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 .
Applicant’s response and amendment to the claims filed on 5/8/2026 are acknowledged. The rejections and objections made in the previous office action are withdrawn in view of the amendment to the claims.
Claims 18, 20-28, 30-33 are pending.
Claim Objections
Claim 26 is objected to because of the following informalities:
Claim 26 recites polymer/ and it appears Applicant intended to recite polymer.
Appropriate correction is required.
Claim Rejections - 35 USC § 103
Claims 18, 20-28, 30-33 are rejected under 35 U.S.C. 103 as being unpatentable over Kalita et al. (US 2015/0210865, cited in IDS filed 5/2/22) in view of Chen et al. (US 2016/0090468).
Regarding claim 18: Kalita is directed to a flame retardant polymer composition produced by the following steps:
a) producing a nanohybrid flame retardant composition wherein the nanohybrid flame retardant composition comprises:
a composite architecture with nanosized metallic deposits including copper nanoparticles on inorganic crystals of ammonium polyphosphate and wherein the composite can also include a protecting barrier of silicon dioxide ([0013]-[0016]).
i) wherein the copper nanoparticles on ammonium polyphosphate particles are formed by creating a mixture by saturating ammonium polyphosphate particles with copper salt in an aqueous solution then reacting the mixture with a reducing agent to produce the nanohybrid flame retardant composition. Specifically, a water solution of APP, copper nitrate, and silver nitrate reducing agent were combined and water content adjusted to form a thick slurry paste and mixing continued until the metal salts were chemically reduced in Example 1 ([0032] Kalita). The aqueous alcohol solution contains 0% alcohol by weight. SiO2 can be added as a protecting barrier material ([0016] Kalita).
Further, “even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process.” See In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985). MPEP 2113
While a specific combination of metallic copper nanoparticles, ammonium polyphosphate, and SiO2 is not mentioned in a single composite, selection of such a composite is well within the skill level of one skilled in the art since Kalita discloses finite number of identified, predictable options and one of ordinary skill in the art could have pursued the known potential solutions with a reasonable expectation of success.
b) incorporating and reinforcing polymer or copolymer matrix with nanohybrid flame retardant compositions to form functionalized polymer suspension,
wherein said nanohybrid flame retardant composition exhibits temperature adaptive flame retardant behavior ([0019]).
Specifically, a complex comprising releasable phosphorous or nitrogen and a plurality of metallic deposits on the complex of crystals that are flame retardant and can be chemically and mechanically applied to polymer or copolymer textile substrates (see abstract and Claim 1 of Kalita).
The polymer includes a variety polymers including polyesters, polymeric components, paints, coatings etc. ([0021]), although a specific polymer of claim 18 is not specifically mentioned.
Chen is directed to a flame retardant composition wherein the composition comprises acrylonitrile-butadiene-styrene (ABS) copolymer, thermoplastic polyurethane (TPU), polyethylene (PE), polypropylene (PP), polystyrene (PS), polyvinyl chloride (PVC), nylon, polycarbonate(PC), and polyurethane ([0017] Chen).
One skilled in the art would have been motivated to have selected the polymers of Chen as the polymers of choice in Kalita since Kalita already mentions polymers in the composition, and Chen lists specific polymers that are commonly used with a flame retardant compositions. Selection of a specific polymer of Chen in Kalita is well within the skill level of one skilled in the art. Therefore, it would have been obvious to one skilled in the art at the time the invention was filed to have selected the polymers of Chen as the polymer of choice in Kalita to arrive at claim 18 of the present invention.
Regarding claim 20: Chen lists polymers of thermoplastic or thermosets of acrylonitrile-butadiene-styrene (ABS) copolymer, thermoplastic polyurethane (TPU), polyethylene (PE), polypropylene (PP), polystyrene (PS), polyvinyl chloride (PVC), polycarbonate(PC), and polyurethane ([0017] Chen).
Regarding claim 21: The process can be accomplished in semi-solid, i.e. can include a melt of nylon and the inorganic composite ([0023]).
Regarding claim 22: A solid textile fabric is disclosed throughout Kalita.
Regarding claim 23: Example 2 comprises adding a liquid homogeneous solution to resin A and applied as a coating to nylon ([0033] Kalita).
Regarding claim 24: Example 2 yields a composition having the treated nylon yielded durable flame resistance and greater than 99 .99% antimicrobial efficacy ([0033] Kalita).
Regarding claim 25: Kalita doesn’t mention any specific amounts of the copper, ammonium polyphosphate or silicon dioxide. However, Kalita teaches the inorganic barrier of titanium dioxide is added to decrease flammability and improve thermal stability ([0016] Kalita). Further, the copper is added such that is lowers the char layer temperature ([0019] Kalita). Finally, the ammonium polyphosphate (APP) is added to provide the char layer ([0019] Kalita).
Case law state “where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller 105 USPQ233, 255 (CCPA 1955). See also In re Waite 77 USPQ 586 (CCPA 1948); In re Scherl 70 USPQ 204 (CCPA 1946); In re Irmscher 66 USPQ 314 (CCPA 1945); In re Norman 66 USPQ 308 (CCPA 1945); In re Swenson 56 USPQ 372 (CCPA 1942); In re Sola 25 USPQ 433 (CCPA 1935); In re Dreyfus 24 USPQ 52 (CCPA 1934). Further, 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 MPEP 2144.05(II).
In the present case, the claimed amount of copper, APP and silicon dioxide is a matter of routing experimentation since the relative amounts result in the same advantages of the present invention, i.e. flammability, thermal stability, a char layer as well as antimicrobial properties (abstract Kalita). Therefore, it would have been obvious to one skilled in the art at the time the invention was filed to have optimized the relative amounts of copper, APP and silicon dioxide to arrive at the claimed amounts. Further, adjusting the amounts of copper, APP and silicon dioxide is well within the skill level of one skilled in the art. Therefore, it would have been obvious to one skilled in the art at the time the invention was filed to have selected an amount of copper, APP and silicon dioxide within the scope of claim 25.
Regarding claim 26: Kalita doesn’t mention relative amounts of polymer and flame retardant composition.
Chen discloses the amount of flame retardant composition comprises 5-35 parts per 100 parts of the composition. It follows the composition comprises 20-99 wt% polymer and 1-80 wt% of the nanohybrid flame retardant composition. Hence, one skilled in the art would have been motivated to have selected the amount of polymer and flame retardant composition in Kalita for improved mechanical strength ([0037] Chen). Therefore, it would have been obvious to one skilled in the art to have selected the amount taught in Chen as the relative amounts of polymer and flame retardant composition in Kalita.
Regarding claim 27: The metallic deposits are in the range of 5-100 nm ([0018]). While the range abuts the claimed range at 5 nm, a prima facie case of obviousness exists where the claimed ranges and prior art ranges do not overlap but are close enough that one skilled in the art would have expected them to have the same properties. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 227 USPQ 773 (Fed. Cir. 1985).
Regarding claim 28: Chen lists polymers of polypropylene.
Regarding claim 30-32: Chen lists polymers including polyvinyl chloride (PVC), polycarbonate(PC) and acrylonitrile-butadiene-styrene (ABS) copolymer ([0017] Chen).
Regarding claim 33: Particle sizes of the entire composite is 0.2-100 microns, while the particle size of the metallic, e.g. Cu particles is 5-100 nm. It follows the particle size of the ammonium polyphosphate-SiO2 particles is less than 0.2-100 microns and greater than 5-100 nm, and therefore at least overlaps the claimed 10 – 200 nm in size. A prima facie case of obviousness typically exists when the ranges of a claimed composition overlap the ranges disclosed in the prior art. In re Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003).
Response to Arguments
Applicant's arguments filed 5/8/2026 (herein “Remarks”) have been fully considered but they are not persuasive.
Applicant argues the combination of Chen and Kalita does not teach a flame retardant composition 1) producing a nanohybrid flame retardant composition "wherein the copper nanoparticles on ammonium polyphosphate-SiO2 particles are formed by creating a mixture by saturating ammonium polyphosphate-SiO2 particles with a copper salt in an aqueous alcohol solution then reacting the mixture with a reducing agent to produce the nanohybrid flame retardant composition" and wherein "the aqueous alcohol solution contains not more than 70% alcohol by weight"; and 2) "incorporating the nanohybrid flame retardant composition into one or more polymers to form a functionalized polymer suspension" as is now required by the claim.
This argument is not found persuasive since “even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process.” See In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985). MPEP 2113. In the present case, Kalita teaches the copper nanoparticles on ammonium polyphosphate particles are formed by creating a mixture by saturating ammonium polyphosphate particles with copper salt in an aqueous solution then reacting the mixture with a reducing agent to produce the nanohybrid flame retardant composition. Specifically, a water solution of APP, copper nitrate, and silver nitrate reducing agent were combined and water content adjusted to form a thick slurry paste and mixing continued until the metal salts were chemically reduced in Example 1 ([0032] Kalita). The aqueous alcohol solution contains 0% alcohol by weight. SiO2 can be added as a protecting barrier material ([0016] Kalita).
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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.
Contact Information
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ROBERT T BUTCHER whose telephone number is (571)270-3514. The examiner can normally be reached Telework M-F 9-5 Pacific Time Zone.
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/ROBERT T BUTCHER/Primary Examiner, Art Unit 1764
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