DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
This application is a national stage entry under 35 U.S.C. §371 of International Application No. PCT/EP2022/068768 filed 7/6/2022.
Acknowledgment is made of applicant's claim for foreign priority under 35 U.S.C. §119(a)-(d) by Application No. EP 21185234.8 filed 7/13/2021, which papers have been placed of record in the file.
Claims 1-12, 14-15 are pending.
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 1-12, 14-15 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 …(based on the total weight of the composition)… and …(measured gravimetically according to ISO 75201, method B)… It would not be clear why parenthesis are recited. Specifically, parenthesis renders the claim indefinite because it is unclear whether the limitation(s) within the parenthesis are part of the claimed invention. See MPEP § 2173.05(d).
Claims 2-12, 14-15 are subsumed by this rejection because of their dependence.
A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, claims 2-12 recite recites broad recitation, and the claim also recites a narrower statement of the range/limitation. The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims.
Claim Rejections - 35 USC § 103
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 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.
Claims 1-10, 12, 14-15 are rejected under 35 U.S.C. 103 as being unpatentable over Duranel et al. (WO 2019/224129) in view of Lederer et al. (EP 2 386 602, cited in IDS filed 3/19/2024) and Rohrmann et al. (WO 2018/228929).
Regarding claim 1: Duranel is directed to a polyolefin composition comprising:
21-43 wt% of a blend of recycled plastic blend comprising polypropylene and polyethylene in a ratio between 3:7 and 49.5:1. Specifically, a post-consumer resin comprises at least 40 wt% polypropylene and 1-27 wt% polyethylene as “component A” (Table 8 E12-E17, p. 21 Duranel).
10-60 wt% of a polypropylene resin preferably a heterophasic polypropylene copolymer as “component B” (p. 22 Duranel)
At least 1.0 wt% of an elastomer as “component D” (p. 29-32 Duranel)
At least 5 wt% of a filler including glass fibers as “component E” (p. 31-32 Duranel)
20-30 wt% of a polypropylene homopolymer is not mentioned.
Lederer is directed to an automotive interior compound comprising a heterophasic polyene copolymer of polypropylene as well as a high melt flow polypropylene homopolymer. The amount of polypropylene homopolymer used in the working examples is 25 wt% of the composition in the working examples (Table 2 HECO 4).
One skilled in the art would have been motivated to have included a high melt flow polypropylene homopolymer in the composition of Duranel to increase the melt flow rate and the resulting scratch resistance ([0005] Lederer).
Therefore, it would have been obvious to one skilled in the art at the time the invention was filed to have included a high melt flow polypropylene homopolymer in the composition of Duranel in claimed amounts.
A coupling agent is not mentioned.
Rohrmann is directed to a polyolefin composition comprising a recycled polypropylene and polyethylene and also comprises 0.3-3% of a compatibilizer of polypropylene grafted with maleic anhydride ([0036] Rohrmann) (equivalent to a coupling agent as defined by the present invention). One skilled in the art would have been motivated to have included a compatibilizer/coupling agent in the composition of Lederer to reduce interfacial tension between fillers and polymers while also reducing agglomeration tendency of filler particles, thus improving their dispersion within the polymer matrix ([0030] Rohrmann). Therefore, it would have been obvious to one skilled in the art at the time the invention was filed to have included a 0.3-3% of a compatibilizer of polypropylene grafted with maleic anhydride in the composition of Lederer.
Duranel doesn’t mention a fogging value.
Rohrmann is directed to a polyolefin composition with reduced fogging. The reduced fog value is achieved by adding a β-cyclodextrin as demonstrated in the working examples wherein the fogging value is 0.5-0.9 (Tables 4, 6 Rohrmann). One skilled in the art would have been motivated to have included a β-cyclodextrin in the composition of Duranel to reduce fogging within the scope of claim of the present invention. Therefore, it would have been obvious to one skilled in the art at the time the invention was filed to have included β-cyclodextrin in the composition of Duranel to achieve the claimed fogging value within the scope of claim 1.
Regarding claim 2: A fogging value of 0.9 determined according to VDA 278 (equivalent to ISO 75201 method B) is demonstrated in the working examples of Rohrmann.
Regarding claims 3-4: The combination of Duranel, Lederer, and Rohrmann doesn’t mention a MFR or tensile strength of the composition. However, the composition is substantially identical to the composition of the present invention.
Case law holds that 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. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). MPEP 2112.01(I).
Hence, the combination of Duranel, Lederer, and Rohrmann suggests a composition having a MFR value within the scope of the claims. Since PTO cannot conduct experiments the proof of burden is shifted to the applicants to establish an unobviousness difference, see In re Best, 562 F.2d 1252, 195 USPQ 430 (CCPA 1977). See MPEP § 2112.01.
Regarding claim 5: The composition has a flexural modulus of at least 1.1 GPa (p. 34 Duranel), which at least overlaps the claimed at least 3.5 GPa.
A prima facie case of obviousness typically exists when the ranges of a claimed composition overlap the ranges disclosed in the prior art. In re Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003).
Regarding claim 6: The composition has an impact strength of at least 15 kJ/m2 according to ISO 180 at 23 ˚C (equivalent to ISO 179-1) (p. 35 Duranel).
Regarding claim 7: The MFR2 (230 C, 2.16 kg measured according to ISO 1133 of the high melt flow polypropylene in Lederer is at least 40 g/10 min, preferably 70-200 g/10min ([0016] Lederer).
Regarding claim 8: The composition comprises 21-43 wt% of a blend of recycled plastic blend comprising polypropylene and polyethylene in a ratio between 3:7 and 49.5:1. Specifically, a post-consumer resin comprises at least 40 wt% polypropylene and 1-27 wt% polyethylene as “component A” (Table 8 E12-E17, p. 21 Duranel).
The composition has a MFR MI2 of 7-70 g/10min as determined by ISO 1133 (p. 35 Duranel).
Regarding claim 9: The heterophasic propylene copolymer has a MI2 determined by ISO 1133 at 230 C 2.16 kg of at least 0.3 g/10 min (p. 8 Duranel).
A prima facie case of obviousness typically exists when the ranges of a claimed composition overlap the ranges disclosed in the prior art. In re Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003).
Regarding claim 10: Elastomers include ethylene with 1-octene and copolymers of ethylene with propene and ethylene with butene (p. 9 Duranel).
Regarding claim 12: The coupling agent of Rohrmann is a polypropylene functionalized with maleic anhydride.
Regarding claim 14: Articles are disclosed by Duranel.
Regarding claim 15: A process of making the composition comprises providing the mixture of a, b, and c, d, e, melting in an extruder, and optionally pelletized (p. 17 Duranel).
Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable over Duranel, Lederer, and Rohrmann as applied to claim 1 above, and further in view of Kohler et al. (US 2016/0137824).
Regarding claim 11: The combination of Duranel, Lederer, and Rohrmann discloses glass fibers, although doesn’t specify any specific length.
Kohler is directed to a polyolefin composition comprising a polypropylene copolymer and glass fiber filler, wherein the cut or short glass fibers have a length of 1-6 mm ([0032] Kohler). One skilled in the art would have been motivated to have selected the cut or short glass fibers of Kohler as the glass fibers of choice in Duranel since Duranel teaches glass fibers and Kohler teaches glass fibers that are used in polyolefin compositions used for making automotive parts having higher stiffness and tensile strength without compromising impact properties ([0001] Kohler). Therefore, it would have been obvious to one skilled in the art at the time the invention was filed to have selected the glass fibers of Kohler as the glass fibers of choice in the combination of Duranel, Lederer, and Rohrmann to arrive at claim 11 of the present invention.
Contact Information
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ROBERT T BUTCHER whose telephone number is (571)270-3514. The examiner can normally be reached Telework M-F 9-5 Pacific Time Zone.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Lanee Reuther can be reached at (571) 270-7026. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ROBERT T BUTCHER/Primary Examiner, Art Unit 1764
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