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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 04/29/2026 has been entered.
Claim Interpretation
The specification (para [0026]) is utilized to interpret claim 1, component (c) requirement, and it is determined that the claimed limitation of the “polypropylene inclusion” is present in the form of a physical blend with the recycled polyethylene (r-PE) and not in the form of a copolymer.
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 1-15 are rejected under 35 U.S.C. 103 as being unpatentable over Cavalieri et al. US2012/0296039 A1 and in view of Papillon et al. US2017/0261131 A1.
Cavalieri teaches polyolefin compositions for injection-molded drainage systems and related products (title, abstract and para [0001]).
Papillon also teaches pipes for drainage systems derived from polyolefins (para [0005]).
Regarding claims 1, 5, 7, 8, 11, 12, Cavalieri discloses (see Cavalieri, claim 1) a polypropylene composition comprising:
a) 78-84wt % of a crystalline propylene polymer having an amount of isotactic pentads (mmmm), measured by 13CMNR on the fraction insoluble in xylene at 25° C.,
higher than 97 .5 molar % and a polydispersity index ranging from 3 to 8 (instant claims 7-8);
b) 8 to less than 13 wt% of an elastomeric copolymer of ethylene and propylene, the copolymer having an amount of recurring units deriving from ethylene ranging from 30 to 70%, and being partially soluble in xylene at ambient temperature; the polymer fraction soluble in xylene at ambient temperature having an intrinsic viscosity value ranging from 2 to 4 dl/g; and
c) 8 to less than 13wt% of polyethylene having an intrinsic viscosity value ranging from 1.5 to 4 dl/g,
where the composition exhibits a melt flow rate (MFR), determined according to ISO method 1133 (230° C. and 2.16 kg), of from 1.5 to 5.0 g/10 min, which overlap the claimed requirement.
Cavalieri’s components (a) and (b), correspond to applicant’s components (a) and (b) respectively. While Cavalieri teaches a polyethylene component (c), which is chemically identical to the required recycled polyethylene, Cavalieri is silent that the polyethylene component is a recycled polyethylene and to the presence of polypropylene inclusions. Cavalieri highlights that the inventive polyolefin composition is used for injection moulded articles such as underground drainage systems (para [0001]). A practitioner skilled in the art would look to analogous polyolefin based compositions useful for drainage systems such as pipes to further optimize the polyolefin composition.
Analogous reference Papillon discloses that the polyethylene can be a recycled polymer, and that it comprises HDPE (high density polyethylene) with at least 90% HDPE and less than 10 wt% polypropylene (such as 5wt%), corresponding to the claimed requirement of component (c), with melt flow rate of 0.10 to about 0.74 g/10 min @190oC/2.16Kg, which meets the melt flow requirement of component (c) (paras [0031], [0032] and [0034]).
Advantageously, Papillon provides the motivation to utilize the recycled HDPE (and polypropylene) to generate a polyolefin composition such that a post-consumer polymer waste can be utilized to generate a pipe to decrease reliance on virgin polymers and achieve environmental benefits ((para [0005]; [0024]; and para [0177]).
It would have been obvious to one of ordinary skilled in the art before the effective filing date of the invention to have substituted 8-13 wt% of Cavalieri’s polyethylene (corresponding to component (c)) with the recycled polyethylene (and 5wt% polypropylene) (instant claim 5) as taught by Papillon for the same application of creating a drainage system such as a pipe (instant claims 11-12) so as to decrease the use of virgin polyethylene to attain environmental benefits.
Cavalieri in view of Papillon renders the polypropylene composition obvious. Cavalieri further adds (para [0036]) that elongation at break equal to or higher than 14%, which overlaps the claimed requirement. In the case 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, 191USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
In the instant case, in the absence of showing of the criticality of the claimed range and owing to the closeness of the polypropylene composition disclosed, the overlapping range of the prior art is sufficient to support an obviousness rejection.
Additionally, since the prior art compositions (para [0001]) are being utilized for similar end products, such as underground drainage systems (instant specification para [0001]), it would be obvious to optimize the polypropylene compositions such that they exhibit similar levels of elongation.
Regarding claims 2-3, as discussed when addressing claim 1, Cavalieri in view of Papillon disclose polypropylene composition with overlapping range of components a), b), c) and elongation at break values, thus rendering the claimed requirement obvious. In the case 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, 191USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
In the instant case, owing to the closeness of the materials disclosed and in the absence of showing of the criticality of the claimed range, it would necessarily follow that the polypropylene compositions provided by the combination of Cavalieri and Papillon would possess elongation at break as required.
Regarding claim 4, Cavalieri in view of Papillon discloses (Cavalieri para [0033]) that the final propylene composition has a melt flow rate of 2.0 to 2.5g/10 min, which meets the claimed requirement.
Regarding claim 6, as discussed when addressing claim 1, Cavalieri in view of Papillon discloses (Papillon para [0034]) that polyethylene polymer has a melt flow rate of 0.10 to 0.74 g/10 min@190oC/2.16Kg, which meets the claimed requirement. Papillon further notes (para [0030]) that the polyethylene which can be HDPE has a density of 0.96g/cm3 or more, which overlap the claimed requirement. In the case 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, 191USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Regarding claims 9-10, as discussed when addressing claim 1, Cavalieri in view of Papillon discloses (Cavalieri, claim 1) elastomeric copolymer of ethylene and propylene (corresponding to component (b)), the copolymer having an amount of recurring units deriving from ethylene ranging from 30 to 70%, and being partially soluble in xylene at ambient temperature; the polymer fraction soluble in xylene at ambient temperature having an intrinsic viscosity value ranging from 2 to 4 dl/g, which overlap the claimed requirements. In the case 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, 191USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Regarding claims 13-15, Cavalieri in view of Papillon teaches that the inventive polyolefin composition can be used for articles such as underground drainage systems, infiltration units and underground water management systems, meeting the claimed requirements (Cavalieri para [0001]).
Response to Arguments
Applicant's arguments filed on 04/01/2026, have been fully considered, please see the response below. It is noted that a response to the remarks filed on 04/01/2026, was also provided in the advisory action which was mailed on 04/16/2026. Applicant has not provided any new arguments as part of the RCE submission filed on 04/29/2026.
Applicant argues (page 6) that the requirement of elongation at break of equal to or higher than 90% is not taught by the prior art since Cavalieri's examples and comparative example indicate elongation at break in the range of 14 to 21%. While it is acknowledged that Cavalieri's examples disclose lower elongation at break values, Cavalieri does not limit the inventive embodiments to compositions which only have low elongation and clearly highlights elongation values of 14% or greater which overlap the claimed requirement.
Applicant is reminded that "Disclosed examples and preferred embodiments do not constitute a teaching away from a broader disclosure or nonpreferred embodiments. In re Susi, 440 F.2d 442, 169 USPQ 423 ( CCPA 1971)." Additionally, "[I]n considering the disclosure of a reference, it is proper to take into account not only specific teachings of the reference but also the inferences which one skilled in the art would reasonably be expected to draw therefrom." In re Preda, 401 F.2d 825, 826, 159 USPQ 342, 344 (CCPA 1968).
In the instant case since the prior art compositions are utilized for drainage pipes which is the same end use as the instant specification, a skilled artisan would optimize the polypropylene composition to the desired elongation values to achieve flexibility for contouring the pipes.
Applicant argues (page 7) that secondary reference Papillon teaches different composition and does not provide a teaching, suggestion or motivation in a way that would lead the skilled artisan towards the claimed elongation at break. Applicant's arguments are not persuasive since Papillon teaches analogous polyolefin based compositions and pipe systems generated from them, and recommends elongation break values of greater than 95% (Papillon paras [0056] and [0199]), thus guiding a skilled artisan towards the claimed elongation at break values.
The claimed invention is not differentiated over the polypropylene composition as taught by Cavalieri and Papillon and the required components a), b), c) and the % elongation are rendered obvious over the combined teaching Cavalieri and Papillon.
Applicant’s arguments against the prior art reference combination of Cavalieri and Papillon are not convincing and they continue to provide the foundation for maintaining the rejection.
Conclusion
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/HEIDI R KELLEY/ Supervisory Patent Examiner, Art Unit 1765
/S.M.D./
Examiner
Art Unit 1765
