DETAILED ACTION
Claim Rejections - 35 USC § 112
Claims 5 and 7 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.
In claim 5, it is unclear how the copolymer can be a homopolymer.
The term “highly” appears to be subjective and it is unclear what is embraced by,
or considered to be, highly crystalline.
Claim 5, contains the trade name Metocene. Where a trade name is used in a claim as a limitation to identify or describe a particular material or product, the claim does not comply with the requirements of 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph. See Ex parte Simpson, 218 USPQ 1020 (Bd. App. 1982). The claim scope is uncertain since the trademark or trade name cannot be used properly to identify any particular material or product. A trademark or trade name is used to identify a source of goods, and not the goods themselves. Thus, a trademark or trade name does not identify or describe the goods associated with the trademark or trade name. In the present case, the trademark/trade name is used to identify/describe a specific type of polypropylene and, accordingly, the identification/description is indefinite.
In claim 7, it is unclear how the rubber corresponds to the copolymer. Are these
separate components or is the rubber part of the copolymer?
The use of the term Metocene, a tradename used in commerce, has been noted in this application. The term should be accompanied by the generic terminology; furthermore the term should be capitalized wherever it appears or, where appropriate, include a proper symbol indicating use in commerce such as ™, SM , or ®.
Although the use of trade names and marks used in commerce (i.e., trademarks, service marks, certification marks, and collective marks) are permissible in patent applications, the proprietary nature of the marks should be respected and every effort made to prevent their use in any manner which might adversely affect their validity as commercial marks.
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 1, 2 and 5 to 12 are rejected under 35 U.S.C. 103 as being unpatentable over Kahlen et al. WO 2022/034127, citing the US equivalent USPGPub 2023/0287202, in view of Takao et al. 5,037,891
Kahlen et al. teach a polypropylene resin composition that contains two different
polypropylene copolymers. The first copolymer, referred to as HECO 1, has a melt flow rate of, preferably, 85 to 120 g/10 min using the same testing conditions as found in the instant claims. See for instance paragraphs 14 and 15. The second copolymer, referred to as HECO 2, has a preferred melt flow of from 3.5 to 7.5 g/10min. See paragraphs 17 and 18. These two polymers meet the requirements of the first and second polypropyl-enes in claim 1.
In addition to that noted above, see HECO 1 and 2 found in Table 1, having a melt flow of 100 and 5.5, respectively.
This composition also contains a dye. Note that carbon black is used in the working examples (top of page 11). See also paragraph 146, which teaches a pigment. This paragraph teaches other additives as well. In this manner both the claimed dye and additive are found in Kahlen et al.
This differs from that claimed in that it does not contains an impact modifier as claimed.
Takao et al. teaches copolymers that are used as additives in thermoplastic elastomers. They can be added to polypropylenes to improve adhesiveness, impact resistance and flexibility. See column 6, lines 58 to 68.
More specifically see column 5, lines 40 - 55 which teaches the Mooney viscosity of the copolymer ranging from 25 to 70, or 20 to 100, depending on the desired effect. For instance, when added as an impact modifier the Mooney viscosity is preferably from 20 to 100. This excerpt also teaches the detriments of having a Mooney viscosity outside this range. The working examples of Takao et al. show many copolymers hav-ing a viscosity within the claimed range.
From this one having ordinary skill in the art would have been motivated to add the copolymer of Takao et al. to the polypropylene based composition of Kahlen et al. in an effort to obtain the known benefits and properties thereof. It is prima facie obvious to add a known ingredient to a known composition for its known function. Motivation to select a viscosity within the claimed range comes directly from Takao et al. which shows many copolymers meeting this limitation. In this manner claims 1 and 10 are rendered obvious.
For claim 2, note the ranges of each polypropylene as found in paragraphs 7 and 8, and the amount of pigment/additives found in the working examples and paragraph 12, as they are ranges that overlap with the claimed ranges for the polypropylenes, dye and additive. Adjusting the amount within the disclosed range in an effort to optimize the properties for the particular end use would have been obvious to the skilled artisan. In addition, including the copolymer in Takao et al. to such a composition in an amount that provides the desired results and benefits would have also been within the skill of the ordinary artisan, during routine experimentation and optimization.
For claim 5, note that it is unclear what is embraced by this claim since a homo polymer doesn’t appear to be to be a type of copolymer; however, the polypropylenes in Kahlen et al. are crystalline, as evidenced by the Tc, crystallization temperature, found in Table 1.
For claim 6, see paragraphs 50 and 57 which teach that ethylene is the olefin monomer found in the polypropylene copolymers.
For claim 7, the second polypropylene HECO 2 does not contain an ethylene-propylene rubber. See paragraphs 52 to 57.
For claim 8, see component (A) in Takao et al. which meets this requirement (abstract).
For claim 9, note that selecting and adjusting the particle size of the carbon black in Kahlen et al. would have been well within the skill of the ordinary artisan, in an effort to optimize the desired properties associated therewith while using a product that is commercially available for convenience. The Examiner notes that particle sizes within the claimed range are common and commercially available.
For claim 11, see paragraph 146 in Kahlen et al. which teaches such additives.
For claim 12, see paragraph 76 which teaches molded articles.
Allowable Subject Matter
Claims 3, 4, 13 and 14 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.
There is nothing in the teachings of Kahlen et al. or Takao et al., alone or in com-
bination, that teaches or suggest these specific physical properties.
The prior art is silent as to the molecular weight of the polypropylene copolymers. Kahlen et al. teach other properties that are important to obtaining the desired results (melt flow, intrinsic viscosity, ethylene content) such that the skilled artisan would have been motivated to adjust these properties if optimization were to occur – not the molecular weight. Furthermore the polypropylene copolymer used in the preparation of the final copolymer rubber in Takao et al. is significantly less than that which is claimed. In lack of any motivation to select a molecular weight within the claimed range, claim 3 is unobvious.
The same applies to claim 4 as there is nothing that would motivate the skilled artisan to adjust or optimize the isotactic index and specific gravity of the prior art poly-propylenes.
For claim 13, there is nothing that would indicate that the composition that is
rendered obvious by the prior art would necessarily possess such properties. This is true particularly in view of the fact that the table on page 11 of Kahlen et al. shows impact strengths outside the claimed range.
For claim 14, hardness is not measured or discussed by Kahlen et al. The skilled artisan would neither have reason to believe that this is inherently met by the obvious composition noted above or that the skilled artisan would have motivation to optimize the properties to fall within this hardness range.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MARGARET MOORE whose telephone number is (571)272-1090. The examiner can normally be reached on Monday to Friday, 10 am to 5 pm. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Heidi Kelly, can be reached at 571-270-1831.
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Mgm
2/25/26
/MARGARET G MOORE/Primary Examiner, Art Unit 1765