Ford Global Technologies, LLC

Patent Trials and Appeals Board

Oct 15, 2021

2021003313 (P.T.A.B. Oct. 15, 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.
15/971,584 05/04/2018 Talat Karmo 84006967 1033
143671 7590 10/15/2021
FGTL
Burris Law, PLLC
300 River Place Drive, Suite 1775
Detroit, MI 48207
EXAMINER
VO, HAI
ART UNIT PAPER NUMBER
1788
NOTIFICATION DATE DELIVERY MODE
10/15/2021 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):
docketing@burrisiplaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte TALAT KARMO, ALPER KIZILTAS,
PAUL KENNETH DELLOCK, STUART SALTER, and
RICHARD GALL
__________

Appeal 2021-003313
Application 15/971,584
Technology Center 1700
____________

Before MICHAEL P. COLAIANNI, GEORGE C. BEST, and
CHRISTOPHER C. KENNEDY, Administrative Patent Judges.

COLAIANNI, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134 the final rejection of claims
1–7, 9–11, 14, 16, 17, and 20. Claim 19 is currently pending but is not
subject to any ground of rejection.2 We have jurisdiction over the appeal
pursuant to 35 U.S.C. § 6(b). Oral arguments were heard in this appeal on
October 4, 2021.

1 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42. Appellant
identifies the real party in interest as Ford Global Technologies, LLC.
(Appeal Br. 3).
2 The Examiner withdrew the 35 U.S.C. § 112(b) rejection of claim 19, the
sole ground of rejection for this claim (Ans. 15; Final Act. 3).
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We AFFIRM.
Appellant’s invention is directed to polypropylene composite
materials (Spec. ¶ 1).
Claim 1 is illustrative:
1. A composite material comprising:
a recycled polypropylene material in an amount between
50 wt.% and 85 wt.%;
recycled tire rubber in a form of micronized rubber
powder in an amount between 2.0 wt.% and 30 wt.%, the
micronized rubber powder having a particle size between 10
μm to 180 μm;
a heat stabilizer in an amount between 0.25 wt.% and 3.0
wt.%;
a coupling agent in an amount between 1.0 wt.% and 5.0
wt.%; and
structural reinforcements in an amount between 5.0 wt.%
and 40 wt.%.
Appellant appeals the following rejections:
1. Claims 1, 2, 5, and 6 are rejected under 35 U.S.C. § 103 as
unpatentable over Young (US 2018/0072879 A1, published
Mar. 15, 2018) in view of Zhou (CN 104479221, issued Apr. 1,
2015).
2. Claims 3 and 4 are rejected under 35 U.S.C. § 103 as
unpatentable over Young in view of Zhou, and Su (CN
103571036, issued Feb. 12, 2014).
3. Claim 4 is rejected under 35 U.S.C. § 103 as unpatentable over
Young in view of Zhou, and Dellock (US 8,642,683 B1, issued
Feb. 4, 2014).
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4. Claim 7 is rejected under 35 U.S.C. § 103 as unpatentable over
Young in view of Zhou, and Engle (US 3,249,575, issued May
3, 1966).
5. Claims 9 and 10 are rejected under 35 U.S.C. § 103 as
unpatentable over Young in view of Zhou, Engle, and Muzzy
(US 6,271,270 B1, issued Aug. 7, 2001).
6. Claim 11 is rejected under 35 U.S.C. § 103 as unpatentable
over Young in view of Zhou, Engle, and Su.
7. Claims 1, 2, 5–7, 9, and 10 are rejected under 35 U.S.C. § 103
as unpatentable over Boor (US 2009/0308009 A1, published
Dec. 17, 2009) in view of Young.
8. Claims 3, 4, and 14 are rejected under 35 U.S.C. § 103 as
unpatentable over Boor in view of Young, and Su.
9. Claim 4 is rejected under 35 U.S.C. § 103 as unpatentable over
Boor in view of Young, and Dellock.
10.Claim 11 is rejected under 35 U.S.C. § 103 as unpatentable
over Boor in view of Young, and Su.
11.Claims 16, 17, and 20 are rejected under 35 U.S.C. § 103 as
unpatentable over Kelman (US 5,005,887, issued Apr. 9, 1991)
in view of Boor, and Young.
Appellant argues subject matter common to claims 1, 14, and 16 only
(Appeal Br. 10–19).
FINDINGS OF FACT & ANALYSIS
We review the appealed rejection for reversible error based on
Appellant’s presentation of arguments and evidence. 37 C.F.R.
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§ 41.37(c)(1)(iv); Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010)
(precedential) cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed.
Cir. 2011) (explaining that even if the Examiner had failed to make a prima
facie case, “it has long been the Board’s practice to require an applicant to
identify the alleged error in the examiner’s rejections”).
§ 103 Rejections (1) to (6): Young in view of Zhou
The Examiner’s findings and conclusions regarding Young and Zhou
are located on pages 4 to 5 of the Final Action. The Examiner finds Young
teaches the subject matter of claim 1, except for the recited heat stabilizer,
structural reinforcements, and a flame retardant agent (Final Act. 4). The
Examiner finds Zhou teaches a recycled polypropylene material having
additives such as, inter alia, glass fiber, flame retardants, and anti-oxidants
(Final Act. 4). The Examiner concludes it would have been obvious to
include an anti-oxidant taught by Zhou in Young’s composition to stabilize
the color and appearance of the surface of the composite material (Final Act.
5). The Examiner further concludes it would have been obvious to include
Zhou’s glass fiber and flame retardant in Young’s composition to impart
impact strength and flame retardant properties to the material, respectively
(Final Act. 5).
Appellant argues Young teaches a simple composition and seeks to
avoid additional ingredients such as heat stabilizers and structural
reinforcements in the composition (Appeal Br. 11). Appellant argues that
Young’s paragraph 21 describes that the disclosed composition is
“advantageous in that use of other . . . components is avoided, thereby
resulting in a simple process for forming the elastomer composition.”
(Appeal Br. 11). Appellant contends Young’s paragraph 21 intentionally
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excludes additional ingredients such as heat stabilizers and structural
reinforcements (Appeal Br. 11).
Contrary to Appellant’s argument, Young’s paragraph 21 teaches that
the composition is advantageous in that other processing components such
as oil are avoided. The Examiner is correct that the context of Young’s
paragraph 21 disclosure is informed by the paragraph 20 disclosure that
requires an oil be added as a processing aid in making the composition (Ans.
16). As acknowledged by Appellant, Young’s paragraph 43 teaches that
other components may be added to the composition such as fillers, coloring
agents, and plasticizers (Appeal Br. 11). Young’s disclosure is not limited to
only those exemplified additives. Young’s paragraph 43 is open to including
one or more additional components “as are customary in the formulation of
elastomers.” Zhou teaches anti-oxidants, reinforcing filler and flame
retardants are commonly used in polypropylene formulations that include
elastomers (e.g., “POE plastics”) (Zhou 2–3, 5–6). Young teaches that it
was known to add anti-oxidants and fibrous filler reinforcements to
thermoplastic elastomers (¶¶ 5, 13, 17). In other words, the teachings of the
references as a whole would have suggested adding glass fiber, anti-oxidants
and flame retardants to Young’s thermoplastic elastomer to impart desirable
properties to the plastic.
Appellant asserts in the Appeal Brief that a person skilled in the art
would know that adding glass fiber to Young’s composition in order to
impart impact strength or strength would reduce the tensile strain at break
(i.e., ductility) (Appeal Br. 11–12). Appellant contends that making such an
addition lacks motivation and would have rendered Young unsatisfactory for
its intended purpose (Appeal Br. 12).
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The Examiner correctly finds Appellant’s arguments regarding the
glass fibers unpersuasive as they are mere attorney arguments that lack
evidence in the record (Ans. 17). Appellant argues in the Rely Brief that the
Examiner’s findings regarding adding glass fibers are conclusory and lack
evidence (Reply Br. 4). Appellant further argues for the first time that
adding glass fibers may also decrease impact strength of a material (Reply
Br. 4). As support for this argument, Appellant proffers new evidence in the
form of a citation to and excerpt from Yao (Reply Br. 4). In addition
Appellant argues for the first time that adding Zhou’s stabilizer to Young’s
composition to prevent color degradation would not have been obvious
because Young does not disclose any need for color stabilization (Reply Br.
3).
These arguments and evidence do not comply with rule 37 C.F.R.
§ 41.41(b). The Examiner determines in the Final Action that adding Zhou’s
stabilizer to Young’s composition would have been obvious in order to
stabilize the color and appearance of the surface of the composite material
(Final Act. 5). The Examiner further determines that adding Zhou’s glass
fiber to Young’s composition would have been obvious to impart impact
strength to the composite material (Final Act. 5). Appellant had the
opportunity to respond to these determinations in the Appeal Brief and chose
not to do so. The Examiner’s statement that Appellant’s arguments
regarding the glass fibers are unsupported conclusory statements in the
Answer is not an invitation for Appellant to provide untimely evidence or
argument in the Reply Brief (Ans. 17). Because we find these arguments
and evidence to be improperly submitted for the first time in the Reply Brief,
we will not consider these arguments and evidence. 37 C.F.R. § 41.41(b).
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Appellant relies on these same arguments in disputing the Examiner’s
rejections (2) to (6) of dependent claims (Appeal Br. 12–14). We affirm the
Examiner’s § 103 rejections (1) to (6) listed above for the same reasons.
§ 103 Rejections (7) to (11): Boor in view of Young
The Examiner’s findings and conclusions regarding Boor and Young
are located on pages 10 to 11 of the Final Action. The Examiner finds that
Boor teaches the subject matter of claim 1, except for the use of recycled
polypropylene, a coupling agent, and recycled tire particles having a content
of 2–30 wt% and a particle size from 10 to 180 microns (Final Act. 10). The
Examiner finds Young teaches a composite material that uses a recycled
polypropylene polyolefin grafted maleic anhydride in an amount of 0.2 to 5
wt% (Final Act. 10–11). The Examiner finds Young teaches using crumb
rubber having a particles size from 10 to 100 microns obtained from waste
tires in an amount of at least 5 wt% (Final Act. 10). The Examiner finds the
polypropylene grafted maleic anhydride corresponds to the claimed coupling
agent (Final Act. 11). The Examiner concludes it would have been obvious
to substitute recycled polypropylene of Young for Boor’s virgin
polypropylene to make the product more environmentally friendly (Final
Act. 11). The Examiner concludes it would have been obvious to use
Young’s polypropylene grafted maleic anhydride in Boor’s composite
material to promote bonds between the filler and the polypropylene (Final
Act. 11). The Examiner further concludes it would have been obvious to use
Young’s crumb rubber for the tire bits in Boor in order to enhance the tensile
strength of the composite (Final Act. 11).
Appellant argues the Examiner’s reasoning for combining Young’s
crumb rubber with Boor’s composite is based upon impermissible hindsight
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because Boor already solves the problem of enhancing tensile strength using
fillers such as recycled tire bits (Appeal Br. 15). Appellant argues that Boor
has no reason to substitute Young’s crumb rubber for the tire bits absent
hindsight (Appeal Br. 15). Appellant makes the same arguments regarding
the rejection of claims 14 and 16 (Appeal Br. 16–17, 18–19). Appellant
additionally argues that only the Specification provides a teaching that
adding crumb rubber enhances tensile strength (Reply Br. 6).
Contrary to Appellant’s arguments, Young teaches that adding crumb
rubber with a particle size of 40 microns or less “provides a composition
having a very good tensile strength” (¶ 33). Young’s crumb rubber particle
size range of 40 microns or less overlaps with the claimed crumb rubber size
range from between 10 to 180 microns. Accordingly, the teaching to use
crumb rubber having a particle size within the range recited in claim 1 to
enhance tensile strength is based on the teachings of the prior art and not
impermissible hindsight.
Appellant argues for the first time in the Reply Brief that the
Examiner’s reasoning at page 10 of the Answer to use Young’s maleic
anhydride grafted polypropylene to promote bonds between the filler and the
polypropylene is based on hindsight (Reply Br. 5). Appellant argues that the
Specification disclosed the desire to promote bonds between filler and
polypropylene not Boor (Reply Br. 5). These arguments are untimely. See,
37 C.F.R. § 41.41(b). Although Appellant cites to page 10 of the Answer,
that portion of the Answer is merely a copy of the Examiner’s Final Action
(Ans. 10; Final Act. 11). In other words, Appellant had the opportunity to
present arguments against these determinations of the Examiner but chose
not to do so in the Appeal Brief. New argument and evidence is not
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permitted in a Reply Brief. 37 C.F.R. § 41.41(b). We will not consider
these arguments.
Regarding claim 14, Appellant argues the Examiner’s rejection refers
to Boor and Young failing to teach carbon fibers, whereas claim 14 recites
glass fibers (Appeal Br. 16). Appellant contends the Examiner has not
established a prima facie case of obviousness (Appeal Br. 16). We note that
the Examiner lumped claim 3 along with the rejection of claim 14 (Final
Act. 11–12). Claim 3 recites that the structural reinforcements are recycled
carbon fibers. It is apparent that the body of the rejection refers to the claim
limitations in claim 3. However, in the Answer, the Examiner clarifies that
Boor’s filler includes glass fibers (Ans. 18). The Examiner also found in the
context of claim 1, which includes similar limitations to those of claim 14
that Boor teaches using glass fibers (Final Act. 10). Accordingly, the record
is clear that the Examiner finds that Boor teaches glass fibers are part of the
composition. Appellant has not established reversible error in the
Examiner’s rejection of claim 14.
On this record, we affirm the Examiner’s § 103 rejections (7) to (11).
DECISION

Claims
Rejected
35 U.S.C. § Reference(s)/
Basis
Affirmed Reversed
1, 2, 5, 6 103 Young, Zhou 1, 2, 5, 6
3, 4 103 Young, Zhou,
Su
3, 4
4 103 Young, Zhou,
Dellock
4
7 103 Young, Zhou,
Engle
7
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Claims
Rejected
35 U.S.C. § Reference(s)/
Basis
Affirmed Reversed
9, 10 103 Young, Zhou,
Engle, Muzzy
9, 10
11 103 Young, Zhou,
Engle, Su
11
1, 2, 5-7, 9,
10
103 Boor, Young 1, 2, 5-7,
9, 10

3, 4, 14 103 Boor, Young,
Su
3, 4, 14
4 103 Boor, Young,
Dellock
4
11 103 Boor, Young,
Su
11
16, 17, 20 103 Kelman,
Boor, Young
16, 17, 20
Overall
Outcome
1-7, 9-11,
14, 16, 17,
20

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).
AFFIRMED