DETAILED ACTION
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior office action.
All outstanding objections and rejections made in the previous Office Action, and not repeated below, are hereby withdrawn.
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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 12/11/25 has been entered.
Claim Rejections - 35 USC § 103
Claim(s) 16-21, 23-31 and 33-34 is/are rejected under 35 U.S.C. 103 as being by unpatentable over WO 2019/224129 (herein Duranel) as evidenced by the Polypropylene Handbook, Edward P. Moore Jr, pp. 237-242, 1996 (herein Moore), Introduction to Industrial Polypropylene, Dennis P. Malpass, pp. 5-36, 1998 (herein Malpass), Polypropylene: The Definitive User’s Guide and Databook Clive Maier pp. 3-14, 1998 (herein Maier), and Polypropylene Handbook, Nello Pasquini, Hanser Pulbishers, pp. 312-314, 2012 (herein Pasquini).
Note that Duranel was published on 5/17/2019 and filed on 5/25/2018 (note that the priority document of Duranel is also filed with the instant action). The instant application was filed on 8/19/2019.
As to claims 16-18, 20 and 31, Duranel discloses a polymer composition comprising A 35 to 55 wt% of component A, which is a recycled material (post-consumer) mixture of polypropylene (reading on claimed a1) and polyethylene (reading on claimed a2), wherein the polyethylene is 3 to 20 wt% (thus 8:2 to 32:1), which overlaps the claimed range of 1:1 to 12P:1 a1 to a2. See page 3. The composition also comprises component B, which is a mixture of polypropylene (virgin) and polyethylene (virgin, see page 22) and optionally component C, which is polyethylene (virgin), the combination of B and optionally C generally read on claimed component B. See page 4 and 22. Component B is present in 10 to 60 wt% (page 8) and component C is present in 5 to 25 wt% (page 9).
E2 in table 4 of Duranel combines a recycled material Duranel with a virgin material PPH (reading on claimed component B). The weight percent of PCR-PP6 (reading on claimed component A) is 67 wt%, thus 33 wt% PPH (reading on claimed component B).
While these amounts are outside the claimed range for A and B, the broader disclosure of Duranel discloses that A is present in 35 to 80 wt% (page 3) and thus B must be present in 20 to 65 wt%. These amounts overlap the claimed ranges of 20 to 55 wt% (at 35 to 55) and 45 to 80 wt% (at 45 to 65), respectively. 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). Also see MPEP 2144.05 stating that when there is overlap with the claimed ranges and the prior art, a prima facie case of obviousness exists. Therefore, it would have been obvious to one of ordinary skill in the art at the time the invention was filed to select any amount within the disclosed ranges, including amounts within the scope of the instant claims.
Table 1 shows that PCR-PP6 (claimed component A) is a polypropylene post-consumer resin which comprises 10% polyethylene (a2) to 90 wt% polypropylene (a1). Thus, the ratio of PP to PE is 9:1 and within the claimed range.
Duranel does not explicitly disclose the XCS solubility or the peak temperature of PPH.
Turning now to the XCS content. However, these features are inherent to polypropylene homopolymers. Note in table 2 of Duranel, it is shown that PPH has a flexural modulus of 1500. Figure 6.4 of Moore shows the flexural modulus of polypropylene homopolymers as a function of xylene insoluble content. Thus, a polymer with a xylene insoluble content of 98 wt% (an XCS of 2 wt%) has a flexural modulus about 1500 MPa. The graph shows that flexural modulus increases with a decrease in XCS. The PP used in Duranel, having a flexural modulus of 1500 MPa thus must have had an XCS value of about 2 wt%. The graph in Moore was established using polypropylene homopolymers and in the paragraph above Figure 6.4 it is explained that the polymer tacticity is responsible for the differences in XCS and flexural modulus. This can be seen further in Figure 2.8 on page 34 of document Malpass which plots the XCS against propylene tacticity and shows a clear dependency between the two. It is also evident from this correlation that the claimed XCS content of 1.0 to 3.0 wt% corresponds to a tacticity between 93 and 99% and thus encompasses all typical, commercially available polypropylene resins such as the PP used in the examples of Duranel. There can therefore be no doubt that the virgin polypropylene homopolymer PP used in Duranel had an XCS content of between 1.0 and 3.0 wt%.
Turning next to the melt peak temperature of the PP used in the examples of Duranel. The claimed range 150 to 170°C is the expected range for the any polypropylene polymer having a flexural modulus of 1500 MPa. In the paragraph spanning pages 5 and 6 of Malpass, it is stated that “the melting point (Tm) of isotactic polypropylene is typically reported to be in the range 160 to 170°C”. This is confirmed by the section 2.3.1 on page 14 of Maier which states that “the melting point of a polymer varies with the amount of crystallinity. A perfectly isotactic polypropylene resin has a theoretical melting point of 171°C (340°F); melting points of commercial isotactic resins can range from 160-166°C”. Finally, figure 5.6 of Pasquini shows that for a polypropylene homopolymer, a melting point of 160 to 165°C can be expected. As discussed above, from Maier, the upper limit (170°C) for the melt peak temperature of component B) of the claim corresponds simply to the highest theoretical melting point for a polypropylene. In order to achieve a melt peak temperature below the lower claimed limit of 150°C, Figure 5.6 of Pasquini shows that more than 2 wt% ethylene would be needed as a comonomer. Figures 5.7 and 5.8 shows that a XCS value of above 4 wt% would be needed. However, such a polymer would be a copolymer and would have a flexural modulus of less than 1400 MPa (D2, Fig. 6.4). There can be no doubt that the virgin polypropylene polymer used in the examples of Duranel, with a flexural modulus of around 1500 MPa, must have had a melt peak temperature in the range 150 to 170°C.
Therefore, it is evident that the claimed XCS and melting peak temperature is inherently present in Duranel and would naturally flow from the PPH of Duranel.
The difference between Duranel and the claimed invention is that the melt index of the example is 0.3 g/10min (page 26), which is outside the claimed range. However, the broader disclosure teaches that the PPH has a melt index (MI2, same conditions at 230 oC and 2.16 kg) of at least 0.2 g/10min (page 25, last paragraph), which overlaps the claimed range, specifically at 15 g/10min. 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). Also see MPEP 2144.05 stating that when there is overlap with the claimed ranges and the prior art, a prima facie case of obviousness exists. Therefore, it would have been obvious to one of ordinary skill in the art at the time the invention was filed to select any amount within the disclosed ranges, including amounts within the scope of the instant claims.
As to claim 19, the composition has a MFR2 (referred to as MI2) of 3.2 g/10min. See example E2 in table 4.
As to claim 21, an antioxidant may be added in 100 to 2000 ppm (0.01 to 0.2 wt%), which is within the claimed range of less than 5 wt%. See page 25.
As to claims 23-24 and 33, the composition of claim 16 is formed by melt blending the components. See abstract, paragraph bridging pages 16-17 and examples.
As to claim 25, the MFR2 (MI2) of component A is determined before adding component B. See examples that report the melt index of the polymer.
As to claim 26-28 and 34, while the method does not explicitly disclose that the tensile modulus increases, the method is identical and the act of adding A to B would inherently increase the tensile modulus given that the same method of adding the same materials would obviously increase the tensile modulus in the same manner.
As to claim 29, articles of the composition are taught. See abstract, page 14 and examples.
As to claim 30, the article is a consumer good and houseware such as sheets, trays, appliances, bottles, luggage, etc.
Allowable Subject Matter
Claims 22 and 32 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Response to Arguments
Applicant’s arguments have been considered but are not persuasive.
Applicant argues that the amounts for A and B are outside the claimed range in the examples of Duranel.
In response, the broader disclosure (pages 3, 8 and 9) teaches amounts that overlap the claimed range as elucidated above. Specifically teaching that component A is present in 35 to 55 wt% of component A (page 3) and component B 45 to 65 wt%, which overlaps the claimed range.
Applicant argues that the amended claimed range has an attractive combination of properties (Impact strength and tensile at break), which are achieved via a result effective variable.
In response, the examiner disagrees with applicant’s contention of nonobviousness. Nothing in the examples shows surprising or unexpected results of the amened claimed range of 22 to 55 wt% for A and 45 to 80 wt% for B. As admitted by applicant, Duranel shows examples with 67 wt% A and 33 wt% B, which is just outside the claimed range. How is 22 to 55 wt% A unexpectedly or surprisingly better than 67 wt%? MPEP 716.02(e) states that the data should be compared to the closest prior art (Duranel in the instant case). In the instant case, applicant has not done so. Moreover, the originally filed specification makes no distinction between the claimed amounts as amended and the amounts of Duranel insofar as unexpected or surprising results.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MARK S KAUCHER whose telephone number is (571)270-7340. The examiner can normally be reached M-F 8-6 PM EST.
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/MARK S KAUCHER/Primary Examiner, Art Unit 1764