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 .
Election/Restrictions
Applicant’s election without traverse of Group I, claims 1-10 in the reply filed on 7/30/2026 is acknowledged. Claims 11-20 withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 7/30/2026.
Claim Rejections - 35 USC § 102
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) 1-3, 5-6, 8 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Spijkerman et al (US 2020/0299522).
Spijkerman teaches a solid composition comprising 60wt% of aluminum trihydroxide, 30 wt% of di(4-methylbenzoyl)peroxide and 10 wt% of water [0049]. Aluminum trihydroxide is capable of absorbing or adsorbing water and therefore reads on the claimed water retaining agent. Spijkerman further teaches the solid inorganic flame retardant can be aluminum trihydroxide or hydrotalcite [0026]. Hydrotalcite reads on the claimed anionic clay.
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.
The factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 4, 7 is/are rejected under 35 U.S.C. 103 as being unpatentable over Spijkerman et al (US 2020/0299522).
Spijkerman teaches the composition comprises 20-80 wt% of a substituted dibenzoyl peroxide, 20-80wt% of a filler material, and 0-20 wt% of water [0017-0019, 0036, 0025-0026]. Case law holds that 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 re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Claims 9-10 is/are rejected under 35 U.S.C. 103 as being unpatentable over Spijkerman et al (US 2020/0299522) in view of Beek (US 10,626,263).
Spijkerman teaches the limitation of claim 1, as discussed above.
Spijkerman does not teach an antioxidant.
However, Beek discloses a peroxide masterbatch and teaches an antioxidant can be included in the masterbatch (3:60-63). Therefore, it would have been obvious to one of ordinary skill in the art at the time the invention was made to include antioxidant in the peroxide composition of Spijkerman because it is recognized in the art that including antioxidant is suitable for a peroxide composition.
Additionally, the content of the antioxidant is a result effective variable where insufficient amount may result in suboptimal performance, whereas excessive amounts lead to unnecessary cost, surface blooming, and reduce mechanical strength. Therefore, it would have been obvious to one of ordinary skill in the art at the time the invention was made to adjust the content of antioxidant in the peroxide composition depending on the final application and through routine experimentation. Case law holds that "discovery of an optimum value of a result effective variable in a known process is ordinarily within the skill of the art." In re Antonie, 559 F.2d 618, 195 USPQ 6 (CCPA 1977). In re Boesch, 617 F.2d 272, 205 USPQ 215 (CCPA 1980).
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the claims at issue are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); and In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on a nonstatutory double patenting ground provided the reference application or patent either is shown to be commonly owned with this application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The USPTO internet Web site contains terminal disclaimer forms which may be used. Please visit http://www.uspto.gov/forms/. The filing date of the application will determine what form should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to http://www.uspto.gov/patents/process/file/efs/guidance/eTD-info-I.jsp.
Claims 1-4, 7-8 rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-2, 12-16 of U.S. Patent No.11,220,608. Although the claims at issue are not identical, they are not patentably distinct from each other because ‘608 claims a powder mixture comprising di(4-methylbenzoyl)peroxide, aluminum trihydroxide and water.
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/WENWEN CAI/
Primary Examiner, Art Unit 1763
