Galvan, Monica et al.

Patent Trials and Appeals Board

Oct 24, 2019

14436412 - (D) (P.T.A.B. Oct. 24, 2019)

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.
14/436,412 04/16/2015 Monica Galvan FE6749 3201
24114 7590 10/24/2019
LyondellBasell Industries
Legal IP Department
1221 McKinney Street, Suite 700
LyondellBasell Tower
Houston, TX 77010
EXAMINER
BLACKWELL, GWENDOLYN
ART UNIT PAPER NUMBER
1762
NOTIFICATION DATE DELIVERY MODE
10/24/2019 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):
legal-IP@lyondellbasell.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MONICA GALVAN, ANDREAS NEUMANN,
TIZIANA CAPUTO, STEFANO SQUARZONI, ANTONIO MAZZUCCO,
OFELIA FUSCO, BENEDETTA GADDI, and GIANNI COLLINA
Appeal 2019-001193
Application 14/436,412
Technology Center 1700
Before LINDA M. GAUDETTE, MERRELL C. CASHION JR., and
JANE E. INGLESE, Administrative Patent Judges.
GAUDETTE, Administrative Patent Judge.
DECISION ON APPEAL1
The Appellant2 appeals under 35 U.S.C. § 134(a) from the Examiner’s
decision finally rejecting claims 1 and 8–13.3
We AFFIRM.

1 This Decision includes citations to the following documents: Specification
filed Apr. 16, 2015 (“Spec.”); Final Office Action dated Dec. 27, 2017
(“Final”); Appeal Brief filed May 29, 2018 (“Br.”); and Examiner’s Answer
dated Sept. 5, 2018 (“Ans.”).
2 We use the word “Appellant” to refer to the “Applicant” as defined in 37
C.F.R. § 1.42(a). The Appellant identifies the real party in interest as Basell
Poliolefine SRL. Appeal Br. 2.
3 We have jurisdiction under 35 U.S.C. § 6(b).
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Application 14/436,412

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CLAIMED SUBJECT MATTER
The claims are directed to a process for the preparation of propylene
random copolymers. Claim 1, reproduced below, is illustrative of the
claimed subject matter:
1. A process for the preparation of a propylene random
copolymer containing up to 6% by weight of ethylene units,
comprising the step of copolymerizing propylene and ethylene
in the presence of a catalyst system comprising the product
obtained by contacting the following components:
(a) a solid catalyst component having a particle size from
15–80 μm comprising a magnesium halide, a titanium
compound having at least a Ti-halogen bond and at
least two electron donors, the first comprising a
succinate in an amount from 65–80% by weight with
respect to the total amount of electron donors and the
second comprising a 1,3-diether,
(b) an aluminum hydrocarbyl compound, and
(c) optionally an external electron donor compound;
wherein the random propylene copolymer comprises a
melt flow rate (MFR; ISO 1133, 230 °C, 5 kg) of 0.9–1.5
g/10 minutes, a xylene solubility of less than 9.0%, and a
rheological polydispersity index (PI) of 4.0–5.0.
REFERENCES
The Examiner relies on the following prior art as evidence of
unpatentability:
Toyota US 4,547,552 Oct. 15, 1985
Morini
Dolle
Standaert
US 2005/0032633 A1
US 2006/0167141 A1
US 2009/0326172 A1
Feb. 10, 2005
Jul. 27, 2006
Dec. 31, 2009

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REJECTIONS
1. Claim 10 is rejected under 35 U.S.C. § 112(d) or 35 U.S.C.
§ 112, fourth paragraph.
2. Claims 1, 8–10, 12, and 13 are rejected under 35 U.S.C.
§ 103(a) as unpatentable over Standaert in view of Dolle and Toyota.
3. Claim 11 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Standaert in view of Dolle, Toyota, and Morini.
OPINION
The Appellant does not challenge the rejection of claim 10 under
35 U.S.C. § 112(d) or 35 U.S.C. § 112, fourth paragraph, as failing to further
limit the scope of claim 1. Ans. 7; see generally Br. Accordingly, we
summarily sustain this ground of rejection.
The Appellant’s traversal of the rejections under 35 U.S.C. § 103(a) is
based solely on independent claim 1 limitations. See Br. 3–8. The Examiner
found that Standaert discloses a process as recited in claim 1 with the
exceptions that Standaert is silent with respect to (1) “the random copolymer
comprising a xylene solubility [(XS)] of less than 9.0%, and a rheological
polydispersity index [(PI)] of 4.0 to 5.0” (Final 5), (2) “the random
copolymer having a melt flow rate (230 °C, 5 Kg) of 0.9 to 1.5 g/10 min.”
(id.), and (3) the catalyst component having a particle size from 15–80 μm
(id. at 6).
As to the xylene solubility and rheological polydispersity index
limitations, the Examiner found that Standaert discloses preparing a random
propylene copolymer containing up to 6 wt% ethylene, which is identical to
the claimed range. Id. at 4. The Examiner further found that Standaert
discloses the use of a catalyst containing 40 to 83 weight percent succinate,
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encompassing the claimed range of “65–80% by weight” (claim 1), and a
1,3-diether. Final 4–5. Based on these findings, the Examiner determined
that “one of ordinary skill in the art would have at least expected the random
copolymer of Standaert et al. to have a xylene solubility and a rheological
polydispersity index at least overlapping the claimed ranges.” Id. at 5.
The Appellant argues that neither Standaert, Toyota, nor Dolle
discloses or suggests xylene solubility and rheological polydispersity index
values, and the ordinary artisan would not have had a reasonable expectation
of success in combining the references to arrive at the claimed propylene
random copolymers. Br. 5–6. This argument is not persuasive.
“[W]hen the prior art evidence reasonably allows the PTO to conclude
that a claimed feature is present in the prior art, the evidence ‘compels such
a conclusion if the applicant produces no evidence or argument to rebut it.’”
In re Crish, 393 F.3d 1253, 1259 (Fed. Cir. 2004) (quoting In re Spada, 911
F.2d 705, 708 n.3 (Fed. Cir. 1990)). The Appellant has not explained why
the Examiner’s finding that Standaert’s copolymer necessarily would
possess the claimed xylene solubility and rheological polydispersity index
values is erroneous or unreasonable. The Appellant has
not shown that the random copolymer of Standaert et al. does
not have the claimed properties even though Standaert et al.
polymerizes in the presence of a solid catalyst component
comprising a magnesium halide, a titanium compound having at
least a Ti-halogen bond [0018], and internal donors comprising
a 1,3-diether and a succinate [0019; 0021; 0027; 0028] as
claimed.
Ans. 8.
As to the claimed melt flow rate, the Examiner found that Dolle
discloses producing a polypropylene having a melt flow rate (230 °C, 5 kg)
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of 0.3 to 1 g/10 min, which overlaps the claimed range of 0.9 to 1.5 g/10
min. Final 5–6 (citing Dolle ¶ 9). The Examiner found that one of ordinary
skill in the art would have modified Standaert’s method to produce a
propylene random copolymer having a melt flow rate of 0.3 to 1 g/10 minute
based on Dolle’s teaching that molding compositions made from high-
molecular-weight propylene polymers having a melt flow rate of 0.3 to
1 g/10 minute are useful for making pipes. Id. at 6 (citing Dolle ¶ 2).
The Appellant argues that “the multiplicatively greater ethylene
concentrations of all of the inventive compositions disclosed in Dolle (17.5-
23.6% by weight, see Table 1), as well as the lack of PI and XS values . . .
clearly teaches away from essential embodiments of the propylene random
copolymer produced in accordance with the claimed process.” Br. 6. This
argument is not persuasive.
The Appellant has not explained why a person of ordinary skill, upon
reading Dolle, would have been “discouraged from following the path set
out in the reference, or would [have been] led in a direction divergent from
the path that was taken by the applicant,” In re Gurley 27 F.3d 551, 553
(Fed. Cir. 1994). First, the Appellant’s argument regarding ethylene
concentration is not supported by Dolle’s disclosure. As found by the
Examiner (Ans. 8–9), Dolle discloses that “[i]f the copolymers of propylene
have a random structure, they generally contain, as comonomers, up to 15%
by weight, preferably up to 6% by weight, . . . of other olefins having up to
10 carbon atoms, in particular ethylene or 1-butene, or a mixture of ethylene
and 1-butene” (Dolle ¶ 18). Second, the Appellant’s argument fails to
identify error in the Examiner’s finding that Standaert inherently possesses
the claimed polydispersity index and xylene solubility values. Third, the
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Appellant has not explained persuasively why it was erroneous or
unreasonable for the Examiner to find that one of ordinary skill in the art
would have modified Standaert’s method to produce a propylene random
copolymer having a melt flow rate of 0.3 to 1 g/10 minute based on Dolle’s
teaching that propylene polymers having this melt flow rate are useful in
molding compositions for making pipes.
As to the claimed particle size of the catalyst component, the
Examiner found that Toyota discloses the use of a catalyst component
having an average particle diameter of about 5 to about 100 microns, which
encompasses the claimed range of 15 to 80 μm. Final 6 (citing Toyota 4:11–
12). The Examiner found that one of ordinary skill in the art would have
used a catalyst component having a particle size of about 5 to about 100
microns based on Toyota’s teaching that this particle size prevents
agglomeration or poor dispersion of polymer in the polymerization reactor.
Id. (citing Toyota 4:31–34).
The Appellant argues that one of ordinary skill in the art would not
have had a reasonable expectation of success in arriving at the claimed
invention because Toyota does not remedy the deficiencies of Standaert and
is “silent regarding MFR values, XS values, and PI values for the
compositions disclosed therein.” Br. 5–6. This argument is not persuasive as
it fails to address the facts and reasons relied on by the Examiner in support
of modifying the catalyst particle size in Standaert based on the benefits
described in Toyota.
The Appellant also argues that “the skilled artisan would not have
combined Standaert, Toyota and Dolle for achieving the significantly
improved Izod strength/impact resistance as well as ductile to brittle
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transition temperature (DB/TT) measurements” and that the polypropylene
random copolymers produced by the claimed method exhibit significant
improvements in these properties. Br. 7. As explained by the Examiner,
these arguments are not persuasive because the claims do not recite Izod
strength/impact resistance and DB/TT measurements, and the Appellant has
not shown that the comparison example in the Specification represents the
closest prior art. Ans. 11.
In sum, the Appellant has not shown reversible error in the
Examiner’s conclusion of obviousness as to claims 1 and 8–13 for the
reasons stated above and in the Final Office Action and the Answer.
CONCLUSION
Claims
Rejected
35 U.S.C. § References/Basis Affirmed Reversed
10 112(d) or
112, ¶ 4
10
1, 8–10,
12, 13
103(a) Standaert, Dolle,
Toyota
1, 8–10,
12, 13

11 103(a) Standaert, Dolle,
Toyota, Morini
11
Overall
Outcome
1, 8–13

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