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
Applicant’s election without traverse of Group I (claims 1-9) in the reply filed on 2/10/2026 is acknowledged.
Group II (claim 10) is withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 2/10/2026.
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.
Claim(s) 1-7 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Christian et al (WO 9003414 A1).
Regarding claim 1, Christian teaches a polymer blend B1 comprising equal proportions of an ethylene homopolymer resin ‘006 (having a density of 0.9552 g/cm3 measured by gradient column method) and an ethylene/butene-1 copolymer ‘013 (having a density of 0.9042 g/cm3 measure by gradient column method) [P19L7-P21L1 and Table 1].
The examiner submits that the density measured by gradient column method (ASTM D1505) is substantially identical to the density measured by ASTM D792, as evidenced by US 20230405982 [P3, Table 2].
The ethylene homopolymer resin ‘006 reads on the claimed first ethylene-based polymer having a density of 0.941 g/cc to 0.970 g/cc as measured according to ASTM D792.
The ethylene/butene-1 copolymer ‘013 reads on the claimed second ethylene-based polymer having a density of 0.860 g/cc to 0.930 g/cc as measured according to ASTM D792.
The blend contains 1000 ppm each of the stabilizers Irganox 1076 and Irgafos 168 [P20L6-7], both of which are art recognized as antioxidants, reading on the claimed additive.
The blend B1 contains 2.7 mole% of butene [Table 1], which is 5.3 wt% based on the total ethylene/butene content, as calculated by the examiner, meeting the claimed Total Comonomer Content of 2.9 wt% or greater.
Regarding claims 2-3, Christian teaches equal proportions of ‘006 and ‘013 as stated above, which is 50 wt% of ‘006 and 50 wt% of ‘013, meeting the claimed range of 40 wt% to 95 wt% of the first ethylene-based polymer, and 5 wt% to 60 wt% of the second ethylene-based polymer.
Regarding claim 4, Christian does not disclose any carbon black in the composition. Therefore, the composition is expected to be free of carbon black.
Regarding claim 5, the recited density of the polymeric composition is a property of the product. “Products of identical chemical composition cannot have mutually exclusive properties." 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. “When the PTO shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not.” In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990)). See MPEP 2112.01. Since the prior art teaches the same product as the current invention, the recited property is expected to be present. Nevertheless, Christian teaches that Blend 1 has density of 0.9335 [Table 1], meeting the claimed range of 0.945 or less.
Regarding claim 6, the recited elongation at break of the polymeric composition is a property of the product. “Products of identical chemical composition cannot have mutually exclusive properties." 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. “When the PTO shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not.” In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990)). See MPEP 2112.01. Since the prior art teaches the same product as the current invention, the recited property is expected to be present. Nevertheless, Christian teaches that Blend 1 has elongation at break of 1620% [Table 2], meeting the claimed range of 600% or greater.
Regarding claim 7, the recited density of the polymeric composition is a property of the product. “Products of identical chemical composition cannot have mutually exclusive properties." 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. “When the PTO shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not.” In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990)). See MPEP 2112.01. Since the prior art teaches the same product as the current invention, the recited property is expected to be present. Nevertheless, Christian teaches that Blend 1 has density of 0.9335 [Table 1], meeting the claimed range of 0.930-0.945.
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 text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
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.
Claim(s) 8-9 is/are rejected under 35 U.S.C. 103 as being unpatentable over Christian et al (WO 9003414 A1).
Regarding claims 8-9, Christian teaches the polymeric composition of claim 1. Christian’s polymer ‘013 has density of 0.9042 as stated above, which is sufficiently close to the claimed lower limit of 0.918 that one of ordinary skill in the art would reasonably expect to obtain the same properties. It would have been obvious to one of ordinary skill in the art at the time of filing to select amounts within the claimed range based on the close proximity to the prior art range and the reasonable expectation of obtaining a product having the same properties. A prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close (MPEP 2144.05.I). The examiner’s position is further bolstered by the fact that Christian’s Blend 1 has elongation at break of 1620% [Table 2], meeting the claimed range of 600% or greater.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JIANGTIAN XU whose telephone number is (571)270-1621. The examiner can normally be reached Monday-Thursday.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Robert Jones can be reached on (571) 270-7733. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JIANGTIAN XU/Primary Examiner, Art Unit 1762