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 .
Claim Objections
Claims 1, 8, 11, and 13-15 are objected to because of the following reasons:
With respect to claims 1, 8, and 15, the use of multiple colons is improper because each claim is a single sentence.
With respect to claim 11, the terms “the Cp3Rc ring” and “the Cp4Rd ring” do not have full antecedent basis because they both refer to very specific rings derived from cyclopentadienyl, indenyl, 4,5,6,7-tetrahydro-1-indenyl, or fluorenyl radicals.
With respect to claims 13 and 14, the listing of compounds without commas or “or” or “and” is improper because each claim is a single sentence.
Appropriate correction is required.
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 of this title, 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 1-15 are rejected under 35 U.S.C. 103 as being unpatentable over Falla (US 2016/0060425) in view of evidence provided by Konaganti (US 12,409,597).
With respect to claims 1-7, 9, Falla discloses a high density polyethylene composition comprising a nucleating agent (abstract) such as sHDPE-1 having melt index of 1.2 dg/min (equivalent to g/10 min) and density of 0.966 (Table 1 in paragraph 0078). Melt index is measured at 190°C under 2.16 kg load (paragraph 0017). sHDPE-1 also includes 1200 ppm HPN-20E (paragraph 0079) which is a 2/1 weight blend of calcium hexahydrophthalic acid (nucleating agent) and zinc stearate (lubricant) as evidenced by Konaganti (col. 16, lines 38-43).
Based on this example, 1200 ppm HPN-20E provides for 152 ppm calcium and 41 ppm zinc are added, i.e., 193 ppm cation metal. While this amount is below claimed 500-2,000 ppm metal, Falla teaches utilizing lubricant in an amount of 0.1-2 wt % (paragraph 0056) (i.e., 1000-20,000 ppm lubricant).
Therefore, it would have been obvious to one of ordinary skill in the art to utilize relatively more lubricant than exemplified, as needed, including in those amounts within the claimed range, to adjust processing properties. See MPEP § 2144.05 (B). Case law holds that “discovery of an optimum value of a result effective variable in a known process is ordinarily within the skill of the art.” See In re Boesch, 617 F.2d 272, 205 USPQ 215 (CCPA 1980).
While zinc stearate does not include the same metal as calcium hexahydrophthalic acid, Falla teaches that calcium stearate is an equivalent substitute for zinc stearate as lubricant (paragraph 0056).
Therefore, it would have been obvious to one of ordinary skill in the art to select equivalent calcium stearate in combination with exemplified calcium hexahydrophthalic acid.
Regarding Tc-onset temperature, Falla is silent, however, Farra teaches that typical extrusion temperatures are 165-260°C (paragraph 0104).
Given that Tc-onset is necessarily below the processing temperature and further given that Falla teaches a processing temperature of at least 165°C, it would have been obvious to one of ordinary skill in the art to utilize a polyethylene resin composition having Tc-onset of higher than 120°C.
With respect to claim 8, Falla teaches that the composition has a Mw/Mn of about 5-15 (claim 8) which overlaps with claimed range.
With respect to claim 10, Falla fails to explicitly disclose the crystallinity, however, the addition of a nucleating agent allows control of crystallinity. Therefore, it would have been obvious to one of ordinary skill in the art to obtain crystallinity within the claimed range of 68-80%.
With respect to claim 11, the mixing of polyethylene, nucleating agent, and lubricant is taught by Falla.
With respect to claims 12-14, this process of making the polyethylene resin composition does not actively recite a step of polymerizing the polyethylene. Rather, these claims include passive voice (i.e., “wherein the polyethylene is prepared by”) which is a nested product-by-process limitation in a process claim. Case law holds that “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.” See In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985). Therefore, it is the examiner’s position that Falla’s high density polyethylene, while made with a titanium catalyst and not the polymerization system of the instant claims, appears to read on the claimed polyethylene given that density and melt index properties are anticipated.
With respect to claim 15, Falls discloses forming a film from the polyethylene high density polyethylene composition (abstract) but fails to disclose the haze or water vapor transmission rate properties from a film formed therefrom.
Regarding haze, it would have been obvious to one of ordinary skill in the art to control haze by controlling crystal size with the nucleating agent.
Regarding WVTR, Falla teaches that its films are used in food container for cereals and grains (i.e., dry goods) (paragraph 0036). Given the inherent desirability of a food package for dry goods to have low water vapor permeability to keep dry goods dry, it would have been obvious to one of ordinary skill in the art to prepare a film packaging having claimed WVTR using known additives and/or orienting the film.
Conclusion
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/Vickey Nerangis/
Primary Examiner, Art Unit 1763
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