Ex Parte Sun et al

Patent Trial and Appeal Board

Dec 16, 2014

12411919 (P.T.A.B. Dec. 16, 2014)

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.
12/411,919 03/26/2009 Luyi Sun COS-1190 6049
25264 7590 12/16/2014
FINA TECHNOLOGY INC
PO BOX 674412
HOUSTON, TX 77267-4412
EXAMINER
WOOD, ELLEN SUZANNE
ART UNIT PAPER NUMBER
1782
MAIL DATE DELIVERY MODE
12/16/2014 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 LUYI SUN and MARK LELAND
________________

Appeal 2013-002003
Application 12/411,919
Technology Center 1700
________________

Before CHARLES F. WARREN, TERRY J. OWENS,
BEVERLY A. FRANKLIN, Administrative Patent Judges.

OWENS, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
The Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 1–8. We have jurisdiction under 35 U.S.C. § 6(b).
The Invention
The Appellants claim an injection stretch blow molded article,
package or container. Claim 1 is illustrative:
1. An injection stretch blow molded (ISBM) article comprising:
a metallocene random propylene-based copolymer in the
absence of a clarifier, wherein the propylene-based copolymer
has a melting point of from about 115°C to about 175°C,
microtacticity of from about 89% to 99%, and a molecular
weight (Mw) of 170,000 to 210,000 and a recrystallization
temperature of from 85 to 100°C, as measured by DSC.

Appeal 2013-002003
Application 12/411,919
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The References
McKeeman (McKeeman ’851) US 2008/0152851 A1 June 26, 2008
McKeeman (McKeeman ’961) US 2009/0057961 A1 Mar. 5, 2009
Kazuhisa (as translated) JP 2003-137245 A May 14, 2003
The Rejections
The claims stand rejected under 35 U.S.C. § 103 as follows: claims 1–
3, 7 and 8 over McKeeman ’851, claims 1–4 and 8 over McKeeman ’961and
claims 5 and 6 over McKeeman ’851 or McKeeman ’961, in view of
Kazuhisa.
OPINION
We reverse the rejections. We need to address only the broadest
independent claim, i.e., claim 1,1 and because both McKeeman ’851 and
McKeeman ’961 have the same relevant disclosure, we limit our discussion
to one of them, i.e., McKeeman ’851.
Claim 1 requires an injection stretch blow molded article comprising a
propylene-based copolymer having a melting point of about 115 ºC to about
175 ºC, a molecular weight of 170,000 to 210,000 and a recrystallization
temperature of 85 to 100 ºC, as measured by DSC.
McKeeman ’851discloses a stretch blow molded container comprising
a propylene polymer composition which is produced with a metallocene
catalyst and comprises 25.0 wt% to 75.0 wt% of a homopolymer or
minirandom copolymer of propylene containing up to 1.0 wt% of at least
one of ethylene and C4-C10 α-olefins; and 25.0 wt% to 75.0 wt% of a random
copolymer of propylene and at least one olefin chosen from ethylene and
C4–C10 α-olefins, containing about 0.3 to about 30 wt%, preferably about 0.3

1 The Examiner does not rely upon Kazuhisa for any disclosure that
remedies the deficiency in the references applied to the independent claims
(Ans. 9–10).
Appeal 2013-002003
Application 12/411,919
3
to about 20 wt%, of the olefin; wherein the propylene polymer composition
has a molecular weight distribution less than 3.5 (¶¶ 4–7). The container is
made by molding the propylene polymer composition preferably at about
200 ºC to about 280 ºC to form a preform, and then stretch blow molding the
preform preferably at about 100 ºC to about 160 ºC (¶ 55).
The Examiner argues that McKeeman ‘851’s “propylene polymer
must have a melting temperature of about 200ºC. One of ordinary skill in
the art would consider “about 200ºC” to include the upper claimed range of
“about 175ºC” (Ans. 3).
That argument is unpersuasive as lacking evidentiary support.
The Examiner acknowledges that McKeeman ’851 is silent as to the
propylene polymer composition’s molecular weight and recrystallization
temperature, and argues that those properties would have been the same as
those of the Appellants’ propylene-based copolymer because
McKeeman ’851s and the Appellants’ polymer compositions have
substantially similar structure and chemical composition (Ans. 3–4).
Regarding molecular weight, the Examiner argues that “[t]he
molecular weight of the polymer of McKeeman is inherently from 170,000
to 210,000, because the polymers of McKeeman have the same ratio of
propylene based monomers to additional monomers as the applicant. The
copolymers of McKeeman also have a substantially similar molecular
weight distribution” (Ans. 11).
An inherent characteristic must be inevitable, and not merely a
possibility or probability. See In re Oelrich, 666 F.2d 578, 581 (CCPA
1981).
McKeeman ’851’s propylene polymer composition’s homopolymer or
minirandom copolymer component contains up to 1.0 wt% of at least one of
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Application 12/411,919
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ethylene and C4–C10 α-olefins, and the random copolymer of propylene and
at least one olefin component contains about 0.3 to about 30 wt%, preferably
about 0.3 to about 20 wt% of at least one olefin chosen from ethylene and
C4–C10 α-olefins (¶¶ 5–6), whereas the Appellants’ propylene-based
copolymer contains at least about 50 wt% polypropylene relative to the total
weight of the polymer (Spec. ¶ 26). The molecular weight distributions of
McKeeman ’851’s and the Appellants’ polymer compositions are,
respectively, less than 3.5 (McKeeman ’851, ¶ 7) and about 1.0 to about 20
(Spec. ¶ 27). The Examiner has not established that those polymer
compositions of the Appellants and McKeeman ’851 are sufficiently similar
that they inevitably have the same molecular weight.
With respect to recrystallization temperature, the Examiner argues
that “McKeeman discloses that the polymers are blow molded at a
temperature from about 100ºC to about 160ºC [0055]. It is inherent that the
recrystallization temperature has to be below the range of 100ºC to about
160ºC, otherwise the article would still be molten. Thus, McKeeman
inherently discloses that the polymer has a recrystallization temperature of
from 85 to 100ºC” (Ans. 11).
The Examiner has not established that even if McKeeman ’851’s
polymer composition’s recrystallization temperature is below 100ºC, it
inevitably must be between 85ºC and 100ºC.
“‘[R]ejections on obviousness grounds cannot be sustained by mere
conclusory statements; instead, there must be some articulated reasoning
with some rational underpinning to support the legal conclusion of
obviousness.’” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007)
(quoting In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)). The Examiner has
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Application 12/411,919
5
not provided the required articulated reasoning with rational underpinning.
Accordingly, we reverse the rejections.
DECISION/ORDER
The rejections under 35 U.S.C. § 103 of claims 1–3, 7 and 8 over
McKeeman ’851, claims 1–4 and 8 over McKeeman ’961 and claims 5 and 6
over McKeeman ’851 or McKeeman ’961, in view of Kazuhisa are reversed.
It is ordered that the Examiner’s decision is reversed.
REVERSED

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