PURAC BIOCHEM B.V.Download PDFPatent Trials and Appeals BoardMar 29, 20212020006039 (P.T.A.B. Mar. 29, 2021) Copy Citation 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. Appeal 2020-006039 Application 14/346,838 2 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. Appeal 2020-006039 Application 14/346,838 3 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. Appeal 2020-006039 Application 14/346,838 4 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: Appeal 2020-006039 Application 14/346,838 5 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. Appeal 2020-006039 Application 14/346,838 6 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 Appeal 2020-006039 Application 14/346,838 7 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. Appeal 2020-006039 Application 14/346,838 8 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, Appeal 2020-006039 Application 14/346,838 9 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 Appeal 2020-006039 Application 14/346,838 10 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 Appeal 2020-006039 Application 14/346,838 11 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 Appeal 2020-006039 Application 14/346,838 12 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. Appeal 2020-006039 Application 14/346,838 13 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 Appeal 2020-006039 Application 14/346,838 14 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 Appeal 2020-006039 Application 14/346,838 15 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, Appeal 2020-006039 Application 14/346,838 16 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 Appeal 2020-006039 Application 14/346,838 17 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 Copy with citationCopy as parenthetical citation