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.
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 1-6 are rejected under 35 U.S.C. 103 as being unpatentable over Shimizu et al. (US 2016/0032039).
Regarding claim 1, Shimizu et al. teaches a fluoropolymer (¶16) comprising monomer units of tetrafluoroethylene (¶17) and CF2=CF—(CF2)x—CF=CF2 wherein x is 2 to 24 (corresponds to claimed formula 2) as a cross-linking agent (¶39). Experimental Example 2 uses 1.4 phr of initiator and 1.5 phr of cross-linking agent (¶62). Assuming 100 phr of fluoropolymer and that the fluoropolymer is all tetrafluoroethylene, the fluoropolymer is present in 97.2% by weight, the initiator is present in 1.4% by weight, and the cross-linking agent is present in 1.5% by weight (calculated by Examiner; 100+1.4+1.5=102.9; then each value divided by 102.9 and then multiplied by 100). Then, assuming 100 g of the cross-linked fluoropolymer, the tetrafluoroethylene is present in 0.972 mol (97.2g÷100g/mol), the initiator is present in 0.005 mol (1.4÷290g/mol; see Perhexa 25B data sheet included herewith for molecular weight), and the cross-linking agent is present in 0.003 mol (1.5÷462g/mol; molecular weight of formula 2 when x=6). These molar amounts provide a tetrafluoroethylene amount of 99.1 mol% and a cross-linking agent amount of 0.3 mol% (0.972+0.003+0.005=0.980; then each value divided by 0.980 and then multiplied by 100). These values fall within the ranges claimed.
The specific examples of fluoropolymers are copolymers formed of the monomer units listed in ¶17. However, there is no requirement that two or more monomers are chosen and it is disclosed that the fluoropolymer may only contain one (¶17). Therefore, at the time of the filing of the instant invention, a person of ordinary skill in the art would have found it obvious to use a tetrafluoroethylene homopolymer as the fluoropolymer, and would have been motivated to do so because Shimizu et al. teaches that it is a suitable fluoropolymer for the disclosed invention.
Regarding claim 2, Shimizu et al. does not teach that the fluoropolymer has a spectral intensity ratio (h1/h0) of a peak height (h1) appearing at 1030 to 1040 cm−1 to a peak height (h0) appearing at 2360 to 2370 cm−1, obtained by infrared absorption spectral analysis of the fluoropolymer, is 0.001 or more. The Office realizes that all of the claimed effects or physical properties are not positively stated by the reference. However, the reference teaches all of the claimed ingredients in the claimed amounts made by a substantially similar process. Moreover, 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 amounts. Therefore, the claimed effects and physical properties, i.e., a spectral intensity ratio (h1/h0) of 0.001 or more, 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 there is no teaching as to how to obtain the claimed properties with only the claimed ingredients.
Regarding claim 3, Shimizu et al. does not teach that the fluoropolymer has a spectral intensity ratio (h2/h0) of a peak height (h2) appearing at 1780 to 1800 cm−1 to a peak height (h0) appearing at 2360 to 2370 cm−1, obtained by infrared absorption spectral analysis of the fluoropolymer, is 0.20 or less. The Office realizes that all of the claimed effects or physical properties are not positively stated by the reference. However, the reference teaches all of the claimed ingredients in the claimed amounts made by a substantially similar process. Moreover, 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 amounts. Therefore, the claimed effects and physical properties, i.e., a spectral intensity ratio (h2/h0) of 0.20 or less, 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 there is no teaching as to how to obtain the claimed properties with only the claimed ingredients.
Regarding claim 4, Shimizu et al. does not teach that the fluoropolymer has a peak temperature of 300° C or more. The Office realizes that all of the claimed effects or physical properties are not positively stated by the reference. However, the reference teaches all of the claimed ingredients in the claimed amounts made by a substantially similar process. Moreover, 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 amounts. Therefore, the claimed effects and physical properties, i.e., a peak temperature of 300° C or more, 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 there is no teaching as to how to obtain the claimed properties with only the claimed ingredients.
Regarding claim 5, Shimizu et al. does not teach that the fluoropolymer has a melt viscosity measured at 380° C of 1.0 x 103 to 7.0 x 106 poise. The Office realizes that all of the claimed effects or physical properties are not positively stated by the reference. However, the reference teaches all of the claimed ingredients in the claimed amounts made by a substantially similar process. Moreover, 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 amounts. Therefore, the claimed effects and physical properties, i.e., a melt viscosity measured at 380° C of 1.0 x 103 to 7.0 x 106 poise, 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 there is no teaching as to how to obtain the claimed properties with only the claimed ingredients.
Regarding claim 6, Shimizu et al. does not teach that the fluoropolymer is a powder. However, changes in shape are typically not sufficient to patentably distinguish over the prior art. MPEP 21440.4 IV. At the time of the filing of the instant invention, a person of ordinary skill in the art would have found it obvious to have the fluoropolymer as a powder, and would have been motivated to do so because a powder is easier to sell, transport, and store, and in some cases, is preferable for molding applications.
Claims 7-12 are rejected under 35 U.S.C. 103 as being unpatentable over Shimizu et al. (US 2016/0032039) as applied to claim 1 above, and further in view of Kanega et al. (US 2009/0023863).
Regarding claims 7-9, Shimizu et al. teaches the fluoropolymer of claim 1 as set forth above. Shimizu et al. does not teach that the fluoropolymer is present in a composition with a different fluoropolymer that is a perfluoroelastomer, or that the fluoropolymer is present in an aqueous dispersion. However, Kanega et al. teaches a composition comprising a blend of a fluorine-containing elastomer copolymer (polymer E) and a fluorine-containing resin copolymer (copolymer P) (¶9). The fluorine-containing elastomer copolymer can be a copolymer of tetrafluoroethylene (TFE) and perfluoro(ethyl vinyl ether) (FAVE), which is a perfluoroelastomer (¶14). The fluorine-containing resin copolymer is a copolymer of vinylidene fluoride (VdF) with tetrafluoroethylene (TFE) (¶30) and can be mostly TFE (Table 1, copolymer H). Further, the blend is carried out by having each copolymer in an aqueous emulsion (dispersion) (¶34). Shimizu et al. and Kanega et al. are analogous art because they are from the same field of endeavor as that of the instant invention, namely that of fluoropolymers and their compositions. At the time of the filing of the instant invention, a person of ordinary skill in the art would have found it obvious to blend the fluoropolymer, as taught by Shimizu et al., with the fluoroelastomer, as taught by Kanega et al., to make a blend, and would have been motivated to do so in order to produce a composition for molding which has the desired normal state physical properties and compression set values while not containing fillers which can cause particle generation (¶4-6, 8).
Regarding claim 10, Kanega et al. teaches that the blend comprises about 55% to about 95% by weight the elastomer copolymer and about 5% to 45% by weight of the resin copolymer (¶35). Assuming 100 parts by weight of the elastomer copolymer, the copolymer resin is present in from about 5 to about 82 parts by mass (calculated by Examiner; x/(100+x)=0.05 and =0.45).
Regarding claims 11 and 12, Kanega et al. additionally teaches that the blend composition comprises peroxide as a cross-linking agent and produces cross-linked moldings (¶38).
Correspondence
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ANGELA C SCOTT whose telephone number is (571)270-3303. The examiner can normally be reached Monday-Friday, 8:30-5:00, EST.
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/ANGELA C SCOTT/Primary Examiner, Art Unit 1767
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