,, 19DETAILED 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 § 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.
Claim 8 is rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim 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. The claim recites, “e.g., poly 3-hydroxypropionate,” “e.g., poly 4-hydroxybutyrate,” and “e.g., poly 5-hydroxyvalerate,” the phrases renders the claim indefinite because it is unclear whether the limitation(s) following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Claim 16 is rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim 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. The claim recites, “recommend including di-(tert-butylperoxyisopropyl)benzene (Vulcup®) and combinations and mixtures,” the phrase “recommend including” which renders the claim to be indefinite because it is unclear to what extent the more preferred language further limits the less preferred language.
Furthermore, the claim recites tradename “Vulcup ®” where a trademark or trade name is used in a claim as a limitation to identify or describe a particular material or product, the claim does not comply with the requirements of 35 U.S.C. 112, second paragraph. See Ex Parte Simpson, 218 USPQ 1020 (Bd. App. 1982). The claim scope is uncertain since the trademark or trade name cannot be used properly to identify any particular material or product. A trademark or trade name is used to identify a source of goods, and not the goods themselves. Thus, a trademark or trade name does not identify or describe the goods associated with the trademark or trade name. In the present case, the trademark/trade name is used to identify/describe a claimed product and, accordingly, the identification/description is indefinite.
Claim Rejections - 35 USC § 102
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.
Claims 1, 2, 6, 8, 10, 14-16 and 19 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by CHUTAMAS et al. (Publication entitled: Improving Mechanical Properties of Poly-β-Hydroxybutyrate-co-β-Hydroxyvalerate by Blending with Natural Rubber and Epoxidized Rubber, hereinafter CHUTAMAS).
Regarding claims 1, 2, 6, 8, and 14-16, CHUTAMAS teaches blending polyhydroxyalkanoates (PHAs) such as PHBV (Poly-β-Hydroxybutyrate-co-β-Hydroxyvalerate), natural rubber (NR), BPO (benzoyl peroxide), and compatibilizer (i.e., maleic anhydride) (Introduction (p. 179) and Materials and Method (p. 180)). The ratio of NR/PHBV is 10/90 or 20/80 or 30/70 (Results and discussion (p. 180)). Note: BPO (benzoyl peroxide) reads on a branching agent as claimed.
Regarding claim 10, CHUTAMAS teaches the blend of NR/PHBV are injection molded (p. 180) which inherently produce a durable injection molded plastic as claimed.
Regarding claim 19, CHUTAMAS teaches the blend comprises natural rubber as discussed in paragraph 7 above.
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)(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.
Claim 1, 2, 7, 8, 10-12, 14-17, 19, 21 and 23 are rejected under 35 U.S.C. 102(a)(2) as being anticipated by WO 2020/118303 (hereinafter, OH).
Regarding claims 1, 2, 8, 10, 11, 14-17, 19, 21 and 23, OH teaches compositions comprise a blend of polyhydroxyalkanoate (PHA) polymer and a rubber polymer. The blend can comprise a biphasic mixture comprising a first phase comprising the PHA polymer and a second phase comprising the rubber polymer dispersed with the first phase (Abstract; p. 1, lines 27-30; Claim 1). The composition further comprises an additive including compatibilizer, antioxidant, stabilizer, and etc. (p. 2, lines 28-31). The composition further comprises pigments (p. 23, lines 9-11). The composition can include one or more plasticizers (p. 23, lines 25-26) such as epoxidized soy bean oil (p. 24. Lines 16-17) and plant oils (p. 24, line 17). The composition can include one or more surfactants such as castor oil (p. 24, lines 21-24). Note: the plasticizer and the surfactant satisfies the claimed compatibilizer.
The PHA polymer can comprise poly(3-hydroxybutyrate-co-3-hydroxyvalerate (p.2, lines 3-13; p. 9, lines 23-29) and the rubber polymer can comprise diene rubber including natural rubber (p. 2, lines 21-24; p. 19, lines 11-18; Claim 1).
The blend can be formed by melting the polyhydroxyalkanoate polymer and the rubber polymer in the presence of a free radical initiator including peroxide such as 2,5-dimethyl-2,5-di(t-butyl peroxide) hexane, 2,5-bis(t-butylperoxy)-2,5-dimethylhexane, and etc. (p. 2, line 32 to p. 3, line 15).
The polymeric composition can be processed using standard methods (i.e., extrusion, injection molding, compression molding, blowing or blow molding, thermoforming, and etc. (p. 30, lines 17-21)) to produce a variety of articles including films (e.g., packaging, agricultural, mulch, erosion control , hay bale wrap, slit film, food wrap, pallet wrap, protective automobile and appliance wrap) (p. 31, lines 19-24); packaging and containers for food and beverage products (p. 31, line 28); thermoformed products (p. 31, line 31).
Regarding claims 7 and 12, OH teaches compositions comprise a blend of polyhydroxyalkanoate (PHA) polymer and a rubber polymer. The PHA polymer can comprise poly(3-hydroxybutyrate-co-3-hydroxyvalerate (p.2, lines 3-13; p. 9, lines 23-29) and the rubber polymer can comprise diene rubber including natural rubber (p. 2, lines 21-24; p. 19, lines 11-18; Claim 1). The compositions produce packaging and containers for food and beverage products (p. 31, line 28). The position is taken that the PHA polymer and natural rubber would inherently be food grade biopolymers when producing packaging/containers for food and beverage products.
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 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 non-obviousness.
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 1-6, 8-11, 14-17, 19, 21, 23, and 24 are rejected under 35 U.S.C. 103 as being unpatentable over LI et al. (U.S. Publication No. 2011/0135863, hereinafter LI) in view of ZHANG et al. (Original Paper entitled Enhanced ductility of polylactide materials: Reactive blending with pre-hot sheared natural rubber, hereinafter ZHANG).
Regarding claims 1, 2, 14-17, 19, 21, and 23, LI teaches thermoformable composite comprises from about 5% to about 95% by weight of polylactic acid (PLA), from about 5% to about 95% by weight of polyhydroxyalkanoate (PHA) polymer, and from about 0.01% to about 60% additives (Abstract; [0051-0054]). The composition further comprises compatibilizer including polyolefins, polybutadienes, polystyrenes, and etc. modified with maleic anhydride, citrates of fatty acids , glycerol esters, and etc. The amount of compatibilizer is in the amount from about 0.05 to about 10% by weight [0047]. The composite can include nucleating agents [0051], stabilizers [0051], and benzoyl peroxide [0066] (which is a well-known organic peroxide).
The thermoformable composite is used to make a food or beverage cup, lid, cutlery item, food service item, molded tray, or food storage container (Abstract; [0055]).
However, LI does not teach a biodegradable polymer composition comprising an elastomer.
ZHANG teaches the blend of polylactide (PLA) with natural rubber (NR) which would form a polylactide natural rubber and exhibits a great increase in toughness (p. 6), mechanical properties (p. 2; Table 1), and rheological properties (p. 2).
It would have been obvious to a person of ordinary skill in the art to have provided/substituted the polylactic acid of LI with the blend of polylactide (PLA) with natural rubber of ZHANG for the benefit of exhibiting an increase in toughness, mechanical properties, and rheological properties as taught by ZHANG.
Regarding claims 3-6, as discussed in paragraph 18 above, LI teaches thermoformable composite comprises from about 5% to about 95% by weight of polylactic acid (PLA), from about 5% to about 95% by weight of polyhydroxyalkanoate (PHA) polymer. The amount of compatibilizer is in the amount from about 0.05 to about 10% by weight [0047].
It would have been obvious to one of ordinary skill in the art at the time the invention was made to select the portion of the prior art's range which is within the range of applicant's claims because it has been held to be obvious to select a value in a known range by optimization for the best results. As to optimization results, a patent will not be granted based upon the optimization of result effective variables when the optimization is obtained through routine experimentation unless there is a showing of unexpected results which properly rebuts the prima facie case of obviousness. See In re Boesch, 627 F.2d 272,276,205 USPQ 215,219 (CCPA 1980). See also In re Woodruff 919 F.2d 1575, 1578,16 USPQ2d 1934, 1936-37 (Fed. Cir. 1990), and In re AIIer, 220 F.2d 454,456,105 USPQ 233,235 (CCPA 1955).
Regarding claim 8, LI teaches the composite comprises polyhydroxyalkanoate (PHA) polymers including poly-beta-hydroxy-butyrate (PHB), polyhydroxybutyrate-valerate (PHBV), and etc. [0034].
Regarding claims 9-11, LI teaches the composite comprises biodegradable polymers (PHA and PLA) [0002] which forms biodegradable products (Abstract; [0055]). The composite products can be used in thermoforming, injection molding, and extrusion coating [0007].
Regarding claim 24, as discussed in paragraphs 18-21 above. The composite further comprises a heat-resistant polymer/thermoplastic including polyurethanes [0041 and 0045].
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DEVE V HALL whose telephone number is (571)270-7738. The examiner can normally be reached M-F, 9 am-5 pm, EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Joseph Del Sole can be reached at (571) 272-1130. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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DEVE V. HALL
Primary Examiner
Art Unit 1763
/DEVE V HALL/Primary Examiner, Art Unit 1763