Ex Parte Soddemann et alDownload PDFPatent Trial and Appeal BoardSep 22, 201612640108 (P.T.A.B. Sep. 22, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 12/640,108 12/17/2009 34947 7590 09/26/2016 LANXESS CORPORATION 111 RIDC PARK WEST DRIVE PITTSBURGH, PA 15275-1112 FIRST NAMED INVENTOR Matthias Soddemann 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 ATTORNEY DOCKET NO. CONFIRMATION NO. POOl 00372 8141 EXAMINER WOODWARD, ANA LUCRECIA ART UNIT PAPER NUMBER 1765 NOTIFICATION DATE DELIVERY MODE 09/26/2016 ELECTRONIC 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. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address( es): ipmail@lanxess.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte MATTHIAS SODDEMANN, CHRISTOPHER ONG, and SVEN BRANDAU Appeal2015-002126 Application 12/640, 108 Technology Center 1700 Before ROMULO H. DELMENDO, JEFFREY R. SNAY, and LILAN REN, Administrative Patent Judges. SNAY, Administrative Patent Judge. DECISION ON APPEAL 1 Appellants2 appeal under 35 U.S.C. § 134(a) from the Examiner's decision rejecting claims 1, 2, 8-16, and 18-27.3 We have jurisdiction under 35 U.S.C. § 6(b). We affirm. 1 We cite to the Specification ("Spec.") filed Dec. 17, 2009; Final Office Action ("Final Act.") mailed Nov. 29, 2013; Examiner's Answer ("Ans."); and Appellants' Appeal Brief ("Br."), as supplemented on Aug. 6, 2014. 2 Appellants identify LANXESS Deutschland GmbH as the real party in interest. Br. 3. 3 Pending claim 17 was withdrawn from consideration and is not before us. Final Act. 2. Appeal2015-002126 Application 12/640, 108 BACKGROUND The subject matter involved in this appeal relates to "a vulcanizable polymer composition, a polymer vulcanizate obtained from such polymer composition and to a process for the production thereof." Spec. 1. Briefly, Appellants disclose and claim a polymer composition comprising (i) a specified copolymer component; (ii) a polyamine crosslinking agent; (iii) a crosslinking accelerator containing a specified polycyclic aminic base; and (iv) an alkali metal salt. Id. at 4. Claim 1 illustrates the subject matter on appeal and is reproduced from the Claims Appendix of the Appeal Brief as follows4 : 1. A vulcanizable polymer composition comprising (i) a polymer having a main polymer chain with monomer repeating units derived from (ia) at least 25 % by weight to 99.9 % by weight, based on the polymer, of at least one diene monomer, (ib) 0 to 74.9 % by weight, based on the polymer, of at least one a,B-ethylenically unsaturated nitrile monomer, and (ic) 0.1 to 20% by weight, based on the polymer of at least one a,B-ethylenically unsaturated dicarboxylic acid monoester monomer, a,B-ethylenically unsaturated dicarboxylic acid monomer, a,B-ethylenically unsaturated dicarboxylic acid anhydride monomer or a,B-ethylenically unsaturated dicarboxylic acid diester as a third monomer, wherein the sum of all monomer units mentioned under (ia), (ib) and (ic) is 100% by weight; (ii) 0.2 to 20 parts by weight per 100 parts by weight of the polymer component (i) of at least one polyamine crosslinking agent, 4 Some paragraphing added. 2 Appeal2015-002126 Application 12/640, 108 (iii) at least one polycyclic aminic base, selected from the group consisting of l,8-diazabicyclo[5.4.0]undec-7-ene (DBU), 1,5-diazabicyclo[ 4.3 .0]-5-nonene (DBN), l,4-diazabicyclo[2.2.2]octane (DABCO), l,5,7-triazabicyclo[4.4.0]-dec-5-ene (TBD), 7-methyl-1,5, 7- triazabicyclo[ 4.4.0]dec-5-ene (MTBD) and its derivatives and (iv) 0.5 to 30 parts by weight per 100 parts by weight of the polymer component (i) of at least one sodium salt. REJECTIONS The Examiner maintained the following grounds of rejection5 : I. Claims 1, 2, 8-16, and 18-27 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Odagawa. 6 II. Claims 1, 2, 8-16, and 18-27 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Ikeda7 and Odagawa. DISCUSSION I With regard to Rejection I, Appellants argue the claims as a group. Br. 9-17. In accordance with 37 C.F.R. § 41.37(c)(l)(iv), we select claim 1 as representative, and decide the propriety of Rejection I based on the representative claim alone. 5 Final Act. 2-6. Ans. 2-6. 6 US 2008/0107905 Al, published May 8, 2008 ("Odagawa"). 7 WO 2009/096518 Al, published Aug. 6, 2009 ("Ikeda"), as translated in US 2010/0256294 Al, published Oct. 7, 2010. 3 Appeal2015-002126 Application 12/640, 108 Appellants do not dispute the Examiner's finding that Odagawa discloses a polymer composition which includes the recited polymer component (i) and polyamine crosslinking agent (ii). Compare Final Act. 2- 3 with Br. 9-17. Neither do Appellants dispute the Examiner's finding that Odagawa also provides a crosslinking accelerator. Compare Final Act. 3 with Br. 9-17. Odagawa identifies l,8-diazabicyclo[5.4.0]undec-7-ene (DBU) and sodium salt as suitable crosslinking accelerators. Final Act. 3 (citing Odagawa ii 85). The Examiner reasoned that it would have been obvious to combine DBU and sodium salt as accelerators in Odagawa. Final Act. 3--4 (citing In re Kerkhoven, 626 F.2d 846, 850 (CCPA 1980)). Appellants point to Odagawa's omission of the phrase, "and combinations thereof," in connection with the listed crosslinking accelerators, and argue on that basis that Odagawa fails to teach combined accelerators. Br. 11. We find Appellants' argument unpersuasive. The fact that Odagawa does not expressly disclose combinations of the listed accelerators does not refute the Examiner's finding that it would have been obvious to combine Odagawa's separately-listed accelerators to form a third accelerator composition useful for the same purpose. See Kerkhoven, 626 F.2d at 850 (stating that it is prima facie obvious to combine two different materials useful for the same purpose to form a third material which is to be used for the very same purpose). Odagawa's teaching that "[t]he cross- linking accelerator is not limited," Odagawa ii 84, is consistent with the Examiner's finding. Appellants additionally argue that, even if one of ordinary skill were to combine DBU and sodium salt in the manner expressed in the Rejection, Odagawa still would not lead to the recited concentration of sodium salt. Br. 4 Appeal2015-002126 Application 12/640, 108 11-12. In support, Appellants point to Odagawa's description of Comparative Example 3 as evidence that Odagawa shows a DBU concentration that differs from that of di-o-tolyl guanidine-another of Odagawa' s listed crosslinking accelerators. Br. 11. There is no dispute that Odagawa does not specify a preferred concentration for the disclosed accelerator components. Rather, the Examiner noted that Odagawa's Example 1 is described as including a different cross-linking accelerator (di- o-tolyl guanidine) in an amount corresponding to about 6.7 parts per 100 parts polymer component (i). Final Act. 4. Appellants do not contest that the concentration of cross-linking accelerator in Odagawa's polymer composition would have been recognized as a result-effective variable, or that Odagawa's accelerators are included for the same general purpose as the accelerators in Appellants' claimed composition. On this record, we are persuaded that a preponderance of the evidence supports the Examiner's obviousness determination, and that an optimized DBU/sodium salt accelerator concentration more likely than not would have fallen in the recited range of 0.5 to 30 parts by weight per 100 parts by weight of the polymer component (i). Appellants additionally point to Example 3 and comparative Example VV 1 in the Specification as evidence of unexpected results obtained when combining sodium salt with another crosslinking accelerator. 8 Br. 15-17. 8 Appellants also mention Example 2 and comparative Example VV 4 in their argument, but do not particularly rely on those examples in connection with their assertion of unexpected results. Br. 15-17. We note that Example 2 lacks the recited sodium salt component, and comparative Example VV 4 apparently contains no crosslinking accelerator at all, see Spec. 36, Table 2, 5 Appeal2015-002126 Application 12/640, 108 Example 3 includes 4 parts DBU (identified as Rhenogran® XLS-60) and 3 parts sodium carbonate (identified as Dynamar® RC-5251 Q). Spec. 36, Table 2. Comparative Example VV 1 includes 4 parts DBU and no sodium salt. Id. We agree with the Examiner's observation that, "the single inventive example provided is limited in the scope of components and percentages actually tested/compared and, as such, is not reasonably commensurate with the scope of the subject matter being claimed." Ans. 8- 9. See In re Kao, 639 F.3d 1057, 1068 (Fed. Cir. 2011) (demonstrating an unexpected result for one embodiment requires an "adequate basis to support the conclusion that other embodiments falling within the claim will behave in the same manner"). Moreover, Appellants do not point us to credible evidence to demonstrate that the reported improvements correspond to more than expected cumulative effects of using 7 parts accelerator (4 parts DBU plus 3 parts sodium carbonate) in Example 3, as compared with the use of 4 parts accelerator in comparative Example VV 1. Accordingly, Appellants' contention of unexpected results based on the proffered evidence is insufficient to persuade us of reversible error in the Examiner's obviousness determination. For the foregoing reasons, we sustain Rejection I. II Appellants' arguments against Rejection II mirror those made against Rejection I. Br. 17-25. We find Appellants' arguments unpersuasive of and for that reason are not viewed as relevant to or supportive of Appellants' argument. 6 Appeal2015-002126 Application 12/640, 108 reversible error for the reasons given above. Accordingly, we also sustain Rejection II. DECISION The Examiner's decision rejecting claims 1, 2, 8-16, and 18-27 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. AFFIRMED 7 Copy with citationCopy as parenthetical citation