Claims 1, 7, 12-14, and 21-35 are currently with claims 2-6, 8-11, and 15-20 being canceled. Claims 1, 7, 12-14, and 21-35 are rejected.
The 112 rejection is moot in view of the cancellation of claim 20.
All of the rejections have been withdrawn in view of the amendment and response filed on 12/19/2025. The combined teachings of the cited references fail to disclose a foam layer first material comprising 0.5 to 3 wt% of fluorinated surfactant. Shepherd has been maintained.
New ground of rejection is made in view of newly discovered references to Ide et al. (US 6,133,332) and Bracegirdle et al. (US 2018/0346680).
The provisional nonstatutory double patenting rejection has been withdrawn in view of the amendment and response filed on 12/19/2025.
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 1, 12-14 and 21 are rejected under 35 U.S.C. 103 as being unpatentable over GB 2 448 901 to Mellersh et al. (hereinafter “Mellersch”) in view of WO 2014/177850 to Murray and US 6,133,332 to Ide et al. (hereinafter “Ide”).
As to claims 1, 12-14, and 21, Mellersh discloses a thermal insulation structure comprising three layers: an inner tie coat, a foam insulating layer and an outer protective layer wherein each of three layers is formed by the reaction of a cold cure phenolic resin and a partial phosphate ester (abstract). The thermal insulation structure is applied to a substrate (page 1).
Mellersh does not explicitly teach each of three layers being formed by the reaction of a furan or furfuryl alcohol resin, and a partial phosphate ester; nor does the foam insulating layer first material comprise 0.5-3 wt% of fluorinated surfactant.
Murray, however, discloses that a syntactic foam or an adhesive material obtained from a composition comprising a pre-polymeric resin, a partial phosphate ester curing agent and hydroxylamine (paragraph 1). The pre-polymeric resin includes a phenolic resole resin or a furfuryl alcohol resin (paragraph 41).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to substitute a bio-based furfuryl alcohol resin from Murray for the phenolic resole resin disclosed in Mellersh because the bio-based furfuryl alcohol resin is superior to traditional phenolic resole resin regarding sustainability, environmental impact and cost effectiveness. Further, the bio-based furfuryl alcohol resin is free of formaldehyde which is a common component of phenolic resin and a known volatile organic compound (VOC). As such, the absence of the formaldehyde reduces health risk associated with the VOC emissions and enhances workplace safety.
Ide, however, discloses a phenolic resin foam comprising a phenolic resin and an acidic curing agent, and a blowing agent (abstract). The phenolic resin foam also includes a fluorine surfactant as a foam stabilizer in an amount of 1 to 10 wt% (column 4, lines 25-30).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to include a fluorine surfactant from Ide in the foam insulating material first material disclosed in Mellersh/Murray, motivated by the desire to improve stability, flowability and mixing during the foam production.
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over Mellersh in view of Murray and Ide, as applied to claim 1 above, further in view of US 4,681,902 to Duncan et al. (hereinafter “Duncan”).
None of the cited references: Mellersh, Murray and Ide disclose or suggest the foam insulating layer first material comprising up to 15% by weight of a smoke suppressor.
Duncan, however, discloses a flame-retardant phenolic foam having a k value below 0.02 W/mk (abstract). The foam has a flame-retardant agent comprising a blend of a halosubstituted diphenyl oxide and an organic phosphorus compound (abstract). The flame-retardant agent is present in an amount of 5 parts by weight based on 100 parts by weight of the phenolic resin (column 5, lines 20-25).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to include a flame-retardant agent from Duncan in the thermal insulating structure disclosed in Mellersh/Murray/Ide, motivated by the desire to impart flame-retardant properties.
Claims 22, 24-27 and 29 are rejected under 35 U.S.C. 103 as being unpatentable over US 2018/0155519 to Shepherd et al. (hereinafter “Shepherd”) in view of Murray.
Shepherd discloses a fire-resistant syntactic foam material comprising the reaction product of a mixture comprising a resole cold curing phenolic resin, hollow spheres, a partial phosphate ester, phosphate plasticizer, reinforcing filler and a particulate filler (abstract). The phosphate plasticizer comprises a phosphate triester wherein a phosphate group is esterized with three alkyl or aryl groups (paragraph 35). The phosphate triester reads on the claimed smoke suppressor. The syntactic foam material contains fluorinated surfactant (paragraph 30). The syntactic foam material also comprises vermiculite or graphite and each of which corresponding to the claimed flame retardant (paragraph 57).
The claim is directed to a passive fire-resistant structure comprising a passive fire-resistant foam layer that is the reaction product of (i) a first material comprising a bio-based resin and a smoke suppressor and (ii) a second material comprising a hardener and a flame retardant. The smoke suppressor and the flame retardant in the first and second materials carry through to the final foam product. Therefore, the inclusion of the flame retardant in the first material or the second material does not add patentable weight with respect to the foam product claim. As long as the flame retardant and its content in the final product of the passive fire-resistant foam layer meet the claimed requirements, the distinctions in the first and second materials as intermediate products do not render the claim unobvious.
Shepherd further discloses a composite material 10 comprising an inner layer 12, a syntactic foam layer 16 and an outer layer 14 as shown in figure 1. The inner layer reads on the claimed tie coat.
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Shepherd does not explicitly disclose the syntactic foam layer being formed by the reaction of a bio-based resin and a hardener.
Murray, however, discloses that a syntactic foam or an adhesive material obtained from a composition comprising a pre-polymeric resin, a partial phosphate ester curing agent and hydroxylamine (paragraph 1). The pre-polymeric resin includes a phenolic resole resin or a furfuryl alcohol resin (paragraph 41).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to substitute a bio-based furfuryl alcohol resin from Murray for the phenolic resole resin disclosed in Mellersh because the bio-based furfuryl alcohol resin is superior to traditional phenolic resole resin regarding sustainability, environmental impact and cost effectiveness. Further, the bio-based furfuryl alcohol resin is free of formaldehyde which is a common component of phenolic resin and a known volatile organic compound (VOC). As such, the absence of the formaldehyde reduces health risk associated with the VOC emissions and enhances workplace safety.
As to claims 24 and 25, Shepherd discloses that the syntactic foam first material comprises 8.2 wt% of vermiculite (paragraph 57). This overlaps the claimed range.
In the case, where the claimed ranges overlap or touch the range disclosed by the prior art a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257,191 USPQ90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990), In re Geisler, 116 F.3d 1465, 1469-71, 43 USPQ2d 1362, 1365-66 (Fed. Cir. 1997). The claim is not rendered unobvious because discovering the optimum or workable ranges involves only routine skill in the art. Difference in the content of the flame retardant will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating that the content of the flame retardant is critical or provides unexpected results.
As to claim 26, Shepherd discloses that the syntactic foam material comprises vermiculite or graphite and each of which corresponding to the claimed flame retardant (paragraph 57). Shepherd discloses that the syntactic foam material comprises the phosphate plasticizer such as phosphate triester corresponding to the claimed smoke suppressor (paragraphs 35 and 57). The vermiculite and the graphite are different from the phosphate triester.
As to claim 27, Shepherd discloses that the syntactic foam first material comprises 5.1 wt% of phosphate plasticizer as a smoke suppressor (paragraph 57).
As to claim 29, Shepherd discloses that the syntactic foam first material comprises the phosphate plasticizer such as a phosphate triester wherein a phosphate group is esterized with three alkyl or aryl groups (paragraph 35). A triethyl phosphate is a specific example of the phosphate triester. The triethyl phosphate is known to exhibit superior hydrolytic stability, low volatility and slow evaporation.
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to use a triethyl phosphate for the phosphate triester motivated by the desire to provide superior hydrolytic stability, low volatility and slow evaporation while promoting processing and handling of the material and imparting flame-retardant properties.
Claim 28 is rejected under 35 U.S.C. 103 as being unpatentable over Shepherd in view of Murray as applied to claim 22 above, further in view of Ide.
Shepherd discloses the syntactic foam first material including 0.3 wt% or 0.35 wt% of fluorinated surfactant (paragraphs 39 and 57).
Shepherd does not disclose the syntactic foam first material including 0.5 -3 wt% of the fluorinated surfactant.
Ide, however, discloses a phenolic resin foam comprising a phenolic resin, an acidic curing agent, and a blowing agent (abstract). The phenolic resin foam also includes a fluorine surfactant as a foam stabilizer in an amount of 1 to 10 wt% (column 4, lines 25-30).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to include a fluorine surfactant in an amount disclosed in Ide in the foam insulating material first material disclosed in Shepherd/Murray, motivated by the desire to improve stability, flowability and mixing during the foam production.
Claims 23, and 30-34 are rejected under 35 U.S.C. 103 as being unpatentable over Shepherd in view of Murray as applied to claim 22 above, further in view of US 2018/0346680 to Bracegirdle et al. (hereinafter “Bracegirdle”).
As to claims 23 and 30-32, Shepherd discloses a fire-resistant syntactic foam material comprising the reaction product of a mixture comprising a resole cold curing phenolic resin, hollow spheres, a partial phosphate ester, phosphate plasticizer, reinforcing filler and a particulate filler (abstract). The phosphate plasticizer comprises a phosphate triester wherein a phosphate group is esterized with three alkyl or aryl groups (paragraph 35). The phosphate triester reads on the claimed smoke suppressor. The syntactic foam material contains fluorinated surfactant (paragraph 30). The syntactic foam material also comprises vermiculite or graphite and each of which corresponding to the claimed flame retardant (paragraph 57).
The claim is directed to a passive fire-resistant structure comprising a passive fire-resistant foam layer that is the reaction product of (i) a first material comprising a bio-based resin and a smoke suppressor and (ii) a second material comprising a hardener and a flame retardant. The smoke suppressor and the flame retardant in the first and second materials carry through to the final foam product. Therefore, the inclusion of the flame retardant in the first material or the second material does not add patentable weight with respect to the foam product claim. As long as the flame retardant and its content in the final product of the passive fire-resistant foam layer meet the claimed requirements, the distinctions in the first and second materials as intermediate products do not render the claim unobvious.
Shepherd further discloses a composite material 10 comprising an inner layer 12, a syntactic foam layer 16 and an outer layer 14 as shown in figure 1. The inner layer reads on the claimed tie coat.
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Shepherd does not explicitly disclose the syntactic foam layer being formed by the reaction of a bio-based resin and a hardener.
Murray, however, discloses that a syntactic foam or an adhesive material obtained from a composition comprising a pre-polymeric resin, a partial phosphate ester curing agent and hydroxylamine (paragraph 1). The pre-polymeric resin includes a phenolic resole resin or a furfuryl alcohol resin (paragraph 41).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to substitute a bio-based furfuryl alcohol resin from Murray for the phenolic resole resin disclosed in Shepherd because the bio-based furfuryl alcohol resin is superior to traditional phenolic resole resin regarding sustainability, environmental impact and cost effectiveness. Further, the bio-based furfuryl alcohol resin is free of formaldehyde which is a common component of phenolic resin and a known volatile organic compound (VOC). As such, the absence of the formaldehyde reduces health risk associated with the VOC emissions and enhances workplace safety.
Neither Shepherd nor Murray discloses the syntactic foam second material comprising a boric acid flame retardant.
Bracegirdle, however, discloses a polystyrene-phenolic foam has a density of less than 40 kg/m3 (paragraph 15). The polystyrene-phenolic foam includes 0.5-60 wt% of particulate filler comprising granular boric acid (paragraphs 134-136). The granular boric acid has a particle size of 0.1 to 5 mm and contributes to fire inhibition (paragraphs 135 and 136).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to include the granular boric acid from Bracegirdle to the syntactic foam disclosed in Shepherd/Murray, motivated by the desire to enhance fire resistant properties.
As to claim 33, Shepherd discloses that the syntactic foam material comprises the phosphate plasticizer such as phosphate triester corresponding to the claimed smoke suppressor (paragraphs 35 and 57). The phosphate triester is different from the boric acid.
As to claim 34, Shepherd discloses that the syntactic foam first material comprises 5.1 wt% of phosphate plasticizer as a smoke suppressor (paragraph 57).
Claim 35 is rejected under 35 U.S.C. 103 as being unpatentable over Shepherd in view of Murray and Bracegirdle as applied to claim 30 above, further in view of Ide.
Shepherd discloses the syntactic foam first material including 0.3 wt% or 0.35 wt% of fluorinated surfactant (paragraphs 39 and 57).
Shepherd does not disclose the syntactic foam first material including 0.5 -3 wt% of the fluorinated surfactant.
Ide, however, discloses a phenolic resin foam comprising a phenolic resin, an acidic curing agent, and a blowing agent (abstract). The phenolic resin foam also includes a fluorine surfactant as a foam stabilizer in an amount of 1 to 10 wt% (column 4, lines 25-30).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to include a fluorine surfactant in an amount disclosed in Ide in the foam insulating material first material disclosed in Shepherd/Murray, motivated by the desire to improve stability, flowability and mixing during the foam production.
Response to Arguments
New ground of rejection is made in view of new combinations of Mellersh, Murray and Ide; Shepherd and Murray; and Shepherd, Murray, and Bracegirdle.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1, 12-14, and 21 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-13, 19 and 20 of copending Application No. 18/502,400 (reference application) in view of Ide.
The claims of the reference application teach each and every limitation of the claims of the present invention except for the foam layer first material comprising 0.5-3 wt% of fluorinated surfactant.
Ide, however, discloses a phenolic resin foam comprising a phenolic resin, an acidic curing agent, and a blowing agent (abstract). The phenolic resin foam also includes a fluorine surfactant as a foam stabilizer in an amount of 1 to 10 wt% (column 4, lines 25-30).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to include a fluorine surfactant in an amount disclosed in Ide in the foam layer first material disclosed in the reference application, motivated by the desire to improve stability, flowability and mixing during the foam production.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claim 7 is provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-13, 19 and 20 of copending Application No. 18/502,400 (reference application) in view of Ide as applied to claim 1 above, further in view of Shepherd.
The claims of the reference application do not explicitly disclose the foam insulating layer first material comprising up to 15% by weight of a smoke suppressor.
Shepherd, however, discloses a fire-resistant syntactic foam material comprising the reaction product of a mixture comprising a resole cold curing phenolic resin, hollow spheres, a partial phosphate ester, phosphate plasticizer, reinforcing filler and a particulate filler (abstract). The syntactic foam material comprises 5.1 wt% of phosphate plasticizer including a phosphate triester corresponding to the claimed smoke suppressor (paragraph 35).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to include a phosphate triester from Shepherd in the thermal insulating structure disclosed in the reference application, motivated by the desire to promote processing and handling of the material while imparting flame-retardant properties.
Claims 22, 24-27 and 29 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-13, 19 and 20 of copending Application No. 18/502,400 (reference application) in view of Shepherd.
As to claims 22, and 24-27, the claims of the reference application teach each and every limitation of the claims of the present invention except for the foam layer first material comprising a smoke suppressor; and the foam layer second material comprising a flame retardant.
Shepherd, however, discloses a fire-resistant syntactic foam material comprising the reaction product of a mixture comprising a resole cold curing phenolic resin, hollow spheres, a partial phosphate ester, phosphate plasticizer, reinforcing filler and a particulate filler (abstract). Shepherd discloses that the syntactic foam first material comprises 5.1 wt% of phosphate plasticizer as a smoke suppressor (paragraph 57).
Shepherd also discloses that the syntactic foam first material comprises 8.2 wt% of vermiculite corresponding to the claimed flame retardant (paragraph 57). The phosphate plasticizer is different from the vermiculite.
The claim is directed to a passive fire-resistant structure comprising a passive fire-resistant foam layer that is the reaction product of (i) a first material comprising a bio-based resin and a smoke suppressor and (ii) a second material comprising a hardener and a flame retardant. The smoke suppressor and the flame retardant in the first and second materials carry through to the final foam product. Therefore, the inclusion of the flame retardant in the first material or the second material does not add patentable weight with respect to the foam product claim. As long as the flame retardant and its content in the final product of the passive fire-resistant foam layer meet the claimed requirements, the distinctions in the first and second materials as intermediate products do not render the claim unobvious.
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to include a phosphate triester from Shepherd in the thermal insulating structure disclosed in the reference application, motivated by the desire to promote processing and handling of the material while imparting flame-retardant properties.
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to include vermiculite or graphite from Shepherd in the thermal insulating structure disclosed in the reference application, motivated by the desire to enhance flame-retardant properties.
As to claim 29, Shepherd discloses that the syntactic foam first material comprises the phosphate plasticizer such as a phosphate triester wherein a phosphate group is esterized with three alkyl or aryl groups (paragraph 35). A triethyl phosphate is a specific example of the phosphate triester. The triethyl phosphate is known to exhibit superior hydrolytic stability, low volatility and slow evaporation.
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to use a triethyl phosphate for the phosphate plasticizer motivated by the desire to provide superior hydrolytic stability, low volatility and slow evaporation while promoting processing and handling of the material and imparting flame-retardant properties.
Claim 23 is provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-13, 19 and 20 of copending Application No. 18/502,400 (reference application) in view of Shepherd as applied to claim 22 above, further in view of Bracegirdle.
Neither the reference application nor Shepherd discloses or suggest the foam layer second material comprising a boric acid flame retardant.
Bracegirdle, however, discloses a polystyrene-phenolic foam has a density of less than 40 kg/m3 (paragraph 15). The polystyrene-phenolic foam includes 0.5-60 wt% of particulate filler comprising granular boric acid (paragraphs 134-136). The granular boric acid has a particle size of 0.1 to 5 mm and contributes to fire inhibition (paragraphs 135 and 136).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to include the granular boric acid from Bracegirdle to the foam insulating layer disclosed in the reference application/Shepherd, motivated by the desire to enhance fire resistant properties.
Claim 28 is provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-13, 19 and 20 of copending Application No. 18/502,400 (reference application) in view of Shepherd as applied to claim 22 above, further in view of Ide.
Neither the reference application nor Shepherd discloses or suggests the foam layer first material comprising 0.5-3 wt% of fluorinated surfactant.
Ide, however, discloses a phenolic resin foam comprising a phenolic resin, an acidic curing agent, and a blowing agent (abstract). The phenolic resin foam also includes a fluorine surfactant as a foam stabilizer in an amount of 1 to 10 wt% (column 4, lines 25-30).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to include a fluorine surfactant in an amount disclosed in Ide in the foam insulating material first material disclosed in the reference application/Shepherd, motivated by the desire to improve stability, flowability and mixing during the foam production.
Claims 30-32 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-13, 19 and 20 of copending Application No. 18/502,400 (reference application) in view of Bracegirdle.
The claims of the reference application teach each and every limitation of the claims of the present invention except for the foam layer second material comprising a boric acid flame retardant.
Bracegirdle, however, discloses a polystyrene-phenolic foam has a density of less than 40 kg/m3 (paragraph 15). The polystyrene-phenolic foam includes 0.5-60 wt% of particulate filler comprising granular boric acid (paragraphs 134-136). The granular boric acid has a particle size of 0.1 to 5 mm and contributes to fire inhibition (paragraphs 135 and 136).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to include the granular boric acid from Bracegirdle to the foam insulating layer disclosed in the reference application, motivated by the desire to enhance fire resistant properties.
Claims 33 and 34 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-13, 19 and 20 of copending Application No. 18/502,400 (reference application) in view of Bracegirdle as applied to claim 30, further in view of Shepherd.
Neither the reference application nor Bracegirdle discloses the foam insulating layer first material comprising a smoke suppressor.
Shepherd, however, discloses that the syntactic foam first material comprises 5.1 wt% of phosphate plasticizer as a smoke suppressor (paragraph 57). The phosphate plasticizer is different from the boric acid flame retardant.
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to include a phosphate triester from Shepherd in the thermal insulating structure disclosed in the reference application/Bracegirdle, motivated by the desire to promote processing and handling of the material while imparting flame-retardant properties.
Claim 35 is provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-13, 19 and 20 of copending Application No. 18/502,400 (reference application) in view of Bracegirdle as applied to claim 30, further in view of Ide.
Neither the reference application nor Bracegirdle discloses the foam insulating layer first material comprising 0.5-3.0 wt% fluorinated surfactant.
Ide, however, discloses a phenolic resin foam comprising a phenolic resin, an acidic curing agent, and a blowing agent (abstract). The phenolic resin foam also includes a fluorine surfactant as a foam stabilizer in an amount of 1 to 10 wt% (column 4, lines 25-30).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to include a fluorine surfactant in disclosed in Ide in the foam insulating material first material disclosed in the reference application/Bracegirdle, motivated by the desire to improve stability, flowability and mixing during the foam production.
Response to Arguments
New ground of rejection is made in view of new combination of the reference application and Ide.
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 Hai Vo whose telephone number is (571)272-1485. The examiner can normally be reached M-F: 9:00 am - 6:00 pm with every other Friday off.
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/Hai Vo/
Primary Examiner
Art Unit 1788