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 .
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 4/13/2026 has been entered.
Response to Amendment
The declaration under 37 CFR 1.132 filed 4/13/2026 is insufficient to overcome the rejection of claims 1, 5–14, and 19 based upon Bertelo et al. as set forth in the last Office action because: the declaration fails to establish the criticality of the claimed Thigh-Tlow value being equal to or less than 17 mol.%.
In the supplied declaration, Austin Jones attempts to establish the criticality of the claimed difference in T values between first and second PEKK polymers of equal to or less than 17 mol.%, but only relies upon a single data point to establish criticality of a broad range. Here, Jones relies on a prepared PEKK polymeric blend that has a Thigh-Tlow value of 20 mol.% and asserts that because the blend’s associated crystallization temperature (Tc) does not meet the required criterion, the prepared blend sample and its Thigh-Tlow value of 20 mol.% demonstrates the criticality of a Thigh-Tlow value of 17 or less mol.%. Applicant’s showing fails to establish criticality of the claimed Thigh-Tlow value. Initially, the Examiner would like to point out that desired Tc is not required by all claims. In fact, it is only recited in dependent claim 9. Second, a single data point outside of the claimed range, here a Thigh-Tlow value of 20 mol.%, simply establishes that the specific point fails to possess the desired crystallization temperature. No criticality over a range can be established by a single data point. Accordingly, the declaration is unpersuasive.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claim(s) 1, 5–7, 9, 12, and 13 are rejected under 35 U.S.C. 103 as being unpatentable over Bertelo (US 2011/0287255 A1).
Bertelo discloses a composite fiber material comprising nanofibers and a blend of thermoplastic polymers, wherein the blend comprises first and second polyether ketone ketone (PEKK) polymers and each of the PEKK polymers has a different T/I ratio. Bertelo abstract, ¶¶ 10–12. One example involving the blending of two PEKK polymers involves a first PEKK polymer with a (T/I)low ratio that is lower than a second PEKK polymer (T/I)high ratio. See id. ¶ 11. The blended PEKK polymer fibers may be used to form heat-resistant, high strength fabrics useful in a variety of end-use applications. Id. abstract, ¶¶ 5, 20–21.
A first PEKK polymer may have a (T/I)low ratio of 60/40 and a second PEKK polymer may have a (T/I)high ratio of 80/20. Id. This particular example provides for a Thigh- Tlow value of 20, however, Bertelo teaches that the T/I ratio and by extension the T molarity levels may be adjusted depending on the degree of relative strength/stiffness to flexibility desired. See Bertelo ¶¶ 10–12. Accordingly, the differences in the relative T values — Thigh – Tlow — may be adjusted such that the two PEKK polymers have different, but relatively similar (i.e., less than or equal to 17 mol. %) strengths/stiffness or flexibility. Consequently, absent a clear and convincing showing of unexpected results demonstrating the criticality of the claimed T value difference, it would have been obvious to one of ordinary skill in the art to optimize this result-effective variable by routine experimentation. In re Antonie, 559 F.2d 618, 195 USPQ 6 (CCPA 1977).
Each PEKK polymer in Bertelo contains the claimed recurring units RT and RI of claim 3, wherein the R1 and R2 groups are anticipated along with each i and j integer. See id. ¶ 8. Claim 12 is rejected as the composite material may further comprise carbon fibers. Id. ¶ 15.
Although Bertelo does not explicitly teach the claimed features of a crystallization temperature (Tc in C°), determined on second DSC heat scan, higher than the crystallization temperature of a PEKK polymer having the same melting temperature (Tm in C°) determined on second DSC heat scan; a melting temperature (Tm) of less than or equal to 330°C, a heat of fusion (DHf) exceeding 25 J/g; and no crystallization peak upon heating, on second DSC heat scan (“cold crystallization peak”); a relation between melting temperature (Tm in °C) determined on second DSC heat scan, and crystallization temperature (Tc in °C) determined on first DSC cooling scan, which satisfies the following inequality: Tc ≥ 1.3716 x Tm -190°C; wherein Tm, Tc, DHf and the absence of cold crystallization peak are measured by differential scanning calorimetry (DSC) according to ASTM D3418-03, E1356-03, E793-06, E794-06, standard, applying heating and cooling rates of 20°C/min, with a sweep from 300°C to 400°C; an open hole compression strength greater than or equal to 320 MPa, as measured in accordance with ASTM D6484; and/or an in-plane shear modulus of greater than or equal to 4.7 GPa, as measured in accordance with ASTM D3518, it is reasonable to presume that said properties are inherent to Bertelo. Support for said presumption is found in the use of like materials (i.e. composite material comprising first and second PEKK polymers with different T/I ratios and fibers). The burden is upon Applicant to prove otherwise. In re Fitzgerald 205 USPQ 594. In addition, the presently claimed properties would obviously have been present one the Bertelo product is provided. Note In re Best, 195 USPQ at 433, footnote (CCPA 1977) as to the providing of this rejection made above under 35 USC 102. Reliance upon inherency is not improper even though rejection is based on Section 103 instead of Section 102. In re Skoner, 517 F.2d 947 (CCPA 1975).
Bertelo fails to teach a specific weight ratio between the first and second PEKK polymers, each with different T/I ratios. However, Bertelo does teach that the relative proportions being selected to provide a PEKK mixture having the balance of properties desired for the fibers when compounded with the mineral nanotubes. Bertelo ¶ 11.
It would have been obvious to one having ordinary skill in the art at the time the invention was made to have made the PEKK composite material of Bertelo with a weight ratio between PEKKlow and PEKKhigh is of least 60/40 and/or it is of at most 99/1, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233.
Claim(s) 8 and 10 are rejected under 35 U.S.C. 103 as being unpatentable over Bertelo as applied to claim 1 above, and further in view of Diez-Pasqual, “High-performance nanocomposites based on polyetherketones.”
Bertelo fails to teach the manner in which PEKK polymers are made.
Diez-Pasquel teaches that PEK polymers, of which PEKK is one, are particularly useful in making nanocomposites and that PEKs are generally synthesized by aromatic nucleophilic substitution of activated aryl dihalides with aromatic diphenolates. Diez-Pasquel abstract, 1109. Nucleophilic substitution reactions are generally more preferable, because of the availability of suitable monomers, the non-corrosive reaction media and the operational convenience in conducting the synthesis and that aromatic electrophilic substitution method is difficult to scale up, and specific monomers must be employed to obtain high molecular weight polymers. Id. at 1111.
Accordingly, one of ordinary skill in the art would have looked to Diez-Pasquel for guidance as to a preferable manner in which to make the PEKK polymers in Bertelo in order to successfully practice the invention of the primary invention.
Claim(s) 11, 14, and 19 are rejected under 35 U.S.C. 103 as being unpatentable over Bertelo as applied to claim 1 above as evidenced by Luise (US 5,124,413).
Bertelo teaches that with PEKK polymers, one can optimize crystallinity and thereby melting point of a particular application. Bertelo ¶ 7. Furthermore, a PEKK polymer with a 60/40 T/I ratio produces fibers with little to no crystallinity. Id. ¶ 23.
Luise teaches that depending on their T/I ratios, PEKKs are either partly crystalline or amorphous, wherein crystalline PEKKs have a melting point of about 330oC or higher. Luise 1:39–45. Accordingly, crystalline PEKKs have melting temperatures below 330oC because about 330oC includes temperatures of below 330oC.
Accordingly, it would have been obvious to have made the PEKK composite composition of Bertelo with a melting temperature of less than or equal to 330oC due to PEKK polymers having melting points of less than 330oC.
Luise also teaches the formation of a composite material containing amorphous polyarylate with a PEKK for use in aircraft panels and in other applications that require high burn resistance and good melt processibility. Luise abstract. The composite material is formed into films and sheet and then added to polyvinyl fluoride films or sheets to make a laminate. Id. at 1:1–17.
Accordingly, it would have been obvious to one of ordinary skill in the art to have modified Bertelo with the invention of Luise to make a multilayer laminate using the PEKK composition of Bertelo motivated by the desire to form a particular article that includes PEKK.
Response to Arguments
Applicant's arguments filed 4/13/2026 have been fully considered but they are not persuasive.
Applicant argues that the Thigh-Tlow value of 17 or less mol.% is critical and leads to unexpectedly superior processing performance while also maintaining good mechanical properties as established in the supplied Jones declaration. As set forth above, the Jones declaration is unpersuasive of criticality because it is not commensurate in scope with all the instant claims and fails to establish criticality across the entire claimed range. Furthermore, Applicant’s remarks and evidence merely show improved processing performance, but fail to establish how that performance is unexpected, rather than merely superior.
Applicant then argues that the Examiner is incorrect in asserting that because Luise teaches crystalline PEKK polymers have melting temperatures of 330oC or higher, amorphous polymers have a Tm of lower than 330oC due to a lack of crystallinity. Luise teaches that depending on their T/I ratios, PEKK polymers are either partly crystalline or amorphous, wherein crystalline PEKKs have a melting point of about 330oC or higher. Luise at 1:39–45. Accordingly, crystalline PEKKs have melting temperatures below 330oC because about 330oC includes temperatures of below 330oC.
Conclusion
All claims are identical to or patentably indistinct from, or have unity of invention with claims in the application prior to the entry of the submission under 37 CFR 1.114 (that is, restriction (including a lack of unity of invention) would not be proper) and all claims could have been finally rejected on the grounds and art of record in the next Office action if they had been entered in the application prior to entry under 37 CFR 1.114. Accordingly, THIS ACTION IS MADE FINAL even though it is a first action after the filing of a request for continued examination and the submission under 37 CFR 1.114. See MPEP § 706.07(b). 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 MATTHEW D MATZEK whose telephone number is (571)272-5732. The examiner can normally be reached M-F 9:30-6.
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/MATTHEW D MATZEK/Primary Examiner, Art Unit 1786
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