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 § 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.
Claims 1-7 are rejected under 35 U.S.C. 103 as being unpatentable over Akaishi et al (JP2019218460A). Akaishi is read from an English machine translation which has been placed in the Application file.
With regards to claim 1, Akaishi discloses a thermoplastic polyester elastomer foamed product comprising a foamed layer (i.e., a molded body comprising a foamed portion including a foamed layer) surrounded on both sides by non-foamed skin layers (i.e., a skin layer A, a foamed layer, and a skin layer B are disposed in this order in a thickness direction) (Akaishi: abstract; page 6, “The foam molded article of the present invention usually has a sandwich structure having a non-foamed skin layer on both sides of a foamed layer…; Fig. 2). According to Sample 11, the foamed product has a thickness of 4.3 mm, and each non-foamed skin layer has a thickness of 320 microns (i.e., 0.32 mm), which gives a ratio of thickness of the foamed layer, with respect to a total thickness of the foamed layer and the skin layers, of 85% (i.e., (4.3 mm – 0.32 mm – 0.32 mm) / 4.3 mm = 0.85, or 85%), which is within the claimed range of 73% to 88% (i.e., thereby anticipating the claimed range) (Akaishi: see Table 1 of the original, untranslated reference). Given that Akaishi further discloses the incorporation of polypropylene into its foamed products, a person of ordinary skill in the art would have found it obvious to have incorporated polypropylene into the foamed product of Sample 11 (i.e., as Akaishi expressly suggests polypropylene as a suitable material) (Akaishi: page 7, “When a chemical foaming agent…”).
With regards to claim 2, Sample 11 of Akaishi exhibits an average diameter of cells of 192 microns (i.e., 0.192 mm), which is within the claimed range of 0.18 mm to 0.34 mm (i.e., thereby anticipating the claimed range) (Akaishi: see Table 1 of the original, untranslated reference).
With regards to claim 3, as can be estimated from Figure 2B of Akaishi, the foamed layer of Akaishi includes approximately 38 cells per mm2 (Akaishi: Fig. 2B).
With regards to claim 4, Akaishi does not appear explicit as to a maximum cell diameter of 0.84 mm or less. However, Akaishi more broadly cautions against average cell diameters of above 500 microns (i.e., 0.5 mm), as load resistance becomes low and rebound resilience tends to be low (i.e., as best understood, this property appears to be a property of individual cell diameters) (Akaishi: page 6, “The foam layer is composed of an elastomer continuous phase…”). Therefore, a person of ordinary skill in the art would have found it obvious to have avoided cell diameters above 500 microns (i.e., implying a range of 10 microns to 500 microns, or 0.01 mm to 500 mm as disclosed in Akaishi), in order to improve load resistance and rebound resistance (see above discussion). Alternatively, Akaishi teaches cell diameter as a result-effective variable having motivation to optimize or adjust (i.e., a person of ordinary skill would have desired low cell diameters in order to improve load resistance and rebound resistance), and therefore, a person of ordinary skill in the art would have found it obvious to have optimized cell diameter (see above discussion).
With regards to claim 5, it is noted that the language “wherein cells included in the foamed layer are in a state of being oriented in a thickness direction” is rather broad, in that only “a thickness direction” need be used as a reference for measurement (i.e., technically, the foamed layer of Akaishi extends in three separate directions which are all thickness directions), and paragraph [0064] of the present specification defines the orientation as an aspect ratio of 1.01 or more (i.e., which is met by a subset of cells according to visual inspection of Figure 2B of Akaishi) (Akaishi: Fig. 2B).
With regards to claim 6, each of the thicknesses of the skin layer A and skin layer B are 0.32 mm (see above discussion).
With regards to claim 7, Akaishi discloses its molded body as used in an automobile part (Akaishi: page 2, “BACKGROUND ART: Thermoplastic polyester elastomers….”).
Response to Arguments
Applicant’s arguments requested an acknowledgement of foreign priority. Applicant’s claim of foreign priority and the receipt of the priority documents is acknowledged.
Several of Applicant’s arguments with respect to the grounds of rejection under 35 U.S.C. 102 over Akaishi have been fully considered and they are found persuasive. The cited sample of Akaishi does not include polypropylene. Therefore, the grounds of rejection under 35 U.S.C. 102 over Akaishi have been withdrawn. However, new grounds of rejection under 35 U.S.C. 103 are made over Akaishi.
Applicant’s arguments which remain pertinent to the new grounds of rejection have been fully considered but they are not found persuasive.
On pages 4-5, Applicant cites to paragraphs [0002]-[0010] of Akaishi, and argues that Akaishi expressly focuses on problems unique to thermoplastic polyester elastomers, and not polypropylene. Applicant concludes that Akaishi does not teach or suggest a foamed product including polypropylene. On pages 5-6, Applicant argues that adding polypropylene would fundamentally alter the thermoplastic polyester elastomer system of Akaishi. These arguments are not found persuasive as the broader disclosure of Akaishi discloses that polypropylene may be included, per at least page 7 of the translation of Akaishi, subsection beginning with the phrase “[w]hen a chemical foaming agent…”. Although it is acknowledged that Akaishi is directed to thermoplastic polyester elastomers, Akaishi directly indicates that polypropylene may be incorporated into its compositions. Even supposing polypropylene would fundamentally alter the polyester elastomer system of Akaishi, the recitation of polypropylene in Akaishi suggests that polypropylene is still usable in the polyester elastomer system of Akaishi (i.e., polypropylene is compatible and expected to be used in Akaishi, regardless of material differences).
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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/E.W./
Examiner, Art Unit 1783
/MARIA V EWALD/Supervisory Patent Examiner, Art Unit 1783
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