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 .
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 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.
Claims 1-11 are pending. Applicant’s previous election of claims 1-8 still applies and claims 9-11 remain withdrawn.
Response to Amendment
Applicant’s response of 08/27/25 has been entered. Applicant’s remarks are not persuasive and the previous rejection(s) are maintained.
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 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.
If this application currently names joint inventors: in considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
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.
The factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
When something is indicated as being “obvious” this should be taken as shorthand for “prima facie obvious to one having ordinary skill in the art to which the claimed invention pertains before the effective filing date of the invention”.
When a range is indicated as overlapping a claimed range, unless otherwise noted, this should be taken as short hand to indicate that the claimed range is obvious in view of the overlapping range in the prior art as set forth in MPEP 2144.05, in the case where the claimed range “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 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Claim(s) 1-8 is/are rejected under 35 U.S.C. 103 as being unpatentable over Chaudhary (WO 2019/005439 cited by Applicant, see US 2020/0207972) in view of Lee et al. (U.S. 2005-0049335).
Regarding claims 1-8, Chaudhary teaches a polymeric composition with an overlapping amount (as in claim 6) of silane functionalized polyolefin, halogenated flame retardant (amount overlapping claim 5), zinc flame retardant (zinc borate, inherently synergist, as in claim 7), condensation catalyst (overlapping the amount of claim 2), and an overlapping amount of a second polyolefin as in claim 3 (see abstract, claim 1, [0080]-[0088], page 14, table 4, examples 21 and 22, showing that the flame retardant and catalyst are included in a masterbatch including about 15wt% (relative to the overall composition) of an olefin (LLDPE 1648) having a crystallinity in the claimed range, see page 11, table 1, for crystallinity). Using an LLDPE masterbatch for the additives as explained above, would have been obvious to apply to Chaudhary in general, not just in the examples, because using an additive masterbatch is known to one of ordinary skill in the art as a suitable way to incorporate/disperse additives into a larger polymer composition. No antimony trioxide is required.
Chaudhary does not disclose the particular type of halogenated flame retardant as claimed however Lee is directed to a similar polymer composition and discloses that the claimed type of halogenated flame retardant as in claim 4 and inherently having the claimed properties is a preferred type of flame retardant and therefore would be obvious to use in Chaundhary as the halogenated flame retardant (see abstract, [0032]). Having used such a halogenated flame retardant and zinc borate at the wt% amounts from Chaundhary would result in a ratio overlapping claim 8.
Response to Arguments
Applicant’s remarks are not persuasive.
Applicant argues that antimony trioxide is preferred in the cited references but the references are not limited to the preferred embodiments. The statement that antimony trioxide is not required is not unsupported because it is supported by the prior art, at best, preferring the compound (not requiring it). It is also not merely “conclusory” because the lack of a requirement for the excluded ingredient is sufficient to render obvious the claim limitation precluding such an ingredient. As explained above, prior art is not limited to its preferred embodiments and therefore, when an ingredient is optional/merely preferred, the prior art renders obvious the omission of that ingredient.
Applicant then refers to a “typical” (i.e., not required) teaching of Chaudhary which does not limit the reference in terms of the Zn:Br ratio. The broader amounts disclosed for each of the Zn and Br containing ingredients includes amounts that provide a ratio overlapping the claimed range and therefore properly render the range prima facie obvious.
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 extension fee 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.
References cited in any corresponding foreign applications have been considered but would be cumulative to the above. Any inquiry concerning this communication or earlier communications from the examiner should be directed to MICHAEL B NELSON whose direct telephone number is (571)272-9886 and whose direct fax number is (571)273-9886 and whose email address is Michael.Nelson@USPTO.GOV. The examiner can normally be reached on Mon-Sat, 7am - 7pm.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Callie Shosho can be reached on 571-272-1123. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300 (faxes sent to this number will take longer to reach the examiner than faxes sent to the direct fax number above).
Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see http://pair-direct.uspto.gov. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/MICHAEL B NELSON/
Primary Examiner, Art Unit 1787
Prosecution Insights