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 .
Continued Examination Under 37 CFR 1.114
Applicants request for continued examination was received on 5/14/2026. Pending claims are 1-3, 5-8, 11-15, 18-25, 27-32 and 34. Claims being examined are: 1-3, 5-8, 11-14, 32 and 34. Claims 15, 18-25 and 27-31 are withdrawn due to restriction. The examiner of record left the office and the application was assigned to another examiner.
Priority
After careful review of non-provisional application 62/899711, the examiner found following:
Page 2 of the non-provisional application teaches D10 of 20-40 microns (page 3, lines 18-19) and D90 of less than 150 microns (p. 3, lines 20-21). D50 is defined in terms of formula where:
D10 = 0.6xD50. D10 is known substituting for the equation D50 = 20/0.6 = 33.3 microns for lower range of D10. For upper range of D50 = 40/.6 = 66.66. Consequently, the only range applicants have priority with respect to D50 is 33.33-66.66 microns. Instant claims as originally filed on 6/12/2020 do not recite either previously claimed range of 40 to 80 microns for which new matter rejection should have been issued. Newly added limitation, also does not have the support for at least 33 microns, as evidenced by calculation above. Appropriate new matter rejection will be issued in this office action.
Response to Arguments
Declaration of Dr Khalil Moussa, dated June 18th, 2025 states the same arguments as the arguments presented by the attorney of record. The declaration does not present any factual data which would show that the examiner at the time was incorrect.
The tap density describes how tightly a powder can pack when externa, energy (tapping or vibration is applied. The examiner at that time clearly showed that the particle size distribution and for the D10, D50 and D90 is within applicant’s claimed range as is the sphericity, however, it does not appear that proper explanation or reasoning was provided. Such will be remedied in this office action.
Apparent density , is the mass of material divided by its total volume which also depends on particle size distribution and sphericity, all of which are within claimed ranges. Again, proper prima facie case of obviousness will be provided.
Having said that, inventor’s statement as well as that of the representative saying that the examiner’s statement regarding determination of densities based on particle size, particle shape and particle composition is factually incorrect is not persuasive since neither the applicant or the attorney of record disclosed any facts showing otherwise. Current examiner agrees with the prior assessment of the that the arguments are not persuasive.
While applicants argued that the Advisory action’s engagement with the <Moussa Declaration is not sufficient to sustain the rejections of record for two reason:
The Moussa Declaration is a sworn statement by an expert in the filed and directed to factual matters including expert opinion as well as citation of additional sources of objective.
The Advisory action fails to provide actual reason for obviousness of modified the composition of material of the prior art. The office action has not yet explained why applicants’ arguments are incorrect.
With respect to argument 1: the declaration states that the composition cannot be arbitrarily separated from underlying composition and then transposed onto a different composition.
This statement fails to identify as to what is exactly arbitrarily separated and what it is transposed onto? Which prior art the applicants are referring to and which obviousness statement or even part of the prior art is being addressed is unclear therefore it would be hard to address this argument.
Another statement in the declaration states that composition has its own unique properties such as bulk density/apparent density. It is not clear if the applicants are referring to the composition utilized in 3D printing or claims propylene-based powder. The applicants did state a fact, but failed to address how such properties are actually affected and how examiner’s statements are flawed. What aspects are applicants considering when making such statement?
The applicants also stated that many properties such as bulk density are used to distinguish materials from one another. Ok what properties? Applicant’s statement itself is not really all that correct either and it is truly hard to address such statement without more detail. For example, US 5,081,322 to Winter, discloses polypropylene wax. The Mw/Mn is between 2-4 just like applicants claim, melting point is within less than 45oC of crystallization temperature , for example in Table 2, melting point is 131oC and crystallization temperature is 96oC. Apparent density of that particular sample is 0.325. Completely different propylene yet it meets instantly claimed properties.
Another argument states that it is scientifically inaccurate to “take” a property of a composition without “taking” all characteristics of that composition that would provide that particular property. What characteristics? What composition or rather propylene powder?
All these statements are so generic in scope that it is hard to really gleam as to which exactly properties applicant is arguing especially when “such as” in only an example and not the only property.
Further statement “ none of these properties are used directly to determine the bulk density of the material? What properties are the applicant’s referring to? Although the examiner does agree with applicants’ description of how the bulk density is measured. So, the question is, if the prior art of record discloses propylene polymer that is isotactic with overlapping content of the olefin, and with particle size distribution in the same ranges as claimed by applicants, why the propylene powder when subjected to the same test would not have the bulk density as claimed? Especially when particle size distribution and sphericity of the propylene powder is within claimed range, its packing will show the same or similar behavior because the same content of particulates will fill the same volume.
With respect to the arguments presented by the attorney of record, the argument on page 10 states that Herschke fails to explicitly disclose actual range recited as well as motivation to combine particular melting temperature with a particular crystallization temperature to arrive at limitation of claim 1.
First applicants do not claim melting temperature. Applicants claim difference between melting temperature and crystallization temperature being less than 45oC. There is no specificity in the claim towards either melting temperature and crystallization temperature, for the applicants to use term “particular”. These temperatures can be of any value in claim 1 as long as they meet the condition disclosed therein. Even claim 3, recites broad crystallization temperature of less than 100oC. If Herschke taught everything in a particular manner that would have been an anticipation rejection.
With respect to the limitation of claim 5, it is not clear as to why rejection utilized King as secondary reference. The rejection is correct in stating the Herschke does not teach branching. Therefore, there is no reason to assume that branching is present or even exists in the prior art. Applicant’s claims require less than 1 % branching. This includes zero.
With respect to claim 7, not sure why secondary reference was utilized because two propylene polymers are not exactly the same. However, isotactic propylene is partially crystalline due to irregular packing, however, the melting point of the propylene of Herschke does reflect the tacticity, especially when the applicants did not include limitation directed to the degree of the tacticity. This rejection will be restated as well.
With respect to claim 8 the argument only states that the combination fails to render claims obvious. Not sure how one can respond to this but this argument does not address grounds of rejection and does not state why the combination is obvious.
With respect to claim 34, not sure what to think about this particular rejection the references utilized will be reassessed. Bottom line is no two polypropylenes are the same in all the references. The olefin polymerization depends on many aspects such catalyst (this is a big one). One can’t simply compare propylene polymer made by metallocene to that made by Ziegler-Natta.
In any event, the examiner will issue a new office action wherein all the prior art has been reconsidered. This examiner is not sure if all the arguments have been addressed, as there is a lot going on with this application, however if any of the arguments are missed the examiner will gladly take an interview to resolve any issue in professional manner.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 1-3, 5-8, 11-14, 32 and 34 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Instant claim 1 requires propylene powder to have D50 of at least 33 microns, which does not have support in the instant specification as originally filed. With respect to D50 instant specification provides formula where D10 = 0.6 x D50. D10 is known to be in a range of 20-40 microns. Substituting D10 upper and lower range results in D50 being in a range of 33.33 to 66.66 microns.
Consequently, newly added limitation recites amount that is slightly lower than 33.33 microns. At the same time there is no upper range which means that applicant’s claims encompass C50 being higher than 66.66 microns. Applicants do not have support for D50 higher than 66.66 microns.
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claim(s) XXXX is/are rejected under 35 U.S.C. 103 as being unpatentable over Herschke (US 2021/01039685 cited previously) in view of Querol (US 2021/0277222).
With respect to claim 1, Herschke discloses a propylene polymer polymerized utilizing Ziegler-Natta catalyst [0048, 0068]. The propylene polymer can be biopolymer or terpolymer [0043] wherein the comonomer can be selected from ethylene, butene [0044]. Co-monomer content is in a range of 3-15 mole %, exemplified in [0068] polymer can have ethylene content of 5 mole %, wherein ranges of co-monomer overlaps with olefin content in instant claim 1.
The particle size distribution of the propylene polymer is [0054]:
D10: 20-45 microns
D50: 50-85 microns
D90: 90-140 microns
The ranges taught in Herschke encompass ranges of instant claim 1.
The difference between melt temperature and crystallization temperature can be obtained from the ranges of both melt temperature and crystallization temperature.
The crystallization temperature of the propylene of Herschke is in a range of 90-110oC [0051] and the melt temperature is in a range of 110-150oC [0050]. Consequently, the temperatures reported by Herschke do overlap with claimed difference of less than 45oC.
With respect to claim 2 and 32, the propylene powder of Herschke is spherical or nearly spherical with sphericity of at least 0.84 which lies within claimed range of 0.7-1, wherein 1 is a sphere [0030]. Combined with the crystallization temperature range of 90-110oC disclosed above, limitation of instant claim 32 are also met.
With respect to claim 3, crystallization temperature, as shown in the rejection of claim 1 can be 90-100oC which encompasses with claimed range of less than 100oC [0051].
With respect to claim 5, Herschke does not disclose branching and therefore there is no reason to expect that branching is purposefully create. Consequently, Herschke discloses zero branching which encompasses applicant’s range of less than 1%.
With respect to claim 6, as it was mentioned in rejection of claim 1, the comonomers include ethylene, 1-butene and 1-octene [0044].
With respect to claim 7, the polymers of Hershcke can be random copolymer or terpolymer [0045]. While Herschke does not explicitly recite that the propylene copolymer is an isotactic random polymer, since applicants did not indicate the extent of the tacticity, following is known in the art: The extent of isotacticity, where all methyl groups are on the same side is the reflection of crystallinity and ability to pack. Highly crystalline propylene polymers can have melting points. Since propylene polymers of Herschke have melting point as high as 150oC, the polymer will have isotactic formation. Since instant claims does not limit the content of isotacticity, then the polymer of Herschke meets the claim.
Furthermore, Ziegler-Natta catalyst Spheripol [0068] is utilized to make highly selective isotactic propylene polymers (see LynondellBasell website).
In the event the applicants do not agree with this reasoning, Querol which is co-inventor with Herschke, discloses exactly the same polymer:
Querol discloses Ziegler-Natta catalyzed propylene polymer powder to be used in 3-D printing. The propylene polymer includes copolymers and terpolymers of propylene with another alpha olefin such as ethylene, 1-butene and 1-octene [0060]. Claim 7 of Querol discloses particle size distribution for the propylene polymer:
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Applicant’s instant claim 1 is open to the copolymer being either random or block copolymer. Consequently, the particle size distribution of the propylene copolymer of Querol meets claimed ranges.
Propylene of Querol also has melt temperature in a range of 110-150oC [0071] and crystallization temperature in a range of 90-110oC and encompasses the difference between the two of less than 45oC. One of the exemplified polymer of Querol includes isotactic polymers.
In the light of the above disclosure, it would have been obvious to one having ordinary skill in the art at the time instant invention was filed, that using Spheripol as Ziegler-Natta catalyst, one of ordinary skill in the art would produce isotactic polymer.
With respect to claim 8, and the polydispersity of the propylene polymer, Herschke discloses following [0047]:
Weight average molecular weight of propylene polymer of 280,000 to 325,000
Number average molecular weight of propylene polymer or 55,000-65,000
One can therefore calculate the polydispersity, which is ratio of Mw to Mn.
Herschke however teaches that polydispersity is in a range of 4-7.
With respect to claim 11-14, as it was disclosed earlier both references utilized therein are issued to the same inventor and to the same assignee. Querol discloses the same polymer as Herschek as it was disclosed in the rejection of instant claim 7 above. While Herschke is silent with respect to examples and various properties that the propylene particulate can have, Querol provides some sort of a guidance. It should be noted that the examples of Querol do not reflect the entirety of ranges taught by both references.
The guidance on Querol tables 2 and 5 show types of polymers and their properties when utilized in 3D printing. Taking for example syndiotactic propylene copolymer having Tm:Tc difference of 36.52oC, particle size distribution that meets instant claim 1, the properties are as follows:
Apparent density of 0.4 g/m3
Tap density of 0.563 g/cm3
Housner ratio of 1.13.
Consequently, it would have bee obvious to one having ordinary skill in the art that propylene polymer powder of Herschke would have the same properties as the propylene polymer of Querol within broadest reasonable interpretation based on limitations of instant claim 1 and dependent claims 11-14. Both references are commonly owned and produce the same polymers.
With respect to claim 34, Herschke discloses propylene polymer all limitations of claim 1-3, 6. Using the same polymer with dispersity index being less than 4, Querol discloses properties as follows (table 3):
Syndiotactic propylene copolymer having Tm:Tc difference of 36.52oC, particle size distribution that meets instant claim 1, the properties are as follows:
Apparent density of 0.4 g/m3
Tap density of 0.563 g/cm3
Housner ratio of 1.13.
The only deficiency of claim 34 is that dispersity, tap density and apparent density are now disclosed in the single claim. Table 3 for that particular examples discloses the use of propylene polymer with dispersity of 1.1, while the present claim 34 requires dispersity of 1.2.
It is apparent, however, that the instantly claimed dispersity and that taught by Herschke and Querol are so close to each other that the fact pattern is similar to the one in In re Woodruff , 919 F.2d 1575, USPQ2d 1934 (Fed. Cir. 1990) or Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 227 USPQ 773 (Fed.Cir. 1985) where despite a “slight” difference in the ranges the court held that such a difference did not “render the claims patentable” or, alternatively, that “a prima facie case of obviousness exists where the claimed ranges and prior art ranges do not overlap but are close enough so that one skilled in the art would have expected them to have the same properties”.
To overcome this rejection the applicants may show unexpected results which would distinguish instant invention from the example disclosed in the prior art. The examiner also welcomes an interview which hopefully will finally resolve the possible patentability of this application.
Correspondence
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KATARZYNA I KOLB whose telephone number is (571)272-1127. The examiner can normally be reached M-F.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Mark Eashoo can be reached at 5712701046. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/KATARZYNA I KOLB/Primary Examiner, Art Unit 1767 June 4, 2026
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