DETAILED ACTION
Status of Claims:
Claims 1-9, 11-18, and 20-35 are pending.
Claims 1, 12, 13, and 31 are amended.
Claims 32-35 are new.
This Action is Made Final.
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 .
Response to Arguments
Applicant's arguments filed 6/18/2026 have been fully considered but they are not persuasive. The applicant argues that Follestad is non-analogous prior art. In response to applicant's argument that Follestad is nonanalogous art, it has been held that a prior art reference must either be in the field of the inventor’s endeavor or, if not, then be reasonably pertinent to the particular problem with which the inventor was concerned, in order to be relied upon as a basis for rejection of the claimed invention. See In re Oetiker, 977 F.2d 1443, 24 USPQ2d 1443 (Fed. Cir. 1992). In this case, Follestad is reasonable pertinent to the problem with which the inventor was concerned, particularly making a high density polymer that can withstand pressure (see para. 0005) and stress (see para. 0057).
The applicant argues that the instant invention address a previously undefined problem. This argument is not persuasive because the prior art is not required to have the same motivation for a modification as the prior art. The applicant further argues that the stresses on the bottle caps of Follestad are entirely different from the stresses in the instant invention. This argument is not persuasive because bottle caps, in normal use, will inherently be subject to stresses from impact during handling, shipping, and storage and Follestad teaches the “environmental stress crack resistance” is a measured parameter of the material. Therefore crack resistance is a factor the Follestad is trying to improve (see pg. 6para. 0056).
The applicant argues that Follestad does not teach the same impact resistance considerations because the Charpy impact measurements is directed to a single impact, not continuous as in the instant invention. Although the applicant is correct about the distinction between the two types of impact this argument is not persuasive because Follestad subjects the material to numerous stress based tests (see para. 0056-0060). The prior art is not required to be directed to the exact same invention as the instant invention in order for the prior art to be analogous. Designing a multimodal HDPE with improved strength for a bottle cap is pertinent to the instant invention of a multimodal HDPE with improved strength for a biofilm carrier. One of skill in the art looking to improve a biofilm carrier would find references directed to the material (HDPE) pertinent to the invention.
The applicant argues that there is no motivation to modify Gunnarsson in view of Follestad because they would not look to the more expensive and complex bimodal polymer of an unrelated field. This argument is not persuasive because both Gunnarsson and Follestad are directed to injection molded plastic materials (see Gunnarsson claim 11, pg. 5 lines 15-19, Follestad para. 0032), and as the specific material of Gunnarsson is not limited (only disclosed as plastic or composite) there is no support to the argument that the material if Follestad is more complex of expensive.
The applicant argues that Gunnarsson teaches away from the combination because Gunnarsson desires a density greater than that of water and Follestad is approximately that of water. This argument is not persuasive because Follestad does not limit the density to 950 to 975 kg/m3. Follestad teaches that the density should be greater than 966kg/m3, no preferred upper limit is given for the density (see Follestad para. 0017).
The applicant argues that success of the invention was not predictable. This argument is not persuasive because bimodal polymers are known to have improved strength (see Follestad whole document, JP 2016538397, previously cited at least pg. 2 3rd paragraph). Therefore one skilled in the art would expect a bimodal polymer to have a longer time until breakage. The applicant further states in the specification that the bimodal-copolymer is a commercially available HDPE co-polymer (see pg. 28 lines 22-25).
The applicant argues that the claimed invention achieves unexpected results. This argument is not persuasive because it is expected that a bimodal material will have a longer life (due to increased strength) than a unimodal material. It is well known in the prior art the bimodal polymers have increased strength (see Follestad whole document, JP 2016538397, previously cited at least pg. 2 3rd paragraph), therefore one of skill in the art would expect a carrier made of a bimodal material to have a longer lifespan that a carrier made from a unimodal material.
The applicant argues that the results of the embodiment of claim 31 were “very surprisingly” found because at little as 5% mixture of a first high density polyethylene with a bimodal weight distribution could double the lifetime. This argument is not persuasive because it is well known in the prior art the bimodal polymers have increased strength (see Follestad whole document, JP 2016538397, previously cited at least pg. 2 3rd paragraph), therefore one of skill in the art would expect a carrier made of a bimodal material to have a longer lifespan that a carrier made from a unimodal material.
The applicant argues that one skilled in the art would not use the material of Follestad because of the increased cost. This argument is not persuasive because there is no evidence that the bimodal HDPE has an increased cost, only that it allows for reducing the amount of material needed making the product cheaper (see Follestad para. 0007).
The applicant argues that it cannot be inferred that the carrier of Welander is subjected to stressed. This argument is not persuasive because Welander uses the carrier as a biofilm carrier, therefore it is inherently subject to at least some amount of impact while the biofilm grows. The applicant argues that the Welander carrier may have a lifespan no better than the carrier that the applicant is improving. This argument is not persuasive because it is not related to the rejection being made. Welander is provided to support the position that it would be obvious to replace the material of Gunnarsson with the material of Follestad because it is known in the art to use polyethylene as a carrier material and Gunnarsson does not limit the carrier material beyond being plastic or composite.
The applicant argues that the invention is a non-obvious discovery of the right solution for the right problem. This argument is not persuasive because it is known in the art to use polyethylene for biofilm carries (see Welander para. 0047) and it is known in the art that bimodal HDPE has a higher resistance to stress and it is well known in the art that bimodal HDPE can be used for injection molded objects. Therefore it is the simple substitution of one plastic material for another plastic material, obviously resulting in a carrier that can be injection molded with a high stress resistance and an expectation of success.
The applicant argues that JP ‘397 is non-analogous art. This argument is not persuasive for the same reasons as Follestad and further because JP ‘397 teaches that the polymer can be injection molded (see pg. 8: Tensile properties).
The applicant argues that it would not have been obvious to modify Gunnarsson with JP ‘397. This argument is not persuasive for the same reasons as Follestad.
The previous 112 rejections are withdrawn in view of the amendments.
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, 2, 6-9, 11-18, 20-26, and 28-35 is/are rejected under 35 U.S.C. 103 as being unpatentable over Gunnarsson et al (WO 95/25072) in view of Follestad et al (EP 1790580) and Welander et al (US 2016/0376175).
Regarding Claim 1:
Gunnarsson teaches a carrier for a moving bed biofilm reactor (MBBR),the carrier being in the form of a structure defining a protected surface area of at least 200 m2/m3 (“preferably larger than 200 m2/m3”) (see pg. 6 lines 1-5) wherein the carrier is adapted to accommodate biofilm growth (microbial film) (see pg. 6 line 1) and to carry the biofilm in the moving bed biofilm reactor (MBBR) (carrier elements are kept moving) (see pg. 3 lines 25-35).
Gunnarsson does not teach the carrier material consists of a high density polyethylene having a bimodal molecular weight distribution. Gunnarsson teaches that the carrier is plastic produced by injection molding (see pg. 5 lines 15-19).
Follestad teaches a polymer material that consists of a high density polyethylene having a bimodal molecular weight distribution (see para. 0012). Follestad further teaches that the polymer has high stress resistance (see para. 0005-0007, 0029, 0031, 0048). Follestad teaches that it is desirable to consist essentially of the bimodal HDPE (see para. 0036), therefore it would have been obvious to remove all other materials and only consist of bimodal HDPE (see MPEP 2144.04 II)
Welander teaches a carrier for a biofilm in an MBBR made from molded polyethylene (see para. 0047, 0008, 0065).
Gunnarsson, Follestad and Welander are analogous inventions in the art of molded materials. It would have been obvious to one skilled in the art to replace the unspecified carrier material of Gunnarsson with the bimodal HDPE of Follestad because it improves the weight and thereby cost to strength ratio of the material (see Follestad para. 0005-0012) and it is known that HDPE can be used for biofilm carriers (see Welander para. 007, 0008, 0065). Further replacing the carrier material of Gunnarsson with the bimodal HDPE of Follestad would result in a carrier that has a lifetime greater than the lifetime of an identical carrier in shape and size formed from a material consisting of unimodal high density polyethylene, when said lifetimes are measured under identical operating conditions. The lifetime is a property of the material, as the same material is used the properties would be the same. Regarding product and apparatus claims, when the structure recited in the reference is substantially identical to that of the claims, claimed properties or functions are presumed to be inherent. The Courts have held that it is well settled that where there is a reason to believe that a functional characteristic would be inherent in the prior art, the burden of proof then shifts to the applicant to provide objective evidence to the contrary. See In re Schreiber, 128 F.3d at 1478, 44 USPQ2d at 1478, 44 USPQ2d at 1432 (Fed. Cir. 1997) (see MPEP § 2112.01, I.).
Regarding Claim 2:
Gunnarsson, as modified, teaches the carrier according to claim 1, wherein the carrier material has a density between 0.9 and 1.1 g/cm3 (940 to 980kg/m3) (see Follestad para. 0017).
Regarding Claim 31:
Gunnarsson teaches the carrier to carry a biofilm in a moving bed biofilm reactor (MBBR), wherein the carrier is in the form of a structure defining a protected surface area of at least 200 m2/m3 (“preferably larger than 200 m2/m3”) (see pg. 6 lines 1-5) wherein the carrier is adapted to accommodate biofilm growth and resist cracking (is subjected to collisions) due to impacts (collisions) of the carrier with other carriers or MBBR components during use (see pg. 3 lines 30-35) and is formed, shaped, and adapted to enable a biofilm to grow on the carrier (microbial film) (see pg. 6 line 1).
Gunnarsson does not teach wherein the carrier material comprises at least 5 wt.% of a first high density polyethylene having a bimodal molecular weight distribution, and a second high density polyethylene, the second high density polyethylene having unimodal, bimodal or multimodal molecular weight distribution, whereby the carrier material has a bimodal or a multimodal molecular weight distribution.
Follestad teaches a polymer material comprises at least 5 wt.% of a first high density polyethylene having a bimodal molecular weight distribution (up to 10% other materials is at least 90% HDPE having a bimodal molecular weight distribution) (see para. 0036, 0024), and a second polymer (see para. 0036) whereby the carrier material has a bimodal or a multimodal molecular weight distribution (a bimodal polymer is used, therefore it has a bimodal or multimodal weight distribution). Follestad does not explicitly teach the second high density polyethylene having unimodal, bimodal or multimodal molecular weight distribution. Follestad further teaches that HDPE can have unimodal, bimodal or multimodal molecular weight distribution (see para. 0012). Therefore it would have been obvious to one skilled in the art to select a known unimodal, bimodal or multimodal molecular weight distribution HDPE as the second polymer of Follestad because it is the simple substitution of one known polymer for another known polymer obviously resulting in a moldable polymer with an expectation of success. The simple substitution of one known element for another is likely to be obvious
when predictable results are achieved. See KSR International Co. v. Teleflex Inc., 550
U.S. __,__, 82 USPQ2d 1385, 1395 – 97 (2007) (see MPEP § 2143, B.). Follestad further teaches that the polymer has high stress resistance (see para. 0005-0007, 0029, 0031, 0048).
Welander teaches a carrier for a biofilm in an MBBR made from molded polyethylene (see para. 0047, 0008, 0065).
Gunnarsson, Follestad and Welander are analogous inventions in the art of molded materials. It would have been obvious to one skilled in the art to replace the unspecified carrier material of Gunnarsson with the carrier material of Follestad because it improves the weight and thereby cost to strength ratio of the material (see Follestad para. 0005-0012) and it is known that HDPE can be used for biofilm carriers (see Welander para. 007, 0008, 0065). Further replacing the carrier material of Gunnarsson with the bimodal HDPE of Follestad would result in a carrier that has a lifetime greater than the lifetime of an identical carrier in shape and size formed from a material consisting of unimodal high density polyethylene, when said lifetimes are measured under identical operating conditions. The lifetime is a property of the material, as the same material is used the properties would be the same. Regarding product and apparatus claims, when the structure recited in the reference is substantially identical to that of the claims, claimed properties or functions are presumed to be inherent. The Courts have held that it is well settled that where there is a reason to believe that a functional characteristic would be inherent in the prior art, the burden of proof then shifts to the applicant to provide objective evidence to the contrary. See In re Schreiber, 128 F.3d at 1478, 44 USPQ2d at 1478, 44 USPQ2d at 1432 (Fed. Cir. 1997) (see MPEP § 2112.01, I.).
Regarding Claims 6, 28 and 29:
Gunnarsson, as modified, teaches the carrier according to claim 31, wherein the carrier material comprises at least 5 wt. %, (and further at least 20 wt%) of a high density polyethylene with a bimodal molecular weight distribution, whereby the carrier material has a bimodal or a multimodal molecular weight distribution (up to 10% other polymers, therefore at least 90% bimodal HDPE) (see Follestad para. 0036). Multimodal encompasses bimodal (see Follestad para. 0013), therefore both limitations are met.
Regarding Claim 7:
Gunnarsson, as modified, teaches the carrier according to claim 31, wherein the carrier material comprises at least 10 wt. % of said first high density polyethylene with a bimodal molecular weight distribution (at least 90wt %) (see Follestad para. 0036).
Gunnarsson, as modified, does not explicitly teach the second high density polyethylene with a second unimodal molecular weight distribution, whereby the carrier material has a multimodal molecular weight distribution. Follestad further teaches that HDPE can have unimodal molecular weight distribution (see para. 0012). Therefore it would have been obvious to one skilled in the art to select a known unimodal molecular weight distribution HDPE as the second polymer of Follestad because it is the simple substitution of one known polymer for another known polymer obviously resulting in a moldable polymer with an expectation of success. The simple substitution of one known element for another is likely to be obvious when predictable results are achieved. See KSR International Co. v. Teleflex Inc., 550
U.S. __,__, 82 USPQ2d 1385, 1395 – 97 (2007) (see MPEP § 2143, B.). Two bimodal polymers will inherently have a multimodal weight distribution because multimodal encompasses bimodal weight distributions.
Regarding Claim 8:
Gunnarsson, as modified, teaches the carrier according to claim 31, wherein the carrier material comprises at least 50 wt. %, (at least 90%)of a high density polyethylene with a bimodal molecular weight distribution, whereby the carrier material has a bimodal or a multimodal molecular weight distribution (see Follestad para. 0036).
Regarding Claim 9:
Gunnarsson, as modified, teaches the carrier according to claim 31, wherein the carrier material comprises at least 50 wt. % of said first high density polyethylene with a bimodal molecular weight distribution (at least 90wt %) (see Follestad para. 0036).
Gunnarsson, as modified, does not explicitly teach the second high density polyethylene with a second unimodal molecular weight distribution, whereby the carrier material has a multimodal molecular weight distribution. Follestad further teaches that HDPE can have unimodal molecular weight distribution (see para. 0012). Therefore it would have been obvious to one skilled in the art to select a known unimodal molecular weight distribution HDPE as the second polymer of Follestad because it is the simple substitution of one known polymer for another known polymer obviously resulting in a moldable polymer with an expectation of success. The simple substitution of one known element for another is likely to be obvious when predictable results are achieved. See KSR International Co. v. Teleflex Inc., 550 U.S. __,__, 82 USPQ2d 1385, 1395 – 97 (2007) (see MPEP § 2143, B.). Two bimodal polymers will inherently have a multimodal weight distribution because multimodal encompasses bimodal weight distributions.
Regarding Claim 11:
Gunnarsson, as modified, teaches the carrier according to claim 31, wherein the carrier material comprises said first high density polyethylene with a first bimodal molecular weight distribution and said second high density polyethylene (Follestad para. 0036).
Gunnarsson, as modified, does not explicitly teach the second high density polyethylene with a second bimodal molecular weight distribution, whereby the carrier material has a multimodal molecular weight distribution. Follestad further teaches that HDPE can have bimodal molecular weight distribution (see para. 0012). Therefore it would have been obvious to one skilled in the art to select a known unimodal, bimodal or multimodal molecular weight distribution HDPE as the second polymer of Follestad because it is the simple substitution of one known polymer for another known polymer obviously resulting in a moldable polymer with an expectation of success. The simple substitution of one known element for another is likely to be obvious when predictable results are achieved. See KSR International Co. v. Teleflex Inc., 550
U.S. __,__, 82 USPQ2d 1385, 1395 – 97 (2007) (see MPEP § 2143, B.). Two bimodal polymers will inherently have a multimodal weight distribution because multimodal encompasses bimodal weight distributions.
Regarding claim 12:
Gunnarsson, as modified, teaches the carrier according to claim 11, wherein the carrier material comprises at least 10 wt.% of a first high density polyethylene with a bimodal molecular weight distribution (see Follestad para. 0036) and a second high density polyethylene with a bimodal molecular weight distribution, whereby the carrier material has a multimodal molecular weight distribution (see rejection of claim 11 above).
Regarding Claim 13:
Gunnarsson, as modified, teaches the carrier according to claim 1, wherein the high density polyethylene comprises a first high density polyethylene with a bimodal molecular weight distribution and at least one more high density polyethylene having a unimodal or a bimodal or a multimodal molecular weight distribution, whereby the carrier material has a multimodal molecular weight distribution (see rejection of claims 31 above).
Regarding Claim 14:
Gunnarsson, as modified, teaches the carrier according to claim 1, the carrier material comprises a lower molecular weight fraction (LMW), and a higher molecular weight fraction (HMW), wherein the bimodal molecular weight distribution of the high density polyethylene has a peak ratio of the LMW fraction to the HMW fraction is between 10:1 to 1:10 (10:90 to 90:10) (see Follestad para. 0026).
Regarding Claim 15:
Gunnarsson, as modified, teaches the carrier according to claim 1, the carrier material comprises a lower molecular weight fraction (LMW) (see para. 0025), and a higher molecular weight fraction (HMW), wherein the LMW is a homopolymer or a copolymer and the HMW is a homopolymer or copolymer (see Follestad para. 0026).
Regarding Claim 16:
Gunnarsson, as modified, teaches the carrier according to claim 1, wherein the carrier has a structure that allows for protected surfaces for biofilm growth (a cap shape has an internal protected surface) (see Follestad para. 0039).
Regarding Claim 17:
Gunnarsson, as modified, teaches the carrier according to claim 1.
Welander further teaches a carrier that is disc shaped or saddle shaped (see figs. 6 and 7).
It would have been obvious to one skilled in the art, before the effective filing date of the invention to change the shape of the carrier of Gunnarsson, as modified, to disc or saddle shaped, as disclosed by Welander, because it is a simple change in shape without changing the function of the device and disc and saddle shaped carriers are known in the art (see Welander figs. 6 and 7). The change in form or shape, without any new or unexpected results, is an obvious engineering design. See In re Dailey, 149 USPQ 47 (CCPA 1976) (see MPEP § 2144.04).
Regarding Claim 18:
Gunnarsson, as modified, teaches the carrier according to claim 16, wherein the protected surfaces are facilitated by the presence of holes, wells, protrusions (see Gunnarsson fig. 1), honeycomb structure or raster structures, making the carrier more prone to stress damage.
Regarding Claim 20:
Gunnarsson, as modified teaches a moving bed biofilm reactor comprising the carrier the according to claim 31 (carrier are kept moving) (see Gunnarsson pg. 7 lines 9-15)
Regarding Claim 21:
Gunnarsson, as modified teaches the moving bed biofilm reactor (MBBR), according to claim 20, wherein the MBBR process is a High energy MBBR process. The claims are directed to an apparatus (MBBR), therefore process limitations only add patentable weight to the extent that the prior art structure must be capable of the same process. As Gunnarsson teaches an MBBR it can be operated as “high energy”.
Regarding Claim 22:
Gunnarsson, as modified, teaches the moving bed biofilm reactor (MBBR) according to claim 20, wherein the MBBR process includes mixing the carriers in the bioreactor utilizing submerged mechanical mixers (mechanical stirring) (see Gunnarsson pg. 7 lines 9-15).
Regarding Claim 23:
Gunnarsson, as modified, teaches the moving bed biofilm reactor (MBBR), according to claim 20, wherein the MBBR process is performed in a bioreactor having inner walls with defects or high roughness (the MBBR reactor is an existing reactor, therefore at some point there will inherently be defects) (see Gunnarsson pg. 8, lines 33-35).
Regarding Claim 24:
Gunnarsson, as modified, teaches the moving bed biofilm reactor (MBBR), according to claim 20, wherein wastewater purified in the MBBR process contains hazardous substances being detrimental to the carrier. The combination is silent to the type of water being purified, however as the claims are directed to an apparatus method limitations (type of water treated) only add patentable weight to the extent that the prior art must be capable of the same method. In the instant case, as the MBBR of Welander treats wastewater it can treat water that contains hazardous substances being detrimental to the carrier.
Regarding Claim 25:
Gunnarsson, as modified, teaches the moving bed biofilm reactor (MBBR), according to claim 20, wherein the MBBR process function is dependent on addition of external chemical substances. The combination is silent as to the addition of external chemicals, however as the claims are directed to an apparatus method limitations (addition of additives) only add patentable weight to the extent that the prior art must be capable of the same method. In the instant case, the reactor of Welander is an MBBR external chemicals can be added.
Regarding Claim 26:
Gunnarsson, as modified, teaches the moving bed biofilm reactor (MBBR), according to claim 20, wherein the MBBR process is a treatment for the production of drinking water. The combination is silent to the type of water being purified, however as the claims are directed to an apparatus method limitations (type of water treated) only add patentable weight to the extent that the prior art must be capable of the same method. In the instant case, as the MBBR of Welander treats water it can treat drinking water.
Regarding Claim 30:
Gunnarsson, as modified, teaches the carrier according to claim 31, wherein the carrier material comprises at least 20 wt. % of said first high density polyethylene with a bimodal molecular weight distribution (at least 90wt %) (see Follestad para. 0036).
Gunnarsson, as modified, does not explicitly teach the second high density polyethylene with a second unimodal molecular weight distribution, whereby the carrier material has a multimodal molecular weight distribution. Follestad further teaches that HDPE can have unimodal molecular weight distribution (see para. 0012). Therefore it would have been obvious to one skilled in the art to select a known unimodal molecular weight distribution HDPE as the second polymer of Follestad because it is the simple substitution of one known polymer for another known polymer obviously resulting in a moldable polymer with an expectation of success. The simple substitution of one known element for another is likely to be obvious when predictable results are achieved. See KSR International Co. v. Teleflex Inc., 550
U.S. __,__, 82 USPQ2d 1385, 1395 – 97 (2007) (see MPEP § 2143, B.). Two bimodal polymers will inherently have a multimodal weight distribution because multimodal encompasses bimodal weight distributions.
Regarding Claims 32 and 33:
Gunnarsson, as modified teaches the carrier according to claims 1 and 31, wherein the lifetime is determined by a heavy mixing test in a cylindrical reactor having a diameter of 80 cm and a length of 150 cm, the reactor being filled with 340 L of water and 170 L of the carrier, wherein a mixer blade with a total blade length of 35 cm generating a power density of 1700-2200 W/m3, and wherein the lifetime is defined as the time until visible carrier breakage is observed. Gunnarsson as modified teaches a carrier with a substantial identical structure to that claimed, therefore the properties as presumed to be inherently the same. The lifetime is a property of the carrier. Regarding product and apparatus claims, when the structure recited in the reference is substantially identical to that of the claims, claimed properties or functions
are presumed to be inherent. The Courts have held that it is well settled that where there
is a reason to believe that a functional characteristic would be inherent in the prior art, the
burden of proof then shifts to the applicant to provide objective evidence to the contrary.
See In re Schreiber, 128 F.3d at 1478, 44 USPQ2d at 1478, 44 USPQ2d at 1432 (Fed.
Cir. 1997) (see MPEP § 2112.01, I.).
Regarding Claims 34 and 35:
Gunnarsson, as modified teaches the carrier according to Claims 1 and 31 wherein the lifetime is at least seven times greater than that of the identical carrier formed from 100% unimodal high density polyethylene, when the carrier material consists of 100% of the first high density polyethylene. The lifetime is a property of the carrier. Regarding product and apparatus claims, when the structure recited in the reference is substantially identical to that of the claims, claimed properties or functions are presumed to be inherent. The Courts have held that it is well settled that where there is a reason to believe that a functional characteristic would be inherent in the prior art, the burden of proof then shifts to the applicant to provide objective evidence to the contrary. See In re Schreiber, 128 F.3d at 1478, 44 USPQ2d at 1478, 44 USPQ2d at 1432 (Fed. Cir. 1997) (see MPEP § 2112.01, I.).
Claim(s) 1-5 and 27 is/are rejected under 35 U.S.C. 103 as being unpatentable over Gunnarsson et al (WO 95/25072) in view of JP 2016538397 A, English machine transition provided, hereafter referred to as ‘397) and of Welander et al (US 2016/0376175).
Regarding Claim 1:
Gunnarsson teaches a carrier for a moving bed biofilm reactor (MBBR),the carrier being in the form of a structure defining a protected surface area of at least 200 m2/m3 (“preferably larger than 200 m2/m3”) (see pg. 6 lines 1-5) wherein the carrier is adapted to accommodate biofilm growth (microbial film) (see pg. 6 line 1) and to carry the biofilm in the moving bed biofilm reactor (MBBR) (carrier elements are kept moving) (see pg. 3 lines 25-35), wherein the carrier is comprised of a carrier material such that the carrier is adapted to resist cracking (is subjected to collisions) due to impacts (collision) of the carrier with other carriers or MBBR components during use (see pg. 3 lines 30-35).
Gunnarsson does not teach the carrier material consists of a high density polyethylene having a bimodal molecular weight distribution. Gunnarsson is silent as to the material of the carrier.
‘397 teaches a polymer material that consists (PE polymer as the sole polymer) of a high density polyethylene having a bimodal molecular weight distribution (see pg. 3, 2nd paragraph, pg. 7, 3rd paragraph)
Welander teaches a carrier for a biofilm in an MBBR made from molded polyethylene (see para. 0047, 0008, 0065).
Gunnarsson, ‘397 and Welander are analogous inventions in the art of molded materials. It would have been obvious to one skilled in the art to replace the unspecified carrier material of Gunnarsson with the bimodal HDPE of ‘397 because it has improved mechanical strength and crack resistance (See ‘397 pg. 2, 8th paragraph) and it is known that HDPE can be used for biofilm carriers (see Welander para. 007, 0008, 0065). Further replacing the carrier material of Gunnarsson with the bimodal HDPE of ‘39 would result in a carrier that has a lifetime greater than the lifetime of an identical carrier in shape and size formed from a material consisting of unimodal high density polyethylene, when said lifetimes are measured under identical operating conditions. The lifetime is a property of the material, as the same material is used the properties would be the same. Regarding product and apparatus claims, when the structure recited in the reference is substantially identical to that of the claims, claimed properties or functions are presumed to be inherent. The Courts have held that it is well settled that where there is a reason to believe that a functional characteristic would be inherent in the prior art, the burden of proof then shifts to the applicant to provide objective evidence to the contrary. See In re Schreiber, 128 F.3d at 1478, 44 USPQ2d at 1478, 44 USPQ2d at 1432 (Fed. Cir. 1997) (see MPEP § 2112.01, I.).
Regarding Claim 2:
Gunnarsson, as modified, teaches the carrier according to claim 1, wherein the carrier material has a density between 0.9 and 1.1 g/cm3 (954 to 962 kg/m3) (see ‘397 pg. 3, 9th paragraph).
Regarding Claims 3-5 and 27:
Gunnarsson, as modified, is silent as to the crossover point, and delta end value of the carrier. The crossover point and delta end values are properties of the material, as the structure of the prior art is substantially identical to the claim (bimodal HDPE with same density) the properties are presumed to be inherent. Therefore, a crossover point at an angular frequency of <15 rad/s, or below 6 rad/s, a crossover point at a modulus between 25000-45000 Pa, and a delta end value less than 35 degrees more preferably less than 25 degrees, are presumed to be inherent (see MPEP 2112.01, I).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Cardoso et al, the article “Bimodal High-density Polyethylene: Influence of the Stereoregularity of the Copolymer Fraction on the Environmental Stress Crack Resistance”, Van Dun et al (USPN 9,006,342) and Dou et al (WO 2015/121161). Cardoso, Van Dun, and Dou teach bimodal and multimodal polyethylene. Specifically teaching that multimodal polymers have improved mechanical properties and stress resistance (see Dou: pg. 4, last three paragraphs, pg. 1, 1st paragraph, Cardoso: whole document, Van Dun: col. 2 lines 55-67). Yang et al (KR101142325, English machine translation provided), Chi et al (KR 20130074997, English machine translation provided), and Li (CN110642369, English machine translation provided). Yang, Chi, and Li teach that stress and wear are factors that affect the lifespan of biofilm carriers and it is desirable to select materials that increase the lifespan (see Li: pg. 2, 4th paragraph, Yang: pg. 2: Background art, 4th paragraph, Chi: Abstract).
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
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/CLAIRE A NORRIS/Primary Examiner, Art Unit 1779 7/2/2026
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