DETAILED ACTION
This Office Action is in response to the Amendment filed on 7/21/2026.
Claim 18 was cancelled.
Claims 13-15 have been withdrawn due to a previous restriction requirement.
Claim(s) 19-21 have been added.
Claim(s) 1-17 and 19-21, are now pending in the application.
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 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.
Claims 1-12 and 16-17, are rejected under 35 U.S.C. 103 as being unpatentable over US6228201 to Cooper et al. in view of WO2017/146981 to Karjala et al.
Regarding Claim 1-5 and 8, Cooper teaches Inventive Ex. 9 which is Inventive Resin B [Table 2] wherein Resin B comprises a blend of 75 parts of LDPE Resin A [Table 1] wherein LDPE denotes low density homopolymer polyethylene [Table 1 sub-notes]. As seen in Table 1, Resin A has a melt strength of 7.37 cN, a density of 0.922 g/cm3 (reading on 0.9210 – 0.9275 g/cm3) and a melt index of 5 g/10 min (reading on greater than 4.5 g/10 min) wherein melt strength and melt index are measured at 190°C [Col 5, L 5-9] thereby reading on all elements of claims 1-4, and 8.
Cooper’s example [Table 1] teaches a melt strength of 7.37 cN as set forth above and therefore does not teach the polyethylene homopolymer having a melt strength of greater than or equal to 5.5 cN and less than or equal to 7.0 cN.
However, Cooper teaches the melt strength can be lowered in order to provide improved pinhole resistance [Col 3, L62-65]. Therefore, the melt strength can be optimized to reach the desired pinhole resistance via a routine optimization. Case law has held that discovering an optimum value of a result effective variable involves only routine skill in the art. In re Boesch, 617 F.2d 272, 205 USPQ 215 (CCPA 1980). Thus, it would have been obvious to one having ordinary skill in the art at the time of the invention was made to decrease the melt strength of the intended polyethylene homopolymer via a routine optimization, thereby obtaining the present invention.
Cooper is silent regarding the low-density polyethylene has a gel permeation chromatography branching ratio greater than or equal to 2.3 and less than or equal to 3.2.
However, Karjala teaches ethylene-based polymers [title] wherein an ethylene-based polymer is a low-density polyethylene and has a gel permeation chromatography branching ratio of 2.0-4.0 [Karjala, P4, L16-20]. Cooper and Karjala are analogous art as they are from the same field of endeavor, namely ethylene polymers.
Before the effective filing date of the instantly claimed invention, it would have been obvious to one of ordinary skill in the art to prepare the LDPE of Cooper with a branching ratio of 2.0-4.0 as taught by Karjala.
The motivation would have been that this range of long branching contribute to the desired melt strength and improved processibility [Karjala, P29, L5-7].
Regarding Claim 6, Cooper in view of Karjala teaches the low-density polyethylene homopolymer of claim 1, having a melt strength of 5.5-7.0 cN and a melt index of 5 g/10 min [table 1] which is greater than the value of 6 which is reasonably calculated from -.780 cN/g/10min * (5 g/10 min) + 9.9 cN, thereby reasonably reading on the formula set forth in claim 6.
Though the prior art range is not identical to the claimed range, 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 7, Cooper in view of Karjala teaches the low-density polyethylene homopolymer of claim 1, wherein the low-density polyethylene preferably has a Mw/Mn value of 5.5-8 [Col 17, L 17-20] (i.e., greater or equal to 7.2).
Though the prior art molecular weight distribution range is not identical to the claimed range, 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 9-12, Cooper in view of Karjala teaches the low-density polyethylene homopolymer of claim 1 as set forth above and incorporated herein by reference.
Cooper does not teach hexane extractable levels, Mz (conv), or a light scattering parameter. Consequently, the Office recognizes that all of the claimed effects or physical properties are not positively stated by the reference(s). However, Cooper, as detailed in the rejection of Claim 1, teaches the same homopolymer with the same melt strength, density, and melt index of instant claims. The homopolymer of Cooper is also made under high pressure, free-radical initiated conditions [Cooper, Col 14, L1-4] performed in the instant specification [0024]. Therefore, the claimed effects and physical properties - i.e. extractable levels, Mz (conv), or a light scattering parameter - 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 16, Cooper in view of Karjala teaches the low-density polyethylene homopolymer of claim 1, wherein the broader disclosure teaches the melt index of the component polymers are in a range of 1-50 g/10 min [Col18, L23-28] thereby reasonably reading on the instantly claimed range of greater than or equal to 5.6 g/10 min.
Before the effective filing date of the instantly claimed invention, it would have been obvious to a person of ordinary skill in the art to select a higher melt index than the preferred embodiment, as suggested by Coopers’ broader disclosure.
The motivation would have been that a higher melt index can reduce the number of pinholes per cm2. This correlation is noted as the increasing melt index of resins in table 1 corresponds to a decreasing number of pinholes per cm2 as seen in table 2. This would have been valuable as there is a need to make a composition that can be used to make pinhole-free disposable containers [col2, L33-38].
Regarding Claim 17, Cooper in view of Karjala teaches a density of 0.922 g/cm3 [Table 1] which lies just outside the instantly claimed range of 0.9240 – 0.9275 g/cm3. It is the Office's position that the values are close enough that one of ordinary skill in the art would have expected similar properties. A prima facie case of obviousness exists where the claimed ranges and prior art ranges do not overlap but are close enough that one skilled in the art would have expected them to have the same properties. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 227 USPQ 773 (Fed. Cir. 1985). See MPEP 2144.05.
Regarding Claim 19, Cooper in view of Karjala teaches the low-density polyethylene homopolymer of claim 1, having 0.1-1.5 C1 (methyl groups) per 1000 total carbon atoms [Karjala, P6, L16-17] which lies just outside the instantly claimed range of no C1 branches. The motivation to select this range would have been that it has been held that it is obvious to select a known material based on its suitability for its intended use. See Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945); In re Leshin, 277 F.2d 197, 125 USPQ 416 (CCPA 1960); and MPEP 2144.07. In the instant case, Karjala shows that no C1 branching is known in the art to be suitable for LDPEs.
It is the Office's position that the values are close enough that one of ordinary skill in the art would have expected similar properties. A prima facie case of obviousness exists where the claimed ranges and prior art ranges do not overlap but are close enough that one skilled in the art would have expected them to have the same properties. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 227 USPQ 773 (Fed. Cir. 1985). See MPEP 2144.05.
Regarding Claim 20, Cooper in view of Karjala teaches the low-density polyethylene homopolymer of claim 1, having 4.0 to 6.0 of 1,3 diethyl branches per 1000 total carbon atoms [Karjala, P6, L20]. The motivation to select this range would have been that it has been held that it is obvious to select a known material based on its suitability for its intended use. See Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945); In re Leshin, 277 F.2d 197, 125 USPQ 416 (CCPA 1960); and MPEP 2144.07. In the instant case, Karjala shows that a 1,3 diethyl branching of 1.5-5.0 branches is known in the art to be suitable for LDPEs.
Though the prior art range is not identical to the claimed range (1.5-5.0), 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 21, Cooper in view of Karjala teaches the low-density polyethylene homopolymer of claim 1, wherein Karjala’s inventive examples have C6+ branching of 3.2-3.5 per 1000 total carbon atoms [Karjala, Table 8].
The motivation to select this range would have been that it has been held that it is obvious to select a known material based on its suitability for its intended use. See Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945); In re Leshin, 277 F.2d 197, 125 USPQ 416 (CCPA 1960); and MPEP 2144.07. In the instant case, Karjala shows that C6+ branching of 3.0-4.0 is known in the art to be suitable for LDPEs.
Response to Arguments
Applicant's arguments filed 7/21/2026 have been fully considered but they are not persuasive.
Applicant states a skilled artisan would not have had any reason to modify Cooper based on the teaching of Karjala. Applicant states this is because Karjala is direct to ethylene based polymers having high melt strengths as seen in Karjala’s table 3, and that Cooper teaches low melt strengths.
In response to applicant’s argument that there is no teaching, suggestion, or motivation to combine the references, the examiner recognizes that obviousness may be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so found either in the references themselves or in the knowledge generally available to one of ordinary skill in the art. See In re Fine, 837 F.2d 1071, 5 USPQ2d 1596 (Fed. Cir. 1988), In re Jones, 958 F.2d 347, 21 USPQ2d 1941 (Fed. Cir. 1992), and KSR International Co. v. Teleflex, Inc., 550 U.S. 398, 82 USPQ2d 1385 (2007). In this case, Karjala provides the motivation that this range of long branching contributes to the desired melt strength and improved processibility [Karjala, P29, L5-7].
Applicant states there is no disclosure that suggests a polymer could be achieved with the branching disclosed in Karjala and the low melt strength as disclosed in Cooper.
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). Cooper teaches the LDPE as set forth in the rejection of claim 1 and is silent regarding to what extent the LDPE is branched. As such, it would have been obvious to one of ordinary skill in the art select the branching ratio as taught by Karjala based on the motivation provided in Karjala of improved processibility [Karjala, P29, L5-7], therefore arriving at the claimed low melt strength and branching ratio as taught by Cooper in view of Karjala.
Applicant states a person of ordinary skill in the art would not have been motivated to simultaneously pursue both a significantly reduced melt strength and a substantially increased melt strength.
In response, the office respectfully disagrees. Not only does the modification of melt strength in the rejection of claim 1 as set forth above not appear to be considered a significantly reduced melt strength (e.g., modifying from 7.37cN to 7.0 cN), but Cooper already readily envisions melt strengths of 0.01-6.5 cN [abstract]. Moreover, Cooper is silent regarding the branching ratio of LDPE polymers, specifically LDPE polymers made under high pressure, free-radical initiated conditions [Cooper, Col 14, L1-4]. As such, it would be obvious to look towards a secondary reference such as Karjala to select a branching ratio, as Cooper does express a preference towards the branching ratio of a high pressure, free radical initiated LDPEs.
For these reasons, Applicant's arguments are not persuasive.
Conclusion
THIS ACTION IS MADE FINAL. 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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DEVIN MITCHELL DARLING whose telephone number is (703)756-5411. The examiner can normally be reached Monday - Friday 7:30am - 5:00pm.
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/DEVIN MITCHELL DARLING/Examiner, Art Unit 1764
/ARRIE L REUTHER/Supervisory Primary Examiner, Art Unit 1764
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