UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`Borealis AG
`Petitioner
`v.
`Berry Plastics Corporation
`Patent Owner
`
`Case IPR2016-00235
`Patent 8,883,280
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`DECLARATION OF KRISHNAMURTHY JAYARAMAN, PH.D.
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`BOREALIS EXHIBIT 1002
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`PAGE 1 OF 116
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`Borealis AG
`Petitioner
`v.
`Berry Plastics Corporation
`Patent Owner
`
`Case IPR2016-00235
`Patent 8,883,280
`
`DECLARATION OF KRISHNAMURTHY JAYARAMAN, PH.D.
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`BOREALIS EXHIBIT 1002
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`PAGE 1 OF 116
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`I, Krishnamurthy Jayaraman, declare as follows:
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`I.
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`INTRODUCTION
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`1.
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`I have been retained on behalf of Borealis AG (“Petitioner”) as an
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`independent expert consultant in this proceeding before the United States Patent
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`and Trademark Office. Although I am being compensated at my usual rate of $300
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`per hour for the time I spend on this matter, no part of my compensation depends
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`on the outcome of this proceeding, and I have no other interest in this proceeding.
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`2.
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`I understand that this proceeding involves U.S. Patent No. 8,883,280
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`(“the ’280 patent”) (Ex. 1001).
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`3.
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`I have been asked to consider whether the subject matter of claims
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`1-14, 36-42, 44-48, 51-54, 61, 62, 65, and 66 of the ’280 patent was known or
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`would have been obvious to a person of ordinary skill in the art. My opinions are
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`set forth below.
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`II. QUALIFICATIONS
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`4.
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`A copy of my resume is attached as Appendix A and includes details
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`of my educational, professional, research, and employment credentials. A
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`summary, which focuses on my experience relating to polypropylene blends and
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`polymer foam processing, is set forth below.
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`5.
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`I am a Professor in the Chemical Engineering & Materials Science
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`Department at Michigan State University in East Lansing, Michigan. For the last
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`PAGE 2 OF 116
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`40 years, I have taught courses in chemical engineering and polymer sciences,
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`including structure, processing, and properties of polymers and composites.
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`6.
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`I obtained a Bachelor of Science degree in chemical engineering from
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`Indian Institute of Technology in Kanpur, India in 1971. I obtained a Ph.D. in
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`Chemical Engineering from Princeton University, New Jersey, USA, in 1975.
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`7.
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`After receiving my Ph.D., I was appointed as a Visiting Assistant
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`Professor in the department of chemical engineering at University of Washington
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`in Seattle, WA, between 1975 and 1976. In 1976, I joined the Chemical
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`Engineering Department at Michigan State University as an Assistant Professor.
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`Between 1981 and 1993, I was promoted to Associate Professor, then to Professor
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`in the same department. Between 1985 and 1986, I was awarded a year-long
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`National Research Council Senior Research Associateship at the National Institute
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`of Occupational Safety and Health (NIOSH) laboratory in Morgantown, WV. In
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`1999, I was recognized as the Withrow Distinguished Scholar in the College of
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`Engineering at Michigan State University. I have supervised the thesis research of
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`20 doctoral students and 18 master’s students.
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`8. My areas of expertise include melt processing, solid-state processing,
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`and rheological characterization of polymeric foams, polymer composites and
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`nanocomposites, and thermoplastic elastomers.
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`PAGE 3 OF 116
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`9.
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`During my research career, I have made many contributions to the
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`development of polypropylene blends and structures suitable for various
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`applications. I have co-authored over seventy publications, including publications
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`related to polypropylene, polyethylene, their copolymers and thermoplastic
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`polyolefin (TPO) blends, and also publications related to polypropylene foams and
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`polypropylene nanocomposites.
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`10.
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`I am a co-inventor of four patents, and one pending published patent
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`application on polypropylene foams with nanoclay. I am also a co-inventor of two
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`provisional patent applications on polypropylene films and foams.
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`11.
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`I also have delivered invited lectures and keynote speeches, focusing
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`on polypropylene, polypropylene blends, polypropylene foams and
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`nanocomposites, including:
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`• “Extrusion of Oil Extended Thermoplastic Vulcanizates,” in the
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`Symposium on Elastomers and Elastomer Processing at the 20th
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`International Polymer Processing Society Meeting, Akron, OH, in
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`2004;
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`• “Extensional Melt Flow of Polypropylene-Layered Silicate
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`Nanocomposites with Variations in Coupling Agent, Loading and
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`Temperature,” in the Symposium on Nanostructured Materials at the
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`24th International Polymer Processing Society Meeting, Salerno,
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`Italy, in 2008; and
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`• “Development of Crystalline Texture during Die-Drawing of
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`Expanded Polypropylene-Talc Composites and Neat Polypropylene,”
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`in the Gunter Gottstein Symposium on Texture of Materials at
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`Thermec ’13, Las Vegas, USA, in 2013.
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`12.
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`I have also collaborated with and consulted for private companies,
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`government agencies, research organizations, and attorneys’ clients, such as
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`ExxonMobil Chemical Co., Dow Chemical Co., Lyondell-Basell, Advanced
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`Elastomer Systems, Siemens, BASF, Summit Polymers, North Coast Innovation,
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`Petoskey Plastics, Nanocor, ViChem Industries, and Eovations LLC. I have also
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`collaborated with the US Army Tank Automotive Command on the manufacturing
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`of polymer composite products for military applications.
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`13.
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`In my consulting activities, my work has included teaching related to
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`rheological tests to understand flow and deformation, as well as flow-induced
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`microstructure of polypropylene, polyethylene, copolymers of ethylene and
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`propylene with other olefins and TPO as well as their foams, composites, and
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`nanocomposites. I have also provided technical analysis of flow marks in injection
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`molding, processing, and rheology of polymer-clay nanocomposites, foamed
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`polymers, and solid state die-drawing of expanded and oriented polymer
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`composites.
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`14.
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`I have served in various leadership positions in the field of polymer
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`science. From 1992 to 1997, I served as a Research Thrust Leader in the National
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`Science Foundation funded State/Industry/University Co-operative Research
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`Center (NSF SIUCRC) on Low-Cost High-Speed Processing of Polymer
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`Composites at Michigan State University. From 1999 to 2006, I directed a US
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`Department-of-Education funded GAANN (Graduate Assistance in Areas of
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`National Need) program on Interdisciplinary Graduate Education in Polymer
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`Composites.
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`15. From 2003 to 2007, I also served on the executive board of the
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`Composites Division of the Society of Plastics Engineers (SPE) as Director of
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`Educational Activities, which included organization of tutorials and workshops in
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`compounding and molding of polymer composites and nanocomposites for
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`industry personnel. In 1996 to 1998, I also served as Chair of the Composites
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`Section in the Materials Engineering and Science Division of the American
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`Institute of Chemical Engineers.
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`16.
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`I served as a reviewer of polymer blends and processing proposals for
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`several international organizations, including the National Science Foundation,
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`American Chemical Society Petroleum Research Fund (ACS-PRF), and Science
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`and Engineering Research Council in Singapore.
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`17.
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`I am a reviewer for several polymer science and engineering journals
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`as well as rheology related journals, including Polymer, Polymer Engineering and
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`Science, Polymer Composites, J. Applied Polymer Science, Rheologica Acta,
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`Journal of Rheology, Chemical Engineering Communications, Industrial &
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`Engineering Chemistry Research, Materials Science and Eng., AIChE Journal,
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`Nanoengineering and Nanosystems.
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`18.
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`I have not testified as an expert witness at trial or by deposition in any
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`cases.
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`III.
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`INFORMATION CONSIDERED
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`19. The opinions summarized in this Declaration are based on the
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`documents I reviewed and my education, knowledge, professional judgment, and
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`44 years of experience in the field. The documents I reviewed are as follows:
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`• The ’280 patent (Ex. 1001);
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`• Affidavit of Christopher Butler of Internet Archive with Exhibit A,
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`Borealis Webpage dated January 20, 2010 (Ex. 1004);
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`• Excerpts from the prosecution history of the ’280 patent (Ex. 1005);
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`• European Patent No. 1479716 A1 (“EP ’716”) (Ex. 1006);
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`• U.S. Patent No. 5,116,881 to Park et al. (“Park”) (Ex. 1007);
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`• U.S. Patent No. 6,455,150 to Sheppard et al. (“Sheppard”) (Ex. 1008);
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`• U.S. Patent Application Publication No. 2008/0020162 to Fackler et
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`al. (“Fackler”) (Ex. 1009);
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`• U.S. Patent No. 7,070,852 to Reiners et al. (“Reiners”) (Ex. 1010);
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`• U.S. Patent No. 5,895,614 to Rivera et al. (“Rivera”) (Ex. 1011);
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`• Excerpts from Gibson and Ashby, Cellular Solids: Structure and
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`Properties, 2nd ed., Cambridge University Press (1997) (“Ashby”)
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`(Ex. 1012);
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`• Excerpts from Maier and Calafut, Polypropylene: the Definitive
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`User’s Guide and Databook, Plastics Design Library, William
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`Andrew Inc. (1998) (“PP Handbook”) (Ex. 1013);
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`• Reichelt et al., Cellular Polymers, Vol. 22, No. 5 (2003), 315-328
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`(“Reichelt”) (Ex. 1014);
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`• Ratzsch et al., Prog. Polym. Sci., 27 (2002), 1195-1282 (“Ratzsch”)
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`(Ex. 1015);
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`• U.S. Patent Application Publication No. 2008/0045638 to Chapman et
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`al. (“Chapman”) (Ex. 1016);
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`• Excerpts from Encyclopedia of Polymer Science and Technology:
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`Plastics, Resins, Rubbers, and Fibers, Vol. 2, John Wiley & Sons,
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`Inc. (1965) (“Encyclopedia”) (Ex. 1017);
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`• U.S. Patent No. 7,883,769 to Seth et al. (“Seth”) (Ex. 1018);
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`• U.S. Patent No. 4,604,324 to Nahmias et al. (“Nahmias”) (Ex. 1019);
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`• Excerpts from S.T. Lee et al., Polymer Foams: Science and
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`Technology, CRC Press (2007) (“Lee”) (Ex. 1020);
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`• Definition of “inert”, Grant & Hackh’s Chemical Dictionary, 5th ed.,
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`McGraw-Hill, Inc. (1987), page 303 (Ex. 1021)
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`• Definition of “article” and “strip”, Merriam-Webster’s Collegiate
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`Dictionary, 11th ed. (2003), pages 70 and 1237 (“Merriam-Webster’s
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`Dictionary”) (Ex. 1022) ;
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`• Definition of “inert gas” and “talc”, Hawley’s Condensed Chemical
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`Dictionary, 14th ed. (2001) (“Hawley’s Dictionary”), pages 606, 1066
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`(Ex. 1023);
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`• U.S. Patent No. 7,825,166 to Sasaki et al. (“Sasaki”) (Ex. 1024); and
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`• U.S. Patent No. 5,925,450 to Karabedian et al. (“Karabedian”) (Ex.
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`1025).
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`• Borealis Daploy™ Brochure dated 2008 (“Brochure ’08”) (Ex. 1033).
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`IV. LEGAL STANDARD
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`20.
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`In formulating my opinions and conclusions, I have been provided
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`with an understanding of the prevailing principles of U.S. patent law that govern
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`the issues of patentability.
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`PAGE 9 OF 116
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`21.
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`I understand that assessing the patentability of a patent claim involves
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`a two-step analysis. In the first step, the claim language must be properly
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`construed to determine its scope and meaning. In the second step, the claim as
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`properly construed must be compared to the prior art to determine whether the
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`claim is invalid.
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`22.
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`I am informed that a claim is invalid as anticipated under 35 U.S.C.
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`§ 102 if a single prior art reference discloses each and every element of the claimed
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`invention to a person of ordinary skill in the art.
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`23.
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`I am informed that even if a single prior art reference does not fully
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`anticipate a patent claim, the claim may be invalid as obvious if the differences
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`between the claim and one or more prior art references are such that the claim as a
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`whole would have been obvious at the time the invention was made to a person of
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`ordinary skill in the art. In arriving at a conclusion of whether a claim is obvious, I
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`understand that several factors are to be considered: (1) the scope and content of
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`the prior art; (2) the differences between the art and the claims at issue; (3) the
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`level of ordinary skill in the art; and (4) objective evidence of non-obviousness.
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`24.
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`I have also been informed that determining whether there are any
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`material differences between the scope and content of the prior art and each
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`asserted claim of the challenged patent requires consideration of the claimed
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`invention as a whole to determine whether or not it would have been obvious in
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`PAGE 10 OF 116
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`light of the prior art. If the prior art discloses all the limitations in separate
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`references, consideration should be given to whether it would have been obvious to
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`combine those references. I understand that a claim is not obvious merely because
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`all of the features of that claim already existed in the prior art. Further, a person of
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`ordinary skill in the art who is combining references should have a reasonable
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`expectation of success of the combination.
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`V.
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`PRIORITY DATE AND PERSON OF ORDINARY SKILL IN THE
`ART
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`25.
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`I understand that this patent claims priority to provisional application
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`no. 61/529, 632 filed August 31, 2011, and no. 61/618,604 filed March 30, 2012. I
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`have used the priority date of August 31, 2011 (hereafter, “the Critical date”) in my
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`analysis, and I have viewed the prior art from the perspective of one of ordinary
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`skill in the art as of that date.
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`26.
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`In my opinion, given the subject matter of the patent, and based on my
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`experience, a person of ordinary skill in the art at the time of the Critical date
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`would have had a bachelor’s degree in a field such as chemistry, chemical
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`engineering, or materials science, and at least two years of experience studying,
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`analyzing, or preparing formulations of polymeric blends and foam/cellular
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`structures made therefrom. I have used this definition in my analysis below.
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`PAGE 11 OF 116
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`VI. TECHNOLOGY BACKGROUND
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`Polymeric materials for forming insulative cellular structures
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`A.
`27. The ’280 patent concerns polymer-based formulations that can be
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`formed to produce an insulative cellular non-aromatic polymeric material.
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`28. Those of ordinary skill in the art would have been very familiar with
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`polymer materials for forming insulative cellular structures. General facts about
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`these polymeric foams, including polypropylene foams, are provided in Ashby (Ex.
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`1012), PP Handbook (Ex. 1013), and Lee (Ex. 1020), and outlined below.
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`29. Polystyrene (PS) foams are the earliest and most developed kind of
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`polymeric foam, while other polymeric foams also have been developed and used
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`since the 1930s. Ex. 1020, Lee, 7, Table 1.6. Typical applications of polymeric
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`foams include drink foam cups, food containers or trays, packaging, insulation,
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`automotive, sports, and medical applications. Ex. 1020, Lee, 21, 89, 121-130;
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`Ex. 1013, PP Handbook, 71-72.
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`30. The insulative polymeric cellular structure, which is generally referred
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`to as “polymeric foam,” consists of at least two phases: (1) a polymer matrix
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`providing structure and support and (2) gaseous voids or bubbles (also referred to
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`as “cells”) that provide thermal insulation. Ex. 1020, Lee, 1-3; Ex. 1012, Ashby, 4,
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`283; Ex. 1013, PP Handbook, 69. The below figure is reproduced from Ex. 1020,
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`Lee, 3.
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`PAGE 12 OF 116
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`31. Due to this structure, polymeric foams have low thermal conductivity
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`and improved thermal insulative properties. Ex. 1012, Ashby, 283; Ex. 1020, Lee,
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`8, 122-123; Ex. 1013, PP Handbook, 46.
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`32. Polymeric foam is typically produced by introducing gas bubbles into
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`a liquid polymer–based formulation, allowing the bubbles to grow and stabilize,
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`and then solidifying the bubble-containing polymer structure. Ex. 1012, Ashby, 4;
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`Ex. 1020, Lee, 1-3.
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`33. For thermoplastic polymers, such as polypropylene, the initial liquid
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`state is a melt maintained at an elevated temperature. Ex. 1020, Lee, 2, 73-74.
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`34. The ’280 patent is related to such polymer-based formulations, made
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`from existing polymers and other components. These formulations are suitable for
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`use in a foam, which the ’280 patent also refers to as “an insulative non-aromatic
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`polymeric cellular structure.” Ex. 1001, e.g., 24:2-3 (claim 1).
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`B. High melt strength polypropylene (HMS-PP) blends for forming
`insulative cellular structures
`1. HMS-PP
`35. Conventional polypropylene has a linear polymeric structure, and thus
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`has low melt strength and produces foams with poor cell integrity. Ex. 1006,
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`EP ’716, ¶ [0005]; Ex. 1014, Reichelt, 315-316; Ex. 1020, Lee, 127. These known
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`properties make conventional linear polypropylene, on its own, undesirable for use
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`in foam applications, including low density foams. Ex. 1020, Lee, 127; Ex. 1015,
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`Ratzsch, 1266.
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`36.
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`In contrast, HMS-PP is a long-chain branched polypropylene. This
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`means that the polymer chains have long side arms coming off the backbone.
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`Ex. 1006, EP ’716, ¶ [0006]; Ex. 1014, Reichelt, 316; Ex. 1015, Ratzsch, 1254-
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`1255.
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`37. For illustration, I have included a figure below showing
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`polypropylene having long-chain branching (reproduced from Ex. 1015, Ratzsch,
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`1255).
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`PAGE 14 OF 116
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`38. Because the branches increase the number of inter-polymer
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`entanglements, HMS-PP exhibits significantly higher melt strength over linear PP.
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`Ex. 1015, Ratzsch, 1257-1258, 1263; Ex. 1014, Reichelt, 316.
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`39. Melt strength refers to the resistance of a polymer melt to extension,
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`which reflects the extensional viscosity of the molten polymer. Ex. 1013, PP
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`Handbook, 69; Ex. 1006, EP ’716, ¶ [0006]; Ex. 1015, Ratzsch, 1261-62. Melt
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`strength is an important parameter for foaming, including extrusion technologies
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`such as the foam extrusion process used in the ’280 patent. Ex. 1015, Ratzsch,
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`1261-1262, 1265-1266; Ex. 1001, 1:43-49, 8:30-37.
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`40. Adding HMS-PP to a formulation for foaming also leads to a better
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`balance of the rate of crystallization and the rate of bubble growth to produce a
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`more uniform and controlled cellular structure and also obtain a low density foam.
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`41. Long-chain branching also provides structural support in the final
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`foam. Specifically, the physical (not chemical) entanglement from long-chain
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`branching in HMS-PP provides structural support. Ex. 1006, EP ’716, ¶ [0006];
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`Ex. 1015, Ratzsch, 1263-1264. This chain entanglement is used to provide
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`structural support to PP foams, and is used for this function, instead of the
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`chemical cross-linking, used in, for example, polystyrene foams. Notably, unlike
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`chemically cross-linked systems, HMS-PP products are more readily recycled. Ex.
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`1006, EP ’716, ¶ [0029] (“recyclable . . . new PP foams of the present invention”);
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`Ex. 1004, page 5.
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`42. Representative HMS-PPs at the time of the Critical date include
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`Borealis DAPLOY™ HMS-PP products, including WB130 HMS and WB140
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`HMS, and Basell Profax™ PF-814. Ex. 1004, pages 5-6; Ex. 1006, ¶ [0007]; Ex.
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`1018, Seth, 16:33-34 (“68% high melt strength polypropylene homopolymer
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`(PROFAX PF814, Basell USA)”); Ex. 1014, Reichelt, 316 (disclosing DAPLOY™
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`WB130 HMS); Ex. 1015, Ratzsch, 1255-1268.
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`43. The ’280 patent itself acknowledges that Borealis Daploy™ WB140
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`HMS was a known HMS-PP, and used it in its formulation for forming insulative
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`cellular structures. See Ex. 1001, 4:20-23 (“One illustrative example of a suitable
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`polypropylene base resin is DAPLOY™ WB140 homopolymer (available from
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`Borealis A/S), a high melt strength structural isomeric modified polypropylene
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`homopolymer.”).
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`2. Other polymer materials to control properties of foams
`44. Modifying the performance of the base polymer by adding other
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`polymers to enhance its properties was common practice in foam extrusion. Ex.
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`1020, Lee, 73.
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`45. For example, while HMS-PP materials can be foamed by itself, it is
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`less common to do so and the resulting structure are typically rather rigid. In
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`practice, HMS-PP are usually blended with other polyolefins to tailor the
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`mechanical and processing properties of the foams. Ex. 1014, Reichelt, 316; Ex.
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`1015, Ratzsch, 1265-1267. Indeed, HMS-PP can be blended with the full range of
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`other standard polyolefin materials to modify the final foam properties to fit the
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`requirements of the particular end-use application. Ex. 1020, Lee, 73 (“Modifying
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`the performance of the base polymer by adding another polymer or additives with a
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`view toward enhancing its application becomes a common practice in extrusion.”);
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`see also Ex. 1006, EP ’716, ¶¶ [0008]-[0021]. Polyolefin materials are non-
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`aromatic polymers. For example, HMS-PP can be blended with polymers that can
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`increase the impact strength of the final foam structure. Ex. 1006, EP ’716,
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`¶ [0028].
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`46.
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`In addition to controlling final foam properties, HMS-PP blends are
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`used to control and improve the foamability by enabling a good balance among
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`PAGE 17 OF 116
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`processing properties such as melt strength, as well as finding a good balance
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`between the rate of crystal growth and the rate of bubble growth.
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`47.
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`Indeed, it was well known that the desired balances of properties
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`could be obtained by blending HMS-PP with additional polymeric materials. For
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`instance, it was known that HMS-PP may be blended with other polypropylene or
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`polyethylene.
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`48. EP ’716, for example, teaches blending HMS-PP with additional
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`polymeric materials, such as polypropylene homopolymer, polypropylene bloc
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`(heterophasic) copolymer, polypropylene random copolymer, and/or various forms
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`of polyethylene to obtain desired mechanical and thermal properties of the final
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`foam, such as high flexibility and high temperature resistance. Ex. 1006, EP ’716,
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`¶¶ [0013]-[0021].
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`49. Representative examples of additional polymeric materials include
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`what are known as “impact modifiers,” also called “impact copolymers.” As their
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`name implies, impact copolymers increase impact strength of a polymer structure,
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`i.e., the amount of energy that can be absorbed by the structure before it breaks.
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`For example, TPO PP (thermoplastic olefin-polypropylene) produced by blending
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`ethylene-propylene rubber with polypropylene has been used in foam blending as
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`an impact copolymer. Ex. 1006, EP ’716, ¶¶ [0014], [0028], [0035].
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`PAGE 18 OF 116
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`50.
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`It was thus well known to one of ordinary skill in the art to use
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`HMS-PP blended with secondary polymers to make foams for use in a wide range
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`of applications. Ex. 1014, Reichelt, 315-316; Ex. 1015, Ratzsch, 1263-1267.
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`Additives
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`3.
`It was also routine to blend HMS-PP with various additives to control
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`51.
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`the foaming process and final foam properties. Typical additives included
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`nucleating agents, blowing agents, and/or slip agents to further tailor the
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`processability and mechanical properties of the resulting foam structures.
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`a)
`52. Nucleating agents are a particularly common additive in foams. They
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`Nucleating agent
`
`are used to provide a large number of sites for bubble initiation and crystal
`
`nucleation, influencing the cell size of the foamed structure. Ex. 1013, PP
`
`Handbook, 34; Ex. 1007, Park, 10:11-12 (“The nucleating agent, which creates
`
`sites for bubble initiation, influences the cell size of the foamed sheet.”). For
`
`instance, a relatively larger amount of well-dispersed nucleating agents can be used
`
`to create a larger number of smaller cells within the foam.
`
`53.
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`It was also well known that adding nucleating agents helps to improve
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`processing characteristics and alter cellular and mechanical properties of the final
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`foam. Ex. 1013, PP Handbook, 34; see Ex. 1007, Park, 10:11-16.
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`PAGE 19 OF 116
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`54. Some representative nucleating agents include talc and other inert
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`solids. Other nucleating agents for bubble initiation include mixtures of citric acid
`
`and sodium bicarbonate.1 See, e.g., Ex. 1007, Park, 10:13-16 (“The nucleating
`
`agent, which creates sites for bubble initiation, influences the cell size of the
`
`foamed sheet. The nucleating agents include a mixture of citric acid and sodium
`
`bicarbonate, talc and titanium dioxide. Other inert solids used in the prior art and
`
`cited herein may also be used in the process of the present invention.”); Ex. 1009,
`
`Fackler, ¶ [0019].
`
`b)
`55. Blowing agents introduce gas during foam processing to form bubbles
`
`Blowing agent
`
`within the polymer, resulting in a cellular structure. Ex. 1013, PP Handbook, 45.
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`Blowing agents are classified as physical or chemical depending on the way in
`
`which gas is evolved. Ex. 1013, PP Handbook, 46; Ex. 1017, Encyclopedia, 532.
`
`56. Physical blowing agents are gases such as carbon dioxide, nitrogen,
`
`helium, argon, air, pentane, butane, and other short alkanes, hydrofluorocarbons
`
`(HFCs). Ex. 1006, EP ’716, ¶ [0022]; Ex. 1012, Ashby, 4; Ex. 1013, PP
`
`
`1 As discussed in ¶¶ 262-273 below, some additives, such as citric acid and sodium
`
`bicarbonate, can have multiple functions, for example serving as a combined
`
`nucleating agent, catalyst, and/or chemical blowing agent.
`
`
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`PAGE 20 OF 116
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`
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`Handbook, 45-47; Ex. 1017, Encyclopedia, 533-534; Ex. 1020, Lee, 41-42. They
`
`are typically forced into the polymer at high pressure and expand into bubbles.
`
`Ex. 1012, Ashby, 4; Ex. 1020, Lee, 19, 42, 43; Ex. 1017, Encyclopedia, 533.
`
`57. Chemical blowing agents are additives that either decompose on
`
`heating or react with other components to release gas in situ. Ex. 1012, Ashby, 5;
`
`Ex. 1013, PP Handbook, 45-47; Ex. 1017, Encyclopedia, 535-536. In this regard,
`
`it was well known that some chemicals are capable of releasing gas via reactions
`
`with other species and/or thermally induced decomposition. When these chemical
`
`reactions occur within the polymeric melt, the decomposing chemical acts as a
`
`blowing agent (chemical foaming). Ex. 1020, Lee, 43-45; Ex. 1012, Ashby, 5; Ex.
`
`1013, PP Handbook, 45-47; Ex. 1017, Encyclopedia, 535-536. For example,
`
`sodium bicarbonate or calcium carbonate can decompose or react with other
`
`species and release CO2 upon heating; azo-compounds can decompose and release
`
`N2. Ex. 1017, Encyclopedia, 538-560. Chemical blowing agents provide
`
`advantages, including “their ease of handling and their adaptability to processes
`
`requiring conventional equipment.” Ex. 1017, Encyclopedia, 536. For example,
`
`they can be used to make a narrower foaming window and facilitate a sharp
`
`nucleation. Ex. 1020, Lee, 45. When controlled, it is easier to obtain a fine-celled
`
`structure using a chemical blowing agent. Ex. 1020, Lee, 45. For making low
`
`
`
`
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`PAGE 21 OF 116
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`
`
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`density foams, it was known that physical blowing agents can be used in
`
`combination with chemical blowing agents to ensure enough bubble expansion.
`
`c)
`58. Slip agents provide surface lubrication during and immediately after
`
`Slip agent
`
`foam processing. Ex. 1013, PP Handbook, 45, 397. They exude to the surface of
`
`the polymer article and provide a coating that reduces the coefficient of friction.
`
`Ex. 1013, PP Handbook, 45; Ex. 1019, Nahmias, 2:20-27, 4:29-52.
`
`59. Some common slip agents include fatty acid esters like zinc stearate,
`
`or fatty acid amides, like stearamide, erucamide and oleamide. Ex. 1013, PP
`
`Handbook, 45, 397; Ex. 1019, Nahmias, 4:29-38.
`
`60. The use of additives to make polymeric foams, including with HMS-
`
`PP foams, was routine practice. See, e.g., Ex. 1006, EP ’716, ¶ [0023] (“All kind
`
`of additives known to the skilled man in the art can be used to improve
`
`processability and properties of the foams of the present invention: processing aids,
`
`nucleating agents, pigments . . . .”); Ex. 1007, Park, abstract. (“A thermoformable,
`
`rigid or semi-rigid polypropylene foam sheet . . . is prepared by extruding a
`
`mixture of a nucleating agent, a physical blowing agent and a polypropylene resin
`
`having a high melt strength and high melt elasticity.”); Ex. 1009, Fackler, ¶ [0017]
`
`(“Foaming of the polyolefin of layer [] may proceed by the addition of solid, liquid
`
`and/or gaseous blowing agents.”), ¶ [0019] (“Suitable nucleating agents are any
`
`
`
`
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`PAGE 22 OF 116
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`
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`known solid nucleating agents, preferably synthetic or natural inorganic
`
`compounds. At least one nucleating agent selected from among the group
`
`comprising talcum, titanium dioxide, silicon dioxide, calcium carbonate,
`
`magnesium silicate, aluminum silicate, calcium phosphate and montmorillonite is
`
`particularly preferably used. Talcum is very particularly preferably used.”);
`
`Ex. 1014, Reichelt, 317-318 (“The polypropylene material pellets blended with 0.8
`
`wt% talc as cell nucleating agent . . . . Then a metered amount of butane was
`
`injected into the extrusion barrel by a positive displacement pump and mixed
`
`intensively with the polymer melt stream.”).
`
`VII. OVERVIEW OF THE ’280 PATENT
`
`61. The ’280 patent discloses polymer-based formulations that can be
`
`formed to produce an insulative non-aromatic polymeric material. Ex. 1001,
`
`1:15-18.
`
`62.
`
`In particular, the ’280 patent discloses an insulative cellular non-
`
`aromatic polymeric material comprising a polypropylene base resin having a high
`
`melt strength and a polypropylene copolymer or homopolymer (or both). Ex.
`
`1001, 1:33-36.
`
`63. The insulative cellular non-aromatic polymeric material also includes
`
`cell-forming agents, including at least one nucleating agent and a blowing agent.
`
`Ex. 1001, 1:36-38.
`
`
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`PAGE 23 OF 116
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`64.
`
`In illustrative embodiments, the insulative cellular non-aromatic
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`polymeric material further comprises a slip agent. Ex. 1001, 1:38-40.
`
`65. As an example of a suitable polypropylene base resin, the patent
`
`specification discloses DAPLOY™ WB140 HMS (Borealis), a high melt strength
`
`structural isomeric modified polypropylene homopolymer (melt strength=36, as
`
`tested per ISO 16790, melting temperature=325.4° F. (163° C.) using ISO 11357).
`
`Ex. 1001, 4:20-26.
`
`66. DAPLOY™ WB140 HMS was used in Example 1 as the
`
`polypropylene base resin. Ex. 1001, 13:60-62. F020HC (Braskem), a
`
`polypropylene homopolymer resin, was used as the secondary resin. Ex. 1001,
`
`13:62-63. The two resins were blended with Hydrocerol™ CF-40E as a primary
`
`nucleation agent, talc as a secondary nucleation agent, CO2 as a blowing agent, and
`
`titanium dioxide as a colorant. Ex. 1001, 13:64-67. As a slip agent, Ampacet™
`
`102823 LLDPE (linear low density polyethylene), was used. Ex. 1001, 14:8-10.
`
`67. Another embodiment, Example 2, also uses DAPLOY™ WB140
`
`HMS-PP homopolymer along with other components similar to the formulation of
`
`Example 1. Ex. 1001, 19:35-44.
`
`68. Such HMS-PP-based formulations for forming an insulative cellular
`
`non-aromatic polymeric material were already well known in the art prior to the
`
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`PAGE 24 OF 116
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`time that the application leading to the ’280 patent or August 2011, as detailed
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`below.
`
`69. The ’280 patent states that the formulation and insulative cellular non-
`
`aromatic polymeric materials formed therefrom satisfy a long-felt need for a
`
`material that can be formed into an article, such as a cup, that includes many if not
`
`all of the features of insulative performance, ready for recyclability, puncture
`
`resistance, frangibility resistance, microwavability and other features, whereas
`
`others have failed to do so. Ex. 1001, 13:24-30. As discussed below, HMS-PP
`
`materials providing these properties were already known and were obvious.
`
`70. The ’280 patent also states that others have created insulative
`
`materials and structures but that these suffer from poor puncture resistance,
`
`inability to effectively be recyclable, and lack microwavability. Ex. 1001,
`
`13:34-37. Again, as discussed below, HMS-PP-blend foam materials without these
`
`limitations were already known and were obvious.
`
`71. The ’280 patent does not provide any guidance, such as specific
`
`processing parameters, to achieve the desired level of specific features of the
`
`cellular structures other than through the use of the specific formulation and
`
`standard foam extrusion process.
`
`72. For instance, while Examples 1 and 2 disclose the recited
`
`ranges/values of some of the properties, such as puncture resistance, tear
`
`
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`PAGE 25 OF 116
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`resistance, and rigidities, none of the embodiments provides any guidance on how
`
`to achieve the desired level of the specific features of the structures beyond use of
`
`the claimed formulation.
`
`73. Further, the ’280 patent merely asserts, without evidence, that the
`
`disclosed formulations and materials overcome the failures of others by using an
`
`insulative cellul
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