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 .
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Claim Interpretation
Claim 4: AEG is interpreted as amine end groups [see instant specification [0029; 0081].
Claim Objections
Claim 4 is objected to because of the following informalities: the definition of the abbreviation AEG (amine end groups) should be included in the claim. Appropriate correction is required.
Claim 14 is objected to because of the following informalities: ≥0.5 to ≥75 should be ≥0.5 to ≤75. Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claim 14 is rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, claim 14 recites the broad recitation ≥2 and ≤ 20, and the claim also recites ≥10 and ≤ 20; ≥2 and ≤ 4 which is the narrower statement of the range/limitation. The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims.
Claim Rejections - 35 USC § 102
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.
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(s) 1-2, 9-15 and 19-20 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Adur (US 2016/0046807).
Regarding claims 1-2 and 9-11: Adur (US ‘807) discloses polyamide compositions for blow molding [abstract; 0032], wherein Example 53 [Ex. 53; 0100-0101; Table 15, Ex. 53] contains 86.90 wt% Nylon-6,6 (Ultramid A3K [0075]), 12.5 wt% PE-g-MAh (Fusabond N493; ethylene-octene copolymer grafted with maleic anhydride [0077; 0085; 0087]) and 0.60 wt% E-60 (1:1 ethylene-maleic anhydride alternating copolymer [0076)] [Ex. 53; 0100-0101; Table 15, Ex. 53].
Note: claim 2 further defines species of the reinforcing fiber component recited in claim 1. However, as claimed, such species only further define the genus of the optional (e.g. 0 wt%) reinforcing fiber component (i.e. claims 1 and 2 do not require the composition to comprise the reinforcing fiber component).
Regarding claims 12-14: Adur (US ‘807) discloses the basic claimed composition [as set forth above with respect to claim 1].
The claimed effects and physical properties, i.e. the blow-moldable composition is extrudable downwardly at a temperature of 260 oC to 310 oC into a parison having a wall thickness of Wi at a linear extrusion rate of 6-8 cm/sec to a length of 1 meter, and a wall thickness of the parison throughout differs from Wi by less than 30% of Wi for at least 30 seconds after the length of 1 meter is reached [instant claim 12]; the blow-moldable composition is extrudable downwardly at a temperature of 260 oC to 310 oC into a parison having a wall thickness of 7 mm and a 25 mm outside diameter at a linear extrusion rate of 6-8 cm/sec to a length of 1 meter, and a wall thickness of the parison throughout remains above 6 mm and below 8 mm for at least 30 seconds after the length of 1 meter is reached [instant claim 13]; a parison formed from the blow-moldable composition retains sufficient melt strength under blow molding conditions to form a continuous hollow molding having a wall thickness of ≥0.5 mm to ≤20 mm and/or having aspect ratios of from ≥0.5 to ≤75, and/or wherein a parison formed from the blow-moldable composition is blow-moldable at ratios of volume to surface area selected from: ≥2 and ≤20, ≥10 and ≤20, and ≥2 and ≤4 [instant claim 14], would inherently be achieved, as “Products of identical chemical composition can not have mutually exclusive properties.” A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990) [see MPEP 2112.01].
Regarding claim 15: Adur (US ‘807) discloses blow molding the composition [0032; 0102].
“[E]ven 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) [See MPEP 2113].
Regarding claim 19: Adur (US ‘807) discloses mixing the Nylon-6,6 and PE-g-MAh [Ex. 53; 0017; 0100-0101; Table 15, Ex. 53].
Regarding claim 20: Adur (US ‘807) discloses blow molding the composition [0032; 0102].
Claim(s) 8 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Adur (US 2016/0046807) as applied to claim 1 above, when taken with Roth et al. (WO 2025/186378).
Regarding claim 8: Adur (US ‘807) discloses the basic claimed composition [as set forth above with respect to claim 1]; wherein Adur (US ‘807) discloses PE-g-MAh (Fusabond N493; ethylene-octene copolymer grafted with maleic anhydride [0077; 0085; 0087]) containing 0.4-0.6 wt% maleic anhydride.
Roth et al. (WO ‘378) provides evidence for Fusabond N493 containing 0.4-0.6 wt% maleic anhydride [pg. 19, ln. 25-27].
Claim(s) 16 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Adur (US 2016/0046807).
Regarding claim 16: Adur (US ‘807) discloses polyamide compositions for blow molding [abstract; 0032], wherein Example 53 [Ex. 53; 0100-0101; Table 15, Ex. 53] contains 86.90 wt% Nylon-6,6 (Ultramid A3K [0075]), 12.5 wt% PE-g-MAh (Fusabond N493; ethylene-octene copolymer grafted with maleic anhydride [0077; 0085; 0087]) and 0.60 wt% E-60 (1:1 ethylene-maleic anhydride alternating copolymer [0076)] [Ex. 53; 0100-0101; Table 15, Ex. 53].
The claimed effects and physical properties, i.e. the blow-moldable composition is extrudable downwardly at a temperature of 260 oC to 310 oC into a parison having a wall thickness of Wi at a linear extrusion rate of 6-8 cm/sec to a length of 1 meter, and a wall thickness of the parison throughout differs from Wi by less than 30% of Wi for at least 30 seconds after the length of 1 meter is reached [instant claim 16], would inherently be achieved, as “Products of identical chemical composition can not have mutually exclusive properties.” A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990) [see MPEP 2112.01].
Claim(s) 16 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Peduto et al. (JP 2004-536160) (English machine translation for citation).
Regarding claim 16: Peduto et al. (JP ‘160) discloses polyamide compositions for blow molding [abstract; 0002], wherein Example 2 [Ex. 2; 0045; 0054-0059; Table 1, Ex. 2] contains 53 wt% A1 (nylon 6,6; 55 meq/kg amine end groups [0054]), 10 wt% A2 (nylon 6 [0054]), 20 wt% B1, 10 wt% C1, 3 wt% E1, 3 wt% D1 (ethylene-propylene grafted with maleic anhydride [0054]) and 1 wt% F1 [Ex. 2; 0045; 0054-0059; Table 1, Ex. 2].
The claimed effects and physical properties, i.e. the blow-moldable composition is extrudable downwardly at a temperature of 260 oC to 310 oC into a parison having a wall thickness of Wi at a linear extrusion rate of 6-8 cm/sec to a length of 1 meter, and a wall thickness of the parison throughout differs from Wi by less than 30% of Wi for at least 30 seconds after the length of 1 meter is reached [instant claim 16], would inherently be achieved, as “Products of identical chemical composition can not have mutually exclusive properties.” A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990) [see MPEP 2112.01].
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.
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.
Claim(s) 1-5, 12-15 and 18-20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Peduto et al. (JP 2004-536160) (English machine translation for citation).
Regarding claims 1-3: Peduto et al. (JP ‘160) discloses polyamide compositions for blow molding [abstract; 0002], wherein Example 2 [Ex. 2; 0045; 0054-0059; Table 1, Ex. 2] contains 53 wt% A1 (nylon 6,6; 55 meq/kg amine end groups [0054]), 10 wt% A2 (nylon 6 [0054]), 20 wt% B1, 10 wt% C1, 3 wt% E1, 3 wt% D1 (ethylene-propylene grafted with maleic anhydride [0054]) and 1 wt% F1 [Ex. 2; 0045; 0054-0059; Table 1, Ex. 2].
Peduto et al. (JP ‘160) discloses up to 50 wt% of compound D (e.g. D1 (ethylene-propylene grafted with maleic anhydride [0054])) [0035]. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990); In re Geisler, 116 F.3d 1465, 1469-71, 43 USPQ2d 1362, 1365-66 (Fed. Cir. 1997) [See MPEP 2144.05].
Note: claim 2 further defines species of the reinforcing fiber component recited in claim 1. However, as claimed, such species only further define the genus of the optional (e.g. 0 wt%) reinforcing fiber component (i.e. claims 1 and 2 do not require the composition to comprise the reinforcing fiber component).
Regarding claim 4: Peduto et al. (JP ‘160) discloses the nylon 6,6 has an amount of amine end groups of at least 50 meq/kg [0023].
In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990); In re Geisler, 116 F.3d 1465, 1469-71, 43 USPQ2d 1362, 1365-66 (Fed. Cir. 1997) [See MPEP 2144.05].
Regarding claim 5: Peduto et al. (JP ‘160) discloses the basic claimed composition [as set forth above with respect to claim 1]; wherein Peduto et al. (JP ‘160) discloses the polyamide can include polyamides, such as nylon 6 (A2 in Ex. 2), as well as copolyamides, such as nylon 6/6,6 [0019-0021].
An express suggestion to substitute one equivalent component or process for another is not necessary to render such substitution obvious. In re Fout, 675 F.2d 297, 213 USPQ 532 (CCPA 1982). [see MPEP 2144.06].
Regarding claims 12-14: Peduto et al. (JP ‘160) discloses the basic claimed composition [as set forth above with respect to claim 1].
The claimed effects and physical properties, i.e. the blow-moldable composition is extrudable downwardly at a temperature of 260 oC to 310 oC into a parison having a wall thickness of Wi at a linear extrusion rate of 6-8 cm/sec to a length of 1 meter, and a wall thickness of the parison throughout differs from Wi by less than 30% of Wi for at least 30 seconds after the length of 1 meter is reached [instant claim 12]; the blow-moldable composition is extrudable downwardly at a temperature of 260 oC to 310 oC into a parison having a wall thickness of 7 mm and a 25 mm outside diameter at a linear extrusion rate of 6-8 cm/sec to a length of 1 meter, and a wall thickness of the parison throughout remains above 6 mm and below 8 mm for at least 30 seconds after the length of 1 meter is reached [instant claim 13]; a parison formed from the blow-moldable composition retains sufficient melt strength under blow molding conditions to form a continuous hollow molding having a wall thickness of ≥0.5 mm to ≤20 mm and/or having aspect ratios of from ≥0.5 to ≤75, and/or wherein a parison formed from the blow-moldable composition is blow-moldable at ratios of volume to surface area selected from: ≥2 and ≤20, ≥10 and ≤20, and ≥2 and ≤4 [instant claim 14], would implicitly be achieved, as “Products of identical chemical composition can not have mutually exclusive properties.” A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990) [see MPEP 2112.01].
Regarding claim 15: Peduto et al. (JP ‘160) discloses melt blending the composition [Ex. 2; 0054-0055; Table 1, Ex. 2] and blow molding the blended composition to afford molded articles [0002; 0052].
“[E]ven 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) [See MPEP 2113].
Regarding claims 18-20: Peduto et al. (JP ‘160) discloses melt blending the composition [Ex. 2; 0054-0055; Table 1, Ex. 2] and blow molding the blended composition to afford molded articles [0002; 0052].
Claim(s) 5 is/are rejected under 35 U.S.C. 103 as being unpatentable over Adur (US 2016/0046807) as applied to claim 1 above.
Regarding claim 5: Adur (US ‘807) discloses the basic claimed composition [as set forth above with respect to claim 1]; wherein Adur (US ‘807) discloses the composition can contain a copolymer of nylon-6 and nylon-6,6 [0051-0052].
Adur (US ‘807) does not specifically disclose Ex. 53 containing a copolymer of nylon-6 and nylon-6,6. However, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have included a copolymer of nylon-6 and nylon-6,6 based on the invention of Adur (US ‘807), and would have been motivated to do so since Adur (US ‘807) discloses the composition can contain a copolymer of nylon-6 and nylon-6,6 [0051-0052]. Additionally, “It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art.” In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980) (citations omitted) [see MPEP 2144.06].
Claim(s) 7 is/are rejected under 35 U.S.C. 103 as being unpatentable over Adur (US 2016/0046807) as applied to claim 5 above, and further in view of Bhatia (US 9,388,312).
Regarding claim 7: Adur (US ‘807) discloses the basic claimed composition [as set forth above with respect to claim 1]; wherein Adur (US ‘807) discloses the composition can contain a copolymer of nylon-6 and nylon-6,6 [0051-0052].
Adur (US ‘807) does not disclose PA66/DI as the copolymer. However, Bhatia (US ‘312) discloses polyamide (ex. nylon-6,6) compositions for blow molding [abstract; 3:20-21], wherein the polyamide can be a copolymer of nylon 6,6 and nylon DT [5:41-6:30]. Adur (US ‘807) and Bhatia (US ‘312) are analogous art because they are concerned with a similar technical difficulty, namely the preparation of polyamide compositions for blow molding. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have combined a copolymer of nylon 6,6 and nylon DT, as taught by Bhatia (US ‘312) in the invention of Adur (US ‘807), and would have been motivated to do so since Bhatia (US ‘312) discloses copolymers of nylon 6,6 and nylon DT as the polyamide [5:41-6:30].
Claim(s) 6-7 is/are rejected under 35 U.S.C. 103 as being unpatentable over Peduto et al. (JP 2004-536160) as applied to claim 5 above, and further in view of Bhatia (US 9,388,312).
Regarding claims 6-7: Peduto et al. (JP ‘160) discloses the basic claimed composition [as set forth above with respect to claim 5]; wherein Peduto et al. (JP ‘160) discloses the polyamide can include copolyamides, such as nylon 6/6,6, in an amount of 1-30 wt% [0019-0021].
In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990); In re Geisler, 116 F.3d 1465, 1469-71, 43 USPQ2d 1362, 1365-66 (Fed. Cir. 1997) [See MPEP 2144.05].
Peduto et al. (JP ‘160) does not disclose PA66/DI as the copolymer. However, Bhatia (US ‘312) discloses polyamide (ex. nylon-6,6) compositions for blow molding [abstract; 3:20-21], wherein the polyamide can be a copolymer of nylon 6,6 and nylon DT [5:41-6:30]. Peduto et al. (JP ‘160) and Bhatia (US ‘312) are analogous art because they are concerned with a similar technical difficulty, namely the preparation of polyamide compositions for blow molding. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have combined a copolymer of nylon 6,6 and nylon DT, as taught by Bhatia (US ‘312) in the invention of Peduto et al. (JP ‘160), and would have been motivated to do so since Bhatia (US ‘312) discloses copolymers of nylon 6,6 and nylon DT as the polyamide [5:41-6:30].
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-22 of U.S. Patent No. 11,787,939. Although the claims at issue are not identical, they are not patentably distinct from each other because the polyamide composition comprising at least 30 wt% nylon 66, 10-50 wt% maleated polyolefin with 0.05-1.5 wt% grafted maleic anhydride, and 15 to <45 wt% of a nylon 66 copolymer (ex. PA66/DI) of U.S. Patent No. 11,787,939 substantially overlaps in scope with the instant claimed polyamide composition containing 30-90 wt% polyamid-6,6, 10-50 wt% maleic anhydride-grafted polyolefin.
In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990); In re Geisler, 116 F.3d 1465, 1469-71, 43 USPQ2d 1362, 1365-66 (Fed. Cir. 1997) [See MPEP 2144.05].
The claimed effects and physical properties, i.e. the blow-moldable composition is extrudable downwardly at a temperature of 260 oC to 310 oC into a parison having a wall thickness of Wi at a linear extrusion rate of 6-8 cm/sec to a length of 1 meter, and a wall thickness of the parison throughout differs from Wi by less than 30% of Wi for at least 30 seconds after the length of 1 meter is reached [instant claims 12 and 16-17]; the blow-moldable composition is extrudable downwardly at a temperature of 260 oC to 310 oC into a parison having a wall thickness of 7 mm and a 25 mm outside diameter at a linear extrusion rate of 6-8 cm/sec to a length of 1 meter, and a wall thickness of the parison throughout remains above 6 mm and below 8 mm for at least 30 seconds after the length of 1 meter is reached [instant claim 13]; a parison formed from the blow-moldable composition retains sufficient melt strength under blow molding conditions to form a continuous hollow molding having a wall thickness of ≥0.5 mm to ≤20 mm and/or having aspect ratios of from ≥0.5 to ≤75, and/or wherein a parison formed from the blow-moldable composition is blow-moldable at ratios of volume to surface area selected from: ≥2 and ≤20, ≥10 and ≤20, and ≥2 and ≤4 [instant claim 14], would implicitly be achieved, as “Products of identical chemical composition can not have mutually exclusive properties.” A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990) [see MPEP 2112.01].
Claims 1-20 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of copending Application No. 18/287469 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because the polyamide composition comprising at least 30 wt% of a polyamide (ex. nylon 66 [claims 3-4 and 7]; nylon 66/DI copolymer claims 6-7]) and 10-50 wt% maleated polyolefin with 0.05-1.5 wt% grafted maleic anhydride of Application No. 18/287469 substantially overlaps in scope with the instant claimed polyamide composition containing 30-90 wt% polyamid-6,6, 10-50 wt% maleic anhydride-grafted polyolefin.
While claim 1 does not contain nylon 66; 30-60 wt% nylon 66 and 2-50 wt% nylon-6,6/DI, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have included nylon 66 or 30-60 wt% nylon 66 and 2-50 wt% nylon-6,6/DI, and would have been motivated to do so since Application No. 18/287469 claims nylon 66 [claim 3-4]; 30-60 wt% nylon 66 and 2-50 wt% nylon-6,6/DI [claim 7]. Additionally, “It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art.” In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980) (citations omitted) [see MPEP 2144.06].
In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990); In re Geisler, 116 F.3d 1465, 1469-71, 43 USPQ2d 1362, 1365-66 (Fed. Cir. 1997) [See MPEP 2144.05].
The claimed effects and physical properties, i.e. the blow-moldable composition is extrudable downwardly at a temperature of 260 oC to 310 oC into a parison having a wall thickness of Wi at a linear extrusion rate of 6-8 cm/sec to a length of 1 meter, and a wall thickness of the parison throughout differs from Wi by less than 30% of Wi for at least 30 seconds after the length of 1 meter is reached [instant claims 12 and 16-17]; the blow-moldable composition is extrudable downwardly at a temperature of 260 oC to 310 oC into a parison having a wall thickness of 7 mm and a 25 mm outside diameter at a linear extrusion rate of 6-8 cm/sec to a length of 1 meter, and a wall thickness of the parison throughout remains above 6 mm and below 8 mm for at least 30 seconds after the length of 1 meter is reached [instant claim 13]; a parison formed from the blow-moldable composition retains sufficient melt strength under blow molding conditions to form a continuous hollow molding having a wall thickness of ≥0.5 mm to ≤20 mm and/or having aspect ratios of from ≥0.5 to ≤75, and/or wherein a parison formed from the blow-moldable composition is blow-moldable at ratios of volume to surface area selected from: ≥2 and ≤20, ≥10 and ≤20, and ≥2 and ≤4 [instant claim 14], would implicitly be achieved, as “Products of identical chemical composition can not have mutually exclusive properties.” A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990) [see MPEP 2112.01].
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
See attached form PTO-892.
Correspondence
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MICHAEL F PEPITONE whose telephone number is (571)270-3299. The examiner can normally be reached on 7:00 AM - 3:30 PM.
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/MICHAEL F PEPITONE/Primary Examiner, Art Unit 1767
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