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 1-13, 17-22, and 24, are pending and being examined.
Response to Amendment
The previous objection of the specification is/are withdrawn in light of the Applicant’s amendments.
The previous rejection of Claims 1-13, 17-21, and 24, are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite is/are withdrawn in light of the Applicant’s amendments.
The previous rejection of Claim(s) 1-13, 17-22 and 24, under 35 U.S.C. 102(a)(1) as being anticipated by US 2009/0209706 A1 to Sheard et al. (hereinafter Sheard’706) is/are withdrawn in light of the Applicant’s amendments.
Claim Rejections - 35 USC § 102
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claim(s) 1-13, 17-21, is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by JP 2011-111587 A to Yugawa et al. (hereinafter Yugawa).
Regarding claims 1-13, 17-21, Yugawa teaches a polymer composition of a propylene homopolymer (Example 7, para 108), and a copolymer obtained from a mixture of propylene and ethylene (i.e. random copolymer) (Example 7, para 109), wherein the propylene-ethylene copolymer contains 22 wt% of ethylene, and the polymer composition contains 25 wt% of the propylene-ethylene copolymer (See Table 5, para 117).
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. Yugawa further teaches the polymer composition has an MFR of 29 g/10min, and a total hydrocarbon compounds having C30 or less (i.e. total oligomer content), of 43 ppm. (See Table 5, para 117), which meets the claimed total oligomer content of less than 763.7 ppm. (i.e. 260x(29^0.32) = 763.7 ppm).
Regarding the phthalate-free internal donor and Ziegler-Natta catalyst of claim 13, this is a product-by-process claim. Here, Yugawa teaches each and every component of the composition such as the polymer composition with the claimed first and second phase polymers in the weight and oligomer content amounts. Thus, the product is the same and reads upon the claims. See MPEP 2113. (“[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process.” In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985)).
Regarding the properties of the Koening B value of the second polymer phase, the xylene soluble content, and the C12 or VOC content of the polymer composition, one skilled in the art would have a reasonable expectation for the polypropylene composition of Yugawa to have the claimed properties of the claimed invention because Yugawa teaches a substantially identical polypropylene to the claimed invention such as a heterophasic polypropylene polymer with a homopolypropylene matrix, and a random propylene/ethylene copolymer dispersed in the continuous phase to form a rubber component (para 49-50 and Example 7), wherein the propylene/ethylene copolymer has an ethylene content 22 wt% and there is 25 wt% of the propylene/ethylene copolymer in the polypropylene polymer having a total oligomer content of 43 ppm (Example 7), which the Applicant similarly teaches, and the Applicant states that the volatile content is analogous to the presence of oligomers and the lower VOC and oligomer content is a direct result of properties (para 40-46 of US publication), and this is further evident by the polypropylene polymer of Yugawa having the MFR and total oligomer content within the claimed amounts of the claimed invention. See MPEP 2112.01. (Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977)).
Claim Rejections - 35 USC § 102/103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
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.
Claim(s) 1-13, 17-22 and 24, is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by or, in the alternative, under 35 U.S.C. 103 as obvious over US 2010/016342 A1 to Sheard et al. (hereinafter Sheard’342).
Regarding claims 1-13, 17-22 and 24, Sheard’342 teaches a heterophasic polypropylene impact copolymer obtained by reacting propylene with a Ziegler-Natta procatalyst (magnesium/titanium halide alcoholate, chlorobenzene, and titanium (IV) chloride mixture), and an internal electron donor of 5-tert-butyl-3-methyl-1,2-phenylene dibenzoate
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(i.e. phthalate-free) to form a continuous phase homopolypropylene matrix, and is then further polymerized with ethylene to form a random propylene/ethylene copolymer dispersed in the continuous phase to form a discontinuous phase (para 89-117, 145-151, Examples and Table 2-4), wherein the propylene/ethylene copolymer has an ethylene content (Ec) of 49.2 wt% and there is 19.8 wt% of the propylene/ethylene copolymer (Fc) in the polypropylene polymer (See Table 2 and examples), which meets the claimed polymer composition of claims 1, 4, 12, 13, 17 and process of claims 22 and 24. The xylene soluble (XS) of the homopolypropylene is 1.8 wt%, the polypropylene impact copolymer has a MFR of 101 g/10 min, and the total volatiles content of the polypropylene impact copolymer is 21 µg/g or ppm, (See Example 1, Table 2), which meets the properties cited in claims 5, 8, 9, 10. Sheard’342 further teaches the above polypropylene polymer is used in molded articles such as automotive interior parts, and containers, (para 95 and 115), which meets claims 18-12. Sheard’342 also teaches that the “volatiles” are low molecular weight oligomers and that a lower number of volatiles (i.e. oligomers) are a direct result using the phenylene aromatic diester, i.e. internal electron donor. (para 92, 93 and 97).
Sheard’342 further teaches that the internal electron donor may have the formula (II)
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, wherein at least one R5-R14 is a hydrocarbyl group having 1-20 carbons (para 29), and wherein R1, R3 and R4 are i-propyl groups (para 71), which meets the claimed phthalate-free Zeigler-Natta catalyst cited in claims 13 and 22.
Thus, one skilled in the art would at once envisage the claimed arrangement combination because Sheard’342 specifically teaches the internal electron donor having the formula (II), wherein at least one R5-R14 is a hydrocarbyl group having 1-20 carbons (para 29), and wherein R1, R3 and R4 are i-propyl groups (para 71), which meets the claimed arrangement combination. (See MPEP 2131.02(III), "A reference disclosure can anticipate a claim when the reference describes the limitations but "'d[oes] not expressly spell out' the limitations as arranged or combined as in the claim, if a person of skill in the art, reading the reference, would ‘at once envisage’ the claimed arrangement or combination").
In the alternative, if it is found that the reference does not anticipated the claims, the claimed invention would have been obvious to one ordinarily skilled in the art before the effective filing date of the claimed invention because, as cited above and incorporated herein, thus, one skilled in the art would envisage wherein at least one R5-R14 is a hydrocarbyl group having 1-20 carbons (para 29), and wherein R1, R3 and R4 are i-propyl groups (para 71). (See MPEP 2144.08)
Regarding the properties of the C12-C21 oligomer content of the polymer composition, C12-C21 oligomer content of the first polymer phase, Koening B value of the second polymer phase, and the C12 or VOC content of the polymer composition, one skilled in the art would have a reasonable expectation for the polypropylene impact copolymer of Sheard’342 to have the claimed properties of the claimed invention because Sheard’342 teaches a substantially identical polypropylene composition obtained by substantially identical process to the claimed invention such as a heterophasic polypropylene polymer obtained by reacting propylene with a Ziegler-Natta procatalyst and the same formula internal electron donor (i.e. phthalate-free) to form a continuous phase homopolypropylene matrix, and is then further polymerized with ethylene to form a random propylene/ethylene copolymer dispersed in the continuous phase to form a discontinuous phase (para 89-117, 145-151, Examples and Table 2-4), wherein the propylene/ethylene copolymer has an ethylene content (Ec) of 49.2 wt% and there is 19.8 wt% of the propylene/ethylene copolymer (Fc) in the polypropylene polymer (See Table 2 and examples), which the Applicant similarly teaches, and the Applicant states that the volatile content is analogous to the presence of oligomers and the lower VOC and oligomer content is a direct result of the phthalate-free catalyst system used (para 40-46 of US publication), and this is further evident by the polypropylene polymer of Sheard’342 having the XS, MFR and total volatiles content properties within the claimed amounts of the claimed invention and further evident by Sheard’342 teaching that the “volatiles” are low molecular weight oligomers and that a lower number of volatiles (i.e. oligomers) are a direct result using the same phenylene aromatic diester, i.e. internal electron donor, (para 92, 93 and 97), which the Applicant also teaches in their specification. See MPEP 2112.01. (Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977)).
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.
Claim(s) 1-13, 17-21, is/are rejected under 35 U.S.C. 103 as being unpatentable over US 2009/0209706 A1 to Sheard et al. (hereinafter Sheard’706).
Regarding claims 1-13, 17-21, Sheard’706 teaches a heterophasic polypropylene polymer obtained by reacting propylene with a Ziegler-Natta procatalyst and an internal electron donor of di-isobutylphthalate
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to form a continuous phase homopolypropylene matrix, and is then further polymerized with ethylene to form a random propylene/ethylene copolymer dispersed in the continuous phase to form a discontinuous phase (para 95-98, 167-177, and Examples), wherein the propylene/ethylene copolymer has an ethylene content (Ec) of 44.5 wt% and there is 17.3 wt% of the propylene/ethylene copolymer (Fc) in the polypropylene polymer (See Table 2 and examples), which meets the claimed polymer composition of claims 1, 4, 12, 13, 17. The xylene soluble (XS) of the homopolypropylene is 1.7 wt%, the polypropylene polymer has a MFR of 78 g10/min, and the total volatiles content of the polypropylene polymer is 47.7 µg/g or ppm, (See Example 1, Table 2), which meets the properties cited in claims 5, 8, 9, 10. Sheard’706 further teaches the above polypropylene polymer is used in molded articles such as automotive interior parts, and containers, (para 125), which meets claims 18-12.
Sheard’706 also teaches that the polypropylene polymer has a post-reactor oligomer content of less than 2500 ppm or 500 ppm to 3000 ppm (para 89), wherein the “oligomers” are C12 to C21 compounds. (para 89). Using the above teachings of a MFR of 78 g10/min, the above correlates to 260*(780.32) = 1048.2 ppm, and the less than 2500 ppm or 500 ppm to 3000 ppm oligomer content range of Sheard’706 would overlap and meet the claimed ranges. (See MPEP 2144.05, “where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists”). Sheard’706 further teaches the oligomer content level is a direct affect from using the above catalyst composition (para 38) and directly gives the propylene-based polymer its good melt flow and stiffness properties. (para 65, 85-86 and 89).
It would have been obvious to one ordinarily skilled in the art before the effective date of the claimed invention to have the claimed total oligomer content range because Sheard’706 teaches that the polypropylene polymer has a post-reactor oligomer content of less than 2500 ppm or 500 ppm to 3000 ppm (para 89), which overlap and meet the claimed ranges, and Sheard’706 further teaches the oligomer content level is a direct affect from using the above catalyst composition (para 38) and directly gives the propylene-based polymer its good melt flow and stiffness properties. (para 65, 85-86 and 89).
Regarding the properties of the C12 oligomer content, total oligomer content, oligomer content of the first polymer phase, Koening B value of the second polymer phase, and the C12 VOC content of the polymer composition, one skilled in the art would have a reasonable expectation for the polypropylene polymer composition of Sheard’706 to have the claimed properties of the claimed invention because Sheard’706 teaches a substantially identical polypropylene composition obtained by substantially identical process to the claimed invention such as a heterophasic polypropylene polymer obtained by reacting propylene with a Ziegler-Natta procatalyst and an internal electron donor of di-isobutylphthalate to form a continuous phase homopolypropylene matrix, and is then further polymerized with ethylene to form a random propylene/ethylene copolymer dispersed in the continuous phase to form a discontinuous phase (para 95-98, 167-177, and Examples), wherein the propylene/ethylene copolymer has an ethylene content (Ec) of 44.5 wt% and 17.3 wt% of the propylene/ethylene copolymer (Fc) in the polypropylene polymer (See Table 2 and examples), which the Applicant similarly teaches, the Applicant states that the volatile content is analogous to the presence of oligomers and the lower VOC and oligomer content is a direct result of the catalyst system used (para 40-46 of US publication), and this is further evident by the polypropylene polymer of Sheard’706 having the XS, MFR and total volatiles content properties within the claimed amounts of the claimed invention, and Sheard’706 teaching that the polypropylene polymer has a oligomer content of less than 2500 ppm or 500 ppm to 3000 ppm (para 89), which would show that the oligomer content would be meet the claimed range. See MPEP 2112.01. (Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977)).
Regarding the “phthalate-free” internal donor of claim 13, this is a product-by-process limitation. Although, the composition is defined by the process of claim 13, this is a product-by-process claim. Here, Sheard’706 teaches each and every component of the composition such as the polypropylene composition, as cited above. Thus, the product is the same and reads upon the claims. See MPEP 2113. (“[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process.” In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985)).
Response to Arguments
Applicant's arguments filed 12/18/2025 have been fully considered but they are not persuasive in part.
On page 9-13, the Applicant argues that Sheard’342 is silent regarding the C12-C21 oligomers and does not teach the “phthalate-free” internal electron doner with the claimed R1 and R4 being hydrocarbyl groups. This is not persuasive because Sheard’342 specifically teaches the internal electron donor having the formula (II), wherein at least one R5-R14 is a hydrocarbyl group having 1-20 carbons (para 29), and wherein R1, R3 and R4 are i-propyl groups (para 71), which meets the claimed arrangement combination. (See MPEP 2131.02(III), "A reference disclosure can anticipate a claim when the reference describes the limitations but "'d[oes] not expressly spell out' the limitations as arranged or combined as in the claim, if a person of skill in the art, reading the reference, would ‘at once envisage’ the claimed arrangement or combination"). Furthermore, because Sheard’342 teaches a substantially identical polypropylene composition obtained by the same catalyst composition, it would have the claimed oligomer content, as cited above in the rejection.
On page 9-13, the Applicant argues that Sheard’706 does not teach the lower total oligomer content. This is not persuasive because, as cited above, Sheard’706 also teaches that the polypropylene polymer has a post-reactor oligomer content of less than 2500 ppm or 500 ppm to 3000 ppm (para 89), wherein the “oligomers” are C12 to C21 compounds. (para 89). Using the above teachings of a MFR of 78 g10/min, the above correlates to 260*(780.32) = 1048.2 ppm, and the less than 2500 ppm or 500 ppm to 3000 ppm oligomer content range of Sheard’706 would overlap and meet the claimed ranges. (See MPEP 2144.05, “where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists”).
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 HA S NGUYEN whose telephone number is (571)270-7395. The examiner can normally be reached Mon-Fri, Flex schedule 7:30am-4:00pm.
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/HA S NGUYEN/Primary Examiner, Art Unit 1766