DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Election/Restrictions
Applicant’s election without traverse of Group I, claims 1-13, in the reply filed on 12/2/2025 is acknowledged.
Claim 14 is withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 12/2/2025.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 8-9 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 8 recites the limitation "the amount of blowing agent masterbatch" in line 3. There is insufficient antecedent basis for this limitation in the claim. The claim does not previously refer to a masterbatch, nor does claim 1 on which claim 8 depends. For the purposes of compact prosecution, the claim will be interpreted to mean the amount of blowing agent.
Claim 9 recites the limitation "the amount of stabilizers" in line 3. There is insufficient antecedent basis for this limitation in the claim. The claim does not previously refer to stabilizers, nor does claim 1 on which claim 9 depends.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1-3, 8, and 10-13 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Gemmel et al. (US 2009/0018225).
Gemmel et al. teach an electrical cable comprising an insulating layer (¶25), wherein the insulating layer comprises a foaming composition comprising polymer and an organic salt chemical blowing agent, wherein the organic salt is selected from the group consisting of citrate derivatives and tartrate derivatives (abstract). The composition further comprises a nucleating agent (¶20). Examples of the polymer used for the composition including polyolefin polymers (¶37). An expressly named type of chemical foaming agent is calcium citrate, which is a derivative of citric acid, used as the sole blowing agent in Examples of Gemmel (see Table 2, ¶49). This mees b of instant claim 1. This example does not contain hydrazide or azodicarbonamide. This meets instant claim 2. The composition is foamed into an insulated layer of an electrical communication cable, including LAN cables (¶51, ¶70, ¶73). This meets instant claims 10-13. The amount of calcium citrate compound, which appears to meet “blowing agent masterbatch” of instant claim 8, is used in amount of about 2.65wt%, which falls within the range of instant claim 8. See Table 2, under ¶49 in Gemmel.
Claims 1-3, 5-8, and 10-13 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Champagne et al. (US 2004/0220287).
Champagne et al. teach a foam composition and a coaxial cable, which is a data communication cable (abstract). The foam composition comprises an olefinic polymer (a polyolefin) with examples including high density polyethylene, low density polyethylene, and mixtures thereof (abstract). The foam composition comprises an optional nucleating agent (abstract). The composition is heated and melted and a blowing agent is added to the melted composition (abstract). The foam composition is extruded to form a coating layer of a cable (abstract). An expressly named example of nucleating agent is citric acid. The nucleating agent is added as a masterbatch. While Champagne discloses citric acid as a nucleating agent, the citric acid is structurally identical to the blowing agent of instant claim 1 and will necessarily perform as a blowing agent (by forming cells in the polyolefin polymer) as required by the instant claims. When citric acid is used as the nucleating, it makes up 90wt% or more of the nucleating agent which again, performs the intended function of blowing agent as it produces foam cells in the polyolefin in which it is used. In examples, the nucleating agent is used in a masterbatch in an amount of 2 phr, or about 2wt%, which meets instant claim 8. Azodicarbonamide is disclosed in the alternative to citric acid as a nucleating agent. One of ordinary skill in the art would at once envisage use of citric acid in the alternative to azodicarbonamide and therefore at once envisage a composition which is free from azodicarbonamide and hydrazides. This meets instant claim 2. The foam layer around the cable is necessarily foamed and insulating.
Embodiments of the polyolefin include mixtures of HDPE in combination with LDPE in ratios of 30:70 to 70:30. This meets instant claims 5-7.
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1-3 and 5-13 are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Sun et al. (WO 2016/082212).
Sun et al. teach a foaming polyolefin composition comprising a nucleator, the nucleator comprising a mixture of a first component consisting of at least one citric acid and alkali metal citrate and a second component which is not an alkali metal citrate (abstract). The first component corresponds to the instantly claimed blowing agent and is made up of the citric acid and alkali metal citrate, making it more than 90wt% citric acid or a derivative thereof. See, for example, Table 2, IE-6, component CM-2. The polyolefin composition is foamed and used as an insulation layer in a cable. See ¶9. This meets instant claims 1 and 10-11. The polyolefin of the polyolefin composition comprises high density polyethylene (HDPE) (¶23-25); a low density polyethylene (LDPE) (¶26-28); and mixtures of HDPE and LDPE comprising 60 to 80wt% HDPE and 19 to 30wt% LDPE, which meet each of claims 5-7. See ¶30-31. The polyolefin further comprises at least one nucleator (nucleating agent) and at least one stabilizer. This meets instant claim 3. Additives, including stabilizers, are added to the polyolefin composition in amounts of 0.01 to 5wt% (¶45). This meets instant claim 9. The polyolefin compositions do not include azodicarbonamide or hydrazides.
The amount of citrate and citric acid disclosed in Sun et al. is from 500 ppm to 5,000 ppm of the polyolefin composition, which is 0.05wt% to 0.5wt% of citric acid mixture. In an example, IE-6 in Table 2, the amount is 1300 ppm, which is about 0.13wt%.
With regards to the “communication cable” in instant claim 12, and the “data communication cable” of instant claim 13, these are intended uses of the electric cable, with the foam insulation, as recited in the instant claims. Case law holds that a recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim. See In re Casey, 152 USPQ 235 (CCPA 1967) and In re Otto, 136 USPQ 458, 459 (CCPA 1963). The electrical cable, comprising the foamed polyolefin as an insulation layer, is structurally the same as the instantly claimed cable and is capable of performing the intended uses of “communication cable” and “data communication cable.”
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claim 4 is rejected under 35 U.S.C. 103 as being unpatentable over Champagne et al. (US 2004/0220287).
Champagne et al. teach the cable and foam composition/layer as described in this action above, the rejection of which is incorporated herein by reference. Champagne et al. teach that examples of nucleating agent include citric acid as discussed above, and also talc and mica, which are minerals. MPEP 2144.06 states:
“It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art.” In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980) (citations omitted) (Claims to a process of preparing a spray-dried detergent by mixing together two conventional spray-dried detergents were held to be prima facie obvious.). See also In re Crockett, 279 F.2d 274, 126 USPQ 186 (CCPA 1960) (Claims directed to a method and material for treating cast iron using a mixture comprising calcium carbide and magnesium oxide were held unpatentable over prior art disclosures that the aforementioned components individually promote the formation of a nodular structure in cast iron.); and Ex parte Quadranti, 25 USPQ2d 1071 (Bd. Pat. App. & Inter. 1992) (mixture of two known herbicides held prima facie obvious).
Based on MPEP 2144.06, it would have been obvious to one of ordinary skill in the art to use a combination of, for example, citric acid (which performs the intended function of blowing agent for the reasons discussed above) with, talc and/or mica and thereby arrive at the instantly claimed invention. This meets instant claim 4.
Claim 9 is rejected under 35 U.S.C. 103 as being unpatentable over Champagne et al. (US 2004/0220287) and further in view of Gupta (US 2003/0060525).
Champagne et al. teach the foam composition and a coaxial cable as described in this rejection above, the rejection of which is incorporated herein by reference. Champagne et al. does not expressly disclose the inclusion of from 0.01 to 10wt% of a stabilizer.
However, Gupta et al. teach a thermoplastic foam comprising a polyolefin (abstract) and about 0.05 to about 3wt% of an additive, of which stabilizers are an example (abstract). This falls within the range of instant claim 9. The thermoplastic foam is used as insulation in coaxial cables (¶3, ¶7).
Both Champagne and Gupta relate to the field of coaxial cables comprising a foam insulating layer including a polyolefin polymer. See ¶3 of Gupta and abstract of Champagne et al. It would have been obvious to one of ordinary skill in the art before the effective filing date of the instant invention to include about 0.05 to about 3wt% of an additive including a stabilizer as disclosed in Gupta in the invention of Champagne in order to provide the foam and cable with protection against UV and/or thermal degradation, which is the purpose of UV and thermal stabilizers. See ¶15 of Gupta.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to K. B BOYLE whose telephone number is (571)270-7338. The examiner can normally be reached 8:30 am to 5pm, Monday - Friday.
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/K. BOYLE/Primary Examiner, Art Unit 1766
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