ExxonMobil Chemical Patents Inc.

Patent Trials and Appeals Board

Oct 8, 2021

2020005544 (P.T.A.B. Oct. 8, 2021)

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.
14/787,201 10/26/2015 Vincent B. Gallez 2013EM182/2 1999
23455 7590 10/08/2021
EXXONMOBIL CHEMICAL COMPANY
5200 BAYWAY DRIVE
P.O. BOX 2149
BAYTOWN, TX 77522-2149
EXAMINER
MATZEK, MATTHEW D
ART UNIT PAPER NUMBER
1786
NOTIFICATION DATE DELIVERY MODE
10/08/2021 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):
chem.law.prosecution@exxonmobil.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte VINCENT B. GALLEZ, GALEN C. RICHESON,
PRASADARAO MEKA, and JOHN W. M. ROBERTS
Appeal 2020-005544
Application 14/787,201
Technology Center 1700

Before CATHERINE Q. TIMM, DONNA M. PRAISS, and
MERRELL C. CASHION, JR., Administrative Patent Judges.

TIMM, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1, 2, 4–18, and 20–25. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 Appellant, which refers to “applicant” as defined in 37 C.F.R. § 1.42(a),
identifies the real party in interest as ExxonMobil Chemical Company.
Appeal Br. 3.
Appeal 2020-005544
Application 14/787,201

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CLAIMED SUBJECT MATTER
The claims are directed to a fiber (see, e.g., claim 1) and a nonwoven
(see, e.g., claim 20) made from a blend of a polypropylene-based impact
copolymer (ICP) and a polypropylene-based elastomer. Of particular note in
this appeal are the limitations requiring the impact copolymer have a melt
flow rate (MFR) from about 25 to about 100 g/10 min and the blend have
MFR of from 25 to 42 g/10 min. We reproduce claim 1 with the limitations
at issue italicized below:
1. A fiber comprising:
a blend of from about 30 to about 85 wt% of an impact
copolymer; and
from about 15 to about 70 wt% of a propylene-based
elastomer,
wherein the impact copolymer is a reactor blend and
comprises a propylene homopolymer component and a
copolymer component, where the propylene homopolymer
component has a MFR of greater than 100 g/10 min, and where
the copolymer component comprises at least 15 wt % and less
than 55 wt% ethylene-derived units, based on the weight of the
copolymer component, wherein the impact copolymer has an
MFR from about 25 to about 100 g/10 min; and
wherein the propylene-based elastomer comprises
propylene and from about 5 wt% to about 25 wt% units derived
from one or more C2 or C4–C12 alpha-olefins and has a MFR of
greater than about 20 g/10 min and a heat of fusion less than
about 75 J/g,
wherein the blend has an MFR from 25 to 42 g/10 min,
and
wherein the fiber has a peak elongation greater than
175% when spun at 1500 m/min as measured by a Textechno
Statimat machine.
Appeal 2020-005544
Application 14/787,201

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Appeal Br. 9 (Claims Appendix) (emphasis added).
REJECTION
The Examiner rejects claims 1, 2, 4–18, and 20–25 under 35 U.S.C.
§ 103 as being unpatentable over Li (US 2006/0135699 A1; pub. June 22,
2006) and Yang (WO 2004/014998 A2; pub. Feb. 19, 2004)2 as incorporated
by reference by Li and in view of Cheng (US 7,319,122 B2; issued Jan. 15,
2008). Final Act. 2.
OPINION
Appellant does not argue any claim apart from the others. Appeal Br.
5–8. We select claim 1 as representative to resolve the issue on appeal. We
state the issue as: Has Appellant identified a reversible error in the
Examiner’s determination that it would have been obvious to the ordinary
artisan to have formulated Li’s ICP and blend with MFRs suitable for
successfully forming fibers?
Appellant has not persuaded us of such an error.
There is no dispute that Li teaches or suggests blends containing
impact copolymer (ICP) and propylene-based elastomer (Li’s propylene
plastomer) in concentrations within the ranges required by claim 1. As
acknowledged by Appellant (Appeal Br. 5), Li describes polypropylene
compositions comprising one or more high-melting propylene polymer
(HMPP), one or more low-crystallinity propylene polymers (propylene-
based plastomer), and one or more non-functionalized plasticizer (NFP). Li

2 WO 2004/014998 A2 is not of record. The record only contains WO
2004/014998 A3. We cite to a copy of the A2 document obtainable through
the WIPO IP Portal at https://patentscope.wipo.int/search/en/search.jsf.
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Application 14/787,201

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¶ 40. The HMPP may be an impact copolymer (ICP). Li ¶ 160. Li further
discloses forming fibers and nonwovens from the HMPP-containing blends.
Li ¶ 295.
Appellant states that “not all ICPs would be suitable for a fiber
composition.” Appeal Br. 5. This may be true, but a conclusion of
obviousness does not require all ICPs be suitable. The question underlying
the obviousness analysis is whether those of ordinary skill in the art would
have understood how to select suitable ICPs for forming Li’s suggested
fibers and nonwovens. Thus, we review the evidence to answer that
question.
A preponderance of the evidence supports the Examiner’s
determination that the ordinary artisan would have understood how to make
the selections to form the fibers and nonwovens of Li. Final Act. 4; Ans. 3–
5.
Li specifically contemplates forming fibers and nonwovens from
HMPP-containing compositions. Li opens the detailed description by stating
the invention as relating to blends of HMPP, propylene plastomer, and NFP
and further broadly states that the invention also “relates to articles made
from such compositions, including molded, cast, and extruded articles, as
well as films and fibers, with improved balance of thermal resistance,
softness, toughness and/or elasticity.” Id. ¶ 40 (emphasis added).
Li suggests that ICP is a viable selection for the HMPP. Li provides
further guidance on the composition and various compositional selections
(Li ¶¶ 41–258) and, within this discussion, states that ICPs can be used as
the HMPP. Li ¶ 160.
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Application 14/787,201

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Li, without discussing any limitations on the identity of the ICP,
separately discusses processing the materials into various articles under
“Blending and Articles of Manufacture.” Li ¶ 259. Within the discussion
under the “Blending and Articles of Manufacture” heading, Li states that the
composition may be, among other things, spun or melt bonded “such as for
fibers.” Li ¶ 266. Li describes fiber and nonwoven processing more
extensively as well. Li ¶¶ 295–313. None of the disclosures convey any
restrictions on the selection of ICP as the HMPP for forming fibers or
nonwovens.
Li states a preference for the ICPs described on pages 37–41 of WO
2004/014998 (Yang). Li ¶¶ 159–160.
Yang discloses that the preferred MFR of the ICPs “depends on the
desired end use but is typically in the range of from about 0.2 dg/min to
about 200 dg/min, more preferably from about 5 dg/min to about 100
dg/min.” Yang 40:23–25. Appellant’s ICP MFR range of about 25 to above
100 g/10 min is completely within Yang’s most preferred range of about 5
dg/min to about 100 dg/min (about 5 g/10 min to about 100 g/10 min).
Yang states that ICPs “are commonly used in a variety of applications
where strength and impact resistance are desired such as molded and
extruded automobile parts, household appliances, luggage and furniture.”
Yang 37:1–6. Although Yang does not state that ICPs were known for use in
blends for producing fibers, neither does Yang foreclose such use and Li
specifically discloses forming fibers and nonwovens from HMPP-containing
blends and discloses using ICP as the HMPP.
Cheng, contrary to Appellant’s arguments (Appeal Br. 5–7), supports
the Examiner’s determination that it would have been obvious to those of
Appeal 2020-005544
Application 14/787,201

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ordinary skill in the art to select those ICPs with MFRs appropriate for
forming blends that would successfully form fibers. Cheng is specifically
directed to blended polypropylene compositions suitable for spinbonding
fibers and nonwovens and the polypropylene many include ICPs. Cheng col.
1, ll. 39–48; col. 3, ll. 35–42. Cheng’s blends may have MFRs of 25 g/10
min to about 35 g/10 min, which is within Appellant’s range of 25 to 42 g/10
min. Cheng col. 6, ll. 1–3.
Appellant is correct that Li does not include specific examples of
spinning fibers using a blend containing ICP (Appeal Br. 6) and that “[n]one
of Li, Yang, or Chang address the challenges of forming fiber from ICP, nor
do they identify an ICP, or composition including an ICP, that may be
successfully spun into fibers having improved properties” (Appeal Br. 7),
but Appellant offers no objective evidence indicating that solving the
challenges would have required more than routine experimentation by those
of ordinary skill in the art.
After considering the totality of the reference disclosures, we
determine that a preponderance of the evidence supports the Examiner’s
determination that selecting ICPs within the teachings of Li and Yang of
MFR suitable for forming fibers and nonwovens was within the ordinary
skill of the artisan. “The combination of familiar elements according to
known methods is likely to be obvious when it does no more than yield
predictable results.” KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007);
see also In re Aller, 220 F.2d 454, 456 (CCPA 1955) (“where the general
conditions of a claim are disclosed in the prior art, it is not inventive to
discover the optimum or workable ranges by routine experimentation.”).
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According to Appellant, “[t]he inventors have identified a specific
composition using an ICP that unexpectedly achieves good extensibility,
spinnability, and softness in a spunmelt process; not all ICPs generally
would be suitable for such blends. See Application, Examples.” Appeal Br.
7. But given a preponderance of the evidence supports the Examiner’s
conclusion of obviousness, it was Appellant’s burden to support a showing
of unexpected results. See In re Piasecki, 745 F.2d 1468, 1472 (Fed. Cir.
1984). Appellant’s broad brush “[s]ee Application, Examples” does not
suffice to satisfy the burden.
CONCLUSION
The Examiner’s decision to reject claims 1, 2, 4–18, and 20–25 under
35 U.S.C. § 103 as being unpatentable over Li, Yang, and Cheng is affirmed.

DECISION SUMMARY
In summary:
Claim(s)
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1, 2, 4–18,
20–25
103 Li, Yang, Cheng 1, 2, 4–18,
20–25

TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv) (2019).
AFFIRMED