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 .
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. 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).
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 so as 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.
Regarding claims 2-3, as discussed when addressing claim 1, Cavalieri in view of Papillon renders the polypropylene composition obvious. Cavalieri further adds 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).
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 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
The terminal disclaimer filed on 11/26/2025 has been reviewed and has been recorded, and therefore the provisional nonstatutory double patenting rejection over copending application 18/013,481 is withdrawn.
Applicant's arguments filed on 11/26/2025 have been fully considered but they are not persuasive.
Applicant argues (page 6, last para) that polyethylene (c) of Cavalieri is different from component c) of claim 1 with respect to the presence of propylene polymer. Applicant adds (page 7, first para) that secondary reference Papillon which is utilized to teach recycled PE teaches the polyethylene to be present in at least 25 weight percent, and the references teach away from each other with respect to the amount of component c).
As discussed in the rejection above, both the primary reference Cavalieri (para [0001]) and the secondary reference Papillon (para [0063]) utilize their polyolefin compositions for creating underground drainage systems. Primary reference Cavalieri (reference claim 1) is relied upon to teach the required amount of component c) 8 to less than 13wt% of polyethylene. The secondary reference Papillon is only utilized to teach that Cavalieri’s polyethylene can be substituted with a recycled polyethylene. The secondary reference Papillon provides a strong motivation to incorporate recycled polyethylene (with the polypropylene inclusions) since the utilization of post-consumer polymer waste decreases reliance on virgin polymers and achieves cost and environmental benefits (Papillon: para [0177]). Instant specification para [0026] also admits that the recycled polyethylene inherently contains minor amounts of polypropylene.
Applicant finally adds that the combined teachings of Cavalieri and Papillon would require a substantial reconstruction and redesign of the compositions. In response, it is highlighted that the recycled polyethylene is chemically identical to the virgin polyethylene, and thus when recycled polyethylene is substituted for virgin polyethylene, it would not change Cavalieri’s overall composition’s functionality or its intrinsic properties. Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977).
Applicant’s arguments against Cavalieri and Papillon are therefore not convincing and the rejection of the amended claims is maintained.
Conclusion
THIS ACTION IS MADE FINAL. 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.
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/HEIDI R KELLEY/Supervisory Patent Examiner, Art Unit 1765
/S.M.D./
Examiner
Art Unit 1765