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 .
This office action is in response to the amendment filed 8/29/2025. Claims 1 and 3-18 are currently pending in the application, with claim 2 having been cancelled.
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 Rejections - 35 USC § 112
Claims 6-7 and 14 are rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. Claims 6-7 and 14 recite transitional language “consisting of” and do not include virgin polyethylene terephthalate required in the composition of claim 1. Hence, claims 6-7 and 14 fail to further limit the scope of independent claim 1 on which these claims are dependent. Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
Claim Rejections - 35 USC § 103
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.
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, 3-5, 11 and 15-18 are rejected under 35 U.S.C. 103 as being unpatentable over Booth et al (US 2014/0213673 A1) in view of Semen et al (US 4,483,949) and Mikkelsen et al (US 2020/0391133 A1).
Regarding claims 1 and 17, Booth et al disclose polymer composition comprising up to about 100% curbside post-consumer polyethylene terephthalate by weight and balance virgin polyethylene terephthalate (paragraph 0055). The polyethylene terephthalate is present in amounts of at least about 90% curbside post-consumer polyethylene terephthalate (i.e., reads on recycled polyethylene terephthalate and its amount in present claim 1, and hence amount of virgin polyethylene terephthalate in present claim 1). One or more additives known to those skilled in art can be added and include nucleating agents in amounts of up to about 2% (paragraphs 0073-0074) which reads on the amount of nucleating agent in present claim 1.
Booth et are silent with respect to intrinsic viscosity of virgin polyethylene terephthalate and species of nucleating agent; impact modifier and its amount.
However, regarding intrinsic viscosity of virgin polyethylene terephthalate and species of nucleating agent, Semen et al in the same field of endeavor teach thermoplastic compositions comprising polyethylene terephthalate and a nucleating agent (abstract). The polyethylene terephthalates may be virgin or recycled PET’s and should be moldable and thus generally have an intrinsic viscosity between about 0.25 and 1.5 (col. 2, lines 25-29) which overlaps with the intrinsic viscosity of virgin PET in present claims 1 and 17. Examples of nucleating agents include sodium or potassium salts of citric acid (col. 5, lines 1-42) which reads on the salt of citric acid in present claim 1. Case law holds that the selection of a known material based on its suitability for its intended use supported a prima facie obviousness determination in Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945). Therefore, in light of the teachings in Semen et al, case law and given that Booth et al contemplate including virgin polyethylene terephthalate, and a nucleating agent to its composition, it would have been obvious to one skilled in art prior to the filing of application to include virgin polyethylene terephthalate having intrinsic viscosity in overlapping ranges of greater than 1.0 dL/g to about 1.5 dL/g, and nucleating agents, of Semen et al, such as sodium or potassium salts of citric acid, in overlapping amount, in the resin composition, of Booth et al, for above mentioned advantages.
Regarding impact modifier and its amount, and injection molding, Mikkelsen et al in the same field of endeavor teach resin composition comprising polyethylene terephthalate (abstract). The resin further comprises impact modifier that increases the impact strength of injection molded PET (paragraphs 0067-0068). Specific examples include terpolymer of ethylene, butyl acrylate and glycidyl methacrylate (paragraph 0080) which reads on impact modifier comprising (meth)acrylic in present claim 1. Case law holds that the selection of a known material based on its suitability for its intended use supported a prima facie obviousness determination in Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945). The amount of impact modifiers is 0.5 to 5% by weight based on the total weight of resin (paragraph 0091) which overlaps with the amount of impact modifier in present claim 1. Therefore, in light of the teachings in Mikkelsen et al, it would have been obvious to one skilled in art prior to the filing of present application to include impact modifier, of Mikkelsen et al, in overlapping amounts in the composition, of Booth et al in view of Semen et al, for above mentioned advantages and obtain an injection molded product.
Regarding claim 3, it is the Office’s position that up to 1 phr of optical brightener includes 0 phr and therefore not required.
Regarding claim 4, it is the Office’s position that up to 0.5 phr of heat stabilizer includes 0 phr and therefore not required.
Regarding claim 5, it is the Office’s position that up to 1.5 phr of polyolefin-based wax includes 0 phr and therefore not required.
Regarding claim 11, in addition to 9a to 9d above, Booth et al teach that fillers can be included in amounts of up to about 0.5% (paragraphs 0073-0074). Examples of fillers, in Mikkelsen et al, include TiO2 in amounts of 0.1 to 5 wt% (paragraphs 0031-0032) which reads on TiO2 and overlaps with its amount in present claim 11. Examples of nucleating agents, in Semen et al, include sodium or potassium salts of tricarboxylic acid such as citric acid (col. 5, lines 1-42) which reads on trisodium citrate. Examples of impact modifiers, in Mikkelsen et al, include anhydride modified polypropylene (paragraph 0083) which reads on PP-g-MAH in present claim 11.
Regarding claims 15 and 16, in addition to 9a to 9d above, see example 2 of Mikkelsen et al, wherein it teaches that the composition is processed by injection molding (paragraph 0144) which reads on method of producing a molded product by injection molding in present claim 16. Then obtained bars were tested in the Drop test (paragraph 0149) which reads on molded product in present claim 15.
Regarding claim 18, Semen et al teach that polyethylene terephthalates may be virgin or recycled PET’s and should be moldable and thus generally have an intrinsic viscosity between about 0.25 and 1.5 (col. 2, lines 25-29) which overlaps with the intrinsic viscosity of virgin PET in present claim 18.
Claims 3 and 6-10 are rejected under 35 U.S.C. 103 as being unpatentable over Booth et al (US 2014/0213673 A1) in view of Semen et al (US 4,483,949), Mikkelsen et al (US 2020/0391133 A1) and Sugie (JP 2001-234047 A).
It is noted that JP 2001-234047 A is in Japanese. A copy of the machine translation into English is provided with Office action mailed 3/9/2023. All line/paragraph citations in the body of rejection below are to the English translation unless explicitly stated.
The discussion with respect to Booth et al, Semen et al and Mikkelsen et al in paragraph 9 above is incorporated here by reference. Additionally, examples of impact modifier, in Mikkelsen et al, include maleic anhydride grafted impact modifiers such as anhydride modified polyethylene (paragraph 0084, and reads on PE-g-MAH in present claim 6), anhydride modified polypropylene (paragraph 0083 and reads on PP-g-MAH in present claims 8-10) and Lotader® AX8700 (a terpolymer of ethylene, butyl acrylate and glycidyl methacrylate (paragraph 0144 and 0080) which reads on EMA-GMA in present claim 7. The amount of impact modifier is from 0.5 to 5 wt% based on the total weight of resin (paragraph 0091) which overlaps with the amount of impact modifier in present claims 6-10. Examples of nucleating agents, in Semen et al, include sodium or potassium salts of tricarboxylic acid such as citric acid (col. 5, lines 1-42) which reads on trisodium citrate in present claims 6-10.
Booth et al, Semen et al and Mikkelsen et al are silent with respect to optical brightener, and 2,2’-(1,2-Ethenediyldi-4,1-phenylene)bisbenzoxazole.
However, Sugie in the same field of endeavor teaches polyethylene terephthalate resin composition excellent in hue and comprises 0.01 to 5 parts weight of optical whitening agent (abstract) which reads on optical brightener and its amount in present claims 3 and 6-10. A fluorescent whitening agent absorbs UV energy and emits it to the violet-blue portion to obtain a hue that emphasizes whiteness. Examples of whitening agents include 2,2’-(1,2-Ethenediyldi-4,1-phenylene)bisbenzoxazole (page 3, lines 12-18). Therefore, in light of the teachings in Sugie, it would have been obvious to one skilled in art prior to the filing of present application to include optical whitening agent, of Sugie, such as 2,2’-(1,2-Ethenediyldi-4,1-phenylene)bisbenzoxazole in overlapping amounts, in the resin composition, of Booth et al in view of Semen et al and Mikkelsen et al, for above mentioned advantages.
Claims 4 and 13 are rejected under 35 U.S.C. 103 as being unpatentable over Booth et al (US 2014/0213673 A1) in view of Semen et al (US 4,483,949), Mikkelsen et al (US 2020/0391133 A1), and Liao et al (US 20200339777 A1).
It is noted that JP 08-059967 A is in Japanese. A copy of the machine translation into English is provided with Office action mailed 3/9/2023. All line/paragraph citations in the body of rejection below are to the English translation unless explicitly stated.
The discussion with respect to Booth et al, Semen et al and Mikkelsen et al in paragraph 9 above is incorporated here by reference. Additionally, examples of impact modifier, in Mikkelsen et al, include anhydride modified polypropylene (paragraph 0083 and reads on PP-g-MAH in present claim 13). The amount of impact modifier is from 0.5 to 5 wt% based on the total weight of resin (paragraph 0091) which overlaps with the amount of impact modifier in present claim 13. Examples of fillers, in Mikkelsen et al, include TiO2 and CaCO3 in amounts of 0.1 to 5 wt% (paragraphs 0031-0032) which reads on TiO2, CaCO3 and their amount in the present claim 13.
Booth et al, Semen et al and Mikkelsen et al are silent with respect to antioxidant.
However, Liao et al in the same field of endeavor teach a recycled PET composition (abstract) comprising 0.1 to 1.0 wt% of antioxidant selected from one or a combination of pentaerythritol tetrakis(3,5-di-tert-butyl-4-hydroxy)phenyl propionate and phenyl tris(2,4-di-tert-butyl)phosphite (paragraph 0011) which reads on the antioxidant and its amount in present claims 4 and 13. The antioxidant is used to reduce an oxidation of the material in the processing step (paragraph 0015). Therefore, in light of the teachings in Liao et al, it would have been obvious to one skilled in art prior to the filing of present application, to include the antioxidants, of Liao et al, in overlapping amounts in the composition, of Booth et al in view of Semen et al and Mikkelsen et al, for above mentioned advantages
Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over Booth et al (US 2014/0213673 A1) in view of Semen et al (US 4,483,949), Mikkelsen et al (US 2020/0391133 A1) and Kotani et al (JP 08-059967 A).
It is noted that JP 08-059967 A is in Japanese. A copy of the machine translation into English is provided with Office action mailed 3/9/2023. All line/paragraph citations in the body of rejection below are to the English translation unless explicitly stated.
The discussion with respect to Booth et al, Semen et al, and Mikkelsen et al in paragraph 9 above is incorporated here by reference.
Booth et al, Semen et al, and Mikkelsen et al are silent with respect to polyolefin-based wax.
However, Kotani et al teach a composition comprising 50 to 97 wt% reclaimed polyethylene terephthalate (overview). It is also effective to incorporate a releasing agent such as polyethylene wax in amounts of 0.1 to 2 parts per 100 parts by weight of total composition (i.e., overlaps with the amount of polyolefin-based wax in present claim 5). When it is less than 0.01 parts by weight, the releasability at the time of injection molding is inferior so that problems such as poor appearance of molded article and reduction in productivity occur. When it is more than 5 parts by weight adhesion of release agent to the molded article and/or impairment of mechanical properties during injection molding occur (paragraph 0048). Therefore, in light of the teachings in Kotani et al, it would have been obvious to one skilled in art prior to the filing of present application, to include the polyethylene wax, of Kotani et al, in overlapping amounts in the composition, of Booth et al in view of Semen et al, and Mikkelsen et al, for above mentioned advantages.
Claims 12 and 14 are rejected under 35 U.S.C. 103 as being unpatentable over Booth et al (US 2014/0213673 A1) in view of Semen et al (US 4,483,949), Mikkelsen et al (US 2020/0391133 A1), Liao et al (US 20200339777 A1) and Kotani et al (JP 08-059967 A).
It is noted that JP 08-059967 A is in Japanese. A copy of the machine translation into English is provided with Office action mailed 3/9/2023. All line/paragraph citations in the body of rejection below are to the English translation unless explicitly stated.
The discussion with respect to Booth et al, Semen et al and Mikkelsen et al in paragraph 9 above is incorporated here by reference. Additionally, examples of impact modifier, in Mikkelsen et al, include anhydride modified polypropylene (paragraph 0083 and reads on PP-g-MAH in present claims 12 and 14). The amount of impact modifier is from 0.5 to 5 wt% based on the total weight of resin (paragraph 0091) which overlaps with the amount of impact modifier in present claims 12 and 14. Examples of nucleating agents, in Semen et al, include sodium or potassium salts of tricarboxylic acid such as citric acid (col. 5, lines 1-42) which reads on trisodium citrate in present claims 12 and 14. Examples of fillers, in Mikkelsen et al, include TiO2 in amounts of 0.1 to 5 wt% (paragraphs 0031-0032) which reads on TiO2 and its amount in the present claim 14.
Booth et al, Semen et al and Mikkelsen et al are silent with respect to antioxidant, and polyethylene wax.
However, regarding antioxidant, Liao et al in the same field of endeavor teach a recycled PET composition (abstract) comprising 0.1 to 1.0 wt% of antioxidant selected from one or a combination of pentaerythritol tetrakis(3,5-di-tert-butyl-4-hydroxy)phenyl propionate and phenyl tris(2,4-di-tert-butyl)phosphite (paragraph 0011). The antioxidant is used to reduce an oxidation of the material in the processing step (paragraph 0015). Therefore, in light of the teachings in Liao et al, it would have been obvious to one skilled in art prior to the filing of present application, to include the antioxidants, of Liao et al, in overlapping amounts in the composition, of Booth et al in view of Semen et al and Mikkelsen et al, for above mentioned advantages.
Regarding polyethylene wax, Kotani et al in the same field of endeavor teach a composition comprising 50 to 97 wt% reclaimed polyethylene terephthalate (overview). It is also effective to incorporate a releasing agent such as polyethylene wax in amounts of 0.1 to 2 parts per 100 parts by weight of total composition (i.e., overlaps with the amount of polyethylene wax in present claims 12 and 14). When it is less than 0.01 parts by weight, the releasability at the time of injection molding is inferior so that problems such as poor appearance of molded article and reduction in productivity occur. When it is more than 5 parts by weight adhesion of release agent to the molded article and/or impairment of mechanical properties during injection molding occur (paragraph 0048). Therefore, in light of the teachings in Kotani et al, it would have been obvious to one skilled in art prior to the filing of present application, to include the polyethylene wax, of Kotani et al, in overlapping amounts in the composition, of Booth et al in view of Semen et al, Mikkelsen et al and Liao et al, for above mentioned advantages
Response to Arguments
It is noted that some of the arguments presented with this amendment are addressed in office action mailed prior to this amendment and incorporated here by reference. Only newly presented arguments in this amendment are addressed below (see paragraph 15).
Applicant's arguments and Declaration under 37 CFR 1.132, filed 8/29/2025, have been fully considered but they are not persuasive. Specifically, general thrust of applicant’s argument is that there is a showing of unexpected results with respect to colorability and heat resistance. See data presented in the Declaration wherein inventive examples 1 and 3 use virgin PET with an intrinsic viscosity of > 1.0 and comparative examples use virgin PET with an intrinsic viscosity of 0.7 (prior art).
In response, it is not clear from the data if compositions only include RPET and virgin PET, since present claims also require additional components such as nucleating agents and impact modifier. If the compositions do not include these components it is not a proper comparison. Additionally, even if the showing is only with these two components (i.e., PET and RPET), it is not clear that such unexpected results will be present over the entire range of over 90% for RPET and 5 to 7 phr for virgin PET having an intrinsic viscosity of > 1.0 which includes an infinite value. It is also not clear what the intrinsic value of the virgin PET is in these examples (for example 1.2, 1,3 etc). Hence, applicant arguments with respect to showing of unexpected results is not convincing.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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.
Contact Information
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KARUNA P REDDY whose telephone number is (571)272-6566. The examiner can normally be reached 8:30 AM to 5:00 PM M-F.
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/KARUNA P REDDY/Primary Examiner, Art Unit 1764