determination one “can
take account of the inferences and creative steps that a person of ordinary
skill in the art would employ”); In re Preda, 401 F.2d 825, 826 (CCPA
1968) (“[I]n considering the disclosure of a reference, it is proper to take
into account not only specific teachings of the reference but also the
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inferences which one skilled in the art would reasonably be expected to draw
therefrom.”)
Accordingly, Appellants have not shown that the Examiner
erroneously failed to give due consideration Appellants’ proffered evidence
of nonobviousness nor that such evidence would lead to a determination of
nonobviousness.
Unexpected and Surprising Results
For their third argument, Appellants contend that they have
demonstrated unexpected and surprising results. Appeal Br. 10-11.
“Although it is well settled that comparative test data showing an
unexpected result will rebut a prima facie case of obviousness, the
comparative testing must be between the claimed invention and the closest
prior art.” In re Fenn, 639 F.2d 762, 765 (CCPA 1981). Moreover, the
applicant’s showing of unexpected results must be commensurate in scope
with the claimed range. See In re Greenfield, 571 F.2d 1185, 1189 (CCPA
1978) (“Establishing that one (or a small number of) species gives
unexpected results is inadequate proof, for ‘it is the view of this court that
objective evidence of non-obviousness must be commensurate in scope with
the claims which the evidence is offered to support.’”); see also In re
Peterson, 315 F.3d 1325, 1330-31 (Fed. Cir. 2003). "[I]t is not enough to
show that results are obtained which differ from those obtained in the prior
art: that difference must be shown to be an unexpected difference." In re
Klosak, 455 F.2d at 1080.
Here, Appellants allege unexpected results as follows:
(9) ... it has been surprisingly discovered that "the
use of a post-rinse ... in conjunction with the use of an
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electropositive metal such as copper in the pretreatment
solution, does not adversely affect the corrosion resistance of
the formed panels" (emphasis added). This surprising result
was disclosed in the specification as originally filed, for
example, in paragraph [0040].
(10) Furthermore, the finding that the method recited in
independent Claim 1 provides corrosion resistance that is at
least comparable to methods using zinc phosphate pretreatment
systems should be considered surprising and unexpected and
satisfies a long felt need in the art because it provides an
alternative to phosphate containing pretreatment systems which
pose environmental burdens.
Silvemail Declaration H 9-10 (underscoring in original). Appellants further
rely on Paragraph 40 (no adverse effect from claimed method) and Table 2
of the Specification. Appeal Br. 10. Table 2 compares the corrosion
performance of a single pretreatment apparently within the scope of the
claims (Pretreatment 2) in combination with a single post rinse composition
(Post Rinse 3) that falls within the scope of claim 1,4
The data submitted by Appellants is not commensurate with the scope
of claim 1. The pretreatment limitation of claim 1 provides as follows:
(a) contacting the substrate with a pretreatment solution
comprising no more than 5000 ppm of a group IIIB and/or a
group IVB metal and no more than 500 ppm of an electro­
positive metal, and optionally no more than 5000 ppm of a
reaction accelerator, wherein an amount of nitrate introduced to
the pretreatment solution results from the introduction of the
group IIIB metal and/or group IVB metal in its nitrate form, the
electropositive metal in its nitrate form, or a combination
thereof;
4 Table 2 additionally includes combinations falling outside the scope of the
claims including prior art Pretreatment 1 (zinc phosphate), Post Rinses 1, 2,
and 4 (anionic resins) and Post Rinse 5 (deionized water). Spec. 1117.
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Appeal Brief 15 (Claims App.) (emphasis added).
During examination, claim terms must be given their broadest
reasonable constmction consistent with the Specification. In re ICON
Health and Fitness, Inc., 496 F.3d 1374, 1379 (Fed. Cir. 2007). Here, the
limitation, given its broadest reasonable interpretation, may encompass up to
5000 ppm of a group IIIB and/or a group IVB metal or none at all.
Similarly, the limitation may include 500 ppm of an electro-positive metal or
none at all. Likewise, the reaction accelerator term is explicitly made
optional. If present, the reaction accelerator must be limited to 5000 ppm.
Thus, limitation (a) of claim 1 is quite broad.
Appellants cite to Tables 1 and 2 in support of their allegation of
surprising results. Tables 1 and 2, however, show data for only a single
composition satisfying claim limitation (a): Pretreatment 2. Appellants
describe Pretreatment 2 only as “ZIRCOBOND®.” Spec. 1105. The
Specification does not describe the components or concentrations of
ZIRCOBOND®. Id. Corrosion testing for a single pretreatment solution,
even if considered surprising, is inadequate to show surprising results
throughout the range of the present limitation. Similarly, the tables show
data for only a single cationic resin post rinse — Post Rinse 3. Id. 105,
114, 117.
Accordingly, Appellants have failed to show unexpected results
commensurate with the scope of the claims at issue.
Claim 8
Appellants allege that claim 8 was rejected in error. Appeal Br. 11.
Claim 8 depends from claim 1 and further requires "wherein the throwpower
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of the anionic electrodepositable coating composition is increased by at least
6% compared to the throwpower of said anionic electrodepositable coating
composition applied to the substrate without step (b)." Appeal Brief 16
(Claims App.). Appellants argue that the rejection of claim 8 is erroneous
because the increased throwpower of the anionic electrodepositable coating
composition is a surprising result. Appeal Br. 11 (citing Spec. 1 38).
The Examiner has found that a person of ordinary skill in the art
would combine the teachings of McMillen and Warburton in order to
improve adhesion to the metal surface. Final Act. 4. "The fact that
appellant has recognized another advantage which would flow naturally
from following the suggestion of the prior art cannot be the basis for
patentability when the difference would otherwise have been obvious." Ex
Parte Obiaya, 227 USPQ 58, 60 (BPAI 1985). Here, the additional claimed
advantage is throwpower. Such advantage, however, flows naturally from
the combination of McMillen and Warburton as discussed, supra. See also
In re Kubin, 561 F.3d 1351, 1357 (Fed. Cir. 2009) (“Even if no prior art of
record explicitly discusses the [limitation], [applicants’] application itself
instruct that [the limitation] is not an additional requirement imposed by the
claims on the [claimed invention], but rather a property necessarily present
in [the claimed invention]”)
Moreover, "[i]t is well settled that unexpected results must be
established by factual evidence. Mere argument or conclusory statements in
the specification does not suffice." In re De Blauwe, 736 F.2d 699, 705
(Fed. Cir. 1984), quoted with approval in In re Soni, 54 F.3d 746, 750 (Fed.
Cir. 1995). Here, Appellants cite to a statement in the Specification that “[i]t
has been surprisingly discovered that the use of a post-rinse . . . increases the
throwpower of subsequently applied electrodeposition coatings as compared
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with the application of the electrodeposition coatings applied to the substrate
in the absence of the post-rinse.” Appeal Br. 11 (citing Spec. 138). Further,
Table 1 lists one example falling within the claims where use of a post-rinse
increases throwpower and one where it does not. See Spec. 1114, Table 1
(Rows 4 and 6). This is the sort of conclusory statement that the De Blauwe
court warns against.
Further, we note that Appellants do not adequately explain why any
showing in Table 1 is directed to a comparison between the claimed
invention and the closest prior art. In re Baxter Travenol Labs., 952 F.2d
388, 392 (Fed. Cir. 1991) (“[W]hen unexpected results are used as evidence
of nonobviousness, the results must be shown to be unexpected compared
with the closest prior art.”). Nor do Appellants explain why any surprising
results outweigh the strong prima facie case of obviousness based on the
above expected advantage of using the electrocoating and post-rinse
discussed in Warburton. Pfizer, Inc. v. Apotex, Inc., 480 F.3d 1348, 1372
(Fed.Cir.2007) (“evidence of unexpected results and other secondary
considerations will not necessarily overcome a strong prima facie showing
of obviousness.”); In re Nolan, 553 F.2d 1261, 1267 (CCPA 1977)
(“Considering all of the evidence, we are not persuaded that the evidence of
the unexpected higher luminous efficiency and lower peak discharge current
rebuts the strong showing of obviousness.”).
Accordingly, Appellants have not made any showing and/or statement
of nonobviousness regarding claim 8 which outweighs the evidence of
obviousness proffered by the Examiner.
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Claim 11
Appellants further allege that claim 11 was rejected in error. Appeal
Br. 11. Claim 11 depends from claim 1 and further provides “wherein a
molar ratio of nitrate to group IIIB and/or group IVB metal is no greater than
9.8:1.” Id. at 16 (Claims App.).
In rejecting claim 1, the Examiner relied upon McMillen as teaching
application of a pretreatment solution (step (a)) and Warburton as teaching
application of a post-rinse composition (step (b)). Final Act. 3^4. In
rejecting claim 11, the Examiner similarly relies upon McMillen as teaching
application of a pretreatment solution. The Examiner makes an unrebutted
finding that McMillen teaches a molar ratio of nitrate to group IIIB and/or
IVB metal which falls within the range specified in claim 11. Id. at 6.
Appellants argue that Warburton teaches to have a large excess of
nitrate compared to the Group IIIB/IVB metal(s). Appeal Br. 11. In
particular, Appellants allege that Warburton teaches a nitrate to Group
IIIB/IVB molar ratio of greater than 18:1 to less than 55:1. Id.
Warburton states “the compositions used in the present invention will
have a large excess of nitrate as compared to the Group IIIB/IVB metal(s).
A nitrate to Group IIIB/IVB molar ratio of greater than 18:1 to less than 55:1
is typically suitable. A particularly suitable molar ratio is about 29:1.”
Warburton 111 (emphasis added). Warburton further acknowledges that
other references teach to use lesser ratios. Id. Subsequently, Warburton
states that a certain example “demonstrates that a NO3 to Zr molar ratio of
about 29:1 generally gives better results overall than ratios of about 10:1
(750 ppm Zr to 5000 ppm NO3) or about 88:1.” Id. 1100.
A reference that “merely expresses a general preference for an
alternative invention but does not criticize, discredit, or otherwise discourage
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investigation into” the claimed invention does not teach away. Galderma
Labs., L.P. v. Tolmar, Inc., 737 F.3d 731, 738 (Fed. Cir. 2013). “A known
or obvious composition does not become patentable simply because it has
been described as somewhat inferior to some other product for the same
use.” In re Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994).
A statement that a higher ratio of nitrates “generally gives better
results” is more in the nature of a general preference rather than criticism of
a lower ratio. Accordingly, Appellants have not shown that Warburton
teaches away from the claimed ratio.
In view of the foregoing, Appellants have failed to show reversible
error by the Examiner in rejecting claims 1—11 as obvious over McMillen in
view of Warburton.
Rejection 2. The Examiner additionally rejected claims 1—11 as
obvious over McMillen in view of Warburton and Matsukawa. Final Act.
6—11. This rejection is largely similar to the first rejection but additionally
relies on Matsukawa as teaching a reaction accelerator. Id. at 8—9, 10-11.
Appellants argue that Matsukawa “recites a laundry list of possible
reaction accelerators.” Appeal Br. 12. Thus, Appellants seem to argue that
there would have been no reason to combine that particular reaction
accelerator with the teachings of the other references.
The fact that a reference “discloses a multitude of effective
combinations does not render any particular formulation less obvious.”
Merck & Co., Inc. v. Biocraft Labs., Inc., 874 F.2d at 807. Similarly, in the
context of anticipation, the Federal Circuit held stated that it “rejects the
notion that one of these ingredients cannot anticipate because it appears
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without special emphasis in a longer list.” Perricone v. Medicis Pharm.
Corp., 432 F.3d 1368, 1376 (Fed. Cir. 2005). Accordingly, we find this
argument unpersuasive.
Even were this not the case, the reaction accelerator limitation at issue
is an optional limitation which would not result in reversal on the present
record.
Appellants further argue that the combination of McMillen in view of
Warburton and Matsukawa fails for the reasons stated in regard to the first
rejection. We find such arguments not to be persuasive for the reasons set
forth above.
CONCLUSION
The rejections of claims 1—11 as obvious over McMillen in view of
Warburton are affirmed. The rejections of claims 1—11 as obvious over
McMillen in view of Warburton and Matsukawa are 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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