DETAILED ACTION
Status of Application
This action is responsive to national-stage application filed 05/26/2023. Following entry of the concurrently filed preliminary amendment, claims 1-12 and 14-15 are currently pending and under examination herein.
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 . However, 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 a 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.
Information Disclosure Statement(s)
The information disclosure statement(s) (IDS) filed on 05/26/2023 and 07/08/2025 are in compliance with the provisions of 37 CFR 1.97, 1.98 and MPEP § 609, and therefore the information referred to therein has been considered as to the merits. Initialed copies of the IDS are included with the mailing/transmittal of this Office action.
Search Report
This application was accompanied by a Search Report wherein the following documents were cited as particularly relevant (“X” category): (I) WO 2014/210333 A1 and (II) WO 2019/133394 A1. Document (I) discloses a process for preparing an olefin homopolymer or copolymer using a bis oxoyl phenoxy phenyl catalyst (see claim 1). Procatalyst 1 (see structure on p. 12) is used in combination with an activator and co-catalyst to prepare ethylene/octene copolymer (see pp. 12-14, Table 1). While Procatalyst 1 may correspond to the ligand-metal complex of instant formula (I) (cf., claim 1, line 6 et seq.), the described preparation utilizes solution polymerization conditions as detailed on pages 12-13 (see bridging paragraph). Similarly, the Document (II), while disclosing a catalyst C that also corresponds to the ligand-metal complex of instant formula (I), uses the catalyst to produce ethylene/octene copolymer in a dual solution polymerization reactor system (see ¶¶ [0044], [00161]). Neither document is found to describe contacting ethylene and at least one 1-alkene with an effective catalyst therefor in a polymerization reactor under effective gas-phase or slurry-phase polymerization conditions as in the present invention, and both documents are silent as to the respective copolymer products having the requisite reverse comonomer distribution as shown by a MWCDI > 0. Therefore, neither document is being applied in any rejection herein.
Objection – Claim(s)
Claim 10 is objected to because of the following informalities: a redundant recitation of “a metallocene catalyst” is noted, see lines 8-9 thereof. Appropriate correction is required.
Claim Rejections – 35 U.S.C. 102/103
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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
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 1-8, 11, 14 and 15 are rejected under 35 U.S.C. 102(a)(2) as anticipated by or, in the alternative, under 35 U.S.C. 103 as obvious over Baillie et al (US 2023/0203216 A1; claiming priority to provisional Application No. 63/031,638, filed 05/29/2020) (hereinafter, ‘Baillie I’).
Regarding Claims 1 and 5, reference to Baillie I has already disclosed a method of making a poly(ethylene-co-1-alkene) copolymer (viz., ethylene/1-hexene copolymer, see ¶ [0141]), the method comprising contacting ethylene and at least one 1-alkene (1-hexene) with an effective catalyst under effective gas-phase polymerization conditions (¶ [0141]) so as to give the poly(ethylene-co-1-alkene) copolymer, wherein the effective catalyst is made by contacting a ligand-metal complex of formula (I) (see ¶ [0140] (Table 1) Metal-Ligand Complex CMLC-1 and CMLC-3) under effective activating conditions (see ¶ [0139]) to give the effective catalyst. While it is acknowledged that Baillie I does not characterize the ethylene/1-hexene copolymer in terms of molecular weight comonomer distribution index (MWCDI), the reference teaches the same method steps using species of the same ligand-metal complex as claimed. Therefore, the claimed MWCDI is reasonably presumed to implicitly result from practice of the method described in Baillie I. Thus, there is a plausible basis for finding, prima facie, that the reference process falls within the scope of present claim 1. Accordingly, there is sufficient evidence in the record to justify shifting the burden to the Applicant to show otherwise as per In re Spada, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990).
Regarding Claim 2, Baillie I discloses, at least implicitly, the method of claim 1 as discussed above. Baillie I further discloses wherein the ligand-metal complex has at least one of features (I) to (vii), specifically: (i) L is CH2CH2CH2; (iii) M is hafnium; and (vii) each X is unsubstituted (C1-C8) alkyl or benzyl (viz., Me, see Table 1, Metal-Ligand Complex CMLC-1 and CMLC-3).
Regarding Claims 3/4, Baillie I discloses, at least implicitly, the method of claim 1 as discussed above. Baillie I further discloses wherein the ligand-metal complex is selected from complex (1) and complex (2), specifically complex (1) (see ¶ [0140] (Table 1) Metal-Ligand Complex CMLC-1 and CMLC-3).
Regarding Claim 6, Baillie I discloses, at least implicitly, the method of claim 1 as discussed above. Baillie I further discloses the method having both features (i) and (ii): (i) the activator is an alkylaluminoxane; (ii) the effective catalyst is a supported catalyst that comprises the effective catalyst and a support material that is a solid particulate effective for hosting the ligand-metal complex of formula (I) and its active product, wherein the effective catalyst is disposed on the support material (see ¶ [0139]).
Regarding Claim 7, Baillie I discloses, at least implicitly, the method of claim 1 as discussed above. Baillie I further discloses the method wherein the effective catalyst is a spray-dried effective catalyst made by spray-drying a mixture of a hydrophobic fumed silica (see ¶¶ [0067], [0139]), activator, and the ligand-metal complex of formula (I) from an inert hydrocarbon solvent so as to give the effective catalyst as a spray-dried supported catalyst (see ¶ [0139]).
Regarding Claim 8, Baillie I discloses, at least implicitly, the method of claim 1 as discussed above. Baillie I further discloses the method wherein consists essentially of using the effective catalyst as the only catalyst in a single polymerization reactor under effective steady-state gas-phase polymerization conditions and the contacting step consists essentially of contacting the ethylene and the at least one 1-alkene with the effective catalyst as the only catalyst in the single polymerization reactor under the effective steady-state gas-phase or slurry-phase polymerization conditions so as to give the poly(ethylene-co-1-alkene) copolymer having a reverse comonomer distribution as a unimodal poly(ethylene-co-1-alkene) copolymer having a reverse comonomer distribution (see ¶¶ [0141] and [0142] (Table 5: Polymer 1, 19)). It is implicit that at least the Polymers 1 and 19 of Baillie I will have a reverse comonomer distribution based on the correspondence in method steps and ligand-metal complex as discussed above with respect to parent claim 1. Further, in view of their similarity in molecular weight distribution (Mw/Mn) to copolymers made with the Applicant’s sd-Cat 1 in gas phase polymerization reactor (cf., Spec., ¶ [00122] (Table 3)), a plausible basis exists to infer that, prima facie, disclosed Polymers 1 and 19 are unimodal as well.
Regarding Claim 11, Baillie I discloses, at least implicitly, the method of claim 1 as discussed above. Baillie I further discloses a step of making the effective catalyst by contacting the ligand-metal complex of formula (I) with the activator under the effective activating conditions to give the effective catalyst (see ¶¶ [0139] and [0140] (Table 1), Metal-Ligand Complex CMLC-1 and CMLC-3).
Regarding Claim 14, Baillie I discloses a spray-dried, supported effective catalyst made by spray-drying a mixture of a hydrophobic fumed silica (see ¶¶ [0067], [0139]), activator, and the ligand-metal complex of formula (I) as described in claim 1 from an inert hydrocarbon solvent so as to give the effective catalyst as a spray-dried supported effective catalyst (see ¶¶ [0139] and [0140] (Table 1), Metal-Ligand Complex CMLC-1 and CMLC-3).
Regarding Claim 15, Baillie I discloses a poly(ethylene-co-1-alkene) copolymer made by the method of claim 1 (see ¶ [0141] (Table 4), Runs 1, 3, 19, 21). It is implicit that the ethylene/1-hexene copolymers made according to said runs will have a reverse comonomer distribution as claimed, based on the correspondence in preparative method steps and ligand-metal complex as discussed above with respect to parent claim 1.
Claim 15 is rejected under 35 U.S.C. 102(a)(2) as anticipated by or, in the alternative, under 35 U.S.C. 103 as obvious over Baillie et al (US 2024/0116969 A1; claiming priority to provisional Application No. 63/147,477, filed 02/09/2021) (hereinafter, ‘Baillie II’).
Regarding Claim 15, Baillie II has already disclosed poly(ethylene-co-1-hexene) copolymer having a MWCDI > 0, namely 0.50, as well as molecular weight parameters (Mn, Mw, Mw/Mn) similar to those reported for poly(ethylene-co-1-alkene) copolymers made according to the present invention (see ¶ [0076] (Table 1), Example 1 and Fig. 1, and cf., Spec., ¶ [00122] (Table 3)). The disclosed copolymer was made using a spray-dried hafnium metallocene composition in a fluidized bed gas phase reactor (see [0074]), and, thus, by means of a catalyst distinct from the effective catalyst used in the present invention. Nevertheless, claim 15 is drawn to a poly(ethylene-co-1-alkene) copolymer product and not its method of preparation. It is well settled that product-by-process claims are not limited to the manipulations of the recited steps, only the structure implied by the steps. “[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. If the product in the product by process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior art product was made by a different process.” (MPEP 2113, quoting In re Thorpe, 227 USPQ 964, 966 (Fed. Cir. 1985)). Instantly, the prior art copolymer and the claimed copolymer appear to be essentially the same, in view of the identity of monomer composition and MWCDI parameter and similarity in molecular weight parameters. Therefore, the burden shifts to Applicant to show that the claimed copolymer is differs substantially from the aforementioned copolymer of Baillie II as a result of the recited method features.
Claim 15 is rejected under 35 U.S.C. 102(a)(1) as anticipated by or, in the alternative, under 35 U.S.C. 103 as obvious over Yang et al (US 8475899 B2) (hereinafter, ‘Yang’).
Regarding Claim 15, Yang has already disclosed poly(ethylene-co-1-hexene) copolymers characterized by a reverse comonomer distribution as determined by SCBD and by molecular weight parameters (Mn, Mw, Mw/Mn) similar to those reported for poly(ethylene-co-1-alkene) copolymers made according to the present invention (see Table IV (cols. 44-45), Examples 20-25; column 42, lines 41-50 and Fig. 9 and cf., Spec., ¶ [00122] (Table 3)). Yang does not report MWCDI; however, since Applicant has defined the expression “reverse comonomer distribution” to mean having a MWCDI > 0 (see, Spec., ¶ [0023]), Yang’s description of copolymers having the same comonomer distribution is considered an implicit teaching of a MWCDI value as claimed. Thus, the disclosed copolymers, although prepared using a metallocene (MET 1) catalyst distinct from the effective catalyst used in the present invention (albeit under slurry polymerization conditions, see col. 41, lines 32-41), would be expected to be identical or substantially the same as the claimed poly(ethylene-co-1-alkene) copolymer. Where, as here, a product-by-process claim is rejected over a prior art product that appears to be identical, although produced by a different process, the burden properly shifts to applicants to come forward with evidence establishing an unobvious difference between the claimed product and the prior art product. In re Marosi, 218 USPQ 195 (Fed. Cir. 1983).
Potentially Allowable Subject Matter
Claims 9, 10 and 12 are objected to as being dependent on a rejected base claim, but would be allowable if rewritten in independent form including all the limitations of the base claim and any intervening claim.
The closest prior art to Baillie I, WO 2014/210333 A1 and WO 2019/133394 A1, discussed above, does not describe the inventions of instant claims 9, 10 and 12, or provide proper rationale to modify any of their respective inventions into the invention of instant claim 9, 10 or 12.
Correspondence
Any inquiry concerning this communication should be directed to Examiner F. M. Teskin whose telephone number is (571) 272-1116. The examiner can normally be reached on Monday through Friday from 9:00 AM - 5:30 PM.
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/FRED M TESKIN/Primary Examiner, Art Unit 1762
/FMTeskin/01-02-26
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