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 March 31, 2026 has been fully considered. The amendment to instant claim 15 and addition of new claims 22-30 are acknowledged. In light of the amendment, the previous rejections cited below are maintained. 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 § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
3. Claims 15-16, 18, 20-30 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
4. Claims 15 and 26 refer to polypropylene, low density polyethylene, compatibilizer, polyester block(s) used the second time, but do not have prepositions “the” or “said” in front of those terms, therefore, it is not clear if said terms are the same or different from those previously cited.
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.
5. Claims 15-16, 18, 20-21 are rejected under 35 U.S.C. 103 as being unpatentable over Przybysz et al (WO 2017/097617) in view of Duchateau et al (US 2018/0163035, Duchateau’035), Harada et al (US 3,846,349) and/or Ramesh et al (US 6,462,101), as evidenced by Peeters et al (US 6,951,904).
It is noted that while the rejection is made over WO 2017/097617 for date purposes, in order to elucidate the examiner's position the corresponding US equivalent viz. US 2018/0362747 is relied upon. All citations to paragraph numbers, etc., below refer to US 2018/0362747.
6. The rejection is adequately set forth on pages 2-13 of an Office action mailed on January 16, 2026 and is incorporated here by reference.
7. As to amended claim 21, Duchateau’035 discloses a polymer composition comprising:
A) 70-90%wt of a polypropylene, specifically propylene homopolymer of propylene-alpha olefin copolymer ([0055]-[0060],[0069], [0078], as to instant claim 20, 21);
B) 10-30%wt of polyethylene, specifically a low density polyethylene (LDPE) ([0065]),
C) 1-10%wt, or 3-8%wt of a compatibilizer ([0077]);
D) up to 5%wt of further additives ([0079]),
E) 1-20%wt of reinforcing agents ([0080]).
8. Claims 26, 28-30 are rejected under 35 U.S.C. 103 as being unpatentable over Przybysz et al (WO 2017/097617) in view of Duchateau et al (US 2018/0163035, Duchateau’035), Harada et al (US 3,846,349) and/or Ramesh et al (US 6,462,101).
It is noted that while the rejection is made over WO 2017/097617 for date purposes, in order to elucidate the examiner's position the corresponding US equivalent viz. US 2018/0362747 is relied upon. All citations to paragraph numbers, etc., below refer to US 2018/0362747.
9. Przybysz et al discloses a composition comprising:
A) 50-95%wt of polyolefin ([0083], [0098]), including an isotactic polypropylene homopolymer and a low density polyethylene ([0066], [0068], [0076]);
B) 5-49%wt of a polycarbonate ([0098]);
C) 2-10%wt, or 4-7%wt ([0096]) of a compatibilizer, and
D) up to 5%wt of additives including pigments, UV stabilizer ([0100], as to instant claims 28-30), and
E) 1-20%wt of reinforcing agent ([0101], as to instant claims 28-30),
wherein the compatibilizer is a graft copolymer of ABn structure comprising a polyolefin part, especially a polyolefin block of a propylene homopolymer ([0035]), as a backbone and a polyester part, especially a polyester block, with “n” polyester block branches grafted on the backbone, said polyester block being a polyester having an average M/F ratio of 2-25 ([0028], [0106]), wherein M is the number of backbone carbon atoms in the polyester not including the carbonyl carbons and F is the number of ester groups in the polyester ([0007], [0010], [0012]); the amount of grafts per 1000 main chain carbon atoms being more than zero and preferably less than 5 ([0039]).
The polypropylene homopolymer used as the backbone of the graft copolymer is isotactic ([0037]).
The composition of Przybysz et al is used for making molded articles including automotive interior and exterior articles, household appliances and sheets ([0105]).
10. Based on the teachings of Przybysz et al, it would have been obvious to a one of ordinary skill in the art to choose and use isotactic propylene homopolymer block as the polypropylene backbone of the compatibilizer of Przybysz et al, to choose and use the composition comprising more than 90%wt of the component A) and 5%wt of the polycarbonate of the component B), and to choose and use both the propylene homopolymer and the low density polyethylene as the component A), 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).
11. It is further noted that instant specification recites that “for graft copolymers the backbone maybe considered as the polypropylene block” (p. 5, lines 22-23 of instant specification) and as shown below, similarly to the teachings of Przybysz et al:
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12. It is noted that the graft copolymer of the compatibilizer of Przybysz et al is produced by essentially the same process steps as the polypropylene graft block copolymer claimed and disclosed in instant invention (see [0053]-[0065] of Przybysz et al and p. 15, lines 30-p. 16, line 35 of instant specification).
13. All ranges in the composition of Przybysz 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).
14. Though Przybysz et al discloses that the component A) maybe a combination of propylene homo- or copolymer with low density polyethylene ([0066], [0068], [0076]), Przybysz et al does not explicitly teach said combination including 60-98%wt, or 70-98%wt of the polypropylene and 2-40%wt, or 5-20%wt of the low density polyethylene.
15. However, Duchateau’035 discloses a polymer composition comprising:
A) 70-90%wt of a polypropylene, specifically propylene homopolymer of propylene-alpha olefin copolymer ([0055]-[0060],[0069], [0078]);
B) 10-30%wt of polyethylene, specifically a low density polyethylene (LDPE) ([0065]),
C) 1-10%wt, or 3-8%wt of a compatibilizer ([0077]);
D) up to 5%wt of further additives ([0079]),
E) 1-20%wt of reinforcing agents ([0080]),
wherein the compatibilizer is a graft block copolymer of structure ABn having a polypropylene backbone A with “n” polyester branches grafted thereon, with “n” being at least 1 ([0033]);
in said graft copolymers the backbone is considered as the polypropylene block, which is a propylene homopolymer ([0033], [0031]);
the polyester branches B are polyester blocks ([0035]; [0045]);
the polyester blocks having M/E ratio of at least 10, or 10-32, wherein M is a number of backbone carbon atoms in the polyester not including the carbonyl carbon atoms and E is the number of ester groups in the polyester ([0011]).
Based on the teachings of Duchateau’035, it would have been obvious to a one of ordinary skill in the art to choose and use propylene homopolymer block as the polypropylene backbone of the compatibilizer of Duchateau’035, 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).
The polypropylene backbone of the compatibilizer is a polypropylene block A and comprises propylene homopolymer block ([0031]; [0033], claim 11).
It is noted that the polypropylene graft block copolymer of the compatibilizer of Duchateau’035 is produced by essentially the same process steps as the polypropylene graft block copolymer claimed and disclosed in instant invention (see [0045]-[0054] of Duchateau’035 and p. 15, lines 30-p. 16, line 35 of instant specification).
The composition of Duchateau’035 is used for making molded articles including automotive interior and exterior articles, household appliances and sheets ([0082]-[0084]).
16. Thus, Duchateau’035 discloses a composition comprising the combination of polypropylene and low density polyethylene, compatibilized by essentially the same graft polypropylene-polyester copolymer as that by Przybysz et al, used for making essentially the same articles as those of Przybysz et al, and thereby Duchateau’035 and Przybysz et al belong to the same field of endeavor, but wherein Duchateau’035 further specifies the use of a major amount of the polypropylene and a minor amount of a low density polyethylene in said composition.
Therefore, based on the combined teachings of Przybysz et al and Duchateau’035, it would have been obvious to a one of ordinary skill in the art to choose and use the combination of the polypropylene and the low density polyethylene as the component A) in the composition of Przybysz et al, and further specifically use the combination of 70-80%wt of the propylene homopolymer and 10-20%wt of the low density polyethylene as the component A) in the composition of Przybysz et al, totaling about 90%wt as the component A) based on the total composition of Przybysz et al, since such combination of said polymers is taught in the art as being compatibilized by the graft polypropylene -polyester copolymer as shown by Duchateau’035, 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
17. Though Przybysz et al in view of Duchateau’035 discloses the composition comprising further additives, Przybysz et al in view of Duchateau’035 do not explicitly recite said additives including a foaming agent.
18. However,
1) Ramesh et al discloses a composition comprising:
a blend of a polypropylene and 1-30%wt of a low density polyethylene, further comprising a chemical or physical blowing agent (col. 3, lines 53-55; col. 2, lines 5-15), wherein the composition is used for making extruded foam sheets (col. 1, lines 5-10).
2) Harada et al discloses a polypropylene composition comprising 30-80 pbw of crystalline polypropylene, 10-40 pbw of non-crystalline polypropylene, 10-40 pbw of a low density polyethylene (Abstract), further comprising a chemical blowing agent (col. 3, lines 14-25), wherein the composition is used for making foamed sheets (col. 1, lines 4-15).
19. Thus, both Ramesh et al and Harada et al teach the polypropylene compositions comprising a major amount of polypropylene and a minor amount of LDPE, used for making sheets, wherein both Ramesh et al and Harada et al clearly teach that in order to form the foamed sheets a blowing agent needs to be added to the composition.
20. Since all of Przybysz et al in view of Duchateau’035, Ramesh et al and Harada et al are related to polypropylene compositions comprising a major amount of polypropylene, a minor amount of LDPE, used for making molded articles such as sheets, and thereby belong to the same field of endeavor, wherein both Ramesh et al and Harada et al teach that in order to form the foamed sheets a blowing agent needs to be added to the polymer composition, therefore, it would have been obvious to a one of ordinary skill in the art to combine the teachings of Przybysz et al in view of Duchateau’035 and Ramesh et al and/or Harada et al, and, given the sheet of Przybysz et al in view of Duchateau’035 being at least partially foamed is desired, depending on the specific end-use of said foamed sheet, it would have been obvious to a one of ordinary skill in the art to add, at least a minor amount of, a blowing agent as the additive component D) in the composition of Przybysz et al in view of Duchateau’035 used for making said sheet as well, 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 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
21. Claims 22-25 are rejected under 35 U.S.C. 103 as being unpatentable over Duchateau et al (US 2018/0163035, Duchateau’035) in view of Przybysz et al (WO 2017/097617), Harada et al (US 3,846,349) and/or Ramesh et al (US 6,462,101), as evidenced by Peeters et al (US 6,951,904).
It is noted that while the rejection is made over WO 2017/097617 for date purposes, in order to elucidate the examiner's position the corresponding US equivalent viz. US 2018/0362747 is relied upon. All citations to paragraph numbers, etc., below refer to US 2018/0362747.
22. Duchateau’035 discloses a polymer composition comprising:
A) 70-90%wt of a polypropylene, specifically propylene homopolymer of propylene-alpha olefin copolymer ([0055]-[0060],[0069], [0078], as to instant claim 22);
B) 10-30%wt of polyethylene, specifically a low density polyethylene (LDPE) ([0065]),
C) 1-10%wt, or 3-8%wt of a compatibilizer ([0077]);
D) up to 5%wt of additives including pigments ([0079]), and
E) 1-20%wt of reinforcing agents ([0080], as to instant claims 23-25),
wherein the compatibilizer is a graft block copolymer of structure ABn having a polypropylene backbone A with “n” polyester branches grafted thereon, with “n” being at least 1 ([0033]);
in said graft copolymers the backbone is considered as the polypropylene block, which is a propylene homopolymer ([0033], [0031]);
the polyester branches B are polyester blocks ([0035]; [0045]);
the polyester blocks having M/E ratio of at least 10, or 10-32, wherein M is a number of backbone carbon atoms in the polyester not including the carbonyl carbon atoms and E is the number of ester groups in the polyester ([0011]).
Based on the teachings of Duchateau’035, it would have been obvious to a one of ordinary skill in the art to choose and use propylene homopolymer block as the polypropylene backbone of the compatibilizer of Duchateau’035, 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).
23. It is further noted that instant specification recites that “for graft copolymers the backbone maybe considered as the polypropylene block” (p. 5, lines 22-23 of instant specification) and as shown below, similarly to the teachings of Duchateau’035:
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24. As to instant claim 22, the polypropylene backbone of the compatibilizer is a polypropylene block A and comprises propylene homopolymer block ([0031]; [0033], claim 11).
It is noted that the polypropylene graft block copolymer of the compatibilizer of Duchateau’035 is produced by essentially the same process steps as the polypropylene graft block copolymer claimed and disclosed in instant invention (see [0045]-[0054] of Duchateau’035 and p. 15, lines 30-p. 16, line 35 of instant specification).
25. Further, the exemplified polypropylene blocks of the compatibilizer of Duchateau’035 are abbreviated as iPP (see [0106], Table 2), which abbreviation is standard for “isotactic polypropylene” (see also [0104] of Duchateau’035). Therefore, the polypropylene backbone of the compatibilizer is an isotactic propylene homopolymer block. Further, based on the teachings of Duchateau’035, it would have been obvious to a one of ordinary skill in the art to choose and use isotactic propylene homopolymer block as the polypropylene backbone of the compatibilizer of Duchateau’035, 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).
26. Though Duchateau’035 does not explicitly recite the isotactic polypropylene homopolymer block of the compatibilizer as being semi-crystalline,
since:
1) the polypropylene block of the compatibilizer of Duchateau’035 is isotactic polypropylene homopolymer, produced by the same process as that disclosed in instant invention;
2) Instant specification defines the polypropylene block as a semi-crystalline and, in other words, as isotactic polypropylene (see p. 13, lines 25-28 of instant specification) and as presented below:
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thereby by using the term “in other words” substantially equalizing the terms “isotactic” and “semi-crystalline”;
3) as evidenced by Peeters et al, isotactic polypropylene homopolymer is a semi-crystalline polymer (see p. 3, lines 33-40 of Peeters et al),
therefore, the isotactic polypropylene homopolymer block of the compatibilizer of Duchateau’035 will intrinsically and necessarily be, at least partially, semi-crystalline 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. The above rejections were made in the sense of in re Fitzgerald (205 USPQ 594). (CAFC ) based on presumption that the properties governing the claimed polypropylene homopolymer block of the compatibilizer, if not taught, may be very well met by the polypropylene homopolymer block of Duchateau’035, since polypropylene homopolymer block of Duchateau’035 is essentially the same and made in essentially the same manner as applicants’ polypropylene homopolymer block, wherein the burden to show that it is not the case is shifted to applicants; or in the sense of In re Spada, 911 F 2d 705, 709 15 USPQ 1655, 1658 (Fed. Cir. 1990), which settles that when the claimed compositions are not novel, they are not rendered patentable by recitation of properties, whether or not these properties are shown or suggested in prior art.
27. All ranges in the composition of Duchateau’035 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. The composition of Duchateau’035 is used for making molded articles including automotive interior and exterior articles, household appliances and sheets ([0082]-[0084]).
29. Though Duchateau’035 does not recite the graft density of the compatibilizer being 1-5 grafts per 1000 main-chain carbon atoms of the polypropylene backbone,
Przybysz et al discloses a composition comprising:
as high as 95%wt of polyolefins ([0083], [0098]), including an isotactic polypropylene homopolymer and a low density polyethylene ([0066], [0068], [0076]); and further
2-10%wt, or 4-7%wt ([0096]) of a compatibilizer, and
wherein the compatibilizer is a graft copolymer of ABn structure comprising a polyolefin part, especially a polyolefin block of a propylene homopolymer ([0035]), as a backbone and a polyester part, especially a polyester block, with “n” polyester block branches grafted on the backbone, said polyester block being a polyester having an average M/F ratio of 2-25 ([0028], [0106]), wherein M is the number of backbone carbon atoms in the polyester not including the carbonyl carbons and F is the number of ester groups in the polyester ([0007], [0010], [0012]);
wherein Przybysz et al explicitly teaches the amount of said grafts per 1000 main chain carbon atoms being more than zero and preferably less than 5 ([0039]).
The polypropylene homopolymer used as the backbone of the graft copolymer is isotactic ([0037]).
30. Since both Przybysz et al and Duchateau’035 are related to compositions comprising a major amount of polyolefins including polyethylene and polypropylene, and further a graft copolymer of ABn structure as a compatibilizer, and thereby belong to the same field of endeavor, wherein Przybysz et al explicitly teaches said compatibilizer having more than zero and less than 5 grafts per 1000 main chain carbon atoms, therefore, it would have been obvious to a one of ordinary skill in the art to combine the teachings of Przybysz et al and Duchateau’035, and to use, or obvious to try to use such compatibilizer having more than zero and less than 5 grafts per 1000 main chain carbon atoms, as the compatibilizer component C) in the composition of Duchateau’035, since such compatibilizer is taught in the art as being used for polypropylene/polyethylene-based compositions, as shown by Przybysz et al, and 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).
31. Though Duchateau’035 discloses the composition comprising further additives, Duchateau’035 does not explicitly recite said additives including a foaming agent.
32. However,
1) Ramesh et al discloses a composition comprising:
a blend of a polypropylene and 1-30%wt of a low density polyethylene, further comprising a chemical or physical blowing agent (col. 3, lines 53-55; col. 2, lines 5-15), wherein the composition is used for making extruded foam sheets (col. 1, lines 5-10).
2) Harada et al discloses a polypropylene composition comprising 30-80 pbw of crystalline polypropylene, 10-40 pbw of non-crystalline polypropylene, 10-40 pbw of a low density polyethylene (Abstract), further comprising a chemical blowing agent (col. 3, lines 14-25), wherein the composition is used for making foamed sheets (col. 1, lines 4-15).
33. Thus, both Ramesh et al and Harada et al teach the polypropylene compositions comprising a major amount of polypropylene and a minor amount of LDPE, used for making sheets, wherein both Ramesh et al and Harada et al clearly teach that in order to form the foamed sheets a blowing agent needs to be added to the composition.
34. Since all of Duchateau’035, Ramesh et al and Harada et al are related to polypropylene compositions comprising a major amount of polypropylene, a minor amount of LDPE, used for making molded articles such as sheets, and thereby belong to the same field of endeavor, wherein both Ramesh et al and Harada et al teach that in order to form the foamed sheets a blowing agent needs to be added to the polymer composition, therefore, it would have been obvious to a one of ordinary skill in the art to combine the teachings of Duchateau’035 and Ramesh et al and/or Harada et al, and, given the sheet of Duchateau’035 being at least partially foamed is desired, it would have been obvious to a one of ordinary skill in the art to add, at least a minor amount of, a blowing agent as the additive component D) in the composition of Duchateau’035 used for making said sheet as well, 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 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
35. Claims 26-30 are rejected under 35 U.S.C. 103 as being unpatentable over Duchateau et al (US 2018/0163035, Duchateau’035) in view of Przybysz et al (WO 2017/097617), Harada et al (US 3,846,349) and/or Ramesh et al (US 6,462,101).
It is noted that while the rejection is made over WO 2017/097617 for date purposes, in order to elucidate the examiner's position the corresponding US equivalent viz. US 2018/0362747 is relied upon. All citations to paragraph numbers, etc., below refer to US 2018/0362747.
36. It is noted that, though instant claim 26 is cited in the claims set filed on March 31, 2026 as “Previously Presented”, it is a newly added claim.
37. Duchateau’035 discloses a polymer composition comprising:
A) 70-90%wt of a polypropylene, specifically propylene homopolymer of propylene-alpha olefin copolymer ([0055]-[0060],[0069], [0078], as to instant claim 26-27);
B) 10-30%wt of polyethylene, specifically a low density polyethylene (LDPE) ([0065]),
C) 1-10%wt, or 3-8%wt of a compatibilizer ([0077]);
D) up to 5%wt of additives including pigments ([0079]), and
E) 1-20%wt of reinforcing agents ([0080], as to instant claims 28-30),
wherein the compatibilizer is a graft block copolymer of structure ABn having a polypropylene backbone A with “n” polyester branches grafted thereon, with “n” being at least 1 ([0033]);
in said graft copolymers the backbone is considered as the polypropylene block, which is a propylene homopolymer ([0033], [0031]);
the polyester branches B are polyester blocks ([0035]; [0045]);
the polyester blocks having M/E ratio of at least 10, or 10-32, wherein M is a number of backbone carbon atoms in the polyester not including the carbonyl carbon atoms and E is the number of ester groups in the polyester ([0011]).
Based on the teachings of Duchateau’035, it would have been obvious to a one of ordinary skill in the art to choose and use propylene homopolymer block as the polypropylene backbone of the compatibilizer of Duchateau’035, 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).
38. It is further noted that instant specification recites that “for graft copolymers the backbone maybe considered as the polypropylene block” (p. 5, lines 22-23 of instant specification) and as shown below, similarly to the teachings of Duchateau’035:
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39. As to instant claim 26, the polypropylene backbone of the compatibilizer is a polypropylene block A and comprises propylene homopolymer block ([0031]; [0033], claim 11).
It is noted that the polypropylene graft block copolymer of the compatibilizer of Duchateau’035 is produced by essentially the same process steps as the polypropylene graft block copolymer claimed and disclosed in instant invention (see [0045]-[0054] of Duchateau’035 and p. 15, lines 30-p. 16, line 35 of instant specification).
40. All ranges in the composition of Duchateau’035 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. The composition of Duchateau’035 is used for making molded articles including automotive interior and exterior articles, household appliances and sheets ([0082]-[0084]).
42. Though Duchateau’035 does not recite the graft density of the compatibilizer being 1-5 grafts per 1000 main-chain carbon atoms of the polypropylene backbone,
Przybysz et al discloses a composition comprising:
as high as 95%wt of polyolefin ([0083], [0098]), including an isotactic polypropylene homopolymer and a low density polyethylene ([0066], [0068], [0076]); and further
2-10%wt, or 4-7%wt ([0096]) of a compatibilizer, and
wherein the compatibilizer is a graft copolymer of ABn structure comprising a polyolefin part, especially a polyolefin block of a propylene homopolymer ([0035]), as a backbone and a polyester part, especially a polyester block, with “n” polyester block branches grafted on the backbone, said polyester block being a polyester having an average M/F ratio of 2-25 ([0028], [0106]), wherein M is the number of backbone carbon atoms in the polyester not including the carbonyl carbons and F is the number of ester groups in the polyester ([0007], [0010], [0012]);
wherein Przybysz et al explicitly teaches the amount of said grafts per 1000 main chain carbon atoms being more than zero and preferably less than 5 ([0039]).
The polypropylene homopolymer used as the backbone of the graft copolymer is isotactic ([0037]).
43. Since both Przybysz et al and Duchateau’035 are related to compositions comprising a major amount of polyolefins including polyethylene and polypropylene, and further a graft copolymer of ABn structure as a compatibilizer, and thereby belong to the same field of endeavor, wherein Przybysz et al explicitly teaches said compatibilizer having more than zero and less than 5 grafts per 1000 main chain carbon atoms, therefore, it would have been obvious to a one of ordinary skill in the art to combine the teachings of Przybysz et al and Duchateau’035, and to use, or obvious to try to use such compatibilizer having more than zero and less than 5 grafts per 1000 main chain carbon atoms, as the compatibilizer component C) in the composition of Duchateau’035, since such compatibilizer is taught in the art as being used for polypropylene/polyethylene-based compositions, as shown by Przybysz et al, and 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).
44. Though Duchateau’035 discloses the composition comprising further additives, Duchateau’035 does not explicitly recite said additives including a foaming agent.
45. However,
1) Ramesh et al discloses a composition comprising:
a blend of a polypropylene and 1-30%wt of a low density polyethylene, further comprising a chemical or physical blowing agent (col. 3, lines 53-55; col. 2, lines 5-15), wherein the composition is used for making extruded foam sheets (col. 1, lines 5-10).
2) Harada et al discloses a polypropylene composition comprising 30-80 pbw of crystalline polypropylene, 10-40 pbw of non-crystalline polypropylene, 10-40 pbw of a low density polyethylene (Abstract), further comprising a chemical blowing agent (col. 3, lines 14-25), wherein the composition is used for making foamed sheets (col. 1, lines 4-15).
46. Thus, both Ramesh et al and Harada et al teach the polypropylene compositions comprising a major amount of polypropylene and a minor amount of LDPE, used for making sheets, wherein both Ramesh et al and Harada et al clearly teach that in order to form the foamed sheets a blowing agent needs to be added to the composition.
47. Since all of Duchateau’035, Ramesh et al and Harada et al are related to polypropylene compositions comprising a major amount of polypropylene, a minor amount of LDPE, used for making molded articles such as sheets, and thereby belong to the same field of endeavor, wherein both Ramesh et al and Harada et al teach that in order to form the foamed sheets a blowing agent needs to be added to the polymer composition, therefore, it would have been obvious to a one of ordinary skill in the art to combine the teachings of Duchateau’035 and Ramesh et al and/or Harada et al, and, given the sheet of Duchateau’035 being at least partially foamed is desired, it would have been obvious to a one of ordinary skill in the art to add, at least a minor amount of, a blowing agent as the additive component D) in the composition of Duchateau’035 used for making said sheet as well, 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 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
48. Claims 22-25 are rejected under 35 U.S.C. 103 as being unpatentable over Duchateau et al (US 2018/0163035, Duchateau’035) in view of Duchateau et al (US 2018/0371176, Duchateau’176), Harada et al (US 3,846,349) and/or Ramesh et al (US 6,462,101), as evidenced by Peeters et al (US 6,951,904).
49. Duchateau’035 discloses a polymer composition comprising:
A) 70-90%wt of a polypropylene, specifically propylene homopolymer of propylene-alpha olefin copolymer ([0055]-[0060],[0069], [0078], as to instant claim 22);
B) 10-30%wt of polyethylene, specifically a low density polyethylene (LDPE) ([0065]),
C) 1-10%wt, or 3-8%wt of a compatibilizer ([0077]);
D) up to 5%wt of additives including pigments ([0079]), and
E) 1-20%wt of reinforcing agents ([0080], as to instant claims 23-25),
wherein the compatibilizer is a graft block copolymer of structure ABn having a polypropylene backbone A with “n” polyester branches grafted thereon, with “n” being at least 1 ([0033]);
in said graft copolymers the backbone is considered as the polypropylene block, which is a propylene homopolymer ([0033], [0031]);
the polyester branches B are polyester blocks ([0035]; [0045]);
the polyester blocks having M/E ratio of at least 10, or 10-32, wherein M is a number of backbone carbon atoms in the polyester not including the carbonyl carbon atoms and E is the number of ester groups in the polyester ([0011]).
Based on the teachings of Duchateau’035, it would have been obvious to a one of ordinary skill in the art to choose and use propylene homopolymer block as the polypropylene backbone of the compatibilizer of Duchateau’035, 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).
50. It is further noted that instant specification recites that “for graft copolymers the backbone maybe considered as the polypropylene block” (p. 5, lines 22-23 of instant specification) and as shown below, similarly to the teachings of Duchateau’035:
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51. As to instant claim 22, the polypropylene backbone of the compatibilizer is a polypropylene block A and comprises propylene homopolymer block ([0031]; [0033], claim 11).
It is noted that the polypropylene graft block copolymer of the compatibilizer of Duchateau’035 is produced by essentially the same process steps as the polypropylene graft block copolymer claimed and disclosed in instant invention (see [0045]-[0054] of Duchateau’035 and p. 15, lines 30-p. 16, line 35 of instant specification), including ring-opening polymerization or a transesterification steps ([0052]).
52. Further, the exemplified polypropylene blocks of the compatibilizer of Duchateau’035 are abbreviated as iPP (see [0106], Table 2), which abbreviation is standard for “isotactic polypropylene” (see also [0104] of Duchateau’035). Therefore, the polypropylene backbone of the compatibilizer is an isotactic propylene homopolymer block. Further, based on the teachings of Duchateau’035, it would have been obvious to a one of ordinary skill in the art to choose and use isotactic propylene homopolymer block as the polypropylene backbone of the compatibilizer of Duchateau’035, 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).
53. Though Duchateau’035 does not explicitly recite the isotactic polypropylene homopolymer block of the compatibilizer as being semi-crystalline,
since:
1) the polypropylene block of the compatibilizer of Duchateau’035 is isotactic polypropylene homopolymer, produced by the same process as that disclosed in instant invention;
2) Instant specification defines the polypropylene block as a semi-crystalline and, in other words, as isotactic polypropylene (see p. 13, lines 25-28 of instant specification) and as presented below:
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thereby by using the term “in other words” substantially equalizing the terms “isotactic” and “semi-crystalline”;
3) as evidenced by Peeters et al, isotactic polypropylene homopolymer is a semi-crystalline polymer (see p. 3, lines 33-40 of Peeters et al),
therefore, the isotactic polypropylene homopolymer block of the compatibilizer of Duchateau’035 will intrinsically and necessarily be, at least partially, semi-crystalline 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. The above rejections were made in the sense of in re Fitzgerald (205 USPQ 594). (CAFC ) based on presumption that the properties governing the claimed polypropylene homopolymer block of the compatibilizer, if not taught, may be very well met by the polypropylene homopolymer block of Duchateau’035, since polypropylene homopolymer block of Duchateau’035 is essentially the same and made in essentially the same manner as applicants’ polypropylene homopolymer block, wherein the burden to show that it is not the case is shifted to applicants; or in the sense of In re Spada, 911 F 2d 705, 709 15 USPQ 1655, 1658 (Fed. Cir. 1990), which settles that when the claimed compositions are not novel, they are not rendered patentable by recitation of properties, whether or not these properties are shown or suggested in prior art.
54. All ranges in the composition of Duchateau’035 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).
55. The composition of Duchateau’035 is used for making molded articles including automotive interior and exterior articles, household appliances and sheets ([0082]-[0084]).
56. Though Duchateau’035 does not recite the graft density of the compatibilizer being 1-5 grafts per 1000 main-chain carbon atoms of the polypropylene backbone,
Duchateau’176 discloses polyolefin-based graft copolymers comprising a polyolefin block and polymer side chains, wherein the polymer side chains/grafts comprise ester functionalities ([0206]), produced by ring opening polymerization or transesterification ([0001], [0041]), wherein said copolymer has a branching number/number of grafts of 0.2-10 per 10000 carbon atoms, i.e. including 1 graft per 1000 carbon atoms, or 50 grafts per 10000, i.e. including 5 per 1000 carbon atoms ([0205]). The polyolefin-based graft copolymers are used as compatibilizers to improve properties such as adhesion ([0208]).
57. Since both Duchateau’176 and Duchateau’035 are related to polyolefin-based graft copolymers having ester-functionalized grafts, produced by ring opening polymerization or transesterification, used as compatibilizers in polymer compositions, and thus belong to the same field of endeavor, wherein Duchateau’176 specifies said polyolefin graft copolymers having both 1 graft and 5 grafts per 1000 carbon atoms, therefore, it would have been obvious to a one of ordinary skill in the art to combine the teachings of Duchateau’176 and Duchateau’035, and to use, or obvious to try to use the polyolefin-based graft copolymer having either 1 graft or 5 grafts per 1000 carbon atoms as the compatibilizer component C) in the composition of Duchateau’035, since such polyolefin-based graft copolymer is explicitly taught in the art as being used as a compatibilizer in polymer compositions, as shown by Duchateau’176, and it would be 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).
58. Though Duchateau’035 discloses the composition comprising further additives, Duchateau’035 does not explicitly recite said additives including a foaming agent.
59. However,
1) Ramesh et al discloses a composition comprising:
a blend of a polypropylene and 1-30%wt of a low density polyethylene, further comprising a chemical or physical blowing agent (col. 3, lines 53-55; col. 2, lines 5-15), wherein the composition is used for making extruded foam sheets (col. 1, lines 5-10).
2) Harada et al discloses a polypropylene composition comprising 30-80 pbw of crystalline polypropylene, 10-40 pbw of non-crystalline polypropylene, 10-40 pbw of a low density polyethylene (Abstract), further comprising a chemical blowing agent (col. 3, lines 14-25), wherein the composition is used for making foamed sheets (col. 1, lines 4-15).
60. Thus, both Ramesh et al and Harada et al teach the polypropylene compositions comprising a major amount of polypropylene and a minor amount of LDPE, used for making sheets, wherein both Ramesh et al and Harada et al clearly teach that in order to form the foamed sheets a blowing agent needs to be added to the composition.
61. Since all of Duchateau’035, Ramesh et al and Harada et al are related to polypropylene compositions comprising a major amount of polypropylene, a minor amount of LDPE, used for making molded articles such as sheets, and thereby belong to the same field of endeavor, wherein both Ramesh et al and Harada et al teach that in order to form the foamed sheets a blowing agent needs to be added to the polymer composition, therefore, it would have been obvious to a one of ordinary skill in the art to combine the teachings of Duchateau’035 and Ramesh et al and/or Harada et al, and, given the sheet of Duchateau’035 being at least partially foamed is desired, it would have been obvious to a one of ordinary skill in the art to add, at least a minor amount of, a blowing agent as the additive component D) in the composition of Duchateau’035 used for making said sheet as well, 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 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
62. Claims 26-30 are rejected under 35 U.S.C. 103 as being unpatentable over Duchateau et al (US 2018/0163035, Duchateau’035) in view of Duchateau et al (US 2018/0371176, Duchateau’176), Harada et al (US 3,846,349) and/or Ramesh et al (US 6,462,101).
63. It is noted that, though instant claim 26 is cited in the claims set filed on March 31, 2026 as “Previously Presented”, it is a newly added claim.
64. Duchateau’035 discloses a polymer composition comprising:
A) 70-90%wt of a polypropylene, specifically propylene homopolymer of propylene-alpha olefin copolymer ([0055]-[0060],[0069], [0078], as to instant claim 26-27);
B) 10-30%wt of polyethylene, specifically a low density polyethylene (LDPE) ([0065]),
C) 1-10%wt, or 3-8%wt of a compatibilizer ([0077]);
D) up to 5%wt of additives including pigments ([0079]), and
E) 1-20%wt of reinforcing agents ([0080], as to instant claims 28-30),
wherein the compatibilizer is a graft block copolymer of structure ABn having a polypropylene backbone A with “n” polyester branches grafted thereon, with “n” being at least 1 ([0033]);
in said graft copolymers the backbone is considered as the polypropylene block, which is a propylene homopolymer ([0033], [0031]);
the polyester branches B are polyester blocks ([0035]; [0045]);
the polyester blocks having M/E ratio of at least 10, or 10-32, wherein M is a number of backbone carbon atoms in the polyester not including the carbonyl carbon atoms and E is the number of ester groups in the polyester ([0011]).
Based on the teachings of Duchateau’035, it would have been obvious to a one of ordinary skill in the art to choose and use propylene homopolymer block as the polypropylene backbone of the compatibilizer of Duchateau’035, 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).
65. It is further noted that instant specification recites that “for graft copolymers the backbone maybe considered as the polypropylene block” (p. 5, lines 22-23 of instant specification) and as shown below, similarly to the teachings of Duchateau’035:
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66. As to instant claim 26, the polypropylene backbone of the compatibilizer is a polypropylene block A and comprises propylene homopolymer block ([0031]; [0033], claim 11).
It is noted that the polypropylene graft block copolymer of the compatibilizer of Duchateau’035 is produced by essentially the same process steps as the polypropylene graft block copolymer claimed and disclosed in instant invention (see [0045]-[0054] of Duchateau’035 and p. 15, lines 30-p. 16, line 35 of instant specification).
67. All ranges in the composition of Duchateau’035 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).
68. The composition of Duchateau’035 is used for making molded articles including automotive interior and exterior articles, household appliances and sheets ([0082]-[0084]).
69. Though Duchateau’035 does not recite the graft density of the compatibilizer being 1-5 grafts per 1000 main-chain carbon atoms of the polypropylene backbone,
Duchateau’176 discloses polyolefin-based graft copolymers comprising a polyolefin block and polymer side chains, wherein the polymer side chains/grafts comprise ester functionalities ([0206]), produced by ring opening polymerization or transesterification ([0001], [0041]), wherein said copolymer has a branching number/number of grafts of 0.2-10 per 10000 carbon atoms, i.e. including 1 graft per 1000 carbon atoms, or 50 per 10000, i.e. including 5 per 1000 carbon atoms ([0205]). The polyolefin-based graft copolymers are used as compatibilizers to improve properties such as adhesion ([0208]).
70. Since both Duchateau’176 and Duchateau’035 are related to polyolefin-based graft copolymers having ester-functionalized grafts, produced by ring opening polymerization or transesterification, used as compatibilizers in polymer compositions, and thus belong to the same field of endeavor, wherein Duchateau’176 specifies said polyolefin graft copolymers having both 1 graft and 5 grafts per 1000 carbon atoms, therefore, it would have been obvious to a one of ordinary skill in the art to combine the teachings of Duchateau’176 and Duchateau’035, and to use, or obvious to try to use the polyolefin-based graft copolymer having either 1 graft or 5 grafts per 1000 carbon atoms as the compatibilizer component C) in the composition of Duchateau’035, since such polyolefin-based graft copolymer is explicitly taught in the art as being used as a compatibilizer in polymer compositions, as shown by Duchateau’176, and it would be 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).
71. Though Duchateau’035 discloses the composition comprising further additives, Duchateau’035 does not explicitly recite said additives including a foaming agent.
72. However,
1) Ramesh et al discloses a composition comprising:
a blend of a polypropylene and 1-30%wt of a low density polyethylene, further comprising a chemical or physical blowing agent (col. 3, lines 53-55; col. 2, lines 5-15), wherein the composition is used for making extruded foam sheets (col. 1, lines 5-10).
2) Harada et al discloses a polypropylene composition comprising 30-80 pbw of crystalline polypropylene, 10-40 pbw of non-crystalline polypropylene, 10-40 pbw of a low density polyethylene (Abstract), further comprising a chemical blowing agent (col. 3, lines 14-25), wherein the composition is used for making foamed sheets (col. 1, lines 4-15).
73. Thus, both Ramesh et al and Harada et al teach the polypropylene compositions comprising a major amount of polypropylene and a minor amount of LDPE, used for making sheets, wherein both Ramesh et al and Harada et al clearly teach that in order to form the foamed sheets a blowing agent needs to be added to the composition.
74. Since all of Duchateau’035, Ramesh et al and Harada et al are related to polypropylene compositions comprising a major amount of polypropylene, a minor amount of LDPE, used for making molded articles such as sheets, and thereby belong to the same field of endeavor, wherein both Ramesh et al and Harada et al teach that in order to form the foamed sheets a blowing agent needs to be added to the polymer composition, therefore, it would have been obvious to a one of ordinary skill in the art to combine the teachings of Duchateau’035 and Ramesh et al and/or Harada et al, and, given the sheet of Duchateau’035 being at least partially foamed is desired, it would have been obvious to a one of ordinary skill in the art to add, at least a minor amount of, a blowing agent as the additive component D) in the composition of Duchateau’035 used for making said sheet as well, 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 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
Response to Arguments
75. Applicant's arguments filed on March 31, 2026 have been fully considered but they are moot in light of new grounds of rejections and discussion set forth above.
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.
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/IRINA KRYLOVA/Primary Examiner, Art Unit 1764
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