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 § 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 1-3, 5-15, 17 and 19-21 are rejected under 35 U.S.C. 103 as being unpatentable over Nakagawa et al. (USP 6,004,477).
Regarding claims 1-3, 8-9, 14-15, 17 and 19
Nakagawa discloses placing an oxygen absorbing composition into a small bag (i.e., bag shape) made of an air-permeable packaging material (i.e., oxygen absorber package (Example 27).
Nakagawa discloses hermetically sealing the composition in a vessel under a dry inert gas (i.e. storing the oxygen absorber)(column 9, line 41 to column 10, line 17). As such it would be obvious to store the oxygen absorbing material that is in the air-permeable packaging inside of the sealed vessel under an inert atmosphere to prevent its reaction with oxygen in the atmosphere.
Although, Nakagawa is silent as to the pressure of the inert gas the use of standard conditions or 1 ATM would be obvious which is greater than 0.10 MPa.
Nakagawa discloses an oxygen absorber composition comprising an oligomer in liquid form having an unsaturated group such as butadiene oligomer, and an oxygen absorbing-accelerating substance, being supported on a carrier, and another gas absorbent (abstract).
Nakagawa discloses that the oxygen absorption-accelerating substance (i.e., catalyst) may be a salt of a transition metal (column 5, lines 11-27).
Nakagawa discloses that the other gas absorbent that activated carbon may be used (claim 12), and that the carbon material is crushed activated carbon (i.e., granular material) (Example 1).
Nakagawa discloses that a solid having a high heat of fusion of at least 190 mJ/mg and a melting point in the range of 80 to 150 C is added to suppress heat generation (column 2,lines 23-39). Further, Nakagawa discloses that this solid may be a thermoplastic polyethylene (i.e., particles) having a crystallinity of at least 65 % (column 8, lines 43-64).
With respect to the limitations of the analysis curve under pyrolysis conditions is a property of the composition, and as Nakagawa discloses an identical composition it would be expected to also have the same properties. When the reference discloses all the limitations of a claim except a property or function, and the examiner cannot determine whether or not the reference inherently possesses properties which anticipate or render obvious the claimed invention but has basis for shifting the burden of proof to applicant as in In re Fitzgerald, 619 F.2d 67, 205 USPQ 594 (CCPA 1980). See MPEP § § 2112- 2112.02.
Regarding claim 5
Nakagawa discloses 125 parts by weight butadiene oligomer and 150 parts by weight polyethylene (Example 27), which is a ratio of 1.2.
Regarding claim 6
Nakagawa discloses 125 parts by weight of the butadiene oligomer and 100 parts by weight of the activated carbon (Example 27),providing a carbon:oligomer ratio of 0.8. Although this does not overlap the claimed range, it is not so far away that the skilled artisan would expect a difference in properties, and a prima facie case of obviousness exists where the claimed ranges and prior art ranges do not overlap but are close enough that one skilled in the art would have expected them to have the same properties. Titanium Metals Corp. v. Banner, 778 F.2d 775, 227 USPQ 773 (Fed. Cir. 1985).
Regarding claim 7
Nakagawa discloses 150 parts by weight polyethylene and 100 parts by weight activated carbon (Example 27), which is a ratio of 1.5.
Regarding claims 10-12
Nakagawa discloses the use of diatomaceous earth as the carrier (Example 9), which has a bulk density of 0.080.26 g/cm3.
Regarding claim 13
Nakagawa discloses a method that would have the polyethylene particles substantially not absorbed on the granular activated carbon (Example 27).
Regarding claim 20
The comprising language of the claims do not disallow for other components to be present.
Regarding claim 21
The reference does not disclose a temperature as such room temperature would be obvious and within the claimed range.
Claim 4 is rejected under 35 U.S.C. 103 as being unpatentable over Nakagawa et al. (USP 6,004,477), as applied to claims 1-3, 5, 7-15, 17 and 19-21 above, in view of Powers et al. (US 2013/0231398).
Regarding claim 4
Although Nakagawa does not disclose the use of activated carbon from coconut shells, Nakagawa does disclose the use of activated carbon. However, Powers also directed to oxygen absorbing materials discloses that coconut shell activated carbon is preferred for its activity in catalyzing the oxygen absorption (para 0009). Therefore it would have been prima facie obvious to one of ordinary skill in the art at the time of the invention to add to the teachings of Nakagawa by using coconut shell activated carbon as the activated carbon, with a reasonable expectation and the expected benefit of catalyzing the oxygen absorption, as suggested by Powers.
Response to Arguments
Applicants argue against the prior art rejections.
Applicants argue against the 102 rejection. Applicants arguments are persuasive and the 102 rejections have been withdrawn.
Applicants argue against the 103 rejections.
Applicants argue that Nakagawa does not describe any method of storing the oxygen absorber itself, but is rather for preserving an article. This is not persuasive as this method does store the oxygen absorber even if it has a different purpose aside from simply preserving the oxygen absorber.
Applicants argue unexpected results, but have provided no evidence of such.
Applicants argue that the primary reference teaches away from the claimed invention. This is not persuasive as nothing in the reference suggest that any combination would not work.
The remaining arguments have been fully considered but are not persuasive for the same reasons given above.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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 JAMES E MCDONOUGH whose telephone number is (571)272-6398. The examiner can normally be reached Mon-Fri 10-10.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Jonathan Johnson can be reached at 5712721177. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
JAMES E. MCDONOUGH
Examiner
Art Unit 1734
/JAMES E MCDONOUGH/Primary Examiner, Art Unit 1734
Prosecution Insights