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 .
Response to Amendment
Claims 1, 5, 32, 34 are previously presented.
Claims 2-3, 6-8, 11-14 are original.
Claims 4, 9-10, 16-17, 26, 33 are cancelled.
Claims 15, 18-25, 27-31 are withdrawn.
Loss of Priority to Provisional Application
Independent claim 1 has been amended through the course of prosecution to include that “D50 is from 40-80 microns”, however, the provisional application 62/861856 fails to claim or disclose this limitation in the absolute.
Rather, claim 29 of the Provisional application recites “wherein the particle sizes have a D10 of at least (0.6*D50)” which for the recited range of D10 in the non-provisional and supplied non-Provisional’s dependent claim 9 discloses and recites, respectively, “a D10 of at least (0.6)D50” corresponds to a D50 of greater than ca. 33.3 microns, or in a narrower recitation of D10, a D50 of ca. 66.6 microns.
Since this is not the same as what is recited in instant independent claim 1 at this time, where “D50 goes from 40-80 microns”, this represents a loss of Priority to the Provisional Application, and may – further down in prosecution – be considered properly as a written description and / or new matter issue.
Response to Arguments
Applicant's arguments filed 6/18/2025 have been fully considered but they are not persuasive.
Argument: Applicant argues that the rejection under 35 U.S.C. 103 obviousness in view of Herschke is traversed because the reference does not recognize or teach the optimizable nature of the recited difference between the melting and crystallinity temperatures. Furthermore, Applicant argues that that Modernatx / Moderna specifically addresses this issue in favor of Applicant’s argument of non-obviousness. Remarks pp. 9-14.
This is not found persuasive because (i) the cited decision is not a decision that changes previous precedential case law on applicable points; (ii) guidance as to any broader, new, or different applicability of the cited decision has not been established by the Office; (iii) the cited decision is understood to align with previous precedent to the extent it applies and the rejection as set forth below is understood to be in accord with all applicable case law and the requirements set forth in the MPEP; and (iv) the rejections are maintained and further clarified with additional case law and citations from Herschke.
Herschke discloses multiple ranges in [0050] and [0051] which have temperatures of melting and crystallization that have a difference of less than 45 degrees and meet the claimed range. At the extremes, in [0050] the polypropylene has a melting peak temperature from 110 C – 150 C and in [0051] the polypropylene has a crystallization temperature of from 90-110 C. At these extremes, the differences between the largest endpoint 150 C of the melting peak temperature, and the smallest endpoint 90 C for the crystallization peak temperature of the polypropylene polymer is outside the range (e.g. as large as 60°C). However, many/most other values and endpoints are within the claimed range of a less than 45 C difference. For example, in [0050] ranges of 130-140°C, 120-130°C, 131-139°C, 132-138°C, 133-137°C, 134-136°C and 135°C are also disclosed. In [0051], 98-105°C, 91-109°C, 92-108°C, 93-107°C, 94-106°C, 95-105°C, 96-104°C, 97-103°C, 98-102°C, 99-101°C, and 100°C are also disclosed. Most of the values within these ranges yield values within the claimed range. Further, the most specific disclosure in each paragraph of 135°C in [0050] and 100°C in [0051] yields a value within the claimed range. The teaching from these paragraphs provides a clear disclosure of a range of values that significantly overlaps the claimed range of equational relationship and further reasonably is understood to suggest specific examples within the claimed range in such a way as to make a strong reasonable prima facie case of obviousness. As each of paragraphs [0050] and [0051] get more specific regarding suitable values for the melting and crystallization temperatures of the materials, more and more of the values land within the claimed range. This manner of disclosing the ranges in Herschke is instructive and further suggests the suitability of relying upon the teaching of the reference.
By claiming an equational relationship among various temperatures of the materials, this does not mean that the ranges aren’t necessarily, inherently, intrinsically or implicitly taught by the cited prior art. The disclosed ranges significantly overlap the claimed range. Overlapping ranges are prima facie obvious and applicant has not established criticality to the recited variable of difference between the melting and crystallization temperatures with facts, reasoning or evidence of secondary results or considerations to create a nexus of criticality.
Argument: Applicant repeats the arguments regarding claim 1 in dependent claims 5, 7-8, 11-13, and 14 and argues that Kling and other references fail to remedy the deficiencies of Herschke. Remarks pp. 15-17.
Regarding the rejection of claim 5, applicant argues that Kling does not cure the deficiencies of Herschke. This argument is not persuasive. As set forth above, the rejection based upon Herschke is not deficient as argued.
Regarding the rejection of claim 7, applicant argues that Morizono does not cure the deficiencies of Herschke. This argument is not persuasive. As set forth above, the rejection based upon Herschke is not deficient as argued.
Regarding the rejection of claim 8, applicant argues that Van Riel does not cure the deficiencies of Herschke. This argument is not persuasive. As set forth above, the rejection based upon Herschke is not deficient as argued.
Regarding the rejection of claims 11-13, applicant argues that Young does not cure the deficiencies of Herschke. This argument is not persuasive. As set forth above, the rejection based upon Herschke is not deficient as argued.
Regarding the rejection of claim 14, applicant argues that Gentsch does not cure the deficiencies of Herschke. This argument is not persuasive. As set forth above, the rejection based upon Herschke is not deficient as argued.
In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
Argument: Applicant argues that claim 34 cannot be rejected in view of Herschke / Young / Gentsch because the polydispersity index was not measured and therefore is not taught by the references; furthermore, that the density of Young cannot be combined with the powder of Herschke; and that the Office Action is factually mistaken concerning the bulk density of the compositions of Young. Remarks pp. 18-19.
This is not found persuasive because the Young reference is no longer utilized in the grounds of rejection below regarding claim 34. Herschke alone is understood to be applicable regarding the claimed density limitations. Furthermore, the polydispersity index is known to correlate directly in a one-to-one fashion to the Mw to Mn ratio. Furthermore, Van Riel is used to disclose the polydispersity index of the recited polypropylene materials and not Young.
Argument: Applicant argues that the Office Action is picking and choosing physical properties, such as bulk density, in such a manner that these parameters are separable from the underlying conditions that possess these parameters. Remarks pp. 19.
This is not found persuasive because the Herschke reference alone is understood to properly render the claimed density values prima facie obvious for the reasons set forth in more detail below in the rejection of claims 11-14.
Furthermore, there is no evidence of record to support Applicant’s conclusion that the parameters are separable from the underlying compositions that possess these parameters.
Arguments of counsel cannot take the place of factually supported objective evidence. See, e.g., In re Huang, 100 F.3d 135, 139-40, 40 USPQ2d 1685, 1689 (Fed. Cir. 1996); In re De Blauwe, 736 F.2d 699, 705, 222 USPQ 191, 196 (Fed. Cir. 1984).
Argument: Applicant argues that parameters cannot be arbitrarily separated from the underlying compositions in and then transposed onto a different composition without violating scientific principles or engaging in improper hindsight reconstruction. Remarks pp. 19.
This is not found persuasive for the reasons set forth now more explicitly in the body of the rejection; in particular, in the rejections of claims 11-14.
Furthermore, a rationale is articulated in the OA for transposing the parameters and thus not violating “scientific principles”. In this case, Examiner does not see what picking and choosing of the cited prior art elements from the different references is impermissible hindsight as Applicant has not articulated how bulk / apparent density and other parameters create a nexus of non-obviousness or unobvious result or secondary consideration.
In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971).
Argument: Applicant argues that the modification made to primary reference Herschke in rejection of claim 34 under obviousness destroys the reference, making it unsuitable for its intended purpose. Remarks pp. 20.
This is not found persuasive because the rationales applied to the rejection of independent claim 1 and dependent claim 34 are different that previously presented, and Applicant has not demonstrated unobvious results or secondary considerations.
Claim Interpretation
The following is a summary of the claim interpretation of Applicant’s use of the term consisting regarding the particles of copolymer or terpolymer amended into independent claim 1:
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The compliment of the alkene monomeric species molar fraction is within the particles, and not what the composition is outside of the particles under the amended, clarifying claim language, such that the claimed particles have a polypropylene with the alkene monomeric species in copolymeric form. Another material is still allowed within the scope of the claimed composition because the overall claim is direct to “A powder composition comprising”.
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1-3, 6, 11-14, 32 are rejected under 35 U.S.C. 103 as being unpatentable over Herschke (US 2021/0139685).
Regarding claim 1, Herschke discloses a powder composition (see build material of abs, throughout; polymeric particles in powder form of [0043]) comprising:
particles (Id.) consisting of copolymer or terpolymer (propylene copolymer or propylene terpolymer of [0043]) having a spherical shape (see substantially spherical shape of [0042]), the copolymer or terpolymer comprising one or more alkene monomeric species (see [0044] for examples of suitable comonomers with propylene that are alkene monomeric species), in an amount from 3-9 molar percent (copolymer / comonomer content is detailed in [0046] – greater than 1 wt. % is disclosed, which is taken as an overlapping range to the claimed range depending on the specific comonomer chosen – see for ex. 8-20 wt. % of [0046]), and the balance polypropylene ([0055] indicates that the polypropylene may be present in about 40-99 wt. % of the mixture of build material – this is taken as an overlapping range to the claimed range);
wherein the copolymer or terpolymer is a random copolymer ([0045]; see also [0045] which indicates ethylene-propylene random copolymer, ethylene-propylene-butene terpolymer, and ethylene-propylene-octene terpolymer);
wherein the particles have a D10 of 20-40 microns (see [0024] and [0026]);
wherein the particles have a D50 of 40-80 microns (Id. – this is an overlapping range to the claimed range);
wherein the particles have a D90 of less than 150 microns (Id.).
Henske discloses ranges that are acceptable for use in the powder composition for the melting temperature and the crystallization temperature ([0050]-[0051]), however fails to disclose wherein a difference between the melting temperature and the crystallization temperature of the copolymer or terpolymer is less than 45 C.
In one example, a difference between the melting temperature (see [0050] – disclosed as between 130 C and 140 C) and the crystallization temperature ([0051] – disclosed as between 98-105 C) is less than 45 C (140 C-98 C<45C in the most extreme case necessarily);
Since paragraph [0050] discloses an upper melting temperature of “about 150 °C” as the highest value and a crystallization peak temperature as low as “about 90 °C” (paragraph [0051]) – as such, the most extreme case is about 60°C (outside the claimed range). The lowest difference disclosed difference as disclosed is about 0°C (inside the claimed range).
Therefore, the Henske reference discloses a range of differences between the melting temperature and the crystallization temperature of from 0-60°C which substantially overlaps the claimed range and renders it prima facie obvious. Examiner notes that the teaching makes clear that “about 135°C” for melt and “about 100°C”, for Tm and Tc, respectively, for example, is reasonably suggested to include an interpretation of an overlapping range to the claimed range.
Herschke discloses multiple ranges in [0050] and [0051] which have temperatures of melting and crystallization that have a difference of less than 45 degrees and meet the claimed range. At the extremes, in [0050] the polypropylene has a melting peak temperature from 110 C – 150 C and in [0051] the polypropylene has a crystallization temperature of from 90-110 C. At the extremes, the differences between the largest endpoint 150 C of the melting peak temperature, and the smallest endpoint 90 C for the crystallization peak temperature of the polypropylene polymer is outside the range. However, other values and endpoints are within the claimed range of a less than 45 C difference. For example, in [0050] ranges of 130-140°C, 120-130°C, 131-139°C, 132-138°C, 133-137°C, 134-136°C and 135°C are also disclosed. In [0051], 98-105°C, 91-109°C, 92-108°C, 93-107°C, 94-106°C, 95-105°C, 96-104°C, 97-103°C, 98-102°C, 99-101°C, and 100°C are also disclosed. Most of the values within these ranges yield values within the claimed range. Further, the most specific disclosure in each paragraph of 135°C in [0050] and 100°C in [0051] yields a value within the claimed range. The teaching from these paragraphs provides a clear disclosure of a range of values that significantly overlaps the claimed range of equational relationship and further reasonably is understood to suggest specific examples within the claimed range in such a way as to make a strong reasonable prima facie case of obviousness. As each of paragraphs [0050] and [0051] get more specific regarding suitable values for the melting and crystallization temperatures of the materials, more and more of the values land within the claimed range.
Regarding limitations recited in claim 1 which are directed to specific properties of powder composition recited in said claim, it is noted that once a powder composition is disclosed to comprise a material selected from the group consisting of copolymer or terpolymer, the copolymer or terpolymer comprising one or more alkene monomeric species in an amount of 3-9 molar %, with the balance polypropylene and the recited size distribution (see Herschke), and therefore is substantially the same as the powder composition of claim 1, it will, inherently, display recited properties. See MPEP 2112.
"Products of identical chemical composition cannot have mutually exclusive properties." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. Id. (Applicant argued that the claimed composition was a pressure sensitive adhesive containing a tacky polymer while the product of the reference was hard and abrasion resistant. "The Board correctly found that the virtual identity of monomers and procedures sufficed to support a prima facie case of unpatentability of Spada’s polymer latexes for lack of novelty.").
It would have been obvious to one of ordinary skill in the art at the time of invention to have selected the overlapping portion of the ranges for the crystallization temperature and melting temperature as disclosed by the Herschke reference because selection of overlapping portion of ranges has been held to be a prima facie case of obviousness. In re Malagari, 182 USPQ 549.
As such, without showing unexpected results, the claimed temperature difference cannot be considered critical. Accordingly, one of ordinary skill in the art at the time the invention was made would have optimized, by routine experimentation, the temperature difference of the powder composition in the Herschke. Further, as is applicable in this case for the reasons set forth above, when the general conditions of the claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. (In re Aller, 105 USPQ 223).
Regarding claim 2, the combination Herschke teaches that the particles are near spherical (see Herschke [0030], which mentions that the particles are nearly spherical, which is interpreted as within the BRI of spheroidal and further teaches a sphericity of >0.84). This therefore discloses values within or which overlap the claimed range.
Regarding claim 3, the combination Herschke disclose wherein the copolymer or terpolymer has a crystallization temperature less than 100 C (see [0051] – this is an overlapping range to the claimed range of crystallization temperatures).
Regarding claim 6, the combination Herschke discloses wherein the alkene monomeric species is ethylene, butene, and 1-octene (see ethylene of [0044]-[0045] – there are examples of powder wherein the monomeric alkene species that makes up the copolymer or terpolymer includes ethylene, butene and 1-octene as these particular molecules are the monomers / building blocks for ethylene-butene-octene terpolymers; also, “ethylene-propylene random copolymer” and “ethylene-propylene-butene terpolymer” are disclosed in paragraph [0045]).
Regarding claims 11, the combination Herschke is silent as to the apparent density of the recited powder material.
Herschke discloses the particle size, particle shape (i.e. spherical) and composition as set forth in the rejection of claim 1. The bulk density/apparent density of a material is determined from these properties, and Herschel discloses that the polymer particles may have a density of at least 0.85 g/cm3 ([0031]). Since Herschke meets the properties that produce bulk/apparent density, Herschke also properly is understood to render the claimed density properties prima facie obvious.
"Products of identical chemical composition cannot have mutually exclusive properties."
In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). A chemical
composition and its properties are inseparable. Therefore, if the prior art teaches the identical
chemical structure, the properties applicant discloses and/or claims are necessarily present. Id.
(Applicant argued that the claimed composition was a pressure sensitive adhesive containing a
tacky polymer while the product of the reference was hard and abrasion resistant. "The Board
correctly found that the virtual identity of monomers and procedures sufficed to support a prima
facie case of unpatentability of Spada’s polymer latexes for lack of novelty."). Since claim 1 is properly rejected over the teaching of Herschke and since the properties that yield the claimed property are also set forth in Herschke, it follows that Herschke is properly applied and also renders the claimed property prima facie obvious.
Regarding claims 12, the Herschke is silent as to the apparent density of the recited powder material. However, Herschke discloses the particle size, particle shape (i.e. spherical) and composition as set forth in the rejection of claim 1. The bulk density/apparent density of a material is determined from these properties, and Herschel discloses that the polymer particles may have a density of at least 0.85 g/cm3 ([0031]). Since Herschke meets the properties that produce bulk/apparent density, Herschke also properly is understood to render the claimed density properties prima facie obvious.
"Products of identical chemical composition can not have mutually exclusive properties."
In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). A chemical
composition and its properties are inseparable. Therefore, if the prior art teaches the identical
chemical structure, the properties applicant discloses and/or claims are necessarily present. Id.
(Applicant argued that the claimed composition was a pressure sensitive adhesive containing a
tacky polymer while the product of the reference was hard and abrasion resistant. "The Board
correctly found that the virtual identity of monomers and procedures sufficed to support a prima
facie case of unpatentability of Spada’s polymer latexes for lack of novelty."). Since claim 1 is properly rejected over the teaching of Herschke and since the properties that yield the claimed property are also set forth in Herschke, it follows that Herschke is properly applied and also renders the claimed property prima facie obvious.
Regarding claim 13, the combination Herschke is silent as to the tap density of the recited powder material. However, Herschke discloses the particle size, particle shape (i.e. spherical) and composition as set forth in the rejection of claim 1. The tap density of a material is determined from/flows from these properties, and Herschel discloses that the polymer particles may have a density of at least 0.85 g/cm3 ([0031]). Since Herschke meets the properties that produce tap density, Herschke also properly is understood to render the claimed density properties prima facie obvious.
"Products of identical chemical composition can not have mutually exclusive properties."
In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). A chemical
composition and its properties are inseparable. Therefore, if the prior art teaches the identical
chemical structure, the properties applicant discloses and/or claims are necessarily present. Id.
(Applicant argued that the claimed composition was a pressure sensitive adhesive containing a
tacky polymer while the product of the reference was hard and abrasion resistant. "The Board
correctly found that the virtual identity of monomers and procedures sufficed to support a prima
facie case of unpatentability of Spada’s polymer latexes for lack of novelty."). Since claim 1 is properly rejected over the teaching of Herschke and since the properties that yield the claimed property are also set forth in Herschke, it follows that Herschke is properly applied and also renders the claimed property prima facie obvious.
Regarding claim 14, the combination Herschke fails to disclose wherein the powder composition of claim 1 has a Hausner ratio of 1.1 to 1.4. However, Herschke discloses the particle size, particle shape (i.e. spherical) and composition as set forth in the rejection of claim 1. Further, Herschke properly renders claims 11-13 prima facie obvious. As the Hausner ratio is a ratio of tap and bulk/apparent densities and Herschke is understood to properly include the values set forth in claims 11-13, Herschke is also understood to meet the claimed ratios of these values set forth in claim 14.
"Products of identical chemical composition can not have mutually exclusive properties."
In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). A chemical
composition and its properties are inseparable. Therefore, if the prior art teaches the identical
chemical structure, the properties applicant discloses and/or claims are necessarily present. Id.
(Applicant argued that the claimed composition was a pressure sensitive adhesive containing a
tacky polymer while the product of the reference was hard and abrasion resistant. "The Board
correctly found that the virtual identity of monomers and procedures sufficed to support a prima
facie case of unpatentability of Spada’s polymer latexes for lack of novelty."). Since claim 1 is properly rejected over the teaching of Herschke and since the properties that yield the claimed property are also set forth in Herschke, it follows that Herschke is properly applied and also renders the claimed property prima facie obvious.
Regarding claim 32, Herschke disclose an overlapping range to the claimed range (paragraph [0051]). Overlapping ranges are prima facie obvious
Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over Herschke (US 2021/0139685), and further in view of Kling (US 2010/0093906).
Regarding claim 5, the combination Herschke fails to disclose wherein the copolymer or terpolymer has less than 1 percent branching.
Kling discloses polypropylene composites (see title, abs) wherein the alkene is non-
branched (see claim 7 and [0020] – both branched and unbranched alkene monomers are
recognized).
It would have been obvious to one of ordinary skill in the art to select a non-branched
alkene as in Kling as an option in the polypropylene composition of Herschke to arrive at the
claimed invention before the effective filing date would have been an exercise in obvious to try
(KSR Rationale E – only two different options that are art-recognized, sufficiently finite to be
predictable and within the level of skill of ordinary skill in the art to attempt) since they are
suitable structures for use in the composition of Herschke.
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over Herschke (US 2021/0139685), and further in view of Morizono (US 2003/0049477).
Regarding claim 7, the combination Herschke fails to teach wherein the copolymer or terpolymer has an isotactic random structure.
Morizono discloses polypropylene-polyethylene blends ([0856]-[0857]) wherein the polymer is isotactic random (Id.; see additionally [0139] which indicates that polyethylene is isotactic in Table V).
It would have been obvious to one of ordinary skill in the art to select the isotactic
random tacticity of the PP / PE blend of Morizono to the copolymer of Herschke to arrive at the
claimed invention before the effective filing date because doing so had the benefit that it
improved the blocking resistance of the composite ([0002]) and would have been considered result-effective with the transparency, flexibility, and heat-sealing properties of the film (Id. – KSR Rationale G). See MPEP 2144.5(I) and (II) regarding the obviousness of routine optimization and result-effective variables. Further, it would have been obvious to try
(KSR Rationale E – limited options that are art-recognized, sufficiently finite to be
predictable and within the level of skill of ordinary skill in the art to attempt) to use an isotactic random structure as claimed since it is a suitable structure for use in the composition of Herschke.
Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over Herschke (US 2021/0139685), and further in view of Querol Esparch (US 2021/0277222).
Regarding claim 8, the combination Herschke fails to disclose wherein the copolymer or terpolymer has a Mw/Mn ratio of 1.2 to 5, but necessarily had some polydispersity index. One of ordinary skill in the art would have looked from Herschke to other references in the art of polypropylene-polyethylene composites and found Querol Esparch.
Querol Esparch discloses PP-PE composite / blend (see Table III) with a polydispersity index (taken as an obvious variant to the claimed ratio as understood by one of ordinary skill in
the art – see Table III) of 1.3. See MPEP 2144.05 regarding the obviousness of similar, approaching and overlapping ranges, amounts and proportions.
It would have been obvious to one of ordinary skill in the art to select the polydispersity
index (PDI) of Querol Esparch as 1.3 in the polymeric PP composite of Herschke to arrive at the claimed invention before the effective filing date because doing so was an exercise in combining prior art elements according to known methods to yield predictable results - KSR Rationale A. Further, Querol Esparch reasonably suggests such a polydispersity is an art recognized polydispersity for the copolymer that would be suitable for use in the analogous art (see MPEP 2144.06-2144.09).
Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over Herschke (US 2021/0139685), and further in view of Van Riel (US 2009/0105397).
Regarding claim 8, the combination Herschke fails to disclose wherein the copolymer or terpolymer has a Mw/Mn ratio of 1.2 to 5.
Van Riel discloses PP-PE composite / blend (see title, abs, [0013]) with a polydispersity
index (taken as an obvious variant to the claimed ratio as understood by one of ordinary skill in
the art – see Van Riel [0010] which includes this definition) from 1.2-1.5 (greater than 1.3 is
disclosed in Van Riel – see [0040]). This is an overlapping range to the claimed range. See
MPEP 2144.05 regarding the obviousness of similar, approaching and overlapping ranges,
amounts and proportions.
It would have been obvious to one of ordinary skill in the art to select the polydispersity
index (PDI) of Van Riel as greater than 1.3 in the polymeric PP composite of Herschke to arrive at the claimed invention before the effective filing date because doing so had the benefit that it
allowed for the improvement of the properties (tactile characteristics, low gloss surface
appearance or the durability characteristics), lowering of costs or both ([0003]) (KSR Rationale
G – Teaching, suggestion, or motivation).
Claim 34 is rejected under 35 U.S.C. 103 as being unpatentable over Herschke (US 2021/0139685), and further in view of Van Riel (US 2009/0105397).
Regarding claim 34, the combination Herschke discloses wherein the particles have an aspect ratio of 0.7-1 (Herschke teaches that the particles are near-spherical – see [0030] which mentions near spherical particles, which is interpreted as within the BRI of spheroidal) and, therefore, necessarily have an aspect ratio of approximately near 1. This
teaching is understood to disclose a range within or that overlaps the claimed range. The
reason to combine the references is the same as that set forth above.
The combination Herschke, further, discloses wherein the alkene monomeric species is ethylene (see rejection of claim 1 above – see ethylene of abs of Herschke).
Since paragraph [0050] discloses an upper melting temperature of “about 150 °C” as the highest value and a crystallization peak temperature as low as “about 90 °C” (paragraph [0051]) – as such, the most extreme case is about 60°C. The lowest difference disclosed difference as disclosed is about 0°C.
So the reference discloses a range of differences between the melting temperature and the crystallization temperature of from 0-60°C which substantially overlaps the claimed range and renders it prima facie obvious. Examiner notes that the teaching makes clear that “about 135°C” for melt and “about 100°C”, for Tm and Tc, respectively, for example, is reasonably suggested to further strengthen our position.
As set forth in detail in the rejections of claims 11-14 above, Herschke is understood to properly meet the claimed apparent density and Hausner ratio.
The combination Herschke fails to disclose wherein the copolymer or terpolymer has a Mw/Mn ratio of 1.2 to 5. The combination Herschke necessarily has some polydispersity index (a.k.a. Mw/Mn ratio), but was not measured / determined / of interest to Herschke. One of ordinary skill in the art would have looked to other prior art references to determine to optimum working range for the apparent density of the particles of Herschke.
Van Riel discloses PP-PE composite / blend (see title, abs, [0013]) with a polydispersity
index (taken as an obvious variant to the claimed ratio as understood by one of ordinary skill in
the art – see Van Riel [0010] which includes this definition) from 1.2-1.5 (greater than 1.3 is
disclosed in Van Riel – see [0040]). This is an overlapping range to the claimed range. See
MPEP 2144.05 regarding the obviousness of similar, approaching and overlapping ranges,
amounts and proportions.
It would have been obvious to one of ordinary skill in the art to select the polydispersity
index (PDI) of Van Riel as greater than 1.3 in the polymeric PP composite of Herschke to arrive at the claimed invention before the effective filing date because doing so had the benefit that it
allowed for the improvement of the properties (tactile characteristics, low gloss surface
appearance or the durability characteristics), lowering of costs or both ([0003]) (KSR Rationale
G – Teaching, suggestion, or motivation).
"Products of identical chemical composition can not have mutually exclusive properties."
In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). A chemical
composition and its properties are inseparable. Therefore, if the prior art teaches the identical
chemical structure, the properties applicant discloses and/or claims are necessarily present. Id.
(Applicant argued that the claimed composition was a pressure sensitive adhesive containing a
tacky polymer while the product of the reference was hard and abrasion resistant. "The Board
correctly found that the virtual identity of monomers and procedures sufficed to support a prima
facie case of unpatentability of Spada’s polymer latexes for lack of novelty.").
Claim 34 is rejected under 35 U.S.C. 103 as being unpatentable over Herschke (US 2021/0139685), and further in view of Querol Esparch (US 2021/0277222).
Regarding claim 34, the combination Herschke discloses wherein the particles have an aspect ratio of 0.7-1 (Herschke teaches that the particles are near-spherical – see [0030] which mentions near spherical particles, which is interpreted as within the BRI of spheroidal) and, therefore, necessarily have an aspect ratio of approximately near 1. This
teaching is understood to disclose a range within or that overlaps the claimed range. The
reason to combine the references is the same as that set forth above.
The combination Herschke, further, discloses wherein the alkene monomeric species is ethylene (see rejection of claim 1 above – see ethylene of abs of Herschke).
Since paragraph [0050] discloses an upper melting temperature of “about 150 °C” as the highest value and a crystallization peak temperature as low as “about 90 °C” (paragraph [0051]) – as such, the most extreme case is about 60°C. The lowest difference disclosed difference as disclosed is about 0°C.
So the reference discloses a range of differences between the melting temperature and the crystallization temperature of from 0-60°C which substantially overlaps the claimed range and renders it prima facie obvious. Examiner notes that the teaching makes clear that “about 135°C” for melt and “about 100°C”, for Tm and Tc, respectively, for example, is reasonably suggested to further strengthen our position.
As set forth in detail in the rejections of claims 11-14 above, Herschke is understood to properly meet the claimed apparent density and Hausner ratio.
The combination Herschke fails to disclose wherein the copolymer or terpolymer has a Mw/Mn ratio of 1.2 to 5. The combination Herschke necessarily has some polydispersity index (a.k.a. Mw/Mn ratio), but was not measured / determined / of interest to Herschke. One of ordinary skill in the art would have looked to other prior art references to determine to optimum working range for the apparent density of the particles of Herschke.
Querol Esparch discloses PP-PE composite / blend (see Table III) with a polydispersity index (taken as an obvious variant to the claimed ratio as understood by one of ordinary skill in
the art – see Table III) of 1.3. See MPEP 2144.05 regarding the obviousness of similar, approaching and overlapping ranges, amounts and proportions.
It would have been obvious to one of ordinary skill in the art to select the polydispersity
index (PDI) of Querol Esparch as 1.3 in the polymeric PP composite of Herschke to arrive at the claimed invention before the effective filing date because doing so was an exercise in combining prior art elements according to known methods to yield predictable results - KSR Rationale A. Further, Querol Esparch reasonably suggests such a polydispersity is an art recognized polydispersity for the copolymer that would be suitable for use in the analogous art (see MPEP 2144.06-2144.09).
Conclusion
Citation of relevant, pertinent prior art:
Allen (US 2021/0039163) [0043] discloses that SLS powders have particles with size distributions can have Hausner ratios (HR) of less than 1.4 to maintain free flowing powder behavior and goes on to define the HR as the ratio of tap to bulk / apparent density.
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to GUY F MONGELLI whose telephone number is (571)270-7904. The examiner can normally be reached M-F 8AM-5PM EST.
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/GUY F MONGELLI/Patent Examiner, Art Unit 1744
/XIAO S ZHAO/Supervisory Patent Examiner, Art Unit 1744
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