Ex Parte Woods

Board of Patent Appeals and Interferences

Sep 10, 2002

09240450 (B.P.A.I. Sep. 10, 2002)

The opinion in support of the decision being entered
today was not written for publication and
is not binding precedent of the Board

Paper No. 16

UNITED STATES PATENT AND TRADEMARK OFFICE

__________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte SUSAN S. WOODS
___________

Appeal No. 2001-1904
Application No. 09/240,450
___________

HEARD: August 15, 2002
__________

Before KIMLIN, KRATZ, and PAWLIKOWSKI, Administrative Patent
Judges.

PAWLIKOWSKI, Administrative Patent Judge.

DECISION ON APPEAL
This is a decision on an appeal from the examiner’s refusal
to allow claims 1 and 3-22. Claim 2 has been canceled. Claim 22
is allowable.
The subject matter on appeal is represented by claims 1, 10,
and 16, set forth below:
1. A melt processable polymer composition comprising a
major amount of a melt processable thermoplastic hydrocarbon
polymer and a minor amount of a processing additive composition
comprising

(a) a fluorothermoplastic polymer containing units derived
from a monomer charge of
(i) vinylidene fluoride and,
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Application 09/240,450

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(ii) at least two separate ethylenically unsaturated
copolymerizable fluorinated comonomers, and

(iii) optionally at least one low molecular weight
non-fluorinated alpha olefin monomer provided that when the low
molecular weight non-fluorinated alpha olefin monomer is present,
the vinylidene fluoride comprises at least 15 weight percent of
the monomer charge used to prepare the fluorothermoplastic
polymer, and

(b) a poly(oxyalkylene) polymer wherein the weight ratio of
said fluorothermoplastic polymer to said poly(oxyalkylene)
polymer is from 1:1 to about 1:0.005.

10. A method for reducing melt defects in melt processable
thermoplastic hydrocarbon polymer compositions which comprises
admixing a melt processable thermoplastic hydrocarbon polymer
with an effective amount of a polymer processing additive
composition comprising

(a) a fluorothermoplastic polymer containing units derived
from (1) vinylidene fluoride, and (ii) at least two separate
ethylenically unsaturated copolymerizable fluorinated comonomers,
and (iii) optionally at least one low molecular weight non-
fluorinated alpha olefin monomer, and

(b) a poly(oxyalkylene) polymer wherein the weight ratio is
the fluorothermoplastic polymer to the poly(oxyalkylene) polymer
is at least 1:1, mixing the polymer processing additive
composition and the hydrocarbon polymer for a time sufficient to
blend them together, and melt processing said admixture.

16. A processing additive composition comprising

(a) a fluorothermoplastic polymer containing units derived
from (i) vinylidene fluoride and, (ii) at least two separate
ethylenically unsaturated copolymerizable fluorinated comonomers,
and (iii) optionally at least one low molecular weight non-
fluorinated alpha olefin monomer, and

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Application 09/240,450

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(b) a poly(oxyalkylene) polymer wherein the weight ratio of
said fluorothermoplastic polymer to said poly(oxyalkylene)
polymer is in the range of from about 1:1 to 1:0.25.

The examiner relies upon the following references as
evidence of unpatentability:
Priester 5,587,429 Dec. 24, 1996
Blong et al. (Blong) 5,710,217 Jan. 20, 1998

Claims 1, 8-14, 16, 21, and 22 stand rejected under
35 U.S.C. § 103 as being unpatentable over Blong.
Claims 1 and 3-21 stand rejected under 35 U.S.C. § 103 as
being unpatentable over Priester.
We note that on page 4 of the answer, the examiner has
indicated that the 35 U.S.C. § 112, first paragraph, rejection
have been withdrawn.
OPINION
For the reasons set forth in the answer, and below, we
affirm each of the rejections noted above.

I. The Rejection involving the Reference of Blong
On page 12 of the brief, appellant argues that “Blong
excludes any level of vinylidene fluoride above 15 weight
percent(wt%)”.
On page 4 of the answer, the examiner states that Blong
teaches from 0 to 15 weight percent of monomers, such as a
vinylidene fluoride, can be used in the fluoropolymer.
Upon our review of Blong, we find that Blong teaches an
amount of from 0 to 15 weight percent of vinylidene fluoride.
See, for example, column 3, lines 10-13.
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Application 09/240,450

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Hence, we agree with the examiner’s interpretation of Blong.
Because Blong does teach an amount of up to 15 weight percent,
and because appellant’s claim recites “the vinylidene fluoride
comprises at least 15 weight percent”, Blong overlap’s the amount
claimed in appellant’s claim 1. We note that a claimed invention
is rendered prima facie obvious by the teachings of a prior art
reference that discloses a range that touches the range recited
in the claim. In re Malagari, 499 F.2d 1297, 1303, 182 USPQ 549,
553 (CCPA 1974). See also, In re Geisler, 116 F.3d 1465,
43 USPQ2d 1362, 1365 (Fed. Cir. 1997); In re Woodruff, 919 F.2d
1575, 1578, 16 USPQ2d 1934, 1936 (Fed. Cir. 1990). Hence, we
determine that the value disclosed in Blong renders obvious
appellant’s recited range.
Furthermore, as pointed out by the examiner, independent
claims 10 and 16 do not require a particular amount of vinylidene
fluoride, and hence Blong also meets the limitations of these
claims.1 Based upon the fact that the claims stand or fall with
claim 10, appellant’s arguments regarding claim 1 have no import.
See footnote 1. However, we have addressed the arguments raised
by appellants because appellants arguments focus on claim 1 only.
In view of the above, we affirm the rejection of claims 1,
8-14, 16, 21, and 22.

1 We note that on page 9 of the brief, appellant states that claims 1 and 3-22
stand or fall together. Hence, we only need to consider claim 10, the
broadest claim on appeal. 37 CFR § 1.192(c)(7)(8)(2000).
Appeal No. 2001-1904
Application 09/240,450

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II. The Rejection involving the Reference of Priester

On pages 12-13 of the brief, appellant argues that Priester
teaches a ratio of poly(oxyalkylene) polymer to fluoropolymer
from about 6:1 to about 1:4, preferably in the range of about 3:1
to about 1:12. See column 5, lines 65-68 and column 6, line 1 of
Priester.
Appellant argues that the inverted value recited in claim 1
regarding component (b), corresponding to the ratios of Priester,
is from 1:1 to about 1:200. Appellant concludes that the present
application extends “50X beyond the range contemplated by
Priester”, and appellant argues that this is “beyond the realm of
obviousness”.
The examiner, on page 5 of the answer, rebuts and states
that there is an overlap between the ratio required in the claims
and the ratio taught by Priester, and we agree for the reasons
mentioned, supra. Id.
Appellant further argues that Priester requires a polar-
side-group-containing extrusion adjuvent in addition to the
fluoropolymer and poly(oxyalkylene) polymer. (brief, page 12).
However, as pointed out by the examiner on page 5 of the answer,
appellant’s claims do not exclude a polar-side-group-containing
extrusion adjuvant.
In view of the above, we affirm this rejection also.

III. Conclusion
Each of the rejections is affirmed.
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Application 09/240,450

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No time period for taking any subsequent action in
connection with this appeal may be extended under 37 CFR
1.136(a).

AFFIRMED

Edward C. Kimlin )
Administrative Patent Judge )
)
)
)
Peter F. Kratz ) BOARD OF PATENT
Administrative Patent Judge ) APPEALS AND
) INTERFERENCES
)
)
Beverly A. Pawlikowski )
Administrative Patent Judge )

BAP/cam
Appeal No. 2001-1904
Application 09/240,450

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James C. Lilly
DYNEON
P. O. Box 33427
St Paul, MN 55133-3427