The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
DETAILED ACTION
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 12/19/2025 has been entered.
Applicants' arguments have been fully considered. Rejections and/or objections not reiterated from previous office actions are hereby withdrawn due to Applicant's amendments and/or arguments. The following rejections and/or objections are either reiterated or newly applied.
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 may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made.
Claims 1-2, 5-9, 11-15, 25 and 31 are rejected under 35 U.S.C. 103 as being unpatentable over US 2020/0369963 A1 to Cha et al. in view of US 20240042734 A1 to Cui et al. in view of KR 20190066360 A (Seon et al.) and further in view of US 20210394490 to Brunet et al.
Note for all overlapping ranges: 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 reWertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In reWoodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). See MPEP , 2144.05.
Re claims 1-2, 8-9, 11-13, Cha teaches a composition of a) vinyl acetate [126] and polyethylene [122], overlapping ranges of: b) ammonium polyphosphate salts as claimed [15, 58, 71] 30, -40 wt% - regarding the property, the polyphosphate solubility is inherent as the same material and amounts are disclosed; c) water [58] 1-95wt%, d) nitrogen containing blowing agent melamine [15, 22-23, 58, and 85-87] within 10-60 wt% (overlapping applicant’s about: 5 to 15 wt% per claims 1 and 2). Cha while discloses charring [70, 186] and glycerol [95] within 10-20 wt % fails to disclose the exact range of weight percentage of charring agent of 5-15% as claimed; however, the wt% of Cha also overlaps for the polyol helps to dissolve borax or suppress glowering and smoldering (charring agent enhancers per claims 1-2, 6, and 16).
Cui teaches a similar composition including melamine [73-74] as a blowing agent and dipentaerythritol as a charring agent [16, 21, 73] at 10 wt% (pentaerythritol is taught within the weight percentage; however is interchangeable with dipentaerythritol as set forth in [21]. Overlapping ranges rationale applies.
It would have been obvious to one of ordinary skill in the art at the time the invention was made to have selected from the overlapping portion of the range taught by the reference because overlapping ranges have been held to establish prima facie obviousness for benefits in optimizing charring. MPEP 2144.05.
Re claims 5, 7, and 15, [186], Cha teaches auxiliaries suspension stabilizers (dispersing agents) claimed 0.5 to 25% by weight, preferably from 5 to 15% by weight. The amounts of blowing agents added are from 3 to 10% by weight, based on monomer. [178, 189], Cha teaches inorganic fillers like silica 0.01-30 wt% within overlapping ranges. The same overlapping rationale applies.
Cha fails to disclose the exact range of weight percentage of vinyl acetate as claimed.
Seon teaches the vinyl acetate is 5 to 30% or 15 to 25% to have good flame retardance performance (see pg. 3, the paragraph above the “Bridging Combined acryl emulsion Copolymer” heading).
It would have been obvious to one of ordinary skill in the art at the time the invention was made to have added to the Cha reference, the amount of vinyl acetate within overlapping ranges for improvements in flame retardance. It would have been obvious to one of ordinary skill in the art at the time the invention was made to have selected from the overlapping portion of the range taught by the reference because overlapping ranges have been held to establish prima facie obviousness. MPEP 2144.05.
Re claim 25, less than 5 includes zero and thus the weight ratio is within the obvious rationale of the combination.
Further re claims 1 and 31, The combination fails to disclose the claimed terpolymer or mixtures.
Brunet teaches a terpolymer mixture [0017]: When the binder is an organic binder, it may be a thermoplastic binder, a thermosetting binder or a mixture thereof. Particularly preferred organic binders include copolymers based on ethylene and on one or more vinyl esters, such as ethylene/vinyl acetate copolymers and ethylene/vinyl acetate/vinyl ester, especially C9-C11 vinyl versatate, terpolymers. In some embodiments, the binder may also comprise phosphorus-based functions in order to improve the fire resistance thereof.
It would have been obvious to one having ordinary skill in the art to have modified the vinyl resins in the composition above with the vinyl resin terpolymers as claimed, mixing all resins of Brunet for improving fire resistance.
Further re claim 14, Cha doesn’t disclose dipentaerythritol.
Seon teaches dipentaerythritol as a carbonating agent in 5-15 wt%, pg. 5, second paragraph under heading for “Carbonating agent”.
It would have been obvious to one having ordinary skill in the art to have modified the composition of the combination to include dipentaerythritol to aid in a carbonating agent for foaming and refractory purposes.
Claim 10 is rejected under 35 U.S.C. 103(a) as being unpatentable US 2020/0369963 A1 to Cha et al. in view of US 20240042734 A1 to Cui et al. in view of KR 20190066360 A (Seon et al.) in view of US 20210394490 to Brunet et al. and further in view of US 20210156060 A1 to Pyun et al.
The combination is relied upon above.
Further re claim 10, Cha fails to disclose the D50 of polyphosphate as claimed.
Pyun teaches D50 range of overlapping ranges: [0106] The properties of ammonium polyphosphate depend on the number (“n”) of [NH.sub.4PO.sub.3] repeat units and degree of branching. In some embodiments, n is greater than 1000 and the ammonium polyphosphate has low solubility in water (maximum of 1% by weight as measured with gravimetry after filtration of a 10% aqueous suspension at 25° C.). In some embodiments, the ammonium polyphosphate has a particle having a (D50) average particle size of no greater than 50, 40, 30, 20 or 10 microns.
It would have been obvious to one having ordinary skill in the art to have modified the composition of the combination to include, use, or substitute the ammonium phosphate D50 of Pyun in the combination for properties of aiding in solubility.
Claims 16-17 are rejected under 35 U.S.C. 103(a) as being unpatentable over US 2020/0369963 A1 to Cha et al. in view of US 20240042734 A1 to Cui et al. in view of KR 20190066360 A (Seon et al.) in view of US 20210394490 to Brunet et al. and further in view of US 3,707,385 to Kramer et al.
The combination is relied upon above.
Further re claim 17, Cha doesn’t disclose dipentaerythritol.
Seon teaches dipentaerythritol as a carbonating agent in 5-15 wt%, pg. 5, second paragraph under heading for “Carbonating agent” (aka charring agent). Same overlapping rationale applies as set forth above.
It would have been obvious to one having ordinary skill in the art to have modified the composition of the combination to include dipentaerythritol within overlapping ranges to aid in a carbonating agent for foaming and refractory purposes.
Further Re claim 17, the titanium dioxide filler is not taught.
Kraemer teaches silica and titanium dioxide equivalents as inorganic fillers for reisting fires (3:35-45) with natural paint biners.
It would have been obvious to one having ordinary skill in the art to have modified the silica wt% range in the combination with the interchangeable teaching of titanium for the same fire properties as disclosed by Kraemer.
Re claim 16, rockwool isn’t taught.
Kraemer teaches rockwool for aiding in foaming. See 2:30-40.
It would have been obvious to one having ordinary skill in the art to have modified the composition of the combination and add rock wool for foaming purposes.
Claims 25-26 are rejected under 35 U.S.C. 103(a) as being unpatentable over US 2020/0369963 A1 to Cha et al. in view of US 20240042734 A1 to Cui et al. in view of KR 20190066360 A (Seon et al.) in view of US 20210394490 to Brunet et al. and further in view of CN 105419106 A to Luo et al.
The combination is relied upon above.
Cha fails to teach the weight ratios claimed.
Luo teaches an intumescent flame retardant of a similar composition including a terpolymer and is composed of ammonium polyphosphate, the weight ratio of the ammonium polyphosphate, melamine and pentaerythritol, melamine and pentaerythritol is 3: 1 : 0,5 in at least Embodiment 1 (overlapping the sums of less than 2 and 5 as claimed) wherein the retardant has good mechanical performance.
It would have been obvious to one of ordinary skill in the art at the time the invention was made to have selected from the overlapping portion of the range taught by the reference because overlapping ranges have been held to establish prima facie obviousness for including the summary weights in the combined terpolymer aids in a balanced flame retardant of good mechanical performance. MPEP 2144.05.
Claim 27 is rejected under 35 U.S.C. 103(a) as being unpatentable over US 2020/0369963 A1 to Cha et al. in view of US 20240042734 A1 to Cui et al. in view of KR 20190066360 A (Seon et al.) in view of US 20210394490 to Brunet et al. and further in view of CA 2777818 A1 to Zheng et al.
The combination fails to disclose the weight ration as claimed.
Zheng teaches composites with improved flame resistance (Abstract).
[26], Zheng discloses a weight ratio of binder, in general a vinyl binder [25], to inorganic fillers from 1:2 to about 2:1 (when at 2, the ratio is overlapping greater than 1) to adjust flame or heat resistance of the composite. Overlapping rationale applies.
It would have been obvious to one of ordinary skill in the art at the time the invention was made to have selected from the overlapping portion of the range taught by the reference because overlapping ranges have been held to establish prima facie obviousness improving flame resistance.
Response to Arguments
Applicant’s arguments have been considered but are not convincing.
In response to applicant’s argument that there is no teaching, suggestion, or motivation to combine the references, the examiner recognizes that obviousness may be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so found either in the references themselves or in the knowledge generally available to one of ordinary skill in the art. See In re Fine, 837 F.2d 1071, 5 USPQ2d 1596 (Fed. Cir. 1988), In re Jones, 958 F.2d 347, 21 USPQ2d 1941 (Fed. Cir. 1992), and KSR International Co. v. Teleflex, Inc., 550 U.S. 398, 82 USPQ2d 1385 (2007). In this case, Applicant and Declarant Khalid, argues Brunet doesn’t teach ethylene/vinyl acetate/vinyl ester terpolymers are advantageous like the instant specification; however, see again [0017], indeed teaching ethylene/vinyl acetate/vinyl ester, especially C9-C11 vinyl versatate, terpolymers aid to improve fire resistance in the intumescent layer.
Applicant and Declarant Khalid argues Cha teaches away from a low water-soluble ammonium polyphosphate; however see [0016], [0021] where benefits are is present to catalyze the charring of the char former. Applicant argues Cha and Pyun wouldn’t be combinable because of the water solubility differences; however, Cha already teaches ammonium phosphate [11-16] and Pyun was only relied upon, not to replace the entire compound but to show the D50 size is taught and overlaps, which sets the tone for a prima facie case of obviousness. The secondary reference is used to supplement the teachings of Cha, the primary reference, and thus does not teach away from the combination.
Applicant and Declarant Khalid argues Cui doesn’t teach interchangeability of dipentaerythritol and pentaerythritol; however, they are indeed as previously set forth in [21] for suitable charring agents.
Applicant and Declarant Khalid argues no tests are prepared by Brunet,; however, a prima facie case has been set forth and tests are what the declaration is devoid of from applicant as the burden lies with applicant, not arguments or speculation but comparative test data. Once a reference teaching overlapping ranges and/or 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. “[T]he 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...[footnote omitted].” See MPEP 2112.
Applicant and Declarant Khalid argues the solubility percentage, but the solubility isn’t tested as such. Applicant and Declarant Khalid argues the instant specification and Seon, note further MPEP 716.02(c) Weighing Evidence of Expected and Unexpected Results [R-08.2012] II. DEMONSTRATING CRITICALITY OF A CLAIMED RANGE To establish unexpected results over a claimed range, applicants should compare a sufficient number of tests both inside and outside the claimed range to show the criticality of the claimed range. In re Hill, 284 F.2d 955, 128 USPQ 197 (CCPA 1960).
A prima facie case has been established, and therefore the burden shifts to the Applicant to submit additional objective evidence of nonobviousness, such as comparative test data showing that the claimed invention possesses improved properties not expected by the prior art. Arguments of counsel cannot take the place of factually supported objective evidence. See, e.g., In re Huang, 100 F.3d 135,139-40, 40 USPQ2d 1685, 1689 (Fed. Cir. 1996); In re De Blauwe, 736 F.2d 699,705, 222 USPQ 191, 196 (Fed. Cir. 1984). Until the Applicant has convincingly argued or has provided evidence to the contrary, the rejections are maintained.
Conclusion
The remaining references listed on form(s) 892 and/or 1449 have been reviewed by the examiner and are considered to be cumulative to or less material than the prior art references relied upon in the rejection above.
Notably Price, Fox, and Shalov all teach fire proofing compositions.
US 20230002622 A1 to Canterbury et al. teaches [0046] a similar composition for fire retardancy including a pigment-to-binder (P/B) ratio of the composition is in the range 0.5-10 (overlapping greater than 1 as claimed), more preferably in the range 5-8. In some embodiment the P/B ratio of 0.5-2 can be used, e.g. in case of polymeric fire retardants. P/B ratio is the weight ratio of the sum of the inorganic pigments and fillers to the binder solids, which include resin(s), crosslinker(s) and additives for exhibiting overall good adhesion for fire resistance in aircraft (Abstract).
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TAMRA L. DICUS
Primary Examiner
Art Unit 1787
/TAMRA L. DICUS/Primary Examiner, Art Unit 1787