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 .
Claim Interpretation
Instant claims recite term “polyalcohol-based flow improver”. Due to lack of clear definition as to what the applicants view as “polyalcohol” the claim will be interpreted under broadest reasonable interpretation polyalcohol will be viewed as any compound comprising 2 or more hydroxy group, wherein the addition if this compound will improve the flow of the composition. Such compounds may include lubricants, solvents, plasticizers other polymers. The applicants further did not indicate in what way the flow may be improved which would also encompass viscosity modifiers or lower molecular polymers.
Claim 4 recited “wherein the inorganic filler comprises at least one selected from the group consisting of…”. While the group from which the filler is selected is limited to the list, term “comprises” allows additional filler that are outside of the bounds of the Markush group.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 7, 8 and 10 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
With respect to claim 7, the term masterbatch the claim does not particularly point out and distinctly claim the nature of the masterbatch. In the art term “masterbatch” means signifies a concentrated mixture of pigments or additives encapsulated in a carrier resin, which is then blended with raw plastic material during processing to easily and uniformly impart desired characteristics final product. The applicants defined their masterbatch as follows:
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It appear that the applicants use term master batch to refer to carbon black or black dye which is not the meaning that has been utilized in the art. As such the term “masterbatch” is viewed as indefinite since the applicants did not define the content of the masterbatch nor did the applicants provide any definition as to what the meaning of their “masterbatch” is, thereby creating confusion in view of the specification. Additionally, since the applicants claim composition, the masterbatch once added to the composition is no longer a masterbatch but it is part of the composition.
With respect to claim 8, while limitation of “HALS…series” is understood and term HALS is well established in the art; the “UVA series” is not. The term “UVA series” is not distinctly claimed or described in the specification as originally filed (see [0042-0043]). It should be noted that the variety of surfaces and compounds that absorb UV radiation is countless. Both organic and inorganic substances can be utilized for such purpose and they include metals or metal oxides (such as titania or zirconia), polymers, and natural substances such as tannins. Compounds can also serve as UV Absorber both directly and indirectly, wherein both would meet the limitation of the claim.
With respect to claim 10, the applicants require a molded article to have a melt flow index. While examiner agrees that the composition utilized the molded article may have melt flow index, such is not true when it refers to the molded article itself. If applicants attempt to claim the melt flow index of the composition such cannot be dependent on claim 9 which is a claim directed to molded article not the composition.
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.
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
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.
Claims 1-5, 7-11 are rejected under 35 U.S.C. 103 as being unpatentable over Moad (US 2010/0069557) in view of Youn (US 2016/0362553)
With respect to claims 1-5, Moad discloses composite for molding parts for the automotive components [0192]. The composition comprises a) synthetic polymer, b) talc and c) dispersing agent. The polyamide is utilized in the amount of less than 55 % by weight of all three components (Abstract).
Polyamides are selected from polyamide 6, 66, and the like [0047] and can include impact modifiers. The type of polyamide meets the limitation of the instant claim 2. The synthetic polymer in addition to polyamide in amount of less than 55% comprises second synthetic polymer [0023]. While the list of possible synthetic polymers is extensive, the preferred embodiment includes PA/HDPE [0060] with polyethylene being highly preferred [0024, 0062].
Talc as indicated in the Abstract can be modified or unmodified [0063] and utilized in amount of 0.1-10 % by weight (Abstract [0074]). Recitation of talc meets limitation of instant claim 3. If modified the modifying agent can be silane compound [0063] such as triethoxysilane-propylamine which is a known coupling agent [0065]. Such treatment meets the limitation of instant claim 5.
Moad further discloses use of additional fillers such as glass fiber, carbon black, mica and the like [0172]. The content of fillers is reported based on the overall content of synthetic resin. Specifically fillers like mica can be added to the composition in amount of 0.01-40% by weight, carbon black can be utilized in amount of 0.1-5 % by weight, glass fibers can be added in amount of 0.01-20 % by weight.
While Moad discloses use of flow improvers [0173], the disclosure does not provide any further details. However, it is well known that dispersants as well as other synthetic polymers can also improve flow of the composition. With that in mind, Moad teaches use of polyvinyl alcohol [0042], polyalkylene glycols [0043] as additional polymers, polyalkylene oxides as dispersants [0105], wherein the dispersants are utilized in amount of 0.05-5% [0119].
In summary, polyamide is utilized in amount of 55% or less, fillers meet or exceed claimed 50% and dispersants which can serve also as flame improvers are utilized in amount of 0.05-5%, which further signifies that the HDP will be utilized also in amount of 45% or less.
Moad further discloses the importance of barrier properties in the systems utilized in the automotive parts.
In the same field of endeavor Youn polyamide composition utilized to make piping and other parts for the automotive systems such as fuel systems.
Youn additionally teaches addition of MXD-modified nylon 6, which improves gas barrier property against gasoline and mixed fuels conveyed through the piping [0024]. The MXD6 modified nylon 6 is disclosed to have melt index of 0.5 at 275oC. This is equivalent to commercial grade modified nylon S6121 and has glass transition temperature of approximately 85oC (see attached technical data).
The modified nylon in Youn is utilized in amount of 5-15 % by weight (Abstract). If the amount is less than 5%, the modified nylon will not be able to form adequate laminar structure necessary to improve barrier property. If the amount of modified nylon is more than 15%, the mechanical properties will suffer.
MXD-modified polyamide 6 further meets the limitation of instant claim 3.
In the light of the above disclosure it would have been obvious to one of ordinary skill in the art at the time instant invention was filed to utilize the MXD-modified nylon 6 of Youn in the composition of Soo including its amounts and thereby obtain the claimed invention. This modification with respect to type of modified nylon and its amounts would result in better gas barrier property of the fuel system in automotive industry without compromising mechanical properties. Youn teaches that the improved gas barrier property is achieved because MXD-modified nylon forms laminar dispersion when mixed with nylon [0024]. Additionally wetting property brought forth by use of HDPE and improved gas barrier properties brought by use of MXD-modified polyamide 6 are both important properties for automotive fuel system to have.
With respect to claim 7, Moad discloses use of additives such as UV Stabilizers [0154], wherein stabilizers can be utilized in amount of 0.1-10 % by weight [0175].
With respect to masterbatch, since the content of masterbatch is not distinctly claimed or disclosed in the specification, as per 112 rejection above it is not clear what the limitation of masterbatch really entails. Having said that, based on specification, the masterbatch is utilized to afford color stability. As such carbon black (See discussion above) will be interpreted as a masterbatch imparting black color into the composition of Moad.
With respect to claim 8, UV absorbers and stabilizers include hindered phenols [0155] and hindered amines [0160].
With respect to claim 9, the composite of Moad is utilized to make molded articles in automotive industry.
With respect to claim 10, per 112 rejection above, molded articles do not have melt flow index.
With respect to claim 11, Moad does not state that his composition absorbs water, as such water absorption of zero is assumed.
Claims 6, 10 and 11 are rejected under 35 U.S.C. 103 as being unpatentable over Moad (US 2010/0069557) in view of Youn (US 2016/0362553) as applied to claims 1-5, 7-11 above, and further in view of Soo (CN 101987917).
Discussion of Moad in view of Youn from paragraph 1 above is incorporated here by reference. As it was disclosed above, Moad teaches less than 55% of polyamide, 5-15 being MXD modified nylon as tough Youn. Moad further teaches use of inorganic fillers, polyvinyl alcohols and polyols which as dispersant improve flow of the composition. Moad also discloses color imparting carbon black interpreted as carbon black and stabilizers that include UVA and HALS.
While Moad discloses use of HDPE, the reference is silent with respect to the density of the HDPE.
In the same field of endeavor, which lies in making composite parts for the automotive systems which include fuel systems, Soo also utilizes composition comprising which is combination of the same type of polyamide as that of Moad and HDPE (Abstract).
HDPE resin is defined in Soo as having density in a range of 0.94-0.965 g/cm3, wherein the HDPE is utilized in amount of 1-50 parts by weight wherein the amount of HDPE is encompassed by both Moad and Soo [0045].
In the light of the above disclosure, while Moad discloses HDPE as a component of his composition, Soo provides the density of such HDPE. It would have been obvious to one having ordinary skill in the art at the time instant invention was filed to use HDPE of Moad with density as disclosed by Soon. This is further rendered obvious because for the polyethylene to qualify as high density polymer, accepted range within is 0.93-0.97 g/cm3, which is a value that those skilled in the art would be readily familiar with.
One of ordinary skill in the art would also readily understand the relationship between density, molecular weight and melt index of the HDPE polymer. To arrive at the HDPE having the density as claimed, one would have to utilize the same amount of monomers, which would in turn mean that the weight average molecular weight would also meet claimed range because ethylene is the only monomer polymerized. Additionally one of ordinary skill in the art would understand that the same polymer consisting of polyethylene having density and weight average molecular weight within the same range necessarily possess the same melt index. The three properties are directly related to one another.
With respect to claims 10 and 11, directed to the property of melt flow index (examiner will assume that the MFI refers to composition not article, in which case the dependency of claim 10 has to be changed to claim which recites composition).
The Office realizes that all of the claimed effects or physical properties are not positively stated by the reference(s). However, the reference(s) 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 (e.g. see instant claim 1, instant specification [0026, 0031, 0034, 0037]). Therefore, the claimed effects and physical properties, i.e. (melt flow index and water absorption rate) 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.
Here specifically, the components that contribute to permeability include silicate such as clay, talc and mica as well as use of MXD-modified nylon 6. Since all the components including fillers and polymers are utilized in the amounts overlapping with the components of the instant invention, the permeability will also be within the same range, especially when compositions applied in this office action are all directed at making composite parts for the automobile industry which include tanks, piping and the like where the permeability of liquids or gas is undesirable, especially for fuel systems.
Additionally, with respect to the melt flow rate, this property also depends on the composition. The prior art as applied in this office action teaches polymeric compounds utilized in overlapping amounts, With HDPE having properties within the same range and with additives utilized in the same range as well. Consequently melt flow index of the composition will also be expected be within the same range.
Modifying Moad with Youn and Soo is considered also obvious because the combination of two known compositions is expected to work in additive or cumulative manner. In re Kerkhoven 626 E.2d 846, 850 205 USPQ 1069, 1072 (CCPA 1980).
The combination of two compositions, each of which is taught by the prior art to be useful for the same purpose, in order to for a third composition that is to be used for the very same purpose may be prima facie obvious. In re Susi, 440 F.2d 442, 445, 169.
Correspondence
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/KATARZYNA I KOLB/Primary Examiner, Art Unit 1767 January 22, 2026