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 .
Election/Restrictions
Restriction to one of the following inventions is required under 35 U.S.C. 121:
I. Claims 1-18, drawn to a composition comprising a virgin resin, a second polyolefin, a compatibilizer, and an impact modifier, classified in class 525, subclass 244.
II. Claims 19 and 20, drawn to a method of making a blended resin comprising adding a plurality of ingredients to a twin screw extruder and blending them to form a blended resin, classified in class 156, subclass 334.
Inventions I and II are related as process of making and product made. The inventions are distinct if either or both of the following can be shown: (1) that the process as claimed can be used to make another and materially different product or (2) that the product as claimed can be made by another and materially different process (MPEP § 806.05(f)). In the instant case, the product as claimed can be made by another and materially different process, for example one in which the ingredients are simply added to a mixer as opposed to a twin screw extruder.
Restriction for examination purposes as indicated is proper because all the inventions listed in this action are independent or distinct for the reasons given above and there would be a serious search and/or examination burden if restriction were not required because one or more of the following reasons apply:
The inventions have acquired a separate status in the art in view of their different classification.
Applicant is advised that the reply to this requirement to be complete must include (i) an election of an invention to be examined even though the requirement may be traversed (37 CFR 1.143) and (ii) identification of the claims encompassing the elected invention.
The election of an invention may be made with or without traverse. To reserve a right to petition, the election must be made with traverse. If the reply does not distinctly and specifically point out supposed errors in the restriction requirement, the election shall be treated as an election without traverse. Traversal must be presented at the time of election in order to be considered timely. Failure to timely traverse the requirement will result in the loss of right to petition under 37 CFR 1.144. If claims are added after the election, applicant must indicate which of these claims are readable upon the elected invention.
Should applicant traverse on the ground that the inventions are not patentably distinct, applicant should submit evidence or identify such evidence now of record showing the inventions to be obvious variants or clearly admit on the record that this is the case. In either instance, if the examiner finds one of the inventions unpatentable over the prior art, the evidence or admission may be used in a rejection under 35 U.S.C. 103 or pre-AIA 35 U.S.C. 103(a) of the other invention.
During a telephone conversation with Leslie Streeter on July 7, 2026 a provisional election was made without traverse to prosecute the invention of a composition, claims 1-18. Affirmation of this election must be made by applicant in replying to this Office action. Claims 19 and 20 are withdrawn from further consideration by the examiner, 37 CFR 1.142(b), as being drawn to a non-elected invention.
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, 2, 7-11, and 15-17 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Libert (WO 2019086358).
Libert is directed to a composition comprising a first polyethylene A (corresponds with claimed virgin resin having a first polyolefin), a second polyethylene B (corresponds with claimed PCR resin having a second polyolefin), a heterophasic propylene copolymer (corresponds with claimed compatibilizer) comprising a propylene homo or random copolymer matrix component and an elastomeric copolymer component of propylene with one or more of ethylene and C4-C12 olefin comonomers, and at least one ethylene vinyl acetate copolymer (corresponds with claimed impact modifier- claims as currently drafted fail to exclude viewing the copolymer as an impact modifier) (Page 4, Lines 15-25 and Page 9, Lines 10-30).
Lastly, regarding claim 1, the language “post-consumer recyclate” fails to further define the structure of the claimed compositions as it corresponds with the method in which the second polyolefin is provided. In essence, a final composition includes a first polyolefin and a second polyolefin and patentability is a function of the structural makeup of the claimed composition (no evidence that the method results in a materially different composition).
Regarding claim 7, the resin composition of Libert includes polyethylene A at a loading of 20% by weight or less (Page 10, Lines 15+).
With respect to claim 8, the resin composition of Libert includes polyethylene B at a loading of at least 25% by weight or more (Page 10, Lines 27+).
As to claim 9, the resin composition of Libert includes a heterophasic propylene copolymer at a preferred loading between 55.0% and 97.5% by weight (Page 9, Lines 10+).
Regarding claim 10, the resin composition of Libert includes up to 5.0% by weight of said ethylene vinyl acetate copolymer (Page 11, Lines 4+).
With respect to claim 11, all of the inventive compositions and non-inventive compositions have a melt flow index in accordance to the claimed invention (Table 6).
As to claim 16, the claims require a flexural modulus between approximately 690 MPa and 1380 MPa (100-200 kpsi) and each of the inventive compositions in Table 6, as well as Comparative compositions 3 and 4, demonstrate a flexural modulus in accordance to the claimed invention.
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.
Claim(s) 3 is/are rejected under 35 U.S.C. 103 as being unpatentable over Libert.
Libert is directed to a composition comprising a first polyethylene A (claimed first polyolefin), a second polyethylene B (claimed second polyolefin), a heterophasic polypropylene (claimed compatibilizer), and an ethylene vinyl acetate copolymer (claimed impact modifier). Libert further states that polyethylene corresponds with ethylene homopolymers as well as ethylene copolymers (Page 10, Lines 7+). One of ordinary skill in the art would have recognized such language as encompassing any of the well-known and conventional polyethylene materials, including high density polyethylene (HDPE). It is further noted that Libert does discuss a wide variety of polyethylenes, including low density polyethylene (LDPE), high density polyethylene (HDPE), and linear low density polyethylene (LLDPE) (Page 1, Lines 13+), with the specific disclosure of HDPE 56020 XP (Page 20, Line 25). As such, one of ordinary skill in the art would have found it obvious to use a high density polyethylene as the second polyolefin of Libert.
Claim(s) 13 is/are rejected under 35 U.S.C. 103 as being unpatentable over Libert and further in view of De Palo (US 2007/0117932).
As detailed above, the composition of Libert includes a heterophasic polypropylene copolymer comprising a propylene homo or random copolymer matrix component (corresponds with claimed propylene homopolymer) and an elastomeric copolymer component of propylene with one or more of ethylene and C4-C12 olefin comonomers (corresponds with claimed copolymer of ethylene and propylene). In such an instance, though, Libert is silent with respect to the specific makeup of the heterophasic polypropylene.
In any event, the claims define an extremely broad range of loadings that are consistent with those that are conventionally associated with heterophasic polypropylene, as shown for example by De Palo (Abstract). More particularly, De Palo refers to melt flow rates that are between 0.01 and 100 g/10 min (Paragraph 27), an ethylene content between 15% and 85% (Paragraph 14), an intrinsic viscosity between 2.2 and 4.5 dl/g (Paragraph 13), and a polydispersity index between 4 and 13 (Paragraph 13). One of ordinary skill in the art would have found it obvious to use any number of common heterophasic polypropylenes given the general disclosure of Libert (claims include extremely broad ranges of loadings and characteristics that are consistent with well-known and commonly used heterophasic polypropylenes).
Claim(s) 14 and 18 is/are rejected under 35 U.S.C. 103 as being unpatentable over Libert and De Palo as applied in claim 13 above and further in view of Washiyama (US 6,586,531).
As detailed above, the composition of Libert includes a heterophasic polypropylene copolymer comprising a propylene homo or random copolymer matrix component (corresponds with claimed propylene homopolymer) and an elastomeric copolymer component of propylene with one or more of ethylene and C4-C12 olefin comonomers (corresponds with claimed copolymer of ethylene and propylene). In such an instance, though, Libert is silent with respect to the makeup of the polypropylene matrix component.
Washiyama is similarly directed to heterophasic copolymers and teaches that the polypropylene matrix component (claimed (a)) is a mixture of a first material or fraction (claimed i) having a first melt flow rate between 0.5 and 10 g/10 min and a second material or fraction (claimed ii) having a second melt flow rate that is between 30 and 2,000 times that if said first melt flow rate (Column 2, Lines 25-35). Washiyama further states that using materials or fractions having different melt flow rates, and thus different molecular weight distributions, improves, for example, modulus properties and surface aesthetics (Column 3, Lines 34+). One of ordinary skill in the art would have found it obvious to use first and second fractions in the composition of Libert for the benefits detailed above.
Claim(s) 1-12 and 15-17 is/are rejected under 35 U.S.C. 103 as being unpatentable over Sing (US 2023/0142166).
Sing is directed to a composition comprising an ethylene polymer (claimed first polyolefin) and at least one of a polypropylene homopolymer (claimed first polyolefin), a polypropylene block copolymer (claimed second polyolefin), and a heterophasic copolymer (claimed compatibilizer) comprising a propylene-based polymer as a matrix phase and an olefin-based elastomer as the disperse phase) (Paragraphs 26 and 47). The particular selection of a resin including an ethylene polymer, a polypropylene homopolymer or copolymer, and a heterophasic copolymer would have been obvious in view of the specific disclosure by Sing to include an ethylene polymer and at least one member or material from the group identified above.
Sing further states that one or more polyolefin elastomers can be blended in the composition (Paragraph 49) and such an elastomer is seen to correspond with the claimed impact modifier.
One of ordinary skill in the art would have found it obvious to form a resin composition of Braskem with the claimed combination of materials given the disclosure detailed above. It is emphasized that a composition of Sing expressly includes an ethylene polymer (first polyolefin), an olefin elastomer (claimed impact modifier), and at least one polypropylene material- when multiple polypropylene materials are selected, as directed by Braskem, the composition of Sing can be viewed as including each of the claimed materials.
Lastly, regarding claim 1, the language “post-consumer recyclate” fails to further define the structure of the claimed compositions as it corresponds with the method in which the second polyolefin is provided. In essence, a final composition includes a first polyolefin and a second polyolefin and patentability is a function of the structural makeup of the claimed composition (no evidence that the method results in a materially different composition).
With respect to claim 2, as detailed above, the composition of Sing includes an ethylene polymer (polyethylene).
As to claims 3 and 15, the polypropylene component can be viewed as the first polyolefin and the polyethylene component, which can be HDPE, can be viewed as the second polyolefin (Paragraph 41).
Regarding claims 4-6, Sing teaches a wide variety of polyolefin elastomers (corresponds with the claimed impact modifier), including ethylene octene rubber and styrene butadiene copolymers (Paragraph 52).
With respect to claims 7, 8, 12, and 15, the polypropylene component can be viewed as either the claimed first polyolefin (virgin resin) or the claimed second polyolefin (claimed recyclate) and such is present in an amount between 0.1 weight percent and 65 weight percent (Paragraph 45). Alternatively, the ethylene polymer can be viewed as the claimed first polyolefin or second polyolefin and Sing states that the composition has an ethylene content of at least 50 weight percent (Paragraph 28).
As to claims 9, 12, and 15, the composition of Sing includes a heterophasic propylene copolymer (claimed compatibilizer) and such is present between 0.1 weight percent and 65 weight percent (Paragraph 45).
Regarding claims 10, 12, and 15, the composition of Sing includes a polyolefin elastomer (claimed impact modifier) at a loading between 0.1 weight percent and 60 weight percent (Paragraph 49).
With respect to claims 11 and 12, the composition of Sing has a melt flow rate between 1.0 g/10 min and 50 g/ 10 min (Paragraph 71).
As to claim 16, given the extreme similarities in materials and loadings, it reasons that the composition of Sing would demonstrate at least one of the properties defined by the claims, it being noted that the claims define extremely broad ranges for each of the claimed properties. Also, Applicant has not provided a conclusive showing of unexpected results for the claimed properties.
Claim(s) 13 is/are rejected under 35 U.S.C. 103 as being unpatentable over Sing as applied in claim 1 above and further in view of De Palo.
As detailed above, the composition of Sing includes a heterophasic polypropylene copolymer comprising a propylene homo or random copolymer matrix component (corresponds with claimed propylene homopolymer) and an elastomeric copolymer component of propylene with one or more of ethylene and C4-C12 olefin comonomers (corresponds with claimed copolymer of ethylene and propylene). In such an instance, though, Sing is silent with respect to the specific makeup of the heterophasic polypropylene.
In any event, the claims define an extremely broad range of loadings that are consistent with those that are conventionally associated with heterophasic polypropylene, as shown for example by De Palo (Abstract). More particularly, De Palo refers to melt flow rates that are between 0.01 and 100 g/10 min (Paragraph 27), an ethylene content between 15% and 85% (Paragraph 14), an intrinsic viscosity between 2.2 and 4.5 dl/g (Paragraph 13), and a polydispersity index between 4 and 13 (Paragraph 13). One of ordinary skill in the art would have found it obvious to use any number of common heterophasic polypropylenes given the general disclosure of Sing (claims include extremely broad ranges of loadings and characteristics that are consistent with well-known and commonly used heterophasic polypropylenes).
14. Claim(s) 14 and 18 is/are rejected under 35 U.S.C. 103 as being unpatentable over Sing and De Palo as applied in claim 13 above and further in view of Washiyama.
As detailed above, the composition of Sing includes a heterophasic polypropylene copolymer comprising a propylene homo or random copolymer matrix component (corresponds with claimed propylene homopolymer) and an elastomeric copolymer component of propylene with one or more of ethylene and C4-C12 olefin comonomers (corresponds with claimed copolymer of ethylene and propylene). In such an instance, though, Sing is silent with respect to the makeup of the polypropylene matrix component.
Washiyama is similarly directed to heterophasic copolymers and teaches that the polypropylene matrix component (claimed (a)) is a mixture of a first material or fraction (claimed i) having a first melt flow rate between 0.5 and 10 g/10 min and a second material or fraction (claimed ii) having a second melt flow rate that is between 30 and 2,000 times that if said first melt flow rate (Column 2, Lines 25-35). Washiyama further states that using materials or fractions having different melt flow rates, and thus different molecular weight distributions, improves, for example, modulus properties and surface aesthetics (Column 3, Lines 34+). One of ordinary skill in the art would have found it obvious to use first and second fractions in the composition of Sing for the benefits detailed above.
Conclusion
15. Any inquiry concerning this communication or earlier communications from the examiner should be directed to JUSTIN R FISCHER whose telephone number is (571)272-1215. The examiner can normally be reached M-F 5:30-2:00.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Katelyn Smith can be reached at 571-270-5545. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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Justin Fischer
/JUSTIN R FISCHER/Primary Examiner, Art Unit 1749 July 10, 2026
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