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 Objections
In claims 1, 4, and 9, “carbon black containing” should be replaced with “carbon black-containing” to make clear that it is carbon black that is being comingled within the polymer, and not the reverse.
Claim Interpretation
Applicant discloses a composition comprising at least one, but possibly two distinct, polyolefin(s) that are characterized as being post-consumer recyclates. For the purpose of evaluating the claimed invention against the prior art though, virgin polyolefins were regarded as being patentably indistinct from these unless/until other distinguishing differences are mentioned such as in claim 7. (Virgin polyolefins wouldn’t necessarily inherently contain any of the impurities set forth in that claim.)
It is further acknowledged that the carbon black is provided as a masterbatch, the weight contribution of the carbon black being set at a specified level. However, claim 1 is directed to a composition “obtained by blending” all the materials that follow, including said masterbatch, hence claim 1 is effectively a product-by-process claim. "Even 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, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985). Accordingly, an anticipatory reference would need only teach the ultimate amount of carbon black incorporated as defined in the final two lines of the claim.
As for claim 14, because the boxes/crates/pellets are “produced from” a blend of post-consumer polyolefin and a carbon black masterbatch containing more than 20 wt.% of carbon black, but there is no indication of the relative quantities of said post-consumer polyolefin and masterbatch, than the overall amount of carbon black in the composition cannot be known. As in claim 1, claim 14 uses product-process language (“produced from”) and an anticipatory disclosure need not disclose the introduction of the carbon black as a masterbatch. For the purpose of evaluating claim 14 against the prior art, any similarly-constituted box, crate, or pellet, with a non-zero amount of carbon black will be regarded as anticipatory of that claim insofar as the amount of the masterbatch added to the recycled polyolefin could be quite small.
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.
Claim 14 is rejected under 35 U.S.C. 102(a)(1) as being anticipated by Kim et al., KR 2011/0128631.
Applicant is referred to paragraph [0010,0027] where there is described a composition comprising 100 parts of recycled polyethylene to which is added 3-20 parts of carbon black as a masterbatch in HDPE among other materials. The components of the composition are all mixed together in an extruder to provide pellets [0034].
Claims 1-6, 8, 10-14, and 17 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Xu et al., CN 102367310 as evidenced by a product data sheet for Sinopec T30S and a publication delineating the parameters of test method GB/T 3682 cited in association with the melt index of Sinopec T30S.
Applicant is directed to [0007-0013] where the general makeup of compositions according to the prior art are disclosed. Relevant to the present discussion, a favored polypropylene, SinopecT30S according to [0029] is one having a melt flow index of 2.5 g/10 min at a load of 2.16 kg and 230° C. See the test method for GB/T 3682. The product data sheet for Sinopec T30S does not report a volume resistivity but the product is believed to be virgin PP in which case it would inherently possess a volume resistivity significantly higher than the claimed minimum claimed in association within component (a). (Applicant is reminded that, for the purpose of making initial patentability determinations, there will be construed to be no distinction between recycled- and virgin polyolefin until a differentiating characteristic is attached to the former, such as one or more of those set forth in claim 7.) Also present in the prior art composition are 15-25 parts of the carbon black, and 6-10 parts of the toughener, a polyethylene/octene, or C2C8, copolymer (also applies to claim 10) of which DF710 from Mitsui is exemplary [0029]. An attached product data sheet for DF710 confirms that it has a melt flow rate and density consistent with that stipulated in claim 1 of component (d).
Applicant is directed to the Examples and Table 1 where corresponding quantities of materials to claimed components (a) and (d) are employed and a final coincident quantity of carbon black to that expressed in the final two lines of claim 1 is confirmed. The volume resistivities of Examples 1 to 3 are all conforming with the range of 5-1400 Ohm.cm. Table 1 is devoid of any indication of the melt flow rate of the final composition. Generally, in a polymer mixture that contains a blend of polymers, it is known that the melt index of the mixture will have an intermediate value between that of the two polymers and, thus, somewhere between 2.2 and 2.5. However, this parameter is also influenced by polymer interactions with the filler. Again, the amount of carbon black being used is comparable, at least in prior art examples 1 and 2 thus the Examiner believes there to be a sufficient number of compositional parallels to confidently assert that these prior art exemplifications will inherently have a corresponding melt flow rate.
The exemplifications summarized in Table 1 are also anticipatory of the amounts mandated in claims 2, 4 and 5, with the caveat that the reference doesn’t contemplate adding the carbon black as a masterbatch. Again, these claims are, to the extent that they depend from claim 1, product-by-process claims and, thus, the carbon black need not be provided as a masterbatch as long as its total quantity complies with that specified at the end of claim 1.
The Examiner also recognizes that the product data sheet for Sinopec T30S does not delineate the PP content and, therefore, it may be presumed that it is comprised entirely of propylene repeat units except that all polypropylene polymerization processes are susceptible to small amounts of side reactions generating units other than propylene units and, thus, this commercial product may be considered to inherently satisfy the requirement that the propylene content be between 80-99 wt.%.
Concerning claim 6, it is easily verifiable that Sinopec T30S has a density of 0.9 g/cm3, or 900 kg/m3.
Regarding claim 11, DF710 has a melting point of 55°C.
As for claim 12, given Applicants removal of the limitations further defining the polyolefin material, it is not necessarily distinct from components (a) and (d) thus no patentable distinction is perceived.
Concerning claim 13, there is no clear source of aluminum in the prior art composition.
As for claim 17, [0029] characterizes the ethylene-octene copolymer as having been prepared in the presence of a metallocene catalyst.
Allowable Subject Matter
Claims 7, 9, 16, and 18 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
The Examiner admits that virgin PP is used as the base polymer and, hence, would not clearly contain any of the impurities delineated in claim 7. As for claims 9, 16, and 18, there is no ethylene homopolymer source disclosed in the reference nor does the reference mention adding a polyolefin of much higher melt flow rate as recited in claim 18.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MARC S ZIMMER whose telephone number is (571)272-1096. The examiner can normally be reached M-F 8:30-5:00.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Heidi Kelley can be reached at 571-270-1831. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
December 23, 2025
/MARC S ZIMMER/Primary Patent Examiner, Art Unit 1765