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 Status
Cancelled claim(s): 3, 5, 8-10, 16-22, 24, 27, 30, 32, 33
Amended claim(s): 1, 2, 4, 7, 11-15, 23, 25, 26, 29, 31
Support for the amendment to claim 15 can be found in p. 0016 of the specification.
New claim(s): 34 – check support for the amendment
Pending claim(s): 1, 2, 4, 6, 7, 11-15, 23, 25, 26, 28, 29, 31, 34
Subject matter of claims 8, 9, and 10 have been incorporated into instant claim 1.
Response to Arguments
Objections of claims 14 and 23 have been overcome by amendment. The corresponding objections are withdrawn.
Rejections of claims 7, 13, 15, and 23 under 35 U.S.C. 112(b) has been overcome by amendment. The corresponding rejection(s) is/are withdrawn.
Rejections of claims 4, 25, and 26 under 35 U.S.C. 112(d) have been overcome by amendment. The corresponding rejection(s) is/are withdrawn.
Applicant’s arguments, see p. 7-9, filed 05/05/2026, with respect to the rejection(s) of claim(s) 1 and 28 under 35 U.S.C. 103 over Avakian (US 2011/0193007 A1) have been fully considered and are persuasive. Therefore, the rejection has been withdrawn. However, upon further consideration, a new ground(s) of rejection is made in over Avakian (US 2011/0193007 A1) in further view of Puente (Puente, J.A.S. (2013), Effect of boron nitride as a nucleating agent on the crystallization of bacterial poly(3-hydroxybutyrate). J. Appl. Polym. Sci., 128: 2586-2594).
Applicant’s arguments, see p. 9-10, filed 05/05/2026, with respect to the rejection(s) of claim(s) 1 under 35 U.S.C. 103 over Krishnaswamy (US 2015/0132512 A1) have been fully considered and are persuasive. Therefore, the rejection has been withdrawn. However, upon further consideration, a new ground(s) of rejection is made over Krishnaswamy (US 2015/0132512 A1). in further view of Puente (Puente, J.A.S. (2013), Effect of boron nitride as a nucleating agent on the crystallization of bacterial poly(3-hydroxybutyrate). J. Appl. Polym. Sci., 128: 2586-2594).
Claim Rejections - 35 USC § 102
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1, 2, 4, 6, 7, 11, and 34 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Puente (Puente, J.A.S. (2013), Effect of boron nitride as a nucleating agent on the crystallization of bacterial poly(3-hydroxybutyrate). J. Appl. Polym. Sci., 128: 2586-2594).
Puente discloses a composition comprising P3HB (weight-average molecular weight before extrusion of 4x105 g mol-1) and Boron Nitride (BN) grade NX1, having a hexagonal graphitic crystalline lattice, wherein the BN is used as nucleating agent [Materials and Samples Preparation; p. 2587]. Puente discloses a 5 °C increase in the glass transition temperature of P3HB with a BN loading of 0.8 wt. %, relative to P3HB without BN [table 1; p. 2589].
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.
Claims 1-2, 4, 6, 7, 11, 14, 15, 23, 28, 29, and 34 are rejected under 35 U.S.C. 103 as being unpatentable over Avakian (US 2011/0193007 A1) in further view of Puente (Puente, J.A.S. (2013), Effect of boron nitride as a nucleating agent on the crystallization of bacterial poly(3-hydroxybutyrate). J. Appl. Polym. Sci., 128: 2586-2594).
Regarding claims 1, 2, 4, 6, and 34; Avakian teaches a composition comprising polyhydroxyalkanoate (PHA), calcium carbonate, and functional additives [abstract]. Avakian teaches the PHA may comprise 10-90 wt. % of the composition and the functional additives may comprise 0.1 to 80 wt. % of the composition [p. 0044, 0058, table 1]. Avakian teaches preferable molecular weights for the PHAs are between about 50,000 and 1.5 million Daltons.
Avakian teaches property modifications of PHAs can be found using functional additives [p. 0052]. Avakian teaches examples of thermal conductivity additives include metal nitrides such as boron nitride (BN), which is known in the art to be a type of group III-V semiconductors [p. 0053; Wikipedia list of type III-V semiconductors]. In addition, Avakian teaches BN is a useful morphology additive, and can be added as a nucleating agent to assist the pace of crystallization of the compound during manufacturing [p. 0040]. Avakian is silent with respect to a suitable crystalline structure for the BN.
Puente teaches the use of BN having a hexagonal graphitic crystalline lattice as a nucleating agent for PHAs [p. 2587]. Puente exemplifies the use of hexagonal BN at a concentration of 0.2-0.8 wt. % [table 1]. Puente teaches a concentration of 0.2 wt. % hexagonal BN is sufficient to improve the crystallization behavior of PHAs.
In light of this, it would have been obvious to a person having ordinary skill in the art at the time the invention was filed to prepare a composition comprising 10-90 wt. % of a PHA having a molecular weight of 50,000 and 1.5 million Da and 0.2-0.8 wt. % hexagonal BN in order to improve the crystallization behavior of the composition. 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, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Regarding claim 7; Avakian teaches suitable commercial PHA copolymers are selected from the group consisting of polyhydroxybutyrate-co-hydroxyvalerate, polyhydroxybutyrate-co-4-hydroxybutrate, polyhydroxybutyrate-co-3-hydroxyhexanoate, polyhydroxybutyrate-co-3-hydroxyheptanoate, and polyhydroxybutyrate-co-3-hydroxyoctanoate [p. 0023, 0028].
Regarding claim 11; Avakian teaches the composition can include conventional plastics additives (optional additives) in an amount that is sufficient to obtain a desired processing or performance property for the compound [p. 0038]. Avakian teaches the optional additives may comprise 0-30 wt. % of the composition [table 1]. In light of this, it would have been obvious to a person having ordinary skill in the art at the time the invention was filed to prepare the composition of Avakian with 0-30 wt. % optional additives. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists.
Regarding claim 14; Avakian teaches composition is suitable for food and beverage packaging [p. 0071].
Regarding claim 15; Avakian teaches examples of optional additives include nucleating agents; adhesion promoters; biocides (antibacterials, fungicides, and mildewcides), anti-fogging agents; anti-static agents; bonding, blowing and foaming agents; dispersants; fillers and extenders; fire and flame retardants and smoke suppressants; impact modifiers; initiators; lubricants; micas; pigments, colorants and dyes; plasticizers; processing aids; release agents; silanes, titanates and zirconates; slip and anti-blocking agents; stabilizers; stearates; ultraviolet light absorbers; viscosity regulators; waxes; and combinations of them [p. 0039-0040].
Regarding claim 23; Avakian teaches surface treated precipitated calcium carbonate (EMforce Bio) as a nucleating agent that can be used in conjunction with BN [p. 0030-0033, 0040].
Claim 25 further limits a species of nucleating agent, activated carbon, that was presented in a list of alternatives in claim 23. Claim 25 is rejected as dependent on claim 23.
Regarding claim 28 and 29; Avakian teaches the optional additives may comprise 0-30 wt. % of the composition [table 1]. Avakian teaches examples of optional additives include colorants and dyes [p. 0039]. In light of this, it would have been obvious to a person having ordinary skill in the art at the time the invention was filed to prepare the composition of Avakian with 0-30 wt. % pigments. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists.
Claim 26 is rejected under 35 U.S.C. 103 as being unpatentable over Avakian (US 20110193007 A1) as evidenced by Scheer (US 2008/0113887 A1).
The disclosure of Avakian is described above and is applied here as such.
Avakian teaches surface treated precipitated calcium carbonate (EMforce Bio) as a nucleating agent that can be used in conjunction with BN [p. 0030-0033, 0040]. EMforce Bio is a high aspect ratio calcium carbonate that has elongated morphology, characterized by a major axis of 1.08 microns, a minor axis of 0.25 microns and an average aspect ratio of 5.4 – as evidenced by Scheer.
In light of this, it would have been obvious to a person having ordinary skill in the art at the time the invention was filed that the calcium carbonate of Avakian satisfies the mesh size of -500, which corresponds to particles smaller than 25 microns.
Claim 31 is rejected under 35 U.S.C. 103 as being unpatentable over Avakian (US 20110193007 A1) in further view of Markus (US 9085784 B1).
The disclosure of Avakian is described above and is applied here as such.
Avakian teaches optional additives include pigments, colorants, and dyes [p. 0039]. Avakian is silent with respect to blue pigment.
Marcus teaches a blue pigment can be added to PHA-based compositions [c.20, lines 35-37].
Therefore, it would be obvious to one having ordinary skill in the art that blue is a suitable pigment for the composition of Avakian.
Claims 1, 2, 4, 6, 7, 11, 12, 14, 15, 23, 28, and 34 are rejected under 35 U.S.C. 103 as being unpatentable over Krishnaswamy (US 2015/0132512 A1) in view of Puente (Puente, J.A.S.; Effect of boron nitride as a nucleating agent on the crystallization of bacterial poly(3-hydroxybutyrate). J. Appl. Polym. Sci., 128: 2586-2594).
Regarding claims 1, 2, 4, 6, 7, 34; Krishnaswamy teaches a polymer blend composition comprising up to 95 wt. % of a poly-3-hydroxybutyrate-co-4-hydroxybutyrate copolymer (P(3HB-co-4HB)) having a molecular weight of about 500,000 to about 2,000,000 g/mole [p. 009-0010, 0013, 0071-0072].
Krishnaswamy teaches the composition may further include a nucleating agent to aid in crystallization [p. 0146]. Krishnaswamy teaches embodiments wherein the nucleating agent is BN [p. 0020, 0038, 0147]. BN is known in the art to be a III-V semiconductor [Wikipedia list of type III-V semiconductors]. Krishnaswamy is silent with respect to the crystalline structure of the BN.
Puente teaches the use of BN having a hexagonal graphitic crystalline lattice as a nucleating agent for P3HB [p. 2587]. Puente further teaches the best nucleating effect on P(3HB-co-4HB) crystallization is obtained when the concentration of BN is 0.5 wt. % [Introduction, p. 2587].
In light of these teachings, it would have been obvious to a person having ordinary skill in the art at the time the invention was filed to prepare a composition comprising up to 95 wt. % of P(3HB-co-4HB) having a molecular weight of 500-2,000kDa and 0.5 wt. % BN nucleating agent having a hexagonal crystalline lattice as Puente teaches it imparts a good nucleating effect. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists.
Regarding claims 11, 12 and 15; Krishnaswamy teaches embodiments wherein the composition is prepared by melt reacting the polymers with a branching agent in the presence of a co-agent (also referred to herein, as a "cross-linking agent"), thereby forming a branched polymer blend [p. 0020, 0034] . Krishnaswamy teaches the branching agent is included at 0.001% to about 0.5% by weight of the blend composition [p. 0020]. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists.
Regarding claim 14; , Krishnaswamy teaches embodiments wherein the composition is used to prepare packaging and containers for food and beverage products [p. 0162].
Regarding claims 15 and 23; Krishnaswamy teaches the nucleating agents may be used either alone or in combinations with each other. The nucleating agent(s) may be selected from: cyanuric acid, carbon black, mica talc, silica, BN, clay, calcium carbonate, synthesized silicic acid and salts, metal salts of organophosphates, and kaolin. [p. 0146].
Claim 25 further limits a species of nucleating agent, activated carbon, that was presented in a list of alternatives in claim 23.
Regarding claim 28; Krishnaswamy teaches additive that may be added to the composition include pigments [p. 0126].
Claim 13 is rejected under 35 U.S.C. 103 as being unpatentable over Krishnaswamy (US 20150132512 A1) in further view of Blasius (US 6984694 B2).
The disclosure of Krishnaswamy is described above and is applied here as such.
Krishnaswamy teaches combining (e.g., mixing or blending) the polymers in the presence of peroxide (branching agent) provides the following benefits compared to combining the polymer blends or mixtures without any reactive chemistry: (1) higher tensile elongation (2) higher tensile toughness (3) improved thermal stability and/or better melt stability (4) improved tear strength and (5) improve impact strength, resulting in a broader processing window for the overall composition and subsequent applications of these compositions in production of articles, films and the like [p. 0047]. Krishnaswamy teaches the use of branching, cross-linking or co-agents further improves the desired properties of the polymer blend composition over the starting compositions without the cross-linking or co-agents and branching agents [p. 0048]. Krishnaswamy teaches branching agents included at 0.001% to about 0.5% by weight of the blend composition [p. 0020, 0046]. However, Krishnaswamy is silent with respect to the weight ratio of the co-agent to branching agent. Krishnaswamy teaches suitable co-agents are described by Blasius, and incorporates Blasius by reference in entirety [p. 0135].
Blasius teaches the use of oligomeric and low molecular weight polymeric chain extenders (co-agents) [c. 1, lines 35-57]. Blasius teaches the chain extenders are effective in very low quantities and teaches embodiments wherein the chain extender is present in an amount of 0.5 wt. % or less based on the total weight of the mixture [c. 12, lines 10-20]. Blasius further teaches formulations with an amount of about 0.3 wt. % chain extender can be used in used in less demanding fiber applications such as sheet and tape, whereas formulations with an amount of 0.5 wt. % chain extender can be used in non-food bottles [c. 23, lines 55-60].
In light of the combined teachings of Krishnaswamy and Blasius obviously embrace embodiments capable of satisfying the claimed ratio. Furthermore, the teachings of Blasius and Krishnaswamy show the amount of chain extender (co-agent) to be a result effective variable, impacting the properties of the prepared polymers, as well as their suitable applications. As Krishnaswamy directly teaches the chain extenders of Blasius as suitable co-agents, one having ordinary skill in the art would have a reasonable expectation of success preparing the composition of Krishnaswamy with the co-agents, and amounts thereof, taught by Blasius. The amount of chain extender and branching agent in the composition are recognized as result effective variables, and the optimization of the ratio thereof is considered routine optimization. “[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955)
Conclusion
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 HOLLEY GRACE HESTER whose telephone number is (703)756-5435. The examiner can normally be reached Monday - Friday 9:00AM -5:00PM.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Randy Gulakowski can be reached at (571) 272-1302. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/HOLLEY GRACE HESTER/Examiner, Art Unit 1766
/RANDY P GULAKOWSKI/Supervisory Patent Examiner, Art Unit 1766
Prosecution Insights