Claims 1-7 are pending in the application. Claims 1-6 are rejected.
All of the rejections have been maintained.
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.
Claims 1-7 are rejected under 35 U.S.C. 103 as being unpatentable over US 2019/0014907 to Hisamatsu et al. (hereinafter “Hisamatsu”).
As recited by claim 1, the thermoplastic resin expanded beads molded article comprises:
an average porosity of 10-25%;
on a surface of the molded body, a ratio of a total opening area of through hole portions of the expanded beads to a surface area of the molded article in a range of 2-5%;
an average opening area of through hole portions of the expanded beads of 5-20 mm2; and
the ratio of a total number of through holes having an opening area of 2 mm2 or more to the total number of through hole portions of the expanded beads of 60% or less.
Hisamatsu discloses a vehicle seat core member formed from a thermoplastic resin expanded beads molded body and a frame member embedded in the molded body (abstract). The thermoplastic resin expanded beads molded body comprises thermoplastic resin expanded beads having through holes, which are mutually fused with a porosity (A) of 10 to 40% (abstract). In particular, the molded body has a porosity of 10 % and 20% (example 1, and examples 2-2). This is within the claimed range. The molded body has a density of 20 to 60 kg/m3 (paragraph 58). In particular, the molded body has a density of 32 kg/m3 (paragraph 92). This is within the claimed range.
The expanded beads constituting the molded body are multilayer expanded beads comprise an expanded core layer and a covering layer provided on the expanded core layer (paragraphs 85 and 86). A base material resin of the expanded core layer is polypropylene-based resin having a melting temperature of 142oC (paragraph 86). That is an exact polypropylene-based resin disclosed in the Applicant’s disclosure. Therefore, the examiner takes the position that a flexural modulus of 1200 MPa or less would be present as like material has like property. The core member is prepared by the same cracking molding process as described in the Applicant’s disclosure (paragraph 92).
Hisamatsu does not explicitly disclose: (B) on a surface of the molded body, a ratio of a total opening area of through hole portions to a surface area of 2-5%; and (D) the ratio of the total number of through hole portions having an opening area of 2 mm2 or more to the total number of through hole portions of the expanded beads of 60% or less.
However, it appears that the molded body of Hisamatsu meets all structural limitations and chemistry required by the claims. The molded body comprises thermoplastic resin expanded beads having through holes, which are mutually fused with a porosity (A) of 10 to 40% (abstract). In particular, the molded body has a porosity of 10 % and 20% (example 1, and examples 2-2). This is within the claimed range. The molded body has a density of 20 to 60 kg/m3 (paragraph 58). In particular, the molded body has a density of 32 kg/m3 (paragraph 92). This is within the claimed range.
The expanded beads constituting the molded body are multilayer expanded beads comprise an expanded core layer and a covering layer provided on the expanded core layer (paragraphs 85 and 86). A base material resin of the expanded core layer is polypropylene-based resin having a melting temperature of 142oC (paragraph 86). That is an exact polypropylene-based resin disclosed in the Applicant’s disclosure. The core member is prepared by the same cracking molding process as described in the Applicant’s disclosure (paragraph 92).
The expanded beads have a bulk density of 27 kg/m3, and an average mass of 1.5 mg within the ranges disclosed in the Applicant’s disclosure (paragraph 114). The expanded beads further have the through holes with a diameter ranging from 1 mm to 5 mm (paragraph 34), resulting in an average opening area (π(d/2)2) of the through hole portions (C) of 0.79 to 19.6 mm2.
Therefore, the examiner takes the position that features (B) and (D) would inherently be present as like material has like property. This is in line with In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977) which holds that if the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, the claimed properties or functions will be presumed to be inherent. The burden is shifted to the applicant to show unobvious differences between the claimed product and the prior art product.
Turning to table 1 of Applicant’s disclosure, so long as feature (A) in the range of 10 to 20% and the molded body density of 20 to 30 kg/m3 (examples 1-3), the sample exhibits: feature (B) of 2-5%; and (D) of 31-47%. Feature (A) increases with increasing features (B) and (D). If feature (A) is within the range of 10 to 20%, the features (B) and (D) will be able to attain in the ranges of 2-5%; and less than 60%, respectively (comparative examples 1-4). The inherency is fully supported by the data presented in table 1 of the pending application.
The recitation “for a laminate in which polyurethane foam is laminated on the core member” is an intended use limitation. It has been held that a recitation with respect to the manner in which a claimed core member is intended to be employed does not differentiate the claimed core member from a prior art molded body satisfying the claimed structural limitations. Ex parte Masham, 2 USPQ2d 1647 (1987).
Hisamatsu discloses the expanded beads having the through holes with a diameter ranging from 1 mm to 5 mm (paragraph 34), resulting in an average opening area of the through hole portions (C) of 0.79 to 19.6 mm2. This overlaps the claimed range.
In the case, where the claimed ranges overlap or touch the range disclosed by the prior art a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257,191 USPQ90 (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).
The claim is not rendered unobvious because discovering the optimum or workable ranges involves only routine skill in the art. Difference in an average opening area of the through hole portions will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such an average opening area of the through hole portions is critical or provides unexpected results. Therefore, in the absence of unexpected results, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to use an average opening area of the through hole portions in the range instantly claimed, motivated by the desire to obtain the desired porosity of the expanded beads molded body. This is in line with In re Aller, 105 USPQ 233 which holds discovering the optimum or workable ranges involves only routine skill in the art.
As to claim 2, Hisamatsu does not explicitly disclose a porosity of a surface layer portion of the molded body of 10 to 20% and a ratio of the porosity of the surface layer portion to the average porosity of 1 to 1.2.
However, it appears that the molded body of Hisamatsu meets all structural limitations and chemistry required by the claims. The molded body comprises thermoplastic resin expanded beads having through holes, which are mutually fused with a porosity of 10 to 40% (abstract). In particular, the molded body has a porosity of 10 % and 20% (example 1, and examples 2-2). This is within the claimed range. The molded body has a density of 20 to 60 kg/m3 (paragraph 58). In particular, the molded body has a density of 32 kg/m3 (paragraph 92). This is within the claimed range.
The expanded beads constituting the molded body are multilayer expanded beads comprise an expanded core layer and a covering layer provided on the expanded core layer (paragraphs 85 and 86). A base material resin of the expanded core layer is polypropylene-based resin having a melting temperature of 142oC (paragraph 86). That is an exact polypropylene-based resin disclosed in the Applicant’s disclosure. The core member is prepared by the same cracking molding process as described in the Applicant’s disclosure (paragraph 92).
The expanded beads have a bulk density of 27 kg/m3, and an average mass of 1.5 mg within the ranges disclosed in the Applicant’s disclosure (paragraph 114). The expanded beads further have the through holes with a diameter ranging from 1 mm to 5 mm (paragraph 34), resulting in an average opening area of the through hole portions (π(d/2)2) of 0.79 to 19.6 mm2.
Therefore, the examiner takes the position that the porosity of a surface layer portion of the molded body of 10 to 20% and a ratio of the porosity of the surface layer portion to the average porosity of 1 to 1.2 would be present as like material has like property. This is in line with In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977) which holds that if the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, the claimed properties or functions will be presumed to be inherent. The burden is shifted to the applicant to show unobvious differences between the claimed product and the prior art product.
As to claim 3, the molded body has a density of 20 to 60 kg/m3 (paragraph 58). In particular, the molded body has a density of 32 kg/m3 (paragraph 92).
As to claim 4, the expanded beads constituting the molded body are multilayer expanded beads comprise an expanded core layer and a covering layer provided on the expanded core layer (paragraphs 85 and 86).
As to claim 5, a base material resin of the expanded core layer is polypropylene-based resin having a melting temperature of 142oC (paragraph 86). That is an exact polypropylene-based resin disclosed in the Applicant’s disclosure. Therefore, the examiner takes the position that a flexural modulus of 1200 MPa or less would be present as like material has like property.
As to claim 6, a laminate is comprised of a polyurethane foam laminated on the core member (paragraph 27).
As to claim 7, Hisamatsu does not explicitly disclose the airflow volume of the molded article in a range from 270 to 330 L/min.
However, it appears that the molded body of Hisamatsu meets all structural limitations and chemistry required by the claims. The molded body comprises thermoplastic resin expanded beads having through holes, which are mutually fused with a porosity of 10 to 40% (abstract). In particular, the molded body has a porosity of 10 % and 20% (example 1, and examples 2-2). This is within the claimed range. The molded body has a density of 20 to 60 kg/m3 (paragraph 58). In particular, the molded body has a density of 32 kg/m3 (paragraph 92). This is within the claimed range.
The expanded beads constituting the molded body are multilayer expanded beads comprise an expanded core layer and a covering layer provided on the expanded core layer (paragraphs 85 and 86). A base material resin of the expanded core layer is polypropylene-based resin having a melting temperature of 142oC (paragraph 86). That is an exact polypropylene-based resin disclosed in the Applicant’s disclosure. The core member is prepared by the same cracking molding process as described in the Applicant’s disclosure (paragraph 92).
The expanded beads have a bulk density of 27 kg/m3, and an average mass of 1.5 mg within the ranges disclosed in the Applicant’s disclosure (paragraph 114). The expanded beads further have the through holes with a diameter ranging from 1 mm to 5 mm (paragraph 34), resulting in an average opening area of the through hole portions (π(d/2)2) of 0.79 to 19.6 mm2.
Therefore, the examiner takes the position that the airflow volume would inherently be present as like material has like property. This is in line with In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977) which holds that if the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, the claimed properties or functions will be presumed to be inherent. The burden is shifted to the applicant to show unobvious differences between the claimed product and the prior art product.
Turning to table 1 of Applicant’s disclosure, feature (A) increases with increasing airflow volume. If feature (A) is within range of 10 to 20%, the airflow volume will be able to achieve from 285 to 304 L/min (comparative examples 1-4). The inherency is fully supported by the data presented in table 1 of the pending application.
Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over Hisamatsu as applied to claim 1 above, and further in view of US 2018/0022886 to Oikawa et al. (hereinafter “Oikawa”).
Assuming that Hisamatsu does not teach the polypropylene-based resin of the base material of the expanded core layer having a flexural modulus of 1200 MPa or less, the claim is not rendered unobvious. A person of ordinary skill in the art would refer to the disclosure of Oikawa regarding the flexural modulus of the polypropylene-based resin to achieve excellent fusion bonding properties and surface quality.
Indeed, Oikawa discloses a molded body composed of multilayer expanded beads comprising an expanded core layer and a covering layer provided on the expanded core layer (abstract). The expanded core layer is obtained from a resin composition comprising 65 to 98% by weight of a first polypropylene with a first melting point of 145 to 165oC, and a first flexural modulus of 1200 MPa or more; and 2 to 35% by weight of a second polypropylene with a second melting point of 100 to 145oC, and a second flexural modulus of 800 to 1200 MPa (paragraph 30).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to use a polypropylene-based resin composition from Oikawa for formation of the expanded core layer disclosed in Hisamatsu motivated by the desire to promote fusion bonding properties and surface quality.
Response to Arguments
Applicant alleges that feature (D) is not necessarily present when feature (A) is met because as shown in comparative example 3 of the Applicant’s disclosure, features (A), (B) and (C) are within the claimed ranges while feature (D) of 61% is outside the claimed range.
The examiner respectfully disagrees.
Firstly, according to table 1 of the pending application, feature (D) of less than 60% will be inherently present when feature (A) is within the range of 13-17%. Nowhere do the data support the molded article having feature (A) above 20% can attain feature (D) of less than 60%.
Secondly, feature (A) increases with increasing features (B) and (D). If feature (A) is within the range of 10 to 20%, features (B) and (D) will be able to attain in the ranges of 2-5%; and less than 60%, respectively (comparative examples 1-4). The inherency is fully supported by the data presented in table 1 of the pending application.
Therefore, as feature (A) of Hisamatsu is within the range of 10 to 20%, it is not seen that features (B) and (D) could not be present.
Accordingly, the rejections over Hisamatsu and further in view of Oikawa have been maintained.
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Hai Vo whose telephone number is (571)272-1485. The examiner can normally be reached M-F: 9:00 am - 6:00 pm with every other Friday off.
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/Hai Vo/
Primary Examiner
Art Unit 1788