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 .
Priority
Acknowledgment is made of applicant's claim for foreign priority based on an application filed in EPO on 1 April 2021. It is noted, however, that applicant has not filed a certified copy of the EP 21166741.5 application as required by 37 CFR 1.55.
Claim Rejections - 35 USC § 112(b)
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.
Claims 22-24 are 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.
Regarding claim 22, there is a lack of antecedent basis for the composition of claim 16 comprising additives (C) (amending to recite ‘further comprising’ should overcome this rejection). This includes claims 23-24 as they depend from claim 22.
Claim Rejections - 35 USC § 112(d)
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 24 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. Independent claim 16 requires that the weight% of (A) and (B) must equal 100 wt% and as such the recitation of claim 24 of 0.1 to 5.0 wt% additives (C) is improper for failing to include the limitations of the claim upon which it depends. Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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.
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.
Claims 16-33 are rejected under 35 U.S.C. 103 as being unpatentable over Niedersues et al. (EP 2418237 A1) in view of Gahleitner et al. (US PGPub 2020/0369861).
Regarding claim 16, Niedersues teaches polypropylene film forming compositions comprising 15 to 85 wt% of crystalline polypropylene polymer (A), 15 to 85 wt% of polypropylene polymer (B), and 0.001 to 1 wt% nucleating agent (C) (where amount ranges of (A)+(B) are substantially 100 wt% and (C) can be considered residual amounts) ([0024]). Niedersues teaches that component (B) is a polypropylene homopolymer ([0062]; [0083]) having an MFR2, measured according to ISO 1133, of at least 1.0 g/10min and not more than 20 g/10min ([0063]-[0064]), and has a melt strength, determined in the Rheotens test, of at least 10 cN ([0070]).
Niedersues teaches that component (A) is preferably a heterophasic polypropylene copolymer with ethylene ([0035]-[0037]; [0046]) derived from metallocene catalysts ([0059])(instant single-site catalyst). Niedersues does not specifically teach a C2C3 heterophasic copolymer having the claimed properties. However, Gahleitner teaches heterophasic polypropylene copolymers (abstract) which can be combined with other polymers ([0226]) to obtain films ([0231]). Gahleitner teaches the heterophasic polypropylene copolymer (HECO) is a copolymer of ethylene ([0054]), and is obtained via single-site metallocene catalysts ([0126]; [0140]). Gahleitner further teaches the preferred HECO has: a melting temperature, determined by DCS, of 135 to 165 ºC ([0048]); an MFR-2 (230 ºC, 2.16 kg) of 0.15 to 50 g/10min ([0044]); a comonomer content of 6.0 to 35.0 wt%, based on the total HECO composition ([0045]), where ethylene is the preferred comonomer ([0054]); and a soluble fraction (SF), measured by CYSTEX QC, of 45-80 wt% ([0082]). Gahleitner teaches that HECO polymers as described demonstrate high flexibility and high softness ([0035]) and are suitable for production of films ([0231]) by any common process ([0232]). Gahleitner and Niedersues are analogous art and are combinable because they are concerned with film-forming polypropylene compositions comprising heterophasic polypropylene copolymers with ethylene, having similar properties, which are suitable for forming films. At the time of filing a person having ordinary skill in the art would have found it obvious to select the HECO of Gahleitner as the heterophasic polypropylene copolymer component of Niedersues and would have been motivated to do so as Niedersues invites such polymers and further as Gahleitner teaches selecting the as-described HECO results in polymer compositions which have high flexibility, as well as high softness, and can be processed into films using any common process.
Regarding claim 17, Niedersues in view of Gahleitner renders obvious the polymer composition as set forth in claim 16 above. Gahleitner further teaches the HECO noted above also has the properties of: a melting temperature, determined by DCS, of 145 to 158 ºC ([0048]); an MFR-2 (230 ºC, 2.16 kg) of 0.15 to 50 g/10min ([0044]); and a comonomer content of 6.0 to 35.0 wt%, based on the total HECO composition ([0045]), where ethylene is the preferred comonomer ([0054]).
Regarding claim 18, Niedersues in view of Gahleitner renders obvious the polymer composition as set forth in claim 16 above. Gahleitner further teaches the HECO noted above also has the properties of: a comonomer content in the soluble fraction (SF) of from 17 to 55 wt% ([0083]); a comonomer content in the crystalline fraction (CF) of up to 6.0 wt% ([0076]); an intrinsic viscosity (IV) of the SF of from 1.2 to 7.0 dl/g ([0088]); and an intrinsic viscosity (IV) of the CF from 1.0 to 7.0dl/g ([0081]).
Regarding claim 19, Niedersues in view of Gahleitner renders obvious the polymer composition as set forth in claim 16 above. Niedersues further teaches that component (B) has an MFR2 at least 1.0 g/10min and not more than 10.0 g/10min ([0063]-[0064]), a melt strength of at least 10 cN ([0070]), and a density of at least 900 kg/m3 and not more than 925 kg/m3 ([0066]-[0067]).
Regarding claim 20, Niedersues in view of Gahleitner renders obvious the polymer composition as set forth in claim 16 above. Niedersues further teaches that the overall polymer composition has an MFR2, measured according to ISO 1133, of at least 1.5 g/10min to not more than 30.0 g/10min ([0152]-[0153]).
Regarding claim 21, Niedersues in view of Gahleitner renders obvious the polymer composition as set forth in claim 16 above. Niedersues teaches the heterophasic polypropylene copolymer is preferably obtained via metallocene catalysts ([0059]). Gahleitner also further teaches the heterophasic polypropylene copolymer is obtained via metallocene catalysts ([0140]), as noted above.
Regarding claims 22-24, Niedersues in view of Gahleitner renders obvious the polymer composition as set forth in claim 16 above. Neidersues further teaches the inclusion of nucleating agent (C) ([0138]) present from 0.001 up to 1 wt% ([0141]), and the optional inclusion of various additives in amounts of up to 2.0 wt% including UV-stabilizers, lubricants, coloring agents, processing aids, etc. ([0156]).
Regarding claims 25-28, Niedersues in view of Gahleitner renders obvious the polymer composition as set forth in claim 16 above. Niedersues further teaches the composition is suitable for forming films, preferably for packaging, mono- or multi-layer films, general films, and laminated films ([0022]; [0185]-[0187]).
Niedersues teaches the films have a haze of not more than 40% for a film of 30 µm according to ASTM D1003-00 ([0172]), and has MD and TD tensile strengths, measured according to ISO 527-3 on films of 25 mm wide and 20-29 µm thick, of at least 1400 MPa (MD) and at least 1300 MPa (TD) ([0174]-[0178])).
Niedersues teaches films having values of haze (claim 28) and tensile strengths (claim 26) substantially similar to the values claimed but measured over different film thicknesses, while Niedersues does not specifically teach a sealing initiation temperature (claim 27). Niedersues in view of Gahleitner teach the claimed combination of heterophasic propylene copolymer (A) and propylene homopolymer (B), in the amounts claimed and obtained by a substantially similar process. It is held that a chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present (see In re Spada, 911 F.2d 705, 15 USPQ2d 1655, (Fed. Cir. 1990); see also In re Best, 562 F.2d 1252, 195 USPQ 430, (CCPA 1977). “Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established.”; MPEP 2112.01)).
Regarding claims 29-33, Niedersues in view of Gahleitner renders obvious the polymer composition as set forth in claim 16 above. Niedersues further teaches the composition is suitable for forming films, preferably for packaging, mono- or multi-layer films, general films, and laminated films ([0022]; [0185]-[0187]). Niedersues teaches preferred laminates include a layer of film and a layer of aluminum ([0187])(instant coated article), teaches the film layer is produced via extrusion methods ([0169]), and teaches packaging for food and medicals ([0186]).
Correspondence
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JANE L STANLEY whose telephone number is (571)270-3870. The examiner can normally be reached M-F 7:30 AM to 3:30 PM.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Mark Eashoo can be reached at 571-272-1197. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JANE L STANLEY/Primary Examiner, Art Unit 1767
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