Ex Parte Topoulos

Patent Trial and Appeal Board

Jun 30, 2016

13692419 (P.T.A.B. Jun. 30, 2016)

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.
13/692,419 12/03/2012 Georgios Topoulos CICTD-9-CON-DIV
(2012/D00
9733
104330 7590 07/01/2016
Dority & Manning, P.A. and Ticona LLC
Post Office Box 1449
Greenville, SC 29602
EXAMINER
KOLLIAS, ALEXANDER C
ART UNIT PAPER NUMBER
1767
MAIL DATE DELIVERY MODE
07/01/2016 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 GEORGIOS TOPOULOS
____________

Appeal 2014-008082
Application 13/692,419
Technology Center 1700
____________
Before KAREN M. HASTINGS, GEORGE C. BEST, and
N. WHITNEY WILSON, Administrative Patent Judges.
BEST, Administrative Patent Judge.
DECISION ON APPEAL
The Examiner finally rejected claims 18–45 of Application
13/692,419 under 35 U.S.C. § 103(a) as obvious. Final Act. 9–53 (July 29,
2013). The Examiner further rejected claims 18, 19, 21, 23, 26–28, 29–34,
36–38, and 40 under 35 U.S.C. § 102(b) as anticipated. Id. at 3–9.
Appellant1 seeks reversal of these rejections pursuant to 35 U.S.C. § 134(a).
We have jurisdiction under 35 U.S.C. § 6(b).
For the reasons set forth below, we AFFIRM.

1 Ticona, LLC is identified as the real party in interest. Appeal Br. 1.
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Application 13/692,419
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BACKGROUND
The ’419 Application describes light emitting diode (LED) assembly
components comprising poly(1,4-cyclohexanedimethanol terephthalate)
compositions containing titanium dioxide. Spec. 1:10–12. The
Specification describes the composition as providing improved heat and
ultraviolet light resistance, reflectivity, and adhesion to lens materials. Id. at
1:34–2:5.
Claims 182 and 29 are representative of the ’419 Application’s claims
and is reproduced below from the Claims Appendix to the Appeal Brief:
18. A composition comprising:
(a) about 40 to about 95 weight percent poly(l,4-cyclohex-
anedimethanol terephthalate); and
(b) more than 20, but less than about 50 weight percent of
rutile titanium dioxide;
(c) 0 to about 40 weight percent of one or more inorganic
reinforcing agents and/or one or more inorganic fillers;
(d) 0 to about 3 weight percent of one or more oxidative
stabilizers; and

2 It is not seen how claim 18 is enabled over its full scope. We note that in
the event that the claimed composition comprises: (a) in excess of 80 weight
percent poly(l,4-cyclohexanedimethanol terephthalate)(“PCT”); (c) 0 weight
percent of one or more inorganic reinforcing agents and/or one or more
inorganic fillers; and (d) 0 weight percent of one or more oxidative
stabilizers, one skilled in the art could not make and use the invention to
include (b) more than 20 weight percent of rutile titanium dioxide.
Likewise, independent claims 29 and 41 do not appear to be enabled as now
claimed because, in the event that the composition includes PCT at 95
weight percent, these claims place similar restrictions on non-PCT
components. If prosecution of this application continues, the Appellant and
the Examiner should ensure that limitations regarding ranges for all
components in the claims are enabled.
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Application 13/692,419
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(e) an ethylene/(meth)acrylate copolymer and/or an ethylene,
ethyl acrylate or n-butyl acrylate and glycidyl methacrylate
terpolymer;
wherein the weight percentages are based on the total weight
of the composition.

29. A composition comprising:
(a) about 40 to about 95 weight percent poly(l,4-cyclohex-
anedimethanol terephthalate); and
(b) more than 20, but less than about 60 weight percent of
titanium dioxide; and
(c) from about 0.5% to about 15% by weight of a polymer that
has attached to it functional groups that react with the poly(l,4-
cyclohexanedimethanol terephthalate).
Appeal Br. 21, 22.
REJECTIONS
On appeal, the Examiner maintains the following rejections:
1. Claims 18, 19, 21, 23, 26–28, 29–32, 34, 36–38, and 40 are
rejected under 35 U.S.C. § 102(b) as anticipated by Topoulos.3
Final Act. 3.
2. Claim 33 is rejected under 35 U.S.C. § 102(b) as anticipated by
Topoulos, as evidenced by Kamada.4 Final Act. 8.
3. Claims 20, 22, 24, 25, 31, and 39 are rejected under 35 U.S.C.
§ 103(a) as unpatentable over Topoulos. Final Act. 9.
4. Claim 35 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Topoulos, as evidenced by Kamada. Final Act. 13.

3 US 2007/0213458 A1, published Sept. 13, 2007.
4 US Patent No. 4,111,892, issued Sept. 5, 1978.
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5. Claims 41–45 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Topoulos. Final Act. 14.
6. Claims 18–22, 26–30, 32–35, 38, and 40 are rejected under 35
U.S.C. § 103(a) as unpatentable over the combination of
Mercx5 and Deyrup.6 Final Act. 16.
7. Claim 39 is rejected under 35 U.S.C. § 103(a) as unpatentable
over the combination of Mercx, Deyrup, and Kobayashi.7 Final
Act. 27.
8. Claims 29, 31, and 33–45 are rejected under 35 U.S.C. § 103(a)
as unpatentable over the combination of Mercx and Kobayashi.
Final Act. 28.
9. Claims 18–22, 25, 26, and 41–43 are rejected under 35 U.S.C.
§ 103(a) as unpatentable over the combination of Minnick,8
Patton,9 and Kobayashi. Final Act. 37.
10. Claims 18, 25, and 26 are rejected under 35 U.S.C. § 103(a) as
unpatentable over the combination of Small,10 Patton, and
Kobayashi. Final Act. 45.

5 US 2003/0096122 A1, published May 22, 2003.
6 US Patent No. 4,753,980, issued June 28, 1988.
7 US 2005/0176835 A1, published Aug. 11, 2005.
8 US Patent No. 4,859,732, issued Aug. 22, 1989.
9 Leonard C. Komar, Pigmentation of White Plastics, PIGMENT HANDBOOK
253–54, 262 (Temple C. Patton ed., John Wiley & Sons, Inc. 1973).
10 US Patent No. 5,207,967, published May 4, 1993.
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11. Claims 21 and 23 are rejected under 35 U.S.C. § 103(a) as
unpatentable over the combination of Small, Patton, Kobayashi
and Pierre.11 Final Act. 47.
12. Claim 24 is rejected under 35 U.S.C. § 103(a) as unpatentable
over the combination of Small, Patton, Kobayashi, and Deyrup.
Final Act. 49.
13. Claims 29–32 and 37 are rejected under 35 U.S.C. § 103(a) as
unpatentable over the combination of Small and Kobayashi.
Final Act. 50.
14. Claim 3612 is rejected under 35 U.S.C. § 103(a) as unpatentable
over the combination of Small, Kobayashi, and Pierre. Final
Act. 51.
15. Claim 39 is rejected under 35 U.S.C. § 103(a) as unpatentable
over the combination of Small, Kobayashi, and Deyrup. Final
Act. 52.
DISCUSSION
Appellant argues for the reversal of the obviousness rejection to
claims 18–45 on the basis of limitations present in independent claims 18
and 29. See Appeal Br. 3–18, 19; Reply Br. 2–6. We, therefore, limit our
analysis to claims 18 and 29. Claims 19–28 and 30–40 will stand or fall

11 US 2003/0109629 A1, published June 12, 2003.
12 Although the Examiner’s rejection in the Final Office Action refers to
claims 29–32 and 37 (similar to the preceding rejection), this may be an
error. See Final Act. 51. The Examiner’s grounds only addressed claim 36.
See id. at 51–52. As set forth above, Rejection 14 reflects the sole claim
addressed by the Examiner in this rejection.
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with claims 18 and 29, respectively. 37 C.F.R. § 41.37(c)(1)(iv). Appellant
separately argues for the reversal of the obviousness rejections to claim 42.
See Appeal Br. 18–19. Appellant does not argue the rejection of
independent claim 41 and its dependent claims. See id. at 4. Thus, we
summarily affirm the rejections to claims 41 and 43–45.
Rejections 1–5. The Examiner relies on Topoulos in whole or in part
for the rejections made under 35 U.S.C. § 102(b) (Rejections 1 and 2), Final
Act. 3, 8, and several rejections made under 35 U.S.C. § 103(a) (Rejections
3, 4, and 5). Id. at 9, 13, and 14.
Appellant argues that Topoulos is not prior art under 35 U.S.C.
§§ 102(b) or 103(a) because the present ’419 Application is entitled to the
benefit of the earlier filing date of Application 60/716,877, filed September
14, 2005. Appeal Br. 4–6, citing Spec 1:6–7.
The Examiner, however, asserts that “there is no support in the
Original Specification [for ]merely a composition comprising the presently
claimed components as recited in claims 18–27, 29–39[,] and 41–44.” Final
Act. 3. The Examiner further asserts “that the instant application (and[,]
therefore[, the ʼ877 Application]) discloses the composition as it pertains to
an LED light assembly housings and not merely a composition.” Ans. 2–3.
35 U.S.C. § 120 sets forth the requirements under which an
application is entitled to the benefit of an earlier filing date. “It is
elementary patent law that a patent application is entitled to the benefit of
the filing date of an earlier filed application only if the disclosure of the
earlier application provides support for the claims of the later application, as
required by 35 U.S.C. § 112.” In re Chu, 66 F.3d 292, 297 (Fed. Cir. 1995)
(citing Mendenhall v. Cedarapids Inc., 5 F.3d 1557, 1566 (Fed. Cir. 1993)
(“A patentee cannot obtain the benefit of the filing date of an earlier
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application where the claims in issue could not have been made in the earlier
application.”)).
In this case, Appellant argues that the disclosure of the ʼ877
Application provides support for the claimed compositions of the present
’419 Application. According to Appellant, the claimed compositions are
“implicitly and inherently disclosed by the description in the original
Specification of a light emitting diode housing made from said
compositions.” Appeal Br. 6 (emphasis in original). Appellant’s argument
is persuasive because the Specification discloses that “[t]he compositions of
Examples 1–5 and Comparative Example 1 are molded into light emitting
diode assembly housings that contain epoxy lenses.” Spec. 13:1–2.
Accordingly, the present ’419 Application is entitled to the benefit of the
earlier filing date the ’877 Application and, therefore, Topoulos is not prior
art under 35 U.S.C. §§ 102(b) or 103(a). Thus, we reverse Rejections 1–5.
Rejection 6. The Examiner rejected claims 18–22, 26–30, 32–35, 38,
and 40 as obvious over the combination of Mercx and Deyrup. Final Act.
16.
The Examiner found that Mercx describes or suggests every limitation
of the composition recited in claims 18 and 29 except that: (i) Mercx
teaches use of 20 weight % titanium dioxide, whereas the present claims
require “more than 20 . . . weight percent.” Final Act. 16, 22, and (ii).
Mercx is silent as to the limitation concerning ethylene/(meth)acrylate
copolymer and/or an ethylene, ethyl acrylate or n-butyl acrylate and glycidyl
methacrylate terpolymer. Id. at 17, 23.
Regarding (i), the Examiner determined that it would have been
obvious to the ordinary skilled artisan “that the amount of titanium dioxide
disclosed in the present claims is but an obvious variant of the amounts
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disclosed in the reference,” because, inter alia, “there is only a ‘slight’
difference between the amount of titanium dioxide disclosed by the
reference and the amount disclosed in the present claims.” Id.
With regard to (ii), the Examiner found Deyrup teaches that the use of
the ethylene/methacrylate/glycidyl methacrylate toughener in polyester
composition results in a composition with extraordinary toughness,
especially at low temperature. Id. at 18, 24. The Examiner, inter alia,
determined that
in light of the particular advantages provided by the use and
control of the polymeric tougheners as taught by Deyrup, it
would[,] therefore[,] have been obvious to one of ordinary skill
in the art to include such tougheners in the housing disclosed by
Mercx [] with a reasonable expectation of success.
Id.
Appellant argues that this rejection should be reversed because:
(1) the Examiner’s reliance on Titanium Metals Corp. v. Banner, 778 F.2d
775, 783 (Fed. Cir. 1985) is misplaced because this case is factually
inapposite to the present facts, Appeal Br. 10–11, and (2) Deyrup’s teaching
of the particular advantages of tougheners at low temperatures would be of
no use to Mercx’s composition because Mercx discloses no need to increase
the toughness of its compositions at low temperatures. Id. at 7–9; Reply Br.
4–5.
First, Appellant’s argument (1) is based on the assertion that Titanium
Metals Corp. applies only to overlapping ranges and does not apply where
Mercx merely discloses a range of titanium dioxide that approaches the
claimed range of titanium dioxide. Appeal Br. 10–11. Appellant’s
argument, however, ignores our reviewing court’s interpretation of that case.
“We have . . . held that a prima facie case of obviousness exists when the
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claimed range and the prior art range do not overlap but are close enough
such that one skilled in the art would have expected them to have the same
properties.” In re Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003) (citing
Titanium Metals Corp. v. Banner, 778 F.2d 775, 783 (Fed. Cir. 1985)).
Furthermore,
‘when the difference between the claimed invention and the prior
art is the range or value of a particular variable,’ then a patent
should not issue if ‘the difference in range or value is minor.’
Haynes Int’l, Inc. v. Jessop Steel Co., 8 F.3d 1573, 1577 n.3 (Fed.
Cir. 1993); see also Titanium Metals Corp. of Am. v. Banner, 778
F.2d 775, 783 (Fed. Cir. 1985) (invention found obvious because
it was close to prior art range).
Iron Grip Barbell Co. v. USA Sports, Inc., 392 F.3d 1317, 1321 (Fed. Cir.
2004). We are not persuaded that the difference between Mercx’s 20 wt. %
titanium dioxide and such titanium dioxide weight percentages within the
claimed range as 20.1, 20.01, 20.001, etc. are not minor, particularly in the
absence of a showing of criticality of the claimed range.
Second, Appellant’s argument (2) is correct that Deyrup teaches that
including ethylene copolymer imparts low temperature toughness to a
polyester matrix. This argument, however, fails to identify any specific
teaching that the benefit imparted by the inclusion of an ethylene copolymer
would not be demonstrated at higher temperatures. The record evidence
demonstrates that the benefit of increased toughness is not limited to low
temperatures, particularly in Table II. 9:37–62; see also Ans. 4–5, citing
Deyrup 1:15–17; 9:32–36; 2:1–3.
For the reasons set forth above, we are not persuaded by any of
Appellant’s arguments for reversal of the rejection of claims 18–22, 26–30,
32–35, and 38–40. Likewise, we are not persuaded of Appellant’s assertion
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of unexpected results as set forth below in the discussion regarding
Rejection 8. Thus, we affirm Rejection 6 and 7.
Rejection 8. Appellant relies on argument (1) above for his assertion
that the rejection of claim 29 under this rejection should be reversed.
Appeal Br. 18. For the reasons set forth above, we are not persuaded by
Appellant’s argument.
Appellant further argues that the composition of claim 29 provides
increased whiteness when aged at increasing temperatures for extended
amounts of time; properties allegedly unseen in the prior art. Id., citing
Spec. 10 (Table 1). Appellant’s argument appears to rely upon purportedly
unexpected results in support of reversal of Rejections 6, 8, 13, and 14.
Unexpected results must be established by clear and convincing
evidence. In re Heyna, 360 F.2d 222, 228 (CCPA 1966) (“It was incumbent
upon appellants to submit clear and convincing evidence to support their
allegation of unexpected property.”); see also McClain v. Ortmayer, 141
U.S. 419, 429 (1891) (conclusive evidence needed to establish new
function). For the reasons stated by the Examiner in the Answer, Appellant
has not met his burden in providing clear and convincing evidence of
unexpected results. See Ans. 14. The parameters tested are not
commensurate in scope with the scope of the instant claims or the prior art
reference. For example, only a range of 30–35 wt. % titanium dioxide is
tested. Spec. 10 (Table 1). Accordingly, Appellant’s assertion of
unexpected results is unconvincing. Thus, we affirm Rejection 8.
Appellant separately argues that the rejection of claim 42 under this
rejection should be reversed. Appeal Br. 18–19. Appellant relies, in part, on
argument (1). Appeal Br. 18. For the reasons set forth above, we are not
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persuaded by Appellant’s argument. Thus, we affirm the rejection of claim
42 under this rejection.
Rejection 9. The Examiner rejected claims 18–22, 25, 26, and 41–43
as obvious over the combination of Minnick, Patton, and Kobayashi. Final
Act. 37. Appellant argues that the Examiner’s combination is improper
because Minnick teaches including about 0.1 to 20 wt. % total additives,
while Kobayashi teaches polymeric toughener in the amount of 2 to 15 wt.
%; thus remaining additives, including titanium dioxide would only
comprise about 18 to 5 wt. % of the composition, which is less than “more
than 20 . . . weight percent of rutile titanium dioxide,” recited in claim 18.
Appeal Br. 11–12.
The Examiner, citing Minnick 3:30–36, argues that the reference
discloses a finite list of additive types which may be included in the
composition. Ans. 9. According to the Examiner, because the reference
does not explicitly disclose polymeric tougheners as additives, Kobayashi’s
polymeric toughener cannot be considered to be part of the additives
disclosed by Minnick. Id.
For the reasons stated in Appellant’s Reply Brief, we are not
persuaded that Minnick excludes polymeric tougheners as additives. Reply
Br. 4. Appellant persuasively argues that the ordinary skilled artisan would
understand the term “additive” to include any substance added to the
composition. Appellant has identified reversible error in the Examiner’s
findings because: (i) Minnick’s list of potential additives is non-exclusive
and (ii) the combination of Minnick and Kobayashi suggests 18 to 5 wt. %
of the composition, which is less than the wt. % amount of titanium dioxide
recited in claim 18. Thus, we reverse Rejection 9.
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Rejection 10. The Examiner rejected claims 18, 25, and 26 as
obvious over the combination of Small, Patton and Kobayashi. Final Act.
37.
The Examiner found that Small describes or suggests every limitation
of the composition recited in claim 18 except that: (i) Small does not
disclose that the titanium dioxide is rutile titanium dioxide as recited, Final
Act. 45, and (ii) Small is silent as to the composition comprising polymeric
tougheners. Id. at 46.
Regarding (i), the Examiner finds that Patton teaches that rutile
titanium dioxide pigments has pigment properties, such as whiteness,
brightness and the additional property of functioning as an ultraviolet (UV)
absorber. Id., citing Patton 262. With regard to (ii), the Examiner finds that
Kobayashi teaches a polyester composition comprising PCT and polymeric
tougheners such as ethylene and (meth)acrylate units comprising functional
groups such as hydroxyl, and carboxylic anhydride. Id. (citing Kobayashi
Abstract; ¶¶ 16–18, 19, and 30). The Examiner determined that:
[g]iven that both Small [] and Kobayashi are drawn to molded
articles comprising PCT and fillers, and, given that Small [] does
not explicitly prohibit other ingredients, in light of the particular
advantages provided by the use and control of the polymeric
toughener as taught by Kobayashi, it would therefore have been
obvious to one of ordinary skill in the art to include such
polymeric tougheners in the housing disclosed by Small [] with
a reasonable expectation of success.
Final Act. 46.
Appellant argues that this rejection should be reversed because:
(1) Small discloses high amounts of titanium dioxide as a reinforcing
material and does not disclose titanium dioxide for pigmentation as
disclosed by Patton, Appeal Br. 13–14, (2) there is no teaching or suggestion
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in Kobayashi that the disclosed polymeric toughener may be combined with
Small’s high amounts of titanium dioxide because Kobayashi is drawn to
improving high temperature qualities of the composition, while Small is
drawn to low temperature qualities of the composition, id. at 14–16, and (3)
Kobayashi teaches away from a composition that comprises relatively large
amounts of titanium dioxide. Id. 16–17.
First, Appellant’s argument (1) is not persuasive because Small’s
teaching does not preclude the ordinary skilled artisan, at the time of the
invention, from noting that titanium dioxide possesses other functionalities
such as imparting whiteness, brightness, etc. Thus, the ordinarily-skilled
artisan would have considered the whole of Small’s disclosure regarding use
of high titanium dioxide amounts as filler and realized that the titanium filler
also functions as a pigment, according to Patton’s teachings. 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 inferences which one skilled in the art would
reasonably be expected to draw therefrom.”). As the Supreme Court has
noted, such combinations as Small’s known titanium dioxide filler with
Patton’s known teachings regarding titanium dioxide imparting whiteness
are likely to be obvious. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416
(2007) (“The combination of familiar elements according to known methods
is likely to be obvious when it does no more than yield predictable results.”).
Appellant has not persuaded us that the Examiner erred in concluding that
their claimed combination of familiar elements is such a case of
obviousness.
Second, Appellant’s argument (2) is unpersuasive because it is not
directed to the Examiner’s rationale for modifying Small to incorporate
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Kobayashi’s polymeric tougheners with functional groups. Rather,
Appellant’s argument is directed to whether it was improper for the
Examiner to combine Kobayashi with Small when the particular advantages
of each reference’s composition are exhibited at different temperatures.
The test for obviousness[, however,] is not whether the features
of a secondary reference may be bodily incorporated into the
structure of the primary reference; nor is it that the claimed
invention must be expressly suggested in any one or all of the
references. Rather, the test is what the combined teachings of
the references would have suggested to those of ordinary skill in
the art.
In re Keller, 642 F.2d 413, 425 (CCPA 1981). Appellant’s argument fails to
identify reversible error in the Examiner’s determination that it would have
been obvious to the ordinary skilled artisan to include such polymeric
tougheners in Small’s PCT resin with a reasonable expectation of success.
“A person of ordinary skill is also a person of ordinary creativity, not an
automaton.” KSR, 550 U.S. at 421.
Third, we are likewise not persuaded by Appellant’s teaching away
argument (3). Although Appellant alleges that Kobayashi teaches a
composition that comprises relatively large amounts of titanium dioxide and
other materials as reinforcing materials, the Examiner relies only on
Kobayashi for its disclosure of polymeric tougheners. See In re Nievelt, 482
F.2d 965, 968 (CCPA 1973) (“Combining the teachings of references does
not involve an ability to combine their specific structures.”).
In sum, Appellant has not pointed to persuasive evidence that supports
their contention that a person of ordinary skill in the art would have been
dissuaded from including Kobayashi’s polymeric tougheners with functional
groups with the whitening titanium dioxide of Patton, in the relatively high
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titanium dioxide amounts of Small’s PCT composition. We, therefore,
affirm Rejections 10–12.
Rejection 13. Appellant relies on arguments (2) and (3) above for his
assertion that the rejection of claim 29 under this rejection should be
reversed. Appeal Br. 18. For the reasons set forth above, we are not
persuaded by Appellant’s argument. Likewise, we are not persuaded of
Appellant’s assertion of unexpected results as set forth above in the
discussion regarding Rejection 8. We, therefore, affirm Rejections 13–15.
CONCLUSION
For the reasons set forth above, we affirm the rejections of claims 18–
45 of the ’419 Application.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).
AFFIRMED