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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 2/25/2026 has been entered.
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.
Claims 1-4 and 6 are rejected under 35 U.S.C. 103 as being unpatentable over Chen US (5,378,539).
Chen teaches a composition which is crosslinked during blending with a peroxide and a polyfunctional compound (abstract). In an Example, a product is formed by reacting a composition comprising 90 parts by weight of ethylene-vinyl acetate (corresponding to polymer P of instant claims 1-2), an organic peroxide, and a polyfunctional acrylate coagent having an acrylate functionality of at least 2 or 3. The polyfunctional acrylate corresponds to the instantly claimed (b) at least one co-agent. The Example has a melt flow rate of 1.6 g/10 minutes, which falls within the range of instant claim 1. See Table 6, Example 35 and column 13, lines 31-34. The example comprises more than 70wt% of EVA as the polymer. This meets instant claim 2. The coagent is the only acrylate and therefore meets instant claim 3. The amount is about 0.2wt% of organic peroxide, which meets instant claims 4 and 6. The components including the polymer P, the peroxide PE, and the coagent are reacted essentially in the absence of a blowing agent. As the polymer reacts with the peroxide and coagent, it forms the claimed ‘pre-crosslinked’ structure as claimed. This reaction occurs in the absence of a blowing agent.
Regarding the amendment to claim 1 which recites that the weight ratio of at least one polymer P to at least one peroxide being 50 and 200, which corresponds to a range of peroxide of 0.5-2 per 100 parts polymer. The amount of peroxide disclosed in Chen is from 0.05 to 0.6 parts by weight per 100 parts by weight of polymer. This gives a weight ratio of polymer to peroxide, P/PE, of from about 167 to 2000. This overlaps the range of instant claim 1. The amount of peroxide in the compositions of Chen ranges from about 0.17wt% to about 0.3wt%, which overlaps the amount recited in claims 4 and 6. It is well settled that where the prior art describes the components of a claimed compound or compositions in concentrations within or overlapping the claimed concentrations a prima facie case of obviousness is established. See In re Harris, 409 F.3d 1339, 1343, 74 USPQ2d 1951, 1953 (Fed. Cir 2005); In re Peterson, 315 F.3d 1325, 1329, 65 USPQ 2d 1379, 1382 (Fed. Cir. 1997); In re Woodruff, 919 F.2d 1575, 1578 16 USPQ2d 1934, 1936-37 (CCPA 1990); In re Malagari, 499 F.2d 1297, 1303, 182 USPQ 549, 553 (CCPA 1974). It would have been obvious to one of ordinary skill in the art, based on the teachings of Chen to use an amount of peroxide which provides a ratio of polymer to peroxide which meets the instant claim limitations of instant claim 1 and an amount which meets instant claims 4 and 6 because “a reference may be relied upon for all that it would have reasonably suggested to one having ordinary skill the art…” Merck & Co. v. Biocraft Laboratories, 874 F.2d 804, 10 USPQ2d 1843 (Fed. Cir.), cert. denied, 493 U.S. 975 (1989). See MPEP 2123.
Additionally, Chen specifically teaches the effect of peroxide levels on melt flow rate. Chen specifically teaches that peroxide imparts advantageous properties after heat aging, stating “as the peroxide level is increased, degree of crosslinking is raised,” consequently decreasing melt flow rate. See col. 13, lines 31-38. This means that the amount of peroxide is a recognized result effective variable, as Chen recognized that increasing the amount of peroxide decreases melt flow rate. Given this teaching, one of ordinary skill in the art would readily increase the amount of peroxide to increase the level of crosslinking and thereby lower the melt flow rate, including to amounts which provide a P/PE ratio which falls within the range of instant claim 1.
Response to Arguments
Applicant’s arguments with respect to the rejection of the claims over Kohlstrung et al. (US 2014/0131910) have been fully considered and are persuasive in light of the amendments to claim 1. The rejection of the claims over Kohlstrung et al. (US 2014/0131910) has been withdrawn.
Applicant's arguments with respect to the rejection of the claims over Chen US (5,378,539), filed 2/25/2025, have been fully considered but they are not persuasive.
Applicant argues that Chen is limited to a range of weight ratio of polymer to peroxide, P/PE, of from 417 to 5,000.
This is not persuasive.
Chen is not limited to peroxides requiring 40wt% active peroxide. While this is exemplified in the Examples and discussed as preferred (i.e. used in the Examples), Chen teaches peroxides in general for use in the invention disclosed therein. See col. 6, lines 14-17; and col. 6, lines 32-47. The range of peroxide disclosed in Chen is 0.05 to 0.6 parts by weight of the peroxides disclosed therein, which is not limited to the preferred and exemplified peroxides with 40wt% active peroxide but include the broader teachings of peroxides in the disclosed amounts. As stated in MPEP 2123, “a reference may be relied upon for all that it would have reasonably suggested to one having ordinary skill the art…” Merck & Co. v. Biocraft Laboratories, 874 F.2d 804, 10 USPQ2d 1843 (Fed. Cir.), cert. denied, 493 U.S. 975 (1989).
Applicant cites to the Inventive Examples of the instant specification, stating that Examples E1-E6 have P/PE ratios of 75-168 and MFI values of 0.34-4.85 g/10 min. Applicant asserts that the non-Inventive Examples R1-R3 have P/PE ratios of 759-917 and MFI values of 8.92-21.44 g/10 min.
It appears that Applicants are attempting to argue unexpected results on pages 6-7 of the Remarks filed on 2/25/2026. First, it is noted that the Example previously relied on from Chen, is not representative of the comparative examples of the instant invention. Example 35 of Chen as an MFI which falls within the range of instant claim 1 (the MFI is 1.60 g/10 min), meaning the comparative examples of the instant invention do not compare the instant invention to the closest prior art, which required when attempting to establish unexpected results. The MFI of the Example of Chen, does not fall within the range of 8.92 to 21.44 g/10 min and thus, the data cited to by Applicants does not provide persuasive evidence of unexpected results because again, the comparative data of the instant invention does not compare the instant invention to the closest prior art, which is required to persuasively demonstrate unexpected results. See MPEP 716.02(e).
Furthermore, the data of the instant specification, combined with the data of Chen, provides evidence against the criticality of the instantly claimed invention. It appears Applicants are attempting to argue that the instantly claimed MFI can only be obtained when the P/PE ratio is in the range of from 50 to 200. However, given Applicant’s math on page 6 of the Remarks filed on 2/25/2026, an MFI falling within the instantly claimed range can be achieved with a P/PE ratio which falls outside the range of the instant claims, meaning the ratio is not critical for providing the instantly claimed MFI. This is evidence against criticality and against unexpected results of the instantly claimed invention.
Additionally, the data of the instant specification is not commensurate in scope with the claimed invention. The data does not show that the allegedly unexpected results (which appear to be MFI, but this is not clear) occur over the entire claimed range of P/PE of 50 to 200. The data only shows a ratio of 75 to 168, and thus does not even contain the end points of the instantly claimed range, while the comparative data only shows the results of a P/PE ratio of 759 to 917. What results occur at a P/PE ratio of 50? What results occur at 200? The MFI achieved for the inventive examples is from 0.34 to 4.85 g/10 min, while the instant claims allow for an MFI ranging from 0.1 to 8 g/10 min. This is another reason the data is not commensurate in scope with the claimed invention. Furthermore, the claims recite “at least one polymer P, cross-linkable by peroxide,” which contains hundreds of species, possibly thousands with substitutions, while the Examples only show the use of two extremely specific polymers to which the independent instant claim is not limited. Likewise, the instant claims are not limited to the extremely specific coagent (or its amount) used in the inventive examples, or the peroxide used in the examples. There is simply not enough data to show what amounts of what materials are required to produce the allegedly unexpected results in the data of the instant specification, because the data is not commensurate in scope with the claims invention. See MPEP 716.02(d) for details on data which is commensurate in scope with the claimed invention.
Finally, Chen specifically teaches the effect of peroxide levels on melt flow rate. Chen specifically teaches that peroxide imparts advantageous properties after heat aging, stating “as the peroxide level is increased, degree of crosslinking is raised,” consequently decreasing melt flow rate. See col. 13, lines 31-38. This means that the amount of peroxide is a recognized result effective variable, as Chen recognized, before the effective filing date of the instant invention, the very thing which Applicant appears to allege is unexpected, i.e. that increasing amount of peroxide (which lowers the P/PE ratio) decreases melt flow rate. This means the allegedly unexpected results argued by Applicant were known before the effective filing date of the instant invention, meaning the results were not unexpected.
For the reasons provided above, Applicant’s arguments with regards to the rejection of the claims over Chen, filed on 2/25/2026, are not persuasive.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to K. B BOYLE whose telephone number is (571)270-7338. The examiner can normally be reached 8:30 am to 5pm, Monday - Friday.
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/K. BOYLE/Primary Examiner, Art Unit 1766