DETAILED ACTION
Notice of Pre-AIA or AIA Status
1. 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
2. The amendment filed by Applicant on January 28, 2026 has been fully considered. The amendment to instant claims 1 and 26 is acknowledged. Specifically, claim 1 has been amended to recite the limitations of:
a polyol component comprising more than 70 pphp of a polyester polyol based on an aromatic carboxylic acid, pphp being based on 100 pbm of said polyol component and
a rigid foam formed therefrom has a closed cell content of at least 80%.
These limitations in their combination were not previously presented and were taken from instant specification. In light of the amendment, all previous rejections are withdrawn. The new grounds of rejections necessitated by Applicant’s amendment are set forth below. Thus, the following action is properly made final.
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.
3. Claims 1, 5, 18, 22-28 are rejected under 35 U.S.C. 103 as being unpatentable over Furlan et al (US 2005/0131090) in view of Baumann et al (US 5,310,766), Singh et al (US 2002/0013379) and C1012 Normal Paraffin, Sasol flyer, 2011, as evidenced by Hydrocarbons-Physical Data, the Engineering Toolbox flyer and Bodnar et al (US 5,143,945).
In certain circumstances, references cited to show a universal fact need not be available as prior art before applicant’s filing date. In re Wilson, 311 F.2d 266, 135 USPQ 442 (CCPA 1962). Such facts include the characteristics and properties of a material or a scientific truism. See MPEP § 2124.
4. Furlan et al discloses a composition for making a rigid polyurethane foam comprising:
A) a polyisocyanate;
B) a polyol, including polyester polyols based on phthalic acid/anhydride ([0029]);
C) a urethane catalyst;
D) blowing agents including HFCs, HCFCs and water ([0033], [0034], [0044]) and
E) 0.5-3.5 pphr [0036]) of a silicone surfactant, specifically polyether-polysiloxane copolymer for stabilizing the cell formation (Abstract; [0015]; [0044]).
The isocyanate index (i.e. index of formulation) is 80-400 ([0044]).
Thus, Furlan et al teaches the use of both HFCs/HCFCs and water as blowing agents to form the rigid foam.
Furlan et al explicitly teaches the use of water as a blowing agent in amount of as high as 4 pphp ([0034]), 0-3 pbw (or 2 pbw) per 100 pbw of polyol as in [0044]-[0045].
Thus, Furlan et al teaches the use of both HFCs/HCFCs and as high as 4 pphr of water as blowing agents to form the rigid foam, and further a silicone surfactant in amount of 0.5-3.5 pphr for stabilizing the cell formation.
5. Though Furlan et al does not explicitly recite the rigid polyurethane foams as having closed cell ratio of at least 80%, based on the evidenced provided by Bodnar et al, the term “rigid” in respect of the foam products means a cellular polyurethane-polyisocyanurate having a closed cell content of at least 85% (see col. 2, lines 50-52 of Bodnar et al), as also presented below:
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Thus, the polyurethane foam of Furlan et al, which is specifically cited as “rigid”, will intrinsically and necessarily have, or would be reasonably expected to have the closed cell content of at least 80% as well. Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). MPEP 2112.01(I). Since PTO cannot conduct experiments the proof of burden is shifted to the applicants to establish an unobviousness difference, see In re Best, 562 F.2d 1252, 195 USPQ 430 (CCPA 1977). See MPEP § 2112.01.
6. Further, based on the teachings of Furlan et al that polyols useful for making the rigid polyurethane foams include polyester polyols based on phthalic acid/anhydride ([0029]), it would have been obvious to a one of ordinary skill in the art to choose and use polyester polyols based on phthalic acid/anhydride, as the only polyol components for forming the rigid polyurethane foam, since it would have been obvious to choose material based on its suitability. Case law holds that the selection of a known material based on its suitability for its intended use supports prima facie obviousness. Sinclair & Carroll Co vs. Interchemical Corp., 325 US 327, 65 USPQ 297 (1045).
7. Furthermore, though Furlan et al does not explicitly teach the use of aromatic polyester polyols as the polyol component,
Singh et al discloses rigid polyurethane foams prepared from a composition containing a) an organic polyisocyanate, b) an aromatic polyester polyol, where the polycarboxylic acid used to prepare said polyester polyol is aromatic ([0035]), c) organo-phosphorus compounds, d) water and hydrofluorocarbons as blowing agents (Abstract, [0010]-[0016]) and e) siloxane-oxyalkylene copolymers as foam stabilizing agents ([0050]), wherein the specifically exemplified foams are based on commercial aromatic polyester polyol STEPANPOL PS-2352 used as the only polyol component (Table 1 of Singh et al), wherein Singh et al explicitly teaches that such rigid polyurethane foams are having long term dimensional stability and increased compressive strength (Table 1).
It is further noted that the commercial aromatic polyester polyol STEPANPOL PS-2352 is used in examples of instant invention (Table 6 of instant specification).
8. Since both Furlan et al and Singh et al are related to rigid polyurethane foams based on the use of polyester polyols as the isocyanate-reactive components, polyisocyanate, siloxane-polyoxyethylene copolymer as the foam stabilizing agent/surfactant, using both water and hydrofluorocarbons as the blowing agent, and thereby belong to the same field of endeavor, wherein Singh et al teaches the use of aromatic polyester polyol formed from aromatic carboxylic acid and specifically a commercial aromatic polyester polyol STEPANPOL PS-2352 as the only polyol, forming rigid polyurethane foams having long term dimensional stability and increased compressive strength, therefore, it would have been obvious to a one of ordinary skill in the art to combine the teachings of Singh et al and Furlan et al, and to use, or obvious to try to use aromatic polyester polyol formed from aromatic carboxylic acid and specifically the commercial aromatic polyester polyol STEPANPOL PS-2352 as the only polyol to form the rigid polyurethane foam of Furlan et al, so to ensure said rigid polyurethane foam of Furlan et al is having long term dimensional stability and increased compressive strength, and since it would have been obvious to choose material based on its suitability, thereby arriving at the present invention. Case law holds that the selection of a known material based on its suitability for its intended use supports prima facie obviousness. Sinclair & Carroll Co vs. Interchemical Corp., 325 US 327, 65 USPQ 297 (1045). Case law holds that the mere substitution of an equivalent (something equal in value or meaning, as taught by analogous prior art) is not an act of invention; where equivalency is known to the prior art, the substitution of one equivalent for another is not patentable. See In re Ruff 118 USPQ 343 (CCPA 1958).
9. Furlan et al does not recite the composition further comprising a hydrocarbon having boiling point of more than 100⁰C.
10. However, Baumann et al specifically teaches the use of paraffinic hydrocarbon oils having low aromatic content and boiling point at atmospheric pressure of above about 150⁰C as stabilizing agent in polyurethane foams produced using both water, (per)fluorocarbons and hydrogen-containing chlorofluorocarbons (HFCs and HCFC) (col. 3, lines 15-47; col. 5, lines 43-45; col. 5, line 65-col. 6, line 10). The paraffinic hydrocarbons are used as a foam stabilizing composition comprising 10-50%wt of said hydrocarbons with 50-90%wt of polyester polyol (col. 2, lines 34-42) and said foam stabilizing composition is used in polyurethane foam composition in amount of up to 10 parts by weight (i.e. as low as close to zero parts by weight) or about 2-10 parts by weight based on 100 pbw of polyalcohol (col. 2, lines 60-67). Given the foam stabilizing composition comprises 10%wt of the hydrocarbon oil and said stabilizing composition is used in the polyurethane -producing formulation in amount of 2 pph, therefore, the amount of said hydrocarbon will be 0.2 pph. Given the foam stabilizing composition comprises 10%wt of the hydrocarbon oil and said stabilizing composition is used in the polyurethane -producing formulation in amount of 0.5 pph, therefore, the amount of said hydrocarbon will be 0.05 pph.
11. Thus, Baumann et al specifically teaches the use of paraffinic hydrocarbon oils having low aromatic content and boiling point at atmospheric pressure of above about 150⁰C as stabilizing agent in polyurethane foams produced using both water, (per)fluorocarbons and hydrogen-containing chlorofluorocarbons (HFCs and HCFC) (col. 3, lines 15-47; col. 5, lines 43-45; col. 5, line 65-col. 6, line 10).
Baumann et al discloses the use of water as preferred (i.e. not explicitly required) blowing agent (col. 5, lines 42-44) and wherein water is used in amount of 1-10 parts per 100 pbw of polyol or 2 pbw per 100 pbw of polyol (col. 5, lines 57-60).
Thus, water in the foam of Baumann et al is used in about the same amount, i.e. 1-2 pbw per 100 pbw of polyol, as that of Furlan et al.
12. Further, Baumann et al discloses that low boiling alkanes can be also used as the blowing agents along with water (col. 5, line 66-col. 6, line 3). The foam of Baumann et al also comprises silicone surfactant to control growth and stabilization of the cells (col 7, lines 20-25). In column 7, lines 20-55, Baumann et al explicitly teaches the use or organo-silicone surfactant to help control the growth and retention of the cell structure until it is sufficiently cured not to be susceptible to collapse and stabilize the cells against collapse. Thus, Baumann et al explicitly teaches away from allowing the cells to collapse, i.e. teaches away from forming an open-cell foam; but rather shows preference for formation of non-collapsed closed cells.
13. Baumann et al explicitly teaches the advantages of using the stabilizing composition to improve dimensional stability of the foam, as cited in col. 3, lines 1-5 and presented below:
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14. Thus:
1) both Baumann et al and Furlan et al are related to polyurethane foams comprising:
- the combination of low boiling alkanes and water as blowing agents, wherein water is used in the same amount of 1-2 pbw per 100 pbw of polyol;
- silicone surfactant to stabilize the cell formation.
2) Baumann et al explicitly teaches the composition for said foams further comprising high boiling point paraffinic hydrocarbons in combination with polyester polyol as a foam stabilizing composition; Baumann et al explicitly teaches that the foams comprising said foam stabilizing composition are having enhanced dimensional stability in comparison to similar foam prepared in the absence of said additive stabilizing composition (col. 3, lines 1-3). Tables 1-2 of Baumann et al clearly show that the foam compositions comprising said high boiling point paraffin oil provide improved dimensional stability and, specifically, the presence of said high boiling point paraffin oil provides said dimensional stability (see col. 10, lines 5-8; the stabilizing composition comprising only polyester polyol and not paraffin oil, does not provide acceptable dimensional stability).
3) On the other hand, the foam of Furlan et al is rigid, and thereby would require dimensional stability.
15. Since i) paraffinic hydrocarbons having boiling point of 150⁰C or more are taught in the art as being used as stabilizing agents in polyurethane foam-forming compositions to improve dimensional stability of the produced foams, wherein the foam compositions comprise both water and low boiling point alkanes as blowing agents and silicone surfactant to stabilize cell formation, as shown by Baumann et al, and
ii) the foam composition of Furlan et al is used for making rigid foams, which foams would necessarily require dimensional stability, and at the same time the foam-forming composition of Furlan et al comprises the combination of water and low boiling point alkanes as the blowing agents and silicone surfactant to stabilize the cells, similarly to the foam-forming composition of Baumann et al, therefore,
it would have been obvious to a one of ordinary skill in the art to combine the teachings of Baumann et al and Furlan et al, and include, or obvious to try to include the paraffinic hydrocarbon oils having boiling point at atmospheric pressure of above about 150⁰C into the composition of Furlan et al, in amount as taught by Baumann et al, such as 0.2 pph or 0.05 pph, to further, at least partially, improve dimensional stability of the produced rigid polyurethane foam of Furlan et al, and since it would have been obvious to choose material based on its suitability, thereby arriving at the present invention. Case law holds that the selection of a known material based on its suitability for its intended use supports prima facie obviousness. Sinclair & Carroll Co vs. Interchemical Corp., 325 US 327, 65 USPQ 297 (1045). The key to supporting any rejection under35 USC 103 is the clear articulation of the reason(s) why the claimed invention would have been obvious. The Supreme Court in KSR noted that the analysis supporting a rejection under 35 USC 103 should be made explicit. The Court quoting In re Kahn, 441 F.3d 977, 988, 78 USPQ2d 1329, 1336 (Fed. Cir. 2006), stated that "‘[R]ejections on obviousness cannot be sustained by mere conclusory statements; instead, there must be some articulated reasoning with some rational underpinning to support the legal conclusion of obviousness.’" KSR, 550 U.S. at 418, 82 USPQ2d at 1396. Exemplary rationales that may support a conclusion of obviousness include:
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(A) Combining prior art elements according to known methods to yield predictable results;
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(B) Simple substitution of one known element for another to obtain predictable results;
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(C) Use of known technique to improve similar devices (methods, or products) in the same way;
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(D) Applying a known technique to a known device (method, or product) ready for improvement to yield predictable results;
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(E) "Obvious to try" – choosing from a finite number of identified, predictable solutions, with a reasonable expectation of success;
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(F) Known work in one field of endeavor may prompt variations of it for use in either the same field or a different one based on design incentives or other market forces if the variations are predictable to one of ordinary skill in the art; (G) Some teaching, suggestion, or motivation in the prior art that would have led one of ordinary skill to modify the prior art reference or to combine prior art reference teachings to arrive at the claimed invention. MPEP 2141
16. All ranges in the composition of Furlan et al in view of Singh et al and Baumann et al are overlapping with the corresponding ranges of those as claimed in instant invention. It is well settled that where the prior art describes the components of a claimed compound or compositions in concentrations within or overlapping the claimed concentrations a prima facie case of obviousness is established. See In re Harris, 409 F.3d 1339, 1343, 74 USPQ2d 1951, 1953 (Fed. Cir 2005); In re Peterson, 315 F.3d 1325, 1329, 65 USPQ 2d 1379, 1382 (Fed. Cir. 1997); In re Woodruff, 919 F.2d 1575, 1578 16 USPQ2d 1934, 1936-37 (CCPA 1990); In re Malagari, 499 F.2d 1297, 1303, 182 USPQ 549, 553 (CCPA 1974).
17. Given the composition of Furlan et al in view of Singh et al and Baumann et al comprises 2 pphr of polyether-polysiloxane copolymer ([0036] of Furlan et al) and 0.2 pph of the hydrocarbon, therefore, the total amount of the hydrocarbon and the polyether-polysiloxane copolymer will be 2.2 pph (as to instant claims 5, 18) and the weight ratio of the hydrocarbon to the polyether-polysiloxane copolymer will be 0.2:2, i.e. 1:10 (as to instant claims 1, 22, 24-25).
Given the composition of Furlan et al in view of Singh et al and Baumann et al comprises 2 pphr of polyether-polysiloxane copolymer ([0036] of Furlan et al) and 0.05 pph of the hydrocarbon, therefore, the weight ratio of the hydrocarbon to the polyether-polysiloxane copolymer will be 0.05:2, i.e. 1:40 (as to instant claims 1, 22-25).
18. It would have been further obvious to and within the skills of a one of ordinary skill in the art to make variations and optimize by routine experimentation the relative amounts of used components, i.e. the polyol, isocyanate, catalyst, blowing agent, and specifically hydrocarbons and polyether-polysiloxane copolymer, since those hydrocarbons and polyether-polysiloxane copolymer are used to stabilize the foam, so to produce a final composition and polyurethane foam having a desired combination of properties, depending on the specific end-use of the final product, and desired stability, thereby arriving at the present invention. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
19. Though Furlan et al in view of Singh et al and Baumann et al disclose the composition comprising hydrocarbon oils having boiling temperature of above 150⁰C, specifically paraffin oil (col. 3, lines 28-42 of Baumann et al), Furlan et al in view of Singh et al and Baumann et al do not recite said paraffin oil being dodecane.
20. However, C1012 Normal Paraffin, Sasol flyer recites the commercially available C1012 Normal paraffin mixture of C10-C12 carbon range, having low viscosity and low odor (see the flyer). As evidenced by Hydrocarbons-Physical Data, the Engineering Toolbox flyer, the C10-C12 paraffins are having boiling point of 174-216⁰C (see the Hydrocarbons-Physical Data, the Engineering Toolbox flyer).
As can be seen from the C1012 Normal Paraffin, Sasol flyer, the C1012 Normal paraffin mixture includes C12 n-paraffin, which is called “dodecane”.
21. It is noted that the commercial product C1012 Normal Paraffin mixture commercially available from Sasol is cited in Table 2 of instant specification (page 30/42 of instant specification and as presented below) as the component HC No.3 with name “dodecane” and is used in inventive examples of instant specification. Therefore, the commercial product C1012 Normal Paraffin mixture, Sasol as cited in C1012 Normal Paraffin, Sasol flyer, corresponds to the “dodecane” as claimed in instant claims 1, 27-28. Instant specification describes “dodecane” only as commercial product C1012 Normal Paraffin (Sasol); instant specification does not require the used “dodecane” being as a pure compound used alone.
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22. Since the C1012 Normal Paraffin mixture commercially available from Sasol is a paraffin oil, having boiling point of more than 150⁰C, and is having low viscosity, all of which are required by Furlan et al in view of Singh et al and Baumann et al, therefore, it would have been obvious to a one of ordinary skill in the art to combine the teachings of Furlan et al in view of Baumann et al, Singh et al and C1012 Normal Paraffin, Sasol flyer, and to use, or obvious to try to use C1012 Paraffin Mixture commercially available from Sasol as the low viscosity paraffin oil having boiling point of more than 150⁰C in the composition for making polyurethane foam of Furlan et al in view of Singh et al and Baumann et al, since said C1012 Paraffin Mixture is having the properties as required by Furlan et al in view of Singh et al and Baumann et al and since it would have been obvious to choose material based on its suitability, thereby arriving at the present invention (as to instant claims 1, 27-28). Case law holds that the selection of a known material based on its suitability for its intended use supports prima facie obviousness. Sinclair & Carroll Co vs. Interchemical Corp., 325 US 327, 65 USPQ 297 (1045). Case law holds that the mere substitution of an equivalent (something equal in value or meaning, as taught by analogous prior art) is not an act of invention; where equivalency is known to the prior art, the substitution of one equivalent for another is not patentable. See In re Ruff 118 USPQ 343 (CCPA 1958).
23. Since the foam of Furlan et al in view of Singh et al, Baumann et al and C1012 Normal Paraffin, Sasol flyer is rigid and is produced from substantially the same composition as claimed in instant invention, including the use of commercial aromatic polyester polyol STEPANPOL PS-2352, therefore, the rigid foam of Furlan et al in view of Singh et al, Baumann et al and C1012 Normal Paraffin, Sasol flyer will intrinsically and necessarily comprise, or would be reasonably expected to comprise the properties, including closed cell content of more than 80% or more than 90%, which are the same as those claimed in instant invention, or having ranges overlapping with those as claimed in instant invention as well (as to instant claims 1, 26), especially since, as evidenced by Bodnar et al, the term “rigid” in respect of the foam products means a cellular polyurethane-polyisocyanurate having a closed cell content of at least 85%. Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). MPEP 2112.01(I). Since PTO cannot conduct experiments the proof of burden is shifted to the applicants to establish an unobviousness difference, see In re Best, 562 F.2d 1252, 195 USPQ 430 (CCPA 1977). See MPEP § 2112.01.
24. It is further noted that instant specification does not provide any evidence of criticality in using decene, dodecene, dodecane, tetradecane, tributene, tributane, tetrabutene, tetrabutane, oxo process oils or alkylbenzene having at least 10 carbon atoms in the hydrocarbon claimed composition, since all examples of instant invention are shown as comprising only said hydrocarbons. Further, the examples of instant specification do not recite the closed cell content of the polyurethane foams at all.
25. Claims 1, 5, 18, 22-28 are rejected under 35 U.S.C. 103 as being unpatentable over Furlan et al (US 2005/0131090) in view of Baumann et al (US 5,310,766), Singh et al (US 2002/0013379) and PARAFOL Paraffins flyer, 2010, as evidenced by PARAFFINS flyer, Sasol and Bodnar et al (US 5,143,945).
In certain circumstances, references cited to show a universal fact need not be available as prior art before applicant’s filing date. In re Wilson, 311 F.2d 266, 135 USPQ 442 (CCPA 1962). Such facts include the characteristics and properties of a material or a scientific truism. See MPEP § 2124.
26. Furlan et al discloses a composition for making a rigid polyurethane foam comprising:
A) a polyisocyanate;
B) a polyol, including polyester polyols based on phthalic acid/anhydride ([0029]);
C) a urethane catalyst;
D) blowing agents including HFCs, HCFCs and water ([0033], [0034], [0044]) and
E) 0.5-3.5 pphr [0036]) of a silicone surfactant, specifically polyether-polysiloxane copolymer for stabilizing the cell formation (Abstract; [0015]; [0044]).
The isocyanate index (i.e. index of formulation) is 80-400 ([0044]).
Thus, Furlan et al teaches the use of both HFCs/HCFCs and water as blowing agents to form the rigid foam.
Furlan et al explicitly teaches the use of water as a blowing agent in amount of as high as 4 pphp ([0034]), 0-3 pbw (or 2 pbw) per 100 pbw of polyol as in ([0044]-[0045]).
Thus, Furlan et al teaches the use of both HFCs/HCFCs and as high as 4 pphr of water as blowing agents to form the rigid foam, and further a silicone surfactant in amount of 0.5-3.5 pphr for stabilizing the cell formation.
27. Though Furlan et al does not explicitly recite the rigid polyurethane foams as having closed cell ratio of at least 80%, based on the evidenced provided by Bodnar et al, the term “rigid” in respect of the foam products means a cellular polyurethane-polyisocyanurate having a closed cell content of at least 85% (see col. 2, lines 50-52 of Bodnar et al), as also presented below:
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Thus, the polyurethane foam of Furlan et al, which is specifically cited as “rigid”, will intrinsically and necessarily have, or would be reasonably expected to have the closed cell content of at least 80% as well. Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). MPEP 2112.01(I). Since PTO cannot conduct experiments the proof of burden is shifted to the applicants to establish an unobviousness difference, see In re Best, 562 F.2d 1252, 195 USPQ 430 (CCPA 1977). See MPEP § 2112.01.
28. Further, based on the teachings of Furlan et al that polyols useful for making the rigid polyurethane foams include polyester polyols based on phthalic acid/anhydride ([0029]), it would have been obvious to a one of ordinary skill in the art to choose and use polyester polyols based on phthalic acid/anhydride as the only polyol components for forming the rigid polyurethane foam, since it would have been obvious to choose material based on its suitability. Case law holds that the selection of a known material based on its suitability for its intended use supports prima facie obviousness. Sinclair & Carroll Co vs. Interchemical Corp., 325 US 327, 65 USPQ 297 (1045).
29. Furthermore, though Furlan et al does not explicitly teach the use of aromatic polyester polyols as the polyol component,
Singh et al discloses rigid polyurethane foams prepared from a composition containing a) an organic polyisocyanate, b) an aromatic polyester polyol, where the polycarboxylic acid used for forming said polyester polyol is aromatic ([0035]), c) organo-phosphorus compounds, d) water and hydrofluorocarbons as blowing agents (Abstract, [0010]-[0016]) and e) siloxane-oxyalkylene copolymers as foam stabilizing agents ([0050]), wherein the specifically exemplified foams are based on commercial aromatic polyester polyol STEPANPOL PS-2352 used as the only polyol component (Table 1 of Singh et al), wherein Singh et al explicitly teaches that such rigid polyurethane foams are having long term dimensional stability and increased compressive strength (Table 1).
It is further noted that the commercial aromatic polyester polyol STEPANPOL PS-2352 is used in examples of instant invention (Table 6 of instant specification).
30. Since both Furlan et al and Singh et al are related to rigid polyurethane foams based on the use of polyester polyols as the isocyanate-reactive components, siloxane-polyoxyethylene copolymer as the foam stabilizing agent/surfactant, using both water and hydrofluorocarbons as the blowing agent, and thereby belong to the same field of endeavor, wherein Singh et al teaches the use of aromatic polyester polyol formed from aromatic carboxylic acid and specifically a commercial aromatic polyester polyol STEPANPOL PS-2352 as the only polyol, forming rigid polyurethane foams having long term dimensional stability and increased compressive strength, therefore, it would have been obvious to a one of ordinary skill in the art to combine the teachings of Singh et al and Furlan et al, and to use, or obvious to try to use aromatic polyester polyol formed from aromatic carboxylic acid and specifically the commercial aromatic polyester polyol STEPANPOL PS-2352 as the only polyol to form the rigid polyurethane foam of Furlan et al, so to ensure said rigid polyurethane foam of Furlan et al is having long term dimensional stability and increased compressive strength, and since it would have been obvious to choose material based on its suitability, thereby arriving at the present invention. Case law holds that the selection of a known material based on its suitability for its intended use supports prima facie obviousness. Sinclair & Carroll Co vs. Interchemical Corp., 325 US 327, 65 USPQ 297 (1045). Case law holds that the mere substitution of an equivalent (something equal in value or meaning, as taught by analogous prior art) is not an act of invention; where equivalency is known to the prior art, the substitution of one equivalent for another is not patentable. See In re Ruff 118 USPQ 343 (CCPA 1958).
31. Furlan et al does not recite the composition further comprising a hydrocarbon having boiling point of more than 100⁰C.
32. However, Baumann et al specifically teaches the use of paraffinic hydrocarbon oils having low aromatic content and boiling point at atmospheric pressure of above about 150⁰C as stabilizing agent in polyurethane foams produced using both water, (per)fluorocarbons and hydrogen-containing chlorofluorocarbons (HFCs and HCFC) (col. 3, lines 15-47; col. 5, lines 43-45; col. 5, line 65-col. 6, line 10). The paraffinic hydrocarbons are used as a foam stabilizing composition comprising 10-50%wt of said hydrocarbons with 50-90%wt of polyester polyol (col. 2, lines 34-42) and said foam stabilizing composition is used in polyurethane foam composition in amount of up to 10 parts by weight (i.e. as low as close to zero parts by weight) or about 2-10 parts by weight based on 100 pbw of polyalcohol (col. 2, lines 60-67). Given the foam stabilizing composition comprises 10%wt of the hydrocarbon oil and said stabilizing composition is used in the polyurethane -producing formulation in amount of 2 pph, therefore, the amount of said hydrocarbon will be 0.2 pph. Given the foam stabilizing composition comprises 10%wt of the hydrocarbon oil and said stabilizing composition is used in the polyurethane -producing formulation in amount of 0.5 pph, therefore, the amount of said hydrocarbon will be 0.05 pph.
33. Thus, Baumann et al specifically teaches the use of paraffinic hydrocarbon oils having low aromatic content and boiling point at atmospheric pressure of above about 150⁰C as stabilizing agent in polyurethane foams produced using both water, (per)fluorocarbons and hydrogen-containing chlorofluorocarbons (HFCs and HCFC) (col. 3, lines 15-47; col. 5, lines 43-45; col. 5, line 65-col. 6, line 10).
Baumann et al discloses the use of water as preferred (i.e. not explicitly required) blowing agent (col. 5, lines 42-44) and wherein water is used in amount of 1-10 parts per 100 pbw of polyol or 2 pbw per 100 pbw of polyol (col. 5, lines 57-60).
Thus, water in the foam of Baumann et al is used in about the same amount, i.e. 1-2 pbw per 100 pbw of polyol, as that of Furlan et al.
34. Further, Baumann et al discloses that low boiling alkanes can be also used as the blowing agents along with water (col. 5, line 66-col. 6, line 3). The foam of Baumann et al also comprises silicone surfactant to control growth and stabilization of the cells (col 7, lines 20-25). In column 7, lines 20-55, Baumann et al explicitly teaches the use or organo-silicone surfactant to help control the growth and retention of the cell structure until it is sufficiently cured not to be susceptible to collapse and stabilize the cells against collapse. Thus, Baumann et al explicitly teaches away from allowing the cells to collapse, i.e. teaches away from forming an open-cell foam; but rather shows preference for formation of non-collapsed closed cells.
35. Baumann et al explicitly teaches the advantages of using the stabilizing composition to improve dimensional stability of the foam, as cited in col. 3, lines 1-5 and presented below:
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36. Thus:
1) both Baumann et al and Furlan et al are related to polyurethane foams comprising:
- the combination of low boiling alkanes and water as blowing agents, wherein water is used in the same amount of 1-2 pbw per 100 pbw of polyol;
- silicone surfactant to stabilize the cell formation.
2) Baumann et al explicitly teaches the composition for said foams further comprising high boiling point paraffinic hydrocarbons in combination with polyester polyol as a foam stabilizing composition; Baumann et al explicitly teaches that the foams comprising said foam stabilizing composition are having enhanced dimensional stability in comparison to similar foam prepared in the absence of said additive stabilizing composition (col. 3, lines 1-3). Tables 1-2 of Baumann et al clearly show that the foam compositions comprising said high boiling point paraffin oil provide improved dimensional stability and, specifically, the presence of said high boiling point paraffin oil provides said dimensional stability (see col. 10, lines 5-8; the stabilizing composition comprising only polyester polyol and not paraffin oil, does not provide acceptable dimensional stability).
3) On the other hand, the foam of Furlan et al is rigid, and thereby would require dimensional stability.
37. Since i) paraffinic hydrocarbons having boiling point of 150⁰C or more are taught in the art as being used as stabilizing agents in polyurethane foam-forming compositions to improve dimensional stability of the produced foams, wherein the foam compositions comprise both water and low boiling point alkanes as blowing agents and silicone surfactant to stabilize cell formation, as shown by Baumann et al, and
ii) the foam composition of Furlan et al is used for making rigid foams, which foams would necessarily require dimensional stability, and at the same time the foam-forming composition of Furlan et al comprises the combination of water and low boiling point alkanes as the blowing agents and silicone surfactant to stabilize the cells, similarly to the foam-forming composition of Baumann et al, therefore,
it would have been obvious to a one of ordinary skill in the art to combine the teachings of Baumann et al and Furlan et al, and include, or obvious to try to include the paraffinic hydrocarbon oils having boiling point at atmospheric pressure of above about 150⁰C into the composition of Furlan et al in view of Singh et al, in amount as taught by Baumann et al, such as 0.2 pph or 0.05 pph, to further, at least partially, improve dimensional stability of the produced rigid polyurethane foam of Furlan et al in view of Singh et al, and since it would have been obvious to choose material based on its suitability, thereby arriving at the present invention. Case law holds that the selection of a known material based on its suitability for its intended use supports prima facie obviousness. Sinclair & Carroll Co vs. Interchemical Corp., 325 US 327, 65 USPQ 297 (1045). The key to supporting any rejection under35 USC 103 is the clear articulation of the reason(s) why the claimed invention would have been obvious. The Supreme Court in KSR noted that the analysis supporting a rejection under 35 USC 103 should be made explicit. The Court quoting In re Kahn, 441 F.3d 977, 988, 78 USPQ2d 1329, 1336 (Fed. Cir. 2006), stated that "‘[R]ejections on obviousness cannot be sustained by mere conclusory statements; instead, there must be some articulated reasoning with some rational underpinning to support the legal conclusion of obviousness.’" KSR, 550 U.S. at 418, 82 USPQ2d at 1396. Exemplary rationales that may support a conclusion of obviousness include:
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(A) Combining prior art elements according to known methods to yield predictable results;
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(B) Simple substitution of one known element for another to obtain predictable results;
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(C) Use of known technique to improve similar devices (methods, or products) in the same way;
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(D) Applying a known technique to a known device (method, or product) ready for improvement to yield predictable results;
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(E) "Obvious to try" – choosing from a finite number of identified, predictable solutions, with a reasonable expectation of success;
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(F) Known work in one field of endeavor may prompt variations of it for use in either the same field or a different one based on design incentives or other market forces if the variations are predictable to one of ordinary skill in the art; (G) Some teaching, suggestion, or motivation in the prior art that would have led one of ordinary skill to modify the prior art reference or to combine prior art reference teachings to arrive at the claimed invention. MPEP 2141
38. All ranges in the composition of Furlan et al in view of Singh et al and Baumann et al are overlapping with the corresponding ranges of those as claimed in instant invention. It is well settled that where the prior art describes the components of a claimed compound or compositions in concentrations within or overlapping the claimed concentrations a prima facie case of obviousness is established. See In re Harris, 409 F.3d 1339, 1343, 74 USPQ2d 1951, 1953 (Fed. Cir 2005); In re Peterson, 315 F.3d 1325, 1329, 65 USPQ 2d 1379, 1382 (Fed. Cir. 1997); In re Woodruff, 919 F.2d 1575, 1578 16 USPQ2d 1934, 1936-37 (CCPA 1990); In re Malagari, 499 F.2d 1297, 1303, 182 USPQ 549, 553 (CCPA 1974).
39. Given the composition of Furlan et al in view of Singh et al and Baumann et al comprises 2 pphr of polyether-polysiloxane copolymer ([0036] of Furlan et al) and 0.2 pph of the hydrocarbon, therefore, the total amount of the hydrocarbon and the polyether-polysiloxane copolymer will be 2.2 pph (as to instant claims 5, 18) and the weight ratio of the hydrocarbon to the polyether-polysiloxane copolymer will be 0.2:2, i.e. 1:10 (as to instant claims 1, 22, 24-25).
Given the composition of Furlan et al in view of Singh et al and Baumann et al comprises 2 pphr of polyether-polysiloxane copolymer ([0036] of Furlan et al) and 0.05 pph of the hydrocarbon, therefore, the weight ratio of the hydrocarbon to the polyether-polysiloxane copolymer will be 0.05:2, i.e. 1:40 (as to instant claims 1, 22-25).
40. It would have been further obvious to and within the skills of a one of ordinary skill in the art to make variations and optimize by routine experimentation the relative amounts of used components, i.e. the polyol, isocyanate, catalyst, blowing agent, and specifically hydrocarbons and polyether-polysiloxane copolymer, since those hydrocarbons and polyether-polysiloxane copolymer are used to stabilize the foam, so to produce a final composition and polyurethane foam having a desired combination of properties, depending on the specific end-use of the final product, and desired stability, thereby arriving at the present invention. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
41. Though Furlan et al in view of Singh et al and Baumann et al disclose the composition comprising hydrocarbon oils having boiling temperature of above 150⁰C, specifically paraffin oil (col. 3, lines 28-42 of Baumann et al), Furlan et al in view of Singh et al and Baumann et al do not recite said paraffin oil being tetradecane.
42. However, PARAFOL Single Cut Paraffins, Sasol flyer shows commercial liquid linear paraffins made from renewable resources, including commercial product PARAFOL 14-97, used as oils and solvents.
As evidenced by PARAFFINS, Sasol flyer, the commercial product PARAFOL 14 is
n-tetradecane having boiling point of about 253⁰C and at least 97% purity (see PARAFFINS, Sasol flyer).
43. It is noted that the commercial product PARAFOL 14-97 is cited in Table 2 of instant specification (page 30/42 of instant specification and as presented below) as the component HC No.4 with name “tetradecane” and is used in inventive examples of instant specification. Therefore, the commercial product PARAFOL 14-97, Sasol as cited in PARAFOL Single Cut Paraffins, Sasol flyer corresponds to the “tetradecane” as claimed in instant claims 1, 27-28).
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44. Since the PARAFOL 14-97 commercially available from Sasol is a tetradecane paraffin oil, having boiling point of more than 150⁰C, and is liquid, all of which are required by Furlan et al in view of Singh et al and Baumann et al, therefore, it would have been obvious to a one of ordinary skill in the art to combine the teachings of Furlan et al in view of Singh et al and Baumann et al and PARAFOL Single Cut Paraffins, Sasol flyer, and to use, or obvious to try to use PARAFOL 14-97 commercially available from Sasol as the liquid paraffin oil having boiling point of more than 150⁰C in the composition for making polyurethane foam of Furlan et al in view of Singh et al and Baumann et al, since said PARAFOL 14-97 is having the properties required by Furlan et al in view of Singh et al and Baumann et al and since it would have been obvious to choose material based on its suitability, thereby arriving at the present invention. Case law holds that the selection of a known material based on its suitability for its intended use supports prima facie obviousness. Sinclair & Carroll Co vs. Interchemical Corp., 325 US 327, 65 USPQ 297 (1045). Case law holds that the mere substitution of an equivalent (something equal in value or meaning, as taught by analogous prior art) is not an act of invention; where equivalency is known to the prior art, the substitution of one equivalent for another is not patentable. See In re Ruff 118 USPQ 343 (CCPA 1958).
45. Since the foam of Furlan et al in view of Singh et al, Baumann et al and PARAFOL Single Cut Paraffins, Sasol flyer is rigid and is produced from substantially the same composition as claimed in instant invention, therefore, the rigid foam of Furlan et al in view of Singh et al, Baumann et al and PARAFOL Single Cut Paraffins, Sasol flyer will intrinsically and necessarily comprise, or would be reasonably expected to comprise the properties, including closed cell content of at least 80% or 90%, which are the same as those claimed in instant invention, or having ranges overlapping with those as claimed in instant invention as well (as to instant claims 1, 26), especially since as evidenced by Bodnar et al, the term “rigid” in respect of the foam products means a cellular polyurethane-polyisocyanurate having a closed cell content of at least 85%. Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). MPEP 2112.01(I). Since PTO cannot conduct experiments the proof of burden is shifted to the applicants to establish an unobviousness difference, see In re Best, 562 F.2d 1252, 195 USPQ 430 (CCPA 1977). See MPEP § 2112.01.
46. It is further noted that instant specification does not provide any evidence of criticality in using decene, dodecene, dodecane, tetradecane, tributene, tributane, tetrabutene, tetrabutane, oxo process oils or alkylbenzene having at least 10 carbon atoms as hydrocarbons in the claimed composition, since all examples of instant invention are shown as comprising only said hydrocarbons. Further, the examples of instant specification do not recite the closed cell content of the polyurethane foams at all.
47. Claims 1, 5, 18, 22-28 are rejected under 35 U.S.C. 103 as being unpatentable over Barber et al (US 2004/0162359) in view of Baumann et al (US 5,310,766) and C1012 Normal Paraffin, Sasol flyer, 2011, as evidenced by Hydrocarbons-Physical Data, the Engineering Toolbox flyer.
In certain circumstances, references cited to show a universal fact need not be available as prior art before applicant’s filing date. In re Wilson, 311 F.2d 266, 135 USPQ 442 (CCPA 1962). Such facts include the characteristics and properties of a material or a scientific truism. See MPEP § 2124.
48. Barber et al discloses rigid polyurethane foams made from a composition comprising:
A) at least 98%wt, or 100%wt, based on the total of polyol component, of an aromatic polyester polyol, which is based on aromatic acid (claim 15), preferably phthalic anhydride or terephthalic acid ([0043], [0050], as to instant claim 1);
B) polyisocyanates;
C) blowing agent that includes 0.1-2%wt of water and hydrocarbons/hydrofluorocarbons (Abstract, [0061], [0062]), and
D) 0.05-1.5%wt of a surfactant that regulates the cell’s structure, specifically silicone-polyoxyalkylene surfactants ([0012], [0065]),
wherein the foam is specified as having a closed cell content of about 90% or more ([0016], as to instant claims 1, 26).
The isocyanate index (i.e. index of formulation) is less than 3.5, preferably about 3.0 ([0025], [0034]).
It is noted that Barber et al discloses the water used in amount of 0.6%wt per 39.74%wt of polyol, i.e. 1.5 pph based on 100 pph of polyol (Example 1 of Barber et al).
49. Barber et al does not recite the composition further comprising a hydrocarbon having boiling point of more than 100⁰C.
50. However, Baumann et al specifically teaches the use of paraffinic hydrocarbon oils having low aromatic content and boiling point at atmospheric pressure of above about 150⁰C as stabilizing agent in polyurethane foams produced using both water, (per)fluorocarbons and hydrogen-containing chlorofluorocarbons (HFCs and HCFC) (col. 3, lines 15-47; col. 5, lines 43-45; col. 5, line 65-col. 6, line 10). The paraffinic hydrocarbons are used as a foam stabilizing composition comprising 10-50%wt of said hydrocarbons with 50-90%wt of polyester polyol (col. 2, lines 34-42) and said foam stabilizing composition is used in polyurethane foam composition in amount of up to 10 parts by weight (i.e. as low as close to zero parts by weight) or about 2-10 parts by weight based on 100 pbw of polyalcohol (col. 2, lines 60-67). Given the foam stabilizing composition comprises 10%wt of the hydrocarbon oil and said stabilizing composition is used in the polyurethane -producing formulation in amount of 2 pph, therefore, the amount of said hydrocarbon will be 0.2 pph. Given the foam stabilizing composition comprises 10%wt of the hydrocarbon oil and said stabilizing composition is used in the polyurethane -producing formulation in amount of 0.5 pph, therefore, the amount of said hydrocarbon will be 0.05 pph.
51. Thus, Baumann et al specifically teaches the use of paraffinic hydrocarbon oils having low aromatic content and boiling point at atmospheric pressure of above about 150⁰C as stabilizing agent in polyurethane foams produced using both water, (per)fluorocarbons and hydrogen-containing chlorofluorocarbons (HFCs and HCFC) (col. 3, lines 15-47; col. 5, lines 43-45; col. 5, line 65-col. 6, line 10).
Baumann et al discloses the use of water as preferred (i.e. not explicitly required) blowing agent (col. 5, lines 42-44) and wherein water is used in amount of 1-10 parts per 100 pbw of polyol or 2 pbw per 100 pbw of polyol (col. 5, lines 57-60).
Thus, water in the foam of Baumann et al is used in about the same amount, i.e. 1-2 pbw per 100 pbw of polyol.
As cited above, Barber et al discloses the water used in amount of 0.6%wt per 39.74%wt of polyol, i.e. 1.5 pph based on 100 pph of polyol (Example 1 of Barber et al), i.e. water is used in about the same amounts in both Baumann et al and Barber et al.
52. Further, Baumann et al discloses that low boiling alkanes can be also used as the blowing agents along with water (col. 5, line 66-col. 6, line 3). The foam of Baumann et al also comprises silicone surfactant to control growth and stabilization of the cells (col 7, lines 20-25). In column 7, lines 20-55, Baumann et al explicitly teaches the use or organo-silicone surfactant to help control the growth and retention of the cell structure until it is sufficiently cured not to be susceptible to collapse and stabilize the cells against collapse. Thus, Baumann et al explicitly teaches away from allowing the cells to collapse, i.e. teaches away from forming an open-cell foam; but rather shows preference for formation of non-collapsed closed cells.
53. Baumann et al explicitly teaches the advantages of using the stabilizing composition to improve dimensional stability of the foam, as cited in col. 3, lines 1-5 and presented below:
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54. Thus:
1) both Baumann et al and Barber et al are related to polyurethane foams comprising:
- the combination of low boiling alkanes and water as blowing agents;
- silicone surfactant to stabilize the cell formation.
2) Baumann et al explicitly teaches the composition for said foams further comprising high boiling point paraffinic hydrocarbons in combination with polyester polyol as a foam stabilizing composition; Baumann et al explicitly teaches that the foams comprising said foam stabilizing composition are having enhanced dimensional stability in comparison to similar foam prepared in the absence of said additive stabilizing composition (col. 3, lines 1-3). Tables 1-2 of Baumann et al clearly show that the foam compositions comprising said high boiling point paraffin oil provide improved dimensional stability and, specifically, the presence of said high boiling point paraffin oil provides said dimensional stability (see col. 10, lines 5-8; the stabilizing composition comprising only polyester polyol and not paraffin oil, does not provide acceptable dimensional stability).
3) On the other hand, the foam of Barber et al is rigid, and requires dimensional stability ([0093]).
55. Since i) paraffinic hydrocarbons having boiling point of 150⁰C or more are taught in the art as being used as stabilizing agents in polyurethane foam-forming compositions to improve dimensional stability of the produced foams, wherein the foam compositions comprise both water and low boiling point alkanes as blowing agents and silicone surfactant to stabilize cell formation, as shown by Baumann et al, and
ii) the foam composition of Barber et al is used for making rigid foams, which foams would necessarily require dimensional stability, and at the same time the foam-forming composition of Barber et al comprises the combination of water and low boiling point alkanes as the blowing agents and silicone surfactant to stabilize the cells, similarly to the foam-forming composition of Baumann et al, therefore,
it would have been obvious to a one of ordinary skill in the art to combine the teachings of Baumann et al and Barber et al, and include, or obvious to try to include the paraffinic hydrocarbon oils having boiling point at atmospheric pressure of above about 150⁰C into the composition of Barber et al, in amount as taught by Baumann et al, such as 0.2 pph or 0.05 pph, to further, at least partially, improve dimensional stability of the produced rigid polyurethane foam of Barber et al, and since it would have been obvious to choose material based on its suitability, thereby arriving at the present invention. Case law holds that the selection of a known material based on its suitability for its intended use supports prima facie obviousness. Sinclair & Carroll Co vs. Interchemical Corp., 325 US 327, 65 USPQ 297 (1045). The key to supporting any rejection under35 USC 103 is the clear articulation of the reason(s) why the claimed invention would have been obvious. The Supreme Court in KSR noted that the analysis supporting a rejection under 35 USC 103 should be made explicit. The Court quoting In re Kahn, 441 F.3d 977, 988, 78 USPQ2d 1329, 1336 (Fed. Cir. 2006), stated that "‘[R]ejections on obviousness cannot be sustained by mere conclusory statements; instead, there must be some articulated reasoning with some rational underpinning to support the legal conclusion of obviousness.’" KSR, 550 U.S. at 418, 82 USPQ2d at 1396. Exemplary rationales that may support a conclusion of obviousness include:
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(A) Combining prior art elements according to known methods to yield predictable results;
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(B) Simple substitution of one known element for another to obtain predictable results;
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(C) Use of known technique to improve similar devices (methods, or products) in the same way;
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(D) Applying a known technique to a known device (method, or product) ready for improvement to yield predictable results;
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(E) "Obvious to try" – choosing from a finite number of identified, predictable solutions, with a reasonable expectation of success;
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(F) Known work in one field of endeavor may prompt variations of it for use in either the same field or a different one based on design incentives or other market forces if the variations are predictable to one of ordinary skill in the art; (G) Some teaching, suggestion, or motivation in the prior art that would have led one of ordinary skill to modify the prior art reference or to combine prior art reference teachings to arrive at the claimed invention. MPEP 2141
56. All ranges in the composition of Barber et al in view of Baumann et al are overlapping with the corresponding ranges of those as claimed in instant invention. It is well settled that where the prior art describes the components of a claimed compound or compositions in concentrations within or overlapping the claimed concentrations a prima facie case of obviousness is established. See In re Harris, 409 F.3d 1339, 1343, 74 USPQ2d 1951, 1953 (Fed. Cir 2005); In re Peterson, 315 F.3d 1325, 1329, 65 USPQ 2d 1379, 1382 (Fed. Cir. 1997); In re Woodruff, 919 F.2d 1575, 1578 16 USPQ2d 1934, 1936-37 (CCPA 1990); In re Malagari, 499 F.2d 1297, 1303, 182 USPQ 549, 553 (CCPA 1974).
57. Given the composition of Barber et al in view of Baumann et al comprises 0.87%wt of silicone surfactant DC-193 per 39.74%wt of polyol, i.e. 2.19 pph of polyether-polysiloxane copolymer (Example 1 of Table 1 of Barber et al) and 0.2 pph of the hydrocarbon, therefore, the total amount of the hydrocarbon and the polyether-polysiloxane copolymer will be 2.39 pph (as to instant claims 5, 18) and the weight ratio of the hydrocarbon to the polyether-polysiloxane copolymer will be 0.2:2.19, i.e. 1:11 (as to instant claims 1, 22, 24-25).
Given the composition of Barber et al in view of Baumann et al comprises 2.19 pph of polyether-polysiloxane copolymer (Example 1 of Table 1 of Barber et al) and 0.05 pph of the hydrocarbon, therefore, the weight ratio of the hydrocarbon to the polyether-polysiloxane copolymer will be 0.05:2.19, i.e. 1:44 (as to instant claims 1, 22-25).
58. It would have been further obvious to and within the skills of a one of ordinary skill in the art to make variations and optimize by routine experimentation the relative amounts of used components, i.e. the polyol, isocyanate, catalyst, blowing agent, and specifically hydrocarbons and polyether-polysiloxane copolymer, since those hydrocarbons and polyether-polysiloxane copolymer are used to stabilize the foam, so to produce a final composition and polyurethane foam having a desired combination of properties, depending on the specific end-use of the final product, and desired stability, thereby arriving at the present invention. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
59. Though Barber et al in view of Baumann et al disclose the composition comprising hydrocarbon oils having boiling temperature of above 150⁰C, specifically paraffin oil (col. 3, lines 28-42 of Baumann et al), Barber et al in view of Baumann et al do not recite said paraffin oil being dodecane.
60. However, C1012 Normal Paraffin, Sasol flyer recites the commercially available C1012 Normal paraffin mixture of C10-C12 carbon range, having low viscosity and low odor (see the flyer). As evidenced by Hydrocarbons-Physical Data, the Engineering Toolbox flyer, the C10-C12 paraffins are having boiling point of 174-216⁰C (see the Hydrocarbons-Physical Data, the Engineering Toolbox flyer).
As can be seen from the C1012 Normal Paraffin, Sasol flyer, the C1012 Normal paraffin mixture includes C12 n-paraffin, which is called “dodecane”.
61. It is noted that the commercial product C1012 Normal Paraffin mixture commercially available from Sasol is cited in Table 2 of instant specification (page 30/42 of instant specification and as presented below) as the component HC No.3 with name “dodecane” and is used in inventive examples of instant specification. Therefore, the commercial product C1012 Normal Paraffin mixture, Sasol as cited in C1012 Normal Paraffin, Sasol flyer, corresponds to the “dodecane” as claimed in instant claims 1, 27-28. Instant specification describes “dodecane” only as commercial product C1012 Normal Paraffin (Sasol); instant specification does not require the used “dodecane” being as a pure compound used alone.
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62. Since the C1012 Normal Paraffin mixture commercially available from Sasol is a paraffin oil, having boiling point of more than 150⁰C, and is having low viscosity, all of which are required by Barber et al in view of Baumann et al, therefore, it would have been obvious to a one of ordinary skill in the art to combine the teachings of Barber et al in view of Baumann et al, and C1012 Normal Paraffin, Sasol flyer, and to use, or obvious to try to use C1012 Paraffin Mixture commercially available from Sasol as the low viscosity paraffin oil having boiling point of more than 150⁰C in the composition for making polyurethane foam of Barber et al in view of Baumann et al, since said C1012 Paraffin Mixture is having the properties as required by Barber et al in view of Baumann et al and since it would have been obvious to choose material based on its suitability, thereby arriving at the present invention (as to instant claims 1, 27-28). Case law holds that the selection of a known material based on its suitability for its intended use supports prima facie obviousness. Sinclair & Carroll Co vs. Interchemical Corp., 325 US 327, 65 USPQ 297 (1045). Case law holds that the mere substitution of an equivalent (something equal in value or meaning, as taught by analogous prior art) is not an act of invention; where equivalency is known to the prior art, the substitution of one equivalent for another is not patentable. See In re Ruff 118 USPQ 343 (CCPA 1958).
63. Since the foam of Barber et al in view of Baumann et al and C1012 Normal Paraffin, Sasol flyer is rigid and is produced from substantially the same composition as claimed in instant invention, including the use of commercial aromatic polyester polyol STEPANPOL PS-2352, therefore, the rigid foam of Barber et al in view of Baumann et al and C1012 Normal Paraffin, Sasol flyer will intrinsically and necessarily comprise, or would be reasonably expected to comprise the properties, including closed cell content or more than 90%, which are the same as those claimed in instant invention, or having ranges overlapping with those as claimed in instant invention as well (as to instant claims 1, 26). Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). MPEP 2112.01(I). Since PTO cannot conduct experiments the proof of burden is shifted to the applicants to establish an unobviousness difference, see In re Best, 562 F.2d 1252, 195 USPQ 430 (CCPA 1977). See MPEP § 2112.01.
64. It is further noted that instant specification does not provide any evidence of criticality in using decene, dodecene, dodecane, tetradecane, tributene, tributane, tetrabutene, tetrabutane, oxo process oils or alkylbenzene having at least 10 carbon atoms in the hydrocarbon claimed composition, since all examples of instant invention are shown as comprising only said hydrocarbons. Further, the examples of instant specification do not recite the closed cell content of the polyurethane foams at all.
65. Claims 1, 5, 18, 22-28 are rejected under 35 U.S.C. 103 as being unpatentable over Barber et al (US 2004/0162359) in view of Baumann et al (US 5,310,766)
and PARAFOL Paraffins flyer, 2010, as evidenced by PARAFFINS flyer, Sasol.
In certain circumstances, references cited to show a universal fact need not be available as prior art before applicant’s filing date. In re Wilson, 311 F.2d 266, 135 USPQ 442 (CCPA 1962). Such facts include the characteristics and properties of a material or a scientific truism. See MPEP § 2124.
66. Barber et al discloses rigid polyurethane foams made from a composition comprising:
A) at least 98%wt, or 100%wt, based on the total of polyol component, of an aromatic polyester polyol, which is based on aromatic acid (claim 15), preferably phthalic anhydride or terephthalic acid ([0043], [0050], as to instant claim 1);
B) polyisocyanates;
C) blowing agent that includes 0.1-2%wt of water and hydrocarbons/hydrofluorocarbons (Abstract, [0061], [0062]), and
D) 0.05-1.5%wt of a surfactant that regulates the cell’s structure, specifically silicone-polyoxyalkylene surfactants ([0012], [0065]),
wherein the foam is specified as having a closed cell content of about 90% or more ([0016]).
The isocyanate index (i.e. index of formulation) is less than 3.5, preferably about 3.0 ([0025]).
It is noted that Barber et al discloses the water used in amount of 0.6%wt per 39.74%wt of polyol, i.e. 1.5 pph based on 100 pph of polyol (Example 1 of Barber et al).
67. Barber et al does not recite the composition further comprising a hydrocarbon having boiling point of more than 100⁰C.
68. However, Baumann et al specifically teaches the use of paraffinic hydrocarbon oils having low aromatic content and boiling point at atmospheric pressure of above about 150⁰C as stabilizing agent in polyurethane foams produced using both water, (per)fluorocarbons and hydrogen-containing chlorofluorocarbons (HFCs and HCFC) (col. 3, lines 15-47; col. 5, lines 43-45; col. 5, line 65-col. 6, line 10). The paraffinic hydrocarbons are used as a foam stabilizing composition comprising 10-50%wt of said hydrocarbons with 50-90%wt of polyester polyol (col. 2, lines 34-42) and said foam stabilizing composition is used in polyurethane foam composition in amount of up to 10 parts by weight (i.e. as low as close to zero parts by weight) or about 2-10 parts by weight based on 100 pbw of polyalcohol (col. 2, lines 60-67). Given the foam stabilizing composition comprises 10%wt of the hydrocarbon oil and said stabilizing composition is used in the polyurethane -producing formulation in amount of 2 pph, therefore, the amount of said hydrocarbon will be 0.2 pph. Given the foam stabilizing composition comprises 10%wt of the hydrocarbon oil and said stabilizing composition is used in the polyurethane -producing formulation in amount of 0.5 pph, therefore, the amount of said hydrocarbon will be 0.05 pph.
69. Thus, Baumann et al specifically teaches the use of paraffinic hydrocarbon oils having low aromatic content and boiling point at atmospheric pressure of above about 150⁰C as stabilizing agent in polyurethane foams produced using both water, (per)fluorocarbons and hydrogen-containing chlorofluorocarbons (HFCs and HCFC) (col. 3, lines 15-47; col. 5, lines 43-45; col. 5, line 65-col. 6, line 10).
Baumann et al discloses the use of water as preferred (i.e. not explicitly required) blowing agent (col. 5, lines 42-44) and wherein water is used in amount of 1-10 parts per 100 pbw of polyol or 2 pbw per 100 pbw of polyol (col. 5, lines 57-60).
Thus, water in the foam of Baumann et al is used in about the same amount, i.e. 1-2 pbw per 100 pbw of polyol.
As cited above, Barber et al discloses the water used in amount of 0.6%wt per 39.74%wt of polyol, i.e. 1.5 pph based on 100 pph of polyol (Example 1 of Barber et al), i.e. water is used in about the same amounts in both Baumann et al and Barber et al.
70. Further, Baumann et al discloses that low boiling alkanes can be also used as the blowing agents along with water (col. 5, line 66-col. 6, line 3). The foam of Baumann et al also comprises silicone surfactant to control growth and stabilization of the cells (col 7, lines 20-25). In column 7, lines 20-55, Baumann et al explicitly teaches the use or organo-silicone surfactant to help control the growth and retention of the cell structure until it is sufficiently cured not to be susceptible to collapse and stabilize the cells against collapse. Thus, Baumann et al explicitly teaches away from allowing the cells to collapse, i.e. teaches away from forming an open-cell foam; but rather shows preference for formation of non-collapsed closed cells.
71. Baumann et al explicitly teaches the advantages of using the stabilizing composition to improve dimensional stability of the foam, as cited in col. 3, lines 1-5 and presented below:
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72. Thus:
1) both Baumann et al and Barber et al are related to polyurethane foams comprising:
- the combination of low boiling alkanes and water as blowing agents;
- silicone surfactant to stabilize the cell formation.
2) Baumann et al explicitly teaches the composition for said foams further comprising high boiling point paraffinic hydrocarbons in combination with polyester polyol as a foam stabilizing composition; Baumann et al explicitly teaches that the foams comprising said foam stabilizing composition are having enhanced dimensional stability in comparison to similar foam prepared in the absence of said additive stabilizing composition (col. 3, lines 1-3). Tables 1-2 of Baumann et al clearly show that the foam compositions comprising said high boiling point paraffin oil provide improved dimensional stability and, specifically, the presence of said high boiling point paraffin oil provides said dimensional stability (see col. 10, lines 5-8; the stabilizing composition comprising only polyester polyol and not paraffin oil, does not provide acceptable dimensional stability).
3) On the other hand, the foam of Barber et al is rigid, and requires dimensional stability ([0093]).
73. Since i) paraffinic hydrocarbons having boiling point of 150⁰C or more are taught in the art as being used as stabilizing agents in polyurethane foam-forming compositions to improve dimensional stability of the produced foams, wherein the foam compositions comprise both water and low boiling point alkanes as blowing agents and silicone surfactant to stabilize cell formation, as shown by Baumann et al, and
ii) the foam composition of Barber et al is used for making rigid foams, which foams would necessarily require dimensional stability, and at the same time the foam-forming composition of Barber et al comprises the combination of water and low boiling point alkanes as the blowing agents and silicone surfactant to stabilize the cells, similarly to the foam-forming composition of Baumann et al, therefore,
it would have been obvious to a one of ordinary skill in the art to combine the teachings of Baumann et al and Barber et al, and include, or obvious to try to include the paraffinic hydrocarbon oils having boiling point at atmospheric pressure of above about 150⁰C into the composition of Barber et al, in amount as taught by Baumann et al, such as 0.2 pph or 0.05 pph, to further, at least partially, improve dimensional stability of the produced rigid polyurethane foam of Barber et al, and since it would have been obvious to choose material based on its suitability, thereby arriving at the present invention. Case law holds that the selection of a known material based on its suitability for its intended use supports prima facie obviousness. Sinclair & Carroll Co vs. Interchemical Corp., 325 US 327, 65 USPQ 297 (1045). The key to supporting any rejection under35 USC 103 is the clear articulation of the reason(s) why the claimed invention would have been obvious. The Supreme Court in KSR noted that the analysis supporting a rejection under 35 USC 103 should be made explicit. The Court quoting In re Kahn, 441 F.3d 977, 988, 78 USPQ2d 1329, 1336 (Fed. Cir. 2006), stated that "‘[R]ejections on obviousness cannot be sustained by mere conclusory statements; instead, there must be some articulated reasoning with some rational underpinning to support the legal conclusion of obviousness.’" KSR, 550 U.S. at 418, 82 USPQ2d at 1396. Exemplary rationales that may support a conclusion of obviousness include:
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(A) Combining prior art elements according to known methods to yield predictable results;
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(B) Simple substitution of one known element for another to obtain predictable results;
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(C) Use of known technique to improve similar devices (methods, or products) in the same way;
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(D) Applying a known technique to a known device (method, or product) ready for improvement to yield predictable results;
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(E) "Obvious to try" – choosing from a finite number of identified, predictable solutions, with a reasonable expectation of success;
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(F) Known work in one field of endeavor may prompt variations of it for use in either the same field or a different one based on design incentives or other market forces if the variations are predictable to one of ordinary skill in the art; (G) Some teaching, suggestion, or motivation in the prior art that would have led one of ordinary skill to modify the prior art reference or to combine prior art reference teachings to arrive at the claimed invention. MPEP 2141
74. All ranges in the composition of Barber et al in view of Baumann et al are overlapping with the corresponding ranges of those as claimed in instant invention. It is well settled that where the prior art describes the components of a claimed compound or compositions in concentrations within or overlapping the claimed concentrations a prima facie case of obviousness is established. See In re Harris, 409 F.3d 1339, 1343, 74 USPQ2d 1951, 1953 (Fed. Cir 2005); In re Peterson, 315 F.3d 1325, 1329, 65 USPQ 2d 1379, 1382 (Fed. Cir. 1997); In re Woodruff, 919 F.2d 1575, 1578 16 USPQ2d 1934, 1936-37 (CCPA 1990); In re Malagari, 499 F.2d 1297, 1303, 182 USPQ 549, 553 (CCPA 1974).
75. Given the composition of Barber et al in view of Baumann et al comprises 0.87%wt of silicone surfactant DC-193 per 39.74%wt of polyol, i.e. 2.19 pph of polyether-polysiloxane copolymer (Example 1 of Table 1 of Barber et al) and 0.2 pph of the hydrocarbon, therefore, the total amount of the hydrocarbon and the polyether-polysiloxane copolymer will be 2.39 pph (as to instant claims 5, 18) and the weight ratio of the hydrocarbon to the polyether-polysiloxane copolymer will be 0.2:2.19, i.e. 1:11 (as to instant claims 1, 22, 24-25).
Given the composition of Barber et al in view of Baumann et al comprises 2.19 pph of polyether-polysiloxane copolymer (Example 1 of Table 1 of Barber et al) and 0.05 pph of the hydrocarbon, therefore, the weight ratio of the hydrocarbon to the polyether-polysiloxane copolymer will be 0.05:2.19, i.e. 1:44 (as to instant claims 1, 22-25).
76. It would have been further obvious to and within the skills of a one of ordinary skill in the art to make variations and optimize by routine experimentation the relative amounts of used components, i.e. the polyol, isocyanate, catalyst, blowing agent, and specifically hydrocarbons and polyether-polysiloxane copolymer, since those hydrocarbons and polyether-polysiloxane copolymer are used to stabilize the foam, so to produce a final composition and polyurethane foam having a desired combination of properties, depending on the specific end-use of the final product, and desired stability, thereby arriving at the present invention. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
77. Though Barber et al in view of Baumann et al disclose the composition comprising hydrocarbon oils having boiling temperature of above 150⁰C, specifically paraffin oil (col. 3, lines 28-42 of Baumann et al), Barber et al in view of Baumann et al do not recite said paraffin oil being dodecane.
78. However, PARAFOL Single Cut Paraffins, Sasol flyer shows commercial liquid linear paraffins made from renewable resources, including commercial product PARAFOL 14-97, used as oils and solvents.
As evidenced by PARAFFINS, Sasol flyer, the commercial product PARAFOL 14 is
n-tetradecane having boiling point of about 253⁰C and at least 97% purity (see PARAFFINS, Sasol flyer).
79. It is noted that the commercial product PARAFOL 14-97 is cited in Table 2 of instant specification (page 30/42 of instant specification and as presented below) as the component HC No.4 with name “tetradecane” and is used in inventive examples of instant specification. Therefore, the commercial product PARAFOL 14-97, Sasol as cited in PARAFOL Single Cut Paraffins, Sasol flyer corresponds to the “tetradecane” as claimed in instant claims 1, 27-28).
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80. Since the PARAFOL 14-97 commercially available from Sasol is a tetradecane paraffin oil, having boiling point of more than 150⁰C, and is liquid, all of which are required by Barber et al in view of Baumann et al, therefore, it would have been obvious to a one of ordinary skill in the art to combine the teachings of Barber et al in view of Baumann et al and PARAFOL Single Cut Paraffins, Sasol flyer, and to use, or obvious to try to use PARAFOL 14-97 commercially available from Sasol as the liquid paraffin oil having boiling point of more than 150⁰C in the composition for making polyurethane foam of Barber et al in view of Baumann et al, since said PARAFOL 14-97 is having the properties required by Barber et al in view of Baumann et al and since it would have been obvious to choose material based on its suitability, thereby arriving at the present invention. Case law holds that the selection of a known material based on its suitability for its intended use supports prima facie obviousness. Sinclair & Carroll Co vs. Interchemical Corp., 325 US 327, 65 USPQ 297 (1045). Case law holds that the mere substitution of an equivalent (something equal in value or meaning, as taught by analogous prior art) is not an act of invention; where equivalency is known to the prior art, the substitution of one equivalent for another is not patentable. See In re Ruff 118 USPQ 343 (CCPA 1958).
81. Since the foam of Barber et al in view of Baumann et al and PARAFOL Single Cut Paraffins, Sasol flyer is rigid and is produced from substantially the same composition as claimed in instant invention, therefore, the rigid foam of Barber et al in view of Baumann et al and PARAFOL Single Cut Paraffins, Sasol flyer will intrinsically and necessarily comprise, or would be reasonably expected to comprise the properties, including closed cell content, which are the same as those claimed in instant invention, or having ranges overlapping with those as claimed in instant invention as well (as to instant claims 1, 26). Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). MPEP 2112.01(I). Since PTO cannot conduct experiments the proof of burden is shifted to the applicants to establish an unobviousness difference, see In re Best, 562 F.2d 1252, 195 USPQ 430 (CCPA 1977). See MPEP § 2112.01.
82. It is further noted that instant specification does not provide any evidence of criticality in using decene, dodecene, dodecane, tetradecane, tributene, tributane, tetrabutene, tetrabutane, oxo process oils or alkylbenzene having at least 10 carbon atoms as hydrocarbons in the claimed composition, since all examples of instant invention are shown as comprising only said hydrocarbons.
Response to Arguments
83. Applicant's arguments filed on January 28, 2026 have been fully considered but they are moot in light of new grounds of rejections and discussion set forth above.
84. In addition, it is noted that both Furlan et al (US 2005/0131090) and Baumann et al (US 5,310,766) disclose the use of polyester polyols as the polyols. Though Furlan et al and Baumann et al do not exemplify the use of polyester polyols, this does not negate a finding of obviousness under 35 USC 103 since a preferred embodiment such as an example is not controlling. Rather, all disclosures “including unpreferred embodiments” must be considered. In re Lamberti 192 USPQ 278, 280 (CCPA 1976) citing In re Mills 176 USPQ 196 (CCPA 1972).
Further, Baumann et al does not teach that the use of hydrocarbon oils for dimensional stability is limited to open-cell foams only; there is no evidence that the hydrocarbon oils cannot be used for closed cell foams. Rather, in column 7, lines 20-25, Baumann et al explicitly teaches the use or organo-silicone surfactant to help control the growth and retention of the cell structure until it is sufficiently cured not to be susceptible to collapse. Thus, Baumann et al explicitly teaches away from allowing the cells to collapse, i.e. from forming an open-cell foam.
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to IRINA KRYLOVA whose telephone number is (571)270-7349. The examiner can normally be reached 9am-5pm EST M-F.
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/IRINA KRYLOVA/Primary Examiner, Art Unit 1764