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 .
Objections
The drawings are objected to because Figure 1 does not have labels on both axes, the values of both axis are blurry. For Figures 1-3 the curves are hard to differentiate and it is hard to distinguish between different curves. Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
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 19 is rejected under 35 U.S.C. 102(a)(1) as anticipated by or, in the alternative, under 35 U.S.C. 103 as obvious over WO 2021/250520, Bellehumeur et al.
Bellehumeur et al. teach Example 31, a polyethylene polymer which has a density of 0.9545 g/cm3, melt index of 2.01 g/10min, and a polydispersity index of 7.1, and an MZ value of 324,311 g/mol, see Table 2, which anticipates the claim limitations of claim 19.
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 1-18 and 20 are rejected under 35 U.S.C. 103 as being unpatentable over WO 2021/250520, Bellehumeur et al.
Bellehumeur et al. teach an ethylene polymer which has a melt index from 0.5 to 8 g/10 min, see page 21 lines 22-24, a polydispersity index range from 3 to 11, page 50 lines 10-11, and a density range from 0.949 to 0.960 g/cm3, see page 50 lines 16-17. The environmental stress crack resistance (ESCR), ASTM D1693 condition B, 10 %, is disclosed to be at least 150 hours page 52 lines 29-32, and for 100% (for both conditions A and B) can go beyond 1000 hours, page 18 lines 18-23. ASTM D1693 conditions A and B differ as A is used for lower density polyethylene (0.910-0.925 g/cm3) while condition B is used for higher density polyethylene (>0.925 g/cm3). Condition B is more relevant to the polymer of claim 1, as the density claimed is greater than 0.925 g/cm3.
The polyethylene polymer of claim 1 is a polymer with a melt index from 0.8 to 8 g/10 min, a polydispersity index (Mw/Mn) of 6 to 20, a density in a range of 0.94 to 0.96 g/cm3. Bellehumeur et al. teach of a polymer with the same structural properties as claimed, see Table 10, Example 10. The polymer of Example 10 has a density of 0.9529 g/cm3, a melt index of 1.57 g/10 min, and a polydispersity index of 7.95.
Claim 1 further covers environmental stress crack resistance (ESCR), ASTM D1693 condition A, 10%, is claimed to be at least 4000 hours for a density range of 0.94 to 0.96 g/cm3 and at least 2500 hours for density range of 0.949 to 0.96 g/cm3. ESCR ASTM D1693 condition A ,100%, is claimed to be at least 7000 for a density range of 0.94 to 0.96 g/cm3 and at least 5000 hours for density range of 0.949 to 0.96 g/cm3.
Bellehumeur et al., discloses overlapping ranges of structural properties and the physical properties in ESCR of claim 1, as noted above. 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, 191USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
As for claims 2 and 3, Bellehumeur et al. teach an ethylene polymer with a density ranging from 0.949 to 0.960 g/cm3, see page 50 lines 16-17, and encapsulate the time claimed time frame for the ESCR, ASTM D1693. 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, 191USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
As for claim 4, Bellehumeur discloses a polymer which has a density of 0.9524 g/cm3, polydispersity index of 8.16, a melt index (MI) of 1.69 g/10 min, a high loading melt index (HLMI) of 104 g/10min, yielding to a ratio of HLMI/MI of 61.54, see Table 10, Example 12. The claimed range of a MI is from 2 to 8 g/10 min, and HLMI/MI ratio from 30 to 70. Bellehumeur et al. discloses the polymer which satisfies the limitations of claim 4 and claim 1 with Example 13. 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, 191USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
As for claim 5, Bellehumeur et al. teaches that ethylene polymer has a primary structure parameter (PSP2) can range from 2 to 8.9, or more preferably from 5 to 6, see page 19 lines 6-8. The claimed range for PSP2 value range from 5 to 8.5, which encapsulates the disclosed preferred value range of 5 to 6. Bellehumeur et al. further give an example of a polyethylene polymer which has a density of 0.9545 g/cm3, melt index of 2.01 g/10min, and a polydispersity index of 7.1, and a PSP2 value of 5.4 based on GPC-FTIR Branching distribution profile, and 6.9 based on Branching content (FTIR), Table 2, Example 31. 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, 191USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
As for claim 6, Bellehumeur et al. teach the Mw of the ethylene polymer can range from 80,000 to 110,000 g/mol. The claimed Mw range from 75,000 to 120,000 g/mol which is incapsulated by the teachings of Bellehumeur et al. Example 10, see table 10, meets all of the parameters of claim 1, and has an Mw value of 83,712 g/mol which is within the limitations of claim 6. 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, 191USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
As for claim 7, Bellehumeur et al. disclose that the short chain branches (SCB) per 1,000 total carbon atoms can range from 1.8 to 4, which is identical to the claim of SCBs. Bellehumeur et al. does not disclose any values for the long chain branches (LCB), however, since the limitation states “less than 8”, it indicates that no LCBs is acceptable. 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, 191USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
As for claims 8 and 9, Bellehumeur et al. teach a polymer such as Example 10, which encapsulates all structural properties of claim 1. Since the polymer composition matches that of claim 1 it is understood that it further inherits the physical properties, even if it was not studied or disclosed by Bellehumeur et al. Products of identical chemical composition cannot 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. If applicants are of the position that the prior art does not, in fact, possess the same properties as the claimed composition, the claimed composition should be amended to distinguish itself from the prior art. A chemical composition and its properties are inseparable. Please see MPEP 2112 for further explanation.
As for claim 10, Bellehumeur et al. teach the polyethylene disclosed have a bimodal profile on the gel permeation chromatography (GPC), which indicates both low and high molecular weight components present in the polymer, page 20 lines 30-35 and page 21 lines 1-5.
As for claim 11, Bellehumeur et al. teach that the comonomer to the ethylene polymer can be chosen from 1-butene, 1-hexene, and 1-octene, page 36 lines 21-23.
As for claim 12, Bellehumeur et al. disclose that the polymer can contain from 0.1 to 1 ppm of titanium, page 38 lines 21-24, and less than 2 ppm of magnesium, page 38 lines 28-29. 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, 191USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
As for claim 13, Bellehumeur et al. teach that the hierarchical physical structure in the disclosed polyethylene is expected to have a strong impact on properties of manufactured articles, page 103 lines 31-34 and page 104 line 1.
As for claim 14, Bellehumeur et al. teach that the polyethylene in the disclosure can be used in articles such as tanks, water tanks, containers, screwcaps and closures for bottles, page 24 lines 25-28.
As for claims 15, Bellehumeur et al. teach a polyethylene polymer, Example 31, see table 2, which has a density of 0.9545 g/cm3, melt index of 2.01 g/10min, and a polydispersity index of 7.1, which satisfied the claimed structural properties. Bellehumeur et al. does not teach on a CY-parameter, however, if the structural properties of the polyethylene polymer are the same, the CY-parameter range is also expected to be the same. Products of identical chemical composition cannot 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. If applicants are of the position that the prior art does not, in fact, possess the same properties as the claimed composition, the claimed composition should be amended to distinguish itself from the prior art. A chemical composition and its properties are inseparable. Please see MPEP 2112 for further explanation.
Regarding claim 16, Bellehumeur et al. teach an ethylene polymer which has a melt index from 0.5 to 8 g/10 min, see page 21 lines 22-24, a polydispersity index range from 3 to 11, page 50 lines 10-11, and a density range from 0.949 to 0.960 g/cm3, see page 50 lines 16-17.
The claimed range of the melt index is from 2 to 8 g/10 min, and a polydispersity index from 8 to 18, which overlaps with the teaching of Bellehumeur et al. 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, 191USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Bellehumeur et al. does not teach on a CY-parameter, however, if the structural properties of the polyethylene polymer are the same, the CY-parameter is also expected to be the same. Products of identical chemical composition cannot 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. If applicants are of the position that the prior art does not, in fact, possess the same properties as the claimed composition, the claimed composition should be amended to distinguish itself from the prior art. A chemical composition and its properties are inseparable. Please see MPEP 2112 for further explanation.
As for claim 17, Bellehumeur et al. teach a polyethylene polymer, Example 31, see table 2, which has a density of 0.9545 g/cm3, melt index of 2.01 g/10min, and a polydispersity index of 7.1, which satisfied the claimed structural properties. Bellehumeur et al. does not teach on a CY-parameter, however, if the structural properties of the polyethylene polymer are the same, the CY-parameter range is also expected to be the same. Products of identical chemical composition cannot 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. If applicants are of the position that the prior art does not, in fact, possess the same properties as the claimed composition, the claimed composition should be amended to distinguish itself from the prior art. A chemical composition and its properties are inseparable. Please see MPEP 2112 for further explanation.
Regarding claim 18, Bellehumeur et al. teach of an ethylene polymer which has a melt index from 0.5 to 8 g/10 min, see page 21 lines 22-24, a polydispersity index range form 3 to 11, page 50 lines 10-11, a density range from 0.949 to 0.960 g/cm3, see page 50 lines 16-17.
The claimed range of the polydispersity index is from 8 to 18, which overlaps with the range disclosed by Bellehumeur et al. 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, 191USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Bellehumeur et al. does not teach on a CY-parameter, however, if the structural properties of the polyethylene polymer are the same, the CY-parameter is also expected to be the same. Products of identical chemical composition cannot 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. If applicants are of the position that the prior art does not, in fact, possess the same properties as the claimed composition, the claimed composition should be amended to distinguish itself from the prior art. A chemical composition and its properties are inseparable. Please see MPEP 2112 for further explanation.
As for claim 20, Bellehumeur et al. teach of an ethylene polymer which has a polydispersity index range from 3 to 11, page 50 lines 10-11, a density range from 0.949 to 0.960 g/cm3, see page 50 lines 16-17, and MZ value in a range for 200,000 to 500,000 g/mol. The claimed MZ range of 275,000-375,000 g/mol, and the polydispersity index from 8 to 18 overlap with the range disclosed by Bellehumeur et al. 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, 191USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to VLADIMIR VLADIMIROVIC ZOTOV whose telephone number is (571)272-0627. The examiner can normally be reached 8-5.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Heidi R Kelley can be reached at (571)270-1831. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/V.V.Z./ Examiner, Art Unit 1765 /HEIDI R KELLEY/ Supervisory Patent Examiner, Art Unit 1765
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