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 .
Response to Amendment
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Any rejections and/or objections made in the previous Office action and not repeated below are hereby withdrawn.
No new ground(s) of rejection are presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a).
Claim Rejections - 35 USC § 103
Claim(s) 1 and 16 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kikuchi (WO 2017/141888 A1) in view of Bowman (US 2007/0010592 A1). As the cited WO document is in a non-English language, the English equivalent, US 2019/0136003 A1 has been utilized in place of the WO document. All citations are made with respect to the above-mentioned US document.
Regarding Claims 1 and 16, Kikuchi teaches foamable polymer compositions comprising polystyrene and foams formed therefrom (Abstract). Examples are taught where the blowing agent used is a combination of hydrofluoroolefin consisting of HFO-1234ze, branched hydrocarbon blowing agent consisting of isobutane, and dimethyl ether or ethyl chloride co-blowing agent (Table 1). Embodiments are taught where 1.5-2.5 pbw of HFO-1234ze is used relative to 100 g polystyrene (Table 1), equivalent to 0.013-0.022 mol HFO per 100 g polystyrene. Water is optional (see for instance example E6). The total amount of blowing agent used can range widely from 2-15 pbw relative to 100 pbw polystyrene (¶ 46), which is suggestive of overlapping ranges given polystyrene constitutes the dominant fraction of non-blowing agent components (e.g. in E1 polystyrene is present at 100 pbw / 110 pbw non-blowing agent components = 91 wt%). It would have been obvious to one of ordinary skill in the art to use a range within the claimed range because a reference may be relied upon for all that it would have reasonably suggested to one having ordinary skill the art and Kikuchi suggests the claimed range. A person of ordinary skill would be motivated to use the claimed amount, based on the teachings of Kikuchi. See MPEP 2123.
Kikuchi differs from the subject matter claimed in that HFC is not described as co-blowing agent. Kikuchi teaches a wide variety of different co-blowing agents, inclusive of alkyl halides (¶ 42-43). Bowman also pertains to blowing agent combinations involving HFO-1234ze for polystyrene foams (Abstract; ¶ 70; Examples) and notes ethers such as dimethyl ether and alkyl halides such as HFCs can be used as co-blowing agents (¶ 49-59). It would have been obvious to one of ordinary skill in the art to substitute co-blowing agents such as dimethyl ether with HFC co-blowing agents, thereby predictably affording workable blowing agent mixtures for the creation of polystyrene foams.
With respect to the relative quantities of HFO, hydrocarbon, and HFC, Kikuchi teaches generally 0.05-0.40 mol of HFO and 0.10-0.40 mol hydrocarbon is used (Abstract) and Bowman indicates it was generally known in the art HFC can be used in various amounts such as 5-80 wt% when used as co-blowing agent (¶ 66). While the cited art does not describe particular blowing agent compositions with amounts falling squarely within the ranges claimed, Kikuchi clearly indicates the amount of alkane should be selected in order to achieve a desired degree of heat insulation property while avoiding negatively affecting flame retardancy (¶ 52, 58) and the amount of HFO should be selected in order to achieve desired heat insulation characteristics while avoiding impairments in moldability (¶ 53). Kickuchi teaches additional foaming agents provide for plasticizing effects/auxiliary foaming effects that ultimately reduce extrusion pressure and allows foam to be stably produced (¶ 42). Accordingly, Kikuchi clearly indicates the relative quantities of blowing agents used are result effective variables subject to routine optimization by one of ordinary skill in the art because changing them will clearly affect the type of product obtained. See MPEP 2144.05(II). Case law holds that “discovery of an optimum value of a result effective variable in a known process is ordinarily within the skill of the art.” See In re Boesch, 617 F.2d 272, 205 USPQ 215 (CCPA 1980). In view of this, it would have been obvious to one of ordinary skill in the art to discover workable or optimal quantities of HFO, alkane, and co-blowing agent within the scope of the present claims by routine experimentation so as to produce desirable heat insulation, flame retardancy, moldability, and plasticizing effects within the resulting foams.
Response to Arguments
Applicant's arguments filed 1/16/2026 have been fully considered but they are not persuasive.
Applicant generally argues the combination of references is predicated on hindsight and would render Kikichi unsuitable for its stated purposes. Specifically, Applicant argues Kikuchi essentially indicates that dimethyl ether, ethyl chloride, and/or methyl chloride must be used so as to enhance moldability and not affect flame retardancy much. Applicant urges Kikuchi is not a generic HFO/hydrocarbon/”other foaming agent” disclosure.
In response, Kikuchi indicates “another foaming agent” generically can be used to bring about plasticizing effects (i.e. moldability) and/or auxiliary foaming effect (¶ 42). While Applicant urges there isn’t a generic HFO/hydrocarbon/”other foaming agent” disclosure, ¶ 42-44 indicate otherwise where it is stated:
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Clearly, Kikuchi indicates a wide range of blowing agents are suitable whereby dimethyl ether, ethyl chloride, and methyl chloride are only “particularly preferable” “in “one or more embodiments” (¶ 44). Thus, it is concluded that Kikuchi is neither restricted to these three blowing agents, nor would Kikuchi’s foams be rendered unsuitable for its stated purpose by use of others.
Further with respect to Applicant’s argumentation regarding flame retardancy/moldability, all of dimethyl ether, ethyl chloride, and methyl chloride are known to be highly flammable blowing agents (see attached references). In fact, studies have shown dimethyl ether to be substantially more flammable than Bowman’s HFC blowing agent (see Zhang at Table 4). When Kikuchi is indicating the species dimethyl ether, ethyl chloride, and methyl chloride should have a large effect on moldability and “not affect flame retardancy much”, the reference is not conveying a requirement that additional blowing agents be low or non-flammable; rather, when read in context, Kikuchi is indicating HFO (low-flammable) and hydrocarbon (highly flammable) blowing agents need be present in specified proportions/amounts to achieve a degree of flame retardancy (¶ 56, 57-59) and the other blowing agents need be added in proportions that give the desired plasticizing effects while still keeping the flame retardancy sufficiently low. See for instance the discussion of dimethyl ether/ethyl chloride/methyl chloride concentrations at ¶ 45 where insufficient quantities give deficient moldability and excess quantities impair flame retardancy (i.e. they begin to “affect flame retardancy much”) (¶ 45). Thus, when read in its proper context, ¶ 59 cited within Applicant’s arguments simply reiterate what was already discussed in ¶ 45, in some embodiments the three blowing agents can be used in quantities to have a large effect on enhancement of foamability/moldability while not affecting flame retardancy much. This also corroborates with how a person of ordinary skill in the art of foamed plastics would read the reference. For instance, reading a requirement that a blowing agent such a dimethyl ether should be non-flammable does not make logical sense since the blowing agent itself is intrinsically highly flammable.
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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/STEPHEN E RIETH/Primary Examiner, Art Unit 1759