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
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
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.
Claims 1-9 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.
Claim 1 recites a nucleating agent composition wherein the β crystal fraction is determined by a specific method; Claim 5 recites a resin composition wherein the β crystal fraction is determined by a specific method. Limitations are drawn to a process of determining the β crystal fraction, although the preamble of the claim is drawn to a composition. Because the claim recites both a composition and steps of a method of using the composition, the claim creates confusion as to whether the infringement would occur upon the composition or upon using the composition in the recited method steps. See MPEP 2173.05(p)(II). Accordingly, dependent claims 2-4 and 6-9 are indefinite.
Claim 1 contains the trademark/trade name FM mixer. Where a trademark or trade name is used in a claim as a limitation to identify or describe a particular material or product, the claim does not comply with the requirements of 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph. See Ex parte Simpson, 218 USPQ 1020 (Bd. App. 1982). The claim scope is uncertain since the trademark or trade name cannot be used properly to identify any particular material or product. A trademark or trade name is used to identify a source of goods, and not the goods themselves. Thus, a trademark or trade name does not identify or describe the goods associated with the trademark or trade name. In the present case, the trademark/trade name is used to identify/describe a mixer and, accordingly, the identification/description is indefinite.
Claim 2 recites the limitation "the α crystal formation" in line 2. There is insufficient antecedent basis for this limitation in the claim.
Claim 3 recites the limitation "the β crystal formation" in line 2. There is insufficient antecedent basis for this limitation in the claim.
Claim 5 recites the limitation "the α crystal formation" in line 2. There is insufficient antecedent basis for this limitation in the claim.
Claim 7 recites the limitation "the β crystal formation" in line 2. There is insufficient antecedent basis for this limitation in the claim.
Claim Rejections - 35 USC § 102
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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.
Claim(s) 1 and 3-4 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Nagaoka et al. (JP 2017-105171). English machine translation for citation.
Regarding claims 1 and 3: Nagaoka et al. (JP ‘171) discloses olefins containing β crystal nucleating agents [0001-0002; 0016], wherein Example 3 [Ex. 3; 0062; Table 2, Ex. 3] prepares a sheet as in Example 1 [Ex. 1; 0056] by blending 100 parts by weight PP3 (polypropylene; MFR 8 g/10 min [0054]) with 2 parts by weight β crystal nucleating MB (5% N,N’-dicyclohexyl-2,6-napthelenedicarboxamide and 95% PP1 (polypropylene 1; MFR 12 g/10 min [0041])). The resulting sheet has a β crystal content of 67% [Ex. 3; 0062; Table 2, Ex. 3].
Nagaoka et al. (JP ‘171) discloses β crystal fraction was determined by X-ray diffraction [0027]. The claimed effects and physical properties, i.e. a β crystal fraction of 0.2% to 71% as calculated by the method of claim 1, would inherently be achieved, as “Products of identical chemical composition can not have mutually exclusive properties.” 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. In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990) [see MPEP 2112.01].
Regarding claim 4: Nagaoka et al. (JP ‘171) discloses the β crystal nucleating agents include quinacridone compounds [0016] [see MPEP 2131.02].
Claim(s) 5 and 7-9 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Nagaoka et al. (JP 2017-105171). English machine translation for citation.
Regarding claims 5 and 7: Nagaoka et al. (JP ‘171) discloses olefins containing β crystal nucleating agents [0001-0002; 0016], wherein Example 3 [Ex. 3; 0062; Table 2, Ex. 3] prepares a sheet (molded article) as in Example 1 [Ex. 1; 0056] by blending 100 parts by weight PP3 (polypropylene; MFR 8 g/10 min [0054]) with 2 parts by weight β crystal nucleating MB (5% N,N’-dicyclohexyl-2,6-napthelenedicarboxamide and 95% PP1 (polypropylene 1; MFR 12 g/10 min [0041])). The resulting sheet has a β crystal content of 67% [Ex. 3; 0062; Table 2, Ex. 3].
Nagaoka et al. (JP ‘171) discloses β crystal fraction was determined by X-ray diffraction [0027]. The claimed effects and physical properties, i.e. a β crystal fraction of 0.2% to 71% as calculated by the method of claim 5, would inherently be achieved, as “Products of identical chemical composition can not have mutually exclusive properties.” 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. In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990) [see MPEP 2112.01].
Regarding claim 8: Nagaoka et al. (JP ‘171) discloses the β crystal nucleating agents include quinacridone compounds [0016] [see MPEP 2131.02].
Regarding claim 9: Nagaoka et al. (JP ‘171) Example 3 prepares a sheet as in Example 1 [Ex. 1; 0056] and a container was produced by vacuum forming [Ex. 3; 0062].
Claim(s) 10 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Nagaoka et al. (JP 2017-105171). English machine translation for citation.
Regarding claim 10: Nagaoka et al. (JP ‘171) discloses a method of preparing an olefin composition containing β crystal nucleating agents [0001-0002; 0016], wherein Example 3 [Ex. 3; 0062; Table 2, Ex. 3] prepares a sheet as in Example 1 [Ex. 1; 0056] by blending 100 parts by weight PP3 (polypropylene; MFR 8 g/10 min [0054]) with 2 parts by weight β crystal nucleating MB (5% N,N’-dicyclohexyl-2,6-napthelenedicarboxamide and 95% PP1 (polypropylene 1; MFR 12 g/10 min [0041])). The resulting sheet has a β crystal content of 67% [Ex. 3; 0062; Table 2, Ex. 3].
Nagaoka et al. (JP ‘171) discloses β crystal fraction was determined by X-ray diffraction [0027]. The claimed effects and physical properties, i.e. a β crystal fraction of 0.2% to 71% as calculated by the method of claim 10, would inherently be achieved, as “Products of identical chemical composition can not have mutually exclusive properties.” 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. In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990) [see MPEP 2112.01].
Claim(s) 1-4 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Lin (US 2018/0057651).
Regarding claims 1-4: Lin (US ‘651) discloses polypropylene compositions containing at least one α crystal nucleating agent and at least one β crystal nucleating agent [abstract], wherein Example 2-8 [Ex. 2-8; 0120-0123; Table 2, Ex. 2-8; Fig. 6] prepares a composition containing 90 wt% PC366-3 (polypropylene; MFR 3 g/10 min [0096]), 10 wt% ST611 (propylene copolymer; MFR 1.8 g/10 min [0098]), 0.2 phr NAB-82 (calcium tetrahydrophthalate; β crystal nucleating agent [0100]), and 0.05 phr NX800K (bis(4-propylbenzylidene)propyl sorbitol; α crystal nucleating agent [0102]) [Ex. 2-8; 0120-0123; Table 2, Ex. 2-8; Fig. 6]. Lin (US ‘651) discloses Ex. 2-8 having two melting peaks from α and β crystals [0123; Fig. 6].
The claimed effects and physical properties, i.e. a β crystal fraction of 0.2% to 71% as calculated by the method of claim 1, would inherently be achieved, as “Products of identical chemical composition can not have mutually exclusive properties.” 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. In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990) [see MPEP 2112.01].
Claim(s) 5-9 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Lin (US 2018/0057651).
Regarding claims 5-8: Lin (US ‘651) discloses polypropylene compositions containing at least one α crystal nucleating agent and at least one β crystal nucleating agent [abstract], wherein Example 2-8 [Ex. 2-8; 0120-0123; Table 2, Ex. 2-8; Fig. 6] prepares a composition containing 90 wt% PC366-3 (polypropylene; MFR 3 g/10 min [0096]), 10 wt% ST611 (propylene copolymer; MFR 1.8 g/10 min [0098]), 0.2 phr NAB-82 (calcium tetrahydrophthalate; β crystal nucleating agent [0100]), and 0.05 phr NX800K (bis(4-propylbenzylidene)propyl sorbitol; α crystal nucleating agent [0102]) [Ex. 2-8; 0120-0123; Table 2, Ex. 2-8; Fig. 6]. Lin (US ‘651) discloses Ex. 2-8 having two melting peaks from α and β crystals [0123; Fig. 6].
The claimed effects and physical properties, i.e. a β crystal fraction of 0.2% to 71% as calculated by the method of claim 5, would inherently be achieved, as “Products of identical chemical composition can not have mutually exclusive properties.” 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. In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990) [see MPEP 2112.01].
Regarding claim 9: Lin (US ‘651) discloses forming pellets and injection molding samples from the pellets [Ex. 2-8; 0120-0123; Table 2, Ex. 2-8; Fig. 6].
Claim(s) 10 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Lin (US 2018/0057651).
Regarding claim 10: Lin (US ‘651) discloses a method of preparing polypropylene compositions containing at least one α crystal nucleating agent and at least one β crystal nucleating agent [abstract], wherein Example 2-8 [Ex. 2-8; 0120-0123; Table 2, Ex. 2-8; Fig. 6] prepares a composition containing 90 wt% PC366-3 (polypropylene; MFR 3 g/10 min [0096]), 10 wt% ST611 (propylene copolymer; MFR 1.8 g/10 min [0098]), 0.2 phr NAB-82 (calcium tetrahydrophthalate; β crystal nucleating agent [0100]), and 0.05 phr NX800K (bis(4-propylbenzylidene)propyl sorbitol; α crystal nucleating agent [0102]) [Ex. 2-8; 0120-0123; Table 2, Ex. 2-8; Fig. 6]. Lin (US ‘651) discloses Ex. 2-8 having two melting peaks from α and β crystals [0123; Fig. 6].
The claimed effects and physical properties, i.e. a β crystal fraction of 0.2% to 71% as calculated by the method of claim 5, would inherently be achieved, as “Products of identical chemical composition can not have mutually exclusive properties.” 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. In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990) [see MPEP 2112.01].
See attached form PTO-892.
Correspondence
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MICHAEL F PEPITONE whose telephone number is (571)270-3299. The examiner can normally be reached on 7:00 AM - 3:30 PM.
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/MICHAEL F PEPITONE/Primary Examiner, Art Unit 1767
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