Ex Parte Ulrich et alDownload PDFPatent Trial and Appeal BoardJun 23, 201610525160 (P.T.A.B. Jun. 23, 2016) Copy Citation 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. 10/525,160 09/26/2005 Ralf Ulrich P0-7856/LeA 36,229 5659 7590 06/23/2016 Lanxess Corporation Law & Intellectual Property Department 111 Ridc Park West Drive Pittsburgh, PA 15275-1112 EXAMINER USELDING, JOHN E ART UNIT PAPER NUMBER 1763 MAIL DATE DELIVERY MODE 06/23/2016 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 RALF ULRICH, MATTHIAS MAHLKE, MARCUS SCHAFER, HELMUT SCHULTE, PETER SCHWARZ, MARTIN HOCH, and ROLAND PARG ________________ Appeal 2014-009165 Application 10/525,160 Technology Center 1700 ________________ Before TERRY J. OWENS, ROMULO H. DELMENDO, and JEFFREY R. SNAY, 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 1–3, 5, 6, 8, 9, and 12–14. We have jurisdiction under 35 U.S.C. § 6(b). The Invention The Appellants claim a composition. Claim 1 is illustrative: 1. A composition comprising a. From 99.9 to 50% by weight of polyamide prepared via a polycondensation polymerization reaction of polyamide starting materials, b. From 0.1 to 50% by weight of one or more uncured olefin-vinyl acetate copolymers as elastomer, wherein the copolymer is in a pure form, not in a blend with other polar Appeal 2014-009165 Application 10/525,160 2 olefin copolymers, wherein the vinyl acetate portion of the copolymer is between 40 and 99 wt.%, and c. at least one nanoscale filler wherein said nanoscale fillers are particles whose linear dimension in a selectable direction is less than 1 micrometer, wherein the nanoscale filler is present in the composition in an amount from 0.1 to 5% by weight based on the weight of the polyamide, wherein prior to or during the polycondensation polymerization reaction the nanoscale filler is added to the polyamide starting materials. The References Urabe US 2001/0027230 A1 Oct. 4, 2001 Carrus US 2003/0008158 A1 Jan. 9, 2003 Kim WO 03/055792 A1 July 10, 2003 The Rejection Claims 1–3, 5, 6, 8, 9, and 12–14 stand rejected under 35 U.S.C. § 103 over Kim in view of Carrus and Urabe. OPINION We affirm the rejection. The Appellants state that the claims stand or fall together (Br. 9). We therefore limit our discussion to the sole independent claim, i.e., claim 1. See 37 C.F.R. § 41.37(c)(1)(iv) (2012). Kim discloses a nanocomposite blend composition comprising 1– 97 wt% of a polyolefin resin, 1–95 wt% of a nanocomposite which can be a polyamide/intercalated clay nanocomposite, and 1–95 wt% of a compatibilizer which can be an ethylene-vinyl acetate copolymer (p. 8, ll. 10–16; p. 9, ll. 5–6; p. 10, ll. 11–13; p. 12, ll. 4–14). An exemplified nanocomposite comprises 97 wt% polyamide and 3 wt% montmorillonite organified with intercalated clay (p. 18, ll. 6–10). Appeal 2014-009165 Application 10/525,160 3 Carrus discloses a composite material comprising at least one polar group-containing polymer and at least one laminar structure inorganic material surface-treated with a compatibilizer (¶¶ 15–18). Examples of polymers functionalized with polar groups include ethylene-vinyl acetate copolymers which can be low polarity (vinyl acetate content between 2 and 18 wt%), medium polarity (vinyl acetate content between 18 and 80 wt%) and high polarity ((vinyl acetate content greater than 80 wt%) (¶¶ 30–32). The inorganic material can be montmorillonite and the compatibilizer can be a quaternary ammonium or phosphonium salt (¶¶ 34–40). Urabe discloses a polyamide resin composition comprising 100 parts by weight of a polyamide resin and 0.001 to 2 parts by weight of at least two kinds of fillers, wherein the particle size distribution of the fillers is: 20– 90 wt% having a particle size of not more than 2 µm, 0–15 wt% having a particle size of more than 2 µm and less than 3 µm, and 10–80 wt% having a particle size of not less than 3 µm (Abstract; ¶¶ 27–30). The disclosed fillers include montmorillonite (¶ 39). The Appellants assert that “one skilled in the art would not have found Kim et al. applicable to a composition which does not contain a polyolefin” (Br. 10). The Appellants’ claim 1’s “comprising” transition term opens the claim to additional components such as a polyolefin. See In re Baxter, 656 F.2d 679, 686 (CCPA 1981). The Appellants assert that Kim does not disclose or suggest combining polyamide/intercalated clay nanocomposite with ethylene-vinyl acetate (Br. 10). That suggestion is provided by Kim’s disclosures that the composition contains both a polyamide/intercalated clay nanocomposite and a Appeal 2014-009165 Application 10/525,160 4 compatibilizer and that the compatibilizer can be ethylene-vinyl acetate (p. 8, ll. 10–16; p. 12, ll. 6–12). The Appellants assert that Carrus does not disclose using polyamides and ethylene-vinyl acetate copolymers together but, rather, discloses using them only as alternatives (Br. 11). Carrus discloses that the polymers can be functionalized with polar groups (e.g., ethylene-vinyl acetate) or, alternatively, can contain polar groups (e.g., polyamides) (¶¶ 26, 27). However, Carrus’s disclosure that the polymers containing polar groups can be polymers functionalized with polar groups (¶¶ 15–17, 20, 27) indicates that when the composite material contains multiple polymers, the polymers can be any combination of those disclosed as containing polar groups and those disclosed as being functionalized with polar groups. Hence, Carrus would have led one of ordinary skill in the art, through no more than ordinary creativity, to use a polyamide in combination with an ethylene-vinyl acetate copolymer. See KSR Int’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”). Accordingly, we are not persuaded of reversible error in the rejection. DECISION/ORDER The rejection of claims 1–3, 5, 6, 8, 9, and 12–14 under 35 U.S.C. § 103 over Kim in view of Carrus and Urabe is 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 Copy with citationCopy as parenthetical citation