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 .
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 12/12/2025 has been entered.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 10-21 and 23-25 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. The limitation “the
one or more impact modifiers having a melting temperature within 5°C of a melting temperature of the polyoxymethylene polymer” is new matter. The original specification only support “a melting temperature within 5°C” for “an impact modifier” [0067]. The original specification only teaches the temperature limitation for a single impact modifier. The original specification does not teach the temperature limitation for a combination of impact modifiers, such as a thermoplastic copolyester and a thermoplastic polyurethane.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 23 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. Claim 10 already requires a thermoplastic copolyester elastomer. Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claim(s) 10-12, 15-21, 23 and 25 is/are rejected under 35 U.S.C. 103 as being unpatentable over Klug et al. (2009/0220719) in view of, Junger et al. (2013/0323451) and Kurz et al. (DE 102005044515A1).
Regarding claims 10-12, 15, 18, 23 and 25: Klug et al. teach a container for fuels comprising a seamless rotational molded housing defining an opening configured to receive a fluid, the housing including an interior enclosure surrounded by a wall [0015, 0020], wherein the wall is made from a composition comprising polyoxymethylene with a melt flow of 1.3 cm3/10 min, 10% thermoplastic polyurethane elastomer and 10% copolyester elastomer, and wherein the wall of the housing is made from a single layer, and has a normalized permeation of 1.4 g . mm/m2 day [Examples; 0035; Table]. Klug et al. teach that the copolyester elastomer is a block copolymer of polybutylene terephthalate and polyether segments with a melting temperature of 170°C [0029-0031; Examples].
Klug et al. fail to teach a melting temperature for the polyoxymethylene
However, Kurz et al. teach in an analogous composition that a polyoxymethylene polymer has a melting point of at least 150°C [0026], and a thermoplastic polyester elastomer has a melting point of 171°C [0097].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use a melting temperature of at least 150°C as taught by Kurz et al. as the melting temperature of the polyoxymethylene of Klug et al. to use an art testing melting point.
A polyoxymethylene with a melting temperature of at least 150°C and a thermoplastic copolyester with a melting point of 170°C provides an overlapping range of the claimed difference between the melting temperature of polyoxymethylene polymer and the impact modifier, and an overlapping range for claim 25.
The subject matter as a whole would have been obvious to one having ordinary skill in the art prior to the effective filing date of the claimed invention, since it has been held that choosing the overlapping portion, of the range taught in the prior art and the range claimed by the applicant, has been held to be a prima facie case of obviousness, see In re Malagari, 182 USPQ 549, In re Geisler 43 USPQ2d 1365 (Fed. Cir. 1997); In re Woodruff, 16 USPQ2d 1934 (CCPA 1976) and MPEP 2144.05.
Klug et al. fail to specify a terminal hydroxyl group.
However, Junger et al. teach that a polyoxymethylene polymer for molded articles to be used with fuel, that the polyoxymethylene preferably has a terminal hydroxyl group content of 5 mmol/kg [0020].
Since Klug et al. is silent on the terminal hydroxyl group content it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use a terminal hydroxyl group content of 5 mmol/kg as taught by Junger et al. as the terminal hydroxyl group content in the polyoxymethylene polymer of Klug et al. to use an art tested amount for molded articles to be used with fuel.
Regarding claims 16 and 19: Since the container is the same as claimed it will possess the claimed mutiaxial impact strength and stabilization parameter. The courts have stated that a chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. In re Spada, 911 F.2d 705, 15 USPQ2d 1655, (Fed. Cir. 1990). See also In re Best, 562 F.2d 1252, 195 USPQ 430, (CCPA 1977). "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." Further, if it is the applicant's position that this would not be the case, evidence would need to be provided to support the applicant's position.
Regarding claim 20: Klug et al. teach a fuel tank [0002].
Regarding claim 21: Klug et al. teach a container free of any nitrogen-containing formaldehyde scavengers [Examples].
Claim(s) 22 is/are rejected under 35 U.S.C. 103 as being unpatentable over Klug et al. (2009/0220719) in view of Kurz et al. (DE 102005044515A1).
Regarding claim 22: Klug et al. teach a container for fuels comprising a seamless rotational molded housing defining an opening configured to receive a fluid, the housing including an interior enclosure surrounded by a wall [0015, 0020], wherein the wall is made from a composition comprising polyoxymethylene with a melt flow of 1.3 cm3/10 min, 10% thermoplastic polyurethane elastomer and 10% copolyester elastomer, and wherein the wall of the housing is made from a single layer, and has a normalized permeation of 1.4 g . mm/m2 day [Examples; 0035; Table]. Klug et al. teach that the copolyester elastomer is a block copolymer of polybutylene terephthalate and polyether segments [0029-0031; Examples].
Klug et al. fail to teach the particle size limitation of the polyoxymethylene polymer.
However, Kurz et al. teach that in a polyoxymethylene polymer composition for rotational molding that grinding the composition to a powder wherein 90% of the particles having a grain size of less than 600 microns [0087] and a D50 of 200 to 350 microns [0083] provides smooth surfaces and good impact strength [0008].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use the particle size distribution of Kurz et al. as the particle size distribution for the polyoxymethylene polymer particle size distribution of Klug et al. to provide smooth surfaces and good impact strength.
Claim(s) 24 is/are rejected under 35 U.S.C. 103 as being unpatentable over Klug et al. (2009/0220719), Junger et al. (2013/0323451) and Kurz et al. (DE 102005044515A1) as applied to claim 10 above further in view of Larson et al. (2012/0091013).
Klug et al. fail to each a nucleating agent.
However, Larson et al. teach 0.1 to 2 wt% of a nucleating agent to an analogous polyoxymethylene composition [0070-0071].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to add 0.1 to 2 wt% of a nucleating agent as taught by Larson et al. to the polyoxymethylene composition of Klug et al. to improve its crystallization properties.
Response to Arguments
Applicant's arguments filed 12/12/2025 have been fully considered but they are not persuasive.
The Applicant has alleged unexpected results of using a thermoplastic copolyester elastomer comprising a block copolymer of polybutylene terephthalate and polyether segments. This is not persuasive for the following reasons:
The claims are not commensurate in scope with the data provided.
The Applicant has not demonstrated unexpected results over the closest prior art, which is Klug et al. (2009/0220719). Klug et al. teach that the copolyester elastomer is a block copolymer of polybutylene terephthalate and polyether segments [0029-0031; Examples]. The Example polymer, Riteflex 640, is the claimed copolymer as demonstrated by Wang et al. (7,163,522) (column 12, lines 36-38).
The Applicant has alleged that two articles for fuels are as different as a motorcycle and a bicycle. It is a false comparison. The art is analogous, and the use of the terminal hydroxyl group content is obvious.
The Applicant has made the argument that the temperature range spans 21 degrees. This is not persuasive because the range is overlapping, and the Applicant has not established the criticality of the range. The subject matter as a whole would have been obvious to one having ordinary skill in the art prior to the effective filing date of the claimed invention, since it has been held that choosing the overlapping portion, of the range taught in the prior art and the range claimed by the applicant, has been held to be a prima facie case of obviousness, see In re Malagari, 182 USPQ 549, In re Geisler 43 USPQ2d 1365 (Fed. Cir. 1997); In re Woodruff, 16 USPQ2d 1934 (CCPA 1976) and MPEP 2144.05.
The Applicant has not proved any remarks regarding the rejection of claim 22 under 35 U.S.C. 103 as being unpatentable over Klug et al. (2009/0220719) in view of Kurz et al. (DE 102005044515A1).
Contact Information
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JOHN USELDING whose telephone number is (571)270-5463. The examiner can normally be reached on M-F 8am to 6:30pm.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Joseph Del Sole can be reached on 571-272-1130. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JOHN E USELDING/ Primary Examiner, Art Unit 1763