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 .
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
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Claims 1-7 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-4, 6, and 7 of U.S. Patent No. US12448514.
Claim 1 of ‘514 claims: A resin composition comprising: an aromatic polyether ketone resin (I); and a fluorine-containing copolymer (II), the resin composition satisfying an r2/r1 ratio of 1.60 or lower, wherein r2 is an average dispersed particle size of the fluorine-containing copolymer (II) measured after conducting a melt flow rate measurement at 380° C. and a load of 5000 g and with a preheating time of five minutes in conformity with ASTM D1238, the measurement being performed on a solid of the fluorine-containing copolymer (II) obtained after the melt flow rate measurement, and r1 is an average dispersed particle size of the fluorine-containing copolymer (II) measured prior to conducting the melt flow measurement.
The difference between this and the instant claim 1 is that the instant claim 1 is directed to a “powder composition.” Although the ‘514 claim 1 is missing this limitation, it is directed to any resin composition and because the dispersed particle size measurement is performed on a solid of the fluorine containing copolymer, it would be obvious to the skilled artisan that this can refer to a powder, and therefore reads on instant claim 1.
Claim 2 of ‘514 reads on instant claim 3.
Claim 3 of ‘514 reads on instant claim 4.
Claim 4 of ‘514 reads on instant claim 5.
Claim 6 of ‘514 reads on instant claim 2.
Claim 7 of ‘514 reads on instant claims 6 and 7.
Although the claims at issue are not identical, they are not patentably distinct from each other because the subject matter of the patented claims substantially encompasses the claims of the present application and/or are obvious variants of one another.
Allowable Subject Matter
Claims 1-7 are allowed.
The following is an examiner’s statement of reasons for allowance: The prior art of record does not teach, disclose, or suggest a powder composition comprising: an aromatic polyether ketone resin (I); and a fluorine-containing copolymer (II), wherein the powder composition has a ratio r2/r1 of 1.60 or lower, wherein r1 represents an average dispersed particle size of the fluorine-containing copolymer (II) and r2 represents an average dispersed particle size of the fluorine-containing copolymer (II) after melt flow rate measurement at 380°C and a load of 5000 g with 5-minute pre-heating in conformity with ASTM D1238.
The closest prior art of record includes Masuda et al, US 20140329087 and Iida et al, US20170301430A.
Masuda discloses a resin composition comprising an aromatic polyether ketone resin and a fluororesin copolymer, abstract. Masuda melt blends the resins and measures the dispersed particle size of the fluoropolymer after melt blending ¶¶[0083, 0098] but only forms pellets out of the melt blend ¶[0099], which are then used to form the insulation layer for the wire coating, and does not suggest pulverizing the resin into a powder. Nor does Masuda disclose measuring the dispersed particle size of the fluoro polymer in a powdered state before or after measuring the melt flow rate. Furthermore, it would not be obvious that the dispersed particle size ratio r2/r1 of the fluoropolymer is inherent to the resin mix because it is not disclosed that the resins are melt blended at a high shear rate (greater than 600 sec-1), which applicant states is necessary to achieve the 1.60 or less ratio of r2/r1. Therefore Masuda does not read on the claims.
Iida similarly discloses a resin composition comprising an aromatic polyether ketone resin and a fluororesin, abstract. The fluororesin is preferably a copolymer, such as TFE/HFP, ¶¶[0050-0052]. Iida melt blends the resins and measures the dispersed particle size of the fluoropolymer after melt blending ¶¶[0094, 0130] but only forms pellets out of the melt blend ¶[0109], and does not pulverize into a powder. Nor does Iida disclose measuring the dispersed particle size of the fluoro polymer in a powdered state before or after measuring the melt flow rate. Furthermore, it would not be obvious that the dispersed particle size ratio r2/r1 of the fluoropolymer is inherent to the resin mix because it is not disclosed that the resins are melt blended at a high shear rate (greater than 600 sec-1), which applicant states is necessary to achieve the 1.60 or less ratio of r2/r1. Therefore Iida does not read on the claims.
Another relevant prior art is US20060110601 to Hennessey et al.
Hennessey discloses a primer powder coating composition comprising a polymer binder of PEEK ¶[0014] and a copolymer of TFE/perfluoroolefin such as TFE/HFP or TFE/PAVE ¶[0013]. These resins are mechanically blended or prepared by spray drying ¶[0018] but they are not mixed at a high shear rate and are not melt blended in an extruder ¶[0040]. The particle size of the fluoropolymer is only mentioned as the size of the powder obtained from the manufacturer, and it is not measured after dispersing into the polymer binder nor is it suggested to measure the dispersed particle size after performing an MFR measurement to obtain the claimed r2/r1, Hennessey does not measure the MFR of the primer powder after mixing at all. Furthermore, because the fluoropolymer is not mixed into the polymer binder at a high shear rate, it is not inherent or obvious that the r2/r1 ratio would be 1.60 or less. Therefore Hennessey does not read on the claims.
Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee. Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.”
Conclusion
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/V.L.S./Examiner, Art Unit 1766
/RANDY P GULAKOWSKI/Supervisory Patent Examiner, Art Unit 1766