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 .
Drawings
The drawings are objected to because Figure 2, axis shown in grayscale are blurry, especially compared to Figure 1 (see MPEP §608.02(V) and 37 CFR 1.84(a)(l) Character of lines, numbers, and letters).
The drawings are objected to because Figure 3, numerical labels are overlapping each other and the intermingled with the sample curves making them difficult to read (see MPEP §608.02(V) and 37 CFR 1.84(a)(p)(3)).
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Specification Objections
The specification is objected to as failing to provide proper antecedent basis for the claimed subject matter noted in claim 14. See 37 CFR 1.75(d)(1) and MPEP § 608.01(o).
According to MPEP 2173.03:
A claim, although clear on its face, may also be indefinite when a conflict or inconsistency between the claimed subject matter and the specification disclosure renders the scope of the claim uncertain as inconsistency with the specification disclosure or prior art teachings may make an otherwise definite claim take on an unreasonable degree of uncertainty. In re Moore, 439 F.2d 1232, 1235-36, 169 USPQ 236, 239 (CCPA 1971); In re Cohn, 438 F.2d 989, 169 USPQ 95 (CCPA 1971); In re Hammack, 427 F.2d 1378, 166 USPQ 204 (CCPA 1970). For example, a claim with a limitation of "the clamp means including a clamp body and first and second clamping members, the clamping members being supported by the clamp body" was determined to be indefinite because the terms "first and second clamping members" and "clamp body" were found to be vague in light of the specification which showed no "clamp member" structure being "supported by the clamp body." In re Anderson, 1997 U.S. App. Lexis 167 (Fed. Cir. January 6, 1997) (unpublished).
The limitations of claim 14 contradict what is taught in paragraph 42 of the specification which compares the zero shear viscosity of the polyethylene-based resin to HDPE and not the zero shear viscosity of the LLDPE to the HDPE as is taught in claim 14.
As a result, claim 14 should be amended to reflect consistency with what is taught in the specification avoiding new matter.
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 18, 21, and 22 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.
In Claims 18, 21, and 22, Applicant uses the term “optionally” in a way that makes it unclear if the limitation that follows is considered to be within the metes and bounds of the instant claim. Clarification by applicant is required to define the metes and bounds of claims 18, 21, and 22 in the instant application.
Description of examples or preferences is properly set forth in the specification rather than the claims. If stated in the claims, examples and preferences may lead to confusion over the intended scope of a claim. In those instances where it is not clear whether the claimed narrower range is a limitation, a rejection under 35 U.S.C. 112(b) or pre-AIA 35 U.S.C. 112, second paragraph should be made. The examiner should analyze whether the metes and bounds of the claim are clearly set forth. Note that the mere use of the phrase "such as" or "for example" in a claim does not by itself render the claim indefinite. (see MPEP §2173.05(d)).
Claim Rejections - 35 USC § 102
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 the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1-16, and 25-26 are rejected under 35 U.S.C. 102 (a)(1) and (a)(2) as being anticipated by WO 96/14358 - Geussens, et al. (1996) hereinafter Geussens as evidenced by “Melt Rheology of Ethylene 1-Octene Copolymer Blends Synthesized by Ziegler-Natta and Metallocene Catalysts,” Kim et al. Korea Polymer Journal, Vol. 8, No. 1, pp 34-43 (2000), hereinafter Kim.
Regarding Claim 1, 15, and 16, Geussens teaches a molding composition of 91% HDPE 3 and 9% SLEP 2 (page 18, Table IB), where HDPE 3 is a high-density ethylene homopolymer (p. 14, l. 33) and SLEP 2 is AFFINITY FM 1570, the low-density component which is a substantially linear ethylene/1-octene copolymer (p. 15, l. 11-12). Geussens further teaches compositions can be used to manufacture molded articles… molding is any conversion technique applying heat and/or pressure to obtain a shaped article… examples include… injection stretch blow-molding (p. 13, l. 18-24).
Therefore, Geussens anticipates a polyethylene-based resin composition for injection stretch blow molding comprising: a co-crystallized blend of a high-density polyethylene (HDPE) base resin and a linear low-density polyethylene (LLDPE) (Claim 1), an article comprising this composition (Claim 15), and the article of claim 15, produced by injection stretch blow molding (Claim 16).
Regarding Claim 2, Geussens teaches a molding composition containing a low-density component, SLEP 2, described as AFFINITY FM 1570 (p. 15, l. 11) where AFFINITY is a trademark of The Dow Chemical Company (p. 15, l. 9-10).
Kim describes AFFINITY FM 1570 as a metallocene catalyzed copolymer of 1-octene and ethylene (See page 36, Table 1 – Metallocene Affinity FM1570; p. 34, col. 1 Introduction - “in general, LLDPE is a copolymer of 1-butene, 1-hexene, or 1-octene comonomer with ethylene”).
Therefore, Geussens anticipates the composition of claim 1 wherein the LLDPE is a metallocene LLDPE (mLLDPE) in that AFFINITY FM 1570 polymer is inherently a low density metallocene ethylene/1-octene polymer.
Regarding Claim 3, Geussens teaches the composition of claim 2 and further teaches a subclass of linear ethylene polymers suitable for the low-density component of the composition is a uniformly branched or homogeneous LLDPE with “no long chain branches,” having only branches derived from the monomers having more than two carbon atoms, and made using so-called single-site catalysts (p. 11, l. 21-26). A person of ordinary skill in the art would understand single-site catalysts to be metallocene catalysts.
Therefore, Geussens anticipates the composition of claim 2, wherein the mLLDPE further comprises a plurality of short chain branches of a comonomer.
Regarding Claim 4, Geussens teaches the composition of claim 3 and further teaches the low-density component includes linear interpolymers of ethylene and at least one further α-olefin having from 3-20 carbon atoms, wherein exemplary comonomers include propene, 1-butene, 1-pentene, 1-hexene, and 1-octene (p. 10, l. 1-5).
Therefore, Geussens anticipates the composition of claim 3, wherein the comonomer is selected from the group consisting of propene, 1-butene, 1-hexene, 1-octene, and norbornene.
Regarding Claim 5, Geussens teaches the composition of claim 3 and further teaches the low-density component includes linear interpolymers of ethylene and at least one further α-olefin, wherein exemplary comonomers include 1-hexene (p. 10, l. 1-5).
Therefore, Geussens anticipates the composition of claim 3, wherein the comonomer is 1-hexene.
Regarding Claim 6, Geussens teaches the composition of claim 3 and further teaches in Table IB where the low-density component is SLEP 2, which is AFFINITY FM 1570 (p. 15, l. 11-14). Furthermore, Kim reports that AFFINITY FM 1570 is a product which inherently has a comonomer (1-Octene) content of 7.5 wt% (Table I, p. 36).
Therefore, Geussens anticipates wherein the comonomer is present in the mLLDPE in an amount ranging from about 1.0 to 10% by weight.
Regarding Claim 7, Geussens teaches the composition of claim 1. Geussens further teaches an example in Table IB containing 91% HDPE 3 and 9% SLEP 2 where SLEP 2 is the low-density ethylene mLLDPE.
Therefore, Geussens anticipated wherein the LLDPE is present in the co-crystallized blend in an amount of 1.0 to 10 wt% of the composition.
Regarding Claim 8, Geussens teaches the composition of claim 1. Geussens further teaches AFFINITY FM 1570 having a density of 0.915 g/cm3 and a melt flow index of 1.0 g/10 min (p. 15, l. 11-14). Geussens further teaches density properties have been measured according to ASTM D-792 (p. 14, l. 6) and melt indices measured according to ASTM D-1238, Condition E 190°C/2.16kg (p. 13, l. 37-38).
Therefore, Geussens anticipated wherein the LLDPE has a density, measured according to ASTM D792, ranging from 0.915 to 0.933 g/cm3 and/or a melt flow index (MFI), measured according to ASTM D 1238 at 190 °C under a 2.16 kg load, of less than 2.0 g/10 min.
Regarding Claim 9, Geussens teaches the composition of claim 1. Geussens further teaches HDPE 3 having a density of 0.958 g/cm3 and a melt flow index of 1.7 g/10 min (p. 14, l. 33-36). Geussens further teaches density properties have been measured according to ASTM D-792 (p. 14, l. 6) and melt indices measured according to ASTM D-1238, Condition E 190°C/2.16kg (p. 13, l. 37-38).
Therefore, Geussens anticipates wherein the HDPE base resin has a density, measured according to ASTM D792, ranging from 0.946 to 0.970 g/cm3, and/or a melt flow index (MFI), measured according to ASTM D 1238 at 190 °C under a 2.16 kg load, ranging from 1.0 to 3.0 g/10 min.
Regarding Claim 10, Geussens teaches the composition of claim 1. Geussens further teaches a composition of 91% HDPE 3 and 9% SLEP 2 (Table IB, p. 18). The SLEP 2 (AFFINITY FM 1570) has a melt flow of 1.0 g/10 min and the HDPE 3 has a melt flow of 1.7 g/10 min. Thus, the ratio of melt flow index of the low density to the high-density components is 0.588.
Therefore, Geussens anticipates wherein a ratio of a melt flow index (MFI), as measured according to ASTM D 1238 at 190 °C under a 2.16 kg load, of the LLDPE to an MFI of the HDPE base resin is less than or equal to 1.
Regarding Claim 11, Geussens teaches the composition of claim 1. Geussens further teaches the compositions may be prepared by any suitable known method for blending ethylene-based polymers (p. 12, l. 35-36) and the mixing temperatures are preferably such that an intimate blend is obtained of the components and typical temperatures are more preferably above the softening or melting points of both of the components (p. 13, l. 3-6).
Therefore, Geussens anticipated wherein the LLDPE is fully miscible with the HDPE base resin in a molten state such that the LLDPE and the HDPE base resin exist as a single-phase structure. A person having ordinary skill in the art would know that a fully miscible mixture existing as a single phase is equivalent to an intimate blend.
Regarding Claim 12, Geussens teaches the composition of claim 1. Geussens further teaches a blended composition of 91% HDPE 3 and 9% SLEP 2 having a Modulus of 825 MPa (Table IB, p. 18). The HDPE 3 is reported to have a Modulus of 843 MPa (Table IA, p. 17).
Therefore, Geussens anticipated wherein the co-crystallized blend has the following property: a stiffness in a solid state within 10% of a stiffness of the HDPE base resin in a solid state without the LLDPE.
Regarding Claim 13, Geussens teaches the composition of claim 1. Geussens further teaches “The molding compositions of the present invention may be prepared by any suitable known method for blending ethylene-based polymers” (p. 12, l. 35-36) wherein “The mixing temperatures are preferably such that an intimate blend is obtained of the components. Typical temperatures are above the melting points of at least one, more preferably above the melting points of both of the components” (p. 13, l. 3-5).
Therefore, Geussens anticipated a method of producing the composition of claim 1, the method comprising: adding the LLDPE to the HDPE base resin at a molten state to provide a blend of HDPE and LLDPE, wherein at the molten state, the LLDPE is fully miscible with the HDPE base resin; and co-crystallizing the blend of HDPE and LLDPE. Applicants describe a co-crystallized blend as a blend such that the two polymers are entangled in a solid state (instant application ¶ [0030]). A person of ordinary skill in the art would understand the intimate blend of Geussens to be equivalent to the instant application blend entangled in a solid state.
Regarding Claim 14, Geussens teaches the method of claim 13, however, Geussens does not teach wherein a zero-shear viscosity of the LLDPE is within 1 to 1.5 times the zero shear viscosity of the HDPE base resin without the LLDPE.
The prior art composition taught by Geussens contains both LLDPE and HDPE anticipating the method of instant application claim 13 and the composition of instant application claim 1. Thus, a person having ordinary skill in the art would reasonably expect that the prior art composition would inherently have the claimed zero shear viscosity not specifically disclosed by Geussens and the burden is therefore shifted to the applicant to provide evidence that the claimed properties would not be present in the prior art.
See MPEP 2112.01(I) - Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). "When the PTO shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). Therefore, the prima facie case can be rebutted by evidence showing that the prior art products do not necessarily possess the characteristics of the claimed product. In re Best, 562 F.2d at 1255, 195 USPQ at 433.
Claim 25, an article produced by the method of claim 17, is a product by process claim.
"Even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process"; see In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985) (MPEP § 2113(I)).
With respect to Claim 25, the product is an article described in Claim 17 as an injection stretch blow molded article with the composition of claim 1. This claim is anticipated by Geussens which anticipates the composition of claim 1 and further teaches “molding is meant in the present application, any conversion technique that applies heat, pressure, or a combination thereof to the present composition in order to obtain a shaped article. Examples include… injection stretch blow-molding” (p. 13, l. 20-24).
Regarding Claim 26, Geussens teaches the article of claim 15. Geussens further teaches wherein the article is a hollow container (p. 13, l. 18-19, “The compositions of the present invention can be used to manufacture molded articles… such as… hollow moldings”).
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.
Claims 17-24 are rejected under 35 U.S.C. 103 as being unpatentable over Geussens in view of WO 2021/009569 A1 - Bento, Leonardo Souza et al. (2021) hereinafter Bento.
Regarding Claim 17, Geussens teaches a method of producing an article with the composition of claim 1 (p. 13, l. 18-19, “The compositions of the present invention can be used to manufacture molded articles… such as… hollow moldings”). Geussens further teaches molding methods can include injection stretch blow molding (p. 13, l. 22-24).
Geussens doesn’t specifically teach the method comprising: injection molding the composition to give a preform; and stretch-blowing the preform to provide the article.
However, Bento teaches injection stretch blow molding (ISBM) generally includes two steps: injection molding the polymer to provide a preform and subsequently stretch blowing the preform to provide an expanded article (¶ [0001]).
Therefore, it would have been obvious to a person having ordinary skill in the art before the effective filing date that the known technique (MPEP §2143 (I)(C)) disclosed by Bento of a two-step injection stretch blow molding method could be applied to the “base product” composition of Geussens to produce an injection stretch blow molded article with the composition claimed in the instant application motivated by the reasoning that injection stretch blow molding enables efficient production of polyethylene-containing articles while providing for excellent mechanical properties such as impact resistance and rigidity (Bento ¶ [0018]).
Regarding Claim 18, Geussens in view of Bento teaches the method of claim 17.
Geussens does not teach wherein the injection molding comprises injecting the resin composition into at least one cavity of a mold, wherein optionally the injection of the resin composition is performed at a process temperature ranging from 170°C to 220°C.
However, Bento teaches methods for injection stretch blow molding polyethylene compositions (¶ [0010]). “In particular embodiments, the injection of the resin composition is performed at a process temperature ranging from 170°C to 220°C… the resin composition may be injected into only one cavity of the mold, while in other embodiments, the resin composition may be injected into more than one cavity of the mold” (¶ [0020], [0068-0069]).
Therefore, it would have been obvious to a person having ordinary skill in the art before the effective filing date of the invention that the known technique (MPEP §2143 (I)(C)) disclosed by Bento of injecting a resin into at least one mold cavity at temperatures from 170°C to 220°C could be applied to the “base product” composition of Geussens to produce an injection stretch blow molded article with the composition claimed in the instant application motivated by the reasoning that injection stretch blow molding enables efficient production of polyethylene-containing articles while providing for excellent mechanical properties such as impact resistance and rigidity (Bento ¶ [0018]).
Regarding Claim 19, Geussens in view of Bento teaches the method of claim 17.
Geussens does not teach wherein the injecting has an injection flow rate in each cavity ranging from about 8 to 60 cm3/s and/or an injection pressure in each cavity ranging from about 200 to 800 bar.
However, Bento teaches “the injection process may have an injection flowrate ranging from about 8 to 60 cm3/s in each cavity… the injecting may have an average injection pressure in each cavity ranging from about 200 to 800 bar” (¶ [0071-0072]).
Therefore, it would have been obvious to a person having ordinary skill in the art before the effective filing date that the known technique (MPEP §2143 (I)(C)) disclosed by Bento of injecting a resin into at least one mold cavity with a flowrate from about 8 to 60 cm3/s and/or an injection pressure in each cavity ranging from about 200 to 800 bar could be applied to the “base product” composition of Geussens to produce an injection stretch blow molded article with the composition claimed in the instant application motivated by the reasoning that injection stretch blow molding enables efficient production of polyethylene-containing articles while providing for excellent mechanical properties such as impact resistance and rigidity (Bento ¶ [0018]).
Regarding Claim 20, Geussens in view of Bento teaches the method of claim 17.
Geussens does not teach wherein the preform comprises a bottleneck, and wherein the bottleneck is positioned to face downwards during the stretch-blowing.
However, Bento teaches “in the stretch-molding step of one or more embodiments, the preform may be positioned with the bottleneck facing downwards” (¶ [0080]).
Therefore, it would have been obvious to a person having ordinary skill in the art before the effective filing date that the known technique (MPEP §2143 (I)(C)) disclosed by Bento where the preform comprises a downward facing bottleneck could be applied to the “base product” composition of Geussens to produce an injection stretch blow molded article with the composition claimed in the instant application motivated by the reasoning that injection stretch blow molding enables efficient production of polyethylene-containing articles while providing for excellent mechanical properties such as impact resistance and rigidity (Bento ¶ [0018]).
Regarding Claim 21, Geussens in view of Bento teaches the method of claim 17.
Geussens does not teach wherein the stretch-blowing comprises stretching the preform with a stretch rod and the stretch rod has, optionally, a speed ranging from 500 to 1600 mm/s during the stretching of the preform.
However, Bento teaches “the stretching of one or more embodiments may have a stretch rod speed ranging from 500 to 1500 mm/s” (¶ [0080]).
Therefore, it would have been obvious to a person having ordinary skill in the art before the effective filing date that the known technique (MPEP §2143 (I)(C)) disclosed by Bento where the stretch rod has a speed ranging from 500 to 1500 mm/s during the stretching of the preform could be applied to the “base product” composition of Geussens to produce an injection stretch blow molded article with the composition claimed in the instant application motivated by the reasoning that injection stretch blow molding enables efficient production of polyethylene-containing articles while providing for excellent mechanical properties such as impact resistance and rigidity (Bento ¶ [0018]).
Regarding Claim 22, Geussens in view of Bento teaches the method of claim 17.
Geussens does not teach wherein the stretch-blowing comprises blowing the preform with gas and, optionally, the gas has a pressure ranging from about 10 to 20 bar during the blowing.
However, Bento teaches “in some embodiments the stretched preform may be radially blown by pressurized gas. The blowing is done using gas with a pressure in the range from 10 to 20 bar” (¶ [0082]).
Therefore, it would have been obvious to a person having ordinary skill in the art before the effective filing date that the known technique (MPEP §2143 (I)(C)) disclosed by Bento where the preform is radially blown by a gas with a pressure ranging from 10-20 bar could be applied to the “base product” composition of Geussens to produce an injection stretch blow molded article with the composition claimed in the instant application motivated by the reasoning that injection stretch blow molding enables efficient production of polyethylene-containing articles while providing for excellent mechanical properties such as impact resistance and rigidity (Bento ¶ [0018]).
Regarding Claim 23, Geussens in view of Bento teaches the method of claim 17.
Geussens does not teach wherein the stretch-blowing comprises blowing the preform with gas in two or more stages.
However, Bento teaches “in the stretch-molding step of one or more embodiments, the preform may be blown in two or more stages” (¶ [0083]).
Therefore, it would have been obvious to a person having ordinary skill in the art before the effective filing date that the known technique (MPEP §2143 (I)(C)) disclosed by Bento where the preform is blown in two or more stages could be applied to the “base product” composition of Geussens to produce an injection stretch blow molded article with the composition claimed in the instant application motivated by the reasoning that injection stretch blow molding enables efficient production of polyethylene-containing articles while providing for excellent mechanical properties such as impact resistance and rigidity (Bento ¶ [0018]).
Regarding Claim 24, Geussens in view of Bento teaches the method of claim 23.
Geussens does not teach wherein the stretch-blowing comprises a first stage and a second stage, wherein the first stage uses gas of a lower pressure than the second stage, and optionally wherein the first stage comprises blowing gas having a pressure ranging from about 4 to 10 bar and the second stage comprises blowing gas having a pressure ranging from about 10 to 20 bar.
However, Bento teaches “in particular embodiments, the first stage may comprise blowing gas having a pressure ranging from about 2 to 10 bar and the second stage may comprise blowing a gas having a pressure ranging from about 10 to 20 bar” (¶ [0083]).
Therefore, it would have been obvious to a person having ordinary skill in the art before the effective filing date that the known technique (MPEP §2143 (I)(C)) disclosed by Bento where the preform is blown in two stages (a first, lower pressure stage and a second higher pressure stage) could be applied to the “base product” composition of Geussens to produce an injection stretch blow molded article with the composition claimed in the instant application motivated by the reasoning that injection stretch blow molding enables efficient production of polyethylene-containing articles while providing for excellent mechanical properties such as impact resistance and rigidity (Bento ¶ [0018]).
With respect to the fact that the first stage pressure ranges (instant application 4 to 10 bar and Bento 2 to 10 bar) are not identical, it has been held that in the case where the claimed ranges overlap or lie inside ranges disclosed in the prior art, a prima facie case of obviousness exists; see In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set of percentage ranges is the optimum combination of percentages; see In re Peterson, 315 F.3d at 1330, 65 USPQ2d at 1382 (MPEP § 2144.05).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to STEPHEN E MONTGOMERY whose telephone number is (571)270-1523. The examiner can normally be reached Monday-Friday: 8:00am - 5:00pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Heidi Kelley can be reached at (571) 270-1831. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/S.E.M./Examiner, Art Unit 1765 /HEIDI R KELLEY/Supervisory Patent Examiner, Art Unit 1765
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