In re Mills

470 F.2d 649, 176 U.S.P.Q. (BNA) 196, 1972 CCPA LEXIS 207
CourtCourt of Customs and Patent Appeals
DecidedDecember 29, 1972
DocketPatent Appeal No. 8796
StatusPublished
Cited by5 cases

This text of 470 F.2d 649 (In re Mills) is published on Counsel Stack Legal Research, covering Court of Customs and Patent Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Mills, 470 F.2d 649, 176 U.S.P.Q. (BNA) 196, 1972 CCPA LEXIS 207 (ccpa 1972).

Opinion

LANE, Judge.

This appeal is from the decision of the Board of Appeals sustaining the examiner’s rejection of claims 1-4 of ap[650]*650pellants’ application1 entitled “Polypropylene-Elastomer Foams” as unpatentable under 35 U.S.C.§ 103. As the board explained in a decision on reconsideration, while the examiner relied upon four patents in support of his rejection, two of them, Cooper2 and Breslow et al.3 (Breslow), provided sufficient basis for a finding of obviousness. We agree that the claimed subject matter would have been obvious from Cooper and Breslow, and we accordingly affirm the board’s decision.

Appellants claim a cross-linked4 foam composed of a blend of stereoregular polypropylene5 and a hydrocarbon elastomer in defined proportions. The foam is claimed to have a uniform cell structure with at least 50% of the cells closed and a low density of less than 10 pounds per cubic foot. The specification discloses that sulfur and peroxide curing agents are unsuitable since they cause the polypropylene to degrade. For effective cross-linking, an azide, such as a poly (sulfonazide), is used. A conventional blowing agent is employed to achieve foaming.

Claim 1 is representative of the claims on appeal and reads as follows:

A flexible, dimensionally stable cellular material comprising a cross-linked and foamed blend of steroregu-lar polypropylene with from about 5 to 50% of a hydrocarbon elastomer, said cellular material being characterized by a uniform cell structure with at least 50% of the cells closed, a density of less than 10 lbs./cu. ft., resistance to heat distortion and the ability to absorb impact energy.

Claims 2, 3 and 4 define specific hydrocarbon elastomers. Those limitations are not relied upon by appellants for patentability.

The References

Cooper discloses the foaming and cross-linking of blends of a crystalline 1-olefin polymer, preferably a homopoly-mer, such as polypropylene, and a natural or synthetic elastomer. Whereas appellants claim a 50-95% polypropylene/5-50% elastomer blend, Cooper discloses a 0.5-40% polypropylene/60-99.5% elastomer blend.

Cooper teaches that the foams may be made by use of conventional “vulcanizing,” or cross-linking, agents, such as sulfur, and chemical blowing agents. The elastomer and polymer are blended “at a temperature above the softening point of the 1-olefin polymer.” The compounding agents are preferably added after the blend has been allowed to cool.

Cooper’s preferred 1-olefin polymer is polyethylene, although “polymers of 1-olefins in general having the desired degree of crystallinity are applicable -x- -x- *_» -pjjg Q00per invention is illustrated by test examples employing (I) synthetic elastomer-polyethylene blends and (II) natural rubber-polyethylene blends. The example I composition included, among other compounding ingredients, 50 parts of plasticizer, which was added to facilitate working of the blend, and sulfur. The example II composition differed in various respects including the use of only 20 parts of plasticizer. However, sulfur was again used to effect cross-linking.

[651]*651Breslow teaches that conventional curing agents, such as sulfur, have a de-gradative effect on alpha-alkyl polymers, including polypropylene, and that this may be avoided by using a poly (sulfona-zide) as the cross-linking agent.

The Board’s Position

Although appellants complain that the ground or grounds of rejection have not been fairly set forth by the Patent Office, we think the criticism unwarranted. The board’s position emerges clearly from its original decision and its decision on reconsideration.

As expressed in the original decision, the board was of the view that the claimed subject matter is obvious, in the sense of 35 U.S.C. § 103, from Cooper, at least in the absence of a showing of:

[A]ny difference in properties between a cellular material comprising a cross-linked and foamed blend of 40% •stereoregular polypropylene and 60% hydrocarbon elastomer (Cooper) and a cellular material comprising a cross-linked and foamed blend of 50% ster-eoregular polypropylene and 50% hydrocarbon elastomer (included by claim 1).

Appellants had argued that Cooper never contemplated the use of polypropylene and that polypropylene blend foams could not be made according to the Cooper procedure. An affidavit of Palmer purporting to prove the latter and, by inference, substantiate the former, had been submitted. The board did not consider the tests reported therein persuasive for reasons explained below.

In the original opinion, the board indicated that Breslow would suggest the use of an azide cross-linking agent when polypropylene blend foams were being prepared in accordance with the Cooper disclosure.

Appellants petitioned for reconsideration, including with their petition an affidavit of Feild which reported further tests. The board rendered a second decision adhering substantially to the position taken previously. The Feild affidavit was not considered persuasive because it failed to take into account the Breslow teachings, and the board stated that the rejection was based on “Cooper taken with prior knowledge illustrated in Bres-low et al.”

From a formal standpoint, the § 103 rejection before us is clearly based on Cooper in view of Breslow. It is apparent that Cooper is principally relied upon and that Breslow is relevant only in connection with the method of making the composition which appellants allege not to be obvious from Cooper.

OPINION

We are in agreement with the board’s conclusions. Cooper appears to suggest the claimed foam products. Propylene is expressly listed as a suitable polymer-izable 1-olefin, and a homopolymer of the selected 1-olefin is the preferred polymeric form of the blend component. Appellants advance no contention that Cooper would not suggest stereoregular polypropylene. There can be no doubt, therefore, that the use of stereoregular polypropylene in admixture with an elas-tomer to form a cross-linked foam is disclosed by Cooper.

We find no merit in appellants’ contention that the disclosure of propylene is so submerged in Cooper, and the teaching of the use of ethylene so predominant, that Cooper cannot be said to place foams composed of the claimed ingredients in the possession of the public. All the disclosures in a reference must be evaluated, including non-preferred embodiments, In re Boe, 355 F.2d 961, 965, 53 CCPA 1079, 1083, (1966), and a reference is not limited to the disclosure of specific working examples. In re Chapman, 357 F.2d 418, 424, 53 CCPA 978, 985 (1966). Thus, Cooper’s examples directed to polyethylene blend foams do not confine the disclosure to the use of polyethylene, and the Cooper patent as a whole does not point away from the use of polypropylene. Compare In re Langer, Cust.Ct. & Pat.App., 465 F.2d 896, 899, (1972).

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Bluebook (online)
470 F.2d 649, 176 U.S.P.Q. (BNA) 196, 1972 CCPA LEXIS 207, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-mills-ccpa-1972.