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 Rejections - 35 USC § 103
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.
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.
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 1-8 and 13-20 are rejected under 35 U.S.C. 103 as being unpatentable over Englund et al. (2017/0327675) in view of Fortelny et al. (NPL, Compatibilization…blends).
Englund et al. discloses a cable comprising one or more conductors surrounded by at least one non-foamed layer (Englund does not disclose the layer being a foamed layer), wherein the non-foamed layer comprises 15 to 84 wt% or 15 to 38 wt% of LDPE (polyolefin b, [0033] & [0034]) and 15 to 84 wt% of a polypropylene (polyolefin a, [0028] & [0031]), wherein the wt% are based on the layer as a whole, and wherein the non-foamed layer is an insulation layer ([0162]) (re-claims 1, 2, 8, 18, and 19).
Englund et al. also discloses that the propylene is a propylene homopolymer ([0031]) (re-claim 3); the LDPE is a LDPE homopolymer ([0034]) (re-claims 4, 18, 19); the LDPE has a density of 915 to 940 kg/m3 ([0110]) (re-claim 5); the non-foamed layer does not comprise a peroxide ([0038]) (re-claim 7); the one or mor conductors are surrounded by at least an inner semiconductive layer, the insulation layer, and an outer semiconductive layer, in that order ([0162]) (re-claim 13); the insulation layer is not cross-linked (re-claim 14); and the cable is a power cable (re-claim 17).
Englund et al. does not disclose the insulation layer comprising a styrene block copolymer in an amount of 1.0 to 15 wt% (re-claims 1, 2, 8, 18, 19).
Fortelny et al. (page 2 and Table 1) discloses a LDPE/PP/SBS blend comprising 1.0 to 15 wt% of a styrene block copolymer which is an SBS (re-claims 1, 2, 6, 8, 18, and 19).
It would have been obvious to one skilled in the art to include 1.0 to 15 wt% of SBS in the LDPE/PP blend of Englund et al. to increase the impact strength of the blend as taught by Fortelny et al.
Re-claim 15, since the modified insulation layer of Englund et al. comprises material as claimed, it will have a DC conductivity as claimed.
Claim 16 is a method counterpart of claim 1.
Re-claim 20, it would have been obvious to one skilled in the art to use an isotactic polypropylene for the polypropylene homopolymer of Englund et al. since isotactic polypropylene is known in the art for its high strength, high melting point, and good chemical resistance.
Claims 9-11 are rejected under 35 U.S.C. 103 as being unpatentable over Englund et al.
Englund et al. discloses a cable comprising one or more conductors surrounded by at least an inner semiconductive layer, an insulation layer, and an outer semiconductive layer, in that order ([0162]), wherein the insulation layer is not crosslinked ([0038], [0039], and [0205]) and consisting essentially of 70 to 95 wt% LDPE (polyolefin b, [0033]-[0034]) and 5 to 30 wt% of a propylene (polyolefin a, [0031]), wherein the wt% are based on the insulation layer as a whole (re-claims 9 and 10). Englund et al. also discloses the LDPE being a homopolymer ([0034]) (re-claim 11).
Englund et al. does not disclose the polypropylene being an isotactic propylene homopolymer (re-claim 9). Although not specifically disclosed in Englund et al., it would have been obvious to one skilled in the art to use an isotactic polypropylene homopolymer for the polypropylene homopolymer of Englund et al. since isotactic polypropylene is known in the art for its high strength, high melting point, and good chemical resistance.
Claims 1 and 21 are rejected under 35 U.S.C. 103 as being unpatentable over Englund et al. in view of Tateo (JP 10-139911).
Englund et al. discloses a cable comprising one or more conductors surrounded by at least one non-foamed layer (Englund does not disclose the layer being a foamed layer), wherein the non-foamed layer comprises 15 to 38 wt% of LDPE (polyolefin b, [0033] & [0034]) and a polypropylene (polyolefin a, [0031]), wherein the wt% are based on the layer as a whole, and wherein the non-foamed layer is an insulation layer ([0162]) (re-claims 1 and 21).
Englund et al. does not disclose the insulation layer comprising a styrene block copolymer (re-claim 1).
Tateo discloses a polymer composition comprising LDPE, PP, and a styrene block copolymer. Tateo discloses that adding a styrene block copolymer, especially SEBS, would improve aging resistance of the composition ([0009]).
It would have been obvious to one skilled in the art to include a styrene block copolymer (SEBS), as taught by Tateo, in the composition of Englund et al. to provide the same with aging resistance.
Response to Arguments
Applicant’s arguments with respect to claims 9, 10, and 21 have been considered but are moot in view of new ground of rejection.
Applicant argues that none of the examples of Englund exemplify a composition comprising LDPE and polypropylene, only composition comprising LDE and HDPE being exemplified. Examiner would disagree. The fact that Englund discloses that polyolefin (a) is a propylene homopolymer ([0031]) and that polyolefin (b) is a LDPE; there is a composition or blend comprising LDPE and polypropylene.
Applicant argues there is no suggestion to combine Englund with Fortelny since Fortelny relates to the compatibilization of some polymer blends and since Englund does not say that there is a compatibility problem between any of the disclosed blends. Examiner would disagree. The test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981). Furthermore, it has been held that obviousness may be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so found either in the references themselves or in the knowledge generally available to one of ordinary skill in the art. See In re Fine, 837 F.2d 1071, 5 USPQ2d 1596 (Fed. Cir. 1988), In re Jones, 958 F.2d 347, 21 USPQ2d 1941 (Fed. Cir. 1992), and KSR International Co. v. Teleflex, Inc., 550 U.S. 398, 82 USPQ2d 1385 (2007). In this case, the motivation to do so is found in the references themselves. Specifically, Englund discloses a blend of LDPE/PP. Fortelny discloses SBS copolymer enhancing the impact strength of the LDPE/PP blend (see Fortelny’s document, page 1, under SUMMARY). Therefore, one skilled in the art would have motivated to include SBS, taught by Fortelny, in the LDPE/PP blend of Englund.
In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971).
Applicant argues that 1) Englund is about cables, and Fortelny is not; that 2) while Fortelny may describe that the additional of SBS improves the impact strength, it provides no teaching as to effect of this addition on the insulation properties; 3) that cables are not generally subject to impact or sudden loading; and that 4) Englund does not mention impact strength at all.
Examiner would disagree. The fact that Englund and Fortelny both disclose the same blend, LDPE/PP; the fact that Englund cites the disclosed LDPE/PP blend being an insulation material; and the fact that there is no electrical conductive element being added in the LDPE/PP blend of Fortelny; the LDPE/PP/SBS blend of Fortelny is an insulation material. Fortelny teaches that adding SBS into a LDPE/PP blend would improve the impact strength of the same. Accordingly, one skilled in the art would have motivated to include SBS in the LDPE/PP blend of Englund.
Contact Information
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CHAU N NGUYEN whose telephone number is (571)272-1980. The examiner can normally be reached M-Th, 7am to 5:30pm.
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/CHAU N NGUYEN/Primary Examiner, Art Unit 2841