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 .
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 1/12/2026 has been entered.
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Any rejections and/or objections made in the previous Office action and not repeated below are hereby withdrawn.
Claim Rejections - 35 USC § 102
Claim(s) 1 and 3-7 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Masahito (US 2015/0344658 A1).
Regarding Claim 1, Masahito teaches additive compositions for polystyrene foams comprising (B1) tetrabromobisphenol A-bis(2,3-dibromo-2-methylpropyl ether), (C) zinc-modified hydrotalcite, and (E) heat stabilizers (Abstract; ¶ 24). Examples 1 and 3-8 each comprise tetrabromobisphenol A-bis(2,3-dibromo-2-methylpropyl ether), zinc-modified hydrotalcite, and bis(2,6-di-t-butyl-4-methylphenyl)pentaerythritol diphosphite (¶ 46, 51-52, 57; Table 1). Note that although ¶ 57 of Mashito states “diphosphate”, this is believed to be a typographical error since the listed ADK STAB PEP-36 is known to be a “diphosphite” (see for instance ¶ 97 of the instant specification). bis(2,6-di-t-butyl-4-methylphenyl)pentaerythritol diphosphite is construed as an aromatic phosphite. Each of examples 1 and 3-8 have (B1) concentrations that fall within the scope of the claim and are relied upon in the alternative. For instance, Example 1 exhibits 0.6 / 0.65 = 92 wt% and Example 5 exhibits 0.15 / 0.20 = 75 wt% based on the construction of diphosphite being component (D).
Further, comparative examples 2 and 5 (which contain tetrabromobisphenol A-bis(2,3-dibromo-2-methylpropyl ether), zinc-modified hydrotalcite, and diphosphite) also anticipate the subject matter claimed and are relied upon each in the alternative. Comparative Examples 2 and 5 exhibit 0.6 / 0.65 = 92 wt% of diphosphite.
Regarding Claim 3, Examples 1 and 3-8 further comprise tetrabromobisphenol A-bis(2,3-dibromopropyl ether). Example 3 further comprises tris(tribromophenoxy)triazine. Example 4 further comprises brominated epoxy oligomer. See ¶ 46-50 and Table 1.
Regarding Claim 4, Examples 1 and 3-8 and comparative examples 2 and 5 contain B1/(B1+C) ratios consistent with what is claimed (95 wt%; 96 wt%; 99 wt%; 83 wt%; 95 wt%; 93 wt%; 96 wt%; 95 wt%; and 95 wt% respectively).
Regarding Claims 5 and 7, the examples and comparative examples of Mashito describe expandable compositions and foams thereof comprising the additive compositions and styrene-based resin (Tables 1 and 2; ¶ 63).
Regarding Claim 6, Examples 1 and 3-8 exhibit 0.05-0.1 pbw diphosphite relative to 100 pbw polystyrene resin. Comparative Examples 2 and 5 exhibit 0.05 pbw diphosphite relative to 100 pbw polystyrene resin.
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(s) 8-11 is/are rejected under 35 U.S.C. 103 as being unpatentable over Masahito (US 2015/0344658 A1).
Regarding Claims 8-11, Masahito teaches additive compositions for polystyrene foams comprising (B1) tetrabromobisphenol A-bis(2,3-dibromo-2-methylpropyl ether), (C) zinc-modified hydrotalcite, and (E) heat stabilizers (Abstract; ¶ 24). Examples 1 and 3-8 each comprise tetrabromobisphenol A-bis(2,3-dibromo-2-methylpropyl ether), zinc-modified hydrotalcite, and bis(2,6-di-t-butyl-4-methylphenyl)pentaerythritol diphosphite (¶ 46, 51-52, 57; Table 1). Note that although ¶ 57 of Mashito states “diphosphate”, this is believed to be a typographical error since the listed ADK STAB PEP-36 is known to be a “diphosphite” (see for instance ¶ 97 of the instant specification). bis(2,6-di-t-butyl-4-methylphenyl)pentaerythritol diphosphite is construed as an aromatic phosphite. Each of examples 1 and 3-8 have (B1) concentrations that fall within the scope of the claim and are relied upon in the alternative. For instance, Example 1 exhibits 0.6 / 0.65 = 92 wt% and Example 5 exhibits 0.15 / 0.20 = 75 wt% based on the construction of diphosphite being component (D).
The particular embodiments of Mashito differ from the subject matter claimed with respect to the particular phosphite ester used. In this regard, Mashito teaches other phosphites such as triphenylphosphite (¶ 25). In view of such, it would have been obvious to one of ordinary skill in the art to substitute bis(2,6-di-t-butyl-4-methylphenyl)pentaerythritol diphosphite with triphenylphosphate, thereby predictably affording workable flame retardant polystyrene foam compositions in accordance with the teachings of Mashito.
Alternatively with respect to claims 8 and 10, Mashito also teaches the stabilizer can be various aromatic phosphates (¶ 35). Accordingly, it would have been obvious to one of ordinary skill in the art to utilize aromatic phosphates in lieu of bis(2,6-di-t-butyl-4-methylphenyl)pentaerythritol diphosphite, thereby predictably affording workable flame retardant polystyrene foam compositions in accordance with the teachings of Mashito. The use of phosphate meets claims 8 and 10 as the claims only serve to further limit the identity of phosphite species without explicitly requiring phosphites to be present.
Claim(s) 1, 3-8, and 10 is/are rejected under 35 U.S.C. 103 as being unpatentable over Masahito (US 2015/0344658 A1) in view of Naito (US 2006/0106122 A1).
Regarding Claim 1, Masahito teaches additive compositions for polystyrene foams comprising (B1) tetrabromobisphenol A-bis(2,3-dibromo-2-methylpropyl ether) and (C) zinc-modified hydrotalcite (Abstract). Masahito teaches the further incorporation of aromatic phosphate flame retardants such as triphenyl phosphate (¶ 17, Example 5 of Table 1). Masahito differs from the subject matter claimed in that a preferred quantity of phosphate is not described.
Naito is also directed toward the use of brominated bisphenol A ethers for polystyrene foams (Abstract). Naito teaches it was known in the art phosphate flame retardants and brominated bisphenol ethers exhibit synergist flame retardancy characteristics (¶ 53) whereby the weight ratio of brominated bisphenol ether to phosphate is preferably 0.3-30 to provide synergism (¶ 54). It would have been obvious to one of ordinary skill in the art to utilize the quantities of Naito within the compositions of Masahito because doing so would afford flame retardancy synergism as taught by Naito. A weight ratio of brominated bisphenol ether to phosphate of 0.3-30 is equivalent to roughly 23 wt% to 97 wt% (B1) relative to (B1)+(D).
Regarding Claim 3, Masahito teaches embodiments that further comprise tetrabromobisphenol A-bis(2,3-dibromopropyl ether), tris(tribromophenoxy)triazine, and/or brominated epoxy oligomer (Examples).
Regarding Claim 4, Examples 1 and 3-8 contain B1/(B1+C) ratios consistent with what is claimed (95 wt%; 96 wt%; 99 wt%; 83 wt%; 95 wt%; 93 wt%; 96 wt% respectively).
Regarding Claims 5 and 7, the examples of Mashito describe expandable compositions and foams thereof comprising additive compositions and styrene-based resin (Tables 1 and 2; ¶ 63).
Regarding Claim 6, Naito teaches phosphate ester is preferably used at 0.5-4 pbw relative to 100 pbw polystyrene resin for the purpose of achieving flame retardancy while avoiding reductions in mechanical strength (¶ 52). It would have been obvious to one of ordinary skill in the art to utilize 0.5-4 pbw phosphate relative to 100 pbw polystyrene resin because doing so would provide sufficient flame retardancy while avoiding reductions in mechanical strength as taught by Naito.
Regarding Claims 8 and 10, the combination of Mashito and Naito meets claims 8 and 10 as the claims only serve to further limit the identity of phosphite species without explicitly requiring phosphites to be present.
Response to Arguments
Applicant's arguments filed 1/12/2026 have been fully considered but they are not persuasive.
Applicant urges the term “aromatic phosphite” in the claims is being used to mean “aromatic monophosphite”. This is not found persuasive. The plain and ordinary meaning of “aromatic phoshite” is an aromatic compound with a phosphite functionality. Monophosphites and diphosphites are sub-genera encompassed by the term. See for instance ¶ 24-25 of Mashito where the “phosphite” terminology is used to denote both monophosphites and diphosphites. See also the Adeka materials attached to Applicant’s arguments which list diphosphites under the generic term “phosphite antioxidants”. Limitations from the specification are not read into the claims.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to STEPHEN E RIETH whose telephone number is (571)272-6274. The examiner can normally be reached Monday - Friday, 8AM-4PM Mountain Standard Time.
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/STEPHEN E RIETH/Primary Examiner, Art Unit 1759