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 § 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.
Claims 1-7 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Kawahara et al. (US 2002/0100997).
Kawahara et al. teach a method for producing an ethylene-vinyl-alcohol copolymer resin, the method comprising a step of feeding an aqueous ethylene-vinyl-alcohol copolymer containing from 10 to 1000 parts by weight of water relative to 100 parts by weight of ethylene-vinyl-alcohol copolymer therein, which is about 10wt% to about 91wt% of water, into an extruder, melt-kneading it in the extruder, and then extruding the copolymer out of the extruder. See abstract. The extruded resin is then cut (abstract). The resin temperature at the take-out port (i.e. where the resin is discharged) is 100ºC (see ¶140 and ¶152 of Kawahara et al.), which falls within the range of instant claim 6.
The water content of the aqueous ethylene-vinyl-alcohol copolymer is preferably at least 30 parts by weight, more preferably at least 50 parts by weight, and less than 1000 parts by weight, meaning the preferable water content is about 23wt% to less than about 90.9wt%. This anticipates the amount of water in the first step of instant claim 6. See ¶73 of Kawahara et al. The aqueous ethylene-vinyl-alcohol copolymer is melted in an extruder, the composition is extruded, and then the extruded strands are cut into pellets (¶77). This meets the second step of instant claim 6. Kawahara et al. teaches that the temperature of the resin at the take-out port of the extruder was 100ºC, which falls within the range of instant claim 6. Kawahara et al. teaches an example where the extruded resin has a water content of 20%, which falls within the range of instant claims 5 and 6.
Identical amounts of identical materials are combined in an identical method to produce an identical product (ethylene-vinyl-alcohol pellets) in the invention of Kawahara et al as recited in the instant claims. The identical particles, produced using identical materials and identical steps are recited in instant claim 6, will necessarily have the same properties as the porous particles of the instant claims, including the proportion (V2/V1 x 100), and pore surface area of the porous pellets as recited in the instant claims, as well as the properties recited in instant claims 2-3. The burden is shifted to Applicants to provide factually supported objective evidence which demonstrates the contrary. MPEP 2112 states “When the PTO shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not.” In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990).
It will be made of note that the data of the instant specification does not show the results of a temperature of 100ºC with regards to the resin being discharged from the extruder. One of ordinary skill in the art would expect or at once envisage the results of discharging at 100ºC to produce particles having the instantly claimed properties, as this temperature is recited in instant claim 6, and is not shown in the data. Absent evidence showing the contrary, given that the processing parameters of Kawahara et al. are the same as that of the instant claims, using the same amounts of the same materials to produce the same product with the same process steps as the instantly claimed pellets of EVOH, one of ordinary skill in the art would expect the pellets of Kawahara et al. to necessarily have the instantly claimed properties, which are a results of water content and discharge temperature at extrusion, which are both present in Kawahara et al., shown in Table 1 of the instant specification. The burden is shifted to Applicants to provide factually supported objective evidence which demonstrates the contrary.
The water-containing EVOH copolymer of Kawakara et al. discharged from the extruder is cut in a molten state. See ¶150. This meets instant claim 7.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to K. B BOYLE whose telephone number is (571)270-7338. The examiner can normally be reached 8:30 am to 5pm, Monday - Friday.
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/K. BOYLE/Primary Examiner, Art Unit 1766
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