DETAILED ACTION
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claim Rejections - 35 USC § 102 / 103
Claims 1, 2, and 4-7 are rejected under 35 U.S.C. 102(a)(1) as anticipated by or, in the alternative, under 35 U.S.C. 103 as obvious over Okamoto et al. (US 2020/0031105).
Okamoto is directed to a laminate comprising a substrate layer, an intermediate layer, and a fluorine-based resin layer (paragraph 0015). The intermediate layer comprises an acid-modified polyolefin resin, a resin containing an epoxy group, and an elastomer resin (paragraph 0049). The resin containing an epoxy group is preferably an epoxidized polybutadiene having a molecular weight of 500 to 4,000 (paragraphs 0065 and 0068). The elastomer resin is preferably an olefin-based block copolymer, such as a styrene-isoprene copolymer (paragraph 0070). The fluorine-based resin may be polytetrafluoroethylene (paragraph 0074).
The fluorine-based resin layer corresponds to the first layer of the claims while the intermediate layer corresponds to the second layer of the claims.
Regarding the limitation that the first layer comprises a polyethylene polymer (with the understanding that includes polytetrafluoroethylene as set forth in paragraph 7 above), one of ordinary skill in the art would have immediately envisaged the use of polytetrafluoroethylene in the fluorine-based resin layer based on the limited number of fluorine-based resins taught by Okamoto. Alternatively, it would have been obvious to one of ordinary skill in the art to use any of the fluorine-based resins explicitly disclosed by Okamoto.
Regarding the limitation in claim 1 that the first elastomer is a non-thermoplastic elastomer and the limitation in claim 7 that the elastomer is present in a crosslinked form, one of ordinary skill in the art would recognize the epoxidized polybutadiene having a molecular weight as low as 500 as a non-thermoplastic elastomer having crosslinks when blended and extruded in a mixture containing an acid-modified resin.
Regarding claim 4, one of ordinary skill in the art would immediately envisage styrene-isoprene-styrene copolymer as a block copolymer of styrene and isoprene. Alternative, it would have been obvious to use any block copolymer of styrene and isoprene, including styrene-isoprene-styrene copolymer.
Claim Rejections - 35 USC § 103
Claims 1-7 and 9-15 are rejected under 35 U.S.C. 103 as being unpatentable over Plenk et al. (DE 102016106499).
Plenk is directed to a composite formed by applying and crosslinking a rubber layer to a surface film followed by bonding a fabric infused with a synthetic resin to the rubber layer via an adhesive layer (paragraph 0007). The surface film is preferably high molecular weight polyethylene, ultrahigh molecular weight polyethylene or tetrafluoroethylene (paragraph 0009). The adhesive is preferable an acrylate, a polyurethane, or an epoxy resin (paragraph 0012). The fabric may comprise glass or carbon fibers (paragraph 0021) while the synthetic resin infused into the fabric may be epoxy or acrylic resin (paragraph 0020). The rubber layer may consist of a blend of materials including styrene block copolymers with isoprene and other rubbers, such as ethylene-propylene rubber, ethylene-propylene-diene rubber, ethylene-propylene-diene rubber, ethylene-acrylate rubber, fluorocarbon rubber, acrylate rubber, ethylene vinyl acetate, acrylonitrile-butadiene rubber (paragraph 0045). The composite may be used to form a rotor blade for a wind turbine (paragraph 0028).
In the absence of a showing of criticality or unexpected results, it would have been obvious to one of ordinary skill in the art to form the rubber layer with a combination of the disclosed rubbers recited in Plenk since Plenk explicitly teaches that combinations or blends of the rubbers may be used to form the rubber layer.
Response to Arguments
Applicant's arguments filed 01 December 2025 have been fully considered but they are not persuasive.
Regarding the rejection over Okamoto, the applicant argues that Okamoto does not teach or suggest a layer comprising two or more different elastomers, one being thermoplastic and another being non-thermoplastic. The applicant argues that the ethylene alpha-olefins mentioned as examples of functionalized polyethylenes in the intermediate layer are not automatically elastomers.
This is not persuasive for the following reasons. Okamoto teaches an intermediate layer (corresponding to the second layer of the claims) contains three components: an acid-modified polyethylene, a resin containing an epoxy group, and an elastomer resin (paragraph 0049). The elastomer resin is preferably an olefin-based elastomer, such as styrene-isoprene or styrene-ethylene (paragraph 0070). This corresponds to the second elastomer of the claims, i.e., the thermoplastic elastomer. The resin containing an epoxy group is preferably an epoxidized polybutadiene (paragraph 0063). This corresponds to the first elastomer of the claims, i.e., the non-thermoplastic elastomer, since one of ordinary skill in the art would (a) recognize polybutadiene as an elastomer and (b) expect the acid groups of the acid-modified polyethylene to react with the epoxy groups of the epoxidized polybutadiene and act as a crosslinking agent.
The applicant further argues that that the features of the claims provide advantageous and surprising technical results with respect to erosion resistance.
This is not persuasive for at least the reasons that (a) unexpected results cannot be used to overcome rejections based on anticipation and (b) the showing provided in the specification is not commensurate in scope with the claims. The example illustrated in the specification has a first layer of ultrahigh molecular weight polyethylene while the claims require only that the first layer be polyethylene and the second layer is formed from an elastomer composition containing one particular non-thermoplastic elastomer, one particular thermoplastic elastomer, as well as additives including crosslinking (co)agents present in particular concentrations. Moreover, to be relied upon as evidence of nonobviousness the showing should be a comparison with the prior art, with the burden on the applicant to explain the data and establish that the results are unexpected and significant. See MPEP 716.02.
Additionally, the applicant argues that it would be highly questionable whether one of ordinary skill in the art would consider Okamoto, since it relates to a completely different technical field (blister containers) that the instant invention (rotor blades of wind turbines).
This is not persuasive because the claims rejected over Okamoto are directed merely to a laminate. The rejected claims make no reference to rotor blades or wind turbines.
Regarding the rejections over Cheon et al. (KR 10-2007-0065651) in view of at least Dunton et al. (WO 93/20775), the examiner agrees with the applicant that the incorporation of the limitations of claim 8 - which was not rejected over the combination of these references - into claim 1 renders these rejections moot. All rejections based on Cheon et al. in view of at least Dunton et al. have been withdrawn.
Regarding the rejection over Plenk, the applicant argues that Plenk does not teach or suggest the combination of elastomers recited in claim 1 or that the surface film is preferably made of polyethylene or any advantages related thereto.
This is not persuasive for the following reasons. While disclosed examples and preferred embodiments do not constitute a teaching away from a broader disclosure or non-preferred embodiments, Plank explicitly teaches that the surface film is preferably polyethylene, in particular high density or ultrahigh molecular weight polyethylene (paragraph 0009). The courts have also held that it is not necessary that the prior art suggest the claimed combination to achieve the same advantages or results discovered by the applicant. See MPEP 2144 IV.
The applicant asserts that it is clear that thermoplastic and non-thermoplastic elastomers are alternative not to be used in combination, as a combination of these elastomers in one layer is not taught or suggested.
This is not persuasive because, rather than being clear that thermoplastic and non-thermoplastic elastomers are alternative not to be used in combination, paragraph 0045 of Plenk explicitly recites that combinations of rubbers drawn from a Markush group that contains both thermoplastic and non-thermoplastic rubbers may be used in the elastomer layer. It should also be noted that, even in the absence of an explicit teaching that a combination of elastomers may be used, the court have held that it is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose. See MPEP 2144.06.
The applicant further argues that the tests presented in the specification show significant improvement compared to laminates that only contain a non-thermoplastic elastomer.
This is not persuasive for the reasons outlined above. Namely, (i) the showing provided in the specification is not commensurate in scope with the claims, (ii) the showing must be a comparison with the prior art to be relied upon as evidence of nonobviousness, and (iii) the burden on the applicant to explain the data and establish that the results are unexpected and significant.
Conclusion
THIS ACTION IS MADE FINAL. 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 RAMSEY E ZACHARIA whose telephone number is (571)272-1518. The best time to reach the examiner is weekday afternoons, Eastern time.
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/RAMSEY ZACHARIA/Primary Examiner, Art Unit 1787