DETAILED ACTION
This office action follows a reply filed on August 20, 2025. No claims have been amended. Claims 1, 6-17 and 22-32 are currently pending and under examination.
The texts of those sections of Title 35 U.S. Code are not included in this section and can be found in a prior Office action.
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
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, 6-17 and 22-32 are rejected under 35 U.S.C. 103 as being unpatentable over Deheunynck (US 9,045,578), as evidenced by Sigma-Aldrich (Luperox 101, Sigma-Aldrich, 2022, 1 page), and further in view of Zummallen (US 2010/0324225).
Deheunynck exemplifies melt mixing 100 parts polyolefin with 1.9 parts PETS (pentaerythritol tetrasorbate) and 0.2 parts DHBP (2,5-dimethyl-2,5-di-(tert-butylperoxy)hexaneperoxide, Luperox 101 peroxide, which as evidenced by Sigma-Aldrich has as a purity of about 93-94% and a molar mass of 290.44 g/mol) at 190°C, and cooling (col. 15-16, Example 1). See also col. 8, ll. 4-20 and ll. 47-64 for the specific method of mixing the components.
Deheunynck teaches reacting 85-100 parts by weight polyolefin with 0.01-10 parts by weight of the unsaturated compound (A).
Therefore, modifying Example 1 of Deheunynck to incorporate only 0.01 or 0.1 part by weight of the unsaturated compound is within the teachings of Deheunynck, and suggests a composition comprising 100 ppm or 1000 ppm of the ester compound, respectfully, and about 200 ppm active oxygen based on the formula provided in the specification (p. 12, [0026], where n=2, P=0.90, C=2000 ppm and M=290).
It can be seen that Deheunynck teaches amounts of the unsaturated compound and peroxide, and it has been held that overlapping ranges are sufficient to establish prima facie obviousness. See MPEP 2144.05. Therefore, it would have been obvious to one of ordinary skill in the art at the time the invention was made to have selected from the overlapping portion of the range taught by the reference because overlapping ranges have been held to establish prima facie obviousness.
Deheunynck teaches that “The polyolefin can be heterophasic, for example a propylene ethylene block copolymer.” (col. 3, ll. 50-51); however, does not teach the specifics of the heterophasic copolymer, as claimed in instant claims 1, 6-9, 17 and 22-25.
Zummallen teaches that heterophasic propylene polymers are also known in the art as polypropylene impact copolymer, which comprise a continuous phase of a propylene-based polymer, e.g. propylene homopolymer or a propylene random copolymer, and a discontinuous phase of a rubber or similar elastomer, typically a propylene/ethylene copolymer (p. 2, [0017]). Zummallen teaches that these copolymers are well known in the art and are described generally in US 5,258,464.
This suggests a continuous phase with a propylene homopolymer (100% propylene, 0% ethylene) and a discontinuous phase with an ethylene/propylene rubber, which meets applicants claims 4-6.
US ‘464 teaches that the amount of ethylene in the copolymer is phase is suitable from about 38-60 wt%, preferably 40-55 wt% (col. 5, ll. 65 to col. 6, l. 6), which meets instant claims 7-8. US ‘464 teaches that the copolymer/rubber (discontinuous) phase constitutes 10-50 wt%, preferably 12-30 wt% of the impact copolymer (col. 6, ll. 15-21), suggesting a continuous phase which is present in an amount of 50-90 wt%, preferably 70-88 wt%, which meets instant claim 9.
Deheunynck in view of Zummallen is prima facie obvious over instant claims 1, 6-9, 16, 17, 22-25 and 32.
As to claims 10, 12-14, 26 and 28-30, Deheunynck exemplifies the unsaturated compound as pentaerythritol tetrasorbate, which is prepared from a reaction between pentaerythritol and sorbic acid, also known as 2,4-hexadienoic acid.
As to claims 11, 15, 27 and 31, Deheunynck also teaches the unsaturated compound to include trimethylolpropane trisorbate (col. 7, ll. 1-10), shown below, which is the same as applicants’ claimed ester (RN=347377-00-8), also shown below:
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183
455
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250
545
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Response to Amendment
The declaration under 37 CFR 1.132 filed August 20, 2025 is insufficient to overcome the rejection of claims 1, 6-17 and 22-32 based upon Deheunynck in view of Zummallen as set forth in the last Office action because:
Applicants have shown that their preferred examples do not meet the gel content desired by Deheunynck.
Firstly, applicants measured the gel content of their own work while modifying the peroxide and compatibilizer. Applicants have not shown that modifying the amount of peroxide and unsaturated compound within the suggested ranges of Deheunynck is not capable of meeting the desired gel content of Deheunynck, which would effectively show that the modifications would change the principle of operation.
See MPEP 2143.01 (VI) The Proposed Modification Cannot Change the Principle of Operation of a Reference:
If the proposed modification or combination of the prior art would change the principle of operation of the prior art invention being modified, then the teachings of the references are not sufficient to render the claims prima facie obvious.
Applicants have only shown that modifying their own work to within the claimed ranges does not meet the principle of operation of the prior art. This is not the standard for principle of operation.
Secondly, applicants used a different, non-equivalent method of measuring the gel content, ASTM D2765, versus that used by Deheunynck, ISO 10147, where the differences are shown below:
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574
506
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Additionally, Deheunynck uses the addition of two antioxidants and a masterbatch technique for dispersing the unsaturated compound, neither of which were included in applicants’ examples.
Therefore, applicants showing is not comparable to that provided by Deheunynck.
Thirdly, Deheunynck teaches that the G’ was measured in order to follow the change in elastic shear modulus as a function of degradation and crosslinking of the specimens (col. 16, ll. 52-55),. Deheunynck teaches that the G’ and gel content was used to determine grafting efficiency. Choosing to only measure the gel content does not appear to be sufficient for determining whether or not a crosslinked product is within the scope of the invention of Deheunynck.
Finally, the teachings of Deheunynck still suggest the claimed invention, as described in the rejection above. Applicants have not shown unexpected results or the criticality of the claimed ranges. Therefore, Deheunynck still remains prima facie obvious over the instant invention.
Response to Arguments
Applicant's arguments filed August 20, 2025 have been fully considered but they are not persuasive.
See the response to the declaration above.
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to BRIEANN R JOHNSTON whose telephone number is (571)270-7344. The examiner can normally be reached Monday-Friday, 8:00 AM - 4:00 PM EST.
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/Brieann R Johnston/ Primary Examiner, Art Unit 1766