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 .
Claims Status
Claims 1-4 and 6-15 are pending. Claims, 4, 6, 10-12 are amended. Claims 13-15 are added.
Claims 1-3 were withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention.
Response to Amendments/Arguments
Any rejections and/or objections, made in the previous Office Action, and not repeated in the present Office Action, are hereby withdrawn.
Applicant's amendment and arguments filed 10/30/2024 with respect to the rejection of present claim(s) 4 and 7-10 under 35 U.S.C. 102(a)(1) as being anticipated by Lin et al. (US 2020/0277474; “Lin”) have been fully considered, but and they are not persuasive for at least the following reasons.
Applicant contends that (1) Lin does not teach a mixture that functions to produce a pressure/high pressure polyethylene pipe (remarks, page 6, second and third para); (2) Lin does not teach the hydrogen barrier property of the pressure polyethylene pipe made of its mixture (i.e., comprising a multimodal high density polyethylene copolymer and a nucleating agent) has at least 20% improvement of hydrogen barrier performance as compared with a control multimodal high-density polyethylene copolymer (remarks, page 7, first paragraph); and (3) regarding claim 11, applicant argues that the instant invention's MFR range as claimed in claim 11 correlates to a MFR measured at 2.16 kg of 0.05 g/10 min. to about 0.06 g/10 min, this range falls at one end of the extremely large range disclosed in Lin (0.01 to 1.0 g/10 min.). Per applicant, the enormous range disclosed in Lin is not enabled, as in Table 1 of Lin, the MFR of the present embodiment is listed as 0.30 g/min., which is five or six times the MFR of the instant invention (remarks, page 7, last para).
In response to contention (1), Applicant's arguments have been fully considered, but and they are not persuasive for at least the following reasons. It should be noted that the recitation of preamble that the mixture is “for producing a pressure polyethylene pipe for transporting hydrogen gas under pressure” of claim 4 is considered as merely an intended use. Applicant’s attention is drawn to MPEP 2111.02 which states that intended use statements must be evaluated to determine whether the intended use results in a structural difference between the claimed invention and the prior art. Only if such structural difference exists, does the recitation serve to limit the claim. If the prior art structure is capable of performing the intended use, then it meets the claim. It is the examiner' s position that the mixture of Lin is capable of performing the intended use.
Further, regarding the term “high pressure” pipe in claim 6 and claims 14-15, such term of “high pressure” is a relative term which renders the claim indefinite. The term “high pressure” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. The examiner considers any prior art pipe that is capable of withholding any level of pressure, minimal pressure, as meeting the claimed limitations.
In response to contention (2), Applicant's arguments have been fully considered, but and they are not persuasive for at least the following reasons. It is noted that Lin does not specifically state the hydrogen barrier property of the pressure polyethylene pipe made of its mixture (i.e., comprising a multimodal high density polyethylene copolymer and a nucleating agent) has at least 20% improvement of hydrogen barrier performance as compared with a control multimodal high-density polyethylene copolymer. However, Lin teaches its mixture comprising a multimodal high-density polyethylene copolymer and a nucleating agent (para [0006]-[0007] [0021]-[0023]), that is the same material as the instantly claimed mixture of claim 4. It is noted that Lin teaches suitable copolymer for the multimodal HDPE includes 1-butene copolymer (para [0017]), which is the same material as the multimodal HDPE as that of the instant application (see instant claim 11). Lin also teaches suitable nucleating agent includes a mixture of zinc stearate and 1,2-cyclohexane dicarboxylic acid calcium salt (para [0034]), which is the same material as the nucleating agent as that of the instant application (see instant claim 9). Because the of mixture of Lin and the instantly claimed mixture are identical or substantially identical in composition (as discussed above), one would expect the pressure polyethylene pipe made of the mixture of Lin is capable of performing in the same or similar manner as the pressure polyethylene pipe made of the instantly claimed mixture, if measured under the same condition, having at least 20% improvement of hydrogen barrier performance as compared with a control multimodal high-density polyethylene copolymer. "Products of identical chemical composition cannot have mutually exclusive properties." A chemical composition and its properties are inseparable. See MPEP 2112. 01. Once a reference teaching product appearing to be substantially identical is made the basis of a rejection, and the examiner presents evidence or reasoning tending to show inherency, the burden shifts to the applicant to show an unobvious difference. See MPEP 2112.
In response to contention (3), Applicant's arguments have been fully considered, but and they are not persuasive for at least the following reasons. Applicant's arguments that the teaching of Lin is not enabled, is not supported by any evidence, and thus is not fund persuasive. It has long been held that the teachings of a reference are relevant as prior art for all they contain, not just the specific examples provided. MPEP 2123. In the present case, Lin clearly teaches suitable copolymer for the multimodal HDPE includes 1-butene copolymer (para [0017]), and Lin teaches suitable multimodal HDPE are those having suitable melt flow rate (MFR) of 0.01 g/10 min to 1.0 g/10 min at 2.16 kg/190 °C (para [0015] [0025]), which range overlaps with the instantly claimed range of about 0.05 to about 0.06 g/ 10 min at 2.16 kg/190 °C. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. 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). MPEP 2144.05. Applicant has not demonstrated sufficient objective evidence to show any criticality of the claimed range of about 0.05 to about 0.06 g/ 10 min at 2.16 kg/190 °C. In the present case, for the reasons discussed above, when all of the evidence is considered, the totality of the rebuttal evidence of nonobviousness fails to outweigh the evidence of obviousness.
The rejections below are updated to address the present claims.
Claim Objections
Claims 12,13 and 15 are objected to because of the following informalities:
Applicant is advised that should claim 12 be found allowable, claim 13 and claim 15 will be objected to under 37 CFR 1.75 as being a substantial duplicate thereof. When two claims in an application are duplicates or else are so close in content that they both cover the same thing, despite a slight difference in wording, it is proper after allowing one claim to object to the other as being a substantial duplicate of the allowed claim. See MPEP§ 706.03(k). Appropriate correction is required.
Claims 6 and 14 are objected to because of the following informalities:
Applicant is advised that should claim 6 be found allowable, claim 14 will be objected to under 37 CFR 1.75 as being a substantial duplicate thereof. When two claims in an application are duplicates or else are so close in content that they both cover the same thing, despite a slight difference in wording, it is proper after allowing one claim to object to the other as being a substantial duplicate of the allowed claim. See MPEP§ 706.03(k). Appropriate correction is required.
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.
Claims 6, and 14-15 are rejected under 35 U.S.C. 112(b) as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor regards as the invention.
The term “high pressure” pipe in claim 6 and claims 14-15 is a relative term which renders the claim indefinite. The term “high pressure” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. For purpose of examination, the examiner considers any prior art pipe that is capable of withholding any level of pressure, minimal pressure, as meeting the claimed limitations. Appropriate correction and clarification are required.
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.
Claim(s) 4, 6-9, and 14 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Lin et al. (US 2020/0277474; “Lin”).
Regarding independent claim 4 and claim 9, Lin teaches a mixture (para [0006]-[0007] [0021]-[0022]) comprising a multimodal high-density polyethylene copolymer (para [0006] [0017] [0023]) and a nucleating agent (para [0006]). Lin also teaches suitable nucleating agent includes a mixture of zinc stearate and 1,2-cyclohexane dicarboxylic acid calcium salt (para [0034]), which is the same material as the nucleating agent as that of the instant application (see instant claim 9).
It should be noted that the recitation of preamble that the mixture is “for producing a pressure polyethylene pipe for transporting hydrogen gas under pressure” of claim 4 is considered as merely an intended use. Applicant’s attention is drawn to MPEP 2111.02 which states that intended use statements must be evaluated to determine whether the intended use results in a structural difference between the claimed invention and the prior art. Only if such structural difference exists, does the recitation serve to limit the claim. If the prior art structure is capable of performing the intended use, then it meets the claim. It is the examiner' s position that the mixture of Lin is capable of performing the intended use.
Lin teaches its mixture that comprising a multimodal high density polyethylene copolymer and a nucleating agent is suitable for making various articles of various shape, injection molded articles and/or extruded articles, which encompass pipe article that can perform under pressure (para [0036]).
Lin also teaches the addition of the nucleating agent to its mixture provides improved barrier, including improved gas barrier properties (para [0006] [0037] [0042]). Lin teaches in one of its embodiments that its mixture comprising a multimodal high density polyethylene copolymer and a nucleating agent provides at least 20%, or at least 30% or at least 50% improvement of oxygen barrier performance as compared with a control multimodal high-density polyethylene copolymer (para [0042]).
Lin does not specifically state the hydrogen barrier property of the pressure polyethylene pipe made of its mixture (i.e., comprising a multimodal high density polyethylene copolymer and a nucleating agent) has at least 20% improvement of hydrogen barrier performance as compared with a control multimodal high-density polyethylene copolymer. However, as discussed above, Lin teaches its mixture comprising a multimodal high-density polyethylene copolymer and a nucleating agent (para [0006]-[0007] [0021]-[0023]), that is the same material as the instantly claimed mixture of claim 4. It is noted that Lin teaches suitable copolymer for the multimodal HDPE includes 1-butene copolymer (para [0017]), which is the same material as the multimodal HDPE as that of the instant application (see instant claim 11). Lin also teaches suitable nucleating agent includes a mixture of zinc stearate and 1,2-cyclohexane dicarboxylic acid calcium salt (para [0034]), which is the same material as the nucleating agent as that of the instant application (see instant claim 9).
Because the of mixture of Lin and the instantly claimed mixture are identical or substantially identical in composition (as discussed above), one would expect the pressure polyethylene pipe made of the mixture of Lin is capable of performing in the same or similar manner as the pressure polyethylene pipe made of the instantly claimed mixture, if measured under the same condition, having at least 20% improvement of hydrogen barrier performance as compared with a control multimodal high-density polyethylene copolymer. "Products of identical chemical composition cannot have mutually exclusive properties." A chemical composition and its properties are inseparable. See MPEP 2112. 01. Once a reference teaching product appearing to be substantially identical is made the basis of a rejection, and the examiner presents evidence or reasoning tending to show inherency, the burden shifts to the applicant to show an unobvious difference. See MPEP 2112.
Regarding claim 6, Lin teaches its mixture that comprising a multimodal high density polyethylene copolymer and a nucleating agent is suitable for making various articles of various shape, injection molded articles and/or extruded articles, which encompass pipe article that can perform under pressure (para [0036]), and is considered as meeting the claimed limitations. See 35 U.S.C. 35 U.S.C. 112(b) rejection of claim 6 made of record in this Office Action.
Regarding claim 7, Lin teaches as in one of its embodiments that the nucleating agent is added as part of a masterbatch comprising the multimodal high-density polyethylene copolymer and the nucleating agent (para [0085]).
Regarding claim 8, Lin teaches the nucleating agent is added as a neat component of the mixture (para [0015] [0034]).
Regarding independent claim 14, Lin teaches a high pressure polyethylene pipe (para [0006]-[0007] [0021]-[0022]) comprising a composition of a multimodal high-density polyethylene copolymer (para [0006] [0017] [0023]) and a nucleating agent (para [0006], ]-[0007] [0021]-[0022], [0036], Lin teaches its mixture composition is suitable for making various articles of various shape, injection molded articles and/or extruded articles, which encompass pipe article that can perform under pressure, at least some level of pressure, and is considered as meeting the claimed limitations. See 35 U.S.C. 35 U.S.C. 112(b) rejection of claim 6 made of record in this Office Action.
It should be noted that the recitation of preamble that the pipe is “for transporting hydrogen gas under pressure” of claim 14 is considered as merely an intended use. Applicant’s attention is drawn to MPEP 2111.02 which states that intended use statements must be evaluated to determine whether the intended use results in a structural difference between the claimed invention and the prior art. Only if such structural difference exists, does the recitation serve to limit the claim. If the prior art structure is capable of performing the intended use, then it meets the claim. It is the examiner' s position that the pipe of the mixture of Lin is capable of performing the intended use. Lin teaches its mixture that comprising a multimodal high density polyethylene copolymer and a nucleating agent is suitable for making various articles of various shape, injection molded articles and/or extruded articles, which encompass pipe article that can perform under pressure (para [0036]).
Lin also teaches suitable nucleating agent includes a mixture of zinc stearate and 1,2-cyclohexane dicarboxylic acid calcium salt (para [0034]), which is the same material as the nucleating agent as that of the instant application (see instant claim 9).
Lin teaches suitable copolymer for the multimodal HDPE includes 1-butene copolymer (para [0017]), and Lin teaches suitable multimodal HDPE are those having suitable melt flow rate (MFR) of 0.01 g/10 min to 1.0 g/10 min at 2.16 kg/190 °C (para [0015] [0025]), which range overlaps with the instantly claimed range of about 0.05 to about 0.06 g/ 10 min at 2.16 kg/190 °C of claim 15, meeting the claimed material limitations of claim 15. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. 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). MPEP 2144.05.
Lin also teaches the addition of the nucleating agent to its mixture provides improved barrier, including improved gas barrier properties (para [0006] [0037] [0042]). Lin teaches in one of its embodiments that its mixture comprising a multimodal high density polyethylene copolymer and a nucleating agent provides at least 20%, or at least 30% or at least 50% improvement of oxygen barrier performance as compared with a control multimodal high-density polyethylene copolymer (para [0042]).
Lin does not specifically state the hydrogen barrier property of the pressure polyethylene pipe made of its mixture (i.e., comprising a multimodal high density polyethylene copolymer and a nucleating agent) has at least 20% improvement of hydrogen barrier performance as compared with a control multimodal high-density polyethylene copolymer. However, as discussed above, Lin teaches its mixture comprising a multimodal high-density polyethylene copolymer and a nucleating agent (para [0006]-[0007] [0021]-[0023]), that is the same material as the instantly claimed mixture. It is noted that Lin teaches suitable copolymer for the multimodal HDPE includes 1-butene copolymer (para [0017]), which is the same material as the multimodal HDPE as that of the instant application (see instant claim 15). Lin also teaches suitable nucleating agent includes a mixture of zinc stearate and 1,2-cyclohexane dicarboxylic acid calcium salt (para [0034]), which is the same material as the nucleating agent as that of the instant application (see instant claim 9).
Because the of mixture of Lin and the instantly claimed mixture are identical or substantially identical in composition (as discussed above), one would expect the pressure polyethylene pipe made of the mixture of Lin is capable of performing in the same or similar manner as the pressure polyethylene pipe made of the instantly claimed mixture, if measured under the same condition, having at least 20% improvement of hydrogen barrier performance as compared with a control multimodal high-density polyethylene copolymer. "Products of identical chemical composition cannot have mutually exclusive properties." A chemical composition and its properties are inseparable. See MPEP 2112. 01. Once a reference teaching product appearing to be substantially identical is made the basis of a rejection, and the examiner presents evidence or reasoning tending to show inherency, the burden shifts to the applicant to show an unobvious difference. See MPEP 2112.
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
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.
Claim(s) 10-13 and 15 are rejected under 35 U.S.C. 103 as being unpatentable over Lin as applied to claim 4 and claim 14 above.
The limitations of claim 4 and claim 14 are taught by Lin as discussed above.
Regarding claim 10, Lin teaches the suitable amount of the nucleating agent is about 1 to 10,000 ppm, which is about 0.0001 wt% to 1 wt% if calculated (which range overlaps with the instantly claimed range of about 0.10 wt% to 0.30 wt%. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. 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). MPEP 2144.05.
Regarding claim 11, Lin teaches suitable copolymer for the multimodal HDPE includes 1-butene copolymer (para [0017]), and Lin teaches suitable multimodal HDPE are those having suitable melt flow rate (MFR) of 0.01 to 1.0 g/10 min at 2.16 kg/190 °C (para [0015] [0025]), which range if calculated overlaps with the instantly claimed range of about 0.19 to about 0.30 dg/min (i.e., which range correlates to MFR of 0.05 to about 0.06 g/ 10 min at 2.16 kg/190 °C). In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. 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). MPEP 2144.05.
Regarding claim 12, Lin teaches suitable copolymer for the multimodal HDPE includes 1-butene copolymer (para [0017]), and Lin teaches suitable multimodal HDPE are those having suitable melt flow rate (MFR) of 0.01 g/10 min to 1.0 g/10 min at 2.16 kg/190 °C (para [0015] [0025]), which range overlaps with the instantly claimed range of about 0.05 to about 0.06 g/ 10 min at 2.16 kg/190 °C. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. 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). MPEP 2144.05.
Regarding independent claim 13, Lin teaches a mixture (para [0006]-[0007] [0021]-[0022]) comprising a multimodal high-density polyethylene copolymer (para [0006] [0017] [0023]) and a nucleating agent (para [0006]). Lin also teaches suitable nucleating agent includes a mixture of zinc stearate and 1,2-cyclohexane dicarboxylic acid calcium salt (para [0034]), which is the same material as the nucleating agent as that of the instant application (see instant claim 9).
Lin teaches suitable copolymer for the multimodal HDPE includes 1-butene copolymer (para [0017]), and Lin teaches suitable multimodal HDPE are those having suitable melt flow rate (MFR) of 0.01 g/10 min to 1.0 g/10 min at 2.16 kg/190 °C (para [0015] [0025]), which range overlaps with the instantly claimed range of about 0.05 to about 0.06 g/ 10 min at 2.16 kg/190 °C. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. 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). MPEP 2144.05.
It should be noted that the recitation of preamble that the mixture is “for producing a pressure polyethylene pipe for transporting hydrogen gas under pressure” of claim 13 is considered as merely an intended use. Applicant’s attention is drawn to MPEP 2111.02 which states that intended use statements must be evaluated to determine whether the intended use results in a structural difference between the claimed invention and the prior art. Only if such structural difference exists, does the recitation serve to limit the claim. If the prior art structure is capable of performing the intended use, then it meets the claim. It is the examiner' s position that the mixture of Lin is capable of performing the intended use. Lin teaches its mixture that comprising a multimodal high density polyethylene copolymer and a nucleating agent is suitable for making various articles of various shape, injection molded articles and/or extruded articles, which encompass pipe article that can perform under pressure (para [0036]).
Lin also teaches the addition of the nucleating agent to its mixture provides improved barrier, including improved gas barrier properties (para [0006] [0037] [0042]). Lin teaches in one of its embodiments that its mixture comprising a multimodal high density polyethylene copolymer and a nucleating agent provides at least 20%, or at least 30% or at least 50% improvement of oxygen barrier performance as compared with a control multimodal high-density polyethylene copolymer (para [0042]).
Lin does not specifically state the hydrogen barrier property of the pressure polyethylene pipe made of its mixture (i.e., comprising a multimodal high density polyethylene copolymer and a nucleating agent) has at least 20% improvement of hydrogen barrier performance as compared with a control multimodal high-density polyethylene copolymer. However, as discussed above, Lin teaches its mixture comprising a multimodal high-density polyethylene copolymer and a nucleating agent (para [0006]-[0007] [0021]-[0023]), that is the same material as the instantly claimed mixture. It is noted that Lin teaches suitable copolymer for the multimodal HDPE includes 1-butene copolymer (para [0017]), which is the same material as the multimodal HDPE as that of the instant application. Lin also teaches suitable nucleating agent includes a mixture of zinc stearate and 1,2-cyclohexane dicarboxylic acid calcium salt (para [0034]), which is the same material as the nucleating agent as that of the instant application (see instant claim 9).
Because the of mixture of Lin and the instantly claimed mixture are identical or substantially identical in composition (as discussed above), one would expect the pressure polyethylene pipe made of the mixture of Lin is capable of performing in the same or similar manner as the pressure polyethylene pipe made of the instantly claimed mixture, if measured under the same condition, having at least 20% improvement of hydrogen barrier performance as compared with a control multimodal high-density polyethylene copolymer. "Products of identical chemical composition cannot have mutually exclusive properties." A chemical composition and its properties are inseparable. See MPEP 2112. 01. Once a reference teaching product appearing to be substantially identical is made the basis of a rejection, and the examiner presents evidence or reasoning tending to show inherency, the burden shifts to the applicant to show an unobvious difference. See MPEP 2112.
Regarding claim 15, Lin teaches suitable copolymer for the multimodal HDPE includes 1-butene copolymer (para [0017]), and Lin teaches suitable multimodal HDPE are those having suitable melt flow rate (MFR) of 0.01 g/10 min to 1.0 g/10 min at 2.16 kg/190 °C (para [0015] [0025]), which range overlaps with the instantly claimed range of about 0.05 to about 0.06 g/ 10 min at 2.16 kg/190 °C of claim 15, meeting the claimed material limitations of claim 15. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. 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). MPEP 2144.05.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to YAN LAN whose telephone number is (571)270-3687. The examiner can normally be reached Monday - Friday 7AM-4PM.
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, Aaron Austin can be reached on 5712728935. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/YAN LAN/Primary Examiner, Art Unit 1782