DETAILED ACTION
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 6/2/2026 has been entered.
Claim(s) 1-22 are pending in the application.
Claim(s) 9-14 are withdrawn due to a previous restriction requirement.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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.
Claims 1, 4-8, 15-17, and 19-21 are rejected under 35 U.S.C. 103 as being unpatentable over US2002/0013415 to Mechelaere et al.
Regarding Claim 1, 5-8, 15, 17, and 19-20, Mechelaere teaches a polyolefin composition [title] comprising 30-80% of a random copolymer of propylene with ethylene B) [abstract] comprising random copolymer B1) of propylene and 0.5-6% ethylene and random copolymer B2) of propylene and up to 10% ethylene [0025] (reading on 1-10 total C2 content of A) of claims 1 and 20) wherein B1 and B2 are obtained directly in a sequential polymerization process [0056] (reading on copolymer). Mechelaere teaches the copolymer fractions B1 and B2 have a melting point of 120°C or more [0056] (reading on a melting point of 110-140°C), a MFR of 0.5 g/10 min or more [0056] (reading on 0.5-4.0 g/10min) and a fraction soluble in xylene at 25°C less than 5.5% by weight [0062] (reading on XCS of 1.0-4.5 wt% and therefore all limitations of component A) of claims 1, 7, 8, 15, and 19). Mechelaere further teaches the composition comprises 20-50% of LDPE [abstract] having a density of 918 - 925 kg/m3 [0040] (reading on density of 915-922 kg/m3 of B)) and an MFR of 0.5-15 g/10 min [0041] (reading on MFR of 0.9-20 g/10 min and all limitations of component B) of claims 1, 5, 7, 8, and 19). Mechelaere also teaches the addition of not more than 10000 ppm (reasonably calculated as 1 wt%) nucleating agent [0057] thereby reasonably reading on up to 5.0 wt% of an additive such as a nucleating agent of claims 1, 6, 8, and 17.
Though the prior art A), B) and C) ranges is not identical to the claimed ranges (70.0-95.0 wt%, 5.0-30.0 wt%, and up to 5.0 wt% respectively), it does overlap. It has been held that, where the claimed ranges overlap or lie inside ranges disclosed by the prior art, a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPG 90 (CCPA 1976) (MPEP 2144.05).
Regarding Claims 4 and 16, Mechelaere teaches the polymer composition according to claim 1 as set forth above and incorporated herein by reference.
Mechelaere does not expressly teach the instantly claimed components, such that the instantly claimed C2C3 random copolymer is obtainable in the presence of a metallocene catalyst, specifically the metallocene catalyst set forth in instant claim 16. However, [p]roducts of identical chemical composition cannot have mutually exclusive properties." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical C2C3 random copolymer, the properties applicant discloses and/or claims are necessarily present. Id. As detailed in the rejection of Claim 1, Mechelaere teaches a C2C3 random copolymer of identical structure. Therefore, the properties applicant claims must necessarily be present, i.e. that the C2C3 random copolymer suggested by the prior art is also obtainable in the presence of the metallocene catalyst set forth in instant claim 16.
Regarding Claim 21, Mechelaere teaches the polymer composition according to claim 1 wherein copolymers B1 and B2 have a melting point of 120°C or more [0056].
Though the prior art melting temperature range is not identical to the claimed range (110-120°C), it does overlap. It has been held that, where the claimed ranges overlap or lie inside ranges disclosed by the prior art, a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPG 90 (CCPA 1976) (MPEP 2144.05)
Claims 1-8, 15-20, and 22 are rejected under 35 U.S.C. 103 as being unpatentable over US2016/0024288 to Hedesiu et al. in view of EP1849826 to Grein et al.
Regarding Claims 1, 5-8, 15, 17-19, and 22, Hedesiu teaches a propylene random copolymer composition [title] comprising 90.0-99.75 wt% propylene random copolymer (A) [0043] wherein the comonomer is preferably ethylene [0028] in an amount of 4.5-9.5 mol% [0036] (i.e., C2C3 random copolymer of 1-10 C2 content of claim 1 and 15); having a low molecular weight fraction with an MFR of 0.2-3.0 g/10 min [0031] (i.e., MFR of 0.5-4.0 g/10 min), and a xylene cold insoluble fraction of at least 90 wt% [0017] (therefore corresponding to less than 10 wt% of XCS fraction) wherein the polypropylene composition has a melting temperature of 125-170°C [0068] thereby reading on the component (A) limitations of claims 1, 7, 8, 15, 18, and 19. Although the temperature range of 150-170°C corresponds to the polypropylene composition rather than specifically the copolymer, one of ordinary skill in the art would expect the melting point of the propylene ethylene copolymer to fall within the instantly claimed melting point range of 110-140°C as the propylene ethylene copolymer is the only polymer in the polypropylene composition. Hedesiu also teaches the addition of not more than 10000 ppm (reasonably calculated as 1 wt%) nucleating agent [0057] thereby reasonably reading on up to 5.0 wt% of an additive such as a nucleating agent of claims 1, 6, 8, 17, and 18.
Hedesiu does not teach 5.0-30.0 wt% of component B).
However, Grein teaches a composition comprising a heterophasic polypropylene copolymer and 2-25 wt% of an ethylene homopolymer having a MFR of more than 10 g/10min and a density of less than 0.930 g/cm3 [abstract, Grein] such as LDPE grade CA9150 [Grein, 0037] that is the same commercially available LDPE used in the inventive examples of the instant application [0100] thereby reading on the limitations of component (B) in claims 1, 5, 7, 8, 18, 19 and 22. Grein and Hedesiu are analogous art as they are from the same field of endeavor, namely heterophasic polypropylene compositions.
Before the effective filing date of the instantly claimed invention, it would have been obvious to a person of ordinary skill in the art to add Grein’s LDPE into Hedesiu, thereby arriving at the claimed invention.
The motivation to modify Hedesiu with Grein is the addition of ethylene homopolymer into a polypropylene composition comprising a heterophasic polypropylene copolymer provides high flowability, improved impact strength [Grein, 0004].
Though the prior art component (A) range is not identical to the claimed ranges of claims 1, 8, and 18, it does overlap. It has been held that, where the claimed ranges overlap or lie inside ranges disclosed by the prior art, a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPG 90 (CCPA 1976) (MPEP 2144.05).
Regarding Claim 2, Hedesiu in view of Grein teach the polymer composition according to claim 1 wherein the propylene random copolymer comprises up to 50% of a low molecular weight fraction [0038] with a comonomer content of 1.0-6.0 mol% [0033] wherein the copolymer is ethylene [0028] and has a MFR of 0.2-3.0 g/10min [0031] (thereby reasonably reading on a1) and a minimum of 50 wt% of a high molecular weight fraction [0038] with a comonomer content of 5.5-12 mol% [0034] wherein the copolymer is ethylene [0028] and has a MFR of lower than 0.2-3.0 g/10min [0031] (thereby reasonably reading on a2).
Though the prior art a1 range, a2 range, and a2 MFR range is not identical to the claimed range (50.0-85.0 wt%, 15.0-50.0 wt%, and 0.1-3.0 g/10min), it does overlap. It has been held that, where the claimed ranges overlap or lie inside ranges disclosed by the prior art, a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPG 90 (CCPA 1976) (MPEP 2144.05).
Regarding Claim 3, Hedesiu in view of Grein teach the polymer composition according to claim 1 wherein the propylene random compolymer has comonomer units of preferably only ethylene [0028].
Regarding Claims 4 and 16, Hedesiu in view of Grein teach the polymer composition according to claim 1 that can be produced by a metallocene catalyst [0137].
Hedesiu in view of Grein does not expressly teach the instantly claimed components, such that the instantly claimed C2C3 random copolymer is obtainable in the presence of the metallocene catalyst set forth in instant claim 16. However, [p]roducts of identical chemical composition cannot have mutually exclusive properties." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical C2C3 random copolymer, the properties applicant discloses and/or claims are necessarily present. Id. As detailed in the rejection of Claim 1, Hedesiu, when modified with Grein, teaches a C2C3 random copolymer of identical structure. Therefore, the properties applicant claims must necessarily be present, i.e. that the C2C3 random copolymer suggested by the prior art is also obtainable in the presence of the metallocene catalyst set forth in instant claim 16.
Regarding Claim 20, Hedesiu in view of Grein teach the polymer composition according to claim 1 wherein the comonomer content of the propylene random copolymer is preferably ethylene [0028] in an amount of 4.5-9.5 mol% [0036].
Though the prior art range is not identical to the claimed range (1-4.9 wt%), it does overlap. It has been held that, where the claimed ranges overlap or lie inside ranges disclosed by the prior art, a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPG 90 (CCPA 1976) (MPEP 2144.05).
Response to Arguments
Applicant's arguments filed 6/2/2026 have been fully considered but they are not persuasive.
Applicant states the newly amended limitations of claim 1 are not disclosed or suggested by Wang or Schedenig, whether viewed alone or in combination; Applicant states new claims 20-22 are further patentable over the combination of Wang and Schedenig; Applicant states nothing in Schedenig implies that PP and LDPE alone offers any mechanical benefit at all.
Applicant’s arguments with respect to claim 1have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument. Examiner draws attention to both updated rejections above over (1) Hedesiu in view of Grein and over (2) Mechelaere.
Applicant states the composition as presently claimed is unexpectedly advantageous using the specific C2C3 random copolymer and specific LDPE that give low haze and good mechanical and sealing properties.
In response, the office acknowledges the single inventive example has a lower Haze value than the comparative examples. However, to establish unexpected results over a claimed range, applicants should compare a sufficient number of tests both inside and outside the claimed range to show the criticality of the claimed range MPEP 716.02(d)II. Moreover, this data is not commensurate in scope with the claim language. For example, the language of claim 1 is drawn to 50-30 wt% of an LPDE with a dneisty of 915-922 kg/m3 and a MFR of 0.9-20.0 g/10 min, wherein inventive examples only comprise 10 parts of the specific commercially available product CA8200 [table 1] that has a density of 920 kg/m3 and a MFR of 7.0 g/10 min [0129]. Furthermore, claim 1 is drawn to 70-95 wt% of comonent (A) with 5 different ranges, wherein inventive examples only has one copolymer (A) [table 2]. As such, there is no evidence that all claimed components (A) and (B) in the amounts set forth in instant claim 1 would have the same unexpected results.
For these reasons, Applicant's arguments are not persuasive.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DEVIN MITCHELL DARLING whose telephone number is (703)756-5411. The examiner can normally be reached Monday - Friday 7:30am - 5:00pm.
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/DEVIN MITCHELL DARLING/Examiner, Art Unit 1764
/ARRIE L REUTHER/Supervisory Primary Examiner, Art Unit 1764
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