DETAILED ACTION
This Office Action is in response to the Amendment filed on 4/9/2026.
Claim(s) 4 and 17 were cancelled.
Claim(s) 1-3, 5-7, 10-16, and 18-22 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 1-3, 5-7, 10-16, and 18-22 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, 5-6, 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 teaches 70 wt% of polymer A [0013] and 30 wt% polymer B [0012], which lies just outside the instantly claimed range of 55 to less than 70 wt% and greater than 30 to 45 wt% respectively. It is the Office's position that the values are close enough that one of ordinary skill in the art would have expected similar properties. A prima facie case of obviousness exists where the claimed ranges and prior art ranges do not overlap but are close enough that one skilled in the art would have expected them to have the same properties. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 227 USPQ 773 (Fed. Cir. 1985). See MPEP 2144.05.
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 4/9/2026 have been fully considered but they are not persuasive.
Applicant states that Carella does not teach the newly amended claim 1.
In response, attention is drawn to the updated rejection of claim 1 wherein it would have been obvious to one of ordinary skill in the art to select the claimed ranges based on Carella.
Applicant states a 60/40 mixture of ECTFE A and ECTFE B have significantly improved total transmittance and haze measured in water as compared to comparative examples of Table. 1. Applicant further states these results would not have been expected.
Evidence of unexpected results must be factually supported by an appropriate affidavit of declaration. See MPEP § 716.01(c). Unexpected results must be commensurate in scope with the claims. The applicant must show unexpected results over the entire claimed range to support unexpected results for the entire range and the entire breadth of the claimed component (e.g., data points outside the claimed range). Therefore, Applicant should compare several data points over the claimed range to several data points outside of the claimed range, including data points close to and far from the claimed range. The data in table 1 only provides one data point for the claimed range. As such, this data does not provide evidence that all of the claimed range has the unexpected transmittance and haze values, and does not provide evidence that the ranges outside the claimed range will not have the unexpected transmittance and haze values.
For these reasons, Applicant's arguments are not persuasive.
Conclusion
THIS ACTION IS MADE FINAL. 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 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
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