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 .
Specification
The disclosure is objected to because of the following informalities:
Paragraph numbering restarts after ¶[0070] resulting in ¶[0001-0006] being used twice in the specification.
¶[0061] states “(tan □ 6)” which should be corrected to “(tan δ)”
¶[0061] states “nitro gen” which should be corrected to “nitrogen”
¶[0062] states “tan 6” which should be corrected to “tan δ”
The second ¶[0004] states “GPR” which is not defined in the specification
The second ¶[0005] states “Table 1” and contains a table, however the table itself is not labeled.
Appropriate correction is required.
The specification is objected to as failing to provide proper antecedent basis for the claimed subject matter. See 37 CFR 1.75(d)(1) and MPEP § 608.01(o). Correction of the following is required:
Claim 1 states “xylene solubles (XS) content… determined by acetone precipitation” but specification does not provide one of ordinary skill in the art enough information to determine the methodology applicant is using to measure xylene solubles. In the specification, ¶[0023] states xylene solubles determined by ASTM D5492 and further ¶[0028] discusses measuring intrinsic viscosity by precipitating amorphous phase with an acetone/ethanol blend, but ASTM D5492 does not mention acetone and it is unclear if Applicant is conflating the methods of measuring xylene soluble content and measuring intrinsic viscosity.
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 2, 13, and 14 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.
Claim 2 states “intrinsic viscosity… measured according to ASTM D445.” However, ASTM D445 provides a method for measuring kinetic or dynamic viscosity, not intrinsic viscosity. The specification fails to clarify how one of ordinary skill in the art could measure intrinsic viscosity according to ASTM D445.
Claim 13 reads “wherein the TPO composition has a tiger marking onset distance of at least 75%.” Applicant further discusses this in ¶[0062] of the specification, stating “The tiger marking performance is defined as "excellent" in this invention in terms of both the standalone composition and its filled compound (defined previously) as (i) no tiger marks present or visible on the plaque or (ii) onset distance of tiger marks is beyond a critical distance away from the gate (e.g., the distance between the gate and the first tiger mark is about 75% or more of the total length of the plaque). The tiger marking performance is defined as "poor" when tiger marks are visible with an onset distance of tiger marks from the gate of less than about 75% of the total length of the plaque.”
Applicant fails to disclose additional details about the plaque utilized to observe tiger marking, most notably, the dimensions of the plaque. Without these dimensions, it would be impossible for one of ordinary skill in the art to determine whether a prior art composition exhibiting tiger marks would anticipate the invention claimed in the instant application.
Claim 14 states “no failure is exhibited when tested by falling dart test -20 °C according to ASTM D1709.” The standard test method described by ASTM D1709 requires reporting of additional information, specifically the weight of the dart used and the principal dimensions of the material tested. Without this information, it would be impossible for one of ordinary skill in the art to determine if prior art compositions and reported falling dart test results anticipate the invention claimed in the instant application.
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 1, and 3-8 are rejected under 35 U.S.C. 103 as being unpatentable over Chapman, U.S. Patent Application 2008/0045638 in view of Carr, U.S. Patent Application 2019/0194436.
Regarding Claims 1, 3, 5, and 6, Chapman teaches a hetero-phase polyolefin composition (¶[0092]) comprising:
preferably 15-45 wt% of one or more EP Rubbers (¶[0094]), addressing instant Claim 1,
having a notched Izod impact strength at -18 °C of preferably 70-500 J/m (¶[0099]), addressing instant Claim 1,
preferably 40-85 wt% propylene (¶[0093]), addressing instant Claim 3 (55-75 wt%),
a melt flow rate of >5 dg/min (¶[0097]) measured by ASTM D1238 (230 °C/2.16 kg), addressing instant Claim 5 (5-30 g/10 min),
wherein preferred propylene polymers (¶[0161]) have a melt flow rate of 1-300 dg/min (¶0166]), addressing instant Claim 6 (polypropylene matrix MFR of 50-250 g/10 min).
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).
Chapman additionally teaches the total composition comprises >10 wt% ethylene (¶[0099]). The composition in instant Claim 1 contains 30-38 wt% ethylene in the 25-40 wt% EPR phase which is equal to 7.5-17.1 wt% ethylene in the total composition, assuming the polypropylene matrix polymer is a polypropylene homopolymer and contains no additional ethylene. Thus, the >10 wt% ethylene in the total composition taught by Chapman overlaps with the instant claimed 30-38 wt% ethylene in the 25-45 wt% EPR phase. See MPEP § 2144.05 and above for the obviousness of overlapping claimed and prior art ranges.
While the Izod impact strength taught by Chapman is reported at -18 °C and not -20 °C as claimed in the instant application, a person of ordinary skill in the art would reasonably expect that a 2 °C temperature change would only slightly reduce the magnitude of the overall range of impact strengths reported. As the prior art range of 70-500 J/m significantly overlaps the instant application claimed range of 180-600 J/m, a person having ordinary skill in the art would reasonably expect that the polyolefins taught by Chapman, if tested at -20 °C, would have impact strength values falling within the range claimed in the instant application. See MPEP § 2144.05 and above for the obviousness of overlapping claimed and prior art ranges.
With respect to the xylene solubles (XS) content of Claim 1, Chapman does not teach XS content ranging from 25-45 wt% as determined by acetone precipitation.
However, Carr teaches ICP compositions comprising a propylene matrix homopolymer and a dispersed component containing ethylene propylene copolymer, such as EPR (¶[0043]). Carr additionally teaches that the rubber content of these ICP compositions may be approximated from xylene solubles followed by an acetone precipitation step (¶[0045]).
Therefore, it would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention that the weight percent of rubber phase in an impact copolymer, being soluble in xylene at ambient temperatures, could be approximated by the weight of polymer soluble in xylene and recovered by acetone precipitation. Thus, a person of ordinary skill in the art would reasonably expect the polyolefin composition of Chapman having 15-45 wt% of one or more EP Rubbers (¶[0094]) to have a xylene solubles content ranging from approximately 15-45 wt% as determined by acetone precipitation. See MPEP § 2144.05 and above for the obviousness of overlapping claimed and prior art ranges.
Regarding Claim 4, Chapman does not report the intrinsic viscosity of the amorphous phase, instead reporting the Mooney viscosity.
However, Carr teaches ICP compositions comprising a propylene matrix homopolymer and a dispersed component containing ethylene propylene copolymer, such as EPR (¶[0043]). Additionally, Carr teaches the intrinsic viscosity (IV) of the dispersed phase may be modified to tune the melt strength and melt flow rate of the final polymer composition and to modify performance for applications such as injection molding and that the IV of the dispersed component may be in the range of 4-10 dl/g (¶[0048]).
Therefore, it would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to combine the teaching of Carr of a dispersed phase IV from 4-10 dl/g and the composition of claim 1, rendered obvious by Chapman in view of Carr (see above) motivated by a desire to tune the melt strength and melt flow rate of the final product and improve the injection molding performance. See also, MPEP § 2144.05 and above for the obviousness of overlapping claimed and prior art ranges.
Regarding Claim 7, Chapman in view of Carr teaches composition ranges and permutations that address the composition of claim 1, but Chapman does not teach an Izod impact strength ranging from 80-120 J/m at -40 °C.
“The PTO can require an applicant to prove that the prior art products do not necessarily or inherently possess the characteristics of his [or her] claimed product. Whether the rejection is based on inherency under 35 U.S.C. 102, on prima facie obviousness under 35 U.S.C. 103, jointly or alternatively, the burden of proof is the same…" as that required with respect to product-by-process claims; see In re Fitzgerald, 619 F.2d 67, 70, 205 USPQ 594, 596 (CCPA 1980) (MPEP § 2112).
A person having ordinary skill in the art would have a reasonable expectation that individual embodiments of ICP falling within the range of compositions taught by Chapman in view of Carr would have an Izod impact strength at -40 °C comparable to those claimed in the instant application Claim 7 given the compositional parallels between them and that which is claimed, especially when considering the similar Izod impact strength values at -20 °C as discussed above with respect to instant application Claim 1. The burden is therefore shifted to the applicant to provide evidence that the claimed properties would not be present in the prior art.
Regarding Claim 8, Chapman in view of Carr teaches the composition of claim 1. Additionally, both Chapman (¶[0475]) and Carr (¶[0033-0034]) discuss articles formed from the ICP compositions disclosed. One of ordinary skill in the art would reasonably expect that any impact copolymer composition can be formed into an article comprising that composition, and thus, it would be obvious to form an article comprising the claim 1 composition rendered obvious above.
Claim 2 is rejected under 35 U.S.C. 103 as being unpatentable over Chapman in view of Carr as applied to claim 1 above, and further in view of Kock, European Patent Application 2,495,280 A1.
Regarding Claim 2, Chapman in view of Carr teaches the composition of Claim 1. Chapman further teaches ICPs comprising propylene homopolymer and one or more dispersed phase components such as EP Rubber (¶[0133] and Claim 43-45), but Chapman does not teach where those EP Rubbers have differing intrinsic viscosities.
Kock teaches polyolefin compositions containing a hetero-phasic polypropylene and a bimodal elastomeric rubber phase. Specifically, Kock teaches the molecular weight of the rubber phase can be expressed as the intrinsic viscosity of the xylene soluble fraction (¶[0025]) and that a bimodal ethylene-propylene rubber phase with differing molecular weights (and thus differing IVs) ensures that the overall composition has sufficient impact strength at both ambient and low temperatures and additionally has reduced occurrence of flow marks (¶[0036]).
Carr teaches ICP blends containing rubber phase intrinsic viscosities within the ranges of claim 2 (6.5 and 2.3 dl/g seen in Tables 9 and 11) and ethylene wt% within the ranges claimed (32 and 37 wt% seen in Tables 9 and 11) but not specifically reporting the impact strength of claim 1. Carr additionally teaches that intrinsic viscosity may be modified to tune the melt strength and melt flow rate of the final polymer composition to optimize performance in injection molding applications (¶[0048]).
Therefore, it would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to produce an impact copolymer of the composition as taught by Chapman, having the two rubber phases as taught by Carr. A person of ordinary skill would be motivated to use two rubber phases to improve ambient and low temperature impact strength and reduce flow marks as taught by Kock and to utilize the rubber phase viscosities taught by Carr to optimize performance in injection molding applications.
Claims 9, 10, 15, 16, and 17-24 are rejected under 35 U.S.C. 103 as being unpatentable over Chapman in view of Carr as applied to claim 1 above, and further in view of Qiang, WO2015089688.
Regarding Claims 9 and 10, Chapman in view of Carr teaches the ICP of claim 1 but does not teach thermoplastic polyolefin compositions comprising the ICP and a polypropylene homopolymer (instant claim 9) or specific weight percentages (instant claim 10).
However, Qiang teaches polyolefin compositions (Table 2, particularly IE3) that contain both an impact copolymer polypropylene (labelled HECO), and a polypropylene homopolymer where the polyolefin compositions have MFRs from 13-20 g/10 min (Table 4). Qiang additionally teaches that propylene homopolymer is added to the HECO to improve the stiffness of the overall polyolefin composition (pg. 20, l. 4-5).
Additionally, Qiang teaches compositions containing 35-49 wt% HECO, 5-15 wt% homopolymer polypropylene, 5-14 wt% elastomer, and 21-35 wt% filler (pg. 3, l. 1-8). Qiang teaches that elastomers are added to improve impact properties (pg. 21, l. 28-29) and fillers such as talc are added to improve the modulus (pg. 23, l. 16-17).
It has been held that a prima facie case of obviousness exists where the claimed ranges and the prior art ranges do not overlap but are close enough that one skilled in the art would have expected them to have the same properties, see Titanium Metals Corp. of America v. Banner 778 F.2d 775, 227 USPQ 773 (Fed. Cir. 1985) (MPEP § 2144.05(I)).
Regarding Claim 15, Chapman in view of Carr, in further view of Qiang teaches the composition of Claim 9. Further, Chapman (¶[0475]), Carr (¶[0033-0034]), and Qiang (¶[pg. 4, l. 9-10 and 19-20]) discuss articles formed from the polymer compositions disclosed. One of ordinary skill in the art would reasonably expect that any impact copolymer composition can be formed into an article comprising that composition, and thus, it would be obvious to form an article comprising the claim 1 composition rendered obvious above.
Regarding Claim 16, Chapman in view of Carr, in further view of Qiang teaches the article of Claim 15. Further, Chapman (¶[0475]) and Qiang (¶[pg. 4, l. 10-13]) specifically discuss automotive parts formed from the polymer compositions disclosed. One of ordinary skill in the art would reasonably expect that a polymer blend containing impact copolymer polypropylene could be made into any number of articles including automotive parts, and thus, it would be obvious to form an article comprising the claim 1 composition rendered obvious above.
Regarding Claims 17-21, Chapman in view of Carr teaches the composition of Claim 1. Chapman additionally teaches a process for preparing ICPs where polypropylene (A) is made in a slurry process and EP rubber (B) is made in a gas phase process employing a supported Ziegler-Natta catalyst (¶[0152]). Chapman and Carr do not teacha highly porous phthalate catalyst, nor do they teach further pelletizing and forming into an article of manufacture.
Insofar as Chapman is not forthcoming as to the specific Ziegler-Natta catalysts of the in situ process, a skilled practitioner of that invention would consult the related prior art, related because it too describes the in situ process of making a hetero-phase polyolefin, and, in so doing would encounter disclosures such as Qiang.
Qiang teaches a process for producing a hetero-phasic propylene copolymer (equivalent to the ICP of the instant application) in a sequential polymerization process where polypropylene is produced in a slurry reactor (pg. 9, l. 30-32) and subsequently the elastomeric copolymer (equivalent to the EPR phase of the instant application) is produced in one or two gas phase reactors (pg. 10, l. 1-3) to obtain an elastomeric copolymer fraction dispersed in the polypropylene (pg. 10, l. 22). Qiang further describes this reaction process as being the multistage “loop-gas phase” process known in the art as BORSTAR® technology and/or the Spheripol® process of Basell (pg. 12, l. 13 and 17). Qiang additionally teaches the catalyst is a Ziegler-Natta catalyst (pg. 13, l. 20), containing a diethyl phthalate as the internal donor (pg. 17, l. 9). Ziegler-Natta catalysts being known to have high porosity. Further, Qiang teaches the hetero-phasic propylene copolymers can be blended, extruded, and recovered in the form of pellets (pg. 28, l. 19-21) and further processed to generate articles and products (pg. 28, l. 21-22).
Regarding Claims 22-24, Chapman in view of Carr in further view of Qiang teaches the method of Claim 18. Chapman and Carr do not teach this method including further blending ICP and propylene homopolymer to form a TPO composition, pelletizing, and forming into an article of manufacture.
However, Qiang teaches a method of blending hetero-phasic propylene copolymer with propylene homopolymer using a conventional compounding or blending apparatus (pg. 28, l. 16-19), followed by extrusion and recovery of pellets from an extruder (pg. 28, l. 20-21), and lastly processing those pellets to generate articles and products (pg. 28, l. 21-22).
Therefore, it would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to utilize this well known method of blending, extruding pellets, and forming articles of manufacture, as taught by Qiang to the method of making an impact copolymer polypropylene as taught by Chapman in view of Carr in view of Qiang and described above to form articles of manufacture with improved properties as compared to the articles formed by ICP alone. Specifically incorporation of homopolymer polypropylene was taught above to improve stiffness.
Claims 11-13 are rejected under 35 U.S.C. 103 as being unpatentable over Chapman in view of Carr in further view of Qiang as applied to claim 9 above, and further in view of Salek, U.S. Patent Application 2014/0107274.
Regarding Claims 11-13, Chapman in view of Carr in further view of Qiang teach the composition of claim 9, but do not specifically teach a composition with 50-65 wt% ICP and 35-50 wt% polypropylene homopolymer, or where the ICP in the TPO composition has a tan δ less than 3.5 at 0.1 rad/c (180 °C), or where the tiger marking onset distance is at least 75%.
While Qiang does not specifically teach a composition with 50-65 wt% ICP and 35-50 wt% homopolymer polypropylene, Qiang does teach that the homopolymer polypropylene is added to improve the stiffness of the overall polyolefin composition (pg. 20, l. 4-5). A person of ordinary skill, upon consulting related prior art that teaches polyolefin blends containing polypropylene impact copolymer and propylene homopolymer, would encounter disclosures such as Salek.
Salek teaches that TPO compositions may display improvements in one or more rheological properties, such as increased elasticity as evidenced by a low tan δ (¶[0083]) and that by blending various amounts of ICP and HPP polymer compositions, one can obtain blends having desired rheological properties, such as tan δ (¶[0080]). Salek teaches blended compositions having 50/50 wt% and 65/35 wt% ICP to homopolymer polypropylene (Table 3), addressing instant claim 11.
Additionally, Salek teaches excellent tiger marking performance can be associated with a tan δ < 5 at 0.1 rad/s; 180 °C (¶[0096]). A person of ordinary skill would thus be motivated to utilize ICP compositions with low values of tan δ (Table 4, Composition I, III, and VI) to both increase elasticity and improve tiger marking performance, addressing instant claim 12.
Lastly, Salek teaches reduction or elimination of tiger marking on molded articles is desired for larger articles (¶[0084]) and discloses TPO compositions which have a tiger marking onset distance greater than 350 mm when measured on a 350 mm by 102 mm plaque (¶[0064] and [0084]) which would be a tiger marking onset distance greater than 100% the length of the plaque, addressing instant claim 13.
Conclusion
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/S.E.M./
Examiner, Art Unit 1765
/MARC S ZIMMER/Primary Patent Examiner, Art Unit 1765
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