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 .
Information Disclosure Statement
It is noted that the Present Application has been filed without any information disclosure statement.
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 1-20 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.
Independent claim 1 is very indefinite in regards to the metes and bounds of the following components:
1) It is unclear if the “wood flour/wood fiber”component is a required component or only an optional component, because according to dependent claim 2, the concentration of the “wood flour/wood fiber” component is from “0%-5% weight percent”. From here on out the Examiner will consider the “wood flour/wood fiber” component as only an optional component. In any case, what is meant by “wood flour/wood fiber” is very unclear because applicant’s specification has no specific definition for “wood flour/wood fiber”, yet applicant’s dependent claims 3, 13, 16 and 19 all list components such as: alfalfa, wheat pulp, straw, cotton, rice hulls, peanut shells, bamboo, bagasse and kenaf in “the wood flour/wood fiber” Markush group, but these components are clearly not in fact wood. Other components listed in said Markush group are paper and carboard, which are not wood themselves, but can be made from wood. Furthermore, still other listed components in said Markush group are coconut shells, plant fibers and palm fibers which are not really wood either;
2) “an accelerator” to do what exactly? (Note: Applicant’s specification is silent on what an accelerator does and is also silent on what type of compounds are considered accelerators);
3) “an inhibitor” to do what exactly (e.g. corrosion inhibitor, thermal inhibitor and/or radiation (e.g. UV) inhibitor)? (Note: Applicant’s specification is silent on what the inhibitor does and is also silent on what type of compounds are considered inhibitors); and
4) “a compatibilizer” to do what exactly? (Note: Applicant’s specification is silent on what an compatibilizer does and is also silent on what type of compounds are considered compatibilizers).
Independent claim 1 is also very indefinite because many of the claimed components read directly on each other (i.e. overlap in scope).
As way of illustration, the “thermoplastic material” reads directly on the “lubricant” component when the lubricant is selected to be a wax (see page 4, line 13 of Applicant’s specification). Does this mean that when wax is selected as the lubricant, no other thermoplastic material is required?
As way of further illustration, the “accelerator” component, would at least by its name, seem to also function as an “enhancer” component, thus making the demarcation between these two components unclear.
As way of still further illustration, the “compatibilizer” component, would at least by its name, seem to also function as an “enhancer” component, thus making the demarcation between these two components unclear.
As way of still further illustration, the “flame-retardant additive” component overlaps in scope with the “an enhancer” component. (Note: Applicant’s specification only reference to “an enhancer” is to the use of partially hydrated magnesium-calcium carbonate and/or a spherical alumina to increase enhancement of flame retardancy as a synergistic material to increase temperature resistance to flame, see page 5, lines 1-50). Yet, both partially hydrated magnesium-calcium carbonate and a spherical alumina are individually well known in the art to function as flame retardants for thermoplastics, and not just to act as synergistic materials, thus making the demarcation between these two components unclear.
Finally, the “blowing agent” overlaps in scope with the “enhancer” component when the “enhancer” component is selected to be partially hydrated magnesium-calcium carbonate because under the high heat generated during a fire, partially hydrated magnesium-calcium carbonate will decompose to generate both water vapor and carbon dioxide, both of which can individually function as “blowing-agents”.
In dependent claim 9, “Zinc Stearate” is listed as a flame retardant, but it not known in the art to be a flame retardant but rather as a lubricant. Does Applicant intend to claim Zinc Stannate instead?
All other claims are also rejected here because hey are either directly or indirectly dependent on rejected independent claim 1.
Claim Rejections - 35 USC § 103
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.
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.
EXAMINATION NOTE:
Due to the extreme indefinite nature of Applicant’s independent claim 1 and the claims dependent thereon, it is not really possible to make an accurate comparison of the scope of applicant’s claimed invention to the prior-art. Nevertheless, the Examiner will try to apply a relevant prior-art reference over applicant’s pending indefinite claims.
Claim(s) 1-20 are rejected under 35 U.S.C. 103 as being unpatentable over Bauer et al. U.S. Patent Application Publication No.: 2018/0072865 A1.
Bauer et al. discloses flame retardants mixtures comprising at least one dialkylphosphonic salt of formula (II) and at least one alkyl hydroxyalkylphosphinyl organocarboxylic acid salt or ester salt of formula (I). Said flame retardant mixtures are subsequently incorporated into wood products, cellulosic products and/or thermoplastic or thermoset polymers to provide them with flame retardant properties, see abstract, examples and claims (such as claim 25).
Some specifically disclosed thermoplastic polymers useful in the invention are polyethylene, polypropylene, polyester, polyamide, ethylene-vinyl acetate and derivative thereof etc., see paragraphs [0204] and [0212]-[0214].
The thermoplastic polymer are preferably cross-linked, see paragraphs [0231]-[0236] and thus reads on applicant’s cross-linking agent of claim 1.
Preferred additional flame retardant incorporated into the flame retardant mixture are magnesium hydroxide (reads on applicant’s flame retardant of claim 1 and dependent claim 10), magnesium calcium carbonate (also reads on applicant’s “an enhancer” component of independent claim 1, aluminum hydroxide (reads on applicant’s flame retardant of claim 1 and the alumina trihydrate flame retardant of dependent claims 9, 12, 15, and 18), zinc borate (reads on applicant’s flame retardant of claim 1 and dependent claims 9, 12, 15, and 18), and zinc stannate (reads on applicant’s flame retardant of claim 1 and dependent claims 9, 12, 15, and 18).
Additional components can also be incorporated into the flame retardant mixture, such as lubricants and blowing agents, see paragraph [0096] and claim 19, which read on applicant’s required lubricant and blowing agent components of independent claim 1. Please note that TABLE 5 directly discloses wax as a lubricant (reads directly on applicant’s lubricant component of dependent claim 8).
Additional components that can be included are heat stabilizers/light stabilizers and compatibilizers, see claim 19 (reads on applicant’s “inhibitor” component and “compatibilizer” component of independent claim 1). Additional further components (see claim 19) are seed-forming agents and nucleating agents, both of which read on applicant’s accelerator component of independent claim 1.
Bauer et al. differ from applicant’s claimed invention only in that there does not seem to be a direct teaching (i.e. by way of a specific example) to where all of applicant’s specifically claimed components are used together at the same time.
It would have been obvious to one having ordinary skill in the art, at the time of the invention, to use Bauer et al.’s disclosure as strong motivation to actually incorporate all of applicant’s specifically claimed components together, because combinations of these components fall directly within Bauer et al. overall disclosure. It is well known that it is not inventive to merely follow the direct disclosure of a prior-art reference. Furthermore, to use various combinations of flame retardants all together, such as magnesium hydroxide, alumina trihydrate (i.e. aluminum hydroxide), zinc borate and zinc stannate (see applicant’s dependent claim 12) would also be obvious because said combination not only fall within the broad disclosure of the reference, but also because it has been well established by the courts that to use two or more materials in combination for the same purpose they are individually known to be useful, is not inventive outside a showing of unexpected and superior results.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JOSEPH DAVID ANTHONY whose telephone number is (571)272-1117. The examiner can normally be reached M-F: 10:00AM-6:30PM.
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, Arrie (Lanee) Reuther can be reached at 571-270-7026. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JOSEPH D ANTHONY/Primary Examiner, Art Unit 1764
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