DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Response to Amendment
Applicant’s amendment filed on 04/23/2026 is acknowledged. In light of amendments, new grounds of rejection are set forth below. Claims 1-6, 8-10, 13 and 14 are examined on the merits in this office action.
Information Disclosure Statement
Information Disclosure Statement (IDS) submitted on 04/23/2026 is considered and signed IDS form is attached.
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.
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 1-6, 8-10, 13 and 14 are rejected under 35 U.S.C. 103 as being unpatentable over Takaoka (US 2016/0174725 A1 cited in IDS).
Regarding claims 1-6 and 8-10, Takaoka discloses a cushion (3D loop article) made of a core material comprising a first layer or layer 43 made of polyethylene, wherein the core material comprises a three-dimensional net-like structure (3D loop) (see page 22, claims 1, 2, 5 and 11 and paragraph 0080). The polyethylene can be a low-density polyethylene having a density not higher than 0.94 g/cm3 and a melt flow rate of 3.0 to 35 g/10 min (see paragraphs 0080, 0094, 0110). The first layer or layer 43 reads on a material as presently claimed. The cushion can be used for a mattress or a seat (see paragraphs 0028 and 0092). It is noted that ethylene/α-olefin copolymer is an alternative optional embodiment in claim 1 and therefore, claim 2, which further limits this optional embodiment, is considered met.
The three-dimensional net like structure (3D loop) is prepared by extrusion followed by dry heat treatment with the hot air for annealing at a drying temperature for a predetermined time duration (see paragraphs 0151 and 0152). The drying temperature is not higher than the melting point of low density polyethylene and is lower than the melting point by 10 to 70 °C (see paragraph 0153). The melting point of low density polyethylene is 100 to 135 °C (see paragraph 0107). Therefore, the drying temperature can be 65 to 90 °C (65 = 135-70 and 90 = 100-10), which overlaps with that utilized in the present invention. There is no disclosure of time duration for dry heat treatment with hot air for annealing. However, Takaoka discloses that the structure and properties of three-dimensional net-like structure can be varied by controlling annealing by drying heat treatment (see paragraph 0159). Therefore, it would have been obvious to one of the ordinary skill in the art to use time duration for dry heat treatment including that utilized in the present invention depending on desired structure and properties of three-dimensional net-like structure.
Given that the first layer or layer 43 (material) comprises the polyethylene having density and melt flow rate overlapping with that presently claimed and given that the three-dimensional net like structure is prepared by extrusion followed by heat treatment substantially similar to that utilized in the present invention, within the overlapping ranges, the first layer or layer 43 (material) necessarily inherently has a low-perfection crystal melting enthalpy and a compression residual strain as presently claimed.
In light of the overlap between the claimed 3D loop article and that disclosed by Takaoka, it would have been obvious to one of ordinary skill in the art to use a 3D loop article that is both disclosed by Takaoka and is encompassed within the scope of the present claims, and thereby arrive at the claimed invention.
Regarding claims 13 and 14, Takaoka discloses a cushion (3D loop article) made of a core material comprising a first layer or layer 43 made of polyethylene having a density not higher than 0.94 g/cm3 and a melt flow rate of 3.0 to 35 g/10 min. Therefore, the polyethylene (material) is identical to that utilized in the present invention. Therefore, the polyethylene (material) necessarily inherently has a flexural modulus as presently claimed.
Response to Arguments
Applicant's arguments filed 03/06/2026 have been fully considered but they are not persuasive because of following reasons.
Regarding restriction requirement, applicants argue that as explained herein at I, these features are not described or suggested by any cited reference, including by inherency as argued by the Office Action. Therefore, all the claims share a special technical feature that distinguish the claims from the prior art. As such, all the claims have unity of invention and the restriction requirement should accordingly be reconsidered and withdrawn.
As set forth above in the office action, Takaoka as cited prior art discloses the 3D loop article made of polyethylene having density and melt flow as presently claimed. The 3D loop article is prepared by extrusion followed by dry heat treatment with hot air for annealing at a drying temperature of 65 to 90 °C. While Takaoka does not disclose time duration for heat treatment, Takaoka discloses that the structure and properties of 3D article can be varied by controlling annealing by drying heat treatment. Therefore, it would have been obvious to one of the ordinary skill in the art to use time duration for dry heat treatment including that utilized in the present invention depending on desired structure and properties of three-dimensional net-like structure.
Given that the 3D loop article is made of material similar to that utilized in the present invention and the 3D article is prepared by extrusion followed by heat treatment substantially similar to that utilized in the present invention, within the overlapping ranges, the 3D loop article inherently has a low-perfection crystal melting enthalpy and a compression residual strain as presently claimed. Given that Takaoka meet present claim, the claims do not share a special technical feature that distinguish from the prior art. Therefore, the restriction requirement is maintained.
Applicants argue that Takaoka does not describe or suggest the flexural modulus of its starting resin material. Because Takaoka neither describes nor suggests this starting material property, Takaoka cannot anticipate or render obvious a claim requiring a material having a flexural modulus of 20 MPa to 120 MPa.
It is agreed that Takaoka does not describe or suggest the flexural modulus of its starting resin material. However, given that Takaoka discloses polyethylene having density and melt flow rate overlapping with that presently claimed and given that the three-dimensional net like structure is prepared by extrusion followed by heat treatment substantially similar to that utilized in the present invention, within the overlapping ranges, the material necessarily inherently has flexural modulus as presently claimed, absent evidence to the contrary.
Applicants argue that because the flexural modulus limitation is entirely absent from Takaoka's disclosure and cannot be derived or inherently assumed from any property that Takaoka does disclose, Takaoka fails to describe or suggest the features of new claims 13-14, and these claims are patentable for at least this reason. In addition, because Takaoka fails to describe or suggest the claimed flexural modulus, Takaoka cannot inherently produce the claimed LPCME; claims 13-14 are patentable for this additional reason.
As set forth above, Takaoka disclose the material (polyethylene) identical to that presently claimed. Therefore, the material necessarily inherently has a flexural modulus as presently claimed, absent evidence to the contrary.
Given that the 3D loop article is made of material similar to that utilized in the present invention and the 3D article is prepared by extrusion followed by heat treatment substantially similar to that utilized in the present invention, within the overlapping ranges, the 3D loop article inherently has a low-perfection crystal melting enthalpy, absent evidence to the contrary.
Applicants argue that as explained herein at I(A), Takaoka's disclosed and exemplified heat treatment conditions are insufficient to achieve LPCME ≤30 J/g, as directly demonstrated by the present application's experimental data. As explained herein at I(B), LPCME ≤30 J/g is not an inherent property of the starting material composition-it depends on post-extrusion thermal history. As explained herein at I(C), a POSITA would have had no motivation to select heat treatment conditions targeted at achieving LPCME ≤30 J/g because Takaoka does not recognize LPCME as a relevant property and pursues entirely different performance objectives. As explained herein at I(D), Takaoka does not disclose, measure, or suggest a compression residual strain at 70 °C of no greater than 25%. As explained herein at I(E), compression residual strain at 70 °C of no greater than 25% is not an inherent property of Takaoka's disclosed structures.
However, the examiner does not state that LPCME ≤30 J/g is an inherent property of the starting material alone. Rather, it is the combination of the starting material and the post extrusion thermal treatment that results in the claimed properties. It is examiner’s position that given that the material (polyethylene) is identical to that presently claimed and given that Takaoka disclose post-extrusion treatment substantially similar to the present invention, the 3D loop article inherently has a low-perfection crystal melting enthalpy and a compression residual strain, absent evidence to the contrary.
Applicants argue that Takaoka's disclosed and exemplified heat treatment conditions. are insufficient to achieve LPCME ≤30 J/g, as directly demonstrated by the present application's experimental data. The Office Action's inherency argument depends on the premise that a POSITA applying Takaoka's disclosed heat treatment conditions of dry heat treatment with hot air for annealing at temperatures overlapping with those of the present invention and for a time duration selected based on desired structure and properties would arrive at a finished article having LPCME ≤30 J/g. This premise is directly and quantitatively refuted by the present application's own experimental data, which constitute the best available evidence of what a POSITA applying comparable conditions to those of Takaoka would actually produce. The present application discloses comparative examples in which 3D loop articles were produced from materials with density and MI values within Takaoka's disclosed ranges and were subjected to heat treatment conditions falling within or at the upper boundary of Takaoka's calculated annealing temperature range. Specifically, Comparative Example B-1 uses heat treatment at 90 °C for 1 hour and yields LPCME of 33.3 J/g, and Comparative Example B-2 uses heat treatment at 90 °C for 3 hours and yields LPCME of 33.1 J/g, both substantially above the claimed threshold of 30 J/g. See Table 3 of the present application. The temperature of 90 °C represents the upper end of the Office Action's calculated drying temperature range for Takaoka (65-90 °C, as calculated by the Office Action). Yet even at this maximum temperature, heat treatment durations of 1 hour and 3 hours-durations that are far longer than any duration actually exemplified in Takaoka's working examples-fail to achieve LPCME ≤30 J/g. Takaoka's working examples uniformly use annealing at only 60 °C for 5 minutes (see, Examples 1, 2, 5, 6, and 7 of Takaoka). Takaoka fails to describe an annealing duration of longer than 5 minutes, and the working examples fail to use an annealing temperature of greater than 60 °C. These conditions are drastically less aggressive than even the comparative examples of the present application that fail to achieve LPCME ≤30 J/g. A POSITA following Takaoka's specific working examples would apply 60 °C for 5 minutes, which based on the clear trend of the present application's data (where even 90 °C for up to 3 hours fails to reach the threshold) would be expected to yield LPCME values substantially above 30 J/g, consistent with the no-treatment comparative examples that yield LPCME of 32.5-33.2 J/g (Comparative Examples B- 3, B-4, and B-5, Table 3). This constitutes direct, quantitative experimental evidence that a POSITA applying Takaoka's disclosed or exemplified heat treatment conditions would not produce a finished article having LPCME ≤30 J/g, regardless of the time duration selected within the range that Takaoka contemplates.
However, while there is data for heat treatment duration of 1 h, 3h and no heat treatment (0 h) in the present specification, there is no data for heat treatment duration of less than 1 h, specifically duration of 5 minutes as suggested by Takaoka. That is, there is no evidence (i.e. data) to show that duration of 5 minutes would not yield LDME as presently claimed in the present specification.
Further regarding working examples of Takaoka, “applicant must look to the whole reference for what it teaches. Applicant cannot merely rely on the examples and argue that the reference did not teach others.” In re Courtright, 377 F.2d 647, 153 USPQ 735,739 (CCPA 1967).
Further, it is not the examiner’s position that every temperature and time disclosed by Takaoka will result in the claimed properties. Rather, given that the drying temperature disclosed by Takaoka overlaps that used in the present invention and given that Takaoka discloses the structure and properties of the three-dimensional net-like structure can be varied by controlling annealing by drying heat temperature, it is the examiner’s position that it would be obvious to one of ordinary skill in the art to vary the drying temperature and drying time to values, including those used in the present invention and therefore, given that the drying temperature/drying time is the same, the claimed properties would necessarily inherently be present.
Applicants argue that LPCME <30 J/g is not an inherent property of the starting material composition-it depends heavily on post-extrusion thermal history. A valid inherency rejection requires that the prior art necessarily and inevitably produces the claimed property, not merely that it possibly could do so under some set of conditions. See MPEP § 2112. The Office Action's argument implicitly assumes that LPCME ≤30 J/g is a property that follows necessarily from the starting material composition and the general act of extrusion followed by some form of heat treatment. The present application's experimental data directly refute this assumption. Comparative Examples B-4 and B-5 of the present application use the identical starting material composition as Inventive Examples B-1 through B-6, B-8, B-10, and B-11-specifically, ENGAGE 8402/ENGAGE 8450 60/40 wt%/wt% with density 0.902 g/cm³ and MI 12 g/10 min, a composition with density and MFR within Takaoka's disclosed ranges-and subject that material to the identical extrusion process used in the inventive examples, but without post-extrusion heat treatment. These comparative examples yield LPCME values of 32.7 J/g and 33.2 J/g respectively-both substantially above the claimed threshold of 30 J/g. See Table 3. Similarly, Comparative Example B-3 uses ELITE 5815 (density 0.910 g/cm³, MI 15 g/10 min) without heat treatment and yields LPCME of 32.5 J/g. The only variable distinguishing the comparative examples from the inventive examples achieving LPCME ≤30 J/g is the post-extrusion heat treatment: its temperature and its duration. This demonstrates that LPCME ≤30 J/g is not an inherent property of the claimed material composition upon extrusion, but is instead a property that depends on a specific and adequate thermal processing history applied after extrusion. Because Takaoka neither discloses nor suggests the specific combination of heat treatment temperature and duration required to reduce LPCME to ≤30 J/g, and because Takaoka's working examples use conditions that would not achieve this result, Takaoka does not inherently produce the claimed article.
However, the examiner does not state that LPCME ≤30 J/g is an inherent property of the starting material alone. Rather, it is the combination of the starting material and the post extrusion thermal treatment that results in the claimed properties. It is examiner’s position that given that the material (polyethylene) is identical to that presently claimed and given that Takaoka disclose post-extrusion treatment substantially similar to the present invention, the 3D loop article inherently has a low-perfection crystal melting enthalpy and a compression residual strain, absent evidence to the contrary.
Regarding the comparative examples without heat treatment, the data is not commensurate in scope with the scope of closest prior art by Takaoka given that Takaoka already discloses heat treatment.
Applicants argue that a POSITA would have had no motivation to select heat treatment conditions targeted at achieving LPCME <30 J/g because Takaoka does not recognize LPCME as a relevant property and pursues entirely different performance objectives. The Office Action argues that it would have been obvious to a POSITA to use a time duration for dry heat treatment including that utilized in the present invention, based on Takaoka's ¶ [0159], which states that the structure and properties of the three-dimensional net-like structure can be varied by controlling annealing by drying heat treatment. However, this argument requires a POSITA to optimize a property (LPCME) that Takaoka does not recognize, measure, disclose, or suggest as relevant to any performance objective that Takaoka pursues. The concept of LPCME-the integrated enthalpy of low-perfection crystallite melting between 15 and 80 °C as determined from the first-heat DSC curve of the finished 3D loop article- does not appear anywhere in Takaoka's specification. Takaoka's entire heat treatment disclosure is directed at a fundamentally different objective: achieving dimensional stability, specifically thermal expansion rates of 0 to 8% in the longitudinal direction before and after the hot-air drying test (91 [0091] of Takaoka). [0159] of Takaoka, on which the Office Action relies, describes how controlling annealing affects the softness, high resilience, and thermal expansion properties-the anisotropic thermal expansion characteristic in the longitudinal and lateral directions that is the focus of Takaoka's invention. A POSITA reading Takaoka's disclosure would vary heat treatment conditions for the purpose of controlling thermal expansion behavior, not for the purpose of reducing LPCME, which Takaoka does not identify as a relevant property or performance criterion.
While Takaoka do not disclose LCMPE, Takaoka discloses the 3D loop article prepared from the material identical to that presently claimed and subjecting to heat treatment substantially similar to that utilized in the present invention. Given that the 3D loop article is made of material similar to that utilized in the present invention and the 3D article is prepared by extrusion followed by heat treatment substantially similar to that utilized in the present invention, within the overlapping ranges, the 3D loop article inherently has a low-perfection crystal melting enthalpy and a compression residual strain as presently claimed.
Further, the fact that the inventor has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious. See Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985).
Further, the reason or motivation to modify the reference may often suggest what the inventor has done, but for a different purpose or to solve a different problem. It is not necessary that the prior art suggest the combination to achieve the same advantage or result discovered by applicant. See, e.g., In re Kahn, 441 F.3d 977, 987, 78 USPQ2d 1329, 1336 (Fed.Cir. 2006); Cross Med. Prods., Inc. v. Medtronic Sofamor Danek, Inc., 424 F.3d 1293, 1323, 76 USPQ2d 1662,1685 (Fed. Cir. 2005); In re Linter, 458 F.2d 1013, 173 USPQ 560 (CCPA 1972) (discussed below); In re Dillon, 919 F.2d 688, 16 USPQ2d 1897 (Fed. Cir. 1990), cert. denied, 500 U.S. 904 (1991).
Applicants argue that moreover, achieving LPCME ≤30 J/g is not a generic optimization of heat treatment conditions. Instead, it requires selecting a specific combination of temperature and duration guided by an understanding of how post-extrusion annealing affects low-perfection crystallite structure in polyethylene-based materials, as specifically developed and disclosed by the present inventors. A POSITA working from Takaoka's disclosure, which is entirely silent on LPCME and DSC characterization of crystalline structure in the relevant temperature range, would have no basis for selecting heat treatment conditions targeted at this property. The obviousness argument thus fails for lack of motivation and lack of any suggestion in Takaoka that LPCME is a relevant property to control.
While Takaoka is silent regarding LPCME, Takaoka disclose that the structure and properties of 3D article can be varied by controlling annealing by drying heat treatment. Therefore, it would have been obvious to one of the ordinary skill in the art to vary drying heat treatment (temperature and duration) depending on desired structure and properties, including LPCME (property), absent evidence to the contrary.
Applicants argue that Takaoka does not disclose, measure, or suggest a compression residual strain at 70 °C of no greater than 25%. Amended independent claim 1 now recites that the 3D loop article has a compression residual strain at 70 °C of no greater than 25%. This feature is entirely absent from Takaoka's disclosure. Takaoka does not measure, report, or contemplate compression residual strain at any temperature. The physical properties that Takaoka measures and reports for its three-dimensional net-like structures are: filament diameter (¶ [0194]), bulk density (¶ [0196]), impact resilience (¶ [0202]), compression deflection (¶ [0207]), hysteresis loss (¶ [0208]), thermal expansion rate before and after a hot-air drying test (¶¶ [0210]-[0212]), tensile strength (¶¶ [0213]-[0214]). None of these properties is compression residual strain at elevated temperature. Because Takaoka does not disclose, measure, or suggest compression residual strain at 70 °C, Takaoka cannot anticipate or render obvious a claim requiring a 3D loop article having a compression residual strain at 70 °C of no greater than 25%.
Given that the 3D loop article is made of material similar to that utilized in the present invention and the 3D article is prepared by extrusion followed by heat treatment substantially similar to that utilized in the present invention, within the overlapping ranges, the 3D loop article of Takaoka inherently has a low-perfection crystal melting enthalpy and a compression residual strain as presently claimed.
Further, the fact that the inventor has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious. See Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985).
Applicants argue that compression residual strain at 70 °C of no greater than 25% is not an inherent property of Takaoka's disclosed structures. The Office Action asserts at ¶ 25 that Takaoka's first layer or layer 43 "necessarily inherently has a compression residual strain as presently claimed." This assertion fails for the same reasons that the inherency argument fails for LPCME, as set forth in sections I(A) through I(C) above, and for additional reasons specific to the compression residual strain limitation.
Given that the 3D loop article is made of material similar to that utilized in the present invention and the 3D article is prepared by extrusion followed by heat treatment substantially similar to that utilized in the present invention, within the overlapping ranges, the 3D loop article inherently has a low-perfection crystal melting enthalpy and a compression residual strain as presently claimed.
Applicants argue that first, the present application's experimental data directly demonstrates that 3D loop articles produced under conditions corresponding to Takaoka's disclosure do not achieve compression residual strain at 70 °C of no greater than 25%. Comparative Examples B-4 and B-5 of the present application use the identical starting material composition as the inventive examples (ENGAGE 8402/ENGAGE 8450 60/40 wt%/wt%, density 0.902 g/cm3, MI 12 g/10 min-a composition with density and MFR within Takaoka's disclosed ranges), subject that material to the identical extrusion process, but apply no post-extrusion heat treatment. These comparative examples yield compression residual strain at 70 °C of 47% and 50% respectively. See Table 3. Comparative Example B-3 uses ELITE 5815 (density 0.910 g/cm³, MI 15 g/10 min) without heat treatment and yields compression residual strain at 70 °C of 34%. All three values are far above the claimed threshold of 25%.
However, these comparative examples are not commensurate in scope with the scope of the closest prior art by Takaoka given that Takaoka already discloses post-extrusion heat treatment. Given that the 3D loop article is made of material similar to that utilized in the present invention and the 3D article is prepared by extrusion followed by heat treatment substantially similar to that utilized in the present invention, within the overlapping ranges, the 3D loop article of Takaoka inherently has a low-perfection crystal melting enthalpy and a compression residual strain as presently claimed.
Applicants argue that the present application's comparative examples that do receive heat treatment, but at conditions corresponding to the upper boundary of Takaoka's calculated annealing temperature range, likewise fail to achieve ≤25% compression residual strain at 70 °C. Comparative Example B-1 uses heat treatment at 90 °C for 1 hour and yields compression residual strain of 28%, and Comparative Example B-2 uses heat treatment at 90 °C for 3 hours and yields compression residual strain of 28%. See Table 3. Both values exceed the claimed threshold of 25%. As noted in section I(A), the temperature of 90 °C represents the upper end of the Office Action's calculated drying temperature range for Takaoka (65-90 °C), and the durations of 1 hour and 3 hours are far longer than any duration actually exemplified in Takaoka's working examples. Takaoka's working examples uniformly use annealing at only 60 °C for 5 minutes (Examples 1, 2, 5, 6, and 7 of Takaoka). A POSITA following Takaoka's specific working examples would apply 60 °C for 5 minutes, which based on the clear trend of the present application's data would be expected to yield compression residual strain at 70 °C substantially above 25%, consistent with the no-treatment comparative examples that yield compression residual strain of 34%-50%.
However, the comparative examples that do not receive post-extrusion heat treatment are not commensurate in scope with the scope of the closest prior art by Takaoka given that Takaoka already discloses post-extrusion heat treatment. Given that the 3D loop article is made of material similar to that utilized in the present invention and the 3D article is prepared by extrusion followed by heat treatment substantially similar to that utilized in the present invention, within the overlapping ranges, the 3D loop article of Takaoka inherently has a low-perfection crystal melting enthalpy and a compression residual strain as presently claimed, absent evidence to the contrary.
Further, while there is data for heat treatment duration of 1 h, 3h and no heat treatment (0 h) in the present specification, there is no data for heat treatment duration of less than 1 h, specifically duration of 5 minutes as suggested by Takaoka. That is, there is no evidence (i.e. data) to show that duration of 5 minutes would not yield LDME and/or compression residual strain as presently claimed in the present specification.
Further regarding working examples of Takaoka, “applicant must look to the whole reference for what it teaches. Applicant cannot merely rely on the examples and argue that the reference did not teach others.” In re Courtright, 377 F.2d 647, 153 USPQ 735,739 (CCPA 1967).
Applicants argue that second, the present application's data demonstrates that compression residual strain at 70 °C is directly correlated with LPCME. As shown in Table 3 of the present application, every inventive example that achieves LPCME <30 J/g also achieves compression residual strain at 70 °C of no greater than 25% (ranging from 10% to 21%), and every comparative example that fails to achieve LPCME ≤30 J/g also fails to achieve compression residual strain at 70 °C of no greater than 25% (ranging from 28% to 50%). This correlation confirms that compression residual strain at 70 °C is not an inherent property of the starting material composition, but rather depends on the same post- extrusion thermal history that controls LPCME. Because Takaoka's disclosed and exemplified heat treatment conditions are insufficient to achieve LPCME ≤30 J/g as demonstrated in section I(A), those same conditions are likewise insufficient to achieve compression residual strain at 70 °C of no greater than 25%.
Given that the 3D loop article is made of material similar to that utilized in the present invention and the 3D article is prepared by extrusion followed by heat treatment substantially similar to that utilized in the present invention, within the overlapping ranges, the 3D loop article of Takaoka inherently has a low-perfection crystal melting enthalpy and a compression residual strain as presently claimed, absent evidence to the contrary.
Applicants argue that the third, the direction of Takaoka's disclosure affirmatively suggests that its structures would not achieve ≤25% compression residual strain at 70 °C. Takaoka's heat treatment disclosure is directed at achieving dimensional stability, specifically, controlling thermal expansion rates of 0 to 8% in the longitudinal direction before and after a hot-air drying test (I [0091] of Takaoka). This thermal expansion rate test places an unloaded sample in a hot air drying oven at 90 °C for 30 minutes (¶¶ [0210]-[0212] of Takaoka). Takaoka does not address, and provides no teaching regarding, the behavior of its structures when subjected to sustained compressive loading at elevated temperature, which is the condition measured by compression residual strain at 70 °C per ASTM D3574 part D. The present application identifies this as a recognized problem in the art: I [0003] states that "current POE or PE made 3D loop cushion formulation has poor compression residual strain (>45%) at 70° C. with 50% testing compression strain (ASTM D3574, part D), which is far away from the incumbent PU foam performance." The present application's own comparative examples confirm this characterization: Comparative Examples B-4 and B-5, which use polyethylene-based materials with density and MI within Takaoka's disclosed ranges and receive no post-extrusion heat treatment, yield compression residual strain at 70 °C of 47% and 50% which are values consistent with the >45% baseline identified in I [0003]. This evidence demonstrates that a POSITA following Takaoka's disclosure would produce structures having compression residual strain at 70 °C well above 25%, and that the claimed <25% threshold is not an inherent property of Takaoka's disclosed structures but instead requires the specific post-extrusion heat treatment conditions developed and disclosed by the present inventors.
However, the comparative examples that do not receive post-extrusion heat treatment are not commensurate in scope with the scope of the closest prior art by Takaoka given that Takaoka already discloses post-extrusion heat treatment. Given that the 3D loop article is made of material similar to that utilized in the present invention and the 3D article is prepared by extrusion followed by heat treatment substantially similar to that utilized in the present invention, within the overlapping ranges, the 3D loop article of Takaoka inherently has a low-perfection crystal melting enthalpy and a compression residual strain as presently claimed, absent evidence to the contrary.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KRUPA SHUKLA whose telephone number is (571)272-5384. The examiner can normally be reached M-F 7:00-3:00 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, Callie Shosho can be reached at 571-272-1123. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/KRUPA SHUKLA/Examiner, Art Unit 1787
/CALLIE E SHOSHO/Supervisory Patent Examiner, Art Unit 1787
Prosecution Insights