DETAILED ACTION
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 .
Election/Restrictions
Applicant’s election without traverse of claims 1-11, 14, 20 and 24 in the reply filed on 5/9/25 is acknowledged.
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.
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.
Claim(s) 1, 4-9, 11 and 23-28 are rejected under 35 U.S.C. 102a1 as being anticipated by, or in the alternative, under 35 USC 103 as being unpatentable over, as a commercially available material - Celanese product brochure (2020,) with evidence Siracus et al, Bio-Polyethylene (Bio-PE), Bio-Polypropylene (Bio-PP) and Bio-Poly(ethylene terephthalate) (Bio-PET): Recent Developments in Bio-Based Polymers Analogous to Petroleum-Derived Ones for Packaging and Engineering Applications, Polymers 2020, 12, 1641; doi:10.3390/polym12081641
Claims are directed at HDPE, and further limited by molecular weight range and density, and the source of the ethylene monomer.
At the outset, the examiner submits that claims are for a product, HDPE. The process of how it is made, or the sources of raw materials do not limit a claim for a product. MPEP 2113.
"[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, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985)
HDPE is well known and has been commercially available for many decades, and is therefore not a patentable product. The range of molecular weight and density in the claims are the properties of HDPE.
The details of density, mol. weight (3.9 to 10.5 million), bulk density (0.4 g/cc,) melt flow rate/index (MFR, zero or low,) melt viscosity (>100 ml/g (table),) particle size (<200 (table)) and D50 (within range claimed: table; SEMs): see the Celanese brochure, a commercial source for polyethylene.
Regarding the source of raw material: bio-based PE is made using bio-based ethylene, by polymerization using Ziegler-Natta catalyst. Bio-based ethylene and bio-PE are known in the art as shown by Siracus. The Siracus reference teaches that bio-based polyethylene including HDPE is known since the 2000s. See abstract and section 3, Bio-Based Polyethylene. Siracus is silent on the ratio of bio-based and fossil-based ethylene in the product. However, blending ethylene from different sources to make the product would have been prima facie obvious, depending on availability. Selecting the source is purely based on one’s outlook on environmental, cost considerations, and availability.
Therefore, even if one considers a slightly higher C14 isotope content in the HDPE due to being bio-based as significant difference from the commercial product, it is still not patentable and would have been obvious. It would have been obvious to one of ordinary skill in the art having an awareness of the environmental impact of using fossil fuels to have and use the bio-based HDPE to reduce the carbon footprint.
Claim 24, PE content < 45%: use of plasticizers with polyethylene for processing (such as extrusion) is well-known in the art and is not patentable. Evidence – Celanese Brochure. The actual amount of PE and plasticizer can be optimized based on the desired process.
Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955)
Response to Arguments
Applicant's arguments filed 6/22/26 have been fully considered but they are not persuasive. In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
Wang is removed as a reference because it is not required – the Celanese brochure teaches the properties of PE.
Arguments citing isotopic signatures, radiocarbon content or stable isotope ratio are not persuasive: no evidence is presented showing such differences. Notwithstanding, as stated before, it is well-known that ethylene would polymerize to polyethylene, irrespective of these differences.
The source of ethylene is only process related. See MPEP 2113 for product by process claims. Irrespective, the blending of ethylene from fossil and bio-sources is also prima facie obvious as shown in the rejection.
Regarding whether polyethylene having a different C14 content is patentable is moot, since Siracus does teach HDPE from bio-sources.
Other arguments are addressed in the rejection.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KRISHNAN S MENON whose telephone number is (571)272-1143. The examiner can normally be reached Flexible, but generally Monday-Friday: 8:00AM-4:30PM.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Prem C Singh can be reached at 571-272-6381. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/KRISHNAN S MENON/Primary Examiner, Art Unit 1777
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