10579266 (P.T.A.B. May. 29, 2013)

Ex Parte Smits

Patent Trial and Appeal BoardMay 29, 2013

10579266 (P.T.A.B. May. 29, 2013)

UNITED STATES PATENT AND TRADEMARKOFFICE 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. 10/579,266 03/05/2007 Valerie Smits F-889 (31223.0121) 1309 25264 7590 05/29/2013 FINA TECHNOLOGY INC PO BOX 674412 HOUSTON, TX 77267-4412 EXAMINER ROGERS, MARTIN K ART UNIT PAPER NUMBER 1747 MAIL DATE DELIVERY MODE 05/29/2013 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 VALERIE SMITS ________________ Appeal 2011-01174 Application 10/579,266 Technology Center 1700 ________________ Before RICHARD SCHAFER, TERRY J. OWENS, and MICHAEL P. COLAIANNI, Administrative Patent Judges. OWENS, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-011174 Application 10/579,266 2 STATEMENT OF THE CASE The Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s rejection of claims 11-19 and 22, which are all of the pending claims. We have jurisdiction under 35 U.S.C. § 6(b). The Invention The Appellant claims a method for making a hollow article such as a bottle. Claim 11 is illustrative: 11. A method for the production of a hollow article comprising: (a) providing an isotatic propylene polymer having a melt flow index MFI within the range of 2-10 grams per 10 minutes produced by the polymerization of propylene in the presence of a metallocene catalyst system having C1 or C2 symmetry; (b) subjecting said isotatic propylene polymer to an injection-stretch- blow molding operation to mold said polymer into a hollow article having an exterior wall formed of said polymer; and (c ) recovering said article from said injection-stretch-blow molding operation, wherein the article is produced by the operation of said injection- stretch-blow molding operation with a cycle time which is shorter than the cycle time achieved by the injection-stretch-blow molding of a corresponding propylene polymer produced by the polymerization of propylene in the presence of Ziegler Natta catalyst and the article produced by the injection-stretch-blow molding operation has a rigidity which is greater than the rigidity of a corresponding propylene polymer produced by the polymerization of propylene in the presence of a Ziegler Natta catalyst. The References Dickson US 4,079,104 Mar. 14, 1978 Valyi US 4,308,086 Dec. 29, 1981 Oh US 6,506,919 B1 Jan. 14, 2003 Isao (as translated) JP 2002-275330 A Sep. 25, 2002 Appeal 2011-011174 Application 10/579,266 3 The Rejections The claims stand rejected as follows: claims 11-19 under 35 U.S.C. § 102(b) or, in the alternative, under 35 U.S.C. § 103 over Isao, with Oh used to show inherency, and claim 22 under 35 U.S.C. § 103 over Isao in view of Valyi and Dickson. OPINION We affirm the rejections. The Appellant argues claims 11-19 as a group and, although additional references are applied in the rejection of claim 22, the Appellant does not provide a substantive argument as to the separate patentability of that claim (Br. 3-5). We therefore limit our discussion to one claim, i.e., claim 11, which is the sole independent claim. See 37 C.F.R. § 41.37(c)(1)(vii) (2007). Isao discloses a “polypropylene container obtained by stretch blow molding” (¶ 0001) “and excelling in the balance of transparency and rigidity” (¶ 0005). The polypropylene resin used to make the container 1) is a crystalline random copolymer of propylene and, in an amount of 0.5- 5 wt%, another olefin, preferably ethylene, 1 2) has a melt flow rate of 0.5- 50 g per 10 min, and 3) is made using a metallocene catalyst (¶¶ 0006-7, 00011-12, 0014, 0016). The illustrated metallocene catalyst formulas show C1 symmetry (¶¶ 0008, 0017, 0021, 0030, 0044). Exemplified polypropylene resins having melt flow rates of 12 and 30 g per 10 min are 95% isotactic (¶¶ 0096-97). 1 The Appellant’s isotactic polypropylene polymer can be a propylene homopolymer or a random copolymer of propylene and up to 10 wt% ethylene (Spec. 2:24-28). Appeal 2011-011174 Application 10/579,266 4 Oh discloses that “[i]n the case of the propylene polymerization [using a metallocene catalyst], the tacticity of the polymer can be controlled according to the molecular symmetry of catalyst” (col. 1, ll. 53-55). The Appellant agrees “that the catalyst being used controls the tacticity of the polymer” (Br. 3). The Appellant argues that different catalysts can produce polymers having the same melt flow rate but different tacticities (Br. 4). The Appellant does not provide evidence, or even argument, that the Appellant’s metallocene catalyst differs from Isao’s metallocene catalyst. Thus, it appears that, like the Appellant’s metallocene catalyst, Isao’s metallocene catalyst produces an isotactic propylene polymer. That is evinced by Isao’s disclosure of isotactic propylene polymers having melt flow rates of 12 and 30 /10 min (¶¶ 0096-97). Accordingly, it appears that Isao’s polymers having melt flow rates within the Appellant’s recited 2- 10 g/10 min range also are isotactic. Those polymers are inseparable from their properties. See In re Papesch, 315 F.2d 381, 391 (CCPA 1963) (“From the standpoint of patent law, a compound and all of its properties are inseparable; they are one and the same thing”). Hence, those polymers appear to have the Appellant’s recited cycle time and rigidity properties. “[W]hen the PTO shows sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not.” In re Spada, 911 F.2d 705, 708 (Fed. Cir. 1990). The Appellant has not carried that burden. With respect to the rejection under 35 U.S.C. § 103 the Appellant does not provide a substantive argument as to why it would have been Appeal 2011-011174 Application 10/579,266 5 unobvious to one of ordinary skill in the art, in view of Isao, to make an isotactic propylene polymer having a melt flow rate within the Appellant’s recited range (Br. 5). Hence, the Appellant has not shown reversible error in the rejection under 35 U.S.C. § 102(b) or § 103. DECISION/ORDER The rejections of claims 11-19 under 35 U.S.C. § 102(b) and § 103 over Isao, with Oh used to show inherency, and claim 22 under 35 U.S.C. § 103 over Isao in view of Valyi and Dickson are affirmed. It is ordered that 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). AFFIRMED sld