PURAC BIOCHEM B.V.

Patent Trials and Appeals Board

Mar 29, 2021

2020006039 (P.T.A.B. Mar. 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.
14/346,838 03/24/2014 Jan Noordegraaf 160900 7133
27049 7590 03/29/2021
OLIFF PLC
P.O. BOX 320850
ALEXANDRIA, VA 22320-4850
EXAMINER
JONES JR., ROBERT STOCKTON
ART UNIT PAPER NUMBER
1762
NOTIFICATION DATE DELIVERY MODE
03/29/2021 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):
OfficeAction27049@oliff.com
jarmstrong@oliff.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JAN NOORDEGRAAF and
JOSEPHUS PETRUS MARIA DE JONG
Appeal 2020-006039
Application 14/346,838
Technology Center 1700
Before JAMES C. HOUSEL, JEFFREY R. SNAY, and
DEBRA L. DENNETT, Administrative Patent Judges.
HOUSEL, 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, 4, 5, 9, 12, 13, 17, and 19–23, which
constitute all the claims pending in this application. A telephonic hearing
was held on March 5, 2021, a transcript of which will be made part of the
record. We have jurisdiction under 35 U.S.C. § 6(b).

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 PURAC
BIOCHEM B.V. Appeal Brief (“Appeal Br.”) filed March 20, 2020, 1.
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We AFFIRM.
CLAIMED SUBJECT MATTER
The invention relates to a composition comprising poly-D-lactic acid
(“PDLA”) polymer and poly-L-lactic acid (“PLLA”) polymer, as well as a
process for producing a moulded part using this composition. Specification
(“Spec.”) filed March 24, 2014, 1:4–6.2 Polylactic acid (“PLA”) is a
collective term for polymers based on lactic acid monomers, whose structure
varies from amorphous to semi-crystalline to crystalline depending on its
composition. Id. at 1:14–16. Lactic acid monomer exists in two
stereoisomers, i.e., dextrorotatory or L-lactic acid and levorotatory or D-
lactic acid. Id. at 1:17–20. Although the use of PLA in film blowing,
thermoforming, and injection-moulding is increasing because it may be
produced from natural sources, Appellant discloses that PLA has only
moderate thermal stability and low modulus of elasticity above Tg,3 resulting
in long cooling and cycle times. Id. at 1:24–34. Appellant also discloses that
PLA also has only moderate melt strength above Tm,4 resulting in unstable
blowing processes. Id. at 2:1–4.
Appellant teaches a composition comprising PDLA and PLLA
polymers having improved thermal stability and higher crystallization. Spec.
2:19–21. In this regard, Appellant discloses that a small amount of PDLA
added to PLLA results in a small amount of stereocomplex which acts as a
nucleating agent for the rest of the PLA matrix, wherein PDLA having an

2 This Decision also cites to the Examiner’s Answer (“Ans.”) dated June 23,
2020, and the Reply Brief (“Reply Br.”) filed August 24, 2020.
3 Tg is the polymer’s glass transition temperature.
4 Tm is the polymer’s melting point or temperature.
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optical purity5 of at least 95% is a particularly good nucleating agent and of
at least 99.5% provides “surprisingly good results in terms of crystallization
rate.” Id. at 3:9–13 and 4:20–22. In addition, Appellant discloses that the
rate at which stereocomplex forms increases as the PDLA’s average
molecular weight, Mn, decreases and that an Mn of 30–150 kDa is preferred.
Id. at 5:14–26. Also, Appellant discloses that 4–7 wt.% of PDLA is
preferred as too much PDLA reduces the mechanical properties. Id. at 4:23–
29.
Claims 1 and 9, reproduced below from the Claims Appendix to the
Appeal Brief, are illustrative of the claimed subject matter:
1. A composition obtained by heating to a temperature of 90
to 140 °C a composition consisting of:
a poly-D-lactic acid (PDLA) polymer and a poly-L-lactic
acid (PLLA) polymer, the optical purity of the PDLA being at
least 99.5%, wherein the PDLA is present in an amount of
between 4 and 7 wt% relative to the total weight of the
composition and the number average molecular weight (Mn) of
the PDLA polymer is in a range of from 30 to 150 KDa;
a filler selected from the group consisting of chalk, talc,
starch, modified starch, flour, sawdust, flax, aluminium oxide,
magnesium oxide, hydrated aluminium silicate, kaolin,
polyhydroxyalkanoate (PHA), polyhydroxybutyrate (PHB),
polybutylene succinate (PBS), polybutylene terephthalate (PBT),
polybutylene adipate-co-terephthalate (PBAT), cellulose, and
mixtures thereof; and
optionally at least one plasticizer in an amount of at most
5 wt.[%]6 relative to the total weight of the composition.

5 Appellant defines “optical purity” as the ratio between L-lactide and D-
lactide in a PLA polymer. Spec. 3:23–24.
6 See Spec. 5:32–34.
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9. A method for the production of a moulded part comprising
the steps of:
i. heating a mould to a temperature of 90–140 °C;
ii. supplying to the mould a composition consisting of:
a poly-D-lactic acid (PDLA) polymer and a poly-L-lactic
acid (PLLA) polymer, the optical purity of the PDLA being at
least 99.5%, wherein the PDLA is present in an amount of
between 4 and 7 wt. % relative to the weight of the total weight
of the composition and the number average molecular weight
(Mn) of the PDLA polymer is in a range of from 30 to 150 kDa,
a filler selected from the group consisting of chalk, talc,
starch, modified starch, flour, sawdust, flax, aluminium oxide,
magnesium oxide, hydrated aluminium silicate, kaolin,
polyhydroxyalkanoate (PHA), polyhydroxybutyrate (PHB),
polybutylene succinate (PBS), polybutylene terephthalate (PBT),
polybutylene adipate-coterephthalate (PBAT), cellulose, and
mixtures thereof, and
optionally at least one plasticizer in an amount of at most
5 wt.[%] relative to the total weight of the composition;
iii. forming the moulded part and
iv. removing the moulded part from the mould.
Appeal Br. A-1–A-2.
Independent claim 23 recites substantially the same
composition as recited in claim 1, except for allowing that the optical
purity of the PDLA is at least 95% and limiting the filler to at least
one of PHB and PBAT. Id. at A-3.
REFERENCES
The Examiner relies on the following prior art:
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Name Reference Date
Chou et al. US 2007/0259195 A1 Nov. 8, 2007
Shoji et al. US 2015/0105521 A1 Apr. 16, 2015
Anderson et al. WO 2011/085058 A1 July 14, 2011
H. Yamane, K. Sasai Effect of the Addition
of Poly(D-Lactic
Acid) on the Thermal
Property of Poly(L-
Lactic Acid), Polymer
44, 2569–75.
2003
Amar K. Mohanty et al. NATURAL FIBERS,
BIOPOLYMERS, AND
BIOCOMPOSITES,
CRC Press, p. 553.
2005
HidetoTsuji et al. Isothermal and Non-
isothermal
Crystallization
Behavior of Poly(L-
Lactic Acid): Effects
of Stereocomplex as
Nucleating Agent,
Polymer 47, 3826–
37.
2006

REJECTIONS
The Examiner maintains, and Appellant requests our review of, the
following rejections under 35 U.S.C § 103:
1. Claims 1, 4, 9, 12, 13, 17, and 19–22 as unpatentable over
Anderson in view of Yamane, Tsuji, and Mohanty, as
evidenced by Shoji; and
2. Claims 5 and 23 as unpatentable over Anderson in view of
Yamane, Tsuji, Mohanty, and Shoji, and further in view of
Chou.

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OPINION
We review the appealed rejections for error based upon the issues
Appellant identifies, and in light of the arguments and evidence produced
thereon. 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)
(“[I]t has long been the Board’s practice to require an applicant to identify
the alleged error in the examiner’s rejections.”)). After considering the
argued claims and each of Appellant’s arguments, we are not persuaded of
reversible error in the Examiner’s obviousness rejections. Therefore, we
affirm the stated rejections for substantially the fact findings, reasoning, and
conclusions set forth in the Examiner’s Answer, which we adopt as our own.
We offer the following for emphasis only.
Appellant argues independent claims 1, 9, and 23 together and argues
claim 12 separately. Appellant does not argue the rejections nor the
remaining claims covered by these rejections separately. Therefore, we
select claim 1 to address Appellant’s arguments as to claims 1, 9, and 23,
and address Appellant’s arguments as to claim 12 separately. Claims 4, 5, 9,
13, 17, and 19–23 stand or fall with claim 1 in accordance with 37 C.F.R.
§ 41.37(c)(l)(iv) (2018).
Claim 1
The Examiner finds that Anderson discloses a composition
substantially as recited in claim 1 except for the use of 99.5% optically pure
PDLA as a nucleating agent in an amount of 4–7 wt.% and having an Mn of
30–150 kDa. Ans. 5–6. However, the Examiner finds that Yamane teaches
the addition of 1–5 wt.% PDLA to PLLA to form stereocomplex which acts
as a nucleating agent for the PLLA composition, wherein the higher
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percentage favors both heterogeneous and homologous nucleation of PLLA.
Id. The Examiner also finds that Yamane teaches the PDLA has molecular
weights of 45–260 kDa. Id. at 7. The Examiner further finds that Tsuji
teaches the addition of PDLA having an Mn of 52 kDa successfully forms
stereocomplex crystallites and acts as a nucleating agent for a PLLA
composition. Id. The Examiner concludes that it would have been obvious to
have used PDLA as a nucleating agent in Anderson’s PLLA composition in
an amount of 5 wt.% and having an Mn of 52 kDa (or alternatively, an Mn
from 67.5–390 kDa7) because Yamane and Tsuji teach that PDLA with these
properties in this amount (or range) forms stereocomplex when added to
PLLA which act as a nucleating agent. Id. at 6, 7.
As to optical purity, the Examiner finds that Yamane teaches the use
of only D-lactide and Mohanty teaches that melting point for PLA
stereocomplex are dictated by the optical purity of both the L-lactide-rich
and D-lactide-rich polymers, wherein the greater the deviation in optical
purity of the L-rich and/or D-rich chains, the greater the decrease in
stereocomplex melting peak. Ans. 8. The Examiner finds that Anderson’s
PLLA is at least 98% L-lactic acid, i.e., has an optical purity of at least 98%,
which range encompasses the recited 99.5%. Id. Therefore, the Examiner
concludes that it would have been obvious to use PDLA having at least an
optical purity of at least 98%, including 99.5%, in Anderson, as modified in

7 The Examiner finds that Tsuji teaches the PDLA has a polydispersity
index, Mw/Mn, of 1.5. Ans. 7. Applying this polydispersity index to
Yamane’s Mw of 45–65 kDa yields an Mn of 67.5–390 kDa, according to
the Examiner. Id. Appellant does not challenge these findings.
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view of Yamane and Tsuji, in order to minimize the deviation in optical
purity between PLLA and PDLA in the resulting composition. Id.
The Examiner further finds, and Appellant does not dispute that
Anderson requires use of 3.5–14.5 wt.% of an accelerant, most or all of
which are known plasticizers when used in PLA compositions, as evidenced
by Shoji. Ans. 9. In addition, the Examiner finds that Anderson teaches the
inclusion of 5–15 wt.% of reinforcing agents or fillers. Id.
Unexpected Results
Appellant argues that the claimed composition achieves unexpected
improvements, such as a lower deflection temperature and optimal
mechanical properties (e.g., tensile strength). Appeal Br. 7–8. Appellant
contends that the claimed composition was found to have higher melt
strength than PLLA with conventional nucleating agents, such as talc and
LAK-301. Id. at 8. Appellant directs attention to Example 2, samples 3–6,
using a PDLA with an optical purity of 99.5%, as showing “a clear increase
in tensile strength and elongation at break . . . relative to the compounds of
Example 1.” Id.
Appellant’s evidence is not persuasive of reversible error in the
Examiner’s obviousness rejection of claim 1. The burden of establishing that
unexpected results support a conclusion of nonobviousness rests with
Appellant. In re Huang, 100 F.3d 135, 139 (Fed. Cir. 1996). As the
Examiner finds (Ans. 12), Appellant cites no factual evidence supporting
unexpectedly improved deflection temperature. Indeed, Example 1, HHIM
sample has a greater deflection temperature (“HDT-B”) than any of the
samples of Example 2, while 3801X has a greater deflection temperature
than samples 1 and 6 of Example 2. Compare Spec. 8, Table 1, with id. at 9,
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Table 2. With regard to Example 2, we note that each of samples 3–6 have
lower tensile strength, though greater than elongation at break, than
comparative sample 1. Id. Further Example 1, samples HHIM and 3801X,
have the same or greater elongation at break as Example 2, sample 2. Id.
In addition, as the Examiner finds (Ans. 14), the disclosed examples
fail to consistently recite the molecular weights, specific optical purities, and
processing conditions, e.g., temperatures. Appellant responds that those
skilled in the art would recognize that the names of the commercially
available PLA products used in the examples “reflect both their composition
and molecular weight.” Reply Br. 2–3. However, Appellant fails to provide
any evidentiary or authoritative source for this assertion. “‘Mere argument or
conclusory statements in the specification does not suffice.’” See In re
Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997) (quoting In re De Blauwe,
736 F.2d 699, 705 (Fed. Cir. 1994)); see also In re Pearson, 494 F.2d 1399,
1405 (CCPA 1974) (“Attorney’s argument in a brief cannot take the place of
evidence.”).
We further note that none of Example 2, samples 1–6, fall within the
scope of claim 1. Of course, sample 1 is a comparative sample that lacks any
additives to the PLLA polymer. Sample 2 lacks the required filler. Sample 3
includes an excess of plasticizer. Sample 4 includes a filler, ecoFLEX®, that
is not listed in the filler Markush-grouping of claim 1. Samples 5 and 6
include an impact modifier, Biostrength® 150, that is not permitted in the
composition of claim 1 by virtue of the claim’s use of closed transitional
language. Spec. 9, Table 2.
Appellant’s Specification data further fails to establish that the recited
values of Mn, optical purity, and wt.% for PDLA produce unexpected results
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commensurate in scope with claim 1. See In re Peterson, 315 F.3d 1325,
1329–31 (Fed. Cir. 2003). “Establishing that one (or a small number of)
species gives unexpected results is inadequate proof, for ‘it is the view of
[the CCPA] that objective evidence of non-obviousness must be
commensurate in scope with the claims which the evidence is offered to
support.’” See In re Greenfield, 571 F.2d 1185, 1189 (CCPA 1978) (quoting
In re Tiffin, 448 F.2d 791, 792 (CCPA 1971)).
All of the samples of Examples 3 and 4 include PDLA in an amount
of 5 wt.%. Appellant provides no other samples within the scope of claim 1
for any other amounts of PDLA, i.e., samples meeting claim 1 with amounts
of PDLA within the range of 4–7 wt.% other than 5 wt.%. Spec. 10, Table 3,
and 11, Table 4. Nor does Appellant provide samples otherwise within the
scope of claim 1 with amounts of PDLA just above or just below the
claimed range. Moreover, all but one of the non-comparative samples uses a
Synterra® PDLA 0710 or 1010, which according to Appellant is 100%
optically pure. Id. Example 4, sample 8, uses Synterra® PDLA 1098, which
according to Appellant has an optical purity of 98%. However, even though
this value is outside the recited range for claim 1, sample 8 nonetheless has
similar tensile strength, elongation at break, and cycle time as inventive
samples 3, 4, and 5. And, as the Examiner finds (Ans. 14), none of the
examples provides Mn values for the PDLA used, as explained above.
Moreover, we note that Appellant fails to establish that the results
obtained would have been unexpected to one of ordinary skill in the art. In
re Klosak, 455 F.2d 1077, 1080 (CCPA 1972) (“[I]t is not enough to show
that results are obtained which differ from those obtained in the prior art:
that difference must be shown to be an unexpected difference.”). Here, the
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only references to surprising or unexpected results are directed to
crystallization rates and cycle times. See Spec. 4 (“The present inventors
have found that surprisingly good results in terms of crystallization rate are
obtained at [an optical purity of PDLA of at least 99.5%].”); 10 (“It was
possible to carry out the injection-moulding process fully automatically on
the basis of formulations 3, 4 and 5, with a surprisingly short cycle time for
these compounds.”). In neither the Specification nor other evidentiary
showing has Appellant referred to any mechanical property as surprising or
unexpected. Geisler, 116 F.3d at 1471 (“Geisler made no such assertion [that
results were unexpected] in his application. Nor did Geisler submit any such
statement through other evidentiary submissions, such as an affidavit or
declaration under Rule 132 . . . . Instead, the only reference to unexpected
results was a statement by Geisler’s counsel . . . that Geisler’s results were
‘surprising.’”). Appellant’s arguments to that effect cannot take the place of
evidence. Greenfield, 571 F.2d at 1189; In re Pearson, 494 F.2d 1399, 1405
(CCPA 1974).
Anderson
Appellant next argues that Anderson fails to recognize or suggest that
there may be differences between the use of pure PLLA, pure PDLA, and
blends thereof. Appeal Br. 10. Appellant contends that Anderson thus fails
to recognize that both PLLA and PDLA should be present and in a specific
ratio. Id. Appellant concludes that Anderson fails to contemplate, recognize,
or appreciate that PDLA can act as a nucleating agent. Id. at 11; see also
Reply Br. 11.
Appellant’s arguments as to Anderson are not persuasive because
Anderson is not relied on to suggest that PDLA can act as a nucleating agent
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when mixed with PLLA. As set forth in the rejection, the Examiner relies on
Yamane and Tsuji for suggesting the use of PDLA instead of or in addition
to talc as a nucleating agent. Ans. 6–8. Also, although claim 1 recites an
amount of PDLA present in the composition, claim 1 does not recite a
specific ratio of PLLA and PDLA in that claim 1 does not specify how much
PLLA is present in the composition. See In re Van Geuns, 988 F.2d 1181,
1184 (Fed. Cir. 1993) (rejecting appellants’ nonobviousness argument as
based on limitation not recited in claim); In re Self, 671 F.2d 1344, 1348
(CCPA 1982) (“Many of appellant’s arguments fail from the outset because,
as the solicitor has pointed out, they are not based on limitations appearing
in the claims.”).
Yamane
Appellant next argues that Yamane merely teaches that PDLA can act
as a nucleating agent for PLLA under very specific circumstances, and that
its action highly depends on the heating temperature of the blend. Appeal Br.
11. In this regard, Appellant contends that Yamane teaches that
crystallization rate increases or decreases depending on the heating
temperature of the blend. Id. Appellant asserts that Yamane teaches the melt
temperature increases the most with high molecular weight (260 kDa) PDLA
at a heating temperature of 200°C, but low molecular weight PDLA gives
the highest melting point increase at a heating temperature of 240°C. Id. at
12. Appellant further contends that Yamane’s heating temperatures, e.g.,
200°C and 240°C, are outside the range of 90–140°C recited in claim 1. Id.
As such, Appellant urges that an ordinary artisan would not have combined
Yamane’s teachings with Anderson with a reasonable expectation of
success. Id.
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Appellant’s arguments as to Yamane are not persuasive of reversible
error. The Examiner finds that Yamane identifies PDLA content and
molecular weight as the main factors influencing the nucleation activity of
PDLA on PLLA. Ans. 17. The Examiner further finds that Yamane teaches
that crystallization increases with PDLA content when the PDLA content is
relatively low, but levels off at higher PDLA content. Id. The Examiner
finds that Yamane teaches that the crystallization increase results from
formation of stereocomplex spherulites using smaller amounts of higher
molecular weight PDLA than used in previous research. Id. The Examiner
finds that Yamane teaches blends containing amounts of PDLA toward 5
wt.% have a higher number of nucleation sites. Id.
In addition, the Examiner acknowledges that there is some variation in
spherulite size depending on temperature, but finds that this effect is linear
and relatively predictable. Ans. 17, citing Yamane, Table 7. Therefore, the
Examiner reasonably determines that an ordinary artisan would have been
readily able to ascertain the appropriate combinations of PLLA and PDLA
molecular weights and amounts to achieve a desired degree and rate of
crystallization for use in Anderson. Id. at 17–18. As for Yamane’s heating
temperatures, the Examiner finds that Yamane merely used these
temperatures to perform analytical studies on the nucleation effect of PDLA
on PLLA, i.e., Yamane’s teachings are not limited to those temperatures. Id.
at 18. Indeed, Yamane’s heating temperatures are unrelated to the
temperature recited in claim 1. Yamane’s temperatures are temperatures at
which the blends are melted, whereas claim 1 recites mould temperatures.
Claim 1 does not recite the temperature at which the composition would be
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melt blended prior to injecting into a mould. Nor does Appellant disclose the
temperature of melt blending prior to injection.
Moreover, as Appellant contends, the crystallization temperature, Tc,
increases significantly using 1–5 wt.% PDLA for molecular weights of 120
kDa and 260 kDa for blends cooled from 200°C, whereas 5 wt.% of 45 kDa
PDLA increased the most for blends cooled from 240°C. See Yamane 2571,
Fig. 2. However, this observed behavior does not negate the underlying fact
that PDLA having molecular weights within the scope of claim 1 (i.e., 45
kDa and 120 kDa) served as nucleation agents for PLLA and increased Tc at
amounts within the scope of claim 1 (i.e., 4–5 wt.%). Based on this
information, the ordinary artisan would readily be able to optimize the
amount and molecular weight of PDLA depending on the temperature of the
melt blend to be injected into a mould.
Tsuji
Appellant next argues that although Tsuji establishes that PDLA
having an Mn of 52 kDa and a polydispersity index of 1.5 was known, the
Examiner fails to establish that this PDLA has an optical purity of at least
99.5%. Appeal Br. 15. Appellant also contends that nothing in Tsuji
provides a reason to combine the references as the rejection proposes which
requires that the PDLA has an optical purity of at least 99.5% with an
expectation that the nucleation efficiency is enhanced. Id. Appellant
discusses Tsuji’s Figure 11 and asserts that Tsuji teaches that highly ordered
structures of melt-quenched films are identical to those at an initial stage
before isothermal and non-isothermal crystallization. Id. at 16. Also
referring to Tsuji, Figure 6a, Appellant asserts that it is not immediately
evident that the presence of stereocomplex at 3 wt.% PDLA serves as an
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effective nucleating agent within the observed temperature range (e.g., 90–
140°C). Id. at 17; see also Reply Br. 14–15. Therefore, Appellant contends
that there is Tsuji fails to suggest that PDLA amounts between 4–7 wt.%
would behave any differently from PDLA being absent. Appeal Br. 17;
Reply Br. 15. Appellant argues that Tsuji is properly characterized as
teaching, at best, that “only if the [PDLA] content and crystallization
conditions are scrupulously selected can small amounts (i.e., smaller than
that required by the claimed invention) of PDLA be used to accelerate
overall PLLA crystallization.” Appeal Br. 17–18 (emphasis omitted).
Appellant’s arguments as to Tsuji are not persuasive of reversible
error. Initially, we note that the rejection does not rely on Tsuji alone to
establish an optical purity for the PDLA used as a nucleating agent for
PLLA. Instead, the rejection relies on Mohanty’s teaching in combination
with those of Yamane and Tsuji. See Ans. 8. Although Appellant discusses
Tsuji, Figure 11 and Section 3.3, Appellant fails to explain the significance
of these disclosures. Moreover, contrary to Appellant’s contention, Tsuji
specifically discloses the formation of stereocomplex crystallites at PDLA
content as low as 1 wt.%, and such formation above 1 wt.% coincides with
overall crystallization enhancement of PLLA at relatively high PDLA
content. Tsuji 3834–35, Section 3.3. Further, although Tsuji discloses results
at, but not between, 3 and 10 wt.%, an ordinary artisan would readily
recognize based on both Tsuji’s and Yamane’s disclosures that addition of
PDLA to PLLA in amounts between 3–10 wt.%, including 4 and 5 wt.% as
taught by Yamane, would enhance nucleation activity and crystallization.
Also, Tsuji specifically teaches that small amounts of PDLA, up to at least
10 wt.%, is effective to accelerate overall PLLA crystallization. Id. at 3836,
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Section 4(5). That Tsuji cautions scrupulous selection of PDLA content and
crystallization conditions does not negate this teaching because an ordinary
artisan would readily be able to optimize the amount and molecular weight
of PDLA depending on the temperature of the melt blend to be injected into
a mould, consistent with Yamane’s teaching. In this regard, we are apprised
of no error because, as properly applied, “the [obviousness] analysis need
not seek out precise teachings directed to the specific subject matter of the
challenged claim, for a court can take account of the inferences and creative
steps that a person of ordinary skill would employ.” KSR Int’l Co. v. Teleflex
Inc., 550 U.S. 398, 418 (2007); see also In re Preda, 401 F.2d 825, 826
(CCPA 1968) (“[I]t is proper to take into account not only specific teachings
of the reference but also the inferences which one skilled in the art would
reasonably be expected to draw therefrom.”).
Mohanty
Appellant argues that “[while] Mohanty describes stereocomplexes
(sc-PLA) of L-lactide rich polymers and D-lactide rich polymers, the
reference is not concerned with nucleation about those stereocomplexes.”
Appeal Br. 21. Appellant asserts that Mohanty teaches that stereocomplex
melting points depend on the optical purity of both the L-lactide rich and D-
lactide rich polymers as well as molecular weight and blend ratio. Id.
However, Appellant contends that Mohanty is ambiguous in teaching that
the greater the deviation in optical purity of the L-rich “and/or” D-rich
chains, the greater the decrease in stereocomplex melting peak. Id. at 22.
Appellant asserts that Mohanty’s teaching in this regard could refer to the
deviation in optical purity of different PLLA chains present in the
stereocomplex, or of different PDLA chains in the stereocomplex, or
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between constituent PLLA and PDLA chains in the stereocomplex. Id. Nor
does Mohanty characterize this teaching as applicable to PDLA polymer
having an Mn greater than 30 kDa. Id.
Appellant’s arguments are not persuasive of reversible error because
Mohanty is not relied on alone in the rejection to teach or suggest use of 4–7
wt.% PDLA having an optical purity of at least 99.5% and an Mn greater
than 30 kDa as a nucleating agent for PLLA polymer. Both Yamane and
Tsuji teach and suggest the use of 4–7 wt.% PDLA having an Mn greater
than 30 kDa as a nucleating agent for Anderson’s PLLA polymer. And both
Yamane and Tsuji recognize the importance of the formation of
stereocomplex between PLLA and PDLA in this nucleation activity. As
such, and as the Examiner determines (Ans. 24), an ordinary artisan would
readily understand that following Mohanty’s teaching with regard to optical
purity to improve stereocomplex formation would also enhance the
nucleating efficacy of the PDLA. Moreover, again as the Examiner
determines (id. at 25), the ordinary artisan would readily recognize that
Mohanty’s teaching regarding minimizing deviation in the optical purity of
the L-rich and/or D-rich chains involves both chains because both are
necessary for the formation of the stereocomplexes. Thus, because Anderson
teaches PLLA having an optical purity at least 98%, the ordinary artisan
would have found it obvious to ensure that the PDLA nucleating agent has
an optical purity of at least 98%, which encompasses the range of at least
99.5% recited in claim 1. See E.I. DuPont de Nemours & Co. v. Synvina
C.V., 904 F.3d 996 (Fed. Cir. 2018) (“[A] prima facie case of obviousness
typically exists when the ranges of a claimed composition overlap the ranges
Appeal 2020-006039
Application 14/346,838

18
disclosed in the prior art.” (quoting In re Peterson, 315 F.3d 1325, 1329
(Fed. Cir. 2003))).
Accordingly, we sustain the Examiner obviousness rejections of claim
1, as well as claims 4, 5, 9, 13, 17, and 19–23.
Claim 12
Claim 12 depends from method claim 9, and further requires that the
method cycle time is at most 150 seconds.
Appellant argues that the Examiner fails to explain why and/or how
the applied references teach or suggest the limitation of claim 12. Appeal Br.
24. In response, the Examiner finds that Anderson teaches short cycle times
of less than one minute. Ans. 26. The Examiner also finds that Anderson’s
examples exhibit cycle times less than 150 seconds. Id. Appellant does not
dispute or otherwise address these findings.
Accordingly, we sustain the Examiner’s obviousness rejection of
claim 12.
CONCLUSION
Upon consideration of the record and for the reasons set forth above
and in the Appeal and Reply Briefs, the Examiner’s decision to reject claims
1, 4, 5, 9, 12, 13, 17, and 19–23 under 35 U.S.C. § 103 is affirmed.
DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1, 4, 9, 12,
13, 17, 19–
22
103 Anderson,
Yamane, Tsuji,
Mohanty, Shoji
1, 4, 9, 12,
13, 17, 19–
22

Appeal 2020-006039
Application 14/346,838

19
5, 23 103 Anderson,
Yamane, Tsuji,
Mohanty, Shoji,
Chou
5, 23
Overall
Outcome
1, 4, 5, 9,
12, 13, 17,
19–23

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