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 § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claim 7 is rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Regarding claim 7, the limitation requiring that “M1m+ and M2m’+ are each independently a nitrogen base compound in which one or more atoms selected from the group consisting of Mg, Ca, Al, Sb, Sn, Ge, Ti, Zn, Fe, Zr, Ce, Bi, Sr, Mn, Li, Na, and K are cationized, protonated, or cationized and protonated” renders the claim indefinite because nitrogen base compounds are not understood to contain the metal atoms indicated. One having ordinary skill in the art would therefore be unable to determine which compounds fall within the scope of the claimed variables “M1m+ and M2m’+.” For the sake of examination, the claim will be interpreted as requiring that “M1m+” and/or “M2m’+” include one of the listed metals in cationic form. This interpretation is supported by the instant Specification at [91], wherein the preferred “M1m+” and “M2m’+” are indicated as Mg, Ca, Al, Ti, and Zn – none of which involve any form of a nitrogen base compound.
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 conflicting claims 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); 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 nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) 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 www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-9 and 13-14 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-5, 8-9, 13-14, and 16 of copending Application No. 17/630,907 (reference application) in view of Patel (US 2002/0099124 A1). Although the claims at issue are not identical, they are not patentably distinct from each other for the following reasons:
Regarding claim 1, claim 1 of the copending application requires a thermoplastic composition including overlapping amounts of polyarylene ether resin, polystyrene resin, two or more types of organophosphorus flame retardants having different phosphorus contents, pulverized (i.e., powderized) mica, and barium sulfate (an alkaline earth metal sulfate).
Claim 9 of the copending application requires that the alkaline earth metal sulfate (i.e., barium sulfate) has a particle diameter identical to the claimed range.
Claim 13 of the copending application includes the optional incorporation of glass fiber; however, the claims of the copending application differs from the instant claim 1 because it is silent with regard to the incorporation of the claimed range of glass fibers.
In the same field of endeavor, Patel teaches a polyphenylene ether composition comprising a polymer component comprising at least 50% of a polyphenylene ether polymer (Abstract) and an additional polymer material including 0 to 50 wt% of crystalline polystyrene ([0021]); organophosphorus flame retardants ([0023]), mica ([0025]), and glass fiber, included in amounts ranging from 5 to 50 wt% of the overall formulation ([0022]). It is prima facie obvious to substitute equivalents known in the art as suitable for the same purpose (See MPEP 2144.06). Therefore, it would have been obvious to one having ordinary skill in the art at the time of filing to utilize the glass fibers of the copending application in the compositional range of 5 to 50 wt% of the overall formulation, as taught by Patel, as Patel teaches said range as suitable for substantially similar compositions. The total parts by weight of the required components within the composition of claim 1 of the copending application ranges from 115 to 126 parts; therefore, it would have been obvious to one having ordinary skill in the art to include between about 5.8 and about 63 parts of glass fibers within the composition of the copending application, as taught by Patel. This range encompasses the claimed range of “10 to 40 parts,” establishing a prima facie case of obviousness.
Regarding claim 2, claim 2 of the copending application requires an identical range of intrinsic viscosity.
Regarding claim 3, claim 3 of the copending application requires an identical list of polystyrene resins.
Regarding claim 4, claim 4 of the copending application requires an identical mixture of organophosphorus flame retardants with corresponding phosphorus contents.
Regarding claim 5, claim 5 of the copending application requires a range falling within the claimed range of flame retardant ratios because the claimed ratio of “6:4” is equivalent to 1.5:1 and the claimed ratio of “8.5:1.5” is equivalent to about 5.67:1.
Regarding claim 8, Patel exemplifies the use of OCF R22Y K-filament glass fibers, which are 4 mm long and 14 microns in diameter ([0028]). It is prima facie obvious to substitute equivalents known in the art as suitable for the same purpose (see MPEP 2144.06), and therefore it would have been obvious to one having ordinary skill in the art at the time of filing to utilize these glass fibers within the formulation of the copending application. The length and diameter values of 4 mm and 14 microns each fall within the respectively claimed ranges of “1 to 15 mm” and “3 to 25 µm,” establishing prima facie cases of obviousness.
Regarding claim 9, claim 8 of the copending application recites an identical range of average mica particle diameters.
Regarding claim 13, claim 14 of the copending application teaches substantially identical process steps; the components used therein are obvious in view of the copending claims and further in view of Patel (see the double patenting rejection of claim 1, above).
Regarding claim 14, claim 16 of the copending application requires a molded article of the composition.
Claims 6-7 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of copending Application No. 17/630,907 (reference application) in view of Patel (US 2002/0099124 A1) and Choi (KR 20220082716 A, hereinafter referring to the attached ESPACENET translation). Although the claims at issue are not identical, they are not patentably distinct from each other for the following reasons:
Regarding claims 6-7, claim 1 of the copending application in view of Patel requires all of the limitations of claim 1, as described above. The claims of the copending application generally include similar categories of organophosphorus flame retardants (e.g., claim 6 of the copending application), but differ from claims 6 and 7 because they are silent with regard to the specifically claimed flame retardants.
In the same field of endeavor, Choi teaches a substantially similar thermoplastic composition, and teaches the preferred use of, inter alia, triphenyl phosphate and bisphenol A bis(diphenyl phosphate) ([0093]), which read on the claimed list in claim 6, and, inter alia, metal-substituted phosphinates including calcium dimethylphosphinate ([0098]), which reads on the claimed “Formula 3” in claim 7 because it is identical to “Formula 3” wherein R1 and R2 are methyl groups, “m” is 2, and “M1m+” is a calcium cation.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
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 1-14 are rejected under 35 U.S.C. 103 as being unpatentable over Choi (KR 20220082716 A, hereinafter referring to the attached ESPACENET translation) in view of Patel (US 2002/0099124 A1).
Regarding claim 1, Choi teaches a thermoplastic resin composition ([0001]), comprising:
100 parts of a base resin ([0015]) comprising:
A polyarylene ether (a-1) which comprises 50-95 wt% of the base resin ([0015], [0042])
A polystyrene resin (a-2) which comprises 5 to 50 wt% of the base resin ([0015], [0069])
8.5 to 16 parts of two or more organic phosphorus-based flame retardants having different phosphorus contents ([0015])
0.5 to 3.5 parts by weight of ground mica ([0015]), which reads on the claimed “mica powder”
1 to 4 parts by weight of an alkaline earth metal sulfate ([0015]), which may have an average particle size of 0.05 to 3 microns ([0128])
In each case, these ranges/values taught by Choi overlap, encompass, fall within, or are identical to their correspondingly claimed ranges/values, establishing prima facie cases of obviousness.
Choi teaches the optional incorporation of glass fibers in an amount of 0.001 to 5 parts by weight ([0166]), but differs from claim 1 because it is silent with regard to the incorporation of 10 to 40 parts by weight of glass fibers, as claimed. However, while Choi recognizes that glass fibers in the range of 0.001 to 5 parts by weight are useful for realizing the necessary properties of the inventive composition without degrading the inherent properties of the thermoplastic resin composition ([0166]), Choi does not teach away from modifying the amount of glass fiber therein.
In the same field of endeavor, Patel teaches a polyphenylene ether composition comprising a polymer component comprising at least 50% of a polyphenylene ether polymer (Abstract) and an additional polymer material including 0 to 50 wt% of crystalline polystyrene ([0021]); organophosphorus flame retardants ([0023]), mica ([0025]), and glass fiber, included in amounts ranging from 5 to 50 wt% of the overall formulation ([0022]). It is prima facie obvious to substitute equivalents known in the art as suitable for the same purpose (See MPEP 2144.06). Therefore, it would have been obvious to one having ordinary skill in the art at the time of filing to utilize the glass fibers of Choi in the compositional range of 5 to 50 wt% of the overall formulation, as taught by Patel, as Patel teaches said range as suitable for substantially similar compositions. The total parts by weight of the required components within Choi range from 111.5 to 131.5 parts ([0015]); therefore, using the range of 5 to 50 wt% of glass fibers taught by Patel, it would have been obvious to one having ordinary skill in the art to include between about 6 and 131.5 parts of glass fiber within the formulation of Choi. This amount encompasses the claimed range of “10 to 40 parts by weight,” establishing a prima facie case of obviousness.
Regarding claim 2, Choi teaches that the polyarylene ether resin may have an intrinsic viscosity ranging from 0.2 to 0.8 dL/g ([0059]), which is identical to the claimed range, establishing a prima facie case of obviousness.
Regarding claim 3, Choi teaches that the polystyrene may be general purpose, high-impact, or a mixture thereof ([0070]).
Regarding claim 4, Choi teaches the incorporation of two or more organic phosphorus-based flame retardants, (b-1) and (b-2), wherein (b-1) has a phosphorus content of 5 to 15% and (b-2) has a phosphorus content of 20 to 35 wt% ([0020]). In each case, these ranges are identical to the respectively claimed ranges, establishing prima facie cases of obviousness.
Regarding claim 5, Choi teaches the ratio of two or more organic phosphorus-based flame retardants, (b-1) and (b-2) as described above. Choi teaches that these two flame retardants are included in a ratio range of 1.5:1 to 4.5:1 ([0090]). The claimed range of “6:4 to 8.5:1.5” is equivalent to a range of 1.5:1 to about 5.67:1; therefore, the prior art range falls within the claimed range, and a prima facie case of obviousness has therefore been established.
Regarding claim 6, Choi teaches the preferred use of, inter alia, triphenyl phosphate and bisphenol A bis(diphenyl phosphate) ([0093]), which read on the claimed list.
Regarding claim 7, Choi teaches the incorporation of, inter alia, metal-substituted phosphinates including calcium dimethylphosphinate ([0098]), which reads on the claimed “Formula 3” because it is identical to “Formula 3” wherein R1 and R2 are methyl groups, “m” is 2, and “M1m+” is a calcium cation.
Regarding claim 8, Choi is silent with regard to the length and diameter of the glass fibers; however, Patel exemplifies the use of OCF R22Y K-filament glass fibers, which are 4 mm long and 14 microns in diameter ([0028]). It is prima facie obvious to substitute equivalents known in the art as suitable for the same purpose (see MPEP 2144.06), and therefore it would have been obvious to one having ordinary skill in the art at the time of filing to utilize these glass fibers within the formulation of Choi, as Patel teaches said fibers as suitable for substantially similar compositions. The length and diameter values of 4 mm and 14 microns each fall within the respectively claimed ranges of “1 to 15 mm” and “3 to 25 µm,” establishing prima facie cases of obviousness.
Regarding claim 9, Choi exemplifies the use of a pulverized mica which has a particle size of 90 microns ([0208]), which falls within the claimed range of “50 to 150 µm,” establishing a prima facie case of obviousness.
Regarding claims 10-12, Choi is silent with regard to the specifically claimed “flame endurance time, IZOD impact strength , and heat deflection characteristics. Nevertheless, as described above, Choi as modified results in a composition which meets all of the claimed compositional limitations, including the same components in the same compositional amounts. Products of identical chemical compositions cannot have mutually exclusive properties. Where the claimed and prior art products are identical or substantially identical in structure or composition, a prima facie case of obviousness has been established. See MPEP 2112.01. The claimed “flame endurance time,” IZOD impact strength, and heat deflection temperature characteristics will therefore necessarily be present in Choi as modified and as applied to claim 1, above.
Regarding claim 13, as described above, Choi as modified by Patel meets all of the compositional limitations as claimed in claim 1. These limitations are identical to the compositional limitations of claim 13, and therefore Choi as modified meets the compositional limitations of claim 13 for the same reasons as described above. Furthermore, Choi teaches a method for manufacturing the inventive thermoplastic resin composition which requires kneading and extruding the composition using an extruder having 9 or more kneading blocks ([0023]).
Regarding claim 14, Choi teaches a molded article of the inventive composition ([0027]).
Claims 1-3, 10-12, and 14 are alternatively rejected under 35 U.S.C. 103 as being unpatentable over Hiroshi (EP 2617772 A1).
Regarding claim 1, Hiroshi teaches a polyphenylene ether resin composition (Abstract), comprising:
100 parts by weight of a resin component (A), comprising
A polyphenylene ether resin (a1) which may be combined with a styrene resin (a2) ([0031]-[0032]). The polyphenylene ether comprises 50 to 100 wt% of the resin component (A), while polystyrene comprises 0 to 50 wt% of the resin composition (A) ([0050]). These ranges encompass the respectively claimed ranges, establishing prima facie cases of obviousness.
Phosphorus-containing flame retardants (D), included in amounts ranging from 1 to 30 parts by weight ([0069]), which encompasses the claimed range of “12 to 17 parts,” establishing a prima facie case of obviousness. Hiroshi specifically exemplifies compositions containing more than one organophosphorus flame retardant (e.g., Examples 1-14 in Table 1, [0158]). Regarding the limitation that the organophosphorus flame retardants have “different phosphorus contents,” the exemplified formulations within Hiroshi contain triphenyl phosphate and resorcinol bis(diphenyl phosphate) ([0145]). Triphenyl phosphate is approximately 9.5 wt% phosphorus (triphenyl phosphate’s molecular weight is about 326.3 g/mol and it contains 1 phosphorus atom, equal to about 31 g/mol. (31/326.3)*100 = 9.5 wt%), while resorcinol bis(diphenyl phosphate) is approximately 10.8 wt% phosphorus (resorcinol bis(diphenyl phosphate)’s molecular weight is about 574.5 g/mol and it contains 2 phosphorus atoms, equal to about 62 g/mol. (62/574.5)*100 = 10.8 wt%). These values differ from one another, and therefore Hiroshi exemplifies compositions containing two types of flame retardants having different phosphorus contents.
Fillers including inter alia barium sulfate, mica, and glass fibers ([0123]). Hiroshi specifically states that two or more fillers may be added ([0123]), and states that the filler content ranges from 1 to 80 parts by weight ([0126]).
Hiroshi exemplifies the use of 2.4 parts by weight of barium sulfate ([0158], Table 1, Examples 1, 7, and 10-14), and therefore it would have been obvious to one having ordinary skill in the art at the time of filing to include 2.4 parts of barium sulfate within the inventive composition. This amount falls within the claimed range of “1 to 4 parts by weight,” establishing a prima facie case of obviousness. The barium sulfate within the exemplified formulations has a particle size of 0.8 microns ([0143]), which falls within the claimed range of “0.05 to 3 µm,” establishing a prima facie case of obviousness.
Given that the fillers of Hiroshi most broadly indicated as being included in amounts ranging from 1 to 80 parts, as described above, the incorporation of 2.4 parts of barium sulfate would restrict the remaining fillers’ collective content to between 0 and 77.6 parts. Hiroshi does not specifically state the relative amounts of glass fiber and mica directly; however, Hiroshi teaches them as equally suitable fillers within the inventive composition (c.f. [0123], wherein glass fibers and mica are both indicated in the listing of specific examples of fillers within the composition). Despite Hiroshi’s lack of specific compositional amounts of these fillers, the obviousness analysis may “take account of the inferences and creative steps that a person of ordinary skill in the art would employ.” KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 421 (2007). For example, the analysis may “include recourse to logic, judgment, and common sense available to the person of ordinary skill that do not necessarily require explication in any reference or expert opinion.” Perfect Web Techs., Inc. v. InfoUSA, Inc., 587 F.3d 1324, 1329 (Fed. Cir. 2009). The Patent Trial and Appeal Board has held that mixing equivalent components in a 1:1 ratio represented no more than application of the “logic, judgment, and common sense available to the person of ordinary skill” in the art. Ex parte Swanzy, Appeal 2017-004875 at 8-9.
In this case, Hiroshi discloses glass fibers and mica as equally suitable alternatives to one another and therefore recognizes the equivalence of the two fillers. It would have would have been prima facie obvious, using no more than ordinary creativity, logic, judgment, and common sense, to combine mica and glass fibers in equal amounts (i.e. in a 1:1 ratio) based on the fact that both are disclosed in parallel as being equally suitable for use in this capacity. In so doing, a composition of Hiroshi containing glass fibers and mica, in addition to 2.4 parts of barium sulfate, would contain between approximately 0 and approximately 38.8 parts of both glass fiber and mica. This range overlaps and encompasses the respectively claimed ranges of glass fiber and mica, establishing prima facie cases of obviousness.
Regarding claim 2, Hiroshi teaches that the polyphenylene ether resin (a1) preferably has an intrinsic viscosity of 0.2 to 0.8 dl/g ([0039]), which is identical to the claimed range, establishing a prima facie case of obviousness.
Regarding claim 3, Hiroshi teaches that the styrene resin (a2) may be, inter alia, a generic polystyrene and/or high impact polystyrene ([0046]). Generic polystyrene reads on the claimed “general-purpose polystyrene” because the instant Specification states that a “general-purpose polystyrene” may be a polystyrene which is prepared by polymerizing styrene alone ([67]); polystyrene as generally disclosed in Hiroshi contains no indication of any comonomer, and Hiroshi additionally states that the styrene monomer may be a polymer of a styrene monomer alone (in contrast to copolymers of styrene, which are additionally disclosed, c.f. [0045] of Hiroshi).
Regarding claims 10-12, Hiroshi is silent with regard to the claimed “flame endurance time” and IZOD impact strength characteristics, and while heat deflection temperature according to ISO 75-2 is mentioned ([0150]), Hiroshi is unspecific as to the thickness of the test specimens and therefore a direct comparison of claimed and prior art heat deflection characteristics is unavailable; nevertheless, as described above, Hiroshi teaches a composition which meets all of the claimed compositional limitations, including the same components in the same compositional amounts. Products of identical chemical compositions cannot have mutually exclusive properties. Where the claimed and prior art products are identical or substantially identical in structure or composition, a prima facie case of obviousness has been established. See MPEP 2112.01. The claimed “flame endurance time,” IZOD impact strength, and heat deflection temperature characteristics will therefore necessarily be present in Hiroshi as applied to claim 1, above.
Regarding claim 14, Hiroshi teaches the formation of a shaped article from the inventive composition using injection molding ([0130]). Said shaped article reads on the claimed “molded article.”
Claims 4 and 6-7 are alternatively rejected under 35 U.S.C. 103 as being unpatentable over Hiroshi (EP 2617772 A1) in view of Yeager (US 2005/0075472 A1).
Regarding claim 4, Hiroshi teaches all of the limitations of claim 1, as described above. Hiroshi differs from claim 4 because it is silent with regard to the incorporation of an organophosphorus flame retardant having a phosphorus content between 20 and 35%.
In the same field of endeavor, Yeager teaches a flame retardant thermoplastic composition (Abstract), comprising a polyphenylene ether (Abstract), an optional polystyrene resin (e.g., [0077]), optional glass fibers ([0077]), and optional mica ([0067]). The composition further contains halogen free flame retardants such as organophosphorus-based flame retardants (e.g., [0058]). These flame retardants may include triphenyl phosphate ([0059]), and may alternatively include aluminum salts of phosphates ([0059]), including aluminum tris(dimethylphosphinate) ([0061]). Aluminum tris(dimethylphosphinate) has a phosphorus content of about 30.4% (aluminum tris(dimethylphosphinate)’s molecular weight is about 306.0 g/mol and it contains 3 phosphorus atoms, equal to about 93 g/mol. (93/306.0)*100 = 30.4 wt%).
It is prima facie obvious to substitute equivalents known in the art as suitable for the same purpose (see MPEP 2144.06), and Yeager teaches aluminum tris(dimethylphosphinate) as an alternative organophosphorus-based flame retardant for polyphenylene ether compositions containing substantially similar components. It therefore would have been obvious to one having ordinary skill in the art at the time of filing to substitute the triphenylphosphine within the formulation of Hiroshi with the aluminum tris(dimethylphosphinate) of Yeager, as Yeager teaches them as a suitable alternatives for their intended use. The resulting composition of Hiroshi as modified by Yeager would contain both resorcinol bis(diphenyl phosphate), which has a phosphorus content of about 10.8 wt% (as described in the rejection of claim 1, above) and aluminum tris(dimethylphosphinate) which has a phosphorus content of about 30.4 wt%. These phosphorus contents respectively fall within the claimed ranges for claimed flame retardants “(b-1)” and “(b-2),” establishing prima facie cases of obviousness.
Regarding claims 6, as described above, the composition of Hiroshi as modified by Yeager contains resorcinol bis(diphenyl phosphate).
Regarding claim 7, as described above, the composition of Hiroshi as modified by Yeager contains aluminum tris(dimethyl phosphinate). This compound reads on the claimed structure of “Formula 3” because it is identical to “Formula 3” wherein “R1” and “R2-” are both methyl groups, “m” is 3, and “M1m+” is an aluminum cation.
Claim 8 is alternatively rejected under 35 U.S.C. 103 as being unpatentable over Hiroshi (EP 2617772 A1) in view of Bauer (US 2006/0020064 A1).
Regarding claim 8, Hiroshi teaches all of the limitations of claim 1, as described above. Hiroshi teaches the incorporation of glass fibers having diameters ranging from 1 to 15 microns [0124] which overlaps the claimed range of “3 to 25 µm,” establishing a prima facie case of obviousness. Hiroshi differs from claim 8 because it is silent with regard to the length of the glass fibers. Hiroshi does however state that the length of the glass fibers is not particularly limited, so long as the fibers have an average length of not less than 0.1 mm ([0125]).
In the same field of endeavor, Bauer teaches a flame retardant polymer composition containing phosphorus-based flame retardants (Abstract), wherein the polymer base may be high impact polystyrene and polyphenylene ether polymers ([0021]), and wherein glass fibers are included as reinforcement, wherein said glass fibers have lengths ranging from 0.01 to 10 mm ([0139]). It is prima facie obvious to substitute equivalents known in the art as suitable for the same purpose (see MPEP 2144.06). It therefore would have been obvious to one having ordinary skill in the art at the time of filing to utilize glass fibers having lengths ranging from about 0.1 mm to about 10 mm within the formulation of Hiroshi, as (i) Bauer teaches said lengths as suitable for use within substantially similar compositions, and (ii) this range simultaneously falls within the range of Bauer and obeys the teaching of Hiroshi requiring said fibers be longer than about 0.1mm. The range of about 0.1 mm to about 10 mm overlaps the claimed range of “1 to 15 mm,” establishing a prima facie case of obviousness.
Claim 9 is alternatively rejected under 35 U.S.C. 103 as being unpatentable over Hiroshi (EP 2617772 A1) in view of Sanada (US Patent No. 5,886,904).
Regarding claim 9, Hiroshi teaches all of the limitations of claim 1, as described above. Hiroshi differs from claim 9 because it is silent with regard to the particle size of the mica filler.
In the same field of endeavor, Sanada teaches a thermoplastic resin composition having high impact resistance and heat stability (Abstract), which includes a polyphenylene ether resin (abstract), an optional polystyrene (col. 9, line 62 to col. 10, line 4), optional flame retardants (col. 10, lines 22-24), and fillers (abstract), which may be mica (e.g., col. 9, line 49). Sanada exemplifies the use of mica 200D from Kuraray as the mica within the inventive composition, which has an average particle size of 90 microns (col. 15, lines 10-12). This value falls within the claimed range of “50 to 150 µm,” establishing a prima facie case of obviousness.
It is prima facie obvious to substitute equivalents known in the art as suitable for the same purpose (See MPEP 2144.06). Therefore, it would have been obvious to one having ordinary skill in the art to utilize mica 200D within the composition of Hiroshi, as Sanada teaches it as suitable for use in polyphenylene ether compositions which may also contain polystyrene and flame retardants – substantially similar to the claimed composition.
Conclusion
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/JOSHUA CALEB BLEDSOE/ Examiner, Art Unit 1762
/ROBERT S JONES JR/ Supervisory Patent Examiner, Art Unit 1762
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