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 .
Continued Examination Under 37 CFR 1.114
2. A request for continued examination under 37 CFR 1.114 was filed in this application after appeal to the Patent Trial and Appeal Board, but prior to a decision on the appeal. Since this application is eligible for continued examination under 37 CFR 1.114 and the fee set forth in 37 CFR 1.17(e) has been timely paid, the appeal has been withdrawn pursuant to 37 CFR 1.114 and prosecution in this application has been reopened pursuant to 37 CFR 1.114. Applicant’s submission filed on December 22, 2025 has been entered.
Response to Amendment
3. The amendment filed by Applicant on December 22, 2025 has been fully considered. The new grounds of rejections are set forth below.
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.
4. Claims 1-3, 7-11, 16, 18-23, 25-27, 30-34, 37-39 are rejected under 35 U.S.C. 103 as being unpatentable over Kontomaris (WO 2019/75040, Kontomaris’297).
It is noted that while the rejection is made over WO2019/75040 for date purposes, in order to elucidate the examiner's position the corresponding US equivalent viz. US 2020/0325297 is relied upon. All citations to paragraph numbers, etc., below refer to US 2020/0325297.
5. Kontomaris’297 a process for preparing a thermoplastic polystyrene foam comprising:
mixing and heating a thermoplastic polymer in the presence of a blowing agent comprising Z-1,1,1,4,4,4-hexafluoro-2-butene and at least one additional co-blowing agent, wherein the additional co-blowing agent increases the solubility of the Z-1,1,1,4,4,4-hexafluoro-2-butene in the thermoplastic polymer during said heating ([0064]), and the additional co-blowing agent is HFC-152a or methyl formate or a combination thereof ([0069]);
the blowing agent comprises 10-75%wt of Z-1,1,1,4,4,4-hexafluoro-2-butene and 90-25%wt of the co-blowing agent ([0075], as to instant claims 1-3, 10-11),
wherein the produced foams are having at least 80% of closed cells ([0106], as to instant claims 26-27).
Given the mixing and heating of thermoplastic polymer in the presence of the blowing agent composition leads to producing a foam, therefore, it would have been obvious to a one of ordinary skill in the art that the process of Kontomaris’297 comprises the step of expanding of said thermoplastic polymer to produce said foam as well. 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. All ranges in the composition of Kontomaris’297 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).
7. Based on the teachings of Kontomaris’297, it would have been obvious to a one of ordinary skill in the art to choose and use either methyl formate as the co-blowing agent alone (as to instant claims 1, 7) or a combination of the methyl formate and HFC-152a as the co-blowing agents to increase the solubility of Z-1,1,1,4,4,4-hexafluoro-2-butene in the thermoplastic polymer as well (as to instant claim 8, 16), 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).
8. Since Kontomaris’297 explicitly teaches that the cited co-blowing agents increase solubility of the Z-1,1,1,4,4,4-hexafluoro-2-butene in the thermoplastic polymer ([0064]), and since the compositions of Kontomaris’297 are essentially the same as those claimed in instant invention, i.e. comprising either methyl formate alone or both methyl formate and HFC-152a as the co-blowing agents, therefore, the solubility of Z-1,1,1,4,4,4-hexafluoro-2-butene with methyl formate in the thermoplastic polymer will intrinsically and necessarily be, at least to a minor extent, higher than the solubility of Z-1,1,1,4,4,4-hexafluoro-2-butene alone (as to instant claim 2) and the solubility of the combination of Z-1,1,1,4,4,4-hexafluoro-2-butene with both methyl formate and with HFC-152a will intrinsically and necessarily be, at least partially, higher than the solubility of the combination of Z-1,1,1,4,4,4-hexafluoro-2-butene with only HFC-152a (as to instant claim 9). 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.
9. As to instant claim 18-19, 30, the thermoplastic polymer comprises a polystyrene homopolymer or a copolymer ([0087]).
10. The process is conducted in an extruder ([0096]) at a pressure of 1500 psi ([0099], as to instant claims 20-22) and at a temperature of 110-140C ([0097], as to instant claims 23-25).
11. As to instant claims 31-32, the foamable composition further comprises a nucleating agent, specifically talc or graphite ([0084]-[0085]).
12. As to instant claims 33-34, the composition further comprises a flame retardant, specifically halogenated/brominated flame retardant ([0052]-[0055]).
13. As to instant claim 37, the foamable composition further comprises an IR attenuating agent ([0083]).
14. As to instant claims 38-39, the specific examples show the use of 10 g of the blowing agent composition used per 66 g of the polystyrene homopolymer ([0127]), i.e. the blowing agent is used in amount of 15 phr.
15. With respect to unexpected results of instant invention, it is noted that instant specification shows the property of increase in solubility only for a combination of HFO-1336mzz-Z/HFC-152a/methyl formate at weight ratios of (33.33/33.33/33.33) and (40/40/20); and further of HFO-1336mzz-Z/methyl formate at a weight ratio 80/20 (see Fig. 1 and Fig. 2 of instant specification) and only in a polystyrene homopolymer, wherein the data for solubility presented in Figures 1 and 2 of instant specification are measured at specific pressures. Instant claim 1 does not even specify the type of a thermoplastic polymer and does not even mention the property of increased solubility; therefore, the scope of instant claims is significantly broader than the evidence of unexpected results presented in instant invention. Whether the unexpected results are the result of unexpectedly improved results or a property not taught by the prior art, the “objective evidence of nonobviousness must be commensurate in scope with the claims which the evidence is offered to support.” In other words, the showing of unexpected results must be reviewed to see if the results occur over the entire claimed range. In re Clemens, 622 F.2d 1029, 1036, 206 USPQ 289, 296 (CCPA 1980). See MPEP 716.02(d).
16. Claims 1-4, 7 are rejected under 35 U.S.C. 103 as being unpatentable over Robin (US 2010/0078585), as evidenced by Kontomaris (WO 2019/75040, based on US equivalent viz. US 2020/0325297, Kontomaris’297) and/or Bartlett (US 5,221,492).
17. Robin discloses a process for preparing a thermoplastic foam comprising using an azeotropic-like composition comprising a mixture of 10-90%wt of Z-1,1,1,4,4,4-hexafluoro-2-butene and 10-90%wt of methyl formate as the foam expansion agents ([0076]-[0078]), Table 3, claims 23-24).
Given the process of Robin is the process for producing the foam, therefore, it would have been obvious to a one of ordinary skill in the art that the process of Robin comprises the step of expanding of said thermoplastic polymer with said foam expansion agents as well. 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.
18. As evidenced by Kontomaris’297, the use of methyl formate along with Z-1,1,1,4,4,4-hexafluoro-2-butene in the thermoplastic polymer increases the solubility of the Z-1,1,1,4,4,4-hexafluoro-2-butene in the thermoplastic polymer during said heating ([0064], [0069]).
As further evidenced by Bartlett, the azeotropic mixtures comprising fluorinated hydrocarbons and other components, used as blowing agents to foam thermoplastic polymers, show increase in the solubility in said thermoplastic polymers including polystyrene and polyethylene (col. 3, lines 15-25).
19. Since i) Kontomaris’297 explicitly teaches that such co-blowing agents as methyl formate increase solubility of the Z-1,1,1,4,4,4-hexafluoro-2-butene in the thermoplastic polymers ([0064]), ii) Bartlett teaches that the azeotropic mixtures comprising fluorinated hydrocarbons and other components, used as blowing agents to foam thermoplastic polymers, show increase in the solubility in said thermoplastic polymers including polystyrene and polyethylene, and iii) since the compositions of Robin are essentially the same as those claimed in instant invention, i.e. comprising the use of methyl formate together with Z-1,1,1,4,4,4-hexafluoro-2-butene as the blowing agents, therefore, the solubility of Z-1,1,1,4,4,4-hexafluoro-2-butene with methyl formate in the thermoplastic polymer will intrinsically and necessarily be, at least to a minor extent, higher than the solubility of Z-1,1,1,4,4,4-hexafluoro-2-butene alone (as to instant claim 2). 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.
20. All ranges in the composition of Robin 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).
21. With respect to unexpected results of instant invention, it is noted that instant specification shows the property of increase in solubility only for a combination of HFO-1336mzz-Z/HFC-152a/methyl formate at weight ratios of (33.33/33.33/33.33) and (40/40/20); and further of HFO-1336mzz-Z/methyl formate at a weight ratio 80/20 (see Fig. 1 and Fig. 2 of instant specification) and only in a polystyrene homopolymer, wherein the data for solubility presented in Figures 1 and 2 of instant specification are measured at specific pressures. Instant claim 1 does not even specify the type of a thermoplastic polymer and does not even mention the property of increased solubility; therefore, the scope of instant claims is significantly broader than the evidence of unexpected results presented in instant invention. Whether the unexpected results are the result of unexpectedly improved results or a property not taught by the prior art, the “objective evidence of nonobviousness must be commensurate in scope with the claims which the evidence is offered to support.” In other words, the showing of unexpected results must be reviewed to see if the results occur over the entire claimed range. In re Clemens, 622 F.2d 1029, 1036, 206 USPQ 289, 296 (CCPA 1980). See MPEP 716.02(d).
22. Claims 1-4, 7-13, 16, 18-23, 25-27, 30-34, 37-39 are rejected under 35 U.S.C. 103 as being unpatentable over Robin (US 2010/0078585), as evidenced by Kontomaris (WO 2019/75040, based on US equivalent viz. US 2020/0325297, Kontomaris’297) and/or Bartlett (US 5,221,492),
in further view of Kontomaris et al (US 2018/0327565, Kontomaris’565), Hulse et al (US 2011/0144216), Handa et al (US 2007/0208094) and Graham (US 5,863,996).
23. The discussion with respect to Robin (US 2010/0078585), as evidenced by Kontomaris (WO 2019/75040, based on US equivalent viz. US 2020/0325297, Kontomaris’297) and/or Bartlett (US 5,221,492), set forth in paragraphs 16-21 above, is incorporated here by reference.
24. Robin does not explicitly recite the process comprising the step of expanding, the blowing agent composition further comprising HFC-152a, the thermoplastic resin being polystyrene homopolymer, process including the step of extruding, the pressure and temperature of said extruding, and the foam comprising further additives as claimed in instant invention.
25. However,
1) Kontomaris’565 discloses a process for preparing a thermoplastic polymer foam comprising (Abstract, [0003]):
a) providing a foamable composition comprising a thermoplastic polymer and a blowing agent, wherein the blowing agent comprises 10-60%wt of Z-1,1,1,4,4,4,-hexafluoro-2-butene (Z-HFO-1336mzz) and 40-90%wt of 1,1-difluoroethane (HFC-152a) (as to instant claims 1, 8-13, 16), wherein the thermoplastic polymer comprises a polystyrene homopolymer or copolymer (as to instant claims 18-19, 30);
said foamable composition produces the closed cell foam having at least 95% closed cells ([0025], as to instant claims 26-27) and density of less than 42 kg/m2 (Abstract);
b) foaming the composition using an extruder to form the molten composition and to extrude it to form the foamed product ([0018]); extrusion is performed at a temperature of 105-140⁰C, or at least 125⁰C ([0020]) and pressure at least 1500 psi ([0020], [0021], as to instant claims 20-23, 25).
The blowing agent can further comprise a co-blowing agent, IR attenuating agent ([0013], as to instant claim 37), flame retardant such as polymeric flame retardant ([0015], as to instant claims 33-34), a nucleating agent such as talc ([0014], as to instant claims 31-32).
The blowing agent is included in the composition in amount of 5-20%wt, or 5-15%wt ([0016], as to instant claims 38-39).
Kontomaris’565 further teaches the while Z-1336mzz by itself has only low to moderate solubility in the thermoplastic polymers, the combination of Z-1336mzz and HFC-152a has a greater solubility than either blowing agent ([0017]).
Thus, Kontomaris’565 explicitly teaches the process for preparing thermoplastic resin foam, such as polystyrene homopolymer foam, by expanding, including by extruding, the composition comprising said resin and the blowing agent composition comprising Z-1,1,1,4,4,4,-hexafluoro-2-butene in combination with HFC-152a, wherein said HFC-152a is used to increase solubility of said Z-1,1,1,4,4,4,-hexafluoro-2-butene.
2) Hulse et al discloses a blowing agent composition comprising 30-99%wt of Z-HFO-1336mzz in combination with 5-65%wt ([0036]) of one or more other compounds ([0005], [0011]), specifically including 1-70%wt of HFC-152a and 10-80%wt of methyl formate (Table 1; [0021], [0022], [0040]), used for foaming thermoplastic materials such as polystyrene ([0048]). In the process for making said foam, two or more components of the blowing agent are combined and added to the foamable composition in an extruder ([0054]). In Table 1 on page 3 Hulse et al explicitly teaches methyl formate being used in a preferable amount of 10-80%wt in combination with Z-HFO-1336mzz.
Thus, Hulse et al discloses the blowing agents used for foaming polystyrenes comprising not only Z-HFO-1336mzz and HFC-152a, but further 10-80%wt of methyl formate.
3) Handa et al discloses a blowing agent blend for making thermoplastic polymer foams, including polystyrene homopolymer and copolymer foams, comprising 30-50%wt of methyl formate and 70-50%wt of one or more co-blowing agents ([0048]), wherein the use of such composition produces dimensionally stable foams and have improved resistance to flame spread (Abstract; [0018], [0046]-[0050]). The co-blowing agents comprise halogenated unsaturated hydrocarbons and 1,1-dichloroethane (HFC-152a) ([0054]).
Thus, Handa et al explicitly teaches the use of methyl formate in amount of 30-50%wt in combination with either or both of halogenated unsaturated hydrocarbons and HFC-152a to form dimensionally stable polystyrene foams.
26. Since all of Robin, Kontomaris’565, Hulse et al and Handa et al are related to methods for making thermoplastic resin foams, including polystyrene foams, using blends of halogenated unsaturated hydrocarbons, HFC-152a and further co-blowing agents, and thereby belong to the same field of endeavor, wherein
i) Kontomaris’565 explicitly teaches the process for preparing thermoplastic resin foam, such as polystyrene homopolymer foam, by expanding, including by extruding, the composition comprising said resin and the blowing agent composition comprising Z-1,1,1,4,4,4,-hexafluoro-2-butene in combination with HFC-152a, wherein said HFC-152a is used to increase solubility of said Z-1,1,1,4,4,4,-hexafluoro-2-butene;
2) Handa et al explicitly teaches the use of methyl formate in amount of 30-50%wt in combination with either or both of halogenated unsaturated hydrocarbons and HFC-152a to form dimensionally stable polystyrene foams;
3) Hulse et al discloses the blowing agents used for foaming polystyrenes comprising specifically Z-HFO-1336mzz as the halogenated unsaturated hydrocarbon, HFC-152a, and further preferably 10-80%wt of methyl formate, and
4) As evidenced by Kontomaris’297, the use of both methyl formate and HFC-152a along with Z-1,1,1,4,4,4-hexafluoro-2-butene in the thermoplastic polymer increases the solubility of the Z-1,1,1,4,4,4-hexafluoro-2-butene in the thermoplastic polymer during said heating ([0064], [0069]),
therefore, it would have been obvious to a one of ordinary skill in the art to combine the teachings of Robin, Kontomaris’565, Hulse et al and Handa et al, and to use, or obvious to try to use HFC-152a in amount of 40-90%wt (as taught by Kontomaris’565) in addition to the methyl formate as the co-blowing agents to make thermoplastic polystyrene foam in the process of Robin, further use methyl formate in the process of Robin in amount of 10-80%wt or 30-50%wt (as to instant claims 1, 12-13), as taught by Hulse et al and Handa et al, so to ensure producing a dimensionally stable foam, increase solubility of Z-HFO-1336mzz in the thermoplastic polystyrene resin 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). The key to supporting any rejection under 35 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
27. All ranges in the process of Robin in view of Kontomaris’565, Hulse et al and Handa 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).
28. Since the blowing agent composition used in the process for making the polystyrene foam of Robin in view of Kontomaris’565, Hulse et al and Handa et al is the same as that claimed in instant invention, i.e. comprises all of Z-HFO-1336mzz and methyl formate and HFC-152a, therefore, said blowing agent composition will intrinsically and necessarily provide, or would be reasonably expected to provide solubility in the polystyrene, at least to a minor extent higher than solubility of Z-HFO-1336mzz alone, or solubility of a combination of Z-HFO-1336mzz and HFC-152a in said polystyrene (as to instant claims 2 and 9). 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.
29. It is further noted that Graham (US 5,863,996) discloses values for solubility parameters for various compounds, wherein Graham shows that 1,1-dichloroethane (HFC-152a) has a solubility parameter of 9.1 and methyl formate has a solubility parameter of 10.7 (see Table 1 of Graham), i.e. higher than that of HFC-152a. Further, in Table 2 Graham shows that compounds having solubility parameter of 7.4-9 have moderate solubility in styrene polymers and copolymers, and those compounds having solubility parameter of more than 9 to 10.5 and higher have strong solubility in styrene (co)polymers (Table 2 of Graham). Since Kontomaris’565 teaches that Z-1336mzz by itself has only low to moderate solubility in the thermoplastic polymers, and the combination of Z-1336mzz and HFC-152a has a greater solubility ([0017] of Kontomaris et al), i.e. addition of HFC-152a having greater solubility parameter increases the overall solubility of the blowing agent composition, therefore addition of methyl formate, having solubility parameter even higher than that of HFO-152a, to the combination of Z-1336mzz and HFC-152a would be reasonably expected to further increase solubility of the overall blowing agent composition, as well. 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.
30. With respect to unexpected results of instant invention, it is noted that instant specification shows the property of increase in solubility only for a combination of HFO-1336mzz-Z/HFC-152a/methyl formate at weight ratios of (33.33/33.33/33.33) and (40/40/20); and further of HFO-1336mzz-Z/methyl formate at a weight ratio 80/20 (see Fig. 1 and Fig. 2 of instant specification) and only in a polystyrene homopolymer, wherein the data for solubility presented in Figures 1 and 2 of instant specification are measured at specific pressures. Instant claim 1 does not even specify the type of a thermoplastic polymer and does not even mention the property of increased solubility; therefore, the scope of instant claims is significantly broader than the evidence of unexpected results presented in instant invention. Whether the unexpected results are the result of unexpectedly improved results or a property not taught by the prior art, the “objective evidence of nonobviousness must be commensurate in scope with the claims which the evidence is offered to support.” In other words, the showing of unexpected results must be reviewed to see if the results occur over the entire claimed range. In re Clemens, 622 F.2d 1029, 1036, 206 USPQ 289, 296 (CCPA 1980). See MPEP 716.02(d).
31. Claims 1-4, 7-13, 16, 18-23, 25-27, 30-34, 36-39 are rejected under 35 U.S.C. 103 as being unpatentable over Robin (US 2010/0078585) in view of Kontomaris et al (US 2018/0327565, Kontomaris’565), Hulse et al (US 2011/0144216), Handa et al (US 2007/0208094) and Graham (US 5,863,996), as evidenced by Kontomaris (WO 2019/75040, based on US equivalent viz. US 2020/0325297, Kontomaris’297) and/or Bartlett (US 5,221,492), in further view of Han et al (US 2016/0347922).
32. The discussion with respect to Robin (US 2010/0078585) in view of Kontomaris et al (US 2018/0327565, Kontomaris’565), Hulse et al (US 2011/0144216), Handa et al (US 2007/0208094) and Graham (US 5,863,996), set forth in paragraphs 22-30 above is incorporated here by reference.
33. Though Robin in view of Kontomaris’565, Hulse et al, Handa et al and Graham do not specify the halogenated flame retardant being a brominated styrene-butadiene block copolymer,
Han et al discloses a method for making extruded polystyrene foam comprising:
a) introducing a polymer composition into an extruder,
b) injecting 1-15%wt ([0038], as to instant claims 38-39) of a blowing agent composition into the polymer composition to form a foamable polymeric material,
wherein the blowing agent composition comprises hydrofluorolefins (HFC), such as 1,1,1,4,4,4-hexafluoro-2-butene (HFO-1336mzz-Z) ([0033]) and methyl formate ([0032], as to instant claims 1, 7), or may further include HFC such as HFC-152a ([0034], as to instant claims 8, 16);
c) foaming the composition in the extruder at a die temperature of 110-130⁰C and foaming pressure 800-1200 psi ([0055], as to instant claims 20-23, 25),
wherein the composition further comprises nucleating agents and graphite ([0046], [0041]), a fire retarding agent, specifically a brominated polymeric flame retardant based on styrene-butadiene copolymers ([0045]), and an infrared attenuation agent ([0040]) (as to instant claims 31-34, 36-37).
Based on the teachings of Han et al, it would have been obvious to a one of ordinary skill in the art to choose and use either the combination of HFO-1336mzz-Z and methyl formate only as the blowing agent (as to instant claims 7), or the combination of HFO-1336mzz-Z, methyl formate and HFC-152a only (as to instant claim 16), 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 produced foam is substantially closed cell with 0-5% of open cells ([0049], as to instant claims 26-27).
34. Since Han et al and Robin in view of Kontomaris’565, Hulse et al, Handa et al and Graham are related to processes for making thermoplastic resin foams by extruding compositions comprising hydrofluorolefins (HFC), such as 1,1,1,4,4,4-hexafluoro-2-butene (HFO-1336mzz-Z) ([0033]) and methyl formate, as blowing agents and further nucleating agents, fire retardants, IR attenuating agent, and thereby belong to the same field of endeavor, wherein Han et al teaches the use of a brominated polymeric flame retardant based on styrene-butadiene copolymers as the flame retardant in such process, therefore, it would have been obvious to a one of ordinary skill in the art to combine the teachings of Han et al and Robin in view of Kontomaris’565, Hulse et al, Handa et al and Graham, and to use or obvious to try to use brominated polymeric flame retardant based on styrene-butadiene copolymers as the flame retardant in the process of Robin in view of Kontomaris’565, Hulse et al, Handa et al and Graham, 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).
35. Claims 1-4, 7, 18-23, 25-27, 30-34, 36-39 are rejected under 35 U.S.C. 103 as being unpatentable over Robin (US 2010/0078585), as evidenced by Kontomaris (WO 2019/75040, based on US equivalent viz. US 2020/0325297, Kontomaris’297) and/or Bartlett (US 5,221,492), in further view of Han et al (US 2016/0347922).
36. The discussion with respect to Robin (US 2010/0078585), as evidenced by Kontomaris (WO 2019/75040, based on US equivalent viz. US 2020/0325297, Kontomaris’297) and/or Bartlett (US 5,221,492), set forth in paragraphs 16-21 above, is incorporated here by reference.
37. Robin does not explicitly recite the process comprising the step of expanding, the thermoplastic resin being polystyrene homopolymer, process including the step of extruding, the pressure and temperature of extruding, and the foam comprising further additives as claimed in instant invention.
38. However,
Han et al discloses a method for making extruded polystyrene foam comprising:
a) introducing a polymer composition into an extruder,
b) injecting 1-15%wt ([0038], as to instant claims 38-39) of a blowing agent composition into the polymer composition to form a foamable polymeric material,
wherein the blowing agent composition comprises hydrofluorolefins (HFC), such as 1,1,1,4,4,4-hexafluoro-2-butene (HFO-1336mzz-Z) ([0033]) and methyl formate ([0032], as to instant claims 1, 7);
c) foaming the composition in the extruder at a die temperature of 110-130⁰C and foaming pressure 800-1200 psi ([0055], as to instant claims 20-23, 25).
Based on the teachings of Han et al, it would have been obvious to a one of ordinary skill in the art to choose and use either the combination of HFO-1336mzz-Z and methyl formate only as the blowing agent (as to instant claims 7), 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 produced foam is substantially closed cell with 0-5% of open cells ([0049], as to instant claims 26-27).
As to instant claims 18-19, 30, the polystyrene includes homopolymers or copolymers ([0027]-[0028]).
As to instant claims 31-32, the composition comprises nucleating agents and graphite ([0046], [0041]).
As to instant claims 33-34, 36, the composition further comprises a fire retarding agent, specifically a brominated polymeric flame retardant based on styrene-butadiene copolymers ([0045]).
As to instant claim 37, the composition further comprises an infrared attenuation agent ([0040]).
39. Since Robin and Han et al are related to methods for making thermoplastic resin foams, including polystyrene foams, using blends of halogenated unsaturated hydrocarbons and further co-blowing agents, and thereby belong to the same field of endeavor, wherein Han et al specifies the process comprising expanding of the composition by extruding, specifies the pressure and temperature of said extruding, and further specifies the composition comprising additives including fire retardants, IR attenuating agent and a nucleating agent, therefore, it would have been obvious to a one of ordinary skill in the art to combine the teaching of Robin and Han et al, and to conduct the process for producing a polystyrene foam of Robin under conditions as taught by Han et al, and further include, at least partially, additives including fire retardants, IR attenuating agent and a nucleating agent in the composition for making said foam, so to further improve the properties of the produced foam, including improved fire retarding property and reducing IR radiation as well, and 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). 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). The key to supporting any rejection under 35 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
40. All ranges in the process of Robin in view of Han 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).
41. Since the blowing agent composition used in the process for making the polystyrene foam of Robin in view of Han et al is the same as that claimed in instant invention, i.e. comprises all of Z-HFO-1336mzz and methyl formate, therefore, said blowing agent composition will intrinsically and necessarily comprise, or would be reasonably expected to comprise solubility, at least to a minor extent higher than solubility of Z-HFO-1336mzz alone. 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.
42. With respect to unexpected results of instant invention, it is noted that instant specification shows the property of increase in solubility only for a combination of HFO-1336mzz-Z/HFC-152a/methyl formate at weight ratios of (33.33/33.33/33.33) and (40/40/20); and further of HFO-1336mzz-Z/methyl formate at a weight ratio 80/20 (see Fig. 1 and Fig. 2 of instant specification) and only in a polystyrene homopolymer, wherein the data for solubility are presented in Figures 1 and 2 measured at specific pressures. Instant claim 1 does not even specify the type of a thermoplastic polymer and does not even mention the property of increased solubility; therefore, the scope of instant claims is significantly broader than the evidence of unexpected results presented in instant invention. Whether the unexpected results are the result of unexpectedly improved results or a property not taught by the prior art, the “objective evidence of nonobviousness must be commensurate in scope with the claims which the evidence is offered to support.” In other words, the showing of unexpected results must be reviewed to see if the results occur over the entire claimed range. In re Clemens, 622 F.2d 1029, 1036, 206 USPQ 289, 296 (CCPA 1980). See MPEP 716.02(d).
43. Claims 1-2, 8-13, 16, 18-23, 25-27, 30-34, 37-39 are rejected under 35 U.S.C. 103 as being unpatentable over Kontomaris et al (US 2018/0327565) in view of Hulse et al (US 2011/0144216), Handa et al (US 2007/0208094), as evidenced by Graham (US 5,863,996).
44. The rejection is adequately set forth on pages 3-9 of an Office action mailed on March 18, 2025 and is incorporated here by reference.
45. With respect to unexpected results of instant invention, it is noted that instant specification shows the property of increase in solubility only for a combination of HFO-1336mzz-Z/HFC-152a/methyl formate at weight ratios of (33.33/33.33/33.33) and (40/40/20); and further of HFO-1336mzz-Z/methyl formate at a weight ratio 80/20 (see Fig. 1 and Fig. 2 of instant specification) and only in a polystyrene homopolymer, wherein the data for solubility presented in Figures 1 and 2 of instant specification are measured at specific pressures. Instant claim 1 does not even specify the type of a thermoplastic polymer and does not even mention the property of increased solubility; therefore, the scope of instant claims is significantly broader than the evidence of unexpected results presented in instant invention. Whether the unexpected results are the result of unexpectedly improved results or a property not taught by the prior art, the “objective evidence of nonobviousness must be commensurate in scope with the claims which the evidence is offered to support.” In other words, the showing of unexpected results must be reviewed to see if the results occur over the entire claimed range. In re Clemens, 622 F.2d 1029, 1036, 206 USPQ 289, 296 (CCPA 1980). See MPEP 716.02(d).
46. Claims 1-4, 7-13, 16, 18-23, 25-27, 30-34, 36-39 are rejected under 35 U.S.C. 103 as being unpatentable over Han et al (US 2016/0347922) in view of Hulse et al (US 2011/0144216), Handa et al (US 2007/0208094) and Robin (US 2010/0078585), as evidenced by Graham (US 5,863,996) and Vo et al (US 2010/0087555).
47. The rejection is adequately set forth on pages 10-16 of an Office action mailed on March 18, 2025 and is incorporated here by reference.
48. With respect to unexpected results of instant invention, it is noted that instant specification shows the property of increase in solubility only for a combination of HFO-1336mzz-Z/HFC-152a/methyl formate at weight ratios of (33.33/33.33/33.33) and (40/40/20); and further of HFO-1336mzz-Z/methyl formate at a weight ratio 80/20 (see Fig. 1 and Fig. 2 of instant specification) and only in a polystyrene homopolymer, wherein the data for solubility presented in Figures 1 and 2 of instant specification are measured at specific pressures. Instant claim 1 does not even specify the type of a thermoplastic polymer and does not even mention the property of increased solubility; therefore, the scope of instant claims is significantly broader than the evidence of unexpected results presented in instant invention. Whether the unexpected results are the result of unexpectedly improved results or a property not taught by the prior art, the “objective evidence of nonobviousness must be commensurate in scope with the claims which the evidence is offered to support.” In other words, the showing of unexpected results must be reviewed to see if the results occur over the entire claimed range. In re Clemens, 622 F.2d 1029, 1036, 206 USPQ 289, 296 (CCPA 1980). See MPEP 716.02(d).
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory obviousness-type double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); and In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on a nonstatutory double patenting ground provided the conflicting application or patent either is shown to be commonly owned with this application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement.
Effective January 1, 1994, a registered attorney or agent of record may sign a terminal disclaimer. A terminal disclaimer signed by the assignee must fully comply with 37 CFR 3.73(b).
49. Claims 1-2, 8-13, 18-23, 25-27, 30-34, 36-39 are provisionally rejected on the ground of nonstatutory obviousness-type double patenting as being unpatentable over claims 1-10, 13-17 of a copending application 18/282,069 (published US 2024/0158597) in view of Han et al (US 2016/0347922).
50. The rejection is adequately set forth on pages 17-22 of an Office action mailed on March 18, 2025 and is incorporated here by reference.
51. Since no Terminal Disclaimer has been filed, the rejection is maintained.
Response to Arguments
52. Applicant's arguments filed on December 22, 2025 have been fully considered.
53. With respect to Applicant’s arguments regarding unexpected results of instant specification, specifically, increased solubility of the blowing agent composition, it is noted that instant specification shows the property of increase in solubility only for a combination of HFO-1336mzz-Z/HFC-152a/methyl formate at weight ratios of (33.33/33.33/33.33) and (40/40/20); and further of HFO-1336mzz-Z/methyl formate at a weight ratio 80/20 (see Fig. 1 and Fig. 2 of instant specification) and only in a polystyrene homopolymer, wherein the data for solubility presented in Figures 1 and 2 of instant specification are measured at specific pressures. Instant claim 1 does not even specify the type of a thermoplastic polymer and does not mention the property of increased solubility at any pressure; therefore, the scope of instant claims is significantly broader than the evidence of unexpected results presented in instant invention. Whether the unexpected results are the result of unexpectedly improved results or a property not taught by the prior art, the “objective evidence of nonobviousness must be commensurate in scope with the claims which the evidence is offered to support.” In other words, the showing of unexpected results must be reviewed to see if the results occur over the entire claimed range. In re Clemens, 622 F.2d 1029, 1036, 206 USPQ 289, 296 (CCPA 1980). See MPEP 716.02(d).
54. With respect to Applicant’s arguments regarding the rejection of Claims 1-2, 8-13, 16, 18-23, 25-27, 30-34, 37-39 under 35 U.S.C. 103 as being unpatentable over Kontomaris et al (US 2018/0327565, Kontomaris’565) in view of Hulse et al (US 2011/0144216), Handa et al (US 2007/0208094), as evidenced by Graham (US 5,863,996) and Claims 1-4, 7-13, 16, 18-23, 25-27, 30-34, 36-39 under 35 U.S.C. 103 as being unpatentable over Han et al (US 2016/0347922) in view of Hulse et al (US 2011/0144216), Handa et al (US 2007/0208094) and Robin (US 2010/0078585), as evidenced by Graham (US 5,863,996) and Vo et al (US 2010/0087555), it is noted that:
1) The above rejections are based on the combination of references. One cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., Inc., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
2) Though Kontomaris et al and Han et al do not explicitly recite the co-blowing agent being methyl formate, the secondary references of Hulse et al and Handa et al were applied for the teachings of that. Each of said secondary references was applied for the specific teachings. Secondary reference does not need to teach all limitations. “It is not necessary to be able to bodily incorporate the secondary reference into the primary reference in order to make the combination.” In re Nievelt, 179 USPQ 224 (CCPA 1973).
3) Thus, Hulse et al was applied for the teachings of the blowing agents used for foaming polystyrenes comprising not only Z-HFO-1336mzz and HFC-152a, but further 10-80%wt of methyl formate; Handa et al was applied for the teachings of the use of methyl formate in amount of 30-50%wt in combination with either or both of halogenated unsaturated hydrocarbons and HFC-152a to form dimensionally stable polystyrene foams.
4) Though Hulse et al and Handa et al are not specified as solving a solubility problem of Z-1336 in polystyrene, as argued by Applicant, rationale to combine references different from Applicant’s is permissible. It is not necessary that the prior art suggest the combination to achieve the same advantage or result discovered by applicant, In re Linter, 458 F.2d 1013, 173 USPQ 560 (CCPA 1972); In re Dillon, 91 9 F.2d 688,16 USPQ2d 1897 (Fed. Cir. 1990) cert. denied, 500 U.S. 904 (1991). Also, while there must be motivation to make the claimed invention, there is no requirement that the prior art provide the same reason as the applicant to make the claimed invention, Ex parte Levengood, 28 USPQ2d 1300,1302 (Bd. Pat. App. & Inter. 1993).
5) Further, it is further noted that Graham (US 5,863,996) discloses values for solubility parameters for various compounds, wherein Graham shows that 1,1-dichloroethane (HFC-152a) has a solubility parameter of 9.1 and methyl formate has a solubility parameter of 10.7 (see Table 1 of Graham), i.e. higher than that of HFC-152a. Further, in Table 2 Graham shows that compounds having solubility parameter of 7.4-9 have moderate solubility in styrene polymers and copolymers, and those compounds having solubility parameter of more than 9 to 10.5 and higher have strong solubility in styrene (co)polymers (Table 2 of Graham). Since Kontomaris’565 teaches that Z-1336mzz by itself has only low to moderate solubility in the thermoplastic polymers, and the combination of Z-1336mzz and HFC-152a has a greater solubility ([0017] of Kontomaris’565), i.e. addition of HFC-152a, having greater solubility parameter, increases the overall solubility of the blowing agent composition, therefore addition of methyl formate, having solubility parameter even higher than that of HFO-152a, to the combination of Z-1336mzz and HFC-152a would be reasonably expected to further increase solubility of the overall blowing agent composition, as well. 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.
Conclusion
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/IRINA KRYLOVA/Primary Examiner, Art Unit 1764