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 .
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.
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 and 4-9 are rejected under 35 U.S.C. 103 as being unpatentable over Hwang et al. (US Pat. 5,424,362).
Considering Claims 1, 4, 5, 8, and 9: Hwang et al. teaches a polymer blend comprising a graft modified polyethylene; and an ethylene interpolymer comprising ethylene and a α,β-unsaturated carboxylic acid (2:13-25), where the graft modification includes acrylic acid, methacrylic acid or maleic anhydride (4:30-47), and the ethylene interpolymer comprises 90.3 weight percent ethylene and 9.7 weight percent acrylic acid in an example (8:10-15). The original specification of the instant application identifies polyethylene as a polymer with a thermal transition temperature of at least 125 ºC (see claim 2, Table 1).
Hwang et al. teaches the density of the polyethylene as being 0.850 to 0.96 g/cc (3:46-53), which overlaps with the claimed range of greater than 0.940 g/cc. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976). See MPEP § 2144.05. It would have been obvious to a person of ordinary skill in the art to have selected a polyethylene with a density within the overlapping portion of the claimed range, and the motivation to do so would have been, as Hwang et al. suggests, to provide a high density product with increased mechanical properties.
Considering Claim 6: Hwang et al. teaches the polyethylene as having a Melt Index I2 of 0.5 to 20 g/10 min (4:13-16).
Considering Claim 7: Hwang et al. teaches an example comprising 50 or 70 weight percent of the graft polymers and 30 or 50 weight percent of the ethylene interpolymer (Table 1).
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Claims 10, 13, and 14 are rejected under 35 U.S.C. 103 as being unpatentable over Hwang et al. (US Pat. 5,424,362).
Considering Claim 10: Hwang et al. teaches a polymer blend comprising a graft modified polyethylene; and an ethylene interpolymer comprising ethylene and a α,β-unsaturated carboxylic acid (2:13-25), where the graft modification includes acrylic acid, methacrylic acid or maleic anhydride (4:30-47), and the ethylene interpolymer comprises 90.3 weight percent ethylene and 9.7 weight percent acrylic acid in an example (8:10-15). The original specification of the instant application identifies polyethylene and polypropylene as polymers with a thermal transition temperature of at least 125 ºC (see claim 2, Table 1). Hwang et al. teaches neutralizing the ethylene interpolymer with a metal salt (5:15-39).
Hwang et al. teaches the density of the polyethylene as being 0.850 to 0.96 g/cc (3:46-53), which overlaps with the claimed range of greater than 0.940 g/cc. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976). See MPEP § 2144.05. It would have been obvious to a person of ordinary skill in the art to have selected a polyethylene with a density within the overlapping portion of the claimed range, and the motivation to do so would have been, as Hwang et al. suggests, to provide a high density product with increased mechanical properties.
Considering Claims 13 and 14: 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, and teaches the composition as being made by a substantially similar process. The original specification does not provide any disclosure on how to obtain the claimed properties outside the components of the composition itself. Therefore, the claimed effects and physical properties, i.e. [….] would necessarily arise from a composition with all the claimed ingredients in the claimed amounts. "Products of identical chemical composition can not 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. 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 enabling a person of ordinary skill in the art to obtain the claimed properties with only the claimed ingredients, absent undue experimentation.
Claims 11 and 12 are rejected under 35 U.S.C. 103 as being unpatentable over Hwang et al. (US Pat. 5,424,362) as applied to claim 10 above, and further in view of Pieski et al. (US Pat. 4,248,990).
Considering Claims 11 and 12: Hwang et al. teaches the composition of claim 10 as shown above. Hwang et al. teaches neutralizing the ethylene interpolymer with a metal salt (5:15-39).
Hwang et al. does not teach the degree of neutralization. However, Pieski et al. teaches neutralizing an ethylene acrylic acid polymer with sodium, zinc, or magnesium ions to a neutralization degree of 5 to 90 weight percent (8:51-68). Hwang et al. and Pieski et al. are analogous art as they are concerned with the same field of endeavor, namely ethylene acid interpolymers. It would have been obvious to a person of ordinary skill in the art to have used the neutralization degree of Pieski et al. in the composition of Hwang et al., and the motivation to do so would have been, as Pieski et al. suggests, to provide a polymer that is thermoplastic processable (8:51-68).
Claim 15 is rejected under 35 U.S.C. 103 as being unpatentable over Hwang et al. (US Pat. 5,424,362).
Considering Claim 15: Hwang et al. teaches blending a polymer blend comprising a graft modified polyethylene; and an ethylene interpolymer comprising ethylene and a α,β-unsaturated carboxylic acid (2:13-25), where the graft modification includes acrylic acid, methacrylic acid or maleic anhydride (4:30-47), and the ethylene interpolymer comprises 90.3 weight percent ethylene and 9.7 weight percent acrylic acid in an example (8:10-15). The original specification of the instant application identifies polyethylene and polypropylene as polymers with a thermal transition temperature of at least 125 ºC (see claim 2, Table 1). Hwang et al. teaches neutralizing the ethylene interpolymer with a metal salt (5:15-39).
Hwang et al. teaches the density of the polyethylene as being 0.850 to 0.96 g/cc (3:46-53), which overlaps with the claimed range of greater than 0.940 g/cc. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976). See MPEP § 2144.05. It would have been obvious to a person of ordinary skill in the art to have selected a polyethylene with a density within the overlapping portion of the claimed range, and the motivation to do so would have been, as Hwang et al. suggests, to provide a high density product with increased mechanical properties.
Response to Arguments
Applicant's arguments filed February 25, 2026 have been fully considered but they are not persuasive, because:
The applicant’s argument that Hwang et al. does not teach a high density polyethylene is not persuasive. Hwang et al. teaches blending a polymer blend comprising a graft modified polyethylene; and an ethylene interpolymer comprising ethylene and a α,β-unsaturated carboxylic acid (2:13-25).
Hwang et al. teaches the density of the polyethylene as being 0.850 to 0.96 g/cc (3:46-53), which overlaps with the claimed range of greater than 0.940 g/cc. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976). See MPEP § 2144.05. It would have been obvious to a person of ordinary skill in the art to have selected a polyethylene with a density within the overlapping portion of the claimed range, and the motivation to do so would have been, as Hwang et al. suggests, to provide a high density product with increased mechanical properties.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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.
Correspondence
Any inquiry concerning this communication or earlier communications from the examiner should be directed to LIAM J HEINCER whose telephone number is (571)270-3297. The examiner can normally be reached M-F 7:30-5:00.
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/LIAM J HEINCER/Primary Examiner, Art Unit 1767