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 .
Election/Restrictions
Applicant's election with traverse of Group I, claims 31-40, in the reply filed on September 22, 2025 is acknowledged. The traversal is on the ground(s) that the polymer stabilizer mixture is the special technical feature. This is not found persuasive because the polymer stabilizer mixture is disclosed in at least Thibaut (EP0719824) alone, or alternatively, in view of Lustiger (US 2009/0130443). Thibaut discloses a method of manufacturing a pellet in a pellet mill (¶ 3; Examples). The method includes obtaining a strand from a mixture and comminuting the strand to obtain the pellet (Examples), wherein the mixture for compaction includes (i) a polymer stabilizer mixture including 22.2 parts by weight Irganox 1010, 44.5 parts by weight of Irgafos 168 and 33.3 parts by weight of calcium stearate (all falling within the claimed ranges; Example 5; ¶ 101). Thibaut also discloses adding a processing aid (¶¶ 24-25), but is silent as to the claimed range, or the components of the pellet mill. However, in the same field of endeavor of producing pellets, Lustiger discloses a method of manufacturing a pellet in a pellet mill (¶ 31; fig. 2), including a roller and a die with a nozzle (¶¶ 56-57), the method includes pressing a mixture for compacting by the roller through the nozzle to obtain a strand (¶¶ 56-57), and comminuting the strand to obtain the pellet (¶¶ 56-57), wherein the mixture for compaction includes a polymer mixture and 10 wt % of a processing aid (¶ 52; Licocene PP 1502, which is described in the instant specification as having a melting enthalpy of 13 J/g (Table B-1 of the instant specification)). As taught by Lustiger, adding 10% of the processing aid Licocene PP 1502 as a pre-step in the pelleting mill process ensures a uniform and consistent distribution (¶ 52). It would have been obvious to one having ordinary skill in the art prior to the effective filing date of the application to have included 10% of the processing aid Licocene PP 1520 as a pre-step in the pelleting mill process of Thibaut in order to ensure uniform and consistent distribution of the polymers in the pellet.
The requirement is still deemed proper and is therefore made FINAL.
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 31-40 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-4 and 7-11 of U.S. Patent No. 12,503,574 (‘574) in view of Thibaut (EP0719824).
Claim 31: Claim 1 of ‘574 discloses A method for manufacturing a pellet in a pellet mill, which comprises a roller and a die with a nozzle, which method comprises the steps of (A) pressing a mixture for compaction by the roller through the nozzle to obtain a strand, and (B) comminuting the strand to obtain the pellet, wherein the mixture for compaction comprises the components (i) 87 to 97 wt. % of a polymer stabilizer mixture, which comprises the polymer stabilizers (i-1) tris (2,4-ditert-butylphenyl) phosphite (CAS-No. 31570-04-4), (i-2) tetrakis-[3-(3,5-ditert-butyl-4-hydroxy-phenyl)-propionyloxymethyl] methane (CAS-No. 6683-19-8), (i-3) of a C16-C18 fatty acid calcium salt, and wt. % of the polymer stabilizers (i-1), (i-2), (i-3) and are based on the weight of the polymer stabilizer mixture, and (ii) 3 to 13 wt. % of a processing aid, which is a propylene-ethylene copolymer and which possesses a melting enthalpy below 100 J/g at 101.32 kPa, wherein the melting enthalpy is determined by a differential scanning calorimetry according to EN ISO 11357-3, and wt. % of the components (i) and (ii) are based on the weight of the mixture for compaction. Claim 1 of ‘574 is silent as to the claimed ranges of components (i-1), (i-2) and (i-3). However, Thibaut discloses a method of manufacturing a pellet in a pellet mill (¶ 3; Examples). The method includes obtaining a strand from a mixture and comminuting the strand to obtain the pellet (Examples), wherein the mixture for compaction includes (i) a polymer stabilizer mixture including 22.2 parts by weight Irganox 1010, 44.5 parts by weight of Irgafos 168 and 33.3 parts by weight of calcium stearate (all falling within the claimed ranges; Example 5; ¶ 101). Thibaut also discloses adding a processing aid (¶¶ 24-25). As taught by Thibaut, utilizing polymer stabilizes in the claimed range allow for the production of low-dust pellets having a long shelf life (¶ 3). It would have been obvious to one having ordinary skill in the art prior to the effective filing date of the application to have utilized polymer stabilizers in the claimed ranges to produce low-dust pellets having a long shelf life.
Claim 32: Claim 2 of ‘574 discloses the claimed Mw.
Claim 33: Claim 3 of ‘574 discloses the claimed melting peak temperature.
Claim 34: Claim 4 of ‘574 discloses the calcium stearate.
Claim 35: Claim 7 of ‘574 discloses the wax.
Claim 36: Claim 1 of ‘574 discloses the melting enthalpy being below 100 J/g, which encompasses the claimed range.
Claim 37: Claim 8 of ‘574 discloses the claimed ranges.
Claim 38: Claim 9 of ‘574 discloses the strand surface temperature being between 45 and 110C.
Claim 39: Claim 10 of ‘574 discloses a pre-step of feeding the mixture for compaction into the pellet mill in the form of a powder, and the pre-step occurs before step (A).
Claim 40: Claim 11 discloses the pellet mill being a flat die pellet mill having a planar plat with upper and lower sides and the nozzle represents a pass from the upper side to the lower side.
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.
Claims 31-40 are 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.
Claim 31 recites the limitation "the steps." There is insufficient antecedent basis for this limitation in the claim.
Claim 31 recites the limitation "the components." There is insufficient antecedent basis for this limitation in the claim.
Claim 31 recites the limitation "the polymer stabilizers." There is insufficient antecedent basis for this limitation in the claim.
Claim 31 contains the trademark/trade name having CAS-Nos. Where a trademark or trade name is used in a claim as a limitation to identify or describe a particular material or product, the claim does not comply with the requirements of 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph. See Ex parte Simpson, 218 USPQ 1020 (Bd. App. 1982). The claim scope is uncertain since the trademark or trade name cannot be used properly to identify any particular material or product. A trademark or trade name is used to identify a source of goods, and not the goods themselves. Thus, a trademark or trade name does not identify or describe the goods associated with the trademark or trade name. In the present case, the trademark/trade name is used to identify/describe polymer stabilizers and, accordingly, the identification/description is indefinite.
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 31-40 are rejected under 35 U.S.C. 103 as being unpatentable over Thibaut (EP0719824) in view of Lustiger (US 2009/0130443).
Claim 31: Thibaut discloses a method of manufacturing a pellet in a pellet mill (¶ 3; Examples). The method includes obtaining a strand from a mixture and comminuting the strand to obtain the pellet (Examples), wherein the mixture for compaction includes (i) a polymer stabilizer mixture including 22.2 parts by weight Irganox 1010, 44.5 parts by weight of Irgafos 168 and 33.3 parts by weight of calcium stearate (all falling within the claimed ranges; Example 5; ¶ 101). Thibaut also discloses adding a processing aid (¶¶ 24-25), but is silent as to the claimed range, or the components of the pellet mill. However, in the same field of endeavor, Lustiger discloses a method of manufacturing a pellet in a pellet mill (¶ 31; fig. 2), including a roller and a die with a nozzle (¶¶ 56-57; fig. 2), the method includes pressing a mixture for compacting by the roller through the nozzle to obtain a strand (¶¶ 56-57), and comminuting the strand to obtain the pellet (¶¶ 56-57), wherein the mixture for compaction includes a polymer mixture and 10 wt % of a processing aid (¶ 52; Licocene PP 1502, which is described in the instant specification as having a melting enthalpy of 13 J/g (Table B-1 of the instant specification)). As taught by Lustiger, adding 10 wt % of the processing aid Licocene PP 1502 as a pre-step in the pelleting mill process ensures a uniform and consistent distribution (¶ 52). It would have been obvious to one having ordinary skill in the art prior to the effective filing date of the application to have included 10% of the processing aid Licocene PP 1520 as a pre-step in the pelleting mill process of Thibaut in order to ensure uniform and consistent distribution of the polymers in the pellet.
Claim 32: Lustiger discloses the processing aid being Licocene PP 1502 (¶ 52), which is described in the instant specification as having a weight average molecular weight of 39 kDa (Table B-1 of the instant specification)).
Claim 33: Lustiger discloses the processing aid being Licocene PP 1502 (¶ 52), which is described in the instant specification as having a melting peak temperature of 73°C (Table B-1 of the instant specification)).
Claim 34: Thibaut discloses the C16-C18 fatty acid calcium salt being calcium stearate and parts by weight are based on the overall amount of C16-C18 fatty acid calcium salt in the polymer stabilizer mixture, which is 100 parts by weight (Example 5; ¶ 101).
Claim 35: Lustiger discloses the processing aid is a propylene-ethylene copolymer, which is a wax (¶ 52).
Claim 36: Lustiger discloses 10% of a processing aid (¶ 52; Licocene PP 1502, which is described in the instant specification as having a melting enthalpy of 13 J/g (Table B-1 of the instant specification)).
Claim 37: Lustiger discloses 10% of the processing aid, and 90% of the polymer mixture (¶ 52).
Claim 38: Lustiger discloses the pellet temperature from the pelleting mill to be 110°C or less (¶ 111), which overlaps the claimed range. Where ranges overlap, a prima facie case of obviousness is made out). In re Boesch, 617 F.2d 272, 275 (CCPA 1980). See also In re Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003) (a prima facie case of obviousness exists when the ranges of a claimed composition overlap the ranges disclosed in the prior art) and In re Harris, 409 F.3d 1339, 1341 (Fed. Cir. 2005) (same).
Claim 39: Lustiger discloses a pre-step of feeding the mixture for compaction into the pellet mill in the form of a powder, and the pre-step occurs before step (A) (¶¶ 52-55).
Claim 40: Lustiger discloses the pellet mill being a flat die pellet mill having a planar plate with upper and lower sides and the nozzle represents a pass from the upper side to the lower side (fig. 2).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to LARRY THROWER whose telephone number is (571)270-5517. The examiner can normally be reached 9am-5pm MT M-F.
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/LARRY W THROWER/Primary Examiner, Art Unit 1754