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 .
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.
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 1-16 are 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.
Claim 1 recites the limitation "the ethylene homopolymer component A" in line 5. There is insufficient antecedent basis for this limitation in the claim. Claim 1 previously recites the limitation of an ethylene polymer component A (see line 3), not an ethylene homopolymer component A as recited in line 5. It is therefore unclear whether the limitation "the ethylene homopolymer component A" in line 5 is intended to refer back to component A recited in line 3-which would require it to be a homopolymer- or if it is intended to refer to some other component. If the components A recited in lines 3 and 5 are intended to be the same polymer, it is suggested that applicant amend the claim so that consistent terminology is used to refer to component A.
Claims 2-16 depend from claim 1 and do not correct this deficiency. The claims are therefore indefinite per the same rationale as claim 1.
Additionally, the examiner notes that dependent claims 3 and 6 both recite the phrase “the ethylene polymer component A”. Should applicant amend claim 1 to overcome the rejection above, it is therefore suggested that applicant also amend claims 3 and 6 if needed to be consistent with the terminology in the independent claim.
Claim 3 recites the limitation "the ethylene polymer according to claim 1" in line 1. There is insufficient antecedent basis for this limitation in the claim. The invention of independent claim 1 is defined using the phrase “An ethylene copolymer”, not an ethylene polymer. It is suggested that applicant amend the claim to state the ethylene copolymer according to claim 1.
Claim 4 recites the limitation "the ethylene polymer according to claim 1" in line 1. There is insufficient antecedent basis for this limitation in the claim. The invention of independent claim 1 is defined using the phrase “An ethylene copolymer”, not an ethylene polymer. It is suggested that applicant amend the claim to state the ethylene copolymer according to claim 1.
Claim 5 recites the limitation "the ethylene polymer according to claim 1" in line 1. There is insufficient antecedent basis for this limitation in the claim. The invention of independent claim 1 is defined using the phrase “An ethylene copolymer”, not an ethylene polymer. It is suggested that applicant amend the claim to state the ethylene copolymer according to claim 1.
Claim 6 recites the limitation "the ethylene polymer according to claim 1" in line 1. There is insufficient antecedent basis for this limitation in the claim. The invention of independent claim 1 is defined using the phrase “An ethylene copolymer”, not an ethylene polymer. It is suggested that applicant amend the claim to state the ethylene copolymer according to claim 1.
Claim 7 recites the limitation "the ethylene polymer according to claim 1" in line 1. There is insufficient antecedent basis for this limitation in the claim. The invention of independent claim 1 is defined using the phrase “An ethylene copolymer”, not an ethylene polymer. It is suggested that applicant amend the claim to state the ethylene copolymer according to claim 1.
Claim 8 recites the limitation "the ethylene polymer according to claim 1" in line 1. There is insufficient antecedent basis for this limitation in the claim. The invention of independent claim 1 is defined using the phrase “An ethylene copolymer”, not an ethylene polymer. It is suggested that applicant amend the claim to state the ethylene copolymer according to claim 1.
Claim 9 recites the limitation "the ethylene polymer according to claim 1" in line 1. There is insufficient antecedent basis for this limitation in the claim. The invention of independent claim 1 is defined using the phrase “An ethylene copolymer”, not an ethylene polymer. It is suggested that applicant amend the claim to state the ethylene copolymer according to claim 1.
Claim 10 recites the limitation "the ethylene polymer according to claim 1" in line 1. There is insufficient antecedent basis for this limitation in the claim. The invention of independent claim 1 is defined using the phrase “An ethylene copolymer”, not an ethylene polymer. It is suggested that applicant amend the claim to state the ethylene copolymer according to claim 1.
Claim 11 recites the limitation "the ethylene polymer according to claim 1" in lines 1-2. There is insufficient antecedent basis for this limitation in the claim. The invention of independent claim 1 is defined using the phrase “An ethylene copolymer”, not an ethylene polymer. It is suggested that applicant amend the claim to state the ethylene copolymer according to claim 1.
Claim 13 depends from claim 11 and does not correct this deficiency. The claim is therefore indefinite per the same rationale as claim 11.
Claim 12 recites the limitation "the ethylene polymer according to claim 1" in lines 1-2. There is insufficient antecedent basis for this limitation in the claim. The invention of independent claim 1 is defined using the phrase “An ethylene copolymer”, not an ethylene polymer. It is suggested that applicant amend the claim to state the ethylene copolymer according to claim 1.
Claim 14 recites the limitation "the ethylene polymer according to claim 1" in line 1. There is insufficient antecedent basis for this limitation in the claim. The invention of independent claim 1 is defined using the phrase “An ethylene copolymer”, not an ethylene polymer. It is suggested that applicant amend the claim to state the ethylene copolymer according to claim 1.
Claim 15 recites the limitation "the ethylene polymer according to claim 1" in line 1. There is insufficient antecedent basis for this limitation in the claim. The invention of independent claim 1 is defined using the phrase “An ethylene copolymer”, not an ethylene polymer. It is suggested that applicant amend the claim to state the ethylene copolymer according to claim 1.
Claim 16 recites the limitation "the ethylene polymer according to claim 1" in line 1. There is insufficient antecedent basis for this limitation in the claim. The invention of independent claim 1 is defined using the phrase “An ethylene copolymer”, not an ethylene polymer. It is suggested that applicant amend the claim to state the ethylene copolymer according to claim 1.
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 nonobviousness.
Claim(s) 1-9, 11, 12, and 14-15 are rejected under 35 U.S.C. 103 as being unpatentable over Helland et al, EP2930205.
Helland discloses a polyethylene, corresponding to the claimed ethylene copolymer (for claim 1), comprising a low molecular weight (LMW) ethylene polymer, a first high molecular weight (HMW) ethylene polymer, and a second HMW ethylene polymer (abstract, ¶0047) which is used in the production of pipes, corresponding to the claimed article (for claim 15) (¶0001, 0281-0282). Said polyethylene may have a density in the range of 945 to 962 kg/m3 (for claim 2) (¶0050, 0271) and may be combined with additives such as carbon black (for claim 14) (¶0046).
Regarding claimed component (A): The prior art LMW ethylene homopolymer may be a homopolymer (¶0057) having a density in the range of 920-980 kg/m3 (¶0058), overlapping the claimed range (for claim 3); and a weight average molecular weight (Mw) in the range of 5000 to 150000 g/mol (i.e., 5 to 150 kDa) (for claim 6). The prior art LMW ethylene polymer is present in an amount in the range of 20 to 70 wt% (abstract, ¶0029), overlapping the claimed range (for claim 1). The prior art LMW ethylene polymer therefore corresponds to claimed component (A) (for claim 1).
Regarding claimed component (B): The prior art first HMW ethylene polymer is a copolymer of ethylene and 0.1 to 9.5 wt% of an olefin comonomer (¶0066-0067), corresponding to claimed CB (for claim 1), characterized by a density, corresponding to claimed DB (for claim 1), in the range of 880 to 960 kg/m3 (¶0068), overlapping the claimed range (for claim 4). 1-Butene is disclosed to be the preferred comonomer (¶0066). Based on the molecular weights of ethylene (28.05 g/mol) and 1-butene (58.11 g/mol), it is calculated that the 1-butene content of the prior art first HMW ethylene polymer is in the range of about 0.05 to 4.8 mol%, overlapping the claimed range (for claim 7). The prior art second HMW ethylene polymer is present in an amount in the range of 20 to 70 wt% (abstract, ¶0029), overlapping the claimed range (for claim 1).
Note that Helland teaches that
the weight average molecular weight (Mw) of the first HMW ethylene polymer is higher than the Mw of the LMW ethylene polymer (¶0072), and
the LMW ethylene polymer and first HMW ethylene polymer have similar Mw/Mn values (¶0063, 0073).
As the first HMW ethylene polymer has a higher Mw and similar Mw/Mn as the LMW ethylene polymer, an ordinary artisan will recognize that Helland reads on the production of a composition wherein the number average molecular weight (Mn) of the first HMW ethylene polymer is higher than the Mn of the LMW ethylene polymer, particularly since the maximum value for the Mn of the first HMW ethylene polymer (¶0071) is higher than the maximum value of the Mn of the LMW ethylene polymer (¶0062). The prior art first HWM component therefore corresponds to claimed component (B) (for claim 1).
Regarding claimed component (C): The prior art second HMW ethylene polymer is a copolymer of ethylene and 0.1 to 30 wt% of an olefin comonomer (¶0076-0077), corresponding to claimed CC (for claim 1), characterized by a density in the range of 875 to 935 kg/m3 (¶0079), overlapping the claimed range (for claim 5).1-Butene is reported to be the preferred comonomer (¶0076). Based on the molecular weights of ethylene (28.05 g/mol) and 1-butene (58.11 g/mol), it is calculated that the 1-butene content of the prior art second HMW ethylene polymer is in the range of about 0.05 to 17.1 mol%. The prior art second HMW ethylene polymer is present in an amount in the range of 0.5 to 30 wt% (abstract, ¶0029), overlapping the claimed range (for claim 1).
Note that Helland teaches that
the Mw of the second HMW ethylene polymer is higher than the Mw of the first HMW ethylene polymer (¶0083), and
the second HMW ethylene polymer and first HMW ethylene polymer have similar Mw/Mn values (¶0073, 0084).
As the second HMW ethylene polymer has a higher Mw and similar Mw/Mn as the first HMW ethylene polymer, an ordinary artisan will recognize that Helland reads on the production of a composition wherein the Mn of the second HMW ethylene polymer is higher than the Mn of the first HMW ethylene polymer, particularly since the maximum value for the Mn of the second HMW ethylene polymer (¶0082) is higher than the maximum value of the Mn of the first HMW ethylene polymer (¶0071).The prior art second HWM component therefore corresponds to claimed component (C) (for claim 1).
The prior art second HWM component therefore corresponds to claimed component (C) (for claim 1).
Regarding the claimed comonomer content of the ethylene copolymer: Helland teaches that the prior art polyethylene has an overall comonomer content in the range of 0.1 to 10 wt%, with 1-butene being the preferred comonomer (¶0049). Based on the molecular weights of ethylene (28.05 g/mol) and 1-butene (58.11 g/mol), it is calculated that this corresponds to an overall 1-butene content in the range of about 0.05 to 5.1 mol%, overlapping the claimed range (for claim 1).
Regarding the claimed difference between comonomer contents CB and CC: Helland teaches that the second HMW ethylene polymer preferably has a comonomer content that is higher than that of the first HWM ethylene polymer (0078). As noted above, the first and second HMW ethylene polymers have 1-butene contents in the ranges of 0.05 to 4.8 mol% and 0.05 to 17.1 mol%, respectively. The difference in comonomer contents is therefore less than or equal to 17.1-0.050-i.e., ≤ 17.05, overlapping the claimed range (for claims 1, 9).
Regarding claim 8: As noted above, the prior art first and second HMW ethylene polymers are characterized by densities in the ranges of 880 to 960 kg/m3 and 875 to 935 kg/m3, respectively. The difference between their densities can therefore be in the range of (880-875) to (960-875)-i.e., 5 to 85 kg/m3, overlapping the claimed range (for claim 8).
Regarding claim 11: The prior art composition may be prepared by polymerizing the individual polymers using slurry reactors and Ziegler Natta catalyst, followed by extrusion-which is a form of melt mixing-for homogenization ¶(0088, 0089, 0127).
Regarding claim 12: The prior art composition may be prepared via multistage polymerization preferably using slurry reactions/reactors and Ziegler Natta catalyst(s) (¶0088, 0127).
Helland does not specifically disclose the production of a polyethylene wherein the overall comonomer content is in the range of 0.1 to 3.00 mol% and the difference in comonomer contents of the first and second HMW ethylene polymers is at most 0.10 mol%.
It has been held that in the case where the claimed ranges overlap or lie inside ranges disclosed in the prior art, a prima facie case of obviousness exists; see In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set of percentage ranges is the optimum combination of percentages; see In re Peterson, 315 F.3d at 1330, 65 USPQ2d at 1382 (" (MPEP § 2144.05).
The prior art ranges overlap the ranges recited in the instant claims. Barring a showing of evidence demonstrating unexpected results, it therefore would have been obvious at the time the claimed invention was effectively filed to prepare a polyethylene having the required properties of comonomer content in view of the teachings of Helland (for claim 1).
Claim(s) 10, 13, and 16 are rejected under 35 U.S.C. 103 as being unpatentable over Helland et al, EP2930205, as applied to claims 1-9, 11, 12, and 14-16 above, and further in view of Batinas-Guerts et al, WO2013/087167.
As discussed earlier in this Action, Helland discloses a multimodal polyethylene, comprising a LMW ethylene polymer, a first HMW ethylene polymer, and a second HMW ethylene polymer which is used in the production of pipes. Said multimodal polyethylene is prepared via multistage polymerization using reactors in series and Ziegler-Natta catalyst system.
Helland is silent regarding the inclusion of an additional ethylene polymer component (for claims 10, 16) and the use of a catalyst prepared via the recited steps (for claim 13).
Batinas discloses a multimodal polyethylene used in the production of pipes (abstract, page 2: line 5-6), wherein said polyethylene is made using a catalyst which comprises (I) the solid reaction product obtained by reacting a hydrocarbon solution of an oxygen-containing magnesium compound and an organic oxygen-containing titanium compound with an aluminum halogenide of the formula AlRnXn-3 wherein R is a C1-10 hydrocarbon radical, X is a halogen and 0 < n <3 with (II) an aluminum compound of formula AlR3 wherein R is a C1-C10 hydrocarbon group (for claim 13) (abstract, page 4: lines 13-27). Batinas teaches that the catalyst is sufficiently sensitive to hydrogen that it can be used in multistage polymerizations to prepare a LMW polymer in one stage and higher molecular weight polymer(s) in later stage(s) (page 2: lines 1-4).
It has been held that “[I]t is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose…. [T]he idea of combining them flows logically from their having been individually taught in the prior art;” see In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980). Both the multimodal polyethylene of Helland and the multimodal polyethylene of Batinas are used for the same purpose-i.e., the production of pipes. Barring a showing of evidence demonstrating unexpected results, it therefore would have been obvious to one of ordinary skill in the art to combine the multimodal polyethylene of Helland with the multimodal polyethylene of Batinas, corresponding to the further ethylene polymer components (for claim 10), with the reasonable expectation of obtaining a final composition suitable for use in the production of pipes. Furthermore, the sum of the minimum amounts of the LMW ethylene polymer (20%), first HMW ethylene polymer (20 wt%) and second ethylene HMW ethylene polymer (0.5 wt%) of the composition of Helland adds up to 40.5 wt%; the sum of the amounts of these polymers can therefore be 40.5 up to 100 wt%, overlapping the claimed range (for claim 16).
Regarding claim 13: Helland and Batinas both disclose the production of multimodal polyethylenes via multistage polymerization using Ziegler Natta catalyst systems. As taught by Batinas, it was known that the catalyst system disclosed in WO2013/087167 is sufficiently sensitive to hydrogen that it can be used in multistage polymerizations to prepare a LMW polymer in one stage and higher molecular weight polymer(s) in later stage(s). Barring a showing of evidence demonstrating unexpected results, it therefore would have been obvious to modify the process of Helland by using the catalyst of Batinas, with the reasonable expectation of simplifying the process by allowing the use of the same Ziegler Natta catalyst in all polymerization steps while still obtaining a final composition comprising multiple polymer fractions having different molecular weights.
Conclusion
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/JEFFREY S LENIHAN/ Primary Examiner, Art Unit 1765