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 .
Response to Amendment
The amendments filed on December 18, 2025 have been entered. Claims 23-44 are pending in the application.
Claim Rejections - 35 USC § 102
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 text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 23-26, 28-30, 32-35, and 37-44 are rejected under 35 U.S.C. 102(a)(1)/(a)(2) as being anticipated by Leistner et al (US 2015/0376375 A1).
Regarding Claims 23-26 and 32: Leistner teaches a polymer composition comprising a polyolefin such as an EVA copolymer (para. 0055) and a triazine metal phosphate compound reading on Formula (II-1) of instant claim 1 (see Formula I, para. 0010, 0012-0021; Formula IV, claim 2).
Not disclosed is the water absorption, ΔDk, and ΔDf of the composition. However, the reference teaches all of the claimed ingredients in the claimed amounts made by a substantially similar process. The original specification does not identify a feature that results in the claimed effect or physical property outside of the presence of the claimed components in the claimed amount. Therefore, the claimed effects and physical properties, i.e. water absorption of less than or equal to 6 wt%, ΔDk of less than or equal to 9%, and ΔDf of less than or equal to 500%, would naturally arise and be achieved by a composition with all the claimed ingredients. "Products of identical chemical composition cannot have mutually exclusive properties." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). 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. See MPEP § 2112.01. If it is the applicant’s position that this would not be the case: (1) evidence would need to be provided to support the applicant’s position; and (2) it would be the Office’s position that the application contains inadequate disclosure that there is no teaching as to how to obtain the claimed properties with only the claimed ingredients.
Regarding Claims 28-29: Leistner teaches that the metal in the triazine metal phosphate compound is Zn (para. 0033) and that p may be equal to 0 (para. 0008).
Regarding Claim 30: Formula IV of Leistner (claim 2) reads on (A-H)2(+)[Zn2(+)(HPO4)22(-)]*pH2O, as set forth in instant Claim 30.
Regarding Claim 33: Leistner teaches 2-20 wt% of the triazine metal phosphate compound (para. 0081).
Regarding Claims 34-35 and 37: Leistner teaches an additional flame retardant such as magnesium hydroxide (para. 0046) and 2-20 wt% of the triazine metal phosphate compound (para. 0081).
Regarding Claim 38: Leistner teaches stabilizers, lubricants, rheology modifiers, processing agents, pigments, coupling agents, compatibilizers, and antioxidants (para. 0090).
Regarding Claims 39-42: Not disclosed is the water absorption, ΔDk, or ΔDf of the composition as compared to an identical composition comprising a polymerized triazine metal phosphate. However, the reference teaches all of the claimed ingredients in the claimed amounts made by a substantially similar process. The original specification does not identify a feature that results in the claimed effect or physical property outside of the presence of the claimed components in the claimed amount. Therefore, the claimed effects and physical properties would naturally arise and be achieved by a composition with all the claimed ingredients. "Products of identical chemical composition cannot have mutually exclusive properties." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). 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. See MPEP § 2112.01. If it is the applicant’s position that this would not be the case: (1) evidence would need to be provided to support the applicant’s position; and (2) it would be the Office’s position that the application contains inadequate disclosure that there is no teaching as to how to obtain the claimed properties with only the claimed ingredients.
Regarding Claims 43-44: Leistner teaches an article of manufacture such as a cable (para. 0116).
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 text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim 27 is rejected under 35 U.S.C. 103 as being unpatentable over Leistner et al (US 2015/0376375 A1) in view of Goto et al (JP 2002/284986 A, using the machine translation for the citations below).
Leistner teaches the limitations of claim 23, as set forth above. However, Leistner is silent to the d50 particle size.
Goto teaches a flame retardant resin composition (para. 0001) comprising a melamine phosphate flame retardant with a d50 particle size of 0.5-20µm (para. 0018). Goto and Leistner are analogous art because they are directed toward the same field of endeavor, namely flame retardant resin compositions.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to adjust the particle size of the melamine metal phosphate taught by Leistner to 0.5-20µm because Goto teaches that a particle size in that range provides high flame retardancy and increases the strength of the molded product (para. 0018).
Claim 31 is rejected under 35 U.S.C. 103 as being unpatentable over Leistner et al (US 2015/0376375 A1) in view of Oh (KR 100899112 B1, using the machine translation for the citations below), as evidenced by Nabaltec (Mineral based flame retardancy with metal hydrates, Jan 2025).
Leistner teaches the limitations of claim 23, as set forth above. However, Leistner is silent to the surface area of the melamine metal phosphate.
Oh teaches a polymer composition comprising a polymer and a flame retardant (p.1, para. 1), wherein the flame retardant may be melamine phosphate (p.4, line 3) with a BET specific surface area of 0.4-35 m2/g (p.6, line 1). Oh and Leistner are analogous art because they are directed toward the same field of endeavor, namely flame retardant resin compositions.
The surface area of flame retardant materials is known to impact flame retardancy, mechanical properties, and processability of resin compositions (Nabaltec, p.20). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to tailor the surface area of the melamine metal phosphate into the range taught by Oh to achieve optimal flame retardancy, processability, and mechanical performance.
Claim 36 is rejected under 35 U.S.C. 103 as being unpatentable over Leistner et al (US 2015/0376375 A1).
Leistner teaches the limitations of claim 34, as set forth above. Leistner further teaches that the additional flame retardant is present at 0-20 wt% (para. 0083). This 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. MPEP 2144.05 (I). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use an overlapping amount of the additional flame retardant and would have been motivated to do so in order to further improve the flame retardant effects of the composition.
Response to Arguments
Applicant's arguments filed on December 18, 2025 have been fully considered but they are not persuasive.
In response to applicant’s argument that Leistner does not include working examples of the claimed composition, disclosed examples and preferred embodiments do not teach away from the broader disclosure. Patents are relevant as prior art for all they contain. See MPEP 2123.
In response to applicant’s argument that Leistner teaches the polymerized forms of the claimed triazine metal phosphates: Leistner teaches polymerized triazine metal phosphates as alternatives to the monomeric forms. For example, in claim 3, Leistner lists multiple compounds “or oligomers or polymers thereof.” This indicates that the monomeric compounds are both disclosed and considered suitable for the invention of Leistner.
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.
Correspondence
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CAITLIN N ILLING whose telephone number is (571)270-1940. The examiner can normally be reached Monday-Friday 8AM-4PM.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Mark Eashoo can be reached at (571)272-1197. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/C.N.I./Examiner, Art Unit 1767
/MARK EASHOO/Supervisory Patent Examiner, Art Unit 1767