Gregory Filou et al.

Patent Trials and Appeals Board

Dec 29, 2021

2021004752 (P.T.A.B. Dec. 29, 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.
13/003,438 06/13/2011 Gregory Filou 0078840-001034 8734
21839 7590 12/29/2021
BUCHANAN, INGERSOLL & ROONEY PC
1737 KING STREET
SUITE 500
ALEXANDRIA, VA 22314-2727
EXAMINER
PATTERSON, MARC A
ART UNIT PAPER NUMBER
1782
NOTIFICATION DATE DELIVERY MODE
12/29/2021 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):
ADIPDOC1@BIPC.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte GREGORY FILOU and CYRILLE MATHIEU
Appeal 2021-004752
Application 13/003,438
Technology Center 1700
Before JAMES C. HOUSEL, N. WHITNEY WILSON, and
JENNIFER R. GUPTA, Administrative Patent Judges.

WILSON, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s July 23, 2020 decision to finally reject claims 1, 11–16, 21, 23,
and 25–28 (“Final Act.”). A video hearing was held on December 16, 2021,
a transcript of which will be made part of the record. We have jurisdiction
under 35 U.S.C. § 6(b).
We affirm.

1 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42
(2013). Appellant identifies the real party in interest as Arkema France
(Appeal Br. 1).
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CLAIMED SUBJECT MATTER
Appellant’s disclosure is directed “to a pulverulent2 composition for
the manufacture of articles having a metallic appearance that is stable over
time and an improved resistance to penciling” (Abstract). The disclosed
composition comprises (1) a thermoplastic polymer, (2) a pigment with an
optical effect, and (3) a metallic pigment (id.). Claim 1, reproduced below
from the Claims Appendix, is illustrative of the claimed subject matter:
1. A pulverulent composition capable of the manufacture of
articles with a metallic appearance that is stable over time with
resistance to metal marking, said composition comprising:
- from 50% to 99.9% by mass of at least one
thermoplastic polymer that is PA-11,
- from 0.1% to 1% by mass of at least one pigment with
an optical effect, that is one or more nacreous interference
pigments
- at least one metallic leafing pigment that is not an effect
pigment and is aluminum, copper, copper or aluminum alloys,
or mixtures thereof, said metallic leafing pigment present in an
amount not exceeding 0.3% relative to the total mass of the
composition,
- said pulverulent composition being prepared by dry
blending of the polymer and pigments.

2 Pulverulent means “consisting of or reducible to fine powder” or “being or
looking dusty” (Merriam-Webster Online Dictionary, https://www.merriam-
webster.com/dictionary/pulverulent, last accessed on December 14, 2021).
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REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Keeny et al. US 6,018,000 January 25, 2000
Kil-Wan et al. US 2004/0096579 A1 May 20, 2004
O’Neill et al. US 2006/0058427 A1 March 16, 2006
Richter et al. US 2006/0135670 A1 June 22, 2006

REJECTIONS
1. Claims 1, 11–16, 21, and 25–28 are rejected under 35 U.S.C.
§ 103(a) as unpatentable over O’Neill in view of Richter and Kil-Wan.
2. Claim 23 is rejected under 35 U.S.C. § 103(a) as unpatentable
over O’Neill in view of Richter and Kil-Wan, and further in view of Keeny.
OPINION
Appellant does not argue any claim separately (see, Appeal Br. 6–21).
Accordingly, we select claim 1 as representative. Having considered the
arguments set forth by Appellant in the Appeal Brief and the Reply Brief,
we determine that the preponderance of the evidence of record supports the
rejection, essentially for the reasons articulated in the Final Action and the
Examiner’s Answer. We add the following for emphasis.
The Examiner’s findings are set forth at pages 2–3 of the Final
Action. The Examiner finds that O’Neill teaches each element of claim 1,
except that O’Neill does not disclose (1) the use of PA-11 (polyamide 11) as
the thermoplastic polymer, and (2) the use of an interference pigment that is
a nacreous interference pigment (Final Act. 2–3, citing O’Neill ¶¶ 8, 34, 39,
44, 45, 47, 64, 65). The Examiner further finds that Richter “teach[es] a
coating comprising polyamide 11 . . . for the purpose of obtaining a coating
that provides homogeneous mixing with a pigment” (Final Act. 3, citing
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Richter, ¶¶ 13, 14). The Examiner determines that it would have been
obvious to use polyamide 11 in O’Neill’s system “in order to obtain a
coating that provides homogeneous mixing with a pigment as taught by
Richter” (Final Act. 3). The Examiner also finds that Kil-Wan teaches that it
was well known to use pearlescent pigments for the purpose of expressing
multiple colors depending on visual angle and determines that it would have
been obvious to use such a pigment in O’Neill’s system “in order to obtain
expression of multiple colors depending on visual angle” (id.).
Appellant contends that the rejection should be reversed because “the
teachings of how to produce O’Neill’s compositions are not compatible with
the teachings of Richter” (Appeal Br. 7–8). Appellant argues that O’Neill
“relates to methods of making sticky powder comprising mixing one or more
resin powders in one or more mixing devices without agglomerating the
powders and while measuring the power, work or torque drawn by the
mixing devices” (Appeal Br. 8) (emphasis omitted). Appellant states that
O’Neill teaches that its mixing continues until the measure of the power or
torque drawn indicates that the powders have become sticky (id.).
According to Appellant, a person of skill in the art with knowledge of
O’Neill seeking to create powder compositions would have expected that
powder compositions need to be “sticky” to properly bond any metallic or
non-metallic flakes and would have expected that the mixing speed (i.e.,
shear force) of the mixer would have an effect on achieving the “stickiness”
(Appeal Br. 10.).
Appellant contends that O’Neill teaches that the mixing speed can
affect the heat generated during the mixing process to create the required
stickiness, but “fails to disclose a general range of mixing speeds that would
be acceptable for achieving the required powder stickiness” so that a person
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of skill in the art would need to rely on the mixing speeds disclosed in
O’Neill’s examples (Appeal Br. 11) (emphasis omitted). According to
Appellant, O’Neill teaches that at mixing speeds of 1600 rpm its
compositions become overheated and would congeal if mixing were allowed
to continue (Appeal Br. 11, citing O’Neill, ¶¶ 67, 68).
Appellant states that Richter relates to the production of a powder
composition containing a thermoplastic polymer or a powder blend of two or
more thermoplastic polymers and a metal powder (Appeal Br. 12, citing
Richter, Abstract). According to Appellant, Richter teaches mixing at high
speeds (above 1500 rpm) and temperatures in order to achieve homogeneous
mixing (Appeal Br. 13).
Therefore, according to Appellant, a person of skill in the art would
not have combined Richter’s teachings (i.e. the use of PA-11) in O’Neill’s
system:
Those of ordinary skill in the art are led to expect that to obtain
a homogenous “sticky” composition possessing polyamide 11
and metal particles, the composition would need to be
continuously mixed at speeds above 1500 rpm without stopping
or slowing the mixing speed, which conflicts with the teachings
of O'Neill. Those of ordinary skill would further have reason to
expect that in continuously mixing a composition possessing
polyamide 11 and metallic particles at speeds above 1500 rpm,
without the stopping or slowing down of the mixer, would
cause the composition to agglomerate and render it useless for
coating operations. Henceforth, the proposed modification
presented by the Office would render the compositions of
O'Neill unsatisfactory for their intended purposes since O'Neill
explicitly states in its disclosure that it intends to create powder
compositions that do not agglomerate to be used as coatings.
(Appeal Br. 14–15) (emphasis omitted).
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This line of argument is not persuasive of reversible error. As noted
by Appellant (Appeal Br. 8), O’Neill teaches that bonding flakes to sticky
powder compositions depends on a number of factors, including the
composition of the thermosetting resin coating powder and the blade speed
of the mixing apparatus (O’Neill, ¶ 5). Appellant’s argument, however,
relies on an assertion that because O’Neill fails to disclose a general range of
mixing speeds that would be acceptable for achieving the desired powder
stickiness, a person of skill in the art “would have no other choice but to rely
on the mixing speeds disclosed in the examples of O’Neill when devising
their own methods of creating ‘sticky’ powder compositions” (Appeal Br.
11).
However, O’Neill specifically states that mixing speed and the
composition of the thermosetting resin coating powder are factors which
affect the process (O’Neill, ¶ 5). Thus, a person of skill in the art would
have understood that picking a specific resin might affect the other factors
influencing the process, such as the mixing speed, and would have been able
to select an appropriate speed. A person of skill in the art would not have
understood from O’Neill that only a mixing speed of 1600 RPM was
possible. What a reference teaches a person of ordinary skill is not limited
to what a reference specifically “talks about” or what is specifically
“mentioned” or “written” in the reference. Syntex (U.S.A.) LLC v. Apotex,
Inc., 407 F.3d 1371, 1380 (Fed. Cir. 2005). “[A] person of ordinary skill is
also a person of ordinary creativity, not an automaton.” KSR v. Teleflex, 550
U.S. 398, 421 (2007).
That Richter suggests a mixing speed of 1500 rpm does not mean that
a person of skill in the art seeking to use polyamide-11 in O’Neill’s process
would feel compelled to necessarily use that mixing speed. Moreover, as
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explained by the Examiner, O’Neill specifically states that a polyamide can
be used. Richter is relied on merely to identify a specific polyamide which
might be used. Thus, the mixing speeds relied on by Richter would not
dictate what mixing conditions a person of skill in the art might choose in
O’Neill’s process.
Therefore, we determine Appellant has not demonstrated reversible
error in the obviousness rejection of claim 1 over O’Neill in view of Richter
and Kil-Wan.
CONCLUSION
The Examiner’s rejection is affirmed.
DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1, 11–16,
21, 25–28
103(a) O’Neill, Richter,
Kil-Wan
1, 11–16,
21, 25–28

23 103(a) O’Neill, Richter,
Kil-Wan, Keeny
23
Overall
Outcome
1, 11–16,
21, 23,
25–28

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) (2013).
AFFIRMED