DETAILED ACTION
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 10/28/2025 has been entered.
Claims 8-9 were cancelled. Claims 21-22 have been added. Claims 1-7 and 8-22 are now pending in the application.
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.
Claims 1-7 and 10-22 are rejected under 35 U.S.C. 103 as being unpatentable over US2018/0298227 to Carella et al. in view of US2013/0202878 to Carella et al. (hereinafter Carella2013’)
Regarding Claim 1, 3-6, 17, 18, and 20-21 Carella teaches a thermoplastic fluoropolymer composition comprising 70 to 85 wt % of a partially fluorinated copolymer [0013] comprising 45-55 mole% ethylene [0034] and 55 to 45 mole% CTFE for the ECTFE copolymer [0035] reading on polymer A. Carella also discloses 15 to 30 wt% of a second fluorinated copolymer [0012] comprising chlorotriflorothyene and ethylene from a 35:65 to 65:35 ratio [0037] preferably comprising 0.2 to 10 mole% of a fluorinated comonomer [0038] such as 3,3,3-trifluoro-2-trifluoromethylpropene (HFIB) [0039] reading on polymer B. Carella further teaches the composition is blended [0018] (i.e., compounding) wherein the application is carried out at a temperature slightly above the melting point of the polymers [0093] (i.e., melting).
Carella does not specifically mention the composition is melt compounded in an extruder or that the melt compounding is performed at a temperature of at least 30°C higher than the melting temperature of the highest melting compound.
However, Carella2013’ teaches a fluoropolymer composition [title] comprising ECTFE copolymers [0029] with a melting temperature of at least 150°C and most preferably not exceeding 190°C [0030] that is melt compounded with an extruder [0058] at temperatures up to 270°C [0088] thereby reading on the composition is melt compounded in an extruder at a temperature of at least 30°C higher than melting temperature. Carella and Carella2013’ are analogous art as they are from the same field of endeavor, namely fluoropolymer compositions.
Before the effective filing date of the instantly claimed invention, it would have been obvious to a person of ordinary skill in the art to use Carella2013’s melt compounding extrusion process with Carella’s composition, thereby arriving at the claimed invention.
The motivation to modify Carella with Carella2013’ is this extrusion method can be applied to manufacture finished products such as hallow bodies, pipes, laminates, or to make pellets.
Regarding Claim 2 and 16, Carella in view of Carella2013’ teaches the thermoplastic fluoropolymer composition of claim 1 as set forth above and incorporated herein by reference.
Carella does not particularly teach the Heat of fusion of polymer A.
However, the heat of fusion is the quantity of energy needed to melt or freeze a substance under conditions of constant pressure. As such, the heat of fusion is a property of the polymer. Carella teaches the same polymer A having the same concentrations as set forth in the rejection above. Therefore, the property of heat of fusion of the polymer A of Carella will be the same heat of fusion required by the instant claims. Case law has held that claiming of a new use, new function or unknown property which is inherently present in the prior art does not necessarily make the claim patentable. In re Best, 562 F.2d 1252, 1254, 195 USPQ 430, 433 (CCPA 1977). The courts have stated that a chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. In re Spada, 911 F.2d 705, 15 USPQ2d 1655, (Fed. Cir. 1990). See also In re Best, 562 F.2d 1252, 195 USPQ 430, (CCPA 1977). "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." Further, if it is the applicant's position that this would not be the case, evidence would need to be provided to support the applicant's position. In the alternative that the above disclosure is insufficient to anticipate the above listed claims, it would have nonetheless been obvious to the skilled artisan to produce the claimed composition, as the reference teaches each of the claimed ingredients within the claimed proportions for the same utility.
Regarding Claim 7 and 19, Carella in view of Carella2013’ teaches a thermoplastic fluoropolymer composition of claim 1, wherein polymer A is ECTFE copolymer [0035] i.e., 100% ethylene and CTFE of polymer A; and polymer B comprising chlorotriflorothyene and ethylene [0037] and 0.2 to 10 mole% HFIB [0038] i.e., 90 mole% or more ethylene and CTFE.
Regarding Claim 10, Carella in view of Carella2013’ teaches a thermoplastic fluoropolymer composition of claim 1, wherein polymer A has a melting point of 180 to 245°C [0044].
Regarding Claim 11, Carella in view of Carella2013’ teaches a thermoplastic fluoropolymer composition of claim 1, wherein polymers A and B are mixed together while stirring [0112].
Regarding Claim 12 and 13, Carella in view of Carella2013’ teaches a thermoplastic fluoropolymer composition of claim 1, wherein the composition is heated at a temperature above the melting range of the fluoropolymers [0094] i.e., melted, to coat articles such as metal foils and linings [0095] i.e., manufactured films.
Regarding Claim 14, Carella in view of Carella2013’ teaches the film of claim 13, wherein the coating can be applied in multiple layers [0040] i.e., a multilayer structure.
Regarding Claim 15, Carella in view of Carella2013’ teaches the film of claim 13, for bread pans, among other articles, [0095] reading on an article for food packaging.
Regarding Claim 22, Carella teaches a thermoplastic fluoropolymer composition comprising 70 to 85 wt % of a partially fluorinated copolymer [0013] comprising 45-55 mole% ethylene [0034] and 55 to 45 mole% CTFE for the ECTFE copolymer [0035] reading on polymer A. Carella also discloses 15 to 30 wt% of a second fluorinated copolymer [0012] comprising chlorotriflorothyene and ethylene from a 35:65 to 65:35 ratio [0037] preferably comprising 0.2 to 10 mole% of a fluorinated comonomer [0038] such as 3,3,3-trifluoro-2-trifluoromethylpropene (HFIB) [0039] reading on polymer B. Carella’s composition does not comprise large amounts of ingredients other than polymer A and polymer B, therefore meeting the limitation of consisting essentially of. Furthermore the limitation of one or more additives is considered an optional requirement and is therefore not required.
Response to Arguments
Applicant's arguments filed 10/28/2025 have been fully considered and are not persuasive.
Applicant states Carella does not teach melt compounding, and further states Carella does not teach the newly amended limitation of claim 1 of melt compounded in an extruder.
In response, attention is drawn to the updated rejection of claim 1 wherein Carella in view of Carella2013’ teaches the newly amended claims.
Furthermore, the recitation "wherein polymer A and polymer B are melt compounded in an extruder" is a product by process claim limitation. The claim itself is drawn to the thermoplastic fluoropolymer composition. Case law has held that “[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, 227 USPQ 964,966). Once the Examiner provides a rationale tending to show that the claimed product appears to be the same or similar to that of the prior art, although produced by a different process, the burden shifts to applicant to come forward with evidence establishing an unobvious different between the claimed product and the prior art product. In re Marosi, 710 F.2d 798, 802, 218 USPQ 289, 292 (Fed. Cir. 1983), MPEP 2113.
For these reasons, Applicant's arguments are not persuasive.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DEVIN MITCHELL DARLING whose telephone number is (703)756-5411. The examiner can normally be reached Monday - Friday 7:30am - 5:00pm.
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/DEVIN MITCHELL DARLING/Examiner, Art Unit 1764
/ARRIE L REUTHER/Supervisory Primary Examiner, Art Unit 1764