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 .
DETAILED ACTION
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 1-20 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 pre-AIA the applicant regards as the invention.
Claim 1 is rejected as being vague and indefinite when the claim recites “wherein a rate of particles (p2) having a particle diameter of 80 μm or more and less than 170 μm is 9 to 99.9% by volume", because the recitation causes confusion, it is not clear that the particle size as recited is directed to the flame retarding composition or polyphosphate (A). In this office action, it is taken that the flame retarding composition has particle diameter as claimed. Claims 2-20 are also rejected for depending from claim 1, thus inclusion of its indefinite features.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claims 4-8 and 13-14 are rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. The base claim 1 requires a polyphosphate, however, when n1 and n2 each are 1, the formula((1) and (2) are not a polyphosphate or polyphosphate-based compound. Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
Claim Rejections - 35 USC § 102
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 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 the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale or otherwise available to the public before the effective filing date of the claimed invention.
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.
The factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1-4 and 10-14 are rejected under 35 U.S.C. 102(a)(1) as anticipated by or, in the alternative, under 35 U.S.C. 103 as obvious over Elsner et al (US 4,639,331, ‘331 hereafter).
Regarding claims 1-4 and 12-14, ‘331 discloses a flame retarding composition which is powdery and comprises a polyphosphate being an ammonium polyphosphate, which is a compound having chemical formula reading upon presently claimed Formula (1) as in claims 4 and 13-14, wherein X1 is ammonia (C2/L25-C3/L13), wherein the mean particle size (equal to D50) can be 10 to 50 microns satisfying present claims 3 and 12. ‘331 also discloses that the composition can have 96% with particle size less than 150 microns (Table II, Ex. 7), which inherently satisfies the particle size distribution as recited in the present claims 1 and 2 (4% particles having size larger than 150 microns is expected to have small amount of particle size larger than 170 microns, satisfying 0.1 to 50% by volume).
Regarding claims 10-11, ‘331 also discloses a flame-retardant resin composition further comprising a thermoplastic resin such as polyurethane which can be molded into an article (C3/L35-C3/L48).
Claims 4-8, 9 and 13-20 are rejected under 35 U.S.C. 103 as being unpatentable over Elsner et al (US 4,639,331, ‘331 hereafter) in view of Banno et al (US 2021/0189244, ‘244 hereafter).
Regarding claims 4-8 and 13-20, ‘331 teaches all the limitations of claims 1-3, but ‘331 does not specifically set forth the polyphosphate being a compound satisfying present claimed chemical formula (1) and (2) as recited in the present claims 4-8 and 13-14, wherein the X1 is a melamine group and Y 1 is a piperazine group. However, in the same field of endeavor, ‘244 discloses a flame retarding composition comprising a polyphosphate, wherein the polyphosphate is a compound having chemical formula reading upon instantly claimed Formula (1) and (2) as recited in the present claims 4-8 and 13-14 ([0011]-[0016]), which can impart a drip preventing effect, an excellent heat release suppressing effect and excellent flame retardancy to a thermoplastic resin such as polyurethane to make a molded article having a wide variety of applications in industrial fields ([0023], [0084]-[0090]). In light of these teachings, one of ordinary skill in the art would have been motivated to use the polyphosphate compounds as taught by ‘244, to modify the flame retarding composition of ‘331, in order to render a flame retarding composition having excellent heat release suppressing effect and excellent flame retardancy to a thermoplastic resin.
Regarding claims 9 and 15-20, ‘331 also teaches that the flame retarding composition may further contain a silicone oil or a silane coupling agent ([0053]-[0058]) to prevent aggregation of flame retardant powder and improving storage stability.
Relevant Prior Art
The following prior art made of record and not relied upon is considered pertinent to applicant's disclosure: Monsheimer et al (US 2006/0223928, ‘928 hereafter). ‘928 discloses a flame retarding composition being powder comprising ammonium polyphosphate which has particle size less or equal to 150 microns ([0018]).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to RUIYUN ZHANG whose telephone number is (571)270-7934. The examiner can normally be reached on 8:00-5:00 PM.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Arron Austin can be reached on 571-272-8935. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see http://pair-direct.uspto.gov. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/RUIYUN ZHANG/Primary Examiner, Art Unit 1782
