Hu, Yushan et al.

Patent Trials and Appeals Board

Oct 29, 2019

14183949 - (D) (P.T.A.B. Oct. 29, 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.
14/183,949 02/19/2014 Yushan Hu 75317-US-NP
(DC150001US)
3071
14268 7590 10/29/2019
The Dow Chemical Company/Cantor Colburn LLP
20 Church Street
22nd Floor
Hartford, CT 06103-3207
EXAMINER
SHAH, SAMIR
ART UNIT PAPER NUMBER
1787
NOTIFICATION DATE DELIVERY MODE
10/29/2019 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):
ffuimpc@dow.com
usptopatentmail@CantorColburn.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte YUSHAN HU, RAJEN M. PATEL, GARY R. MARCHAND,
and SHARON L. BAKER

Appeal 2018-007615
Application 14/183,949
Technology Center 1700
____________

Before LINDA M. GAUDETTE, KAREN M. HASTINGS, and
MICHAEL P. COLAIANNI, Administrative Patent Judges.

COLAIANNI, Administrative Patent Judge.

DECISION ON APPEAL

Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–15. Claims 16 and 17 are withdrawn
from consideration by the Examiner. We have jurisdiction under
35 U.S.C. § 6(b). Appellant presented oral arguments in the appeal on
October 1, 2019.
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies the real party in interest as Dow Global
Technologies LLC. App. Br. 2.
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Appellant’s invention is directed to multilayered polyolefin films
(Spec. ¶ 1).
Claim 1 is representative of the subject matter on appeal:
1. A multilayer film comprising:
two outer layers; where each outer layer comprises
polyethylene;
two tie layers; where each tie layer comprises 50 weight percent
to 100 weight percent of crystalline block copolymer composite;
where each tie layer has a first face and a second face that are opposed
to each other, and where the first face of each tie layer contacts at
least one outer layer; and
a core layer, where the core layer comprises a polypropylene;
where the second face of each tie layer contacts the core layer, and
where the core layer has a thicknesses that is greater than 50% of the
total thickness of the multilayer film.

Appellant appeals the following rejection:
Claims 1–15 are rejected under 35 U.S.C. § 103 as unpatentable over
Saavedra (US 2006/0057410A1, published March 16, 2006) in view of
Liang (US 2013/0177720 A1, published July 11, 2013;
WO 2012/044732 A1, published April 5, 2012) and Koizuka (JP
2000/94604, published April 4, 2000).
Appellant argues the claims as a group (App. Br. 3 to 9). We select
claim 1 as representative of the group.

FINDINGS OF FACT & ANALYSIS
The Examiner’s findings and conclusions regarding Saavedra, Liang
and Koizuka are located on pages 2 to 4 of the Final Action. Appellant does
not specifically contest the Examiner’s combination of Koizuka’s teachings
with Saavedra’s other than to argue that Koizuka does not cure the alleged
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deficiency of Liang (App. Br. 5). Therefore, our decision focuses on the
combination of Saavedra and Liang.
Appellant argues that there is insufficient reason to modify Saavedra’s
tie layers with Liang’s innermost sealant layer (App. Br. 5–6). Appellant
contends that Liang teaches that the polymeric composition for an innermost
sealant layer is an external layer, not a tie layer between two layers in a
multilayer structure (App. Br. 6). Appellant argues that the Examiner has
not properly explained why one of ordinary skill in the art would have used
the sealant layer including the crystalline block composite of Liang in the tie
layer of Saavedra (App. Br. 6). Appellant contends that the Examiner
provides no evidence from Appellant’s Specification that a crystalline block
composite that has a low heat seal initiation temperature and strong and a
high hot tack strength that would be pertinent to a tie layer used for layer-to-
layer adhesion in a film (App. Br. 7). Appellant contends that the hot tack
strength property in Liang relates to the strength of the heat seal formed
between two sheets immediately after the seal has been made and before it
cools to room temperature (App. Br. 7). Appellant argues that the Examiner
has not provided any reasoning to support using Liang’s polymeric
composition as a tie layer between layers in a multi-layer film2 (App. Br. 6).
Contrary to Appellant’s arguments, the Examiner finds that Saavedra
is directed to a multilayer film and Saavedra does not require any particular

2 Appellant argues for the first time that combining Liang’s polymer
composition as a tie layer in Saavedra’s film would render Saavedra
inoperative (Reply Br. 5). Because there is no reason why this argument
could not have been presented earlier in prosecution, we will not consider
this untimely argument. 37 CFR § 41.41(b)(2).
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type of polymer be used for the different layers (Ans. 6). The Examiner
finds that Liang discloses broadly forming a film, not only a sealant layer
(Ans. 6). The Examiner further finds that Saavedra and Liang are directed to
films having good optical properties including good clarity and low haze
(Ans. 6–7). In other words, the Examiner finds that Saavedra and Liang are
directed to films that require similar clarity properties. Based on these
findings, the Examiner determines that a person of ordinary skill in the art
would have combined Liang’s composition with any layer, including the tie
layer, in Saavedra’s multilayer film because Liang’s composition exhibits
low heat seal initiation temperature and high hot tack strength (Ans. 6).
We agree with the Examiner’s analysis. Liang discloses broadly
forming a film from the polymer composition that includes three
components: a propylene-based polymer (component A), an ethylene/α-
olefin polymer (component B), a block composite (component C) (¶¶ 5 to
12, 128). Liang teaches using plastic films to form bags and pouches with
sealing of plastic films together to form the package (¶¶ 1–2). Liang teaches
that the film is improved for heat sealing and has strong and high hot tack
strength and a low heat seal initiation temperature (¶¶ 5, 31). Liang
discloses a single embodiment where the Component C is present in the
polymer composition from 1 to 30 wt.% (¶ 131). However, Liang’s
disclosure does not appear to be limited to that single embodiment. Liang’s
claim 1, for example, does not provide any limit on the amount of block
composite in the polymeric composition.
Although Appellant contends that there is no reason to optimize the
amount of the block composite in Liang’s composition to arrive at the
claimed amount of block copolymer (i.e., 50% to 100%), Liang’s teachings,
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as noted above, are broader than argued by Appellant. Appellant relies on
the single embodiment where Liang uses from 1 to 30 wt.% of the block
composite (App. Br. 7). Appellant contends that the Examiner has not
shown that Liang recognized the amount of the block composite
(Component C) is a result effective variable (App. Br. 8–9). Appellant cites
Liang’s Table 6 as showing that changing the amount of the block composite
has inconsistent effects on properties of the film including the hot tack
strength and hot tack initiation temperature (App. Br. 9). Citing In re
Antonie, 559 F.2d 618 (CCPA 1977), Appellant argues that the Examiner
has not shown that block composite amount is a result-effective variable that
is subject to routine optimization (App. Br. 8, 9).
The facts of Antonie, however, are different than those present in this
appeal. In Antonie the invention is directed to a wastewater treatment device
where the critical feature claimed is the ratio of the tank volume to the
contactor area being 0.12 gal/sq. ft. Antonie at 618–619. The prior art
applied generally teaches the claimed subject matter in Antonie but is silent
about the tank volume. Id. at 619. The Examiner in Antonie determines that
the prior art disclosure would have rendered obvious the use of a claimed
ratio as a matter of routine optimization. Id. The court disagrees with the
Examiner because the art does not recognize the ratio as a result-effective
variable (i.e., it is silent about the relationship between the volume of the
tank and the contactor area). Antonie at 620.
In contrast, Liang indicates that the amount of the block composite
(Component C) is an important variable in forming the polymeric
composition. Unlike prior art in Antonie, Liang is not silent about the
variable the Examiner finds to be result-effective (i.e., the amount of
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component C). Rather, Liang indicates that it is one of the three components
that may be varied in formulating a polymeric composition that has high
tack strength and low heat seal initiation temperatures (¶¶ 43 to 49, 71). In
our view, the Examiner has established that Liang recognizes the amount of
the block composite (component C) is a result-effective variable in
achieving a polymeric composition having high tack strength and low heat
seal initiation temperature.
As noted above in the decision, we find that Liang includes a broader
teaching as to the amounts of the components and is not limited to the single
embodiment where the block composite is present in an amount from 1 to 30
wt.%. Liang teaches that the amount of component B can be at least 50
wt.% based upon the sum of components A and B (¶ 50). Therefore, when
component A is 1 wt% of the composition and component B is 50 wt.% of
the composition, then the component C (i.e., the block composite) would be
49 wt.% of the composition. Component C being present in an amount of 49
wt.% is very close to the claimed amount 50 to 100%, such that one of
ordinary skill in the art would have understood that they would have similar
properties. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783
(Fed. Cir. 1985). As the Examiner finds, Appellant does not offer any
evidence of criticality in the claimed 50% to 100% amount of the crystalline
block copolymer (Ans. 4). Rather, Appellant’s Specification discloses that
the amounts of crystalline block copolymer can be used in amounts of up to
100% (Spec. ¶ 60). The Specification discloses preferences for the
crystalline block copolymer amounts from 10 to 90%, 20 to 80%, or
specifically 30 to 70% (Spec. ¶ 60). This disclosure appears to undercut the
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criticality of having the crystalline block copolymer in an amount of 50% to
100%.
Contrary to Appellant’s arguments, we find that the Examiner’s
reasons for the modification based on achieving a good hot tack strength and
low heat seal initiation temperature are reasonable. Saavedra’s tie layer
binds two layers together and so the properties of Liang’s polymer material
related to binding layers appear to be reasonably related to such a layer.
Appellant’s arguments regarding the positioning of Liang’s polymer as the
innermost layer as opposed to being between two layers is not dispositive.
The Examiner finds and we agree for the reasons noted throughout the
decision that Liang’s disclosure is not limited to using the film as solely a
sealant layer.
On this record, we affirm the Examiner’s § 103 rejection over
Saavedra, Liang and Koizuka.

CONCLUSION
In summary:
Claims
Rejected
35 U.S.C. § Prior Art Affirmed Reversed
1–15 103 Saavedra in view of
Liang and Koizuka
1–15

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