. DETAILED ACTION
This communication responds to the Amendment filed March 27,2026. Claims 20-21, 25 and 27 have been cancelled. Claims 1-7, 12, 18-19, 22-24 and 28-29 are currently pending.
The objection to the drawings set forth in the Office Action dated 1/9/2026 is WITHDRAWN due to Applicant’s amendments.
The rejections of the claims under 35 USC 102 and USC 103 set forth in the Office Action dated 1/9/2026 are WITHDRAWN due to Applicant’s amendments.
These rejections are necessitated by amendment. Thus, this action is final.
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 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.
Claim 1, 2, 4, 7, 12, 18, 19, 22-24 and 28 are rejected under 35 U.S.C. 103 as being unpatentable over Choi et al. (US 2017/0158851 (A1) as listed on the IDS dated 01/16/2026) in view of Vergelatti (US20130144001 A1 as listed on the IDS dated 01/16/2026).
Regarding claims 1 and 7, Choi et al. teach an automobile external wheel cover is produced by injection of molding a blend of linear polyketone and ABS (abstract, [0024]). Choi et al. exemplifies a polymer blend of 80% polyketone and 20% ABS, (meeting the Applicant’s ratio of greater than 2:1 of POK/ABS). (Example 39, [0259]), wherein the polyketone used is a carbon monoxide/ethylene/propene terpolymer [0258].
Choi et al. are silent on the impact modifier.
Vergelatti teaches a thermoplastic composition based on polyketone and polyamide (abstract), wherein 0.1 to 30 wt.% of an elastomeric polymer is added to modify the impact strength [0044]. Given that Choi et al. is concerned about the impact strength of the final article [0024] and adding an elastomer to improve impact strength is a known practice in the art, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use the amount of elastomeric polymer as taught by Vergelatti into the polymer blend of Choi with the predictable result of obtaining an article with improved impact strength.
Choi et al. in view of Vergelatti and the claims differ in that Choi et al. in view of Vergelatti do not teach the exact claimed ranges for the rubber containing impact modifier as recited in the instant claim. However, one of ordinary skill in the art before the effective filing date of the claimed invention would have considered the invention to have been obvious because the ranges taught by Choi et al. in view of Vergelatti overlap the instantly claimed ranges and therefore are considered to establish a prima facie case of obviousness. It would have been obvious to one of ordinary skill in the art to select any portion of the disclosed ranges including the instantly claimed ranges from the ranges disclosed in the prior art reference, MPEP 2144.05.
With respect to the Notched Izod Impact strength of the polymer blend, it is noted that such property depends on the composition of the blend. Choi et al. in view of Vergelatti teach a substantially identical composition as the claimed invention. Therefore, the composition of Choi et al. in view of Vergelatti is expected to possess the claimed property because the notched Izod impact strength is an inherent property.
Regarding claims 2 and 4, Choi et al. teach the melt index of the polyketone resin (POK) is 48 g/10 min [0258], as required by the instant claim.
Regarding claims 12 and 18, Choi et al. in view of Vergelatti are silent on the heat deflection temperature. Choi et al. in view of Vergelatti are further silent on the properties as recited in the instant claim 18.
However the properties depend on the composition of the blend. In view of the substantially identical composition of the polymer blend of Choi et al. in view of Vergelatti, the polymer blend of Choi et al. in view of Vergelatti is expected to possess the claimed properties because heat deflection temperature, tensile modulus, tensile strength, tensile strength at break, flexural modulus and flexural strength are inherent properties. Because the PTO does not have proper means to conduct experiments, the burden of proof is now shifted to Applicant to show otherwise. (See In re Best, 562 F.2d 1252, 195 USPQ 430 (CCPA 1977); In re Fitzgerald, 205 USPQ 594 (CCPA 1980).)
Regarding claim 19, 22-24, Choi et al. teach the polymer blend further comprises 2-20 wt.% of a flame retardant ([0010].[0017],[0093],[0097]).
Choi et al. in view of Vergelatti are silent on the flammability ratings of the polymer blend as recited in the instant claims. However, in view of the substantially identical composition of the polymer blend of Choi et al. in view of Vergelatti the polymer blend Choi et al. in view of Vergelatti is expected to possess the claimed flammability ratings, which are inherent properties.
Regarding claim 28, Choi et al. in view of Vergelatti are silent on peak energy as recited in the instant claim.
However, in view of the substantially identical composition of the polymer blend of Choi et al. in view of Vergelatti, the polymer blend of Choi et al. in view of Vergelatti is expected to possess the claimed property because peak energy is an inherent property. (See In re Best, 562 F.2d 1252, 195 USPQ 430 (CCPA 1977); In re Fitzgerald, 205 USPQ 594 (CCPA 1980).)
Claim 3 is rejected under 35 U.S.C. 103 as being unpatentable over Choi et al. (US 2017/0158851 (A1)) in view of Vergelatti (US20130144001 A1) as set forth above for claim 1, and further in view of Abe et al. (JP 2018196933 (A)).
Regarding claim 3, Choi et al. in view of Vergelatti teach the polymer blend of claim 1 as set forth above and incorporated herein by reference. It is noted that Choi et al. do not provide any negative teaching that suggest using a polyketone resin of high viscosity (low melt flow rate) would affect the properties of the blend.
Choi et al. in view of Vergelatti are silent on the polyketone resin having a melt index of 1-20 g/10 min.
Abe et al. teach that selecting an aliphatic polyketone having a melt flow rate of 0.1-10 g/10 min maintains appropriate melt viscosity and melt tension to ensure desirable moldability and prevents drawdown during molding [0133], thereby providing a stable melt behavior during processing. Therefore, it would be obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use the polyketone of Abe et al. into Choi et al.’s polymer blend to improve moldability and processing stability of the polyketone/ABS blend, thereby arriving at the claimed invention.
Claims 5 and 6 are rejected under 35 U.S.C. 103 as being unpatentable over Choi et al. (US 2017/0158851 (A1)) in view of Vergelatti (US20130144001 A1) as set forth above for claim 1, and further in view of George, (US 5141981 as listed on the IDS dated 12/11/2025).
Choi et al. in view of Vergelatti teach the polymer blend of claim 1 as set forth above and incorporated herein by reference.
Regarding claims 5 and 6, Choi et al. are silent on the use of the hydroxyapatite stabilizer.
As to claim 5, George teaches the use of 0.01 to about 1wt.% of a hydroxyapatite stabilizer into aliphatic polyketone compositions to improve their stability during melt processing (Column 1: 51-64, column 4:1-16). Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to incorporate a hydroxyapatite stabilizing agent in the amounts of 0.01 to 1 wt.% into Choi et al ‘s polymer blend comprising an aliphatic polyketone to prevent an undesired increase in viscosity during melt processing (col.4:1-15).
As to claim 6, George teaches as the preferred hydroxyapatite e.g. calcium hydroxyapatite or tribasic calcium phosphate Ca10 (PO4)6(OH)2, (col.3: 57-67), as required by instant claim. George offers the motivation of using the preferred hydroxyapatite into Choi et al’s polymer blend to prevent the increase of the viscosity during melt processing (col.4:1-15).
Claim 29 is rejected under 35 U.S.C. 103 as being unpatentable over Choi et al. (US 2017/0158851 (A1)) in view of Vergelatti (US20130144001 A1) as set forth above for claim 1, and further in view of Li et al. (CN 107903567(A) as listed on the IDS dated 12/11/2025).
Regarding claim 29, Choi et al. in view of Vergelatti teach the polymer blend of claim 1 as set forth above and incorporated herein by reference.
Choi et al. in view of Vergelatti are silent on the compatibilizer.
Li et al. teach a polymer blend comprising an aliphatic polyketone resin and ABS (claim 1), wherein the polymer blend further comprises 2-5 parts of compatibilizer (claim 1). It is noted that polyketone is polar and ABS is a two-phase rubber modified styrenic polymer, therefore they are not very compatible. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use the content of compatibilizer as taught by Li et al. into the blend of Choi et al. in view of Vergelatti with the predictable result of obtaining a polymer blend with improved mechanical properties.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-7, 12, 18-19, 22-24 and 29 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-5,7-11, 17-18 and 20-21 of copending Application No. 18/023,717 (reference application) in view of Zhang et al. (CN 108641269 as listed on the IDS dated 12/11/2025).
Although the claims at issue are not identical, they are not patentably distinct from each other because both set of claims teach a polymer blend comprising an aliphatic polyketone, ABS, a hydroxyapatite stabilizer, a rubber impact modifier and a compatibilizer in contents that overlap, wherein both claim of sets teach the aliphatic polyketone has a melt flow rate of 1-90 g/10 min, 1-20 g/10 min and 40-90 g/10 min.
The difference between the claims of the copending Application ‘717 and the present claims is that the polymer blend does not include a flame retardant and the flammability ratings. However, the use of flame retardants is known in the art. For example, Zhang et al. teach an aliphatic polyketone/ABS blend comprising a flame retardant (abstract). It would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to have incorporated a flame retardant into the polymer blend of the claims of the copending Application ‘717 to improve flame retardant properties considering the ABS is a flammable material [0004]. Regarding the properties, flammability ratings appear to be a result effective variable based on the amount and type of flame retardant used. Therefore, it would have been obvious to have optimized or discovered workable ranges for the flame retardant added to the polymer blend to achieve desired flammability properties (see MPEP 2144.05).
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Response to Arguments
Applicant’s arguments with respect to the USC 103 rejection of the claims have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
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 OLGA L. DONAHUE whose telephone number is (571)270-1152. The examiner can normally be reached M-F 8:00-5:00.
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, JOSEPH DEL SOLE can be reached at 571-272-1130. 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.
/OLGA LUCIA DONAHUE/Examiner, Art Unit 1763
/JOSEPH S DEL SOLE/Supervisory Patent Examiner, Art Unit 1763
Prosecution Insights