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 .
Election/Restrictions
Applicants’ election with traverse of Group I comprising 1-butene as the olefin comonomer species in the reply filed on April 08, 2026 is acknowledged. The traversal is on the ground(s) that the burden of showing the claims of groups I and II are patentably distinct has not been met. This is not found persuasive because the composition as claimed can be used in a materially different process such as in a casting or injection molding process. Moreover, Applicants have not submitted evidence or identified such evidence now of record showing the inventions to be obvious variants or clearly admitted on the record that this is the case. In either instance, if the examiner finds one of the inventions unpatentable over the prior art, the evidence or admission may be used in a rejection under 35 U.S.C. 103 or pre-AIA 35 U.S.C. 103(a) of the other invention.
The requirement is still deemed proper and is therefore made FINAL.
Claims 30-32 and 34 withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on April 08, 2026.
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 following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1, 3-5, 9-14, 17, 20 and 33 are rejected under 35 U.S.C. 102(a1) and (a2) as being anticipated by US 2009/0099315 (Kipke).
Kipke discloses a polyethylene composition comprising:
from 50 to 89 wt.% of a first polyethylene component preferably having a density of from 0.920 to 0.970 g/cm3 comprising at least one multimodal polyethylene having a low molecular weight ethylene polymer and a high molecular weight ethylene polymer (embraces Applicants’ multimodal high density polyethylene); and
from 50 to 11 wt.% of a second polyethylene component preferably having a density of from 0.910 to 0.940 g/cm3 comprising a low or medium density polyethylene (meets Applicants’ low-density polyethylene and overlaps 1 to 20 wt.% content thereof) (e.g., abstract, [0035], [0043-0047], [0051], [0068], [0077], examples, claims).
As to claim 1, Kipke sets forth examples (e.g., Example 1) comprising:
88 wt.% of a multimodal polyethylene having a density of 0.939 g/cm3 and a MFR (190/21.6) of 28 g/10 min (meets Applicants’ multimodal high-density polyethylene which is not defined in terms of specific density); and
11 wt.% of a linear low-density polyethylene having a density of 0.930 g/cm3 and a MFR (190/2.16) of 0.9/10 min (meets Applicants’ low-density polyethylene and content thereof).
As to claim 3, Kipke’s exemplified multimodal polyethylene has an ethylene/hexene copolymer [0139].
As to claim 4, Kipke discloses that the preferred olefin comonomer making up the ethylene copolymer is preferably selected from the group consisting of 1-butene, 1-hexene and 1-octene [0040]. As such, the use of an ethylene/1-butene copolymer as a functional alternative to Kipke’s exemplified ethylene/hexene copolymer is immediately-envisaged to one having ordinary skill in the art.
As to claim 5, Kipke’s exemplified multimodal polyethylene has a molecular weight distribution (Mw/Mn) of 14.4 (Table 1).
As to claim 9, Kipke’s exemplified low-density polyethylene has a density of 0.930 g/cm3 [0140].
As to claim 10, Kipke’s exemplified linear low-density polyethylene has a MFR (190/2.16) of 0.9 g/10 min [0140].
As to product-by-process claims 11-13, Kipke’s linear low-density polyethylene is produced by conventional high-pressure polymerization processes in tube or autoclave reactors [0113].
As to claim 14, Kipke’s Example 1 comprises 88 wt.% of the multimodal polyethylene.
As to claim 17, Kipke’s multimodal polyethylene is preferably a bimodal polyethylene [0093].
As to product-by-process claim 20, it is not seen that the patentability of the presently claimed composition depends on the method of preparing the multimodal high density polyethylene, i.e., by means of a Ziegler-Natta catalyst. Absent a showing to the contrary, the presently claimed multimodal polyethylene appears to be the same as that disclosed by Kipke even though a different polymerization catalyst is used in its production. “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.
As to claim 33, Kipke exemplifies blow-molded films [0160].
Claim Rejections - 35 USC § 103
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 2, 8, 18-20 and 27 are rejected under 35 U.S.C. 103 as being unpatentable over by US 2009/0099315 (Kipke) described hereinabove.
As to claim 2, Kipke discloses that the multimodal polyethylene preferably has a density of from 0.920 to 0.970 g/cm3 [0035]. Thus, it would have been obvious to one having ordinary skill in the art to use a multimodal polyethylene having a density falling within the presently claimed range of 0.94 to 0.965 g/cm3 in place of the exemplified multimodal polyethylene having a density of 0.939 g/cm3 with the reasonable expectation of success in accordance with the desired mechanical and optical properties [0034].
As to claim 8, Kipke does not expressly limit the melt index of the low molecular weight ethylene polymer making up the multimodal polyethylene and, as such, implicitly suggests that such can have any suitable melt index (inclusive of those presently claimed) with the reasonable expectation of success
As to claims 18 and 19, Kipke does not expressly limit the intrinsic viscosity or molecular weight of the linear low-density polyethylene and, as such, implicitly suggests that such can have any suitable intrinsic viscosity or molecular weight (inclusive of those presently claimed) with the reasonable expectation of success.
As to product-by-process claim 20, per Kipke’s disclosure [0018]/[0055], it would have been within the purview of one having ordinary skill in the art to use a multimodal polyethylene prepared by means of a Ziegler type catalyst in Kipke’s composition for its expected impact resistance improvement.
As to claim 27, Kipke does not expressly limit the melt index of the polyethylene composition and, as such, implicitly suggests that such can have any suitable melt index (inclusive of those presently claimed) with the reasonable expectation of success.
Claims 6, 7, 15, 16 and 20 are rejected under 35 U.S.C. 103 as being unpatentable over by US 2009/0099315 (Kipke) described hereinabove in view of US 2010/0047599 (Kvamme).
As to claims 6 and 7, Kipke does not describe the individual densities of the low and high molecular weight ethylene polymers making up the multimodal polyethylene. In this regard, Kvamme discloses that similar-such multimodal polyethylene polymers typically have a low molecular weight polyethylene with a density of more than 950 kg/cm3 [0048] and a high molecular weight polyethylene with a lower density [0049]. Thus, it would have been within the purview of one having ordinary skill in the art to use in Kipke’s composition a multimodal polyethylene wherein the low and high molecular weight ethylene polymers have densities as presently claimed with the reasonable expectation of success.
As to claims 15 and 16, Kipke does not describe the amounts of the low and high molecular weight ethylene polymers making up the multimodal polyethylene. In this regard, Kvamme discloses that similar-such multimodal polyethylene polymers preferably have a weight ratio of low and high molecular weight ethylene polymers of 40:60 to 60:40 [0050]. Thus, it would have been within the purview of one having ordinary skill in the art to use in Kipke’s composition a multimodal polyethylene wherein the low and high molecular weight ethylene polymers are present in amounts as presently claimed with the reasonable expectation of success.
As to claim 20, given that Kvamme discloses that the type of catalyst used in the preparation of similar-such multimodal polyethylene polymers is not critical [0074], it would have been obvious to one having ordinary skill in the art to use a multimodal polyethylene prepared by means of a Ziegler type catalyst with the reasonable expectation of success.
Allowable Subject Matter
Claims 21-26, 28 and 29 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.
Kipke fails to disclose, suggest or provide motivation to arrive at polyethylene compositions governed by the presently claimed properties.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Ana L Woodward whose telephone number is (571)272-1082. The examiner can normally be reached M-F 8am-5pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Heidi Kelley can be reached at 571-270-1831. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ANA L. WOODWARD/Primary Examiner, Art Unit 1765
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