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/Restriction
Claims 6, 9, 13 and 14 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected species or group, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on August 04, 2026.
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 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 10-12 are rejected under 35 U.S.C. 103 as being unpatentable over US 2013/0030125 (Buryak) in view of US 2004/0181010 (Miserque).
Buryak discloses a multimodal polyethylene composition and pipe articles therefrom comprising:
(a) 15 to 50 wt.% of a low molecular weight ethylene homopolymer having a weight average molecular weight (Mw) of from 15,000 to 40,000 g/mol [0017] and a preferred density of 0.965 to 0.975 g/cm3 [0061] (embraces Applicants’ homopolymer (b) having a molecular weight of less than 30,000 g/mol);
(b) 15 to 50 wt.% of a medium molecular weight ethylene/C3-10 α-olefin comonomer copolymer having a Mw of from 70,000 to 200,000 g/mol [0018] and a preferred density of 0.905 to 0.925 g/cm3 [0065] (embraces Applicants’ copolymer (c) having a molecular weight of from 50,000 to 150,000 g/mol); and
(c) 15 to 50 wt.% of a high molecular weight ethylene/C3-10 α-olefin comonomer copolymer having a Mw of from 220,000 to 400,000 g/mol [0019] and a preferred density of less than 0.910 g/cm3 [0068] (embraces Applicants’ copolymer (a) having a molecular weight of greater than 350,000 g/mol), wherein the compositions have a density in the range of 0.920 to 0.960 g/cm3 [0032] (e.g., abstract, [0016-0020], [0026-0032], [0073-0074], examples, claims).
Buryak expressly discloses various multimodal polyethylene compositions (Examples 1, 4, 7 and 10 per Tables 2-4) obtained by admixing:
(a) a low molecular weight ethylene homopolymer (A18) having a Mw of 24,000 g/mol (meets Applicants’ homopolymer (b) having a molecular weight of less than 30,000 g/mol);
(b) a medium molecular weight ethylene/hexene copolymer (A25) having a Mw of 138,000 g/mol (meets Applicants’ copolymer (c) having a molecular weight of from 50,000 to 150,000 g/mol); and
(c) a high molecular weight ethylene/hexene copolymer (A28) having a Mw of 272,000 g/mol (differs from Applicants’ copolymer (a) in that the Mw is not greater than 350,000 g/mol). Notably, the exemplified compositions have a density in the range of 0.9235 to 0.9359 g/cm3 (Table 4).
In essence, Buryak’s examples differ from claim 10 in that the high molecular weight copolymer (A28) does not have a Mw greater than 350,000 g/mol and in that the compositions are not described as having a minimum required strength (MRS) of greater than 11.3 Mpa. With respect to the first difference, it is within Buryak’s inventive disclosure [0019], and obvious to one having ordinary skill in the art, to use a high molecular weight copolymer (c) having a Mw of up to 400,000 g/mol as an alternative to the exemplified copolymer (A28) for its expected additive effect and with the reasonable expectation of success. The selection of a known material based on its suitability for its intended use supports a prima facie case of obviousness, Sinclair & Carroll Co. v. Interchemical Corp., 65 USPQ 297. As to the presently claimed MRS rating of greater than 11.3 Mpa, such denotes that the multimodal polyethylene composition has sufficient high strength to withstand a hoop stress of 11.3 MPa for 50 years at 20°C (specification [0055]). From Miserque (abstract/[0021]/[0009]), it is known that multimodal polyethylene pipe compositions having high densities, i.e., greater than 0.951 g/cm3, can withstand a hoop stress of up to 12.5 Mpa (i.e., a MRS rating of up to 12.5 MPa). Thus, with respect to the second difference, it would have been within Buryak’s inventive disclosure [0032], and obvious to one having ordinary skill in the art, to formulate multimodal polyethylene pipe compositions having a density of greater than 0.951 g/cm3 and up to 0.960 g/cm3 with the reasonable expectation that said compositions having a high density would also have a MRS rating of up to 12.5 MPa as taught by Miserque.
As to claims 11 and 12, it would have been within Buryak’s inventive disclosure [0001-0002]/[0081], and obvious to one having ordinary skill in the art, to produce a pipe from Buryak’s above-modified multimodal polyethylene compositions by extrusion processing the composition to form the pipe, wherein the pipe would have a MSR rating of 12.5 MPa.
Response to Arguments
Applicants’ arguments filed August 04, 2026 have been fully considered but they are not persuasive in overcoming the 35 USC 103 rejection of claims10-12.
It is not seen how Applicants’ election without traverse of Group I serves to overcome the 35 USC 103 rejection.
Allowable Subject Matter
Claims 1-5, 7 and 8 are allowed.
The claims have been amended to overcome the rejection under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph. US 2013/0030125 (Buryak), the closest prior art of record, distinguishes over present claim 1 in its ethylene copolymer has a density which is lower than the 0.920 to 0.935 g/cm3 defining the presently claimed ethylene copolymer (a). Furthermore, while the presently claimed high molecular weight ethylene copolymer (a) and medium molecular weight ethylene copolymer (c) have different comonomers, Buryak’s corresponding ethylene copolymers have the same comonomer, e.g., hexene (Table 1). Buryak fails to disclose or suggest the use of a high molecular weight ethylene copolymer (c) having a density higher than the preferred 0.910 g/cm3 or the use of a high molecular weight ethylene copolymer (c) having a different comonomer from the medium molecular weight ethylene copolymer (b). An extensive prior art search has failed to reveal any additional prior art that would fairly teach, suggest or provide motivation to arrive at the presently claimed subject matter.
Conclusion
THIS ACTION IS MADE FINAL. 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.
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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/ANA L. WOODWARD/Primary Examiner, Art Unit 1765
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