DETAILED ACTION
This Office Action is in response to the Amendment filed on 1/23/2026.
Claim(s) 16-17 have been added.
Claim(s) 13-15 are withdrawn due to a previous restriction requirement.
Claim(s) 1-17, are now pending in the application.
The previous 35 USC 112 rejections of claim(s) 7, 10, and 11 are withdrawn in light of Applicant’s amendment and remarks.
The previous claim objections of claim(s) 1, 7, and 9-12 are withdrawn in light of Applicant’s amendment and remarks.
Election/Restriction
Applicant’s withdrawal of Group II., claim(s) 13-15, drawn to a film in the reply filed on 1/23/2026 is acknowledged. Because applicant did not distinctly and specifically point out the supposed errors in the restriction requirement, the election has been treated as an election without traverse (MPEP § 818.01(a)).
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.
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.
Regarding Claim 6, Cooper 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 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 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 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 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.
Response to Arguments
Applicant's arguments filed 1/23/2026 have been fully considered but they are not persuasive.
Applicant states that Cooper does not teach the features of a melt strength greater than or equal to 5.5 cN and less than or equal to 7.0 cN as recited in amened claim 1 and provides not teaching, suggestion, reason, or rationale for a person of ordinary skill in the art to have modified the LDPE disclosed in Table I of Cooper to have the melt strength recited in amended claim 1.
In response, attention is drawn to the updated rejection of claim 1, wherein Cooper teaches the melt strength can be lowered in order to provide improved pinhole resistance [Col 3, L62-65] and specifically mentions that melt strengths of less than or equal to about 6.5 cN are used suitable to achieve the improved pinhole resistance.
Applicant states Cooper does not disclose, teach, or fairly suggest the features recited in claims 16 and 17 regarding density and melt index.
In response, attention is drawn to the rejections of new claims 16 and 17 as set forth above wherein Cooper teaches a melt index of the component polymers are in a range of 1-50 g/10 min [Col18, L23-28] and a density of 0.922 g/cm3 [Table 1] wherein Cooper’s, density is close enough that one of ordinary skill in the art would have expected similar properties. For these reasons, Applicant's arguments are not persuasive.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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.
Correspondence
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
/MELISSA A RIOJA/Primary Examiner, Art Unit 1764