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 Objections
Claims 1, 11, 12, 15, 16, and 20 are objected to because of the following informalities:
Claim 1 should be amended to recite “a” melting enthalpy in each instance;
Claims 11 and 12 should be amended to recite “the following steps:” in their respective preambles;
it is suggested Claim 15 be amended to recite “or a combination thereof”;
it is suggested Claim 16 be amended to recite “in the form of a powder or pellets”;
Claim 20 should be amended to recite “the polyolefin microporous breathable film….measured from a sample of the polyolefin microporous breathable film having a thickness” in last two lines of the claim.
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 2 – 14, 16, 19 – 21 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.
Regarding Claims 2 – 14, 16, 19, and 21, the words and phrases “preferably”, “more preferably”, “particularly”, "and such as" renders the claims indefinite because it is unclear whether the limitations following the phrase are part of the claimed invention. See MPEP § 2173.05(d). For the purposes of examination, limitations containing the aforementioned words and phrases will be interpreted as being optional.
There is additionally a lack of antecedent basis for polyethylene ρ.sub.PE in Claim 3. It is unclear to what polyethylene this refers. For the purposes of examination, Claim 3 will be interpreted as setting forth the density of the polyethylene matrix resin ρ.sub.PE.
As Claim 20 depends on Claim 19, it incorporates the subject matter thereof and is therefore also rejected under this statute.
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.
Claims 1 – 8, 10, 11, and 13 – 17 are rejected under 35 U.S.C. 103 as being unpatentable over CN 111849055 to Xie et al. (hereinafter Xie). For the purposes of further examination, citations for Xie are taken from a machine translation of the document obtained from the European Patent Office website in September 2026.
Regarding Claims 1, 4, 5, and 8. Xie teaches a polyethylene composition comprising a polyethylene matrix resin and mixed olefin-maleic anhydride copolymer microspheres as a cell nucleating agent/porogen ([0009] and [0018]).
The porogen comprises mixed olefin-maleic anhydride copolymer microspheres in which the copolymer of the microspheres comprises a structural unit derived from maleic anhydride and a structural unit derived from mixed C4 [0028]. Mixed C4 is set forth as a suitable vinyl containing comonomer M in instant Claim 8. The average particle size of the microspheres is preferably 0.2 to 2 microns [0025], i.e. 200 to 2000 nm.
Xie teaches the porogen is provided in an amount of 0.25 to 10 parts by weight per 100 parts by weight of the polyethylene matrix resin [0009], which is outside the claimed ranges of 30 to 110 and 35 to 110 parts by weight per 100 parts by weight of the polyethylene matrix resin. However, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) Before the effective filing date of the instantly claimed invention, it would have been obvious to a person of ordinary skill in the art to optimize the content of porogen in the composition to provide advantages such as enhancing the heat resistance and uniformity of the nucleation of the polyethylene resin composition.
Regarding Claims 2 and 3. Xie teaches the polyethylene composition of Claim 1. Consequently, the Office recognizes that all of the claimed effects or physical properties are not positively stated by the reference(s). However, Xie, when modified in the manner proposed, teaches a product prepared from all of the claimed ingredients in the claimed amounts by a substantially similar process. Therefore, the claimed effects and physical properties, i.e. satisfaction of the claimed relationships between melting enthalpy and density of the polyethylene composition and polyethylene matrix resin, would implicitly be achieved in a product prepared from all of the claimed ingredients in the claimed amounts by a substantially similar process. See In Re Spada, 911, F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990) and MPEP 2111.01 (I)(II). If it is applicant’s position that this would not be the case: (1) evidence would need to be provided to support the applicant’s position and (2) it would be the Office’s position that the application contains inadequate disclosure as to how to obtain the claimed properties in a product prepared from all of the claimed ingredients in the claimed amounts by a substantially similar process.
Regarding Claim 6. Xie teaches the polyethylene composition of Claim 1 wherein the maleic anhydride copolymer microspheres have a sphericity reaching 85% [0062], corresponding to a near-spherical form.
Regarding Claim 7. Xie teaches the polyethylene composition of Claim 1 wherein the maleic anhydride copolymer microspheres have a maleic anhydride content of preferably about 50 mol% [0038], corresponding to a molar ratio of structural units A:B of about 1:1.
Regarding Claims 10 and 11. Xie teaches the polyethylene composition of Claim 1. That the maleic anhydride copolymer microspheres are prepared by methods comprising instantly claimed steps correspond to product-by-process limitations that is not further limiting in as so far as the structure of the product is concerned. "[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process." In re Thorpe, 777 F.2d 695,698, 227 USPQ 964, 966 (Fed. Cir. 1985) (MPEP 2113) Once a product appearing substantially identical is found, the burden shifts to the applicant to show an unobvious difference between the claimed product and the prior art product. In re Marosi, 710 F.2d 798, 802, 218 USPQ 289, 292 (Fed. Cir. 1993) (MPEP 2113)
Regarding Claim 13. Xie teaches the polyethylene composition of Claim 1 wherein the polyethylene base resin comprises a component A corresponding to a linear low-density polyethylene copolymer [0039].
Regarding Claim 14. Xie teaches the polyethylene composition of Claim 1 further comprises an anti-oxidant [0053].
Regarding Claim 15. Xie teaches the polyethylene composition of Claim 1 and does not teach a coupling agent is provided therein.
Regarding Claim 16. Xie teaches the polyethylene composition of Claim 1 may be in the form of pellets [0065] or a powder [0128].
Regarding Claim 17. Xie teaches the polyethylene composition of Claim 1 may further comprises calcium carbonate [0080].
Claims 19 – 21 are rejected under 35 U.S.C. 103 as being unpatentable over CN 111849055 to Xie et al. (hereinafter Xie), as applied to Claim 1 above, and further in view of US 2016/0114071 to Topolkaraev et al. (hereinafter Topolkaraev). For the purposes of further examination, citations for Xie are taken from a machine translation of the document obtained from the European Patent Office website in September 2026.
Regarding Claims 19 – 21. Xie teaches the polyethylene composition of Claim 1 may be in the form of pellets [0065] but does not expressly teach said pellets are used to prepare a polyolefin microporous breathable film. However, Topolkaraev teaches the concept of preparing a polyolefin microporous film article from polyolefin pellets ([0003]; [0076]; and [0110] – [0111]). The film is generally impermeable to fluids but generally permeable to water vapors [0013], corresponding to a breathable film. Topolkaraev further teaches the film may have a thickness of about 5 to about 40 micrometers [0079]. Xie and Topolkaraev are analogous art as they are from the same field of endeavor, namely polyolefin compositions. Before the effective filing date of the instantly claimed invention, it would have been obvious to prepare a polyolefin microporous breathable film as taught by Topolkaraev from the polyethylene composition of Xie. The motivation would have been that it has been held that it is obvious to select a known material based on its suitability for its intended use. See Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945); In re Leshin, 277 F.2d 197, 125 USPQ 416 (CCPA 1960); and MPEP 2144.07. In the instant case, Topolkaraev shows that polyethylene compositions in pellet form are known in the art to be suitable for the production of polyolefin microporous breathable films.
Allowable Subject Matter
Claims 9 and 12 would be allowable if rewritten to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action and to include all of the limitations of the base claim and any intervening claims.
The following is a statement of reasons for the indication of allowable subject matter: the prior art does not teach or suggest the instantly claimed invention comprising all of the instantly claimed ingredients in the instantly claimed amounts and in which the porogen corresponds to cross-linked maleic anhydride copolymer microspheres and the copolymer in the microspheres comprises a cross-linking structural unit from a cross-linking agent.
CN 111849055 to Xie et al. (hereinafter Xie) corresponds the closest prior art, teaching a polyethylene composition comprising a polyethylene matrix resin and mixed olefin-maleic anhydride copolymer microspheres as a cell nucleating agent/porogen ([0009] and [0018]). The porogen comprises mixed olefin-maleic anhydride copolymer microspheres in which the copolymer of the microspheres comprises a structural unit derived from maleic anhydride and a structural unit derived from mixed C4 [0028]. Mixed C4 is set forth as a suitable vinyl containing comonomer M in instant Claim 8. The average particle size of the microspheres is preferably 0.2 to 2 microns [0025], i.e. 200 to 2000 nm.
However, Xie differs from the instant claims in that it does not teach the copolymer in the microspheres comprises a cross-linking structural unit from a cross-linking agent. Moreover, Xie requires no crosslinking in the product (see [0018]), to allow the product to be recycled without causing secondary pollution. Xie then is not properly modified to anticipate or render obvious the instantly claimed invention.
Notice of References Cited (PTO-892)
The art made of record and not relied upon is considered pertinent to applicant's disclosure. US 2021/0355021 to Mitchell et al. teaches increasing amounts of nucleating agents are associated with the formation of a finer, more consistent, and uniform structure [0053]. US 2020/0087548 to Ieda et al. teaches increasing nucleating also improves the size uniformity of spherulites in molded articles.
Correspondence
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MELISSA RIOJA whose telephone number is (571)270-3305. The examiner can normally be reached Monday - Friday 10:00 am - 6:30 pm EST.
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/MELISSA A RIOJA/Primary Examiner, Art Unit 1764
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