DETAILED ACTION
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
In response to the amendment filed 10/27/2025, the 35 U.S.C. 103 rejection of claim 8 has been withdrawn from the previous office action.
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.
Claims 1-5, 9-13, and 15-17 are rejected under 35 U.S.C. 103 as being unpatentable over Published Application US20130270295A1, hereafter Collias, in view of Published Application US20020090473A1, hereafter Lee.
Regarding claim 1, Collias discloses a method for manufacturing an injection-moulded article made of polyester ([0042] injection stretch blow molding), the method comprising:
a) providing at least one polymer material consisting of a recycled polyester in a weight proportion of up to 25% relative to the total weight of said at least one polymer material and a supplement of virgin polyester to form a 100% by weight of said at least one polymer material ([0025] up to 25% recycled PET blended into plastic package; [0038] plastic package can be PET), and
b) producing the injection-moulded article by injecting, into a mould, said at least one polymer material ([0042] injection stretch blow molding of resin),
wherein the weight proportion of the recycled polyester in the at least one polymer material is less than 100% ([0025] up to 25% recycled PET blended into plastic package; [0038] plastic package can be PET), and
the injection-moulded article is devoid of compatibilizing agent between the recycled polyester and the virgin polyester (Collias does not disclose a compatibilizing agent).
Although Collias discloses a weight proportion of up to 25% recycled polyester ([0025]) (and even up to 50% in an alternative embodiment), 25% is necessarily at least 10%. Where claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists (MPEP 2144.05 I).
Further it would also have been obvious to one of ordinary skill in the art, before the effective filing date of the present invention, to modify the invention of Collias to use at least 10% recycled polyester in order to increase sustainability of the product through the reduction of waste by using a greater amount of recycled material.
Collias is further silent on wherein an intrinsic viscosity of the recycled polyester is greater than 0.8 dl/g.
In the analogous art of injection molding of recycled and virgin plastics (abstract), Lee discloses that the preferred resins used preferably have low intrinsic viscosities of about 0.74-0.80 dl/g ([0144], inclusive of both virgin and recycled PET). Examiner emphasizes Lee’s use of the term ‘about’ when disclosing this range, noting that it implies intrinsic viscosities slightly above and slightly below the disclosed range are also included. Further, Lee discloses that the optimum temperature for crystallization may vary depending on multiple factors, including intrinsic viscosity ([0144]).
As the optimum temperature for crystallization is/are variable(s) that can be modified, among others, by adjusting the intrinsic viscosity of the recycled polyester, the intrinsic viscosity of the recycled polyester would have been considered a result effective variable by one having ordinary skill in the art before the effective filing date of the present invention. As such, without showing unexpected results, the claimed intrinsic viscosity of the recycled polyester cannot be considered critical. Accordingly, one of ordinary skill in the art, before the effective filing date of the present invention, would have optimized, by routine experimentation, the intrinsic viscosity of the recycled polyester in the invention of Collias to obtain the desired optimum temperature of crystallization (In re Boesch, 617 F.2d. 272, 205 USPQ 215 (CCPA 1980)), since it has been held that where the general conditions of the claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. (In re Aller, 105 USPQ 223).
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the present invention, to modify the method of Collias with the mixed virgin and recycled polyester having a viscosity of slightly greater than 0.8 as disclosed by Lee in order to optimize the temperature for crystallization, as suggested by Lee ([0144]), and further, because where the claimed ranges “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists (MPEP 2144.05 (I)). Further, the examiner notes that even if Lee had not used the term ‘about’ in reference to the disclosed intrinsic viscosity range, similarly, a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close (MPEP 2144.05 (I)).
Regarding claims 2 and 12, Collias is silent on wherein the polymer material is crystallizable, the process comprising crystallizing a portion of the injection-moulded article.
In the analogous art of plastic molding, Lee discloses wherein the polymer material is crystallizable, the process comprising crystallizing a portion of the injection-moulded article, wherein the crystallized part is the neck of the preform (0131] body of preform kept semicrystalline, [0138] neck is made crystalline).
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the present invention, to modify the method of Collias to make the uppermost portion of the preform crystalline while keeping the body of the preform semicrystalline, in order to make a preform that will blow-mold easily yet retain necessary dimensions in the crucial neck finish area during a hot-fill process, as suggested by Lee ([0131]).
Regarding claim 3, Lee further discloses that the preferred resins used preferably have low intrinsic viscosities of about 0.74-0.80 ([0144], abstract, implicitly inclusive of both virgin and recycled PET).
Regarding claim 4, Collias discloses wherein the recycled polyester is obtained by mechanical recycling, by chemical recycling, enzymatic recycling, or pyrolysis recycling ([0025] consumer recycling plant, industrial recycling source). Examiner considers the use of conventional recycling processes, for example chemical and mechanical recycling, to be implicitly disclosed in paragraph [0025] of Collias.
Regarding claim 5, Collias discloses wherein the weight proportion of the recycled polyester in the at least one polymer material is up to 25%, the weight proportion of the virgin polyester being at least 10% relative to the total weight of the at least one polymer material ([0025] up to 25% recycled PET blended into plastic package; [0038] plastic package can be PET).
Regarding claim 9, Collias discloses wherein the recycled polyester comprises less than 20 ppm of particles other than polyester (Collias does not disclose any required additives in the recycled polyester).
Regarding claim 10, Collias discloses wherein the recycled polyester is a polyethylene terephthalate ([0043] container may be formed from virgin and/or recycled PET).
Regarding claim 11, Collias discloses wherein the injection-moulded article is a preform of an aerosol bottle comprising a tubular body closed at one end and a neck (Fig 1, [0035] aerosol bottle with tubular body closed at one end and a neck).
Regarding claim 13, Collias discloses wherein the bottle is formed by stretch-blow-moulding a preform obtained by the method according to claim 1 ([0042] injection stretch blow molding to form preform and aerosol bottle).
Regarding claim 15, Collias discloses wherein the injection-molded article is a preform of an aerosol bottle ([0042] injection stretch blow molding to form preform and aerosol bottle).
Regarding claim 16, Collias discloses wherein the recycled polyester and the virgin polyester are each, a polyethylene terephthalate ([0043] container may be formed from virgin and/or recycled PET).
Regarding claim 17, modified Collias discloses wherein the crystallizing a portion of the injection-molded article comprises a heating device (Lee, [0138] heating apparatus placed in neck portion of mold to maintain the higher temperature (slower cooling) needed to promote crystallinity).
Modified Collias is silent on the heating device having an infrared radiation lamp.
However, Lee discloses the use of an IR lamp for other heating steps ([0054], [0057] IR lamp drying).
It would have been prima facie obvious to one of ordinary skill in the art, before the effective filing date of the present invention, to select the IR lamp disclosed by Lee for the heating device disclosed by Lee since a simple substitution of one known element for another yields predictable results to one of ordinary skill in the art (MPEP 2143 (I) (B)).
Response to Arguments
Applicant's arguments filed 10 have been fully considered but they are not persuasive.
In response to applicant’s argument regarding claim 1 on page 6 of applicant’s remarks that Lee specifies that the resins of PET may have an intrinsic viscosity comprised between 0.74 and 0.80, but not a polymer made of a blend of recycled polyester and virgin polyester in which the intrinsic viscosity of the recycled polyester is greater than or equal to 0.8 dl/g, as in amended claim 1, the examiner notes that this argument is rendered moot, since such a blend of recycled polyester and virgin polyester is not claimed. Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993). The claim requires virgin and recycled polyester to be provided, where the recycled polyester has an intrinsic viscosity greater than 0.8 dl/g.
In response to applicant’s argument regarding claim 1 on page 6 of applicant’s remarks that the one skilled in the art seeking for an optimum intrinsic viscosity of the recycled polyester in a recycled polyester/virgin polyester blend could not learn the value recited in claim 1 from a document which does not disclose such a blend, the examiner notes as stated in the previous response to argument above that such a blend is not claimed, thus the argument is rendered moot.
In response to applicant’s argument regarding claim 1 on page 6 of applicant’s remarks that the mere silence of prior art on a characteristic is not a sufficient basis to establish an exclusion or presume the absence of a component, the examiner notes that the claim requires the article to be devoid of compatibilizing agent, and it is absent in the disclosure of Collias. One skilled in the art would be required to modify the invention of Collias for such a compatibilizing agent to be present. Thus, the absence of a compatibilizing agent in the disclosure of Collias is established.
In response to applicant’s argument regarding claim 1 on page 7 of applicant’s remarks that Lee encourages the use of a compatibility agent in a mixture of polymers, and in view of this, the skilled in the art would be motivated to use a compatibilizing agent in the mixture of polymers of Collias, the examiner disagrees, and notes the test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981). In this case, the rejection relied on Lee only for the intrinsic viscosity of recycled PET, and the modification proposed by applicant was not made. Further, the examiner notes that the section of Lee cited by applicant says that the blends ‘may’ incorporate the compatibilizing agent, which is an optional term, so in either case it is not required nor did the rejection rely upon the inclusion of the compatibilizing agent.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to TIMOTHY HEMINGWAY whose telephone number is (571)272-0235. The examiner can normally be reached M-Th 6-4.
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/T.G.H./Examiner, Art Unit 1754
/SUSAN D LEONG/ Supervisory Patent Examiner, Art Unit 1754