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 (i.e., changing from AIA to pre-AIA ) 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.
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 January 29, 2026 has been entered.
Claim Rejections - 35 USC §§ 102/103
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
And
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 nonobviousness.
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 1-3, 6, 8-12, and 15-16 are rejected under 35 U.S.C. 102(a)(1) as anticipated by or, in the alternative, under 35 U.S.C. 103 as obvious over Kuwata (EP2216173 provided on IDS).
Kuwata exemplifies vinylidene copolymers comprising 90 g vinylidene chloride (VDC), 9 g methyl acrylate (MA) and 1 g acrylic acid (AA) with melting points of 140 oC. These are latexes (water dispersion). See Table 1 B-1.
Kuwata’s B-1 does not contain methacrylonitrile which is the comonomer of Claims 1-7.
Kuwata teaches the copolymerizable monomers including methyl acrylate, acrylate acid, acrylonitrile and methacrylonitrile in ¶[0032]
Therefore, one of ordinary skill in the art can at once envisage the copolymer B-1 of Kuwata with methacrylonitrile in place of the methyl acrylate in the same amount as the methyl acrylate as the methylacrylonitrile is specifically taught by Kuwata as above and also it would still keep an acid comonomer in the copolymer.
Alternatively, it would have been obvious to a person having ordinary skill in the art at the time the invention was filed to practice the invention of Kuwata’s B-1 vinylidene copolymer by substituting the methyl acrylate with the methacrylonitrile using the same amount as the methyl acrylate because the methylacrylonitrile is specifically taught by Kuwata as above and also it would still keep an acid comonomer in the copolymer.
One of ordinary skill in the art is reasonably suggested resulting melt temperature must be similar to that 140 oC because the amount of VDC used will be the same and Kuwata in ¶[0031] teaches the amount of VDC determines the crystalline melting point. Therefore, for this reason, when tested accordingly, the resulting copolymer using methacrylonitrile must still have a S1/(S1+S2) in the recited range of Claim 1 from which all these claims depend.
The resulting copolymer has the following monomers:
Monomer
Amount
Reactivity Ratio to VDC
Vinylidene chloride (VDC)
90
--
Methacrylonitrile (MAN)
9
0.036
Acrylic Acid (AA)
1
0.29
Applicant’s as-filed specification ¶[0021] establishes that MAN and AA have reactivity ratios as claimed below 0.7. The mass ratio claimed is anticipated, or in the alternative meets, by 9 + 1 / (90 + 1 + 9) = 10.
The acrylic acid anticipates, or in the alternative meets, the carboxyl group monomer of Claim 3 and Claim 8.
The methacrylonitrile in the amounts 9 parts anticipates or in the alternative meets the limitations of Claim 6 and Claim 9.
The VDC and its amount anticipates, or in the alternative meets, the limitations of Claim 2 and Claim 10.
These latexes are used to make films (See examples) which anticipates, or in the alternative meets, Claim 12. Claim 11 is anticipated, or in the alternative met, as 20 parts by mass or less of crystal nucleating agent includes 0 parts by mass.
With respect to the S1/(S1+S2) limitation, Kuwata is silent on this ratio but, as it is a ratio of melting point data it must exist as the above aqueous dispersion of B-1 has a melting temperature. Applicant’s as filed specification puts forth a variety of examples with similar comonomers, all with VDC being used in 80+ wt% and everyone copolymer with a melting peak temperature in the range of 140-155 oC has a S1/(S1+S2) ratio in the range claimed. Further, this component (the B-1 component) is not reasonably suggested to have a melting point higher than this range as it is exemplified in this range and Kuwata teaches a separate component with a higher melting temp must be used. (See ¶[0033]) Additionally, as a single melting peak at 140 oC is S2 and S1 would be 0 the ratio claimed would also be computed as 0. Therefore, based on the above evidence, one of ordinary skill in the art is reasonably suggested when tested accordingly copolymer B-1 of Kuwata must be in the range of S1/(S1+S2) claimed.
The reliance upon the specification by the Office to establish inherent properties has been supported by the Federal Circuit. In re Kao, 98 USPQ2d 1799, 1809 (Fed. Cir. 2011).
With respect to the film formation life limitation, Kuwata is silent on this property. However, Kuwata’s vinyl chloride copolymers include acrylic acid components (which have a reactivity of less than 0.7 in an amount of 1 / (90 + 1 + 9) = 1 parts per 100), along with the S1/(S1+S2) limitation as discussed above as recited by claim 1. Every one of Applicant’s inventive examples have the recited film formation life when using vinyl chloride copolymers in which the above limitations are anticipated, or in the alternative met. In other words, every copolymer that comprises MAN, AA and VDC in the ratios recited and roughly the amounts used in making the copoplymer has the recited film formation lifetime property. Therefore, one of ordinary skill in art is reasonably suggested the recited film formation life limitation of the instant claims must be anticipated, or in the alternative met, when tested accordingly because of the above analysis of the vinyl chloride copolymer claimed.
The reliance upon the specification by the Office to establish inherent properties has been supported by the Federal Circuit. In re Kao, 98 USPQ2d 1799, 1809 (Fed. Cir. 2011).
With respect to Claim 15, Kuwata teaches polypropylene – vinyl chloride copolymer – polyamide film laminates for adhesive testing and it is clear the adhesion is described as occurring between these three films. (¶[0071]-¶[0072]) Therefore, the above anticipates, or in the alternative is sufficiently specific to anticipate or in the alternative meets, the recited vinyl chloride copolymer – substrate laminate of Claim 15.
With respect to Claim 16, Table 1 of the as-filed specification reasonably suggests the inclusion of monomers with reactivity ratio of less than 0.7 (which is methyl methacrylate (MMA), AA and MAN in Table 1) and ratios as claimed of 3 or more and also having melting temp in the range of 140-155 oC have a water vapor permeability of less than 0.50 g/m2/day or less. Therefore, when tested appropriately, one of ordinary skill in the art is reasonably suggested the above VDC, MAN, AA copolymer of Kuwata must have a water vapor permeability in the recited range. This anticipates or in the alternative meets the limitations of Claim 16.
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 nonobviousness.
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.
Claim 13 and 16 are rejected under 35 U.S.C. 103 as being unpatentable over Kuwata (EP2216173 provided on IDS) in view of Kameyama (U.S. 20150044489).
Kuwata is applied as above under §102/§103.
Kuwata exemplifies a vinyl chloride polymerization process which includes an ammonium persulfate initiator ¶[0081] but is silent on the polymerization activator according to the claim.
Kuwata teaches any known emulsion polymerization method can be used. ¶[0031]
Kameyama, also working in the field of vinylidene chloride polymerizations similar to Applicant and Kuwata, teaches polymerization activators include those that accelerate the radical decomposition of the initiators, such as sodium hydrogen sulfite. (¶[0022]) Persulfate initiators are taught by Kameyama in this section. Kameyama further teaches these substances can remain in the resulting coatings formed from the latexes causing a decrease in barrier properties and, thus, the amount of the substances to be used is preferably as small as possible.
It would have been obvious to a person having ordinary skill in the art at the time the invention was filed to practice the invention of Kuwata by using a polymerization activator to accelerate the radical decomposition of the sodium persulfate exemplified by Kuwata as taught by Kameyama. ¶[0022] One of ordinary skill in the art would have been motivated to choose sodium hydrogen sulfite as the polymerization accelerator because Kameyama specifically teaches it in ¶[0022].
Kameyama teaches the substances may remain in the resulting coating, one of ordinary skill in the art is reasonably suggested the sodium hydrogen sulfite must be present in the resulting VDC copolymer dispersion of Kuwata because Kuwata does not appear to remove initiators or additional substances from the VDC latexes (dispersions) produced.
The above reads over the polymerization initiator of Claim 13.
Claim 14 is rejected under 35 U.S.C. 103 as being unpatentable over Kuwata (EP2216173 provided on IDS).
Kuwata is applied as above under §102/§103.
The above rejection of Kuwata is complete substitution of meth acrylate (MA) for methacrylonitrile (MAN). Kuwata is not necessarily drawn to substituting one monomer for another. In other words, partial substitution is also within the purview of one of ordinary skill in the art practicing Kuwata. Kuwata even states one or two or more of these monomers can be used in ¶[0032].
It would have been obvious to a person having ordinary skill in the art at the time the invention was filed to practice the invention of Kuwata, in particular that of B-1 in Table 1 by partially substituting methacrylonitrile (MAN) for the exemplified meth acrylate (MA) because Kuwata suggests such monomers may be used together combination of two or more in ¶[0032] and it logically follows that partial substitution of the exemplified monomer (MA) with MAN would permit one of ordinary skill in the art to gage the effect of using different but related monomers taught in Kuwata for producing the films of Kuwata. One of ordinary skill in the art would be motivated to start by using 50/50 mix of MAN and MA for the above partial substitution because logically follows it uses half of the amount of each monomer for substitution as a starting point for routine experimentation with Kuwata and changes in melting temperature as the table and Kuwata suggest the melting temperature of the B-1 (or non-A copolymers) should be below 170 oC as the A component is required to have a melt temperature in the a range above 170 oC and mixed with a non-A polymer.
The resulting copolymer mixture from the above motivation would be:
Monomer
Amount
Reactivity Ratio to VDC
Vinylidene chloride (VDC)
90
--
Methacrylonitrile (MAN)
4.5
0.036
Acrylic Acid (AA)
1
0.29
Meth acrylate (MA)
4.5
0.7
The ratio of MAN + AA to (VDC + AA + MA + MAN) as recited is (4.5 + 1) / (90 + 4.5 + 1 + 4.5) = 5.5 which meets the ratio limitation of Claim 14 via its dependency to Claim 1.
With respect to the S1/(S1+S2) limitation, Kuwata is silent on this ratio but, as it is a ratio of melting point data it must exist as the above aqueous dispersion of B-1 has a melting temperature. Applicant’s as filed specification puts forth a variety of examples with similar comonomers, all with VDC being used in 80+ wt% and everyone copolymer with a melting peak temperature in the range of 140-155 oC has a S1/(S1+S2) ratio in the range claimed. Further, this component (the B-1 component) is not reasonably suggested to have a melting point higher than this range as it is exemplified in this range and Kuwata teaches a separate component with a higher melting temp must be used. (See ¶[0033]) Additionally, as a single melting peak at 140 oC is S2 and S1 would be 0 the ratio claimed would also be computed as 0. Therefore, based on the above evidence, one of ordinary skill in the art is reasonably suggested when tested accordingly copolymer B-1 of Kuwata discussed above must be in the range of S1/(S1+S2) claimed.
The reliance upon the specification by the Office to establish inherent properties has been supported by the Federal Circuit. In re Kao, 98 USPQ2d 1799, 1809 (Fed. Cir. 2011).
With respect to the film formation life limitation, Kuwata is silent on this property. However, Kuwata’s vinyl chloride copolymers include acrylic acid components (which have a reactivity of less than 0.7 in an amount of 1 / (90 + 1 + 9) = 1 parts per 100), along with the S1/(S1+S2) limitation as discussed above as recited by claim 1. Every one of Applicant’s inventive examples have the recited film formation life when using vinyl chloride copolymers in which the above limitations are anticipated, or in the alternative met. In other words, every copolymer that comprises MAN, AA and VDC in the ratios recited has the recited film formation lifetime property. Therefore, one of ordinary skill in art is reasonably suggested the recited film formation life limitation of the instant claims must be anticipated, or in the alternative met, when tested accordingly because of the above analysis of the vinyl chloride copolymer claimed.
The reliance upon the specification by the Office to establish inherent properties has been supported by the Federal Circuit. In re Kao, 98 USPQ2d 1799, 1809 (Fed. Cir. 2011).
With respect to Claim 16, Table 1 of the as-filed specification reasonably suggests the inclusion of monomers with reactivity ratio of less than 0.7 (which is methyl methacrylate (MMA), AA and MAN in Table 1) and ratios as claimed of 3 or more and also having melting temp in the range of 140-155 oC and ~5 parts of MAN and MA (a monomer with reactivity of 0.7 or above) have a water vapor permeability of less than 0.50 g/m2/day or less. Therefore, when tested appropriately, one of ordinary skill in the art is reasonably suggested the above VDC, MAN, AA, MA copolymer of Kuwata discussed above must have a water vapor permeability in the recited range. This meets the limitations of Claim 16.
Response to Arguments
Applicant' s claim amendments and remarks filed January 29, 2026 have been fully considered and but are not sufficient to move the application to allowance. Applicant has essentially placed previous Claim 3 into Claim 1 and added new Claim 16. The rejections of record have been updated to combine the previous rejection of Claim 3 into Claim 1 and address new Claim 16. Applicant’s Rule 132 declaration submitted January 29, 2026 has been fully considered and accepted but is not persuasive as discussed below.
Applicant’s arguments and Rule 132 declaration filed January 29, 2026 have been fully considered but are not persuasive.
With respect to the Rule 132 declaration, the arguments to the polymerization kinetic differences not leading to a reasonable expectation of success in substituting MAN for MA are not persuasive.
The Rule 132 declaration fails to consider MAN is specifically taught by Kuwata as an acceptable monomer to copolymerize VDC along with other monomers including MA, AA, MMA, ethyl acrylate, butyl acrylate, methacrylic acid and acrylonitrile and can be used in one, two or more combinations. (¶[0032]) MAN is not motivated to be used from some outside reference or from simply picking a monomer because it is known to use MAN. MAN is specifically taught by Kuwata in practicing the invention of Kuwata.
Kuwata teaches every single monomer of ¶[0021] of the as-filed specification, exemplifies multiple comonomers Applicant also used (MA and AA) but somehow all the other common comonomers cannot be used because of polymerization kinetics reasons? Additionally, AA is also exemplified by Kuwata but Applicant is silent on the polymerization kinetics with this monomer. It is unclear how one of ordinary skill in the art is undermined in using monomers specifically taught by Kuwata to practice making films of the VDC copolymer taught by Kuwata from polymerization kinetics perspective. Kuwata is silent on polymerization kinetics and Applicant does not appear to guide one of ordinary skill in the art in how to overcome the difference in reactivity ratios Applicant is referring to in the prior art which leads one to conclude these difference in polymerization kinetics must be known to one of ordinary skill in the art and such that Applicant does not need to detail how to overcome these issues in the as-filed specification to provide proper enablement of the claimed invention.
The fact that Kuwata does not discuss polymerization kinetics in Applicant’s terms does not mean that one of ordinary skill in the art is somehow unable to use MAN in making VDC copolymers of Kuwata with the melting temperatures motivated by the rejection of record.
Further, Applicant is reminded they make films with combinations of MAN and MA (See Example 16, 17 and 18) and MAN alone (See Example 7, 8, and 9) and also MAN with other monomers in Kuwata such as AA (Example 1, 2 and 3). Various combination of MAN, MA and AA along MMA (MA being the only monomer with a reactivity ratio of 0.7 or more) all are exemplified by Applicant and all produce films of measurable properties according to the claimed invention. Applicant does not appear, nor have they argued or demonstrated, the polymerizations processes between Kuwata and Applicant’s exemplified process are significantly different that one of ordinary skill in the art would understand these differences make up for Applicant’s argued allegedly seriously incompatible polymerization kinetics in using MAN over MA when Kuwata already teaches it.
Furthermore, Applicant’s Rule 132 declaration makes contradictory statement and statements that are not supported by the evidence of record.
Item 10 in the Rule 132 declaration states MA faster and the VDC chain end then Item 11 states the reaction speed of MAN is slow. These appear to be contradictory statements.
Applicant then goes on to say that Kwuata’s process is optimized for MA but does not state why they come to this conclusion nor do they address the use of AA in Kuwata’s process. In this section, Applicant also states the polymerization would fail to complete. Applicant has not detailed why the polymerization process of Kuwata is so different than Applicant. Additionally, Table 1 of Applicant’s as-filed specification demonstrates MAN only polymerization with VDC result in copolymers and there is discussion as of large amounts of residual, oily MAN and VDC latex in the monomers. Even comparative examples which use slightly different polymerization initiators and conditions than Kuwata and Applicant’s inventive polymerizations do not make mention of any kind of large excess of residual monomers or lack of film formation.
Similarly, the Rule 132 remarks to Composition Drift and Barrier Loss appear speculative in nature. There is no evidence to support Applicant’s claim poor barrier performance (greater than 0.6 g/m2/day) happens in these conditions. Similarly, for the Heterogeneity and Stability section, Applicant simply speculates as to chain microstructure causing film formation life issue but the evidence of record does not support their conclusions. Applicant actually makes MAN only copolymers with VDC which meets all the limitations of the claims including film formation life they are arguing is not possible simply by using MAN as a comonomer with VDC. The evidence of record does not support the conclusions of Item 10 and Item 11 of the Rule 132 declaration.
The Rule 132 declaration then goes on to argue unexpected results. Applicant is reminded unexpected results are not persuasive in overcoming a §102 rejection and a §102 rejection is still of record.
The Examiner notes the motivated / immediately envisaged amount of methacrylonitrile is 9 parts (not 1 part as in Comparative Example 2) and, therefore, Applicant’s conclusions concerning the “destruction” of film formation stability are not persuasive.
Additionally, Applicant also fails to consider the melting point temperature of the polymers of Kuwata with respect to the rejection of record. All the melting points are motivated to be in the range of less than 170 oC and on the order of 140 oC for this VDC copolymer in Kuwata. (i.e. Control of S1 peak from the as-filed specification). Comparative Example 2 does not have a melting point around 140 oC. Note that Applicant’s arguments to controlling the S1 peak in this section ultimately come to generating copolymers with melting temperatures below 170 oC. The as-filed specification states “[0050] The method of controlling the melting peak area of 170 °C or more of the vinyl halide copolymer is not limited. For example, the below-described methods may be used singly or in combination.”
Since Kuwata’s copolymers according to the rejection of record have melting points below 170 oC. Kuwata’s copolymers must have properties Applicant argues are unexpected but simply untested. Applicant’s specification specifically states any method can be used to get the copolymer melting point below 170 oC and as Kuwata’s copolymers have melting points in this range (below 170 oC) the polymerization conditions must determine the S1 level (or control of S1) as Applicant argues.
Therefore, for the above reason, the discussion provided in the Rule 132 declaration is not persuasive.
Applicant’s arguments and remarks filed January 29 have been fully considered but are not persuasive.
Applicant’s arguments to the §102/§103 rejections have been fully considered but are not persuasive.
Applicant argues the §102 portion of the §102/§103 rejection is not proper because Kuwata does not specifically disclose a combination of MAN, VDC in the amounts claimed. And at once envisaged is obviousness, not anticipation. This argument is no persuasive. Each and every element of the claim is either specifically disclosed by Kuwata or inherently present in Kuwata for reasons of record. As for Applicant’s obviousness not anticipation argument, the MPEP does not support Applicant’s interpretation of the “at once envisaged” language. SEE MPEP 2131.02 III.
Applicant’s remarks in Section A have been addressed above with respect to the Rule 132 declaration and are not persuasive for the same reasons detailed above.
In Section B, Applicant’s argues that Kuwata teaches away from itself through the use of glycidyl methacrylate and the monomers in ¶[0032] are not interchangeable even though Kuwata teaches they are in this section. This argument is not persuasive. Applicant fails to consider the teachings of Kuwata. C-1 is used in Comparative Examples 6 and 7 and in ¶[0116] the poor adhesion is taught to happen because of a thermal crosslinking agents being copolymerized into the matrix. In ¶[0089] C-1 is taught to include glycidyl methacrylate (a monomer in ¶[0032]) and also and epoxy based thermal crosslinking agent was copolymerized. (emphasis added). ¶[0116] does not refer to the glycidyl methacrylate being added as the root of the adhesion problem but the epoxy based thermal crosslinking agent which is not taught as a monomer in ¶[0032]. Therefore, Applicant mischaracterizes Kuwata and this argument is not persuasive.
In Section C, Applicant argues the unexpected results argued in the Rule 132 declaration.
This argument is not persuasive for the above already discussed reasons.
Evidence of secondary considerations, such as unexpected results or commercial success, is irrelevant to 35 U.S.C. 102 rejections and thus cannot overcome a rejection so based. In re Wiggins, 488 F.2d 538, 543, 179 USPQ 421, 425 (CCPA 1973). See MPEP §2131.04.
Additionally, under §103 Applicant fails to consider the requirements to overcome a §103 rejections based on allegedly unexpected results.
Overcoming a §103 rejection based on unexpected results requires the combination of three different elements: the results must fairly compare with the prior art, the claims must be commensurate in scope and the results must truly be unexpected. (See MPEP §716.02) Applicant’s showing of allegedly unexpected results does not satisfy any of these requirements. Additionally, the burden rests with Applicant to establish results are unexpected and significant. (MPEP §716.02(b))
In the instant case, the claims are not commensurate in scope with the showing of allegedly unexpected results as ratio recited is open ended and Applicant present no data on what is to be expected with ratios above 20 and there is no evidence to suggest the results submitted are probative of the VDC copolymers as claimed with ratio of 30, 40, 50 or greater or any amounts over 20.
Applicant’s arguments to Kamayama, Meier and Kuwata have been fully considered but are not persuasive. Applicant argues there is no motivation to add an activator, this argument is not persuasive. The motivation is provided in the obviousness statement in the last paragraph of page 9 of this action. Meier has been removed as reference used in the rejection of record and, therefore, remarks to Meier are moot. Additionally, Kamayama already teaches the activator accelerates radical decomposition as Applicant has found.
Applicant also argues there is no motivation to use the activator to during the reaction to control crystal morphology for storage stability. This argument is no persuasive. There is no requirement that the polymerization activator must be used for the same purpose as Applicant. Additionally, the polymerization activator will have any effect it will have on the polymerization in Kuwata, regardless if it is specifically disclosed or not. Note that as discussed above, Applicant specifically states ANY process may be used to reduce S1 (which is a melting temperature above 170 oC) and Applicant has not detailed how the activator necessarily is specially used for this purpose. In other words, the prior art achieves the recited ratio without specifically referring to it in Applicant’s terms. This does not somehow result in not motivating use of a polymerization accelerator found in the prior art.
As previously stated, Example 3 has the recited film formation of Claim 1 but Comparative Example 3 does not have the recited film formation of Claim 1. If the use of activator is the reason for allegedly unexpected results, Applicant’s data does not support this conclusion as the activator gives the allegedly unexpected results sometimes (Example 3) and not other times (Comparative Example 3).
Additionally, Applicant muddies the record. Applicant’s comparative Example 3 is made according to Comparative Example 1 of PTL 4 (JP2018127523; English machine translation provided). Comparative Example 1 of PTL 4 says it is made according to Example 1 which includes using a polymerization activator (¶[0029] sodium D-ascorbate one of the activator disclosed by Applicant including sodium hydrogen sulfite as in Kamayama.)
Applicant also argues Example 3 of their inventive example has an activator. It also has the same amount of monomers as Comparative Example 3. Both Comparative Example 3 and Example 3 have the same monomer feed and activator use. Applicant also discloses that any method can be used to minimize the S1 peak (i.e. melting above 170 oC). ¶[0050] of the as-filed specification. This S1 ratio (from the Applicant table) is melting temps of the copolymer below 170 oC. Kuwata and Kamayama are already teaching VDC copolymers with melting points around 140 oC. (i.e. well below 170 oC). Therefore, S1 is minimized regardless if Kuwata uses Applicant’s terminology or not.
Additionally, if Applicant believes there is some “synergistic combination of parameters” are required for the claimed invention, this “synergistic combination of parameters” must be in the broadest claim or else the claimed invention cannot be achieved. In terms of §103, if Applicant intends “synergistic combination of parameters” to be another way of stating unexpected results, the above commensurate in scope issues still apply.
Conclusion
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/Christopher M Rodd/Primary Examiner, Art Unit 1766