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 .
Response to Arguments
With respect to the Double Patenting rejection over co-pending application 18/494139, the rejection will be maintained until terminal disclaimer is filed.
With respect to the anticipation rejection, and careful reconsideration of the prior art the examiner agrees that the melamine compound in both rejections is melamine phosphate not melamine metal phosphate. However, the melamine phosphate is still a synergist for the metal phosphinate and it is functional equivalent to melamine metal phosphate. Consequently, second non-final rejection is issued correcting the deficiency.
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 § 102
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1, 5, 7, 9, 13-19 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Immel (US 2015/0148468.
With respect to claims 1, Immel teaches composition comprising:
15-90 wt.% of polyamide mixture which comprises aliphatic nylon-6,6 and nylon-4,6 [0030-0031, 0035-0036]] as components a and b.
5-70 wt.% of glass fibers [0032, 0037] which are long fibers [0050] (continuous) as component c.
0.01-3 wt.% of thermal stabilizers as component d [0033, 0038].
5-20 wt.% of flame retardants [0066-0067] as component f, wherein particular interest is given to metal phosphinates [0069] and melamine phosphates [0070]. Wherein melamine phosphates are defined in [0069] as: melamine phosphate, melamine pyrophosphate, melamine polyphosphates, melamine poly(aluminum phosphate) and melamine poly(zinc phosphate).
Melamine poly(zinc phosphate) meets instant claim 5
Glass fibers meet instant claim 7.
Thermal stabilizer meets the definition of heat stabilizer of instant claim 9. Antioxidants are listed in [0055] wherein US 4,360,617 is incorporated by reference. The antioxidant of ‘617 is copper salt of trip triphenyl phosphite.
With respect to claim 14, aluminum phosphonate meets the limitation of formula (I) [0069]. Other compounds in [0067] from the same genus include zinc bis(diethyl phosphinate) which meets formula (II). Others include zinc phosphinate, zinc phosphate. To make the above compounds starting materials will inherently include, for example, diethyl phosphinic acid of instant claim 15.
With respect to claim 16, while Immel states that zinc borate can be utilized in it mentioned in a form of melamine phosphate and/or zinc borate. Since the rejection relies on melamine-based compound, zinc borate is viewed as optional.
Nylon-6,6 further meets the limitation of instant claims 13, 17-18.
Immel further discloses option to utilize additional polyamide which is semi-aromatic polyamide [01540] in lieu of nylon-4,6 in an amount of 10-20 wt.% which meets instant claim 19.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1, 5, 8, 13-15, 17-19 are rejected under 35 U.S.C. 103 as being unpatentable over Togawa (JP 2010-031257) in view of Immel (US 2015/0148468).
With respect to claims 1, Tagawa discloses polyamide composition comprising following additives (claim 1):
8-40 wt.% of (B) carbon fibers, fibers are long fibers (claim 2)
2-10 wt.% of (C) carbon black (encompassed by term “comprising”
13-30 wt.% of (D) phosphorous-based flame retardant system.
The flame retardant system of Togawa according to his claim 4 includes melamine phosphate compound and metallic phosphinate.
While claim 1 of Togawa does not recite the amount of polyamide such can be easily found in examples, where the polyamide content depicted in Table 1, which is in a range of 38-69 wt.%.
Togawa as disclosed above teaches metal phosphinate compounds and a synergist which is melamine phosphate. However, the melamine phosphate of Togawa does not contain metal.
Immel discloses another polyamide composition as described in the paragraph 1 of this office action.
As it is shown in the teachings of Immel, metal derivative of the melamine polyphosphate is a functional equivalent which is a synergist to phosphonite compounds. Consequently, it would have been obvious to one having ordinary skill in the art at the time instant invention as filed to utilize melamine metal phosphate or polyphosphate. Specifically, melamine poly(zinc phosphate) which meets instant claim 5.
With respect to claim 8, fibers of Togawa are arranged in a parallel manner [0034]
With respect to claims 14 and 15, the phosphinate compounds include metal salts [0022] of following chemical structures:
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204
626
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And
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200
586
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Wherein M is Ca, AL, Mg, Ba and Zn
With respect to claims 13, 17-19, polyamide include nylon 6 and nylon 6,6, wherein two polyamide resins can be mixed together [0015], nylon 6 being exemplified. Other polymers of Togawa include MCD6, and the like.
Clams 1, 2, 4-9, 11, 13-19 are rejected under 35 U.S.C. 103 as being unpatentable over by Bauer (EP 3665218 submitted by the applicant. Certified English translation IN 202017002820 is used as translation) in view of Immel (US 2015/0148468).
With respect to claims 1 and 7, Bauer discloses composition comprising (p. 2-4)
Polyamide or polyamide blend 25-95 wt.%
Glass fibers 1-40 wt.% long glass fibers are depicted on p. 12, continuous on p. 13
Phosphinic metal salt 5-20 wt.%
Phosphonic acid 0.05-1.5 wt.%
Phosphonic acid salt 0.001-1 wt.%
Melamine polyphosphate 2-10 wt.%
Phenolic antioxidant 0.01-5 wt.%
Phosphinite 0.01-5 wt.%
Wherein additional phosphorous based compounds are encompassed by term “comprising”.
Bauer as disclosed above teaches metal phosphinate compounds and a synergist which is melamine phosphate. However, the melamine phosphate of Bauer discloses melamine metal polyphosphate as one of many additives.
Immel discloses another polyamide composition as described in the paragraph 1 of this office action.
As it is shown in the teachings of Immel, metal derivative of the melamine polyphosphate is a functional equivalent which is a synergist to phosphonite compounds. Consequently, it would have been obvious to one having ordinary skill in the art at the time instant invention as filed to utilize melamine metal phosphate or polyphosphate which would form synergistic effect as argued by the applicants. Specifically, melamine poly(zinc phosphate) which meets instant claim 5.
With respect to claims 2 and 4, the comparative tracking is measured using IEC-60112 (p. 29) and it is 600V (Table 1) along with UL-94 rating of V-0, time of less than 250 seconds.
With respect to claims 5 and 6, preference is given to melamine poly(zinc phosphate) (p.22. l. 11). Wherein the amount of melamine is in a range of 2-10 wt.% (p. 4).
With respect to claim 8, Bauer discloses continuous fiber are in form of a threads, wherein fibers within a thread are oriented in substantially the same direction.
With respect to claim 9, Bauer discloses use antioxidants and stabilizers (p. 21-22)
With respect to claim 11, Bauer discloses use of antioxidants which are listed on p. 16 of his reference, however, particular preference is given to Irgafos 168 (p. 21).
With respect to claims 13, 17-19, Bauer discloses use of polyamides are thermoplastic (p. 9, l 30) and include aliphatic polyamides (nylon 6) semi-aromatic polyamides (nylon 6,6) as well as others (p. 11, l. 9-15). Table 1 exemplifies also a polyamide blend of aliphatic and semi-aromatic polyamides.
With respect to claim 14 and 15, the metal phosphinate component C and E are salts having following formula (p. 2):
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116
422
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Or
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110
318
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Wherein starting acid is diethylphosphinic acid.
With respect to claim 16, Bauer does not use zinc borate.
Claim 3 is rejected under 35 U.S.C. 103 as being unpatentable over Bauer (EP 3665218) and Immel (US 2015/0148468) further in view of Padmamaban (US 2019/0256656).
Discussion of the teachings of Bauer from paragraph 3 and Immel from paragraph 1 of this office action is incorporated here by reference. In summary, Bauer discloses thermoplastic polyamide composition comprising glass fibers, flame retardant system comprising melamine polyphosphate and metal salt of phosphonic acid along with long continuous glass fibers and that include organic and inorganic stabilizers, the antioxidant is Irgafos 168.
Composition of Bauer meets the CTI required by instant claims as well as UL94 rating and the content of the ingredients overlaps with those of the instant invention.
With respect to claim 3, Bauer does not explicitly teach the limiting oxygen index (LOI). However, this property is obvious as reflected in Langrick.
One of ordinary skill in the art would readily understand that the LOI depends on several factors which includes degree of cure, filler and fiber content, flame retardant and additives and temperature.
Padmamaban discloses flame retardant polyamide composition, wherein polyamide includes MDX, polyamide 6 and polyamide 6,6 [0059], [0088], flame retardant additives which include glass fiber in overlapping amount with Bauer [0099], wherein flame retardants include phosphates, melamine polyphosphates or salts of phosphonic acids [0104-0111]. The composition of Padmamaban also has UL-90 rating of 0 [0128] with flame time of less than 30 second (Table 1) [051], which is also encompassed by Bauer.
Padmamaban discloses that the LOI for compositions such as those enabled in both references is 25 or more [0127]. While Padmamaban does not specifically disclose the method, the result would be expected to be within the same rage, because as it was stated above LOI depends on the aspects of the composition which overlap between both Bauer and Padmanaban.
In the light of the above disclosure it would have been obvious to one having ordinary skill in the art that composition disclosing the same components (polymers, flame retardants, glass fibers and antioxidants) would have similar properties because compounds and their properties are mutually exclusive and combination of the components would have cumulative effect, rendering properties such as LOI obvious.
Claims 9 and 10 are rejected under 35 U.S.C. 103 as being unpatentable over Bauer (EP 3665218) and Immel (US 2015/0148469) further in view of Gabriel (US 2014/0252265) as evidenced by Briffaud (US 2018/0370208).
Discussion of the teachings of Bauer from paragraph 3 and Immel from paragraph 1 of this office action is incorporated here by reference. In summary, Bauer discloses thermoplastic polyamide composition comprising glass fibers, flame retardant system comprising melamine polyphosphate and metal salt of phosphonic acid along with long continuous glass fibers and that include organic and inorganic stabilizers, the antioxidant is Irgafos 168.
While Bauer discloses additives that includes other antioxidants, UV stabilizers (light), co-stabilizers, hydrolysis stabilizers and the like (p. 21, l. 17) Bauer does not disclose details of such additives.
Gabriel discloses polyamide composition, wherein polyamides include nylon 6, nylon 66 and the like [0036]. The polyamide of Gabriel is a flame retardant composition [0044] and additives such as fibers [0040], however, the most important aspect of Gabriel is his stabilization additive, which are known to stabilize polyamides.
On order to stabilize polyamides, Gabriel adds “usual additives: which include antioxidants, heat stabilizers, UV stabilizers (light) [0060] wherein two additives specifically names is an antioxidant and copper stabilizer Brugg Olen TP-H7004 [0061].
As evidenced in Bifraud who also teaches how to better stabilize polyamide composition with inorganic stabilizers based on copper [0143] “copper-based stabilizers” are utilized to long-term heat resistance in hot air, in particular for higher temperatures because they prevent polymer chain scission [00144].
In the light of the above disclosure, it would have been obvious to one of ordinary skill in the art at the time instant invention was filed to utilize combination of at least antioxidant and copper-based stabilizer and thereby obtain the claimed invention. Utilizing copper-based stabilizer such as that of Gabriel would prevent degradation of polyamides which is result of the chain scission.
Claim 12 is rejected under 35 U.S.C. 103 as being unpatentable over Bauer (EP 3665218) in view of Gabriel (US 2014/0252265), Immel (US 2015/0148468) and Hoerold (US 2016/0009918) as evidenced by Briffaud (US 2018/0370208).
Discussion of the teachings of Bauer from paragraph 3, Immel from paragraph 1 and Gabriel from paragraph 5 of this office action is incorporated here by reference. In summary, Bauer discloses thermoplastic polyamide composition comprising glass fibers, flame retardant system comprising melamine polyphosphate and metal salt of phosphonic acid along with long continuous glass fibers and that include organic and inorganic stabilizers, the antioxidant is Irgafos 168.
Gabriel as evidenced on Biffraud further discloses combination of antioxidants with copper stabilizer.
Bauer fails to teach use of carboxamide compound.
Hoerold discloses polyamide flame retardant composition comprising the same polyamide wherein nylon 6 and nylon 6,6 combination is preferred [0030], glass fiber [0039], wherein flame retardants have improved hydrolytic stability [0050]. Flame retardants are also based of melamine polyphosphates [0065] and salts of phosphonic acid [0068] and antioxidants [0077-0079]. The composition of Hoerold has UL-94 value of 0 and CTI of at least 550 V (examples show 600 [0012].
Hoerold also teaches addition of esteramides. Specific compound is based on benzenedicarboxamide [0041], which is well known in the art as enhancing heat and light stability long term just like copper based stabilizers.
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 benzenedicarboxamide of Hoerold as part of the stabilizer additive and thereby obtain the claimed invention.
Such modification would further enhance light and heat stability of the polyamide flame retardant composition while maintaining its UL-94 rating and CT Index.
Claims 20 rejected under 35 U.S.C. 103 as being unpatentable over Bauer (EP 3665218) Immel (US 2015/0148468) further in view of Gabriel (US 2014/0252265) as evidenced by Briffaud (US 2018/0370208).
With respect to claim 20, Bauer discloses composition comprising (p. 2-4)
Polyamide or polyamide blend 25-95 wt.%
Glass fibers 1-40 wt.% long glass fibers are depicted on p. 12, continuous on p. 13
Phosphinic metal salt 5-20 wt.%
Phosphonic acid 0.05-1.5 wt.%
Phosphonic acid salt 0.001-1 wt.%
Melamine polyphosphate 2-10 wt.%
Phenolic antioxidant 0.01-5 wt.%
Phosphinite 0.01-5 wt.%
Wherein additional phosphorous based compounds are encompassed by term “comprising”
Bauer as disclosed above teaches metal phosphinate compounds and a synergist which is melamine phosphate. However, the melamine phosphate of Bauer discloses melamine metal polyphosphate as one of many additives.
Immel discloses another polyamide composition as described in the paragraph 1 of this office action.
As it is shown in the teachings of Immel, metal derivative of the melamine polyphosphate is a functional equivalent which is a synergist to phosphonite compounds. Consequently, it would have been obvious to one having ordinary skill in the art at the time instant invention as filed to utilize melamine metal phosphate or polyphosphate which would form synergistic effect as argued by the applicants. Specifically, melamine poly(zinc phosphate) which meets instant claim 5.
In disclosure of Bauer the comparative tracking is measured using IEC-60112 (p. 29) and it is 600V (Table 1) along with UL-94 rating of V-0, time of less than 250 seconds.
While Bauer discloses additives that includes other antioxidants, UV stabilizers (light), co-stabilizers, hydrolysis stabilizers and the like (p. 21, l. 17) Bauer does not disclose details of such additives.
Gabriel discloses polyamide composition, wherein polyamides include nylon 6, nylon 66 and the like [0036]. The polyamide of Gabriel is a flame retardant composition [0044] and additives such as fibers [0040], however, the most important aspect of Gabriel is his stabilization additive, which are known to stabilize polyamides.
On order to stabilize polyamides, Gabriel adds “usual additives: which include antioxidants, heat stabilizers, UV stabilizers (light) [0060] wherein two additives specifically names is an antioxidant and copper stabilizer Brugg Olen TP-H7004 [0061].
As evidenced in Bifraud who also teaches how to better stabilize polyamide composition with inorganic stabilizers based on copper [0143] “copper-based stabilizers” are utilized to long-term heat resistance in hot air, in particular for higher temperatures because they prevent polymer chain scission [00144].
In the light of the above disclosure, it would have been obvious to one of ordinary skill in the art at the time instant invention was filed to utilize combination of at least antioxidant and copper-based stabilizer and thereby obtain the claimed invention. Utilizing copper-based stabilizer such as that of Gabriel would prevent degradation of polyamides which is result of the chain scission.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-8, 13-19 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-6, 10, 13-16, 20 of copending Application No. 18/494,139. Although the claims at issue are not identical, they are not patentably distinct from each other because:
Claims 1, 10, 13 17-19 of instant invention recited the same components which include polyamide, long reinforcing fibers and flame retardant system. While instant claim 1 discloses overall amount of the melamine polyphosphate and metal phosphinate, the ‘139 invention discloses the same information in form of the ratio of the two components. These ratios are met in combination with instant claim 6 of instant invention which reads on ratio 1:1 higher when the amount of phosphonic acid component is synergist is higher.
Instant claim 2 discloses subject to the same UL-94 test, the same CTI standards which are also recited in co-pending claim 4.
Instant claim 3 requires the same LOI index using the same standard as in co-pending claim 4.
Instant claims 7 and 8 disclose glass fibers that are oriented and spaces apart in a substantially similar direction. While co-pending claim 5 is open to any type of fibers, the fibers have to be arranged in the same manner.
Instant claims 14 and 15 discloses the same flame retardant chemical structure as that of co-pending claims 6 and 20 where substituents are defined the same.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Correspondence
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/KATARZYNA I KOLB/Primary Examiner, Art Unit 1767 June 18, 2026
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