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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 3/6/2026 has been entered.
Claim(s) 1-20 are pending in the application.
Claim(s) 15-18, and 20 are withdrawn due to a previous restriction requirement.
Claim Rejections - 35 USC § 103
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.
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 and 35 U.S.C. 103 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 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 1-14, and 19 are rejected under 35 U.S.C. 103 as being unpatentable over EP3252085 to Kontro et al. (as cited on the IDS dated 12/12/2022) in view of EP2182524 to Pakkanen et al (as cited on the IDS dated 12/12/2022).
Regarding Claims 1, 9-10, 12, 14, and 19, Kontro teaches an ethylene copolymer composition [abstract] that has different average molecular weights and/or comonomers i.e., multimodal [0012] comprising a first copolymer (A) in an amount of 25 to 57 wt% [0097] having a first polymerization stage that is a low molecular weight homopolymer of ethylene [0057] (Corresponding to (A)) wherein (A) is preferred to be made in two steps comprising a mixture of two homopolymers of ethylene [0072] wherein the polymers are different from each other [0073] reading on (ai) and (aii) comprising an ethylene homopolymer; and a higher molecular weight ethylene copolymer component made in the second polymerization stage [0074] (corresponding to (B)).
Kontro further teaches the multimodal polyethylene composition has a density of 930 to 949 kg/m3 [0013] reading on 930 kg/m3 or more; a MFR2 of 0.1 to 4 g/10 min [0107] reading on 0.05 to 10 g/10min; and a flexural modulus calculated using the Flexural modulus formula [0112] and a density of 930 to 949 kg/m3 [0113] to give a flexural modulus range of 245.5-651.1 MPa, thereby reasonably reading on a range of 500 to 800 MPa.
Kontro does not explicitly teach the properties of higher and lower molecular weight of the first polymerization stage (A) and second polymerization stage (B).
However, molecular weight has a direct correlation with melt flow rate as it is well known in the art that a higher molecular weight will give a lower melt flow rate. Kontro teaches component (A) to have a MFR2 of 100 to 1000 g/10 min [0060] and component (B) to have a MFR5 of 0.3 to 12 g/10 min. Therefore, the molecular weight of Kontro’s (A) will be lower than the molecular weight of Kontro’s (B). Case law has held that claiming of a new use, new function or unknown property which is inherently present in the prior art does not necessarily make the claim patentable. In re Best, 562 F.2d 1252, 1254, 195 USPQ 430, 433 (CCPA 1977). The courts have stated that a chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. In re Spada, 911 F.2d 705, 15 USPQ2d 1655, (Fed. Cir. 1990). See also In re Best, 562 F.2d 1252, 195 USPQ 430, (CCPA 1977). "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." Further, if it is the applicant's position that this would not be the case, evidence would need to be provided to support the applicant's position. In the alternative that the above ai disclosure is insufficient to anticipate the above listed claims, it would have nonetheless been obvious to the skilled artisan to produce the claimed composition, as the reference teaches each of the claimed ingredients within the claimed proportions for the same utility.
Kontro does not explicitly teach the MFR2 of the fraction (ai) is lower than fraction (aii).
However, Kontro teaches it is preferred to conduct the first polymerization stage in two steps [0072] wherein a polymer which is different from the first homo- or copolymer of ethylene is produced preceding the first polymerization stage [0073] and the MFR2 ranges of the first polymerization stage do not necessarily apply for the mixture of the prior polymerization stage and the first polymerization stage [0062]. As such, since the first and preceding polymerization stages are different and have different MFR2 values, one of the polymerization stages must have a lower MFR2, thereby reading on the MFR2 of the fraction (ai) is lower than faction (aii).
Kontro is silent on the concentrations of (ai) and (aii) within the first copolymer (A).
However, it would have been obvious to a person of ordinary skill in the art to select ranges within the claimed range; particularly equal amounts of the copolymer fractions i.e., 50 wt% (ai) and 50 wt% (aii). Using these amounts of first copolymer (A) and the amount of (ai) and (aii) it is reasonably calculated that the ethylene copolymer composition comprises 12.5 to 28.5 wt% of components of (ai) and (aii), therefore reading on each fraction of (A) forms at least 10 wt% (claim 1), at least 12 wt% (claim 12), at least 20 wt% (claim 14) of the multimodal polyethylene composition.
Kontro does not particularly teach the multimodal polyethylene composition has a commoner content of 0.25-2.0 mol%.
However, Pakkanen teaches a multimodal copolymer of ethylene [Pakkanen, abstract] comprising C3-10 alpha-olefin commoners preferably at an amount of 0.1-3.0 mol% [Pakkanen, 0039]. Kontro and Pakkanen are analogous art as they are in the same field of endeavor, namely multimodal polyethylene copolymers.
Before the effective filing date of the instantly claimed invention, it would have been obvious to one of ordinary skill in the art to select the comonomer content as taught by Pakkanen in Kontro’s composition.
The motivation would have been that the at least one comonomer [0010] in the range of 0.1-3.0 mol% [Pakkanen, 0039] contributes to the improved stress cracking resistance in a manner suitable or wire and cable applications [Pakkanen, 0034].
Regarding the wt% range of (ai), (aii), and the flexural modulus of the composition, though the prior art range (12.5 to 28.5 wt%) and (245.5-651.1 MPa) is not identical to the claimed range (at least 10, 12, and 20wt%) and (500-800 MPa), it does overlap. It has been held that, where the claimed ranges overlap or lie inside ranges disclosed by the prior art, a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPG 90 (CCPA 1976) (MPEP 2144.05)
Regarding Claim 2, Kontro in view of Pakkanen teaches the multimodal ethylene copolymer composition of claim 1 as set forth above and incorporated herein by reference.
Kontro in view of Pakkanen is silent on the concentrations of (ai) and (aii) within the ethylene homopolymer (A).
However, it would have been obvious to a person of ordinary skill in the art to select ranges within the claimed range; particularly equal amounts of the copolymer fractions i.e., 50 wt% (ai) and 50 wt% (aii) thereby reading on 40-60 wt% (ai) and 40-60 wt% (aii).
Regarding Claims 3 and 5, Kontro in view of Pakkanen teaches the multimodal ethylene copolymer composition of claim 1, wherein the lower molecular weight polymer (A) is an ethylene homopolymer [0057] and the higher molecular weight polymer (B) comprises ethylene and an alpha-olefin comonomer [0074] selected from alpha-olefins containing from 5 to 10 carbon atoms such as 1-hexene [0076].
Regarding Claim 4, Kontro in view of Pakkanen teaches the multimodal ethylene copolymer composition of claim 1, comprising 25-57 wt% of the first homo copolymer (A)[0097] reading on 35-60 wt%; and 43-75 wt% of the second copolymer (B) [0097] reading on 40-65 wt%.
Regarding Claim 6, Kontro in view of Pakkanen teaches the multimodal ethylene copolymer composition of claim 1, wherein a single site catalyst can be used [0005].
Furthermore, the recitation " is obtained using a single site catalyst" is a product by process claim limitation. The claim itself is drawn to the multimodal polyethylene composition. Case law has held that “[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process.” (In re Thorpe, 227 USPQ 964,966). Once the Examiner provides a rationale tending to show that the claimed product appears to be the same or similar to that of the prior art, although produced by a different process, the burden shifts to applicant to come forward with evidence establishing an unobvious different between the claimed product and the prior art product. In re Marosi, 710 F.2d 798, 802, 218 USPQ 289, 292 (Fed. Cir. 1983), MPEP 2113.
Regarding Claim 7, Kontro in view of Pakkanen teaches the multimodal ethylene copolymer composition of claim 1, wherein there is no mention of crosslinking.
Regarding Claims 8 and 11, Kontro in view of Pakkanen does not teach melting point or flexural modulus melting point ratio. Consequently, the Office recognizes that all of the claimed effects or physical properties are not positively stated by the reference. However, Kontro, when modified in the manner proposed above, teaches a product prepared from all of the claimed ingredients in the claimed amounts by a substantially similar process. Therefore, the claimed effects and physical properties - i.e. melting point or flexural modulus melting point ratio - would implicitly be achieved in a product prepared from all of the claimed ingredients in the claimed amounts by a substantially similar process. See In Re Spada, 911, F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990) and MPEP 2111.01 (I)(II). If it is applicant’s position that this would not be the case: (1) evidence would need to be provided to support the applicant’s position and (2) it would be the Office’s position that the application contains inadequate disclosure as to how to obtain the claimed properties in a product prepared from all of the claimed ingredients in the claimed amounts by a substantially similar process.
Regarding claim 13, Kontro in view of Pakkanen teaches the multimodal ethylene copolymer composition of claim 1 as set forth above and incorporated herein by reference.
Kontro in view of Pakkanen is silent on the ratio of (ai) and (aii) within the ethylene copolymer (A).
However, it would have been obvious to a person of ordinary skill in the art to select ranges within the claimed range; particularly equal amounts of the copolymer fractions i.e., 50 wt% (ai) and 50 wt% (aii) therefore reading on a weight ratio between fractions (ai) and (aii) in the range of 1:5 to 5:1.
Response to Arguments
Applicant's arguments filed 3/6/2026 have been fully considered but they are not persuasive.
Applicant states that Kontro is directed to only bimodal compositions.
In response, it is noted that Kontro in view of Pakkanen teaches the ethylene copolymer is a multimodal ethylene copolymer [Kontro, 0103] and multimodal copolymer is defined as having two or more different polymers in different stages [Kontro, 0012].
Applicant states one of ordinary skill in the art would not arrive at the claimed composition based on Kontro without the benefit of impermissible hindsight.
In response, attention is drawn to the rejection of claim 1 wherein Kontro in view of Pakkanen teaches all claimed limitations.
Applicant states there is nothing in Kontro which suggests that using an LMW component which comprises two fractions provides a composition which has lower flex modulus and conductivity.
It is noted that the updated rejection of Kontro in view of Pakkanen teaches the composition as set forth in the rejection of claim 1, wherein Kontro in view of Pakkanen teaches an overlapping flex modulus that is on the lower end of the instantly claimed range.
Applicant states there is no general teaching in Kontro of what the comonomer content or flexural modulus of the composition to be.
In response, attention is drawn to the updated rejection of Kontro in view of Pakkanen that teaches the comonomer content of the composition and the flexural modulus as set forth in the rejection of claim 1. Furthermore, it is noted that a composition with the preferred comonomer content of instant claim 1, and the preferred flexural modulus of claim 1 are further reinforced by Pakkanen in citations [Pakkanen, 0039] and [Pakkanen, 0027] respectively.
For these reasons, Applicant's arguments are not persuasive.
Conclusion
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/DEVIN MITCHELL DARLING/Examiner, Art Unit 1764
/ARRIE L REUTHER/Supervisory Primary Examiner, Art Unit 1764