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 .
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.
The factual inquiries 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 1-3 and 5-9 are rejected under 35 U.S.C. 103 as being unpatentable over WO 2020/0067161 A1 (provided in the IDS), interpreted using the US equivalent 12,586,866 (Zhang et al.).
Zhang et al. teaches a polyethylene powder, see column 4 lines 18-19. The viscosity disclosed is given in viscosity-average molecular weight, which can be reverted to the intrinsic viscosity using the formula given which is:
η
=
1.10
×
M
v
0.80
where [h] is the intrinsic viscosity and Mv is the viscosity-average molecular weight, see column 21 lines 5-14. The preferred range for the Mv is disclosed to be 350,000 to 8,500.000, which after calculation is an intrinsic viscosity of 3 to 31 dL/g, see column 11 lines 41-44, which overlaps with the range in claim 1.
Zhang et al. teach the crystallite size can range from 14.2 to 40 nm, see column 3 lines 24-26, which overlaps with claim 1. The amorphous moiety thickness is also not taught directly, but can also be calculated given the formula in the specification, paragraph 85, where:
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, where the crystalline long period is the same as the crystallite size. Comparative Example I, 7, see table 3, shows crystallite size of 15.7 and an amorphous moiety width of 7.38 nm, which satisfies claim 1.
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). MPEP 2144.05
As for claim 2, Zhang et al. teach that the signals obtained by XRD are orthorhombic plane diffraction peaks and amorphous peaks which are used to calculate the crystallite size, see column 21 lines 54-60, and crystallinity, see column 22, lines 15-25. Since the peaks of claim 2 are necessary in the calculation, and the results fall within the range of claim 1, the claimed range would be inherent if the powder has the claimed characteristics. 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 3, Zhang et al. does not disclose any aluminum or titanium in the polyethylene powder. Since the claim states, titanium content is 10 ppm or less and aluminum content is 20 ppm or less, this is interpreted as 0 is an acceptable range. Due to this, lack of disclosure of the metal content in the polyethylene powder indicates there may be none present, which meets the limitation of claim 3.
Regarding claims 6-9: Zhang et al. teach a separator comprising of the polyolefin microporous membrane derived from the polyethylene powder that can be used in an electricity storage device, see column 20, lines 5-25.
Claims 4 and 10-12 are rejected under 35 U.S.C. 103 as being unpatentable over WO 2020/0067161 A1 (provided in the IDS), interpreted using the US equivalent 12,586,866 (Zhang et al.), as applied to claim 1 and 2 above, and further in view of WO 2021/210590 A1, interpreted using the US equivalent 12,548,849 B2 (Zhang et al.).
Regarding claims 4 and 10-12: Zhang et al., US 12,586,866 teaches a polyethylene powder which meets the limitation of claims 1 and 2 described above. Zhang et al further teach a separator comprising of the polyolefin microporous membrane derived from the polyethylene powder that can be used in an electricity storage device, see column 20, lines 5-8.
Zhang et al., US 12,586,866, does not teach average particle size, D50, determined by a sieving method.
Zhang et al., US 12,548,849, teach a polyethylene powder, see column 3 lines 21-22. The polyethylene powder has a crystallite range of 15 to 40 nm, column 5 lines 20-23 (satisfies Applicants limitations for claim 1 and 2). Intrinsic viscosity is calculated with the given formula, see above, and the Mv range disclosed, 200,000 to 1,000,000, is found to equal 1.91 to 6.94 dL/g, see column 12, lines 42-50 (satisfies the Applicants limitations for claim 1 and 2). Further crystal sizes disclosed fall within the range of claim 1, see example 9 in Table 4, of 16 nm. The amorphous moiety thickness can be calculated for example 10 in Table 4, crystallite size of 38 nm with crystallinity of 81%, to give an amorphous moiety thickness of 7.22 nm. Zhang et al. further teaches a number-mean particle size between 80 to 120 mm, see column 12, lines 6-9, and can be measured by known methods, see lines 16-20. Zhang et al. further teach a separator for a power storage made of the polyethylene powder, see column 3, lines 1-22.
It would have been obvious for one with ordinary skill in the art at the effective date of filing to have been obvious to combine the teachings of the polyethylene powder and it’s application as a separator of electric storage devices of Zhang et al., US 12,586,866 with teachings of particle size selection of Zhang et al., 12,548,849, because similarity of the prior art suggest selecting certain particle sizes can be beneficial in the membrane forming step for the separator. DyStar Textifarben GmbH & Co. Deutschland KG v. C.H. Patrick Co., 464 F.3d 1356, 1360, 80 USPQ2d 1641, 1645 (Fed. Cir. 2006). See MPEP 2143 (I) (G).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to VLADIMIR VLADIMIROVICH 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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