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 Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 3, 7-8, 10-11, and 18 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as failing to set forth 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 because:
A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, claims 7-8 and 11 recites a broad range “is greater than 40.0 g/10 min” of claim 7 and “at most 40.0 g/10 min” of claim 8, and “1.0 to 200 g/10 min” of claim 11 followed by the term “preferably” that is further followed by a narrower statement of the range/limitation. The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims.
Claim 10 is indefinite, as the claim recites the limitation “preferably, relative to the total weight of the composition”. It is unclear whether the limitation following preferably is optional or required. For purposes of examination, the claim will be interpreted as not including the term “preferably”, and require the limitation of “relative to the total weight of the composition”.
Claim 3 recites the limitation "non-nucleated polypropylene composition" in line 3. There is insufficient antecedent basis for this limitation in the claim. For purposes of examination, the phrase “non-nucleated polypropylene composition” will be interpreted as “the polypropylene composition” as set forth in claim 1.
Claim 18 is indefinite, as the claim does not set forth any steps involved in the method/process. It is consequently unclear what method/process applicant is intending to encompass. A claim is indefinite where it merely recites a use without any active, positive steps delimiting how this use is actually practiced (see MPEP 2173.05(q)).
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claim 18 is rejected under 35 U.S.C. 101 because the claimed recitation of a use, without setting forth any steps involved in the process, results in an improper definition of a process, i.e., results in a claim which is not a proper process claim under 35 U.S.C. 101 (see MPEP 2173.05(q)).
Claim Rejections - 35 USC § 103
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 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.
Claims 1-6, 8-11, and 13-18 are rejected under 35 U.S.C. 103 as being unpatentable over US2014/0128549 to Kheirandish et al. (as found on the IDS dated 2/23/2023).
Regarding Claims 1, 4, and 6, Kheirandish teaches a propylene composition [abstract] comprising a metallocene catalyzed polypropylene (mcPP) [0021] and a Ziegler-Natta catalyzed polypropylene (znPP) [0021] wherein all inventive examples are made with a mixture of Ziegler-Natta catalyst stem and a metallocene catalyst system [abstract] wherein both components are copolymers [0037] and that preferably comprise ethylene in a range of 0.5-8.0 wt% based on the propylene composition [0038] thereby reading on the limitations of (RPP-A), (RPP-B), and 1.1 wt% of copolymer (of claim 1) and the comonomer of ethylene. Kheirandish further specifies the polypropylene composition has a melting temperature of 135-170°C [0025] reading on at least 130°C; a crystallization temperature of 100-135°C [0026] reading on at least 95.0°C; and a xylene soluble content of preferably less than 6.0 wt% [0045] reading on at most 3.0% by weight.
Kheirandish is silent regarding the Mw/Mn ratio of at least 4.50.
However, Kheirandish teaches a skilled polymer chemist can alter catalyst systems to tailor the properties of the polymer product wherein mixed catalyst systems are used in order to achieve a broad multimodal molecular weight distribution (i.e., high Mw/Mn ratio) in the final polymer product wherein such distribution is desirable as the higher molecular weight component contributes to the strength of the end products made from the polymer while the lower molecular weight component contributes to the processability of the polymer [0009]. Therefore, the molecular weight distribution [Mw/Mn] can be optimized to reach the desired strength and processability via a routine optimization. The case law has held that discovering an optimum value of a result effective variable involves only routine skill in the art. In re Boesch, 617 F.2d 272, 205 USPQ 215 (CCPA 1980). Thus, it would have been obvious to one having ordinary skill in the art at the time of the invention was made to increase the molecular weight distribution [Mw/Mn] (to include a range of at least 4.50) for the intended polypropylene composition via a routine optimization, thereby obtaining the present invention.
Kheirandish is further silent regarding a co-monomer distribution ratio R(Mz)/R(Mn) higher than 0.995 (claim 1), a Mz/Mw ratio of at least 2.10 (claim 1) and Mz/Mw ratio of at least 6.0 (claim 4).
Consequently, the Office recognizes that all of the claimed effects or physical properties are not positively stated by the reference(s). However, Kheirandish, when modified in the manner proposed above, teaches a product prepared from all of the claimed ingredients in the claimed amounts by a substantially similar process. Therefore, the claimed effects and physical properties - i.e. co-monomer distribution ratio and Mz/Mw ratio - would be achieved in a product prepared from all of the claimed ingredients in the claimed amounts by a substantially similar process. See In Re Spada, 911, F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990) and MPEP 2111.01 (I)(II). If it is applicant’s position that this would not be the case: (1) evidence would need to be provided to support the applicant’s position and (2) it would be the Office’s position that the application contains inadequate disclosure as to how to obtain the claimed properties in a product prepared from all of the claimed ingredients in the claimed amounts by a substantially similar process.
Regarding Claims 2 and 3, Kheirandish teaches the polypropylene composition of claim 1, that has a melting temperature of 135-170°C [0025] and a crystallization temperature of 100-135°C [0026] therefore the difference between the melting temperature and the crystallization temperature is reasonably calculated to be a range from 0 to 100°C, thereby overlapping with the range greater than 33.0°C of claim 2 and a range of lower than 38.0°C of claim 3.
Though the prior art range is not identical to the claimed range (greater than 33.0°C and lower than 38.0°C), it does overlap. It has been held that, 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 USPG 90 (CCPA 1976) (MPEP 2144.05).
Regarding Claim 5, Kheirandish teaches the polypropylene composition of claim 1, wherein the composition is bimodal [0009]. As such, Kheirandish’s polymer segments are required to have different melt flow index’s and therefore one of Kheirandish’s segments is greater than the other and reasonably reads on melt flow index of (RPP-B) is greater than the melt flow index of (RPP-B). This can be seen in table 5 wherein all inventive examples have a segment with a higher MFR2 than the other segment.
Regarding Claim 8, Kheirandish teaches the polypropylene composition of claim 1, wherein the polypropylene segments have a MFR2 of between 0.61 – 3.23 g/10 min as shown in inventive examples IE6 to IE8 [Table 5] thereby readying on the melt index of the first metallocene-catalyzed polypropylene is of at most 40.0 g/10 min.
Regarding Claim 9, Kheirandish teaches the polypropylene composition of claim 1, comprising 50-94 parts of a metallocene catalyzed polypropylene (mcPP) [0021] thereby reading on 60-80 wt% of (RPP-A).
Regarding Claim 10, Kheirandish teaches the polypropylene composition of claim 1, comprising 6 to 50 parts of a Ziegler-Natta catalyzed polypropylene (znPP) [0021] thereby reading on 20-40 wt% of (RPP-B).
Regarding Claim 11, Kheirandish teaches the polypropylene composition of claim 1, that has a melt flow index of 0.1 to 300 g/10 minutes [0041] reading on 1.0 to 200 g/10 minutes.
Regarding Claim 13, Kheirandish teaches the polypropylene composition of claim 1, that is an in-situ reactor blend [0032] produced in one or more polymerization zones [0033] reading on chemical (in-situ) blend.
Regarding Claim 14, Kheirandish teaches the polypropylene composition of claim 1, wherein the composition can comprise blending of two or more polypropylenes [0013] reading on physical blend.
Regarding Claims 15 and 16, Kheirandish teaches a process for the preparation of the polypropylene composition of claim 1, comprising a propylene composition [abstract] comprising 50-94 parts of a metallocene catalyzed polypropylene (mcPP) [0021] (corresponding to (RPP-A)) and 6 to 50 parts of a Ziegler-Natta catalyzed polypropylene (znPP) [0021] (corresponding to (RPP-B) wherein all inventive examples are made with a mixture of Ziegler-Natta catalyst stem and a metallocene catalyst system [abstract] wherein both components are copolymers [0037] and that preferably comprise ethylene in a range of 0.5-8.0 wt% based on the propylene composition [0038] thereby reading on the limitations of (RPP-A), (RPP-B), and 1.1 wt% of copolymer (of claim 15), wherein the polypropylene composition is an in-situ reactor blend [0032] produced in one or more polymerization zones [0033] reading on (iii). Kheirandish further specifies the polypropylene composition has a melting temperature of 135-170°C [0025] reading on at least 130°C; a crystallization temperature of 100-135°C [0026] reading on at least 95.0°C; and a xylene soluble content of preferably less than 6.0 wt% [0045] reading on at most 3.0% by weight.
Kheirandish is silent regarding the Mw/Mn ratio of at least 4.50.
However, Kheirandish teaches a skilled polymer chemist can alter catalyst systems to tailor the properties of the polymer product wherein mixed catalyst systems are used in order to achieve a broad multimodal molecular weight distribution (i.e., high Mw/Mn ratio) in the final polymer product wherein such distribution is desirable as the higher molecular weight component contributes to the strength of the end products made from the polymer while the lower molecular weight component contributes to the processability of the polymer [0009]. Therefore, the molecular weight distribution [Mw/Mn] can be optimized to reach the desired strength and processability via a routine optimization. The case law has held that discovering an optimum value of a result effective variable involves only routine skill in the art. In re Boesch, 617 F.2d 272, 205 USPQ 215 (CCPA 1980). Thus, it would have been obvious to one having ordinary skill in the art at the time of the invention was made to increase the molecular weight distribution [Mw/Mn] (to include a range of at least 4.50) for the intended polypropylene composition via a routine optimization, thereby obtaining the present invention.
Kheirandish is silent regarding a co-monomer distribution ratio R(Mz)/R(Mn) higher than 0.995 and a Mz/Mw ratio of at least 2.10 (claim 15). Consequently, the Office recognizes that all of the claimed effects or physical properties are not positively stated by the reference(s). However, Kheirandish, when modified in the manner proposed above, teaches a product prepared from all of the claimed ingredients in the claimed amounts by a substantially similar process. Therefore, the claimed effects and physical properties - i.e. co-monomer distribution ratio and Mz/Mw ratio - would be achieved in a product prepared from all of the claimed ingredients in the claimed amounts by a substantially similar process. See In Re Spada, 911, F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990) and MPEP 2111.01 (I)(II). If it is applicant’s position that this would not be the case: (1) evidence would need to be provided to support the applicant’s position and (2) it would be the Office’s position that the application contains inadequate disclosure as to how to obtain the claimed properties in a product prepared from all of the claimed ingredients in the claimed amounts by a substantially similar process.
Regarding Claim 17, Kheirandish teaches the polypropylene composition of claim 1, that is used for films, bottles, pipes, fittings, or foams [0002] reading on article.
Regarding Claim 18, Kheirandish teaches the polypropylene composition of claim 1, that is used for pipes [0002]. A person of ordinary skill in the art known a pipe is an extruded article, therefore reading on extruded article.
Claims 7 and 12 are rejected under 35 U.S.C. 103 as being unpatentable over Kheirandish in view of US2017/0349736 to Grein et al.
Regarding Claim 7, Kheirandish teaches the polypropylene composition of claim 1 as set forth above and incorporated herein by reference.
Kheirandish is silent regarding a second metallocene-catalyzed polypropylene is greater than 40.0 g/10 min.
However, Grein teaches a polypropylene composition [title] that is multimodal [abstract] wherein the second fraction of the multimodal polypropylene homopolymer has a melt flow index of 50-200 g/10 min [0024]. Kheirandish and Grein are analogous art as they are from the same fiend of endeavor, namely multimodal polypropylene compositions.
Before the effective filing date of the instantly claimed invention, it would have been obvious to a person of ordinary skill in the art to use the melt flow index range taught in Grein as the melt flow index of Kheirandish’s second metallocene-catalyzed polypropylene, thereby arriving at the claimed invention.
The motivation to modify Kheirandish with Grein is that an increase of the melt flow index increases the flowability of a heterophasic polypropylene resin [0005] wherein high flow heterophasic materials are particularly desired in the automotive field [0004].
Regarding Claim 12, Kheirandish teaches the polypropylene composition of claim 1 as set forth above and incorporated herein by reference.
Kheirandish is silent regarding flexural modulus greater than 900 MPa.
However, Grein teaches a polypropylene composition [title] that is multimodal [abstract] with a flexural modulus of preferably 1500 MPa or more [0050]. Kheirandish and Grein are analogous art as they are from the same fiend of endeavor, namely multimodal polypropylene compositions.
Before the effective filing date of the instantly claimed invention, it would have been obvious to a person of ordinary skill in the art to use the flexural modulus range taught in Grein as the flexural modulus range of Kheirandish’s second metallocene-catalyzed polypropylene, thereby arriving at the claimed invention.
The motivation to modify Kheirandish with Grein is that an increase of flexural modulus corresponds to an increase of the stiffness of the material [0033] wherein the need for polypropylenes with excellent stiffness at high flowability is constantly increases as down-gauging and light-weighing become more important with the need for saving energy resources [0003]. Furthermore, stiffness is required in applications such as automotive parts [0002].
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner
should be directed to Devin Darling whose telephone number is (703) 756-5411. The examiner can normally be reached M-F 9:00-5:00.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Arrie Lanee Reuther can be reached on (571) 270-7026. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/DEVIN MITCHELL DARLING/Examiner, Art Unit 1764
/ARRIE L REUTHER/Supervisory Primary Examiner, Art Unit 1764