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 .
Allowable Subject Matter
The indicated allowability of claim 7 is withdrawn in view of the newly discovered reference(s) to Zhu. Rejections based on the newly cited reference(s) follow.
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.
Claim 7 is 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.
Claim7 recites the force of the thermoforming is 7kN, However, this is indefinite without an area provided. It appears that applicants meant to recite a pressure unit and not a force unit. For examination purposes it is assumed that kN are equivalent to Mpa.
Claim Rejections - 35 USC § 102
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.
Claims 1-2, 4-5, 7-9 and 18-19 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Zhu et al. (Macromolecular Research, Vol.25, No.2, pp. 165-171 (2017), as supplied by applicants).
Regarding claims 1-2, 4-5, 7, 8-9 and 18-19
Zhu discloses a biodegradable pol(butylene succinate)/Spirulina composite made by mixing 100 parts dry spirulina (i.e., unextracted or non-chemically modified biomatter),15 parts water (i.e., plasticizer), 10 parts glycerol (i.e., co-plasticizer), 2 parts sodium sulfite, and loading from 15 to 50 wt % of this composition with PBS (i.e., polymer) in a high speed mixer, mixing, melt blending at 130 C (i.e., baking), dried at 90 C for 16 H, then molded at 130 C (i.e., about 140 C) under a pressure of 10 MPa (i.e., about 7 MPa) for 3 min (i.e., about 5 minutes) (i.e., thermoforming or hot pressing), and cold molded to for standard specimens Preparation of PBS/Spirulina Biocomposites.
It is noted that the physical properties of the composite would necessarily be different than the Spirulina used as a starting material.
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.
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.
Claims 10-17 are rejected under 35 U.S.C. 103 as being unpatentable over Zhu et al. (Macromolecular Research, Vol.25, No.2, pp. 165-171 (2017), as supplied by applicants), as applied to claims 1-2, 4-5, 7-9 and 18-19 above.
Regarding Claims 10-11
Zhu discloses that the Spirulina formulation can be loaded at up to 50wt % with the PBS, and although the formulation is not 100 % spirulina the amount would not be so much less than 50 wt % that the skilled artisan would expect a difference in properties.
Regarding claims 12-17
The density, tensile strength, elasticity, flexural strength, and biodegradability are all properties of the composition. When the reference discloses all the limitations of a claim except a property or function, and the examiner cannot determine whether or not the reference inherently possesses properties which anticipate or render obvious the claimed invention but has basis for shifting the burden of proof to applicant as in In re Fitzgerald, 619 F.2d 67, 205 USPQ 594 (CCPA 1980). See MPEP § § 2112- 2112.02.
Claims 6 and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Zhu et al. (Macromolecular Research, Vol.25, No.2, pp. 165-171 (2017), as supplied by applicants), as applied to claims 1-2, 4-5 and 7-19 above, in view of Lavoisier et al. (WO-2017046356-A1).
Regarding claim 6 and 20
Although, Zhu does not disclose the use of polylactic acid, Zhu does disclose the use of PBS. However, Lavoisier discloses that in similar biocomposites that poly lactic acid and PBS are functionally equivalent biodegradable polymers (approx..para 0045). Therefore it would have been prima facie obvious to one of ordinary skill in the art at the time of the invention to add to the teachings of Zho by substituting poly lactic acid for PBS as the biodegradable polymer with a reasonable expectation of success in forming a useful composite as suggested by Lavoisier.
Response to Arguments
Applicants argue against the rejections over Lavoisier.
Applicants amendments to the claims overcome the rejections over Lavoisier and they have been withdrawn. However, a new rejection has been made with new art making these arguments moot.
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 JAMES E MCDONOUGH whose telephone number is (571)272-6398. The examiner can normally be reached Mon-Fri 10-10.
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JAMES E. MCDONOUGH
Examiner
Art Unit 1734
/JAMES E MCDONOUGH/Primary Examiner, Art Unit 1734
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