DETAILED ACTION
Notice of Pre-AIA or AIA Status
1. The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Response to Amendment
2. The amendment filed by Applicant on June 27, 2025 has been fully considered. The amendment to instant claims 1, 4, 6 is acknowledged. Specifically, claim 1 has been amended to recite the fluororesin being present in amount of 99.9-99.5% by mass and the LCP being present in amount of 0.1-0.5% by mass. These limitations were not previously presented and were taken from instant specification. In light of the amendment, the previous rejections not cited below are withdrawn. The new grounds of rejections necessitated by Applicant’s amendment are set forth below. Thus, the following action is properly made final.
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.
3. Claims 1, 4, 6 are rejected under 35 U.S.C. 103 as being unpatentable over Kolouch (US 6,166,138).
4. Kolouch discloses a melt-fabricable (col. 4, lines 37-36) fluoropolymer composition comprising:
A) at least 70%wt of non-functionalized melt-fabricable (i.e. melt-moldable) fluoropolymer such as ethylene/TFE or TFE-PAVE or TFE-HFP copolymers;
B) 1-30%wt of functionalized fluoropolymer having less than 5%wt of functional groups including fluorinated vinyl ether (col. 4, lines 25-27; col. 3, lines 40-46) and
C) 0.5%wt of liquid crystal polymer (LCP) (Abstract; col. 2, lines 57-67),
wherein the fluoropolymers A) and B) include copolymers of TFE with PAVE (i.e. perfluoroalkyl vinyl ether) (col. 3, lines 8-15) and
wherein the LCP are fully aromatic polyesters or polyester-amides (col. 5, lines 5-13).
5. Based on the teachings of Kolouch, it would have been obvious to a one of ordinary skill in the art to choose and use the composition comprising 1%wt of the component B) comprising TFE-PAVE copolymer with functional groups being fluorinated vinyl ether, 0.5%wt of fully aromatic LCP, with the balance being non-functionalized TFE-PAVE copolymer; thereby the total amount of TFE-PAVE copolymers will be 99.5%wt, since it would have been obvious to choose material based on its suitability. Case law holds that the selection of a known material based on its suitability for its intended use supports prima facie obviousness. Sinclair & Carroll Co vs. Interchemical Corp., 325 US 327, 65 USPQ 297 (1045). Case law holds that the mere substitution of an equivalent (something equal in value or meaning, as taught by analogous prior art) is not an act of invention; where equivalency is known to the prior art, the substitution of one equivalent for another is not patentable. See In re Ruff 118 USPQ 343 (CCPA 1958).
6. Since the liquid crystal polymer LCP includes fully aromatic polyesters, therefore, the fully aromatic polyesters used as the component C) will intrinsically and necessarily have at least 92%mol of units being aromatic and will be thermotropic as well (as to instant claims 1, 4, 6). Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). MPEP 2112.01(I). Since PTO cannot conduct experiments the proof of burden is shifted to the applicants to establish an unobviousness difference, see In re Best, 562 F.2d 1252, 195 USPQ 430 (CCPA 1977). See MPEP § 2112.01.
7. All ranges in the blend of Kolouch are overlapping with the corresponding ranges of those as claimed in instant invention. 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).
8. Further, though Kolouch does not explicitly recite the used fluoropolymer as having a 1% decomposition temperature of at least 300⁰C, since the fluoropolymers such as TFE-PAVE copolymers and ethylene/TFE copolymers, used in the composition of Kolouch are the same TFE-perfluoroalkylvinyl ethers (PAVE) fluoropolymers and ethylene-TFE copolymers as disclosed in instant specification (see col. 3, lines 9-20, 38-45 of Kolouch and [0015]-[0016] of instant specification), therefore, the fluoropolymers used as the components A) and B) in the composition of Kolouch will intrinsically and necessarily have, or would be reasonably expected to have a 1% decomposition temperature of at least 300⁰C as well (as to instant claims 1, 4). Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). MPEP 2112.01(I). Since PTO cannot conduct experiments the proof of burden is shifted to the applicants to establish an unobviousness difference, see In re Best, 562 F.2d 1252, 195 USPQ 430 (CCPA 1977). See MPEP § 2112.01.
9. As to instant claim 6, Kolouch further teaches that LCP are characterized by their unique ability to form regions of high molecular weight orientational order in the melt; this orientation can be carried over into the solid state and the orientation enhanced by appropriate processing techniques that introduce high shear and elongation stresses (col. 4, lines 50-55). The LCP is compounded with the fluoropolymers A) and B) and further extruded or injection molded (col. 5, lines 18-27). Since i) injection molding of the polymer compositions is accompanied with high stresses, ii) the LCP during said high stresses forms regions of orientational order, and further iii) in the composition of Kolouch the fully aromatic LCP (which is the same as that claimed and used in instant invention) is added to 99.9%wt of TFE-PAVE copolymers (which are the same as those used in instant invention), therefore, said LCP will intrinsically and necessarily, at least partially alter the injection molding process of said composition of Kolouch and will intrinsically and necessarily, at least partially act as a molding aid as well. Since PTO cannot conduct experiments the proof of burden is shifted to the applicants to establish an unobviousness difference, see In re Best, 562 F.2d 1252, 195 USPQ 430 (CCPA 1977). See MPEP § 2112.01.
10. As to instant claim 4, since the injection molded article of Kolouch is produced from substantially the same blend as that claimed in instant invention, including using 99.5%wt of PTFE/PAVE copolymers and 0.5%wt of the fully aromatic LCP, therefore, the injection molded article of Kolouch will intrinsically and necessarily have, or would be reasonably expected to have a tensile elongation at break of 15% or higher at 25⁰C as well. Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). MPEP 2112.01(I). Since PTO cannot conduct experiments the proof of burden is shifted to the applicants to establish an unobviousness difference, see In re Best, 562 F.2d 1252, 195 USPQ 430 (CCPA 1977). See MPEP § 2112.01.
11. Claims 1-6 are rejected under 35 U.S.C. 103 as being unpatentable over Kolouch (US 6,166,138) in view of Abusleme et al (US 2004/0198894).
12. The discussion with respect to Kolouch (US 6,166,138) set forth in paragraphs 3-10 above, is incorporated here by reference.
13. Kolouch does not explicitly recite the used fluororesins including polychlorotrifluoroethylene and the composition having MFR of 1-13 g/10 min.
14. However, Abusleme et al discloses thermo-processable compositions based on 90-99.9%wt PCTFE ([0031]), used in molding processes to form molded articles, wherein the used PCTFE is having MFR of preferably higher than 2 g/10 min ([0012]), and exemplified values of 1.3 g/10 min and 10.5 g/10 min (Table 1), wherein the molded article produced from said composition is having elongation at break of 165% and 189% (Table 1).
15. Since the compositions based on 90%wt or as high as 99%wt of PCTFE and having MFR of 1.3 g/10-10.5 g/10 min, are having good mechanical properties, in particular a high elongation at break, are melt-processable and form stable molded articles ([0005]-[0008] of Abusleme et al), therefore, it would have been obvious to a one of ordinary skill in the art to combine the teachings of Kolouch and Abusleme et al, and to use, or obvious to try to use the PCTFE based composition having MFR of 1.3-10.5 g/10 min as the melt-processable fluoropolymers components A) and B), or at least as the component A) in the composition of Kolouch, so that the molded articles produced from said composition would have high elongation at break and be thermally stable as well, and since it would have been obvious to choose material based on its suitability. Case law holds that the selection of a known material based on its suitability for its intended use supports prima facie obviousness. Sinclair & Carroll Co vs. Interchemical Corp., 325 US 327, 65 USPQ 297 (1045). Case law holds that the mere substitution of an equivalent (something equal in value or meaning, as taught by analogous prior art) is not an act of invention; where equivalency is known to the prior art, the substitution of one equivalent for another is not patentable. See In re Ruff 118 USPQ 343 (CCPA 1958). The key to supporting any rejection under 35 USC 103 is the clear articulation of the reason(s) why the claimed invention would have been obvious. The Supreme Court in KSR noted that the analysis supporting a rejection under 35 USC 103 should be made explicit. The Court quoting In re Kahn, 441 F.3d 977, 988, 78 USPQ2d 1329, 1336 (Fed. Cir. 2006), stated that "‘[R]ejections on obviousness cannot be sustained by mere conclusory statements; instead, there must be some articulated reasoning with some rational underpinning to support the legal conclusion of obviousness.’" KSR, 550 U.S. at 418, 82 USPQ2d at 1396. Exemplary rationales that may support a conclusion of obviousness include:
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(A) Combining prior art elements according to known methods to yield predictable results;
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(B) Simple substitution of one known element for another to obtain predictable results;
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(C) Use of known technique to improve similar devices (methods, or products) in the same way;
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(D) Applying a known technique to a known device (method, or product) ready for improvement to yield predictable results;
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(E) "Obvious to try" – choosing from a finite number of identified, predictable solutions, with a reasonable expectation of success;
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(F) Known work in one field of endeavor may prompt variations of it for use in either the same field or a different one based on design incentives or other market forces if the variations are predictable to one of ordinary skill in the art; (G) Some teaching, suggestion, or motivation in the prior art that would have led one of ordinary skill to modify the prior art reference or to combine prior art reference teachings to arrive at the claimed invention. MPEP 2141
16. Given the composition of Kolouch in view of Abusleme et al comprises as high as 99%wt of PCTFE having MFR of 1.3-10.5 g/10 min, therefore, the overall composition of Kolouch in view of Abusleme et al further comprising as low as 0.5%wt of LCP will be reasonably expected to have the MFR changed/increased to a very minor extent, and therefore, the overall composition of Kolouch in view of Abusleme et al would be reasonably expected to have MFR values close to the values of 1.3-10.5 g/10 min, and in any case either within or close to the claimed range of 1-13 g/10 min, as well (as to instant claim 3). Further, given the composition of Kolouch in view of Abusleme et al is based on PCTFE providing molded articles with elongation at break of as high as 189%, as shown by Abusleme et al in Table 1, therefore, the molded articles produced from the blend of Kolouch in view of Abusleme et al would be reasonably expected to have elongation at break at 25⁰C of 15% or higher, as claimed in instant invention, as well (as to instant claim 4). Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). MPEP 2112.01(I). Since PTO cannot conduct experiments the proof of burden is shifted to the applicants to establish an unobviousness difference, see In re Best, 562 F.2d 1252, 195 USPQ 430 (CCPA 1977). See MPEP § 2112.01.
17. Claims 1-2 are rejected under 35 U.S.C. 103 as being unpatentable over Wang et al (US 2002/0045017), as evidenced by, or alternatively in view of Cottevieille et al (US 2004/0105636).
18. Wang et al discloses a polymeric material comprising a melt blend of:
A) 99.5-99.9%wt ([0013]) of a thermoplastic non-LCP base polymer and
B) 0.1-0.5%wt of a liquid crystal polymer (LCP) ([0013]),
wherein the thermoplastic non-LCP base polymer component A) is polychlorotrifluoropolymer ([0014]) and
the component B) is a commercial polyester thermotropic LCP Vectra LKX1107 or Vectra LKX 1111 ([0016]).
19. Based on the teachings of Wang et al, it would have been obvious to a one of ordinary skill in the art to choose and use the composition comprising 99.5-99.9%wt of the component A) comprising polychlorotrifluoroethylene and 0.1-0.5%wt of commercial polyester thermotropic LCP Vectra, since it would have been obvious to choose material based on its suitability. Case law holds that the selection of a known material based on its suitability for its intended use supports prima facie obviousness. Sinclair & Carroll Co vs. Interchemical Corp., 325 US 327, 65 USPQ 297 (1045). Case law holds that the mere substitution of an equivalent (something equal in value or meaning, as taught by analogous prior art) is not an act of invention; where equivalency is known to the prior art, the substitution of one equivalent for another is not patentable. See In re Ruff 118 USPQ 343 (CCPA 1958).
20. Though Wang et al does not explicitly recite the commercial LCP Vectra as being fully aromatic, as evidenced by Cottevielle et al, the commercial LCP polyesters Vectra are totally aromatic including Vectra LKX 1110 (see [0024] of Cottevielle et al); therefore, the commercial LCP Vectra cited by Wang et al would be reasonably expected to be fully aromatic as well and will intrinsically and necessarily have at least 92%mol of units being aromatic. Since PTO cannot conduct experiments the proof of burden is shifted to the applicants to establish an unobviousness difference, see In re Best, 562 F.2d 1252, 195 USPQ 430 (CCPA 1977). See MPEP § 2112.01.
21. In the alternative, based on the combined teachings of Wang et al and Cottevielle et al, it would have been obvious to a one of ordinary skill in the art to choose and use the totally aromatic commercial LCP Vectra LKX 1110 of Cottevielle et al as the commercial LCP Vectra component B) in the composition of Wang et al, since it would have been obvious to choose material based on its suitability. Case law holds that the selection of a known material based on its suitability for its intended use supports prima facie obviousness. Sinclair & Carroll Co vs. Interchemical Corp., 325 US 327, 65 USPQ 297 (1045). Case law holds that the mere substitution of an equivalent (something equal in value or meaning, as taught by analogous prior art) is not an act of invention; where equivalency is known to the prior art, the substitution of one equivalent for another is not patentable. See In re Ruff 118 USPQ 343 (CCPA 1958).
22. All ranges in the composition of Wang et al only, or in view of Cottevielle et al are overlapping with the corresponding ranges of those as claimed in instant invention. 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).
23. Further, though Wang et al only, or in view of Cottevielle et al do not explicitly recite the used fluoropolymer as having a 1% decomposition temperature of at least 300⁰C, since the polychlorotrifluoroethylene component A) of the composition of Wang et al only, or in view of Cottevielle et al is the same as that disclosed and claimed in instant invention (see [0014] of Wang et al and [0015]-[0016] of instant specification), therefore, the polychlorotrifluoroethylene component A) of the composition of Wang et al only, or in view of Cottevielle et al will intrinsically and necessarily have, or would be reasonably expected to have a 1% decomposition temperature of at least 300⁰C as well (as to instant claims 1). Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). MPEP 2112.01(I). Since PTO cannot conduct experiments the proof of burden is shifted to the applicants to establish an unobviousness difference, see In re Best, 562 F.2d 1252, 195 USPQ 430 (CCPA 1977). See MPEP § 2112.01.
24. Claims 1-2, 4-6 are rejected under 35 U.S.C. 103 as being unpatentable over Wang et al (US 2002/0045017), as evidenced by, or alternatively in view of Cottevieille et al (US 2004/0105636), in further view of Supriya et al (US 2013/0085220).
25. The discussion with respect to Wang et al (US 2002/0045017), as evidenced by, or alternatively in view of Cottevieille et al (US 2004/0105636), set forth in paragraphs 17-23, is incorporated here by reference.
26. Though Wang et al, as evidenced by, or alternatively in view of Cottevieille et al recite the composition being used for making articles by extrusion (see [0022] of Wang et al), Wang et al, as evidenced by, or alternatively in view of Cottevieille et al do not teach the composition being used for making injection molded articles and the LCP being acting as a molding aid.
27. However, Supriya et al discloses an injection molded article ([0062], [0014]) comprising a melt-processable blend, wherein the melt-processable blend comprises:
A) a fluoropolymer comprising a polychlorotrifluoroethylene (PCTFE) ([0025]) and
B) a liquid crystal polymer LCP (Abstract) including aromatic polyesters comprising repeat units of 4-hydroxybenzoic acid, 4,4’-bisphenol and terephthalic acid ([0028]-[0029]), i.e. fully aromatic LCP,
wherein the components A) and B) are mixed as a weight ratio of about 99:1 ([0009], [0053]), i.e. about 99%wt, which by using term “about” include values of higher than 99%wt, of the fluoropolymer and about 1%wt, which by using term “about” include values of lower than 1%wt, of the fully aromatic LCP,
further wherein Supriya et al teaches a method for reducing the melt viscosity of a fluoropolymer comprising mixing it with LCP, so to improve processing of said polymers by injection molding or extrusion ([0009], [0004], [0005]). Since addition of LCP to the fluoropolymers eases the melt processing such as extrusion or injection molding, therefore, said LCP appears to serve, at least partially, as a molding aid as well (as to instant claim 6). Since PTO cannot conduct experiments the proof of burden is shifted to the applicants to establish an unobviousness difference, see In re Best, 562 F.2d 1252, 195 USPQ 430 (CCPA 1977). See MPEP § 2112.01.
28. Since both Supriya et al and Wang et al, as evidenced by, or alternatively in view of Cottevieille et al are related to molded articles made from compositions comprising the major amount of polychlorotrifluoroethylene and a minor amount of fully aromatic LCP, and thereby belong to the same field of endeavor, wherein Supriya et al teaches that not only extruded molding articles, but further injection molded articles are being prepared from such compositions, wherein addition of the LCP improves processing of said polymers by injection molding or extrusion, therefore, it would have been obvious to a one of ordinary skill in the art to combine the teachings of Supriya et al and Wang et al, as evidenced by, or alternatively in view of Cottevieille et al, and use, or obvious to try to use the composition of Wang et al, as evidenced by, or alternatively in view of Cottevieille et al for making injection molded articles as well, wherein such addition of the LCP component B) to the polychlorotrifluoroethylene component A) in the composition of Wang et al, as evidenced by, or alternatively in view of Cottevieille et al will, at least partially, improve processing of said polychlorotrifluoroethylene by injection molding as well, and since it would have been obvious to choose material based on its suitability (as to instant claims 4, 6). Case law holds that the selection of a known material based on its suitability for its intended use supports prima facie obviousness. Sinclair & Carroll Co vs. Interchemical Corp., 325 US 327, 65 USPQ 297 (1045).
29. Since the injection molded article of Wang et al in view of Supriya et al, as evidenced by, or alternatively in view of Cottevieille et al is produced from substantially the same blend as that claimed in instant invention, including using 99.5-99.9%wt PCTFE and 0.1-0.5%wt of fully aromatic LCP, therefore, the injection molded article of Wang et al in view of Supriya et al, as evidenced by, or alternatively in view of Cottevieille et al will intrinsically and necessarily have, or would be reasonably expected to have a tensile elongation at break of 15% or higher at 25⁰C as well (as to instant claim 4) Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). MPEP 2112.01(I). Since PTO cannot conduct experiments the proof of burden is shifted to the applicants to establish an unobviousness difference, see In re Best, 562 F.2d 1252, 195 USPQ 430 (CCPA 1977). See MPEP § 2112.01.
30. Claims 1-3 are rejected under 35 U.S.C. 103 as being unpatentable over Wang et al (US 2002/0045017), as evidenced by, or alternatively in view of Cottevieille et al (US 2004/0105636), in further view of Abusleme et al (US 2004/0198894).
31. The discussion with respect to Wang et al (US 2002/0045017), as evidenced by, or alternatively in view of Cottevieille et al (US 2004/0105636), set forth in paragraphs 17-23, is incorporated here by reference.
32. Though Wang et al, as evidenced by, or alternatively in view of Cottevieille et al do not explicitly recite the MFR of the PCTFE/LCP composition,
Abusleme et al discloses thermo-processable compositions based on 90-99.9%wt PCTFE ([0031]), used in molding processes to form molded articles, wherein the used PCTFE is having MFR of preferably higher than 2 g/10 min ([0012]), and exemplified values of 1.3 g/10 min and 10.5 g/10 min (Table 1), wherein the molded article produced from said composition is having elongation at break of 165% and 189% (Table 1).
33. Since the melt-processable compositions based on as high as 99.9%wt of PCTFE and having MFR of 1.3 g/10-10.5 g/10 min, are having good mechanical properties, in particular a high elongation at break, and form stable molded articles ([0005]-[0008] of Abusleme et al), therefore, it would have been obvious to a one of ordinary skill in the art to combine the teachings of Abusleme et al and Wang et al, as evidenced by, or alternatively in view of Cottevieille et al, and to use, or obvious to try to use the PCTFE based composition having MFR of 1.3-10.5 g/10 min as the component A) in the blend of Wang et al, as evidenced by, or alternatively in view of Cottevieille et al, so that the molded articles produced from said composition would have high elongation at break and be thermally stable as well, and since it would have been obvious to choose material based on its suitability. Case law holds that the selection of a known material based on its suitability for its intended use supports prima facie obviousness. Sinclair & Carroll Co vs. Interchemical Corp., 325 US 327, 65 USPQ 297 (1045). Case law holds that the mere substitution of an equivalent (something equal in value or meaning, as taught by analogous prior art) is not an act of invention; where equivalency is known to the prior art, the substitution of one equivalent for another is not patentable. See In re Ruff 118 USPQ 343 (CCPA 1958). The key to supporting any rejection under 35 USC 103 is the clear articulation of the reason(s) why the claimed invention would have been obvious. The Supreme Court in KSR noted that the analysis supporting a rejection under 35 USC 103 should be made explicit. The Court quoting In re Kahn, 441 F.3d 977, 988, 78 USPQ2d 1329, 1336 (Fed. Cir. 2006), stated that "‘[R]ejections on obviousness cannot be sustained by mere conclusory statements; instead, there must be some articulated reasoning with some rational underpinning to support the legal conclusion of obviousness.’" KSR, 550 U.S. at 418, 82 USPQ2d at 1396. Exemplary rationales that may support a conclusion of obviousness include:
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(A) Combining prior art elements according to known methods to yield predictable results;
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(B) Simple substitution of one known element for another to obtain predictable results;
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(C) Use of known technique to improve similar devices (methods, or products) in the same way;
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(D) Applying a known technique to a known device (method, or product) ready for improvement to yield predictable results;
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(E) "Obvious to try" – choosing from a finite number of identified, predictable solutions, with a reasonable expectation of success;
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(F) Known work in one field of endeavor may prompt variations of it for use in either the same field or a different one based on design incentives or other market forces if the variations are predictable to one of ordinary skill in the art; (G) Some teaching, suggestion, or motivation in the prior art that would have led one of ordinary skill to modify the prior art reference or to combine prior art reference teachings to arrive at the claimed invention. MPEP 2141
34. Given the composition of Wang et al in view of Abusleme et al, as evidenced by, or alternatively in view of Cottevieille et al comprises as high as 99.5-99.9%wt of PCTFE having MFR of 1.3-10.5 g/10 min, therefore, the overall composition of Wang et al in view of Abusleme et al, as evidenced by, or alternatively in view of Cottevieille et al further comprising as low as 0.1-0.5%wt of fully aromatic LCP will be reasonably expected to have the MFR changed/increased to a minor extent, and therefore, the overall composition of Wang et al in view of Abusleme et al, as evidenced by, or alternatively in view of Cottevieille et al would be reasonably expected to have MFR values close to the values of 1.3-10.5 g/10 min, and in any case either within or close to the claimed range of 1-13 g/10 min, as well (as to instant claim 3). Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). MPEP 2112.01(I). Since PTO cannot conduct experiments the proof of burden is shifted to the applicants to establish an unobviousness difference, see In re Best, 562 F.2d 1252, 195 USPQ 430 (CCPA 1977). See MPEP § 2112.01.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory obviousness-type double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); and In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on a nonstatutory double patenting ground provided the conflicting application or patent either is shown to be commonly owned with this application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement.
Effective January 1, 1994, a registered attorney or agent of record may sign a terminal disclaimer. A terminal disclaimer signed by the assignee must fully comply with 37 CFR 3.73(b).
35. Claims 1-6 are rejected on the ground of nonstatutory obviousness-type double patenting as being unpatentable over claims 1-4, 6 of U.S. Patent No. 12,180,358 in view of Araki et al (US 5,670,593) and Supriya et al (US 2013/0085220). Although the conflicting claims are not identical, they are not patentably distinct from each other because of the following reasons.
36. U.S. Patent No. 12,180,358 claims a fluororesin-containing composition consisting of:
- 99.5 to 99.99% by mass of a fluororesin; and
- 0.01 to 0.5% by mass of a thermotropic liquid crystal polymer, wherein the thermotropic liquid crystal polymer is a copolymer of para-hydroxybenzoic acid and ethylene terephthalate.
The fluororesin is polychlorotrifluoroethylene (as to instant claims 2, 5).
The composition comprises a melt flow rate MFR at 280⁰C of 0.1 to 1.0 g/10min (as to instant claim 3).
The composition is used for injection molding (col. 7, lines 18-20).
Case law holds that those portions of the specification which provide support for the patent claims may also be examined and considered when addressing the issue of whether a claim in an application defines an obvious variation of an invention claimed in the patent. In re Vogel, 422 F.2d 438, 164 USPQ 619,622 (CCPA 1970).
Thus, the thermotropic liquid crystal polymer is a copolymer of para-hydroxybenzoic acid and ethylene terephthalate, i.e. appears to be wholly aromatic, and therefore,
will intrinsically and necessarily have at least 90%mol of units being aromatic and will be thermotropic as well (as to instant claim 1). Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). MPEP 2112.01(I). Since PTO cannot conduct experiments the proof of burden is shifted to the applicants to establish an unobviousness difference, see In re Best, 562 F.2d 1252, 195 USPQ 430 (CCPA 1977). See MPEP § 2112.01.
37. Since the fluororesin claimed in US 12,180,358 is the same polychlorotrifluoroethylene as that claimed in instant invention, therefore, said polychlorotrifluoroethylene will intrinsically and necessarily have a 1% decomposition temperature of 300⁰C or higher. Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). MPEP 2112.01(I). Since PTO cannot conduct experiments the proof of burden is shifted to the applicants to establish an unobviousness difference, see In re Best, 562 F.2d 1252, 195 USPQ 430 (CCPA 1977). See MPEP § 2112.01.
38. Though US 12,180,358 does not explicitly recite the composition processed by injection molding being injection molded articles and the thermotropic liquid crystal polymer acting as a molding aid,
1) Araki et al discloses a composition comprising:
A) 50-99.9%wt, or 50-99%wt of a fluorine containing elastomer and
B) 0.1-50%wt, or 1-50%wt of an aromatic polyester (col. 48, lines 37-45; col. 47, lines 19-26),
wherein the aromatic polyester B) is the liquid crystal copolyester (LCP) comprising aromatic dicarboxylic acid, aromatic diol, specifically comprising para-hydroxybenzoic acid, biphenyl diol and terephthalic acid, such as commercially available products UENO (col. 49, lines 20-52),
wherein Araki et al teaches that the liquid crystal copolymers are used for preparing compositions having improved mechanical properties, dimension stability and moldability for the fluorine-containing resin (col. 49, lines 29-35; col. 50, lines 8-15), and therefore, said LCP will intrinsically and necessarily serve, at least partially, as a molding aid for said fluoropolymers as well (as to instant claim 6).
As to instant claim 4, Araki et al further teaches that the composition is used form making articles by injection molding (col. 50, lines 49-52; col. 50, lines 10-25).
2) Supriya et al discloses an injection molded article ([0062], [0014]) comprising a melt-processable blend, wherein the melt-processable blend comprises:
A) a fluoropolymer comprising a polychlorotrifluoroethylene (PCTFE) ([0025]) and
B) a liquid crystal polymer LCP (Abstract) including aromatic polyesters comprising repeat units of 4-hydroxybenzoic acid, 4,4’-bisphenol and terephthalic acid ([0028]-[0029]), i.e. fully aromatic LCP,
wherein the components A) and B) are mixed as a weight ratio of about 99:1 ([0009], [0053]), i.e. about 99%wt of the fluoropolymer and about 1%wt of LCP,
further wherein Supriya et al teaches a method for reducing the melt viscosity of a fluoropolymer comprising mixing it with LCP, so to improve processing of said polymers by injection molding or extrusion ([0009], [0004], [0005]). Since addition of LCP to the fluoropolymers eases the melt processing such as extrusion or injection molding, therefore, said LCP appears to serve, at least partially, as a molding aid as well (as to instant claim 6). Since PTO cannot conduct experiments the proof of burden is shifted to the applicants to establish an unobviousness difference, see In re Best, 562 F.2d 1252, 195 USPQ 430 (CCPA 1977). See MPEP § 2112.01.
39. Since Araki et al, Supriya et al and US 12,180,358 are related to molded articles made from compositions comprising the major amount of polychlorotrifluoroethylene and a minor amount of fully aromatic LCP, and thereby belong to the same field of endeavor, wherein Supriya et al teaches that not only extruded molding articles, but further injection molded articles are being prepared from such compositions, wherein addition of the LCP improves processing of said polymers by injection molding or extrusion, and Araki et al teaches that the liquid crystal copolymers are used for preparing compositions having improved mechanical properties, dimension stability and moldability for the fluorine-containing resins, therefore, it would have been obvious to a one of ordinary skill in the art to combine the teachings of Araki et al, Supriya et al and US 12,180,358, and to use, or obvious to try to use the composition of US 12,180,358 for making injection molded articles as well, wherein such addition of the LCP component to the polychlorotrifluoroethylene component will, at least partially, improve processing of said polychlorotrifluoroethylene by injection molding as well, and since it would have been obvious to choose material based on its suitability (as to instant claims 4, 6). Case law holds that the selection of a known material based on its suitability for its intended use supports prima facie obviousness. Sinclair & Carroll Co vs. Interchemical Corp., 325 US 327, 65 USPQ 297 (1045).
40. Since the injection molded article of US 12,180,358 in view of Araki et al and Supriya et al is produced from substantially the same composition as that claimed in instant invention, therefore, the injection molded article of US 12,180,358 in view of Araki et al and Supriya et al will intrinsically and necessarily have, or would be reasonably expected to have a tensile elongation at break of 15% or higher at 25⁰C as well (as to instant claim 4). Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). MPEP 2112.01(I). Since PTO cannot conduct experiments the proof of burden is shifted to the applicants to establish an unobviousness difference, see In re Best, 562 F.2d 1252, 195 USPQ 430 (CCPA 1977). See MPEP § 2112.01.
41. Therefore, the limitations claimed in instant invention are obvious variants of the limitations claimed in US 12,180,358 in view of Araki et al and Supriya et al.
42. Claims 1-6 are directed to an invention not patentably distinct from claims 1-4, 6 of U.S. Patent No. 12,180,358 in view of Araki et al (US 5,670,593) and Supriya et al (US 2013/0085220).
Specifically, see the discussion in paragraphs 35-41 above.
The U.S. Patent and Trademark Office normally will not institute an interference between applications or a patent and an application of com-mon ownership (see MPEP Chapter 2300). Commonly assigned U.S. Patent No. 12,180,358, discussed above, would form the basis for a rejection of the noted claims under 35 U.S.C. 103(a) if the commonly assigned case qualifies as prior art under 35 U.S.C. 102(e), (f) or (g) and the conflicting inventions were not commonly owned at the time the invention in this application was made. In order for the examiner to resolve this issue, the assignee can, under 35 U.S.C. 103(c) and 37 CFR 1.78(c), either show that the conflicting inventions were commonly owned at the time the invention in this application was made, or name the prior inventor of the conflicting subject matter.
A showing that the inventions were commonly owned at the time the invention in this application was made will preclude a rejection under 35 U.S.C. 103(a) based upon the commonly assigned case as a reference under 35 U.S.C. 102(f) or (g), or 35 U.S.C. 102(e) for applications pending on or after December 10, 2004.
43. Claims 1-6 are rejected under 35 U.S.C. 103(a) as being obvious over U.S. Patent No. 12,180,358 in view of Araki et al (US 5,670,593) and Supriya et al (US 2013/0085220).
Specifically, see the discussion in paragraphs 35-41 above.
The applied reference has a common assignee and a common inventor with the instant application. Based upon the earlier effective U.S. filing date of the reference, it constitutes prior art only under 35 U.S.C. 102(e). This rejection under 35 U.S.C. 103(a) might be overcome by: (1) a showing under 37 CFR 1.132 that any invention disclosed but not claimed in the reference was derived from the inventor of this application and is thus not an invention “by another”; (2) a showing of a date of invention for the claimed subject matter of the application which corresponds to subject matter disclosed but not claimed in the reference, prior to the effective U.S. filing date of the reference under 37 CFR 1.131; or (3) an oath or declaration under 37 CFR 1.130 stating that the application and reference are currently owned by the same party and that the inventor named in the application is the prior inventor under 35 U.S.C. 104, together with a terminal disclaimer in accordance with 37 CFR 1.321(c). This rejection might also be overcome by showing that the reference is disqualified under 35 U.S.C. 103(c) as prior art in a rejection under 35 U.S.C. 103(a). See MPEP § 706.02(l)(1) and § 706.02(l)(2).
Response to Arguments
44. Applicant's arguments filed on June 27, 2025 have been fully considered but they are moot in light of new grounds of rejections and discussion set forth above.
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.
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/IRINA KRYLOVA/Primary Examiner, Art Unit 1764