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 .
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 6/1/2026 has been entered.
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Any rejections and/or objections made in the previous Office action and not repeated below are hereby withdrawn.
Claim Rejections - 35 USC § 112
Claim 25 is rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
In claim 25, the terminology “the flame-retardant composition” lacks antecedent basis. Therefore, the intended scope of the claim is unclear. In the interest of compact prosecution, the claim is construed as if it stated “the flame-retardant styrene polymer composition”.
Claim Rejections - 35 USC § 103
Claim(s) 13, 15-19, 24, 25, and 28 is/are rejected under 35 U.S.C. 103 as being unpatentable over Shima (JP2001-294701A). As the cited JP publication is in a non-English language, a machine-translated version of the publication will be cited to.
Regarding Claims 13, 19, 24, 25, and 28, Shima teaches foamable/expandable styrene resin particles (Abstract) and describes examples where small quantities (100 ppm) of either zinc stearate or calcium stearate is used along with 1 wt% of hexabromocyclododecane brominated flame retardant (Examples 2 and 5; Table 1), equivalent to roughly 7,400 ppm of bromine (based on a molecular weight of 641.7 for hexabromocyclododecane). Shima teaches various bromine compounds can be used, such as 2,2-bis[4-allyloxy-3,5-dibromophenyl)propane and 2,2-bis(4-(2,3-dibromopropyloxy)-3,5-dibromophenyl)propane (¶ 18), synonymous with bis(allyl) ether of tetrabromobisphenol A and tetrabromobisphenol A bis (2,3-dibromopropyl ether) respectively.
The compositions of Shima differ from the subject matter claimed by the actual combination of two different compositions, since the claims in effect require the use of both zinc and calcium salts. It is well settled that it is prima facie obvious to combine two ingredients, each of which is targeted by the prior art to be useful for the same purpose. In re Crockett, 279 F.2d 274, 126 USPQ 186 (CCPA 1960). Ex parte Quadranti, 25 USPQ2d 1071 (Bd. Pat. App. & Inter. 1992). Also, case law holds that “it is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art.” In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980). See MPEP 2144.06. Shima teaches the metal carboxylates can be used alone or in combinations (¶ 11). In view of the circumstances and cited case law, it would have been obvious to one of ordinary skill in the art to combine two of Shima’s compositions to form a third composition with the expectation that the resulting composition would be useful the same purpose taught by Shima, namely expandible styrene particles that maintain excellent external appearance despite the presence of brominated flame retardant after molding (Abstract; ¶ 4).
Shima teaches the metal salts are present at 0.0001-0.1 pbw per 100 pbw styrene monomer (¶ 10-11), which for zinc stearate and calcium stearate corresponds to roughly 0.1-103 ppm Zn and 0.1-66 ppm Ca respectively. Therefore, Shima is seen to be suggestive of overlapping Zn / Ca amounts. It would have been obvious to one of ordinary skill in the art to use a range within the claimed range because a reference may be relied upon for all that it would have reasonably suggested to one having ordinary skill the art and Shima suggests the claimed range. A person of ordinary skill would be motivated to use the claimed amount, based on the teachings of Shima. See MPEP 2123.
Regarding Claim 15, Shima teaches foamable/expandible styrene resin particles (Abstract) and describes examples where 100 ppm of zinc stearate or 100 ppm calcium stearate is used along with 1 wt% of hexabromocyclododecane brominated flame retardant (Examples 2 and 5; Table 1), equivalent to roughly 0.01 wt% metal stearate, 1 wt% flame retardant, 0 wt% additive, and 98.9 wt% polystyrene. Shima teaches the metal salts are present at 0.0001-0.1 pbw per 100 pbw styrene monomer (¶ 10-11), equivalent to roughly 0.0001-0.1 wt%. Therefore, Shima is seen to be suggestive of overlapping Zn / Ca stearate amounts. It would have been obvious to one of ordinary skill in the art to use a range within the claimed range because a reference may be relied upon for all that it would have reasonably suggested to one having ordinary skill the art and Shima suggests the claimed range. A person of ordinary skill would be motivated to use the claimed amount, based on the teachings of Shima. See MPEP 2123.
Regarding Claims 16-18, Shima teaches 0.4-6 pbw of bromine compound with at least 40 wt% of bromine relative to 100 pbw styrene monomer (¶ 17-19), equivalent to roughly at least 1,600 ppm Br. Shima teaches the metal salts are present at 0.0001-0.1 pbw per 100 pbw styrene monomer (¶ 10-11), which for zinc stearate corresponds to roughly 0.1-103 ppm Zn. Therefore, Shima is seen to be suggestive of overlapping Br : Zn ratios. It would have been obvious to one of ordinary skill in the art to use a range within the claimed range because a reference may be relied upon for all that it would have reasonably suggested to one having ordinary skill the art and Shima suggests the claimed range. A person of ordinary skill would be motivated to use the claimed amount, based on the teachings of Shima. See MPEP 2123.
With respect to the ratio between Ca and Zn, Shima teaches the metal carboxylates can be used alone or in combinations (¶ 11). Shima imposes no particular restriction in terms of what relative proportion of each metal carboxylate can be used. The examples of Shima clearly illustrate either stearate gives beneficial results in isolation and thus, there is an expectation that the same or similar behavior would occur should a mixture of stearates be used. In view of such, it would have been obvious to one of ordinary skill in the art that any perceivable ratio between calcium and zinc stearate can be used to afford the predictable result of expandible styrene particles that maintain excellent external appearance despite the presence of brominated flame retardant after molding in the absence of evidence showing unexpected results with respect to the claimed Ca : Zn ratio.
Claim(s) 13, 15-19, 24, 25, and 28 is/are rejected under 35 U.S.C. 103 as being unpatentable over Shima (JP2001-294701A) in view of Zhao (CN109233127A). As the cited JP and CN publications are in a non-English language, machine-translated versions of the publication will be cited to.
Regarding Claims 13, 19, 24, and 25, Shima teaches foamable/expandible styrene resin particles (Abstract) and describes examples where 100 ppm of zinc stearate is used with 1 wt% of hexabromocyclododecane brominated flame retardant (Examples 2 and 5; Table 1), equivalent to roughly 7,400 ppm of bromine (based on a molecular weight of 641.7 for hexabromocyclododecane). 100 ppm of zinc stearate is equivalent to roughly 10.3 ppm of Zn. Shima teaches various bromine compounds can be used, such as 2,2-bis[4-allyloxy-3,5-dibromophenyl)propane and 2,2-bis(4-(2,3-dibromopropyloxy)-3,5-dibromophenyl)propane (¶ 18), synonymous with bis(allyl) ether of tetrabromobisphenol A and tetrabromobisphenol A bis (2,3-dibromopropyl ether) respectively.
To the extent Shima differs from the subject matter claimed with respect to the further inclusion of calcium stearate, Zhao is also directed toward foamed polystyrene compositions (¶ 39). Zhao teaches calcium stearate can be used in conjunction with zinc stearate, whereby calcium stearate increases the thermal stability of polystyrene under high temperature conditions (¶ 48, Examples). It would have been obvious to one of ordinary skill in the art to utilize calcium stearate within the compositions of Shima because doing so would provide increased thermal stability to the polystyrene compositions when exposed to high temperature conditions as taught by Zhao.
Zhao teaches embodiments where 0.8 g of calcium stearate is used relative to 237.3 pbw total composition (¶ 74), equivalent to roughly 223 ppm Ca based on a molecular weight of 607.02 for calcium stearate and 40.08 for calcium.
Regarding Claim 15, Shima teaches 0.4-6 pbw of bromine compound with at least 40 wt% of bromine relative to 100 pbw styrene monomer (¶ 17-19), equivalent to roughly 0.4-5.5 wt% of bromine flame retardant. Shima teaches the metal salts such as zinc stearate are present at 0.0001-0.1 pbw per 100 pbw styrene monomer (¶ 10-11), equivalent to roughly 0.0001-0.1 wt%. Zhao teaches embodiments where 0.8 g of calcium stearate is used relative to 237.3 pbw total composition (¶ 74), equivalent to 0.3 wt%. The examples of Shima do not possess additives. Accordingly, the combination of references suggest overlapping ranges. It would have been obvious to one of ordinary skill in the art to use a range within the claimed range because a reference may be relied upon for all that it would have reasonably suggested to one having ordinary skill the art and the cited prior art suggests the claimed ranges. A person of ordinary skill would be motivated to use the claimed amount, based on the teachings of the cited art. See MPEP 2123.
Regarding Claims 16-18, Shima teaches 0.4-6 pbw of bromine compound with at least 40 wt% of bromine relative to 100 pbw styrene monomer (¶ 17-19), equivalent to roughly at least 1,600 ppm Br. Shima teaches the metal salts are present at 0.0001-0.1 pbw per 100 pbw styrene monomer (¶ 10-11), which for zinc stearate corresponds to roughly 0.1-103 ppm Zn. Therefore, Shima is seen to be suggestive of overlapping Br : Zn ratios. It would have been obvious to one of ordinary skill in the art to use a range within the claimed range because a reference may be relied upon for all that it would have reasonably suggested to one having ordinary skill the art and Shima suggests the claimed range. A person of ordinary skill would be motivated to use the claimed amount, based on the teachings of Shima. See MPEP 2123.
Zhao teaches examples where 0.7 g of zinc stearate is used relative to 0.8 g of calcium stearate, suggesting a 1 : 1.2 Ca:Zn ratio based on a molecular weight of 632.33 for zinc stearate and 607.02 for calcium stearate.
Regarding Claim 28, Shima teaches the metal salts are present at 0.0001-0.1 pbw per 100 pbw styrene monomer (¶ 10-11), which for zinc stearate corresponds to roughly 0.1-103 ppm Zn. Zhao teaches embodiments where 0.8 g of calcium stearate is used relative to 237.3 pbw total composition (¶ 74), equivalent to roughly 223 ppm Ca based on a molecular weight of 607.02 for calcium stearate and 40.08 for calcium. Accordingly, the combination of references is suggestive of overlapping concentrations. It would have been obvious to one of ordinary skill in the art to use a range within the claimed range because a reference may be relied upon for all that it would have reasonably suggested to one having ordinary skill the art and the cited art suggests the claimed ranges. A person of ordinary skill would be motivated to use the claimed amount, based on the teachings of the cited art. See MPEP 2123.
Claim(s) 13, 15-19, 24, 25, and 28 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hirschsohn (WO 2019/030756 A1) in view of Zhao (CN109233127A) as evidenced by ICL Industries (Flame Retardants Brochure). As the cited CN publication is in a non-English language, a machine-translated version of the publication will be cited to.
Regarding Claims 13, 19, 24, 25, and 28, Hirschsohn teaches polystyrene extruded foam compositions comprising heat stabilizer, stearic acid metal salt, and brominated flame retardant (Abstract; Page 7). Examples are taught where 0.25 wt% of zinc stearate is used in conjunction with 4 wt% of brominated flame retardant masterbatch of 40 wt% FR-122P and 10 wt% F-2200HM (Pages 8-9), which as evidenced by ICL Industries have bromine contents of 65% and 48% respectively (Pages 6-7). Thus, the example of Hirschsohn has roughly 12,320 ppm Br. The flame retardant of Hirschsohn is a brominated styrene-butadiene-styrene block copolymer (Pages 2-3). Given the molar mass of zinc stearate (MW: 632.33) and zinc (65.4), the content of Zn is roughly 259 ppm.
To the extent Hirschsohn differs from the subject matter claimed with respect to the further inclusion of calcium stearate, Zhao is also directed toward foamed polystyrene compositions (¶ 39). Zhao teaches calcium stearate can be used in conjunction with zinc stearate, whereby calcium stearate increases the thermal stability of polystyrene under high temperature conditions (¶ 48, Examples). It would have been obvious to one of ordinary skill in the art to utilize calcium stearate within the compositions of Shima because doing so would provide increased thermal stability to the polystyrene compositions when exposed to high temperature conditions as taught by Zhao.
Zhao teaches embodiments where 0.8 g of calcium stearate is used relative to 237.3 pbw total composition (¶ 74), equivalent to roughly 223 ppm Ca based on a molecular weight of 607.02 for calcium stearate and 40.08 for calcium.
Regarding Claim 15, the example of Hirschsohn uses 95.5 wt% polystyrene, 4 wt% of a masterbatch of 50/50 polystyrene/brominated flame retardant, 0.25 wt% of zinc stearate, and 0.25 wt% of stabilizer additive (Pages 8-9), equivalent to 97.5 wt% polyester, 2 wt% of brominated flame retardant, 0.25 wt% zinc stearate, and 0.25 wt% additive. Zhao teaches embodiments where 0.8 g of calcium stearate is used relative to 237.3 pbw total composition (¶ 74), equivalent to 0.3 wt%.
Regarding Claims 16-18, Hirschsohn teaches examples are taught where 0.25 wt% of zinc stearate is used in conjunction with 4 wt% of brominated flame retardant masterbatch of 40 wt% FR-122P and 10 wt% F-2200HM (Pages 8-9), which as evidenced by ICL Industries have bromine contents of 65% and 48% respectively (Pages 6-7). Thus, the example of Hirschsohn has roughly 12,320 ppm Br. Given the molar mass of zinc stearate (MW: 632.33) and zinc (65.4), the content of Zn is roughly 259 ppm. Therefore, the example uses a Br:Zn ratio of 47.6:1.
Zhao teaches examples where 0.7 g of zinc stearate is used relative to 0.8 g of calcium stearate, suggesting a 1 : 1.2 Ca:Zn ratio based on a molecular weight of 632.33 for zinc stearate and 607.02 for calcium stearate.
Response to Arguments
Applicant's arguments filed 6/1/2026 have been fully considered but they are not persuasive.
Applicant generally argues Shima provides no indication of a desirable effect to combine compositions. This is not found persuasive. It is well settled that it is prima facie obvious to combine two ingredients, each of which is targeted by the prior art to be useful for the same purpose. In re Crockett, 279 F.2d 274, 126 USPQ 186 (CCPA 1960). Ex parte Quadranti, 25 USPQ2d 1071 (Bd. Pat. App. & Inter. 1992). Also, case law holds that “it is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art.” In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980). In view of such, it would have been obvious to combine two of Shima’s compositions to form a third composition with the expectation that the resulting composition would be useful for the same purpose taught by Shima.
Applicant urges unexpected results, namely that the combination of zinc and calcium stearates procures improved foam appearance after thermal treatment. This is not found persuasive.
As set forth by Zhao, it was already known in the art calcium stearate functions as a thermal stabilizer for polystyrene compositions at high-temperatures. While Applicant argues Zhao is silent as to whether the thermal stabilizer prevents brominated flame retardant degradation, it is unclear how or why such features are not already operating within the disclosure of Zhao since Zhao teaches the required combination of zinc stearate, calcium stearate, and brominated flame retardant. While applicant’s arguments concerning the relatively high bromine contents of Zhao’s compositions are noted, there is no apparent evidence of record that the claimed bromine content is in any way critical. The experimental data of the specification fails to draw a comparison with the closest prior art (Zhao).
Even arguendo such results were unexpected, the claims at issue are not commensurate in scope with the evidence offered in support of unexpected results. The limited materials and concentrations probed fails to illustrate the results alleged to be unexpected occurs throughout the scope of the claim and one of ordinary skill would be unable to ascertain a trend within the exemplified data to reasonable extend the probative value thereof to encompass the subject matter claimed. The only apparent requirement within claim 13 is the presence of 0.03-1.5 wt% of bromine element of organic bromine compound, 0.001-0.1 wt% zinc element of zinc stearate, and 0.001-0.1 wt% of calcium element of calcium stearate. The remaining composition materials are left unaccounted for. In contrast, the specification data only probes roughly 98.5 wt% polystyrene, 1.5 wt% flame retardant, 0.1 wt% ZnSt, and 0.05-0.2 wt% Ca St. There is insufficient evidence of record that the results applicant observes would occur throughout the scope of the claim, regardless of what other materials/additives or resins that are present, and one of ordinary skill would be unable to ascertain a trend within the presented data to reasonably extend the probative value thereof to encompass the entire scope claimed.
Applicant argues one of ordinary skill would not combine Zhao within Shima as Zhao is silent on features pertaining to brominated flame retardant/discoloration. This is not found persuasive. The Examiner is of the position that Zhao’s express teaching of enhanced thermal stability provides sufficient motivation to support the combination of references. It is not necessary that the prior art suggest the combination to achieve the same advantage or result discovered by Applicant. See MPEP 2144(IV).
Applicant argues Zhao and Shima are directed toward unrelated technologies. This is not found persuasive. Both references pertain to polymeric foams and thus, are within the same field of endeavor.
With respect to Hirschsohn/Zhao, Applicant argues Hirschsohn does not indicate adding another stearate would mitigate problems associated with zinc stearate. This is not found persuasive. The Examiner is of the position that Zhao’s express teaching of enhanced thermal stability under high temperature conditions provides sufficient motivation to support the combination of references.
Applicant argues Hirschsohn teaches away from additional stearate. This is not found persuasive. All of the inventive examples of Hirschsohn use metal stearates. As Hirschsohn does not criticize, discredit, or otherwise discourage the use of additional metal stearates, Hirschsohn is not teaching away.
Conclusion
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/STEPHEN E RIETH/Primary Examiner, Art Unit 1759
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