DETAILED ACTION
This communication responds to the Amendment filed December 18, 2025. Claims 1, 2, 6, 7, 9, 11-14, 18-21, 23-26, and 28-32 are currently pending.
The rejections of claims 1, 2, 6, 7, 9, 11-14, 18-21, 23-26, and 28-30 set forth in the Office Action dated September 30, 2025 are MAINTAINED. To ensure Applicant’s amendments are addressed, the rejections are set forth in full below.
Claims 31 and 32 remain OBJECTED TO as depending from a rejected claim, but otherwise contain allowable subject matter.
This action is final.
Claim Rejections - 35 USC § 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.
Claims 1, 2, 6, 7, 9, 11-14, 19, 20, 23-25, and 28-30 are rejected under 35 U.S.C. 103 as being unpatentable over Alastalo et al. (WO 01/48041).
Regarding claims 1, 2, 6, and 7, Alastalo teaches a composition comprising a propylene homo- or copolymer with an ultra-high MFR. (Abstract.) The propylene polymers have no peroxide residues. (p. 5, lines 4-5.) An exemplar polypropylene (Ex. 3a) has a MWD of 6.4. (See Table 1.)
The difference between Example 3a of Alastalo and the present claims is that Example 3a exhibits an MFR2 of 1040 g/10 min and an XS of 4.6 wt%, both of which are outside the claimed ranges. However, Alastalo more generally teaches that its propylene polymers have an MFR2 “typically 400 g/10 min or more, typically up to 5000 g/10 min” (see p. 14, lines 16-18), and a xylene soluble content of 1 to 6 wt.% (see p. 14, lines 23-24), both of which overlap the claimed ranges. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. (In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).) It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have selected the overlapping portion of the range taught by Alastalo.
Regarding claims 9 and 14, claims 9 and 14 are product-by-process claims. “[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." (MPEP § 2113 (quoting In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985)).) Thus, because claim 1 is anticipated (see paragraph 18 above), so is claim 9. Further, the examiner notes that Alastalo teaches that the propylene polymer discussed above is polymerized in the presence of a Ziegler-Natta catalyst with the components recited in claim 14. (See p. 18, lines 8-10; p. 13, lines 18-22, 28-29.)
Regarding claim 11, Alastalo teaches that the composition comprises not just polypropylene, but also 1500 ppm Irganox (0.15 wt.%) and 400 ppm calcium stearate (0.04 wt.%). (p. 17, lines 31-34.) The balance is polypropylene, which is therefore present in the amount of 99.81 wt.%, which is within the claimed range.
Regarding claims 12 and 13, Alastalo teaches that its polypropylene composition may be blended with other olefinic polymers. (p. 15, lines 1-2.) Given that Alastalo teaches that the products of the polypropylene include melt blown fabrics, it is reasonable to infer that the olefinic polymers in the blend would have a lower MFR to aid in processability and flowability, or to obtain “a more economical product with equal or with regard to some properties or conditions [and] even better performance.” (See Alastalo, p. 15, lines 1-5.) Further, because the propylene polymer of the present claims is present in the composition of Alastalo, it will necessarily act as one of the recited “uses” in claim 13.
Alastalo is silent as to the relative amount of ultra-high MFR polypropylene versus other polymers in the composition blend. However, differences in concentration will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration is critical. (MPEP 2144.05(II)(A).) "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." (In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955); see also Peterson, 315 F.3d at 1330, 65 USPQ2d at 1382 ("The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set of percentage ranges is the optimum combination of percentages."); In re Hoeschele, 406 F.2d 1403, 160 USPQ 809 (CCPA 1969) (Claimed elastomeric polyurethanes which fell within the broad scope of the references were held to be unpatentable thereover because, among other reasons, there was no evidence of the criticality of the claimed ranges of molecular weight or molar proportions.).) In this case, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have optimized through routine experimentation the relative amounts ultra-high MFR polypropylene and other polymers to produce a composition with the desired flowability and processability at a more economical price.
Regarding claim 19, Alastalo teaches that the polypropylene composition discussed above is made into fibrous nonwoven fabrics (i.e., webs). (p. 15, lines 11-16.)
Regarding claims 20, 23, and 29, Alastalo teaches a process for the homo- or co-polymerization of propylene comprising contacting propylene with a Ziegler-Natta catalyst system. (Abstract; p. 18, lines 8-10.) The catalyst system comprises a catalyst component, a co-catalyst, and an external electron donor (i.e., a selectivity control agent) that is preferably a silane. (p. 13, lines 18-21, 31-32.) The catalyst component comprises titanium, magnesium, halogen, and an internal electron donor. (p. 13, lines 28-29.) The resulting polymer is the polypropylene discussed above. Regarding claim 29 specifically, Alastalo teaches that when comonomers are present, olefinic monomers such as ethylene and 1-butene are preferred. (p. 8, lines 13-15.)
Regarding claim 24, as noted above, Alastalo teaches that the xylene soluble content ranges from 1 to 6 wt.% (see p. 14, lines 23-24), which overlaps the claimed range. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. (In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).) It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have selected the overlapping portion of the range taught by Alastalo.
Regarding claim 25, Alastalo teaches that, in its polymerization process, the molar ratio of H2/C3 is 0.15. (p. 17, line 20.)
Regarding claim 28, Alastalo teaches that the polypropylene is produced in a two-stage reactor process. The first reactor is a loop reactor, and the second is a gas phase reactor. Regarding claim 28 specifically, the temperature in the loop reactor is 80°C, and is then increased in the gas phase reactor to 85°C. (p. 17, lines 13-20).
Regarding claim 30, the pressure in the loop reactor is approximately 55 bar, with a hydrogen mol. % of 4.5 (see Table 1), yielding a hydrogen partial pressure of 35.9 psi, which is within the claimed range.
Claim 18 is rejected under 35 U.S.C. 103 as being unpatentable over Alastalo et al. (WO 01/48041) in view of Pu et al., “Preparation of Polypropylene Micro and Nanofibers by Electrostatic-Assisted Melt Blown and Their Application, Polymers 2018, 959, pp. 1-12.
Regarding claim 18, Alastalo teaches nonwoven melt-blown fibers made from the polypropylene composition discussed above. (See p. 15, lines 11-16.)
The difference between Alastalo and claim 18 is that Alastalo is silent as the diameter of the fibers. Pu teaches that melt-blown nonwoven fibers typically have average diameters of 1-2 µm. (p. 1.) Therefore, it would have been reasonable for a person of ordinary skill to assume that the fibers of Alastalo will have a diameter under 5 µm.
Claim 21 is rejected under 35 U.S.C. 103 as being unpatentable over Alastalo et al. (WO 01/48041) as applied to claim 20 above, and further in view of Fang et al. (US 7,790,819).
Regarding claim 21, Alastalo teaches all of the limitations of claim 20. (See paragraph 12 above, which is incorporated by reference herein.)
The difference between Alastalo and claim 21 is that the Ziegler-Natta catalyst component of Alastalo does not include an organosilicon compound and an epoxy compound. However, Ziegler-Natta catalysts that contain organosilicon compounds and epoxy compounds are known in the art. For example, Fang teaches a process for the polymerization of propylene using the LYNX 1010 catalyst (see Ex. 17, col. 13, lines 14-29), which is a Ziegler-Natta catalyst component comprising titanium, magnesium, an internal electron donor, an epoxy compound, and an organosilicon compound (see Published Specification, para. [0127]). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have used a known propylene polymerization catalyst in the process of Alastalo, especially given that Alastalo teaches that “[t]he catalyst used in the present invention can be any … Ziegler-Natta type catalyst which is active in propylene polymerization at the reactor conditions.” (See Alastalo, p. 13, lines 2-3.)
Claim 26 is rejected under 35 U.S.C. 103 as being unpatentable over Alastalo et al. (WO 01/48041) as applied to claim 20 above, and further in view of Sheard et al. (US 2009/0209706).
Regarding claim 26, Alastalo teaches all of the limitations of claim 20. (See paragraph 12 above, which is incorporated by reference herein.)
The difference between the exemplar process of Alastalo and claim 26 is that the molar ratio of co-catalyst to external donor is 28, which is outside the claimed range. However, Sheard teaches that a smaller molar ratio of co-catalyst to external donor is preferable when polymerizing propylene to produce ultra-high MFR polypropylene. (Abstract; paras. [0017]-[0018], [0064].) Specifically, a molar ratio of 0.5-4:1 is preferred because that amount of co-catalyst is sufficient to support polymerization, whereas a higher amount of co-catalyst will result in reactions between the co-catalyst and other catalyst components, resulting in a slower polymerization reaction. (para. [0064].) It would have been obvious to one of ordinary skill to lower the molar ratio of co-catalyst to external donor to the level taught by Sheard to avoid a slower polymerization reaction.
Further, in the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. (In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).) It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have selected the overlapping portion of the range taught by Sheard.
Response to Arguments
Applicant's arguments have been fully considered but they are not persuasive. Applicant argues that because Alasto teaches that the MFR2 range is preferably 700 to 1500 g/10 min, a person of ordinary skill “would be led away” from a polymer composition with a propylene polymer having an MFR2 of greater than 1500 g/10 min. (Remarks, p. 7.)
The examiner disagrees. As discussed above in paragraph 7, Alasto teaches that its propylene polymers typically have an MFR2 ranging from 400 to 5000 g/10 min, which overlaps the claimed range. Applicant’s argument that Alasto’s preferred range of 700 to 1500 g/10 min constitutes a teaching away of an MFR2 greater than 1500 g/10 min is unpersuasive. Disclosed examples and preferred embodiments do not constitute a teaching away from a broader disclosure or nonpreferred embodiments. (MPEP 2123 (II) (citing In re Susi, 440 F.2d 442, 169 USPQ 423 (CCPA 1971). "A known or obvious composition does not become patentable simply because it has been described as somewhat inferior to some other product for the same use." (In re Gurley, 27 F.3d 551, 554, 31 USPQ2d 1130, 1132 (Fed. Cir. 1994).) Thus, although Alasto may disclose a preferred embodiment of the recited polypropylene, such a disclosure does not teach away from the broader disclosure and the teachings of the nonpreferred embodiments.
Allowable Subject Matter
Claims 31 and 32 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
The following is a statement of reasons for the indication of allowable subject matter:
Claims 31 and 32 contain allowable subject matter for the reasons set forth in the September 30 Office Action at paragraphs 25-28, which are incorporated by reference herein.
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 CATHERINE S BRANCH whose telephone number is (571)270-3539. The examiner can normally be reached Monday through Friday.
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CATHERINE S. BRANCH
Primary Examiner
Art Unit 1763
/CATHERINE S BRANCH/Primary Examiner, Art Unit 1763