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.
Claim(s) 1-12 is/are rejected under 35 U.S.C. 103 as being unpatentable over WO2020/229932A1 page 1 lines 27-30, page 3 lines 13-2, page 4 lines 13-20, page 5 lines 9-14; in view of USP5278272 col. 4 line 38; further in view of WO202112229A1.
With regard to claim 1, WO2020/229932A1 discloses a composition comprising recycled polyethylene blended with virgin polyethylene. See page 5 lines 5-13.The recycled polyethylene may be obtained from recycling from waste. See page 4 lines 13-20, page 5 lines 9-14. The references also teaches recycled polyethylene in amounts of about 5 to 90wt%. see page 5 lines 15-30. It further discloses blends containing 10-50wt% recycled polyethylene and having a density from 0.88 to 0.97 g/cc which overlaps or encompasses the claimed density of 0.910 to 0.930 g/cc. See page 1 lines 27-30. Lastly the references discloses that the virgin polyethylene may include LLDPE and HDPE both of which contain densities within the claimed range. The LLDPE is an ethylene /olefin copolymer containing comonomers such as butene, hexene, or octene. See page 3 lines 13-22.
WO2020/229932A1 does not disclose the claimed improved comonomer content distribution or iCCD weight fractions or the second iCCD elution peak above 99 degrees C.
USP5278272 discloses polyethylene having a defined comonomer distribution and teaches measuring that distribution by temperature rising elution fractionation. Thus the reference teaches selecting polyethylene based on its comonomer distribution. See col. 4 line 38.
Additionally, note that WO2021122299A1 further discloses in the abstract a mixed-plastic-polyethylene composition comprising: - a total amount of ethylene units (C2 units) of from 90.00 to 99.00 wt%, and - a total amount of continuous units having 3 carbon atoms corresponding to polypropylene (continuous C3 units) of from 0.01 to 5.00 wt%, with the total amounts of C2 units and continuous C3 units being based on the total weight amount of monomer units in the composition and measured according to quantitative 13C {1H} NMR measurement, and wherein the composition has - a melt flow rate (ISO 1133, 2.16 kg, 190 °C) of from 0.1 to 2.0 g/10 min; and - a density of from 930 kg/m³ to 955 kg/m³, preferably from 932 to 953 kg/m³, a process for producing said mixed-plastic-polyethylene composition, an article comprising said mixed-plastic-polyethylene composition and the use of said mixed-plastic-polyethylene composition for producing a cable layer. Thus the reference discloses combining recycled polyethylene with virgin HDPE to modify the properties of the recycled polyethylene composition.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to use the polyethylene taught by USP5278272 and the virgin HDPE taught by WO2021122299A1 in the recycled polyethylene composition of WO2020229932A1because the references show these polyethylene materials as usable for modifying the properties of polyethylene compositions. The combination of polyethylene having different comonomer contents and densities would naturally result in polyethylene fractions eluting at different temperatures including a lower fraction temperature and a higher fractions.
With regard to claim 2, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention since, in addition to the discussion in claim 1, WO2020229932A1 discloses recycled polyethylene in amounts of about 5 to 90wt%, which overlap the claimed 10-75wt% PCR resin range. See page 5 lines 15-30.
With regard to claim 3, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention since, in addition to the discussion in claim 1, WO2020229932A1 discloses DSC melting point measurements. See page 2 lines 4-7.
With regard to claim 4, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention since, in addition to the discussion in claim 1,WO2020229932A1 disclosed recycled polyethylene compounds having a density which overlaps the claimed density. See page 1 lines 27-30.
With regard to claim 5, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention since, in addition to the discussion in claim 1,WO2020229932A1 discloses recycled polyethylene obtained from post-consumer material and shows forming films from compositions containing the recycled polyethylene. See page 6 lines 13-30. The refernece recognizes that the properties of the finished film are affected by the polyethylene and the processing conditions. See page 7 lines 1-14. . See page 4 lines 13-20, page 5 lines 9-14. Although the reference does not disclose the claimed defect counts, it would have been obvious to form the recycled polyethylene composition into a film using the disclosed film process. The number and size of defects would naturally result from the recycled polyethylene used and the disclosed processing conditions.
With regard to claim 6, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention since, in addition to the discussion in claim 1, WO2020229932A1 discloses a blend of recycled polyethylene and virgin polyethylene and recycled polyethylene amounts of about 5 to 90wt%. These proportions correspond to virgin polyethylene amounts that overlap the claimed 25 to 90wt% range. See page 5 lines 5-30.
With regard to claim 7, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention since, in addition to the discussion in claim 1, USP5278272 discloses ethylene alpha olefin copolymers and densities that overlap the claimed range. See col. 3 lines 24-42 and col. 4 lines 54-59. The reference also teaches dry blending the polymer with other polymers see col. 5 lines 12-18.
With regard to claim 8, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention since, in addition to the discussion in claim 1,WO2020229932A1 discloses LLDPE as polyethylene having short branches resulting from copolymerization of ethylene with an alpha olefin comonomer including butene, hexene or octene. See page 3 lines 13-22.
With regard to claim 9, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention since, in addition to the discussion in claim 1, USP5278272 discloses ethylene alpha olefin polyethylene having a melt index from about 0.01 to 1000g/10min. See col. 5 lines 1-6. These ranges encompass values below 2.0g/10min. as claimed.
With regard to claim 10, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention since, in addition to the discussion in claim 1, WO2020229932A1 discloses HDPE having a density greater than or equal to 0.941 g/cm3. See page 3 lines 2-5. This range overlaps the claimed HDPE density of 0.950 g/cc or greater.
With regard to claim 11, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention since, in addition to the discussion in claim 1, USP5278272 discloses ranges that overlap the claimed melt index of 0.1 to 2 g/10min. and teaches a melt index/melt flow ratio of at least 5.63. See col. 2 lines 50-54; col. 5 lines 1-6.
With regard to claim 12, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention since, in addition to the discussion in claim 1, WO2020229932A1 discloses films made from blends of polyethylene and recycled polyethylene. See page 1 lines 15-26. It further teaches single layer and multilayer films with one or more layers formed from recycled polyethylene. See page 7 lines 30-34.
In conclusion, in view of the above, there appears to be no significant difference between the reference(s) and that which is claimed by applicant(s). Any differences not specifically mentioned appear to be conventional. Consequently, the claimed invention cannot be deemed as unobvious and accordingly is unpatentable.
Obviousness-type 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 obviousness-type 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); and 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 USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The 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/process/file/efs/guidance/eTD-info-I.jsp.
Claims 1-12 are provisionally rejected on the ground of nonstatutory obviousness-type double patenting as being unpatentable over claims of Copending Application No.19502169; and copending Application No.19502166.
Copending Application No.19502169 claims a polymer blend comprising a virgin ethylene based polymer, and a post-consumer recycled ethylene based polymer . the claims further recite overlapping density and melt index ranges.
Copending Application No.19502166 claims a polymer blend comprising a post-consumer recycled ethylene based polymer and a trimodal ethylene based polymer comprising first, second and third polymer fractions. The claims further recite overlapping density, melt index and post-consumer recycled amounts.
Although the conflicting claims are not identical, they are not patentably distinct from each other because the related application contains limitations in the independent and dependent claims which, when read as a whole, contain the same subject as claim 1 of the present application, respectively and thus would have been obvious over the claimed invention. It is clear that all the elements of the application claims are to be found in related application claims (as the application claims fully encompasses related application claims). The difference between the application claims and the related application claims lies in the fact that the related application claim includes many more elements and is, thus, much more specific. Thus, the invention of claims of the related application is in effect a “species” of the “generic” invention of the application claims. It has been held that the generic invention is “anticipated” by the “species”. See In re Goodman, 29USPQ2d2010 (Fed. Cir. 1993). Since application claims is anticipated by claims of the related application, it is not patentably distinct from claims of the related application.
This is a provisional obviousness-type double patenting rejection because the conflicting claims have not in fact been patented.
As a future response to the rejection above, applicants are advised to not withhold a response, such as, a terminal disclaimer (TD), to the pending ODP rejection. It is noted that the filing of a TD cannot be held in abeyance since that filing “is necessary for further consideration of the rejection of the claims” as set forth in MPEP 804 (I) (B) (1) quoted below:
“As filing a terminal disclaimer, or filing a showing that the claims subject to the rejection are patentably distinct from the reference application’s claims, is necessary for further consideration of the rejection of the claims, such a filing should not be held in abeyance. Only objections or requirements as to form not necessary for further consideration of the claims may be held in abeyance until allowable subject matter is indicated.”
Information Disclosure Statement
Note that any future and/or present information disclosure statements must comply with 37 CFR § 1.98(b), which requires a list of the publications to include: the author (if any), title, relevant pages of the publication, date and place of publication to be submitted for consideration by the Office.
Improper Claim Dependency
Prior to allowance, any dependent claims should be rechecked for proper dependency if independent claims are cancelled.
Correspondence
Any inquiry concerning this communication or earlier communications from the examiner should be directed to TERRESSA M BOYKIN whose telephone number is (571)272-1069. The examiner can normally be reached M-F 7-5:30.
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/Terressa Boykin/ Primary Examiner, Art Unit 1765
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