DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1, 4-7, 10, 13, 15, and 18-19 are rejected under 35 U.S.C. 103 as being unpatentable over Yamamoto (US 2015/0183991 A1) in view of Yoo (US 2017/0342254 A1), Karayianni (US 2012/0225291 A1), Kim (US 2016/0304785 A1), and Immel (US 2015/0314495 A1).
Regarding claim 1, Yamamoto teaches a thermoplastic resin composition ([0019]) comprising:
At least one thermoplastic resin, which may include a polyolefin-based resin ([0019]), which may include a crystalline propylene-ethylene block copolymer ([0052]). The propylene-ethylene block copolymer reads on the claimed “ethylene-propylene block copolymer.” When comparing the propylene-ethylene block copolymer to itself, the propylene-ethylene block copolymer is “100 parts by weight” of the propylene-ethylene block copolymer.
At least one phosphinate which may include metal phosphinates wherein the metal may comprise calcium, magnesium, aluminum, zinc, bismuth, manganese, sodium, and potassium ([0019]). The metal phosphinate may be in a concentration of 1 to 50 parts, by mass, based on 100 parts by mass of the composition’s resins ([0139]), which may be up to 99% of the thermoplastic resin ([0128]). The phosphinates of Yamamoto therefore comprise at least 1.01 to 50.5 parts by mass based on 100 parts by mass of the polyolefin-based resin which reads on the claimed “about 0.3 parts by weight to about 5 parts by weight of a metal phosphinate compound”
Flame retardants ([0142]) which may include adducts formed from melamine and phosphoric acid ([0143]), including melamine polyphosphate, melam polyphosphate, and melon polyphosphate. Further, Yamamoto teaches that the adducts may comprise up to 20 parts by mass based on 100 parts by mass of the metal phosphinate-based flame retardant ([0149]). Therefore, the adducts may comprise at least 0.202 to 10.1 parts by mass based on 100 parts by mass of the thermoplastic resin, which reads on the claimed “about 0.5 parts by weight to about 5 parts by weight of a phosphorus nitrogen-based flame retardant.”
A halogen (which includes bromine) added for the purpose of improving further enhancing the heat resistance of the flame-retardant thermoplastic resin composition ([0100]), which may be added in the form of a powder ([0103]), which reads on the claimed “bromine-based flame retardant.” Yamamoto further teaches that the content of the halogen is preferably between 500 and 1500 ppm, which correlates to between 0.005 and 0.015 wt.%. The weight percentage of bromine in the composition does not directly relate to a corresponding “parts” value, however the parts of a bromine-based flame retardant additive may be determined if two values can be reasonably approximated: (i) the identity of the bromine-containing flame retardant compound (which will provide the molecular formula and therefore the weight percentage of bromine in the compound), and (ii) the total mass of the formulation.
Yamamoto is silent with regard to the possible identities of the bromine-containing flame retardant additive. However, Yoo teaches a flame-retardant thermoplastic resin composition ([0013]) including a bromine-containing flame retardant ([0013]) wherein the bromine-based flame retardant may be one or more selected from a group comprising tetrabromobisphenol-A, decabromodiphenyl oxide, and decabromodiphenyl ethane ([0021]). Yoo further teaches that the incorporation of bromine-based flame retardants is useful because they exhibit superior flame retardancy ([0005]). Yoo is considered analogous art and is relevant because it pertains to flame retardant thermoplastic resins ([0002]). One of ordinary skill in the art would be capable of compounding bromine-based flame retardants into a thermoplastic formulation, and therefore it would have been obvious to incorporate the bromine-based flame retardants of Yoo into the formulation of Yamamoto for the purpose of achieving a high flame retardancy. The previously described choices in bromine-containing flame-retardant additive are relevant to the current formulation because they are commonly used in the art, but also because they are mentioned in the specification and are also required as a limitation of claim 7, below. Of these compounds, tetrabromobisphenol-A contains the lowest amount of bromine by mass, at 58.76%. Decabromodiphenyl oxide has the highest amount of bromine by mass, at 83.3%. Using these values, the 0.005 to 0.015 wt% of halogen (bromine) added to the formula may comprise a minimum of 0.006 wt% of a bromine-containing flame-retardant additive (0.005 wt% of bromine coming from decabromodiphenyl oxide = 0.005 wt% / 0.833 = 0.006 wt%), and a maximum of 0.0255 wt% of a bromine-containing flame-retardant additive (0.015 wt% of bromine coming from tetrabromobisphenol-A = 0.015 wt% / 0.5876 = 0.0255 wt%). So, the claimed range of bromine-containing flame-retardant additive is approximately 0.006 to 0.0255 wt%.
The total parts (mass) of the formula excluding the bromine-containing flame-retardant additive and colorant, as supplied and required by Yamamoto, ranges from 102.222 parts (100 parts of resin + 1.01 parts of metal phosphinate + 0.202 parts of the melamine-phosphoric acid adduct + 1.01 parts of polyphenylene ether additionally required by Yamamoto) to 161.610 parts (100 parts of resin + 50.5 parts of metal phosphinate + 10.1 parts of the melamine-phosphoric acid adduct + 1.01 parts of polyphenylene ether). The colorant required by Yamamoto is provided as a percentage of the total mass of the formula (a minimum allowable of 0.01 wt% ([0164])), and will be subtracted from the calculated mass of the remaining percentage of components (which consists of the colorant and the halogen-containing flame-retardant component). The minimum total number of parts of bromine-containing flame-retardant additive is 0.005 parts ((102.222 / 0.99985) – 102.222 = 0.015; 0.015 – 0.010 = 0.005), and the maximum total number of parts of bromine-containing flame-retardant additive is 0.024 parts ((161.610 / 0.99975) – 161.610 = 0.0404; 0.040 – 0.016 = 0.24). Recall that the subtracted values correspond to the colorant in the formulation of Yamamoto, which is similarly provided as a percentage. Therefore, the prior art teaches a range of 0.005 to 0.024 parts of bromine-containing flame-retardant additive, which overlaps the claimed range of “0.01 parts by weight to about 0.2 parts by weight of a bromine-based flame retardant,” establishing a prima facie case of obviousness.
Yamamoto further teaches the incorporation of metal phosphinate-based flame retardants at between 1 and 50 parts by mass based on 100 parts of thermoplastic resin ([0139]). Yamamoto teaches that, in addition to the metal phosphinate-based flame retardants, additional flame retardants formed from melamine and phosphoric acid may optionally be added to the formulation ([0142]). The amount of said adduct is taught in 20 parts by mass or less based on 100 parts by mass of the metal phosphinate-based flame retardants ([0149]). Therefore, the ratio of metal phosphinate-based flame retardant to melamine/phosphoric acid adduct may range from 100:0 to 100:20. These ranges may be reduced to 1:0 to 1:0.2. The ratio range of the metal phosphinate-based flame retardant to melamine/phosphoric acid adduct therefore lies outside of the claimed range. However, Yamamoto does not provide a teaching away from any particular range of the two components, and only describes examples of preferable amounts of the melamine/phosphoric acid adduct ([0149]).
In the same field of endeavor, Karayianni teaches halogen-free flame retardant compositions containing a phosphinate and a phosphorus-containing amino composition (Abstract), suitable for EPDM polymers ([0035]). Karayianni specifically teaches the incorporation of metal phosphinates ([0066]) and melamine phosphate adducts ([0070]), as the two aforementioned flame retardants, and teaches the incorporation of 30-85 wt% of the metal phosphinate flame retardant alongside 10-30 wt% of the melamine phosphate adduct-based flame retardant, with respect to the flame retardants within the composition ([0069]-[0070]). These weight percentages equate to a ratio range spanning about 1:0.12 to 1:1, which overlaps the claimed range of “about 1:0.3 to about 1:4,” establishing a prima facie case of obviousness. It is prima facie obvious to substitute equivalents known in the art as suitable for the same purpose (See MPEP 2144.06). Therefore, it would have been obvious to one having ordinary skill in the art at the time of filing to incorporate the ratio of the two aforementioned flame retardants into the formulation of Yamamoto as taught by Karayianni, as Karayianni teaches these ratios as suitable for providing flame retardant compositions of thermoplastics including EPDM.
Yamamoto teaches flame retardancy at the exceptional V-0 and V-1 ratings (See Yamamoto Table 1), but differs from claim 1 because it is silent with regard to the lower flame retardancy rating of V-2.
However, Kim teaches a flame retardant thermoplastic resin composition ([0001]) with a flame retardancy rating of V-2 or better. Kim further teaches that excessive amounts of flame retardant additives may lead to undue environmental issues ([0004]) and difficulty in dispersing the flame retardant additives ([0005]), and that eco-friendly flame retardancy is enabled when a flame retardancy rating of V-2 is considered satisfactory. Kim is considered analogous art because it pertains to polyolefin-based flame retardant thermoplastic resins.
Karayianni additionally demonstrates that a flame retardancy rating of V-2 is satisfactory (i.e., not classified as failing to adhere to standard flame retardancy ratings, [0098]), and teaches that the compositions may be used to fabricate molded articles ([0019]), similar to that of Kim (Abstract).
One of ordinary skill in the art would be capable of reducing the overall flame retardant contents of a thermoplastic composition to suit the intended use. Therefore, it would have been obvious to one of ordinary skill in the art prior to the publication date of the instant application to modify the formulation of Yamamoto in view of Yoo to satisfy a lower flame retardancy rating of V-2 for the purpose of forming an eco-friendlier flame-retardant product which still maintains satisfactory performance.
Yamamoto further differs from claim 1 because it is silent with regard to the glow wire ignitability temperature (GWIT) or the glow wire flammability index (GWFI) of the thermoplastic resin composition.
However, Immel teaches heat resistant polymer products ([0001]) with GWFI values of 850°C, and GWIT values of 775°C ([0005]), which are required for said material to qualify for use in unsupervised high temperature applications relating to home appliance usage. Immel is considered to be analogous art to the claimed invention because it concerns flame-resistant materials. Further, while the GWFI and GWIT values of Immel are considered under a different standardization body (IEC vs UL746A), both standards are pursuant to the evaluation of GWIT and GWFI, and are considered to be analogous.
The GWIT of 775°C taught by Immel overlaps the claimed range of “about 730°C or more,” establishing a prima facie case of obviousness. While the cited GWFI value of 850°C falls below the claimed range of “870°C or more,” the cited value is substantially close to the claimed range, and it would therefore have been obvious to one of ordinary skill in the art to utilize routine optimization to modify the well-known result-effective variable of flame-retardant additive concentration within the formulation of Yamamoto to reach 870°C or more, for the purpose of qualifying the flame-resistant material for home appliance usage, with a high likelihood of success, given that the claimed range is only 20°C higher than the value taught by the prior art.
Yamamoto as modified finally differs from claim 1 because it is silent with regard to the claimed notched Izod impact strength. Nevertheless, Yamamoto as modified above results in a composition which is structurally identical to the claimed composition, containing all of the claimed components in all of the claimed compositional amounts. Products of identical chemical compositions cannot have mutually exclusive properties. Where the claimed and prior art products are identical or substantially identical in structure or composition, a prima facie case of obviousness has been established. See MPEP 2112.01. The claimed notched Izod impact strength will therefore necessarily be present in Yamamoto as modified and as applied above.
Regarding the newly amended limitation requiring that the metal phosphinate and bromine-based flame retardants are included in the specified ratio range, Yamamoto teaches the incorporation of metal phosphinate-based flame retardants at between 1 and 50 parts by mass based on 100 parts of thermoplastic resin ([0139]). Likewise, Yamamoto teaches the incorporation of bromine-based flame retardants at between 0.005 and 0.024 parts by mass based on 100 parts of base resin, based on the math described above. Therefore, Yamamoto teaches a maximum metal phosphinate compound to bromine compound ratio of 1 to 0.0001, and a minimum ratio of 1 to 0.024. The range taught by the prior art overlaps the claimed range of “about 1:0.01 to 1:0.6”, establishing a prima facie case of obviousness.
Regarding claim 4, Yamamoto teaches that the propylene-ethylene block copolymer ([0052]), may have a melt flow rate of 10 g/10 min or more when measured at 230°C and at 2.16 kgf ([0057]).
Regarding claim 5, Yamamoto teaches the use of metal phosphinate ([0019]) compounds with the chemical structure
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Formula I, US 2015/0183991 A1
which is the same chemical structure as claimed, wherein:
R1 and R2 each independently represent any selected from a group including straight or branched alkyl groups containing 1 to 6 carbon atoms and aryl groups, which reads on the claimed “R1 and R2 are each independently a C1 to C6 alkyl group or a C6 to C12 aryl group”
M may represent any selected from a group comprising ions of Ca, Mg, Al, Zn, Bi, Mn, and Na, which reads on the claimed “M is Al, Zn, Mg, Ca, Sb, Sn, Ge, Ti, Fe, Zr, Ce, Bi, Sr, Mn, Li, or Na”
Each m independently represents 2 or 3, which reads on the claimed “n is an integer or 1 to 4”
Regarding claim 6, Yamamoto teaches that the flame retardants ([0142]), which may include adducts formed from melamine and phosphoric acid ([0143]), may include melamine polyphosphate, melam polyphosphate, and melon polyphosphate ([0144]), which reads on the claimed “phosphorus nitrogen-based flame retardant comprises melamine polyphosphate, melam pyrophosphate, melem pyrophosphate, melon pyrophosphate, melamine pyrophosphate, dimelamine pyrophosphate, melamine polyphosphate, melam polyphosphate, melon polyphosphate, melem polyphosphate, mixed multi-salts thereof, ammonium hydrogen phosphate, ammonium dihydrogen phosphate, and/or ammonium polyphosphate.”
Regarding claim 7, Yoo teaches that the bromine-based flame retardant may be one or more selected from a group comprising tetrabromobisphenol-A, decabromodiphenyl oxide, and decabromodiphenyl ethane ([0021]), which reads on the claimed “wherein the bromine-based flame retardant comprises at least one of tetrabromo bisphenol-A bis(2,3-dibromopropyl ether), tetrabromo bisphenol-A, decabromodiphenyl oxide, decabrominated diphenyl ethane, 1,2-bis(2,4,6-tribromophenyl)ethane, octabromo-1,3,3- trimethyl-1-phenylindane, and/or 2,4,6-tris(2,4,6-tribromophenoxy)-1,3,5-triazine.”
Regarding claim 10, Yamamoto teaches that the amount of melamine and phosphoric acid-based flame retardant in the formulation may lie within a range of 0-20 parts by mass for every 100 parts of metal phosphinate-based flame retardant in the formulation ([0149]). Yamamoto also teaches the incorporation of the phosphinate-based flame retardants at between 1 and 50 parts by mass for every 100 parts of thermoplastic resin ([0139]). Therefore, the minimum amount of melamine and phosphoric acid-based flame retardant is zero parts per 100 parts of thermoplastic resin (corresponding to an addition of zero parts by mass per 100 parts by mass of the metal-phosphinate), and the maximum amount of melamine and phosphoric acid-based flame retardant is 10 parts per 100 parts of thermoplastic resin (corresponding to 20 parts of melamine and phosphoric acid-based flame retardant per 100 parts of metal phosphinate at 50 parts per 100 parts of thermoplastic resin, which is the maximum).
Yamamoto teaches the incorporation of bromine-based flame retardants at between 0.005 and 0.024 parts by mass based on 100 parts of base resin, based on the math described above. Therefore, Yamamoto teaches a melamine/phosphoric acid-based flame retardant to bromine-based flame retardant weight ratio range of 0:0.024 to 1:0.005, which overlaps the claimed range of “a weight ratio of 1:0.01 to 1:0.4,” establishing a prima facie case of obviousness.
Regarding claim 13, Yamamoto teaches a total halogen content of 500 ppm to 1500 ppm ([0102]), which overlaps the claimed range of “about 100 ppm to about 900 ppm,” establishing a prima facie case of obviousness.
Regarding claim 15, Yamamoto teaches a molded article ([0038]) from the thermoplastic resin composition.
Regarding claim 18, as described above, Yamamoto teaches the incorporation of 0.005 to 0.024 parts of bromine-containing flame-retardant additive. This value falls outside of the claimed range; however, the use of the term “about” in claim 18 is understood to imply an open amount of the claimed flame retardant somewhat below 0.05 parts by weight and somewhat above 0.2 parts by weight. The prior art range of 0.005 to 0.024 falls within this claimed range based on this built-in imprecision. Furthermore, a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. See MPEP 2144.05. In this case, the claimed amounts of the bromine flame retardant within the prior art and as claimed are so close that one of ordinary skill in the art would have expected them to have the same properties.
Regarding claim 19, as described above, Yamamoto teaches the incorporation of 1.01 to 50.5 parts by mass based on 100 parts by mass of the polyolefin-based resin, which overlaps the claimed range of “0.5 parts by weight to about 5 parts by weight,” establishing a prima facie case of obviousness.
Claims 2 and 3 are rejected under 35 U.S.C. 103 as being unpatentable over Yamamoto (US 2015/0183991 A1) in view of Yoo (US 2017/0342254 A1), Karayianni (US 2012/0225291 A1), Kim (US 2016/0304785 A1), and Immel (US 2015/0314495 A1), and further in view of Kurokawa (US 2018/0334556 A1).
Regarding claim 2, Yamamoto as modified teaches all of the limitations of claim 1, as explained above. Yamamoto is silent with regard to the specific compositional breakdown of the polyolefin-based thermoplastic resin.
However, Kurokawa teaches a thermoplastic elastomer composition ([0002]) comprising a block copolymer containing ethylene and an α-olefin ([0073]) which may include propylene ([0076]), and in which the ethylene content is within 50-90% by weight and the α-olefin component is within 10-50% by weight ([0031]). These ranges read on the claimed “about 20% wt% to 60% wt% of ethylene and about 40% wt% to 60% wt% of propylene,” establishing a prima facie case of obviousness. Kurokawa is considered analogous art because it pertains to thermoplastic elastomer compositions. One of ordinary skill in the art would be capable of substituting one known element for another to yield predictable results, such as exchanging one resin composition for another. Therefore, it would have been obvious to modify the formulation taught by Yamamoto in view of Yoo to contain the compositional ranges of the ethylene-propylene block copolymer.
Regarding claim 3, Yamamoto as modified teaches all of the limitations of claim 1, as explained above. Yamamoto is silent with regard to the specific compositional breakdown of the ethylene-propylene block copolymer.
However, Kurokawa also teaches a thermoplastic elastomer composition component ([0002]) comprising a polypropylene homopolymer ([0064]) and a heterophasic propylene polymerization material copolymer ([0064]), which is a rubber ([0003]), and which reads on the claimed “ethylene-propylene block copolymer.” Kurokawa further teaches that the propylene homopolymer portion of the component comprises between 70% and 90% by weight of the component and that the copolymer portion of the component comprises between 10% and 30% by weight of the component ([0065]), which reads on the claimed “about 60 wt% to about 95 wt% of a propylene homopolymer and about 5 wt% to about 40 wt% of a rubber ethylene-propylene copolymer, establishing a prima facie case of obviousness.
Response to Arguments
Applicant's arguments filed November 13, 2025 have been fully considered but they are not persuasive.
Applicant argues that the combination of prior art documents Yamamoto and Kim and Karayianni are improper. Applicant first states that Kim directs the skilled artisan away from the use of halogen-based flame retardants. However, Kim explicitly teaches that halogen-based flame retardants are useful ([0003]). Furthermore, while Kim and Karayianni may be focused on non-halogenated compositions, they are not being relied upon for teaching the use of halogenated flame retardants; rather, they are being relied upon to provide a motivation for why one having ordinary skill in the art would willfully make changes to the formulation of Yamamoto to reduce the flame retardancy characteristics thereof. This motivation is indicated as being suitable for hydroxide and phosphate-based materials, however as asserted by the Applicant, these documents specifically indicate the use of said materials as more eco-friendly options when compared to halogenated flame retardants. Therefore, the eco-friendly reduction of those flame retardants would logically apply to the halogenated flame retardants as well. One having ordinary skill in the art would be duly motivated to modify the amounts of flame retardants to meet the claimed ranges for the purpose of achieving an eco-friendlier product which is still sufficiently flame-retardant.
Applicant re-asserts allegations of non-obviousness in view of the data provided in the specification; however, as described previously, the scope of the data provided is not reasonably commensurate with the scope of the claims so as to rebut a prima facie determination of obviousness: the examples do not illustrate results for the entirety of the claimed ranges of the allowable amounts of the metal phosphinate compound (examples relate to between 1 and 4 parts by weight, versus the claimed range of about 0.3/0.5 to about 5 parts by weight), the phosphorus nitrogen-based compound (examples relate to between 1 and 4 parts by weight, versus the claimed range of about 0.5 to about 5 parts by weight), or the bromine-based flame retardant (examples relate to between 0.05 and 0.13 parts by weight, versus the claimed range of about 0.01/0.05 to about 0.2 parts by weight).
The examples also include only a single ethylene-propylene block copolymer; a single metal phosphinate compound; a single phosphorus nitrogen-based compound; and a single bromine-based flame retardant (which are named in the instant Specification at [63] – [76]). In contrast, claim 1 is open to any of a range of ethylene-propylene block copolymers described by claims 2 and 3, any of a broad category of metal phosphinate compounds described in claim 5, any of a series of phosphorus nitrogen-based flame retardants described in claim 6, and any of a series of bromine-based flame retardants described in claim 7. The exemplary compositions are therefore not commensurate with the claimed compositional limitations.
The applicant therefore argues that a showing of unexpected results for a narrow portion of the claimed ranges would be sufficient to rebut a prima facie case of obviousness. The applicant need not present evidence for every embodiment falling within the scope of the claims, but the evidence of record is not reasonably representative of the full scope of the claims.
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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/JOSHUA CALEB BLEDSOE/Examiner, Art Unit 1762
/ROBERT S JONES JR/Supervisory Patent Examiner, Art Unit 1762