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 .
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.
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
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.
Claims 1-5, 9-10 are rejected under 35 U.S.C. 103 as being unpatentable over Nakano (U.S. 20160331073).
Nakano exemplifies in Example 1 (A-1) an ethylene/1-octene copolymer which has an MFR2.16 of 2 and the total amount of unsaturated bonds (according to the claimed A-iv see ¶[0203]) of 0.93. These two properties read over A-iii and A-iv of Claim 1.
The exemplified ethylene/1-octene copolymer does not meet the amount of ethylene in mol % (A-i), and the density (A-ii) of Claim 1.
In ¶[0029] Nakano teaches the amount of ethylene in mol % is preferably 80 to 95 mol %.
In ¶[0042] Nakano teaches the density of the copolymers may be between 0.857 to 0.905 g/cm3 and varies values in this range are exemplified in Table 1 but for other α-olefins (butene).
Note that Example 3 is ethylene/butene copolymer which also reads over (A-i), (A-iii) and (A-iv).
It would have been obvious to a person having ordinary skill in the art at the time the invention was filed to practice the invention of Nakano, in particular that of Example 1, had a density of 0.857 to 0.905 g/cm3 and an amount of ethylene of 80 to 95 mol %, or alternatively that Example 3 had a density of 0.857 to 0.905 g/cm3 and/or with copolymerized with 1-octene as the α-olefin because Nakano teaches these material properties and/or α-olefins as copolymerizable monomers as discussed above. Note the balance of the 80-95 mol% ethylene must be the α-olefin.
The above overlaps (A-i) and (A-ii) of Claim 1 for the ethylene/1-octene copolymer and also, alternatively, the ethylene/butene copolymer with 1-octene as the α-olefins and/or (A-ii) of Claim 1. Either the explicit ethylene/1-octene copolymer or the modified substituted ethylene/1-octene copolymer from the butene exemplification reads over the copolymer of Claim 3.
Nakano does not exemplify grafting a polar monomer onto any exemplified copolymer. Nakano teaches in ¶[0105]-¶[0115] the graft modification of the above copolymers with 0.2 to 10 mass % of a polar monomer (¶[0115]) which is particularly preferred to be maleic anhydride (¶[0110]).
It would have been obvious to a person having ordinary skill in the art at the time the invention was filed to practice the invention of Nakano, in particular that of Example 1 and Example 3 as modified above, such that 0.2 to 10 mass % of maleic anhydride was grafted on these copolymers because Nakano teaches this type of graft modification is possible and prefers the above amounts and polar monomers.
This grafting reads over the graft and polar compound of Claim 1 and the maleic anhydride reads over the polar compound of Claim 2 and the graft amount overlaps the range of (X-ii) of Claim 4.
With respect to Claim 4 (X-i) and Claim 5, these claims represent the properties of the underlying (A-i) to (A-iii) after graft modification. As Nakano does not exemplify graft modification and only teaches it generally as discuss above, Nakano is silent on these properties.
However, Nakano is clear the underlying copolymers have certain required MFR2.16, MFR10/M2.16 (8.5 to 12 preferred ¶0037]), density 0.857 to 0.905 g/cm3 ¶[0042]) and above amounts of maleic anhydride grafting and ethylene molar amounts. The ranges of maleic anhydride and the ethylene / α-olefin molar amounts are not reasonably suggested to change by grafting as the amount grafted is specifically taught and the grafting process does not change the amount of monomer structure derived from ethylene or octene monomer. Nakano teaches overlapping ranges of the MFR and density recited in the claims and these ranges are for specific purposes in Nakano. Based on this analysis, one of ordinary skill in the art is reasonably suggested, when tested appropriately, the above discussed modified ethylene α-olefins copolymers of Nakano after graft modification must still have overlapping ranges of (X-i) to (X-vi) after modification thereby reading over Claim 4 (X-i) and Claim 5 limitations.
Nakano teaches pellets of the above copolymers in ¶[0156/157] and exemplifies making pellets out of compositions including the above copolymers and ethylene-vinyl acetate copolymers. Nakano also teaches shaped products out of these copolymers and pellets in ¶[0181-200]. Therefore, one of ordinary skill in the art would have been motivated to make pellets and shaped articles out of the graft copolymers as discussed above because Nakano teaches these pellets and shaped articles for the underlying ethylene copolymers and does not exclude the grafted versions from the teachings. This reads over Claim 9 and Claim 10.
Claims 1-11 are rejected under 35 U.S.C. 103 as being unpatentable over Tanimoto (WO2020230827; reference made to U.S. 20220203585) in view of Nakano (U.S. 20160331073).
Tanimoto exemplifies compositions comprising 70 parts of PA 6 and 20 parts of an ethylene/1-octene copolymer (mEOR) which is exemplified as Fusabond MN493D. When taken together (i.e. as 100 mass % ) the amount of PA 6 and m-EOR is ~ 78 mass % PA 6 and ~22 wt% m-EOR. This reads over the amounts of Claim 6 and the PA 6 reads over the polyamide 6 and aliphatic polyamide of Claim 7 and Claim 8.
Tanimoto also teaches foamed injection molding of shaped parts in ¶[0150] and ¶[0154] which reads over Claim 11.
It is unclear if the Fusabond MN493D necessarily meets (X-i)-(X-vi) of Claim 6 or the (A-i)-(A-iv) of Claim 1.
Nakano, working in the field of grafted ethylene/1-octene copolymer compositions similar to Applicant, teaches foamed compositions containing specific ethylene/1-octene copolymers which can be grafted (¶[0105]) which have high adhesive strength to substrates such as polyamides (¶[0117]) and good dimensional stability and excellent moldability for crosslinked products in particular foamed crosslinked products. ¶[0021]
One of ordinary skill in the art is reasonably suggested the polyamide substrate adhesion property of Nakano relates to better affinity for the grafted ethylene/1-octene copolymer with the polyamide compositions as the surface of the polyamide and the internal polyamide are not reasonably suggested to be all that different from a chemical perspective as they both have the same amide bonds for an acid modified grafted ethylene/1-octene copolymer. This is especially true as Nakano reasonably suggests maleic anhydride grafted ethylene/1-octene copolymer (see below) and the Fusabond exemplified by Tanimoto also is maleic anhydride grafted ethylene/1-octene copolymer.
Similarly, Tanimoto teaches and suggests in ¶[0109] increased affinity and reaction of acid functional groups between the cellulose nanofibers. This affinity between the polyamide and the cellulose nanofibers to the maleic anhydride grafted ethylene/1-octene copolymer reasonably suggests crosslinking without the actual word as the affinity would serve as crosslinks.
It would have been obvious to a person having ordinary skill in the art at the time the invention was filed to practice the invention of Tanimoto by substituting a maleic anhydride grafted ethylene/1-octene copolymer according to Nakano for the exemplified Fusabond when using the foamed injection molding of Tantimoto for the advantage of using a maleic anhydride grafted ethylene/1-octene copolymer that has high adhesive strength to substrates such as polyamides (¶[0117]) (in other words bonding to the polyamide matrix material in the composition as discussed above) and good dimensional stability and excellent moldability for crosslinked products in particular foamed crosslinked products. ¶[0021] One of ordinary skill in the art would have been motivated to choose a maleic anhydride grafted ethylene/1-octene copolymer according to Nakano because the exemplified Fusbond is a maleic anhydride grafted ethylene/1-octene copolymer.
With respect to the specific A and X requirements of Claims 1-5 and 9-10, Nakano exemplifies in Example 1 (A-1) an ethylene/1-octene copolymer which has an MFR2.16 of 2 and the total amount of unsaturated bonds (according to the claimed A-iv see ¶[0203]) of 0.93. These two properties read over A-iii and A-iv of Claim 1.
The exemplified ethylene/1-octene copolymer does not meet the amount of ethylene in mol % (A-i), and the density (A-ii) of Claim 1.
In ¶[0029] Nakano teaches the amount of ethylene in mol % is preferably 80 to 95 mol %.
In ¶[0042] Nakano teaches the density of the copolymers may be between 0.857 to 0.905 g/cm3 and varies values in this range are exemplified in Table 1 but for other α-olefins (butene).
Note that Example 3 is ethylene/butene copolymer which also reads over (A-i), (A-iii) and (A-iv).
It would have been obvious to a person having ordinary skill in the art at the time the invention was filed to practice the invention of Nakano, in particular that of Example 1, had a density of 0.857 to 0.905 g/cm3 and an amount of ethylene of 80 to 95 mol %, or alternatively that Example 3 had a density of 0.857 to 0.905 g/cm3 and/or with copolymerized with 1-octene as the α-olefin because Nakano teaches these material properties and/or α-olefins as copolymerizable monomers as discussed above. Note the balance of the 80-95 mol% ethylene must be the α-olefin.
The above overlaps (A-i) and (A-ii) of Claim 1 for the ethylene/1-octene copolymer and also, alternatively, the ethylene/butene copolymer with 1-octene as the α-olefins and/or (A-ii) of Claim 1. Either the explicit ethylene/1-octene copolymer or the modified substituted ethylene/1-octene copolymer from the butene exemplification reads over the copolymer of Claim 3.
Nakano does not exemplify grafting a polar monomer onto any exemplified copolymer. Nakano teaches in ¶[0105]-¶[0115] the graft modification of the above copolymers with 0.2 to 10 mass % of a polar monomer (¶[0115]) which is particularly preferred to be maleic anhydride (¶[0110]). One of ordinary skill in the art would have been motivated to choose 1 mass % of maleic anhydride grafting as this is the amount exemplified for the similar graft copolymer in Tantimoto. The maleic anhydride reads over the polar compound of Claim 2. This reads over (X-ii) of Claim 4 and also (X-iii) of Claim 5 and Claim 6.
With respect to Claim 4 (X-i) and Claim 5, these claims represent the properties of the underlying (A-i) to (A-iii) after graft modification. As Nakano does not exemplify graft modification and only teaches it generally as discuss above, Nakano is silent on these properties.
However, Nakano is clear the underlying copolymers have certain required MFR2.16, MFR10/M2.16 (8.5 to 12 preferred ¶0037]), density 0.857 to 0.905 g/cm3 ¶[0042]) and above amounts of maleic anhydride grafting and ethylene molar amounts. The ranges of maleic anhydride and the ethylene / α-olefin molar amounts are not reasonably suggested to change by grafting as the amount grafted is specifically taught and the grafting process does not change the amount of monomer structure derived from ethylene or octene monomer. Nakano teaches overlapping ranges of the MFR and density recited in the claims and these ranges are for specific purposes in Nakano. Based on this analysis, one of ordinary skill in the art is reasonably suggested, when tested appropriately, the above discussed modified ethylene α-olefins copolymers of Nakano after graft modification must still have overlapping ranges of (X-i) to (X-vi) after modification thereby reading over Claim 4 (X-i) and Claim 5 limitations.
The above also reads over Claim 6’s X limitations as they are the same as Claim 5’s
Nakano teaches pellets of the above copolymers in ¶[0156/157] and exemplifies making pellets out of compositions including the above copolymers and ethylene-vinyl acetate copolymers. Nakano also teaches shaped products out of these copolymers and pellets in ¶[0181-200]. Therefore, one of ordinary skill in the art would have been motivated to make pellets and shaped articles out of the graft copolymers as discussed above because Nakano teaches these pellets and shaped articles for the underlying ethylene copolymers and does not exclude the grafted versions from the teachings. Tantimoto also teaches pellets and shaped articles as discussed above. This reads over Claim 9 and Claim 10.
If Applicant intends to argue there is criticality which gives an unexpected result to the compositions in light of the teachings of the prior art, Applicant is reminded such arguments to unexpected results can only be properly considered when all the factors in MPEP §716.02 are properly taken into account. Overcoming a §103 rejection based on unexpected results requires the combination of three different elements: the results must fairly compare with the prior art, the claims must be commensurate in scope and the results must truly be unexpected. (See MPEP §716.02) Applicant’s showing of allegedly unexpected results must satisfy ALL of these requirements. Additionally, MPEP §716.01(b) states a “nexus” between the claimed invention and the evidence of secondary considerations, such as unexpected results, must be present. The burden rests with Applicant to establish results are unexpected and significant. (MPEP §716.02(b)).
Applicant is reminded the above conditions are not “or” conditions but “and” conditions. If Applicant intends to argue allegedly unexpected results in the use of the specific graft copolymers claimed in compositions, the required nexus is not present as the claims, at least, have MFR10/2.16 ratios that are unbounded and the demonstrations are only with respect to aliphatic polyamide compositions with grafted copolymers within the scope of the claimed inventions. It is unclear how the results are probative of any other types of polyamides, other non-polyamide pellets/compositions and there are no results demonstrating anything allegedly unexpected on the parts of the grafted ethylene/1-octene copolymer themselves. Therefore, the required nexus between the demonstrations and the claims is not met.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CHRISTOPHER M RODD whose telephone number is (571)270-1299. The examiner can normally be reached 7 am - 3:30 pm (Pacific).
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/Christopher M Rodd/Primary Examiner, Art Unit 1766
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