DETAILED ACTION
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 7/21/2026 has been entered.
Claims 1, 3, 5-8, 10-11, 13-14, and 17-20 are now pending in the application.
Claim Objections
Claim 13 is objected to because of the following informalities: Claim 1 states “glass transition equal or below”. It is requested “glass transition” is changed to “glass transition temperature” for clarity.
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 6, 8, 14, and 17 – e.g. (notched impact strength ISO179-1), (ISO180), 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 not being required.
Claim 10 sets forth a percentage but do not specify the type (weight%, volume%, mole%, ect.). For purposes of examination the percentage will be interpreted is weight %.
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, 3, 5-8, 10-11, 13-14, and 17-20 are rejected under 35 U.S.C. 103 as being unpatentable over US2019/0136100 to Tran et al. in view of US2020/0377716 to Kauffman et al.
Regarding Claim(s) 1, 3, 11, and 13, Tran teaches a hot melt adhesive composition [0040] comprising 10-100 wt% of a visbroken polyethylene copolymer [0041] that is recycled [0141] (reading on all limitations of component (A) in claims 1); one or more tackifiers [0043] such as polyterpene resins having a softening point of from 10-140°C [0163], preferably above 70°C [0166] (i.e., terpene resins with glass transition temperature above 25°C, therefore reading on limitations of component (C) of claim 1); and 0-60 wt% of plasticizer [0172] such as polypropylene [0171] (reading on 1-60 wt% (D) of virgin PP homopolymer of claims 1 and 3). Tran further teaches teaches the the starting polymer (before visbreaking) has an MFR of 1-100 g/10 min [0028] and it is preferred if the final MFR of the visbroken polymer has an MFR at least 3 times higher than the MFR of the starting polymer [0029]. As such, it is reasonably calculated that the visbroken recycled polyolefin has a MFR of 3-300 g/10 min, thereby reading on an MFR of at least 4 of claim 1 and and MFR of 0.1-10 g/10 min of claim 11.
Tran does not particularly teach component (B) that is an amorphous polypropylene-ethylene copolymer comprising at least 60 weight percent of propylene, and is further silent on the claimed amount of 2-20 wt% of (B) and further silent still on the claimed molecular weight or glass transition temperature specified in claim 13.
However, Kauffman teaches a hot melt composition [Kauffman, title] comprising 5-40 wt% of a propylene-based polymer [Kauffman, 0057] such as AERAFIN 17 propylene ethylene copolymer [Kauffman, 0058] which is the same commercially available amorphous polyolefin in instant application [0069] therefore it is reasonably expected that the addition of AERAFIN 17 reads on all limitations of component (B) of claim 1 and claim 13. Tran and Kauffman are analogous art as they are from the same field of endeavor, namely hot melt compositions comprising random alpha-olefinic copolymers and tackifiers.
Before the effective filing date of the instantly claimed invention, it would have been obvious to one of ordinary skill in the art to add Kauffman’s random alpha-olefinic copolymer to Tran’s hot melt composition.
The motivation would have been that the propylene-based polymer is added to hot melt compositions in order to help adhere two substrates together [Kauffman ,0051].
The combination of Tran and Kauffman teachs 5-40wt% of alpha-olefinic copolymer (B) [Kauffman, 0057] and 10-70 wt% tackifiers (C) [Tran, 0176] thereby meeting the limitation of the (B)/(C) ratio of 0.2-5.0.
The combination of Tran and Kauffman 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 at least one additional polymer. Consequently, the Office recognizes that all of the claimed effects or physical properties are not positively stated by the reference(s). However, Tran in view of Kauffman, 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 [Tran, 0196]. 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 Claim(s) 5-8, and 17, Tran in view of Kauffman teaches the polyolefin composition of claim 1, as set forth above and incorporated herein by reference.
Tran in view of Kauffman is silent regarding the polyolefin composition shows a spiral follow increase (claim 5), a melt viscosity increase (claim 6), an elongation at yield increase (claim 7), and retaining at least 80% of at least acceptable mechanical property (claims 6, 8, and 17) compared to the same polyolefin composition without said at least one random alpha-olefinic copolymer, at least one tackifier, and at least one additional polymer.
Consequently, the Office recognizes that all of the claimed effects or physical properties are not positively stated by the reference(s). However, Tran in view of Kauffman, 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 [Tran, 0196]. Therefore, the claimed effects and physical properties of claims 5-8 and 17 as mentioned above 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 10, Tran in view of Kauffman teaches the polyolefin composition of claim 1, wherein the final polymer can have minor amounts of additives [Tran, 0144] thereby reasonably reading on 0.1-86% impurities such as additives.
Regarding Claim 14, Tran in view of Kauffman teaches the polyolefin composition of claim 1, as set forth above and incorporated herein by reference.
Tran in view of Kauffman is silent regarding that the polyolefin composition is first prepared as a masterbatch using a carrier polymer such as the at least one recycled polyolefin .
However, the recitation "are first prepared as a masterbatch", is considered a product-by-process claim. Case law has held that the process does not determine patentability, because the claim is drawn to the product (polyolefin composition). "[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. 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 product was made by a different process." (In re Thorpe, 227 USPQ 964,966). Once the Examiner provides a rationale tending to show that the claimed product appears to be the same or similar to that of the prior art, although produced by a different process, the burden shifts to applicant to come forward with evidence establishing an unobvious different between the claimed product and the prior art product. In re Marosi, 710 F.2d 798, 802, 218 USPQ 289, 292 (Fed. Cir. 1983), MPEP 2113.
Tran in view of Kauffman is silent regarding the polyolefin composition retains at least 80% of at least acceptable mechanical property compared to the same polyolefin composition without said at least one random alpha-olefinic copolymer, at least one tackifier, and at least one additional polymer.
Consequently, the Office recognizes that all of the claimed effects or physical properties are not positively stated by the reference(s). However, Tran in view of Kauffman, 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 [Tran, 0196]. Therefore, the claimed effects and physical properties of at least 80% of 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(s) 18, Tran in view of Kauffman teaches the polyolefin composition of claim 1, further comprising various additives such as a stabilizer and fine particle filler [0179].
Regarding Claim(s) 19-20, Tran in view of Kauffman teaches the polyolefin composition of claim 1, used in diapers and footwear [0002] (i.e., healthcare parts and footwear components of claim 20)
Response to Arguments
Applicant's arguments filed 7/21/2026 have been fully considered but they are not persuasive.
Applicant states Yalvac, Kulshreshtha, Wolshleger, Rebih and Zhou do not teach the newly amended claim 1 individually or in combination.
In response, Applicant’s arguments with respect to claim(s) 1, 3, 5-8, 10-11, 13-14, and 17-20, have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Attention is drawn to the updated rejection of claims 1-7, 14, and 16-20 over Tran in view of Kauffman and the updated rejection of claims 8-10 over Tran in view of Kauffman and Kulshreshtha.
Furthermore Applicant states the newly claimed combination yields unexpected results by comparing the data in instant application table 3 displays the combination of amorphous propylene ethylene copolymer and tackifier achieved simultaneous improvement in MFR, tensile strength at yield, and charpy impact strength.
In response, it is noted that these results are not unexpected, as the individual addition of component (B) [table 3, comparative example 3] and the individual addition of component (C) [table 3, comparative example 5] both show an increase in MFR, similar yield strength, and slightly reduced charpy impact strength. Therefore it is expected to show similar results when combined, as seen in inventive example 2.
Moreover, this data is not commensurate in scope with the claim language. For example, the language is drawn to a polymer composition comprising any recycled polyolefin, any random alpha-olefinic copolymer and any tackifier as defined in claim 1 wherein inventive examples specifically comprise only one PCR PE, Aerafin 17 alpha-olefininc copolymer, and Plastolyn tackifier. As such, there is no evidence that any recycled polyolefin of claim 1, alpha-olefinic copolymer of claim 1, and tackifier of claim 1 would have the same unexpected results. Furthermore, these components are tested is much more narrow ranges as opposed to the large ranges set forth in instant claim 1.
Conclusion
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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