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 .
Claim Rejections - 35 USC § 103
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 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 non-obviousness.
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.
Claims 1-16 and 19 are rejected under 35 U.S.C. 103 as being unpatentable over BONNET et al. (U.S. Publication No. 2010/0298487, hereinafter BONNET).
Regarding claims 1, 3, 6, and 7, BONNET teaches a processing aid comprising at least one heterogenous PVDF (component A) which is a copolymer of VDF and at least one comonomer of VDF comprising at least 75 wt% (Abstract; [0014-0015 and 0021]) and has a viscosity ranging from 100 Pa.s to 10,000 Pa.s which is measured at 230oC at a shear gradient of 100 s-1 using a capillary rheometer [0049].
At least one interfacial agent (component B) (Abstract; [0016]) wherein the interfacial agent includes a) silicones; b) silicone-polyether copolymers; c) aliphatic polyesters; d) aromatic polyesters, e) polyethers, f) amine oxides; g) carboxylic acids; h) fatty acid esters [0050-0058]. The interfacial agent (component B) is to stabilize the fluoropolymer (component A) [0059].
However, BONNET does not specifically teach a PVDF copolymer having a melt viscosity of between greater than 25 kP and less than 45 kP, measured by capillary rheometry at 232oC at a shear gradient of 100 s-1.
Given BONNET teaches a processing aid comprising at least one heterogenous PVDF (component A) which is a copolymer of VDF and at least one comonomer of VDF comprising at least 75 wt% (Abstract; [0014-0015 and 0021]) and has a viscosity ranging from 100 Pas to 10,000 Pas which is measured at 230oC at a shear gradient of 100 s-1 using a capillary rheometer [0049] (when converted is 1 kP to 100 kP), it would have been obvious to a person of ordinary skill in the art at the time the invention was made to reasonably expect that the PVDF would function similarly to the claimed PVDF.
The courts have held that “a compound and all its properties are mutually inseparable,” In re Papesch, 315F.2d 381, 137 USPQ 42, 51 (CCPA 1963). Further, attention is drawn to MPEP 2112.01, which states that “products of identical chemical composition cannot have mutually exclusive properties. 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, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990).
Furthermore, BONNET teaches the processing aid comprises PVDF (component A) which is a copolymer of VDF and at least one comonomer of VDF comprising at least 75 wt% (Abstract; [0014-0015 and 0021]) and has a viscosity ranging from 100 Pa.s to 10,000 Pa.s (when converted from Pa.s to kP is from 1 kP to 100 kP which is within the claimed range of greater than 25 kP and less than 45 kP (claim 1), at or above 26 kP (claim 6), and between above 30 kP and below 45 kP (claim 7)), it would have been obvious to one of ordinary skill in the art to select the portion of the prior art's range which is within the range of applicant's claims because it has been held to be obvious to select a value in a known range by optimization for the best results. As to optimization results, a patent will not be granted based upon the optimization of result effective variables when the optimization is obtained through routine experimentation unless there is a showing of unexpected results which properly rebuts the prima facie case of obviousness. See In re Boesch, 627 F.2d 272,276,205 USPQ 215,219 (CCPA 1980). See also In re Woodruff 919 F.2d 1575, 1578,16 USPQ2d 1934, 1936-37 (Fed. Cir. 1990), and In re AIIer, 220 F.2d 454,456,105 USPQ 233,235 (CCPA 1955). In addition, a prima facie case of obviousness exists because the claimed ranges "overlap or lie inside ranges disclosed by the prior art", see In re Wertheim, 541 F.2d 257,191 USPQ 90 (CCPA 1976; In re Woodruff; 919 F.2d 1575,16USPQ2d 1934 (Fed. Cir. 1990). See MFEP 2131.03 and MPEP 2144.05I.
Regarding claim 2, BONNET teaches a processing aid comprising a homogeneous PVDF comprising 90 wt% of VDF and 10 wt% of HFP (Example; [002]).
Regarding claim 4, BONNET teaches the interfacial agent (component B) (Abstract; [0016]) wherein the interfacial agent includes c) aliphatic polyesters (e.g., polybutylene adipate, polylactic acid, and polycaprolactones) [0053] and e) polyethers (e.g., polyether polyols and polyalkylene oxides) [0055].
Regarding claim 5, BONNET teaches a homogenous PVDF comprising 90 wt% of VDF and 10 wt% of HFP ([0027]; Example) and heterogenous PVDF is a VDF-HFP copolymer comprises from 88 to 92 wt% of VDF and from 8 to 12 wt% of HFP (Examples 1-3; [0028-0049]).
Regarding claim 8, BONNET teaches the processing aid comprising at least one heterogenous PVDF (A) and at least one interfacial agent (B) wherein the respective proportions by weight of (A) and (B) can be such that (A)/(B) is between 10/90 and 90/10 [0080].
Regarding claims 9 and 10, BONNET teaches the processing aid includes an interfacial agent (component B) (Abstract; [0016]) wherein the interfacial agent includes e) polyethers (e.g., oligomers or polymers having an alkylene oxide). More specifically, polyethylene glycol (PEG) [0060-0063 and 0066].
Regarding claim 11, BONNET teaches the processing aid includes an interfacial agent (component B) (Abstract; [0016]) wherein the interfacial agent includes c) aliphatic polyesters (e.g., polycaprolactones) [0053 and 0067]
Regarding claim 12, BONNET teaches the processing aid comprising at least one interfacial agent (component B) (Abstract; [0016 and 0050-0058]). The term “at least one” is construed to mean more than one interfacial agent can be used in the processing aid. Furthermore, a blend of two or more polyethers can be used [0060].
Regarding claim 13, BONNET teaches the processing aid comprises at least one heterogenous PVDF (A) and at least one interfacial agent (B) which are diluted in a polyolefin (C) [0080-0081] in the form of a masterbatch [0082].
Regarding claims 14 and 15, BONNET teaches the processing aid in the form of a masterbatch further comprises thermoplastic resin (component D) includes polyolefin such as low-density polyethylene (LDPE), linear low density polyethylene (LLDPE) or ultra-high density polyethylene (UHDPE) [0068-0070]. As discussed in the present specification [0011 and 0064-0065], the polyolefin carrier polymer is LLDPE, LDPE, and UHDPE which are the same polymers of BONNET. Furthermore LLPDE has a low melt index. Therefore, the polymers of BONNET would intrinsically have the claimed melt index (0.5 to 25).
Regarding claim 16, BONNET teaches the proportion of masterbatch to introduced into the thermoplastic resin (A)+(B) is 100 ppm to 100,000 ppm (when converted to wt% is from 0.01 wt% to 10 wt%).
Regarding claim 19, BONNET teaches the processing aid useful for the extrusion of a thermoplastic resin in the form of film [0099].
Claims 17, 18, and 20 are rejected under 35 U.S.C. 103 as being unpatentable over BONNET et al. (U.S. Publication No. 2010/0298487, hereinafter BONNET) in view of BARRIERE et al. (U.S. Publication No. 2006/0025523, hereinafter BARRIERE).
Regarding claims 17, 18, and 20, BONNET substantially teaches the present invention, see paragraphs 6-9 above. More specifically, BONNET teaches the thermoplastic resin (C) is a polyolefin which includes two polyethylenes or two polypropylenes [0091].
However, BONNET does not specifically teach a polyolefin polymer (E) containing the polymer process aid of claim 1 wherein the amount of polymer process aid is from 50 to 5000 ppm.
In the same field of endeavor of a masterbatch as a processing aid, BARRIERE teaches
a masterbatch comprising by weight of from 1 to 50% of a blend of at least one fluoropolymer (A) and at least one interfacial agent (B); from 99 to 50% of a polyolefin (C) such that component (A) and (B) are blended then blended with the polyolefin (C). The masterbatch as a processing aid for extruding a polyolefin (D) for extruding a film-forming polyolefin (Abstract; [0010-0019]). Components (C) and (D) are similar in which two polyolefins such as two polyethylenes or two polypropylenes [0045] are used.
The proportion of masterbatch to be introduced into the polyolefin (D) to be extruded is around 100 ppm to 3000 ppm [0059]. The masterbatch significantly reduces the time needed to obtain stable and defect-free extrusion within an extrusion parameter range that normally exhibits substantial extrusion instabilities [0050].
Given BONNET teaches the masterbatch as a processing aid includes thermoplastic resin (C) is a polyolefin including two polyethylenes or two polypropylenes [0091], it would have been obvious to a person of ordinary skill in the art to have provided the polyolefin (D) in an amount of 100 ppm to 3000 ppm of BARRIERE with the masterbatch of BONNET for its art recognized function in the masterbatch for processing aid for extruding a film-forming polyolefin as taught in BARRIERE [0050]. It is well settled that it is prima facie obvious to combine two ingredients, each of which is targeted by the prior art to be useful for the same purpose. In re Linder 457 F,2d 506,509, 173 USPQ 356, 359 (CCPA 1972).
Response to Arguments
The response is insufficient to rebut the obviousness rejection. Despite the applicant’s arguments in view of the teachings of the prior art, the position is maintained.
The applicant submits that the melt viscosity of the PVDF is not a recognized result effective variable for a PVDF polymer processing aid. BONNET teaches that the blend of a heterogeneous PVDF and an interfacial agent results in a more effective processing aid than the processing aids already described or sold. BONNET doe not teach a correlation between the melt viscosity of the PVDF and effectiveness as a polymer processing aid. There is not teaching that the PVDF having certain viscosities provide better properties as a polymer processing. Applicant’s have showing that a particular claimed range of melt viscosity provides superior properties (see Fig. 1) that shown the effect of melt viscosity on melt fracture time above and below the claimed range the melt fractures increases.
The examiner have considered the applicant’s arguments, however, the examiner disagrees. Firstly, it is noted that a prima facie case of obviousness does not require the solution of the same problem or recognition of the same advantages as applicant’s invention. In re Dillion, 16 USPQ 2nd 1897. The examiner has considered the applicant’s arguments and a showing of unexpected results (Fig. 1; Tables 2 and 3), however, the examiner disagrees. The examples in the specification are of no probative value in determining patentability of claims since they do not involve a comparison of applicant’s invention with the closest applied prior art. See In re De Blawe, 222 USPQ 191 (Fed. Cir. 1984) and In re Fenn, 208 USPQ 470 )CCPA 1981). Evidence of unexpected properties may be in the form of a direct or indirect comparison of the claimed invention with the closest prior art which is commensurate in scope with the claims. See In re Boesch, 617 F.2d 272, 205 USPQ 215 (CCPA 1980). See MPEP 716.02(b) III and 716.02(e). Moreover, the applicant’s examples for a showing of unexpected results but the examples are not commensurate in scope with the claims because the claims are not limited to the specific components and the amount of the components (i.e., interfacial facial (Carbowax ®Sentry PEG 8000 powder) and various PVDF) in the Tables 1-3 of the present specification. Therefore, it has been held that to overcome a reasonable case of prima facie obviousness given claim must be commensurate in scope with any showing of unexpected results, In re Greenfield, 197 USPQ 227.
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 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.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DEVE V HALL whose telephone number is (571)270-7738. The examiner can normally be reached M-F, 9 am-5 pm, EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Joseph Del Sole can be reached at (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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DEVE V. HALL
Primary Examiner
Art Unit 1763
/DEVE V HALL/Primary Examiner, Art Unit 1763