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
Claims 1-7, 10-18 and 21-30 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.
In claims 1, 2 and 13, given that “propylene” and “ethylene” denote monomers, it is unclear whether the continuous and discontinuous phases comprise monomers as opposed to polymers.
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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1, 3-6 and 12-17 are rejected under 35 U.S.C. 102(a1) and (a2) as being anticipated by US 2016/0257810 (Peterson).
Peterson discloses a method for making a modified heterophasic polyolefin composition comprising the steps of:
(a) providing a heterophasic polymer composition comprising a propylene polymer continuous phase and an ethylene polymer discontinuous phase [0010] having a melt flow rate (MFR) [0002] and a soluble fraction [0074] (meets Applicants’ step (a));
(b) providing a compatibilizing agent comprising (i) at least one tertiary carbon-hydrogen bond and (ii) at least one acrylic carbon-carbon double bond inclusive of unsaturated ester compounds of polyhydric alcohols having three hydroxy groups [0052] (meets Applicants’ step (b));
(c) providing a peroxide compound [0060] (meets Applicants’ step (c));
(d) feeding the components to a melt mixing apparatus [0045] (meets Applicants’ step (d)); and
(e) processing the components at a temperature above the melting temperature of the heterophasic polymer to form the composition [0045] (meets Applicants’ step (e)) (e.g., abstract, [0002], [0010-0018], [0035], [0045], [0052], [0060-0061], [0074], examples, claims).
As to claim 1, Peterson’s method of making Samples 3AG, 3AJ and 3BC (Table 8) meets the presently claimed requirements in terms of the types of materials used and method steps. Specifically, the compositions [0084] are made by melt-mixing, at a temperature above the melting temperature of the heterophasic polymer, (a) heterophasic polypropylene Lyondell Bassell Pro-Fax SD375S (inherently meets Applicants’ heterophasic thermoplastic polymer composition and inequality expression (i) because it is the same as Applicants’ exemplified 3F polypropylene having the specific MFR, SF and C2SF values per Table 3B), (b) unsaturated ester compatibilizing agents H7, H10 and H29 having the structures per Table 7 (meet Applicants’ compatibilizing agent derived from a polyol comprising three hydroxy groups and an unsaturated aliphatic carboxylic acid) and (c) peroxide compound Varox DBPH (meets Applicants’ peroxide compound because it is the same as Applicants’ exemplified peroxide [0081]). Notably, Peterson’s unsaturated ester compatibilizing agents H7, H10 and H29 have the following structures:
PNG
media_image1.png
166
204
media_image1.png
Greyscale
,
PNG
media_image2.png
174
197
media_image2.png
Greyscale
and
PNG
media_image3.png
186
262
media_image3.png
Greyscale
.
As to claims 3-5 and 14-16, given that Peterson’s heterophasic polypropylene Lyondell Bassell Pro-Fax SD375S is the same as Applicants’ exemplified polypropylene 3F, it would inherently meet all the presently claimed continuous and discontinuous phase limitations. Notably, Peterson’s propylene polymer continuous phase and ethylene polymer discontinuous phase are similarly constituted [0012].
As to claims 6 and 17, Peterson’s compatibilizing agents H7 and H29 have each of the three hydroxy groups esterified with an aliphatic carboxylic acid, i.e., (meth)acrylic acid.
As to claim 12, given that Peterson’s Varox DBPH peroxide is the same as that exemplified by Applicants [0081], it would be expected to be the same.
As to claim 13, given that Peterson uses the same heterophasic polypropylene Lyondell Bassell Pro-Fax SD375S as Applicants’ polypropylene 3F (Table 3B), it would be expected that the former would inherently have the same particle concentration of 0.47 per cubic micron governing the latter defining.
Claim Rejections - 35 USC § 103
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 2, 23-26 and 30 are rejected under 35 U.S.C. 103 as being unpatentable over US 2016/0257810 (Peterson) described hereinabove.
As to claim 2, Peterson’s method for making the modified heterophasic polyolefin composition comprises the steps of:
(a) providing a heterophasic polymer composition comprising a propylene polymer continuous phase and an ethylene polymer discontinuous phase [0010] having a melt flow rate (MFR) [0002] and a soluble fraction [0074] (meets Applicants’ step (a));
(b) providing a compatibilizing agent inclusive of unsaturated ester compounds of polyhydric alcohols having three hydroxy groups [0052] (meets Applicants’ step (b));
(c) providing a peroxide compound [0060] (meets Applicants’ step (c)); ; and
(d) heating the components at a temperature above the melting temperature of the heterophasic polymer to produce a polymer composition [0045] (meets Applicants’ steps (e) and (f)).
Moreover, it is within the purview of Peterson’s inventive disclosure [0102], and obvious to one having ordinary skill in the art, to pre-combine the heterophasic polymer, compatibilizing agent and peroxide compound in a closed container prior to heating the components at a temperature above the melting temperature of the heterophasic polymer (meets Applicants’ step (d)) and cooling the composition (meets Applicants’ step (g)). Thus, it would have been obvious to one having ordinary skill in the art to modify Peterson’s method of making Samples 3AG, 3AJ and 3BC to include pre-combining the heterophasic polymer, compatibilizing agent and peroxide compound in a closed container prior to heating the components at a temperature above the melting temperature of the heterophasic polymer and cooling the composition with the reasonable expectation of success.
As to claims 23-25, given that Peterson’s heterophasic polypropylene Lyondell Bassell Pro-Fax SD375S is the same as Applicants’ exemplified polypropylene 3F, it would inherently meet all the presently claimed continuous and discontinuous phase limitations.
As to claim 26, Peterson’s compatibilizing agents H7 and H29 have each of the three hydroxy groups esterified with an aliphatic carboxylic acid, i.e., (meth)acrylic acid.
As to claim 30, given that Peterson’s Varox DBPH peroxide is the same as that exemplified by Applicants [0081], it would be expected to be the same.
Claims 7, 10, 11, 18, 21, 22 and 27-29 are rejected under 35 U.S.C. 103 as being unpatentable over US 2016/0257810 (Peterson) described hereinabove in view of US 2012/0289620 (Deheunynck)
As to claims 7, 18 and 27, Peterson does not appear to disclose compatibilizing agents derived from trimethylolpropane (2-(hydroxymethyl)-2-ethylpropane-1,3-diol). Deheunynck, directed to similar-such compositions comprising a (heterophasic) polyolefin, an unsaturated ester compound derived from a polyhydric alcohol having three or more hydroxy groups and a peroxide compound, discloses that ester compounds derived from trimethylolpropane and ester compounds derived from glycerol are functional alternative unsaturated ester compounds (e.g., abstract, [0012], [0035-0036]). Thus, it would have been obvious to one having ordinary skill in the art to use an unsaturated ester compound derived from trimethylolpropane as a functional alternative to Peterson’s unsaturated ester compounds with the reasonable expectation of success.
As to claims 10, 21 and 28, it would have been within the purview of Peterson’s inventive disclosure [0052] to use an unsaturated ester compound per formula (I) wherein R1, R2 and R3 have the structure per formula (VI) wherein the moiety -X1-CO-R5 is derived from 2,4-hexadienoic acid (sorbic acid). In this regard, Deheunynck discloses [0036] the common use of sorbic acid in the production of similar-such unsaturated ester compounds.
As to claims 11, 22 and 29, given that Deheunynck discloses trimethylolpropane trisorbate [0036] as a viable unsaturated ester compound functional alternative, it would have been obvious to one having ordinary skill in the art to use said compound in Peterson’s composition with the reasonable expectation of success.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Ana L Woodward whose telephone number is (571)272-1082. The examiner can normally be reached M-F 8am-5pm.
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, Heidi Kelley can be reached at 571-270-1831. 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.
/ANA L. WOODWARD/Primary Examiner, Art Unit 1765
Prosecution Insights