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 .
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 16-27 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 16 of copending Application No. 18/700,144. Although the claims at issue are not identical, they are not patentably distinct from each other because the copending claims recite a composition comprising (I) 50-99 wt% of a metallocene catalyzed copolymer with different comonomers which include 30-70 wt% A and 70-30 wt% B where A has a density of 920-950 and a MFR2 of 2-40 and B has a density of 880-915 and a MFR2 of 0.01-1.5 and (II) 1-50 wt% of a mixed plastic polyethylene recycling blend (B) having a MFR2 of 0.1-1.2 and a density of 910-945 and where the comonomers are hexene and butene.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claim 16-30 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 17 of copending Application No. 18/700,171. Although the claims at issue are not identical, they are not patentably distinct from each other because the copending claims recite a composition comprising (I) 50-99 wt% of a metallocene catalyzed copolymer with different comomers which include 30-70 wt% A and 70-30 wt% B where A has a density of 920-960 and a MFR2 of 2-40 and B has a density of 880-915 and a MFR2 of 0.01-1.5 and (II) 1-50 wt% of a mixed plastic polyethylene recycling blend (B) having a MFR2 of 0.1-1.2 and a density of 910-945 and where the comonomers are hexene and butene.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
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.
Claims 16-30 are 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.
Claim 16 recites ranges such as “of from 0.1 to 1.2 g/10 min, and/or from 0.3 to 1.1 g/10 min”, “a density of from 910 to 945 kg/m3, and/or from 915 to 942 kg/m3, and/or from 918 to 940 kg/m3”. The ranges can be in the alternative (“or”) and be clear. However, the presence of “and” results in an indefinite situation because a broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, the broad recitation from 0.1 to 1.2 g/10 min, and the claim also recites from 0.3 to 1.1 g/10 min which is the narrower statement of the range/limitation. The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims.
This situation is present in claims 17-27, and 29-30. Therefore, each of these claims (and dependent claims) are indefinite.
Relevant Prior Art
No prior art rejections are presented. Relevant prior art include Wang (WO 2021/074785) (present on the 7/8/2025 IDS), Galgali (WO 2021/009191) (present on the 4/10/2024 IDS), and Liu (WO 2021/122299) (present on the 4/10/2024 IDS).
Wang teaches a composition of 50-99 wt% bimodal polyethylene and 1-50 wt% recycled polyethylene (pg. 1, ln. 26-30) which corresponds to the claimed (I) and (II) of the instant claims.
Wang teaches the recycled polyethylene has a density of 0.916-0.970 g/cm3 and a melt index (190˚C, 2.16 kg) of 0.3-30 g/10 min (pg. 1, ln. 26-31). This overlaps the claimed MFR2 of 0.1-1.2 g/10min and 910-945 kg/m3 of claim 16.
Wang teaches the bimodal polyethylene has a density of 0.930-0.970 g/cm3 and a melt index of 0.1-12 g/10min (pg. 1, ln. 30-pg. 2, ln.2) which overlaps the claimed range of 913-930 kg/m3 and 0.1-1.2 g/10min of claim 1.
Wang teaches the bimodal polyethylene has a first copolymer having a melt index of less than 0.4 g/10min and a density of about 0.920-0.955 g/cm3 (pg. 3, ln. 5-15/ pg. 11, ln. 26-33) and a second copolymer having a melt index of 100-20,000 g/10min and density less than 0.967 g/cm3 (pg. 3, ln. 5-16).
Wang teaches the first copolymer has a comonomer such as hexene (pg. 12, ln. 5-11). The first copolymer of Wang has a lower density than the second copolymer of Wang (pg. 3, ln. 6-12) and so the first copolymer of Wang corresponds to the claimed ethylene-hexene component (B). The range of about 0.920-0.955 g/cm3 includes values which overlap the claimed range of 880-915 kg/m3. Wang teaches the first copolymer has a melt index of less than 0.4 g/10min (pg. 11, ln. 26-33) which overlaps the claimed range of 0.001-1.5 g/10min.
Wang teaches the second ethylene copolymer which has a density below 0.967 g/cm3 (pg. 14, ln. 18) which overlaps the claimed range of 925-960 kg/m3. Wang teaches the melt index of 100-10,000 g/10 min (pg. 14, ln. 19) which overlaps the claimed range of 1-300 g/10min.
Wang does not teach the ethylene polymer component (A) (having a high density than (B)) comprises a component (A-1) and (A-2) where (A-2) has a higher density than (A-1). This results in a composition of four components, (A-1), (A-2), (B), and (II) the mixed plastic polyethylene blend. Wang does not teach a composition containing these four components.
Galgali teaches a polymer composition comprising a first ethylene polymer component (A), a second ethylene polymer component (B), a third ethylene polymer component (C) where the density is 900-960 kg/m3, a MFR2 is 0.1-25 g/10min, and the densities of polymers components (A) and (B) are between 925-950 and the density of polymer component (C) is 880-950 (pg. 2). Galgali fails to teach a blend having 1-50 wt% of a mixed plastic polyethylene recycling blend.
Liu teaches a polyethylene blend comprising mixed plastic polyethylene composition (abstract) comprising 90-99 wt% ethylene units and 0.01-5 wt% (abstract) which have a MFR of 0.1-2 g/10 min and a density of 930-955 (pg. 4). Liu fails to teach the claimed composition having 50-99 wt% multimodal copolymer.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ROBERT C BOYLE whose telephone number is (571)270-7347. The examiner can normally be reached Monday-Thursday, 10am-4pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Arrie (Lanee) Reuther can be reached at (571)270-7026. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ROBERT C BOYLE/Primary Examiner, Art Unit 1764
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