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 1-26 are rejected under 35 U.S.C. 103 as being unpatentable over Bassett (US 3,361,852) in view of Hanford (US 2,473,996).
With respect to claim 1, Bassett discloses composition having excellent impact resistance and blush resistance (col. 1, l. 19-21). The composition of Bassett is utilized to make shaped articles such as films, extruded or molded items such as packaging and containers (col. 1, l. 30-45). The composition comprises polypropylene polymers and vinyl ester polymers. Vinyl esters include but are not limited to: vinyl acetate, vinyl butyrate and vinyl propionate as specific examples (col. 3, l. 11-14) however, specification of Basset enables one of ordinary skill in the art to utilize vinyl ester moiety that contains 2-18 carbon atoms (col. 2, l. 1-3).
While Bassett discloses polymer composition comprising a range of the carbon atoms in the vinyl ester monomer, Basset is silent regarding branching.
However, Hanford discloses composition that are characterized by excellent tensile strength, high tear resistance and can be extruded.
Hanford discloses use of ethylene-vinyl esters, wherein esters are branched and still have the same content of carbon atoms as those of Bassett.
In the light of the above disclosure, it would have been obvious to one having ordinary skill in the art at the time instant invention was filed to utilize the ethylene/vinyl ester compounds of Hanford in the disclosure of Bassett. Utilizing ethylene/vinyl ester of Hanford that can also be extruded and formed into a film, which is one of the specific items that Bassett makes from his composition. Incorporating such polymer in lieu of ethylene/vinyl ester of Bassett would still result in composition having high impact resistance because of presence of rubber but also add resistance to hydrolysis , tensile strength and tear resistance.
With respect to claim 2, polypropylene of Bassett can be a homopolymer (see examples, wherein no modification is taught or content of any other monomer).
With respect to claims 3 and 4, polypropylene composition, in order to improve impact resistance can include polyolefin rubber, such as ethylene/propylene rubber which would render the matrix component as heterophasic (see examples).
With respect to claim 6, Hanford claims in patented claim 9, a specific vinyl ester polymer, which is ethylene/vinyl trimethyl acetate that meets the requirement of instant formula (I) also known as vinyl pivalate.
With respect to claim 7, Hanford further teaches that the branched vinyl ester component can have 5-10 carbon atoms, wherein according to patented claim 1, the carboxyl group is attached to a carbon atom having at least 4 valences satisfied by the carbon atoms. Since carbon atom has to have 4 bonds, at least 2 would include all three remaining valences as carbons, or R4 can be hydrogen and R5 can be C7, which is encompassed by requirement of 5-10 carbon atoms in each ester component. Since the applicants did not indicate any requirements as to how the 7 carbons are distributed through the vinyl ester, one of ordinary skill in the art would seek already known in the art substituents.
“[A]nalysis [of whether the subject matter of claim would have been obvious] need no seek out precise teachings directed to the specific subject matter of the challenged claim, for a court to take account of the inferences and creative steps that a person of ordinary skill in the art would employ.“ KSR Int’l v. Teleflex, Inc. 127 S. Ct 1727, 1740-1741, 82 USPQ2d 1385, 1396 (2007) (quoting In re Kahn, 441, F.3d 977, 988, 78 USPQ2d 1329, 1336-37 (Fed. Cir. 2006)). See DyStar Textilfarben GmBH & Co. Deutschland KG v. C.H. Patric Co., 464 F.3d 1356, 1361, 80 USPQ2d 1641, 1645 (Fed. Cir 2006) (“The motivation need not be found in the references sought to be combined, but may be found in any number of sources, including common knowledge, the prior art as a whole, or the nature of the problem itself.”; In re Bozek, 416 F.2d 1385, 1390, 163 USPQ 545, 549 (CCPA 1969)
With respect to claim 8 and 10, ethylene/vinyl aster polymers of Bassett or Hanford contain only one acetate and not combination of vinyl acetate and branched acetate.
With respect to claim 11, vinyl ester content in the ethylene/vinyl ester copolymer of Hanford is 3.3% example 1 in col. 3, l. 61), 5.5 (example 2), 2.3% (example 3) and the like, all of which are within claimed range.
With respect to claims 12 and 13, claim 1 of Bassett discloses use of polypropylene in amount of 50-96% and content of ethylene/vinyl ester in amount of 2-25 parts all of which are encompassed by the claimed ranges.
With respect to claim 14, composition of Bassett utilizes the same ASTM method (see col. 3) and discloses melt flow rate of 1.1 (see Table in col. 4).
With respect to claim 15, while Bassett does not explicitly disclose the glass transition temperature of the composition such is met for the following reason. One of ordinary skill in the art would know that glass transition of the composition depends on the components and their content. Since Bassett as modified by Hanford teaches composition comprising polypropylene and ethylene vinyl ester which composition has melt flow rate within claimed range, and density within the same rage as those of the instant invention (see instant [0066]), the class transition temperature is bound to be within the same range. Especially when other that having the same chemical structure both properties of density and MFR will directly affect the glass transition temperature of the composition. Additionally several properties for the composition are met as is explained below.
With respect claim 19, Bassett’s composition has secant modulus of 92,000 psi, which when converted is approximately 634 MPa (see Table in. col. 4).
With respect to claim 20, Bassett discloses composition having deflection temperature of 103oC (see Table in col. 4),
With respect to claim 23, composition of Bassett has Rockwell hardness 39 (see Table in col. 4).
With respect to claims 24 and 25, how ethylene/vinyl ester is polymerized is a product by process limitation. Having said that Hanford polymerizes the ethylene/vinyl ester polymer at temperatures above 50oC (col. 1, l. 49) and pressures between 800-1500 atm (col. 2, l. 1-30), which when converted to bar ranges between 810 to 1519 bar.
With respect to claim 26, Bassett discloses that composition can include additives such as antioxidants and pigments as well as other additives if desired in normal and conventional amounts (col. 3, j. 1-3).
With respect to claims 5 and 16-23, with respect to properties of glass transition temperatures, dart impact puncture, tensile stress, tensile modulus, flexural modulus secant, break at strain, yield strain:
The Office realizes that all of the claimed effects or physical properties are not positively stated by the reference(s). However, the reference(s) teaches all of the claimed ingredients as claimed in the independent claim 1 on which claims 16-23 depend, and which composition is made by a substantially similar process. The original specification does not identify a feature that results in the claimed effect or physical property outside of the presence of the claimed components in the claimed amount (see experimental section and tables starting [0096]). Therefore, the claimed effects and physical properties, i.e. (glass transition temperatures, tensile stress, dart impact puncture, tensile modulus, flexural modulus secant, break at strain, yield strain) would naturally arise and be achieved by a composition with all the claimed ingredients. "Products of identical chemical composition cannot have mutually exclusive properties." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). 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. See MPEP § 2112.01. If it is the applicant’s position that this would not be the case: (1) evidence would need to be provided to support the applicant’s position; and (2) it would be the Office’s position that the application contains inadequate disclosure that there is no teaching as to how to obtain the claimed properties with only the claimed ingredients.
Claims 27-31 are rejected under 35 U.S.C. 103 as being unpatentable over Bassett (US 3,361,852) in view of Hanford (US 2,473,996).
With respect to claim 27, Bassett teaches a method of making polypropylene composition, which comprises melt mixing polypropylene component with vinyl ester at 200oC.
Vinyl esters include but are not limited to: vinyl acetate, vinyl butyrate and vinyl propionate as specific examples (col. 3, l. 11-14) however, specification of Basset enables one of ordinary skill in the art to utilize vinyl ester moiety that contains 2-18 carbon atoms (col. 2, l. 1-3).
While Bassett discloses polymer composition comprising a range of the carbon atoms in the vinyl ester monomer, Basset is silent regarding branching.
However, Hanford discloses composition that are characterized by excellent tensile strength, high tear resistance and can be extruded.
Hanford discloses use of ethylene-vinyl esters, wherein esters are branched and still have the same content of carbon atoms as those of Bassett.
In the light of the above disclosure, it would have been obvious to one having ordinary skill in the art at the time instant invention was filed to utilize the ethylene/vinyl ester compounds of Hanford in the disclosure of Bassett. Utilizing ethylene/vinyl ester of Hanford that can also be extruded and formed into a film, which is one of the specific items that Bassett makes from his composition. Incorporating such polymer in lieu of ethylene/vinyl ester of Bassett would still result in composition having high impact resistance because of presence of rubber but also add resistance to hydrolysis , tensile strength and tear resistance.
With respect to claim 28, the components are melt mixed because the melt temperatures in the process so that the composition can be injection molded into test pieces. Additionally the example specifically utilizes term “melt-mixing”
With respect to claim 29, components are solid at room temperatures and are in form of a finely ground mixture (col. 2, l. 62) which meets the definition of granule and powder.
With respect to claim 30, the article formed can be any shaped article such as containers, films and the like (col. 3, l. 3-8).
With respect to claim 31, the articles are formed by extrusion, molded, injection molding (see col. 2, l. 60 to col. 3, l. 5).
Correspondence
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/KATARZYNA I KOLB/Primary Examiner, Art Unit 1767 January 2, 2025