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 .
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.
Claims 1,2,4-16,19,20 and 22 rejected under 35 U.S.C. 103 as being unpatentable over Krishnaswamy 2012/0108743 in combination with JP2009221336.
Krishnaswamy exemplifies (#2 of table 5) blending/reacting 71 parts PHA’s, 8 parts PBSA, 3 parts nucleating MB, 5 parts slip/antiblock MB, 7.75 parts Citroflex plasiticzer, 0.1 parts triacrylate, 5 parts CaCO3 and 0.15 parts t-butylperoxy-2-ethylhexylcarbonate.
The PHA’s (paragraph 170) are polymers and copolymers of 3-hydroxybutanoic acid which qualify as applicant’s (i). PBSA is one applicant’s preferred (ii) (claim 4).
t-butylperoxy-2-ethylhexylcarbonate is one of applicant’s preferred peroxides (claim 6).
This reaction product corresponds to applicant’s compatibilized “B”.
Krishnaswamy does not suggest combining this reaction product with additional poly(3-hydroxyalkanoate).
JP2009221336 (paragraph 79) similarly discloses treating blends of polyesters with peroxides. One of the polyesters may be a hydroxyalkanoate polymer (paragraph 20). JP2009221336 (paragraph 81) teaches his peroxide treated material can be further combined with resins not so treated. JP2009221336 intends that the resin not so treated is the same type of polyester (eg polyhydroxyalkanoate) that was peroxide treated. This can be seen from example 2 and paragraph 79 where preferably less than 50% of the reference’s polyester “A” is peroxide treated for “efficiency” reasons.
It would have been obvious to add some untreated polymer and/or copolymer of 3-hydroxybutanoic acid (which qualifies as applicant’s “A”) to Krishnaswamy’s peroxide treated blend. This would avoid using an unnecessarily large amount of peroxide.
Given Krishnaswamy utilizes the same polyesters, same peroxide, same amounts etc as applicant does to form the peroxide treated component, the same morphology would be expected to result.
In regards to applicant’s dependent claims:
JP2009221336 (paragraph 81) teaches arbitrary mixing ratios for the untreated (ie applicant’s “A”) and treated components. Furthermore, JP2009221336 (paragraph 15) exemplifies a combination of 30 pars of the treated component with 70 parts of the untreated component. It would have been obvious for one of ordinary skill to select the appropriate amounts of treated and untread polyester to achieve the “in-between” properties of the treated polyester and untreated polyester. This suggests applicant’s claims 2,12 and 16.
The peroxide treatment (paragraph 103 of JP2009221336; paragraph 171 of Krishnaswamy) is carried out by extrusion – meeting applicant’s claim 8.
The blending of treated and untreated polyester is carried out in an extruder (JP2009221336 paragraph 105) – meeting applicant’s claims 9 and 11.
The 0.15pph of peroxide meets applicant’s claim 13 amounts as long as the mixing ratio of the treated blend:untreated is greater than 1:15. Krishnawasmy (table 3) also exemplifies 0.2pph peroxide which would meet applicant’s claim 13’s amounts with even less of the treated blend.
The compositions are for molding (Krishnaswamy paragraph 130; JP2009221336 paragraph 94) – meeting applicant’s claim 10.
Based on the 71% PHA (ie applicant’s “i”) of Krishnaswamy’s cited example, anywhere from ~250 to 1.5 parts of Krishnamy’s treated blend combined with 100 parts of the PHA (ie applicant’s “A”) results in applicant’s amounts of claim 22. This is wide enough to encompass nearly all plausible mathematical possibilities.
Claims 1,2,4-16,19,20 and 22 rejected under 35 U.S.C. 103 as being unpatentable over Andrews 2018/0334564 in view of Krishnaswamy 2012/0108743 and
CN109705551
Andrews (table 1) exemplifies blends of 3-hydroxybutyrate/4-hydroxybutyrate copolymer (ie applicant’s “A”) with polybutylene-succinate and filler. Compatibilizers (Andrews claim #34) may be added, but applicant’s specific compatibilizer “B” is not suggested.
Krishnaswamy (table 6) reacts PHA’s (ie applicant’s “i”) with PBS (ie applicant’s “ii”) and peroxide. This reaction product corresponds to applicant’s compatibilized “B”.
CN109705551 (abstract) discloses similar peroxide treated materials that are the reaction product of polyhydroxyalkanoate (ie applicant’s “i”), polylactic acid, polybutylene succinate terephthalate (ie applicant’s “ii”) and an active substance such as a peroxide. CN109705551 explains (paragraph 19; table 2) that 5pph of this compatibilizer is used to improve biodegradable alloys.
Given Andrews’ biodegradable alloy has a similar makeup to the polymers used in Krishnaswamy’s peroxide treated composition and peroxide treated polyesters can act as compatibilizers for polyester alloys, Krishnaswamy’s peroxide treated composition would be a good candidate for use as Andrews called for compatibilizer.
For these reasons, it would have been obvious to add Krishnaswamy’s peroxide treated blend to Andrews’ alloy to act as the called for compatibilizer.
Given Krishnaswamy utilizes the same polyesters, same peroxide, same amounts etc as applicant does to form the peroxide treated component, the same morphology would be expected to result.
In regards to applicant’s dependent claims:
It would have been obvious for one of ordinary skill to select the appropriate amounts of treated and untread polyester to achieve the “in-between” properties of the treated polyester and untreated polyester. This suggests applicant’s claims 2,12 and 16-18.
Krishnaswamy utilizes 0.15pph parts t-butylperoxy-2-ethylhexylcarbonate – meeting applicant’s claim 6. The 0.15pph of peroxide meets applicant’s claim 13 amounts as long as the mixing ratio of the treated blend:untreated is greater than 1:15. Krishnawasmy (table 3) also exemplifies 0.2pph peroxide which would meet applicant’s claim 13’s amounts with even less of the treated blend.
Andrews (paragraph 85) suggests nucleating agents- meeting applicant’s claim 7.
The peroxide treatment (paragraph 171 of Krishnaswamy) is carried out by extrusion – meeting applicant’s claim 8.
The blending of treated and untreated polyester is carried out in an extruder (paragraph 30 of CN109705551) – meeting applicant’s claims 9 and 11.
The compositions are for molding (Andrews paragraph 105) – meeting applicant’s claim 10.
Based on the 47-71% PHA (ie applicant’s “i”) of Krishnaswamy’s cited examples, anywhere from ~250 to 3 parts of Krishnamy’s treated blend combined with 100 parts of the PHA (ie applicant’s “A”) results in applicant’s amounts of claim 22. This is wide enough to encompass nearly all plausible mathematical possibilities.
Claims 21 and 22 rejected under 35 U.S.C. 103 as being unpatentable over Krishnaswamy 2012/0107630 in combination with JP2009221336.
Krishnaswamy exemplifies (table 1) blending/reacting 58.5 parts PHA’s, 19.5 parts PBAT, 3 parts nucleating MB, 5 parts slip/antiblock MB, 7.75 parts Citroflex plasiticzer, 0.1 parts multiacrylates, 5 parts CaCO3 and 0.15 parts t-butylperoxy-2-ethylhexylcarbonate.
The PHA’s (paragraph 170) are polymers and copolymers of 3-hydroxybutanoic acid which qualify as applicant’s (i). PBAT is one applicant’s preferred (ii) (claim 21).
t-butylperoxy-2-ethylhexylcarbonate is one of applicant’s preferred peroxides (claim 6).
This reaction product corresponds to applicant’s compatibilized “B”.
Krishnaswamy does not suggest combining this reaction product with additional poly(3-hydroxyalkanoate).
JP2009221336 (paragraph 79) similarly discloses treating blends of polyesters with peroxides. One of the polyesters may be a hydroxyalkanoate polymer (paragraph 20). JP2009221336 (paragraph 81) teaches his peroxide treated material can be further combined with resins not so treated. JP2009221336 intends that the resin not so treated is the same type of polyester (eg polyhydroxyalkanoate) that was peroxide treated. This can be seen from example 2 and paragraph 79 where preferably less than 50% of the reference’s polyester “A” is peroxide treated for “efficiency” reasons.
It would have been obvious to add some untreated polymer and/or copolymer of 3-hydroxybutanoic acid (which qualifies as applicant’s “A”) to Krishnaswamy’s peroxide treated blend. This would avoid using an unnecessarily large amount of peroxide.
Given the proposed combination of references utilize the same polyesters, same peroxide, same amounts etc as applicant does to form the peroxide treated component, the same morphology would be expected to result.
In regards to claim 22:
Based on the 58.5% PHA (ie applicant’s “i”) of Krishnaswamy’s cited example, anywhere from ~600 to 2 parts of Krishnamy’s treated blend combined with 100 parts of the PHA (ie applicant’s “A”) results in applicant’s amounts of claim 22. This is wide enough to encompass nearly all plausible mathematical possibilities.
Note that this rejection would also be applicable to the other claims of applicant, but cannot be entered against unamended claims in a final rejection
Claims 21 and 22 rejected under 35 U.S.C. 103 as being unpatentable over Nascimento 2010/0048767 in view of Krishnaswamy 2012/0107630 and
CN109705551
Nascimento exemplifies (#1) a 60/40 blend polyhydroxybutyrate (ie applicant’s “A”) with PBAT. Compatibilizers (Nascimento claim #1) may be added, but applicant’s specific compatibilizer “B” is not suggested.
Krishnaswamy (table 1) reacts PHA’s (paragraph 170 - polymers and copolymers of 3-hydroxybutanoic acid which qualify as applicant’s (i)) with PBAT (ie applicant’s “ii”) and peroxide. This reaction product corresponds to applicant’s compatibilized “B”.
CN109705551 (abstract) discloses similar peroxide treated materials that are the reaction product of polyhydroxyalkanoate (ie applicant’s “i”), polylactic acid, polybutylene succinate terephthalate (ie applicant’s “ii”) and an active substance such as a peroxide. CN109705551 explains (paragraph 19; table 2) that 5pph of this compatibilizer is used to improve biodegradable alloys.
Given Nascimento’s biodegradable alloy has a similar makeup to the polymers used in Krishnaswamy’s peroxide treated composition and peroxide treated polyesters can act as compatibilizers for polyester alloys, Krishnaswamy’s peroxide treated composition would be a good candidate for use as Nascimento’s called for compatibilizer.
For these reasons, it would have been obvious to add Krishnaswamy’s peroxide treated blend to Nascimento’s’ alloy to act as the called for compatibilizer.
Given Krishnaswamy utilizes the same polyesters, same peroxide, same amounts etc as applicant does to form the peroxide treated component, the same morphology would be expected to result.
In regards to claim 22:
Based on the 58.5% PHA (ie applicant’s “i”) of Krishnaswamy’s cited example, anywhere from ~600 to 2 parts of Krishnamy’s treated blend combined with 100 parts of the PHA (ie applicant’s “A”) results in applicant’s amounts of claim 22. This is wide enough to encompass nearly all plausible mathematical possibilities.
Note that this rejection would also be applicable to the other claims of applicant, but cannot be entered against unamended claims in a final rejection
Claim 23 rejected under 35 U.S.C. 103 as being unpatentable over Krishnaswamy 2012/0108743 in combination with JP2009221336 in further view of WO2019/022008.
Koyama 2020/0181397 is relied on as a translation of WO2019/022008.
Krishnaswamy and JP2009221336 apply as explained above.
Krishnaswamy’s peroxide may be a peroxycarbonate such as t-amylperoxy-2-ethylhexylcarbonate (paragraph 98), but applicant’s specific peroxycarbonates are not named by Krishnaswamy.
Koyama (paragraph 72) lists t-butylperoxy-2-ethylhexylcarbonate as well as t-butylperoxyisopropylcarbonate as suitable peroxides for treating polyhydroxyalkanoates.
It would have been obvious to use any common peroxycarbonate to co-react Krishnaswamy’s PHA/PBSA composition.
Applicant's arguments filed 12/22/25 have been fully considered but they are not persuasive.
Applicant argues that the references do not suggest the morphology claimed or the good shock resistance therefrom.
This is not convincing. Compatibilizers by nature result in a reduced size of the dispersed phase and improved impact strength. Paragraph 19 of CN109705551 explains the benefits of compatibilizers.
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DAVID J BUTTNER whose telephone number is (571)272-1084. The examiner can normally be reached M-F 9-3pm.
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/DAVID J BUTTNER/Primary Examiner, Art Unit 1765 1/23/26