DETAILED ACTION
This Office Action is in response to the Amendment filed on 3/24/2026.
Claims 1-20 are now pending in the application.
The previous double patenting rejections of claims 1-20 are withdrawn in light of the approved terminal disclaimer filed 3/24/2026.
The previous 35 USC 112 rejections of claim(s) 1-3, 8-16 and 19-20 are withdrawn in light of Applicant’s amendment and remarks.
The previous claim objections of claim(s) 1-20 are withdrawn in light of Applicant’s amendment and remarks.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 4-7 and 17-18 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as failing to set forth 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 because:
Use of parentheses in Claims 4-7 and 17-18 – e.g. (yield strength ISO527-2 or ASTM D882), (bending modulus or E-modulus), etc. – renders the scope of the claims indefinite, as it is unclear whether the limitations enclosed in parentheses are optional or required. For the purposes of examination, these limitations will be interpreted as being required.
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 1-10, 16, and 19-20 are rejected under 35 U.S.C. 103 as being unpatentable over US2006/0030667 to Yalvac et al. in view of US2018/0215846 to Kulshreshtha et al. (as found on the IDS dated 9/7/2022) ,US2018/0355138 to Wolschleger, and US2019/0153204 to Rebih.
Regarding Claim 1, 8, and 10, Yalvac teaches a thermoplastic blend (i.e., polyolefin composition) comprising 75-99 wt% of a thermoplastic polyolefin composition that comprises 50-100 wt% of HDPE [0080] therefore the HDPE is reasonably calculated to be in the thermoplastic blend at an amount of 99-37.5 wt%, therefore reading on 60-96 wt% polyolefin (A). Yalvac further discloses that the same embodiment comprises 1-25 wt% of an extender that is an ethylene alpha-olefin interpolymer [0080] wherein extenders are homogeneously branched [0029] and are random [0033] therefore reading on 2-20 wt% of at least one random alpha-olefinic copolymer (B); wherein Yalvac’s compositions can carry large amounts of fillers such as tackifiers in amounts up to 80 wt% [Yalvac, 0083] thereby teaching tackifiers with “sufficient specificity” that one of ordinary skill in the art would arrive at the claimed combination and reasonably reading on at least one tackifier (C). The melt index of such thermoplastic blend compositions is increased by at least 5% relative to the composition, absent the extender [0081] i.e., a melt flow rate increase of about 5 to about 400%.
Yalvac does not particularly teach the amount of tackifier which may be used.
However, Wolschleger teaches preferably 5-7 wt% of tackifier based on the total weight of the composition [Wolschleger 0084]. Wolshleger and Yalvac are analogous art as they are from the same field of endeavor, namely polymer compositions used in the automotive field.
Before the effective filing date of the instantly claimed invention, it would have been obvious to a person of ordinary skill in the art to add Wolschleger’s tackifiers to Yalvac, thereby arriving at the claimed invention.
The motivation to modify Yalvac with Wolschleger is to facilitate a homogeneously mixed composition [Wolschleger 0084].
Yalvac does not teach the polyolefin is recycled and is silent regarding its melt flow rate.
However, Kulshreshtha teaches an HDPE [Kulshreshtha, 0043] that has a melt flow rate of 0.5 to 20 g/10min [Kulshreshtha, 0043] (reasonably reading on an MFR of at least 4 g/10 min) that is preferred to be a recycled material which is recovered from waste plastic material derived from post-consumer and/or post-industrial waste [Kulshreshtha, 0037]. Yalvac and Kulshreshtha are analogous art as they are from the same field of endeavor, namely polypropylene-polyethylene compositions with improved flowability.
Before the effective filing date of the instantly claimed invention, it would have been obvious to a person of ordinary skill in the art to substitute Kulshreshtha with Yalvac, thereby arriving at the claimed invention.
The motivation to modify Yalvac with Kulshreshtha is the demand of using recycled polyolefins has increased because of legal requirements that exist in some segments like automotive applications [Kulshreshtha, 0003]. Furthermore, a person of ordinary skill in the art would readily recognize that recycling plastics is desirable to conserve resources, reduce pollution, and decrease landfill use.
Yalvac in view of Kulshreshtha are silent regarding a recycled polyolefin that is visbroken.
However, Rebih teaches a resin composition comprising polyolefins such as HDPE wherein thermo-mechanical degradation of the polyolefin components occur during compounding causing chain scission and macro-radical fragments [Rebih, 0028] (i.e., visbreaking). Rebih and Yalvac are analogous art as they are from the same field of endeavor, namely resin compositions comprising polyolefins that are used for cable protection.
Before the effective filing date of the instantly claimed invention, it would have been obvious to one of ordinary skill in the art to use Rebih’s visbreaking on Yalvac in view of Kulshreshtha’s recycled polyolefin.
The motivation would have been that have improved mechanical and physical properties such as elongation at break, impact strength, and environmental stress crack resistance [Rebih, 0028].
The amounts of random alpha-olefinic copolymer (1-25 wt%) [Yalvac, 0080] and tackifier (5-7 wt%) [Wolschleger 0084] are used to reasonably calculate the random alpha-olefinic copolymer/tackifier ratio is 0.14 - 5 (i.e., 0.2 – 5.0).
The combination of Yalvac in view of Kulshreshtha, Wolschleger, and Rebih is silent regarding said polyolefin composition having a melt flow rate increase of about 5 to 400% compared to a same polyolefin composition without said random alpha-olefinic copolymer, said tackifier, and said additional polymer. Consequently, the Office recognizes that all of the claimed effects or physical properties are not positively stated by the reference(s). However, Yalvac in view of Kulshreshtha and Wolschleger, when modified in the manner proposed above, teaches a product prepared from all of the claimed ingredients in the claimed amounts by a substantially similar process such as extruding [Yalvac, 0113]. Therefore, the claimed effects and physical properties - i.e. melt flow rate increase of about 5 to 400% - would implicitly be achieved in a product prepared from all of the claimed ingredients in the claimed amounts by a substantially similar process. See In Re Spada, 911, F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990) and MPEP 2111.01 (I)(II). If it is 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 as to how to obtain the claimed properties in a product prepared from all of the claimed ingredients in the claimed amounts by a substantially similar process.
Regarding Claims 2, and 3, Yalvac in view of Kulshreshtha, Wolschleger, and Rebih teaches the polyolefin composition of claim 1, comprising HDPE as an ethylene homopolymer [Kulshreshtha, 0043] that is recycled [Kulshreshtha, 0037] reading on the recycled polyolefin (A) comprises ethylene polymer that is a polyethylene homopolymer.
Regarding Claims 4-7, Yalvac in view of Kulshreshtha, Wolschleger, and Rebih teaches the polyolefin composition of claim 1, as set forth above and incorporated herein by reference.
Yalvac in view of Kulshreshtha and Wolschleger does not expressly teach a spiral flow increase of about 5 to about 200%, melt viscosity increase of about 5 to about 200%, elongation at break increase of 5 to about 590%, or retaining acceptably mechanical properties of the composition. Consequently, the Office recognizes that all of the claimed effects or physical properties are not positively stated by the reference(s). However, Yalvac when modified by Kulshreshtha, Wolschleger, and Rebih in the manner proposed above, teaches a product prepared from all of the claimed ingredients in the claimed amounts by a substantially similar process. Therefore, the claimed effects and physical properties - i.e. spiral flow increase, melt viscosity increase, elongation at break increase, or retaining acceptable mechanical properties - would implicitly be achieved in a product prepared from all of the claimed ingredients in the claimed amounts by a substantially similar process. See In Re Spada, 911, F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990) and MPEP 2111.01 (I)(II). If it is 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 as to how to obtain the claimed properties in a product prepared from all of the claimed ingredients in the claimed amounts by a substantially similar process.
Regarding Claim 9, Yalvac in view of Kulshreshtha, Wolschleger, and Rebih teaches the polyolefin composition of claim 1, wherein the recycled material [Kulshreshtha, 0037] of polypropylene (A1) [Kulshreshtha, 0036] can comprise 0.05 to 20 wt% of polymerized 1-butene [Kulshreshtha 0038] thus reasonably reading on 0.1-86% impurities such as other polymers e.g., polybutene-1 as set forth in instant specification [0058].
Though the prior art range is not identical to the claimed range (0.1-86%), it does overlap. It has been held that, 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 USPG 90 (CCPA 1976) (MPEP 2144.05).
Regarding Claim 16, Yalvac in view of Kulshreshtha and Wolschleger teaches the polyolefin composition of claim 1, comprising one or more fillers and/or additives [Yalvac, 0083].
Regarding Claims 19 and 20, Yalvac in view of Kulshreshtha and Wolschleger teaches the polyolefin composition of claim 1 that is a fabricated article, preferably in the form of a film [Yalvac, 0015].
Claims 11-15 and 17-18 are rejected under 35 U.S.C. 103 as being unpatentable over Yalvac et al. in view of Kulshreshtha et al. ,Wolschleger, and Rebih as applied to Claim 1 above, and in further view of US2019/0382630 to Zhou et al.
Regarding Claims 11-13, Yalvac in view of Kulshreshtha, Wolschleger, and Rebih teaches the polyolefin composition of claim 1, as set forth and incorporated herein by reference.
Yalvac in view of Kulshreshtha, Wolschleger, and Rebih is silent regarding an amorphous propylene-ethylene copolymer with a number average molecular weight equal to or below 25,000 g/mol and/or a glass transition equal to or below -10°C.
However, Zhou teaches compositions and articles [Zhou, title] comprising an amorphous alpha olefin copolymer [Zhou, 0024] with a Tg no greater than -10°C [Zhou, 0025]. Zhou teaches the amorphous alpha-olefin copolymer is AERAFIN 17 [Zhou, 0029] which is the same commercially available amorphous polyolefin in instant application [00224] therefore it is reasonably expected that the addition of AERAFIN 17 reads on all limitations of claim 11-13. Yalvac and Zhou are analogous art as they are from the same field of endeavor, namely compositions comprising random alpha-olefinic copolymers.
Before the effective filing date of the instantly claimed invention, it would have been obvious to a person of ordinary skill in the art to use Zhou’s low Tg alpha olefin copolymer in place of Yalvac’s random alpha-olefinic copolymer, thereby arriving at the claimed invention.
The motivation would have been that amorphous alpha olefins are more tacky than semi-crystalline polymers [Zhou, 0003]. Furthermore, one of ordinary skill in the art would readily recognize that using a copolymer with a lower Tg in a blend will reduce the blends’ Tg, therefore increasing the melt flow rate and reducing viscosity, which is an interest of Yalvac [0008].
Regarding Claim 14 and 15, Yalvac in view of Kulshreshtha, Wolschleger, and Rebih teaches the polyolefin composition of claim 1, as set forth and incorporated herein by reference.
Yalvac in view of Kulshreshtha, Wolschleger, and Rebih do not particularly teach the tackifier is selected from the group of claim 14, or the tackifier has a ring and ball softening point of above 70°C
However, Zhou teaches tackifying agents [Zhou, 0050] with a ring and ball softening point of less than 140°C [0051] that are cycloaliphatic hydrocarbons [0051].
Before the effective filing date of the instantly claimed invention, it would have been obvious to a person of ordinary skill in the art to use Zhou’s tackifier in place of Yalvac’s tackifier, thereby arriving at the claimed invention.
The motivation would have been that it has been held that it is obvious to select a known material based on its suitability for its intended use. See Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945); In re Leshin, 277 F.2d 197, 125 USPQ 416 (CCPA 1960); and MPEP 2144.07. In the instant case, Zhou shows that a cycloaliphatic hydrocarbon resin with a ring and ball softening point of less than 140°C is known in the art to be a useful tackifying agent [0051] suitable for use in compositions comprising propylene and alpha-olefins [abstract].
Regarding Claim 17, Yalvac in view of Kulshreshtha, Wolschleger, and Rebih teaches the polyolefin composition of claim 1, wherein the tackifier (C) has a melting point between 100°C and 12°C [Wolschleger, 0084]. One of ordinary skill in the art knows a melting point is always higher than a glass transition temperature, as such, a melting point between 100°C and 12° reads on a glass transition temperature above 25°C.
Yalvac in view of Kulshreshtha, Wolschleger, and Rebih regarding an amorphous propylene-ethylene copolymer with a glass transition equal to or below -10°C.
However, Zhou teaches compositions and articles [Zhou, title] comprising an amorphous alpha olefin copolymer [Zhou, 0024] with a Tg no greater than -10°C [Zhou, 0025]. Zhou teaches the amorphous alpha-olefin copolymer is AERAFIN 17 [Zhou, 0029] which is the same commercially available amorphous polyolefin in instant application [00224] therefore it is reasonably expected that the addition of AERAFIN 17 reads on all limitations of claim 11-13. Yalvac and Zhou are analogous art as they are from the same field of endeavor, namely compositions comprising random alpha-olefinic copolymers.
Before the effective filing date of the instantly claimed invention, it would have been obvious to a person of ordinary skill in the art to use Zhou’s low Tg alpha olefin copolymer in place of Yalvac’s random alpha-olefinic copolymer, thereby arriving at the claimed invention.
The motivation would have been that amorphous alpha olefins are more tacky than semi-crystalline polymers [Zhou, 0003]. Furthermore, one of ordinary skill in the art would readily recognize that using a copolymer with a lower Tg in a blend will reduce the blends’ Tg, therefore increasing the melt flow rate and reducing viscosity, which is an interest of Yalvac [0008].
Yalvac in view of Kulshreshtha, Wolschleger, and Rebih does not teach an MFR increase of about 5 to about 400% compared to the same polyolefin composition without the random alpha-olefinic copolymer and tackifier and the polyolefin composition maintains acceptable mechanical proprieties. Consequently, the Office recognizes that all of the claimed effects or physical properties are not positively stated by the reference(s). However, Yalvac in view of Kulshreshtha and Wolschleger, when modified in the manner proposed above, teaches a product prepared from all of the claimed ingredients in the claimed amounts by a substantially similar process. Therefore, the claimed effects and physical properties - i.e. MFR increase and acceptable mechanical properties - would implicitly be achieved in a product prepared from all of the claimed ingredients in the claimed amounts by a substantially similar process. See In Re Spada, 911, F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990) and MPEP 2111.01 (I)(II). If it is 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 as to how to obtain the claimed properties in a product prepared from all of the claimed ingredients in the claimed amounts by a substantially similar process.
Regarding Claim 18, Yalvac in view of Kulshreshtha, Wolschleger, and Rebih teaches the polyolefin composition of claim 1, comprising HDPE as an ethylene homopolymer [Kulshreshtha, 0043] that is recycled [Kulshreshtha, 0037] reading on polyethylene-rich recycled polyolefin, wherein the tackifier (C) has a melting point between 100°C and 12°C [Wolschleger, 0084]. One of ordinary skill in the art knows a melting point is always higher than a glass transition temperature. As such, a melting point between 100°C and 12° reads on a glass transition temperature above 25°C.
Yalvac in view of Kulshreshtha, Wolschleger, and Rebih is silent regarding an amorphous propylene-ethylene copolymer with a glass transition equal to or below -10°C.
However, Zhou teaches compositions and articles [Zhou, title] comprising an amorphous alpha olefin copolymer [Zhou, 0024] with a Tg no greater than -10°C [Zhou, 0025]. Zhou teaches the amorphous alpha-olefin copolymer is AERAFIN 17 [Zhou, 0029] which is the same commercially available amorphous polyolefin in instant application [00224] therefore it is reasonably expected that the addition of AERAFIN 17 reads on all limitations of claim 11-13. Yalvac and Zhou are analogous art as they are from the same field of endeavor, namely compositions comprising random alpha-olefinic copolymers.
Before the effective filing date of the instantly claimed invention, it would have been obvious to a person of ordinary skill in the art to use Zhou’s low Tg alpha olefin copolymer in place of Yalvac’s random alpha-olefinic copolymer, thereby arriving at the claimed invention.
The motivation would have been that amorphous alpha olefins are more tacky than semi-crystalline polymers [Zhou, 0003]. Furthermore, one of ordinary skill in the art would readily recognize that using a copolymer with a lower Tg in a blend will reduce the blends’ Tg, therefore increasing the melt flow rate and reducing viscosity, which is an interest of Yalvac [0008].
Yalvac in view of Kulshreshtha, Wolschleger, and Rebih does not teach an MFR increase of about 5 to about 400% or an elongation at break increase of about 5 to about 590% compared to the same polyolefin composition without the random alpha-olefinic copolymer and tackifier and the polyolefin composition maintains acceptable mechanical proprieties. Consequently, the Office recognizes that all of the claimed effects or physical properties are not positively stated by the reference(s). However, Yalvac in view of Kulshreshtha and Wolschleger, when modified in the manner proposed above, teaches a product prepared from all of the claimed ingredients in the claimed amounts by a substantially similar process. Therefore, the claimed effects and physical properties - i.e. MFR increase, elongation at break, and acceptable mechanical properties - would implicitly be achieved in a product prepared from all of the claimed ingredients in the claimed amounts by a substantially similar process. See In Re Spada, 911, F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990) and MPEP 2111.01 (I)(II). If it is 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 as to how to obtain the claimed properties in a product prepared from all of the claimed ingredients in the claimed amounts by a substantially similar process.
Terminal Disclaimer
The terminal disclaimer filed on 3/24/2026 disclaiming the terminal portion of any patent granted on this application which would extend beyond the expiration date of 6/7/2023 has been reviewed and is accepted. The terminal disclaimer has been recorded.
Response to Arguments
Applicant's arguments filed 3/24/2026 have been fully considered but they are not persuasive.
Applicant states the prior art does not teach the newly amended claim 1 comprising the limitation of “wherein said at least one recycled polyolefin is a visbroken recycled polyolefin with an MFR of at least 4 g/10 min.
In response, attention is drawn to the updated rejection as set forth above wherein Yalvac in view of Kulshreshtha, Wolschleger, and Rebih teach all components of claim 1.
For these reasons, Applicant's arguments are not persuasive.
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DEVIN MITCHELL DARLING whose telephone number is (703)756-5411. The examiner can normally be reached Monday - Friday 7:30am - 5:00pm.
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/DEVIN MITCHELL DARLING/Examiner, Art Unit 1764
/ARRIE L REUTHER/Supervisory Primary Examiner, Art Unit 1764
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