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 .
Claims 1-20 are pending as amended on December 15, 2025. Support for amended claim 1 is found in original claim 1. New claims 13 and 18 find support on page 4, lines 2-3 of the specification. New claims 14-17 are supported by claim 1. New claims 19 and 20 find support on page 17, lines 7-8.
The new grounds of rejection set forth below were necessitated by the amendment to claim 1 requiring HD polyethylene and new claims 13-20. Therefore, this action is properly made final.
Any objections and/or rejections made in the previous Office action and not repeated below are hereby withdrawn. The text of those sections of Title 35, U.S. Code not included in the action can be found in a prior Office action.
Response to Arguments
Applicant’s arguments filed December 15, 2025 have been fully considered.
Applicant’s arguments, see page 10, with respect to the rejection(s) of claim(s) 1-12 under 35 U.S.C. 103 have been fully considered and are persuasive. Kutsuwa (US 5,310,787 B2) teaches that the ethylene homopolymer are preferably low-density polyethylene and does not suggest high-density polyethylene. Therefore, the rejection has been withdrawn. However, upon further consideration, a new ground(s) of rejection is made in view of Miyama (US 2006/0287441 A1, cite No. 1 on 11/05/2025 IDS) in view of Yoshifumi (US 4,772,652). Aoyama (US 6,365,659 B1) continues to be relied upon in the rejection of claim 5, but Applicant has not specifically challenged the teachings of this reference.
Applicant argues (page 10) that the amendments overcome the nonstatutory obviousness-type double patenting rejection over co-pending application 18/711,143. This argument is not persuasive because claim 1 was amended to require HD polyethylene and claim 1 of the co-pending application also teaches HD polyethylene (co-pending claim 1, line 4).
Claim Rejections - 35 USC § 112
Claims 14-15, and 17-19 are 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.
Claims 14, 15, and 17 recites the limitation "the polyethylene" in line 2 (claims 14-15) or line 3 (claim 17). There is insufficient antecedent basis for this limitation in the claim. Claims 14-15 and 17 depend from claim 1, but claim 1 requires HD polyethylene. This can be corrected by amending “the polyethylene” to “the HD polyethylene.”
It is noted that because claims 18-19 ultimately or directly depend from claim 17, they are rejected along with claim 17 because they incorporate all of the limitations of claim 17, including those that are indefinite.
Claim Rejections - 35 USC § 103
Claims 1-4 and 6-20 are rejected under 35 U.S.C. 103 as being unpatentable over Miyama (US 2006/0287441 A1, cite No. 1 on 11/05/2025 IDS) in view of Yoshifumi (US 4,772,652).
Regarding claims 1-4, 6-9, 14-17, and 19-20, Miyama teaches a resin composition containing a polyester resin, a polyolefin resin, a compatibilizer, and moisture ([0012]). Based on the total weight of the polyester resin, polyolefin resin, and compatibilizer, the resin composition comprises 50-95 wt.% polyester resin, 10-50 wt.% polyolefin resin, and 0.5-15 wt.% compatibilizer ([0048-0050]). The polyolefin resins preferred by Miyama include high density polyethylene ([0027]). The compatibilizers taught by Miyama include ionomer resins ([0035]). Moisture is included in the composition in an amount of 0.05-7 parts by weight based on the total weight of all components except the moisture ([0056]). This converts to about 0-6.5 wt.% moisture (7/(100+7)=0.065) and 93.5-100 wt.% of the polyester resin, HD polyethylene, and ionomer. The resin composition of Miyama reads on a thermoplastic mixture comprising A) about 93.5-100 wt.% of a thermoplastic blend (A) consisting of 50-95 wt.% polyester, 10-50 wt.% HD polyethylene, and 0.5-15 wt.% ionomer, and (B) about 0-6.5 wt.% of further additives (moisture). This mixture comprises no polymers other than the polyester, HD polyethylene, and ionomer, satisfying claim 16 (see also examples 1-8 in Table 1 that consist of polyester, polyolefin, compatibilizer and moisture).
Miyama does not anticipate the claimed content of: polyester, HD polyethylene, and ionomer. However, it would have been obvious to one of ordinary skill in the art prior to the effective filing date to have used a thermoplastic blend consisting of 50-95 wt.% polyester, 10-50 wt.% HD polyethylene, and 0.5-15 wt.% ionomer because Miyama teaches these ranges. These ranges overlap with the claimed ranges of 55-75 wt.% polyester, 5-25 wt.% HD polyethylene, and 10-25 wt.% ionomer (claim 1). These ranges also overlap with the ranges of 60-70 wt.% polyester and 10-20 wt.% ionomer recited in claim 4, 15-25 wt.% HD polyethylene recited in claim 14, 20-25 wt.% HD polyethylene recited in claim 15, and 60-75 wt.% polyester, 5-20 wt.% HD polyethylene, and 10-20 wt.% ionomer recited in claim 17. It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have selected the overlapping portion of the ranges disclosed by the reference because selection of overlapping portion of ranges has been held to be a prima facie case of obviousness. See MPEP § 2144.05.I.
As the ionomer, Miyama teaches that ethylene-acrylic acid copolymer ionomers (claims 19-20) are preferable ([0035]). Acrylic acid (claim 7) as the functional monomer reads on an ethylenically unsaturated monocarboxylic acid (claim 6) and a proportion of 100% by weight of carboxylic acids in the functional monomers (claim 1). Miyama further teaches metal ions including sodium or potassium ([0035]) (claim 3).
Miyama is silent as to the relative amounts of ethylene and acrylic acid derivatives in the ethylene-acrylic acid copolymer and the degree of neutralization.
However, Yoshifumi teaches suitable ranges for the relative amounts of ethylene and acrylic acid derivatives and the degree of neutralization for ethylene-acrylic acid copolymer ionomers. Yoshifumi teaches polyester resin compositions with excellent toughness, impact strength, and moldability (Yoshifumi, abstract). Like Miyama, Yoshifumi teaches ionomers based on ethylene and acrylic acid (Yoshifumi, col. 11, lines 28-30) and metal ions such as sodium and potassium (Yoshifumi, col. 10, lines 64-66). Yoshifumi further teaches that the carboxylic acid unit should account for 1-30 mol%, preferably 2-10 mol%, of the total copolymer and that below this range the impact strength of the polyester is not improved as much as desired while above this range the ionomer cannot be easily blended with the polyester (Yoshifumi, col. 11, lines 33-43). In addition, Yoshifumi teaches that at least 20 mol%, preferably 60% or more, of the carboxyl groups in the ionomer should be neutralized by the metal ions in order to improve impact resistance (Yoshifumi, col. 11, lines 43-51).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to have substituted the unspecified carboxylic acid content and degree of neutralization of Miyama for the 2-10 mol% carboxylic acid content and 60 mol% or more neutralization of Yoshifumi. One would have been motivated to make this substitution in order to improve impact strength and resistance while ensuring that the ionomer that is easy to blend with the polyester.
An ethylene-acrylic acid ionomer with 2-10 mol% carboxylic acid (acrylic acid) corresponds to an ionomer comprising a copolymer of 78-95 wt.% ethylene (ethylene MW=28 g/mol and acrylic acid MW=72 g/mol, 0.98*28/(0.02*72+0.98*28)= 0.95 and 0.9*28/(0.1*72+0.9*28)=0.777); 0 wt.% of one or more compounds selected from 1-octene, 1-butene, and propylene; and 5-22 wt.% acrylic acid (100-78=22 and 100-95=5) (claims 1 and 8). A degree of neutralization of 60 mol% or more with sodium or potassium ions reads on the hydrogen of the carboxyl groups of the carboxylic acids is replaced by a sodium or potassium ion in a proportion of at least 60 mol% of the total number of carboxyl groups (claims 1-2). A range of 78-95 wt.% ethylene overlaps with the claimed range of 50-90 wt.% recited in claim 9. It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have selected the overlapping portion of the ranges disclosed by the reference because selection of overlapping portion of ranges has been held to be a prima facie case of obviousness. See MPEP § 2144.05.I.
Regarding claim 10, modified Miyama teaches the thermoplastic mixture of claim 1 and further teaches that the composition may be molded ([0065]). A product produced by molding reads on a molding produced from the thermoplastic mixture of claim 1.
Regarding claims 11-12, modified Miyama teaches the thermoplastic mixture of claim 1. Miyama further teaches that the resin can be used in construction materials, agricultural materials, construction materials, packaging materials, distribution materials, and conductive materials, but does not provide examples of specific articles.
However, Yoshifumi provides examples of articles in which a polyester and ionomer resin is useful. Yoshifumi teaches tubes and pipes and further teaches that articles can be processed into final products by blow molding (Yoshifumi, col. 12, lines 52-66). Tubes and pipes are examples of construction and distribution articles and read on hollow bodies.
Based on the disclosure of Yoshifumi, compositions of ionomers and polyesters were known to be useful in pipes and tubing and amenable to blow molding prior to the effective filing date. Therefore, it would have been obvious to one of ordinary skill in the art prior to the effective filing date to have processed the mixture of Miyama into a tube or pipe as suggested by Yoshifumi in order to carry out the intended use as a construction or distribution material. It would further have been obvious to utilize any known method of preparing the pipes and tubing, including the blow molding suggested by Yoshifumi.
Regarding claims 13 and 18, modified Miyama teaches the thermoplastic mixture of claims 1 and 17. Miyama further teaches wherein the polyester is polybutylene terephthalate ([0021]).
Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over Miyama (US 2006/0287441 A1, cite No. 1 on 11/05/2025 IDS) in view of Yoshifumi (US 4,772,652) as applied to claim 1 above, and further in view of Aoyama (US 6,365,659 B1, cited with 12/05/2025 Office action).
Modified Miyama teaches the thermoplastic mixture according to claim 1.
Miyama is silent as to the carboxyl end group content of component A.
However, Aoyama teaches that the quantity of carboxyl end groups is preferably 30-45 equivalents/ton for good throughput and hydrolysis resistance (Aoyama, col. 7, lines 48-53). Like Miyama, Aoyama teaches resin compositions that are useful in packaging (Aoyama, col. 1, line 9; Miyama, [0069]) and aims to reduce hydrolyzation of the polyester resin (hydrolysis resistance, Aoyama, col. 7, lines 50-51; suppressing the hydrolyzation of the polyester resin, Miyama, [0016]). A range of 30-45 equivalents/ton converts to 33-49 mmol/kg polyester (1 ton = 907 kg).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date to have substituted the unspecified carboxyl end group content of Kutsuwa with a carboxyl end group in the range of 33-49 mmol/kg of polyester as taught by Aoyama in order to achieve a composition with good throughput and hydrolysis resistance.
Double Patenting
Claims 1-12, 14-15, and 17 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-3, 5-9, and 13-15 of copending Application No. 18/711,143 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because the instant claims are obvious over the reference claims.
Regarding claims 1, 4, 14-15, and 17, reference claim 1 teaches a thermoplastic mixture comprising: A) 30% to 100% by weight of a thermoplastic blend consisting of: A-1) 65% to 75% by weight of a polyester, A-2) 5% to 25% by weight of an HD polyethylene, and A-3) 3% to 10% by weight of an ionomer and B) 0 to 70% by weight of further additives. The ionomer of reference claim 1 (A-3) (ref claim 1, lines 7-24) is the same as instant claim 1.
A range of 65-75% by weight of A-1 overlaps with the claimed ranges of 60-70% (claim 4) and 60% to 75% (claim 17). A range of 5% to 25% by weight of A-2 overlaps with the claimed ranges of 15% to 25% (claim 14), 20% to 25% (claim 15), and 5% to 20% (claim 17). A range of 3% to 10% by weight of A-3 overlaps with the claimed ranges of 10 to 25% (claim 1) and 10 to 20% (claim 4 and claim 17). It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have selected the overlapping portion of the ranges disclosed by the reference because selection of overlapping portion of ranges has been held to be a prima facie case of obviousness. See MPEP § 2144.05.I.
Reference claims 2, 3, 5, 6, 7, 8, 9, 13, 14, and 15 recite the same limitations as claims 2, 3, 5, 6, 7, 8, 9, 10, 11, and 12, respectively.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
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 AUDRA DESTEFANO whose telephone number is (703)756-1404. The examiner can normally be reached Monday-Friday 9-5.
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.
/AUDRA J DESTEFANO/Examiner, Art Unit 1766
/RANDY P GULAKOWSKI/Supervisory Patent Examiner, Art Unit 1766