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 § 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.
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 1-9 are rejected under 35 U.S.C. 103 as being unpatentable over Parikh (US Patent No. 6,005,053) in view of Kajiwara (JPH11315159 A, hereinafter referring to the attached ESPACENET translation).
Regarding claim 1, Parikh teaches polymer mixtures containing an ethylene polymer (A) and at least one homogeneous/heterogeneous ethylene polymer (B) (Abstract), wherein polymer (A) is preferably produced using a metallocene catalyst (col. 6, lines 51-57). The ethylene polymers can be derived from ethylene-α-olefin copolymers (col. 5, lines 63-67). Furthermore, the polymers (B) can be a mixture of materials (see line 58 of col. 6), and states that linear low-density polyethylene and high density polyethylene are suitable components for the polymers (B) (col. 6, lines 65-67). Finally, the homogeneous linear ethylene polymers may be formed using Ziegler-type catalysts (col. 7, lines 20-25).
Parikh teaches that the components (A) and (B) are provided in ratios ranging from 30:70 to 95:5, and indicates that these ratios may be based on the combined weight of only the polymers or the total weight of the entire mixture, including other additives (col. 22, lines 45-58). Components (A) and (B) may therefore respectively range between 30-95 and 5-70 wt% of either the combined components (A) and (B) (i.e., the resin components of the formulation) or between 30-95 and 5-70 wt% of the entire formulation. Within the continued discussion below, components (A) and (B) will be considered as comprising between 30-95 and 5-70 wt%, respectively, of the combined components (A) and (B) (i.e., the resin components of the formulation).
Regarding the claimed compositional limitations relating to the amounts of ethylene-α-olefin and HDPE within the claimed resin, Parikh does not specifically state the included ratios of components within polymers (B) when more than one material is included therein. Parikh therefore does not directly disclose the aforementioned compositional ranges. However, the obviousness analysis may “take account of the inferences and creative steps that a person of ordinary skill in the art would employ.” KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 421 (2007). For example, the analysis may “include recourse to logic, judgment, and common sense available to the person of ordinary skill that do not necessarily require explication in any reference or expert opinion.” Perfect Web Techs., Inc. v. InfoUSA, Inc., 587 F.3d 1324, 1329 (Fed. Cir. 2009). The Patent Trial and Appeal Board has held that mixing equivalent components in a 1:1 ratio represented no more than application of the “logic, judgment, and common sense available to the person of ordinary skill” in the art. Ex parte Swanzy, Appeal 2017-004875 at 8-9.
In this case, Parikh discloses Ziegler-Natta-catalyzed HDPE and LLDPE as equally suitable alternatives to one another and therefore recognizes the equivalence of the two polymers. It would have would have been prima facie obvious, using no more than ordinary creativity, logic, judgment, and common sense, to combine HPDE and LLDPE, as two other resins in addition to the metallocene-catalyzed polymer, in equal amounts (i.e. in a 1:1 ratio) based on the fact that both are disclosed in parallel as being equally suitable for use in this capacity. In doing so, the compositional amounts of each of the HDPE and Ziegler-catalyzed LLDPE would range from about 2.5 to 35 wt% of the resin components within the composition. The remaining amount (in the range of 30-95 wt% of the resin components) comprises the metallocene-catalyzed ethylene-α-olefin copolymer (A). Combined, the LLDPE and the metallocene-catalyzed ethylene-α-olefin copolymer (A) comprise the ethylene-α-olefin components of the resin (because the Specification specifically states that LLDPE is also an ethylene-α-olefin copolymer, see instant Specification at [0021]), and constitute a combined amount of between 65 and 97.5 wt% of the resins. Likewise, the HDPE in the composition comprises between 2.5 and 35 wt% of the resins. In each case, these amounts overlap the respectively claimed ranges of “50% by mass or more and 90% by mass or less” and “5% by mass or more and 50% by mass or less,” establishing prima facie cases of obviousness. Furthermore, the amounts of the ethylene-α-olefin polymer (A) and the LLDPE within polymers (B) relative to the sum of the two may range from about 46.2-97.4 wt% and about 2.6-53.8 wt%, respectively. The mass percentage range of the ethylene-α-olefin polymer (A) within the sum total of all ethylene-α-olefin polymers in the composition therefore falls within the claimed range of “10% by mass or more and 70% by mass or less,” establishing a prima facie case of obviousness.
Parikh teaches the incorporation of filler including calcium carbonate (col. 24, lines 43-44) which is an optional component which may comprise the non-resin components of the formulation, but is silent regarding the amounts in which said filler may be included. Parikh therefore differs from claim 1 because it is silent with regard to the claimed limitation requiring that the resin comprises between 25 and 90 wt% of the overall composition.
In the same field of endeavor, Kajiwara teaches a film made from resin containing polyethylene which is polymerized using a metallocene catalyst and an inorganic filler ([0007]). This resin is included in 100 parts by weight, while the only other required component (the inorganic filler) is included in amounts ranging from 10 to 300 parts by weight ([0007]). Kajiwara teaches the optional incorporation of additional resins such as high density polyethylene and linear low-density polyethylene, optionally polymerized using Ziegler-Natta catalysts ([0013]).
It would have been obvious to one having ordinary skill in the art at the time of filing to incorporate between 10 and 300 parts by mass of filler (including calcium carbonate, see [0014]) per 100 parts of resin within the formulation of Parikh, as Kajiwara teaches this range as suitable for blended polyethylene compositions. In doing so, the formulation of Parikh as modified by Kajiwara would include 100 parts by weight of resin (including resin components (A) and (B), above), and between 10 and 300 parts by weight of the calcium carbonate filler. The resin components would therefore comprise between 25 and about 90.9 wt% of the overall formulation, which encompasses the claimed range of “25% by mass or more and less than 90% by mass,” establishing a prima facie case of obviousness.
Regarding claim 2, Parikh teaches that the ethylene-α-olefin polymers are produced using α-olefins having between about 3 and 20 carbon atoms (col. 1, lines 20-22), which encompasses the claimed range of “6 or more and 8 or less,” establishing a prima facie case of obviousness.
Regarding claim 3, Parikh teaches that the inorganic filler may be calcium carbonate (col. 24, lines 43-44).
Regarding claim 4, Parikh teaches that the inventive composition may be used for packaing materials (col. 24, lines 30-32).
Regarding claim 5, the claim is drawn to an intended use of the polyethylene-based packaging material of claim 4. The intended use limitations do not require steps to be performed or limit the claims to a particular structure. These limitations do not limit the scope of the instant claims and need not be taught by the prior art in order to read on the claims. See MPEP 2111.02. Therefore, Parikh as modified and as applied to claim 4 above, also reads on claim 5.
Regarding claim 6, as described above, the composition of Parikh as modified by Kajiwara teacehs all of the claimed compositional limitations.
Parikh further teaches the blending (i.e., mixing) of the aforementioned components (col. 23, lines 30-36), which reads on the claimed “method for producing a polyethylene-based resin composition.”
Regarding claim 7, Parikh further teaches the molding of the mixed composition (col. 23, lines 21-29). Parikh therefore reads on the claimed “method for producing a polyethylene-based resin packaging material.”
Regarding claims 8-9, as described above, Parikh as modified by Kajiwara teaches that the amounts of the ethylene-α-olefin polymer (A) and the LLDPE within polymers (B) relative to the sum of the two may range from about 46.2-97.4 wt% and about 2.6-53.8 wt%, respectively. As described above, these two materials together comprise the total of the ethylene-α-olefin copolymers within the composition. Therefore, the range of about 2.6-53.8 wt% overlaps the claimed ranges of “15% by mass or more and 90% by mass or less,” establishing prima facie cases of obviousness.
Response to Arguments
Applicant’s arguments, see Applicant’s Remarks, filed November 17, 2025, with respect to the rejections of claims 1-7 under 35 USC 102(a)(1) 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 view of Parikh and Kajiwara, as described above.
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 JOSHUA CALEB BLEDSOE whose telephone number is (703)756-5376. The examiner can normally be reached Monday-Friday 8:00 a.m. - 5:00 p.m. EST.
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/JOSHUA CALEB BLEDSOE/Examiner, Art Unit 1762
/ROBERT S JONES JR/Supervisory Patent Examiner, Art Unit 1762