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
Claim 5 is objected to because of the following informalities: for consistency, the claim should be amended to recite “wherein the polymer composition”.
Appropriate correction is required.
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 9, 13, and 14 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.
The metes and bounds of Claim 9 are not clearly defined, as it does not set forth units for the density values recited. For the purposes of examination, Claim 9 will be interpreted as setting forth a density ranging from 0.85 to 0.95 g/cm3.
There is a lack of antecedent basis for “the curing” set forth in Claim 13. It is unclear if this refers to the “curing” recited in line 2 of the claim, line 3 of the claim, or both. Additionally, the metes and bounds of are not clearly defined by the phrase “full or partial presence of oxygen”. For the purposes of examination, Claim 13 will be interpreted as setting forth wherein the curing of the polymer composition in the presence of a peroxide agent and the curing and expanding the polymer composition in the presence of at least a blowing agent and a peroxide agent each occur in the presence of oxygen.
It is unclear to what the term “full EVA footwear” in Claim 14 refers. Additionally, no description of this phrase is provided in the specification. For the purposes of examination, species other than “full EVA footwear” have been considered.
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 (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 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.
Claims 1, 3 – 7, 9, and 12 – 18 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by US 2021/0195994 to Tateishi et al. (hereinafter Tateishi).
Regarding Claim 1. Tateishi teaches a polymer composition [0018] comprising:
an ethylene-vinyl acetate copolymer [0019]; and
one or more farnesene-based polymers [0018].
Regarding Claims 3 and 4. Tateishi teaches the polymer composition of Claim 1 wherein one or more farnesene-based polymers may comprise a farnesene homopolymer and a farnesene copolymer [0030]. The farnesene copolymer may specifically be a copolymer of farnesene and styrene [0045].
Regarding Claim 5. Tateishi teaches the polymer composition of Claim 3 comprises:
preferably 30 to 95 mass% of the second component [0033], which corresponds to the ethylene-vinyl acetate copolymer; and
preferably 1 to 60 mass% of the first component [0032], corresponding to the farnesene polymers. Tateishi further teaches the content ratios of farnesene homopolymer and the farnesene copolymer in the first component are not particularly limited so long as they total 100 mass% of the first component. Therefore, a person of ordinary skill in the art would readily envision from the reference disclosure that the farnesene homopolymer and the farnesene copolymer may each be provided in an amount of greater than 0 to less than 60 mass% of the polymer composition, so long as the sum of their amounts totals 1 to 60 mass% of the total composition.
Regarding Claim 6. Tateishi teaches the polymer composition of Claim 1 wherein the ethylene-vinyl acetate copolymer may comprise vinyl acetate in an amount of 25 mass% [0089].
Regarding Claim 7. Tateishi teaches the polymer composition of Claim 1 may further comprise a rubber component such as a natural rubber, ethylene propylene rubber (i.e. an olefin rubber), or chloroprene (i.e. a halogen rubber) [0020].
Regarding Claim 9. Tateishi teaches the polymer composition of Claim 1 wherein the polymers have a Type-A durometer/Shore A hardness of 15 or more and particularly preferably 89 or less [0023].
Regarding Claim 12. Tateishi teaches a process for producing the polymer composition of Claim 1 comprising mixing the ethylene-vinyl acetate copolymer and the one or more farnesene-based polymers ([0018] – [0019], [0097] and Table 3).
Regarding Claim 13. Tateishi teaches the process of Claim 12 wherein the process further comprises curing in the presence of a foaming/blowing agent and DCP (Table 3), i.e. a peroxide agent. As Tateishi does not expressly teach adjusting the curing environment, it would be the Office’s position that it would be reasonably expected that curing occurs under ambient conditions and therefore in the presence of oxygen.
Regarding Claim 14. Tateishi teaches a midsole article prepared from the polymer composition of Claim 1 [0069].
Regarding Claim 15. Tateishi teaches an expandable polymer composition comprising the polymer composition of Claim 1, a foaming/blowing agent and DCP (Table 3), i.e. a peroxide agent.
Regarding Claim 16. Tateishi teaches an expanded article prepared from the expandable polymer composition of Claim 15 ([0097] and Table 3).
Regarding Claim 17. Tateishi teaches the expanded article of Claim 16 has an Asker C hardness of 27 – 44 (Table 3).
Regarding Claim 18. Tateishi teaches a curable polymer composition comprising the polymer composition of Claim 1 and DCP (Table 3), i.e. a peroxide agent.
Claims 1, 7, 8, and 12 – 19 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by WO 2021/172448 to Konishi et al. (hereinafter Konishi). For the purposes of examination, citations for Konishi are taken from an English language equivalent of the document, US 2023/0025461.
Regarding Claim 1. Konishi teaches a polymer composition comprising:
an ethylene-vinyl acetate copolymer; and
a hydrogenated block copolymer having a structural unit (b1) derived from farnesene [0019], corresponding to a farnesene polymer.
Regarding Claim 7. Konishi teaches the polymer composition of Claim 1 may further comprises a rubber component such as an ethylene-propylene rubber [0094], i.e. a polyolefin rubber.
Regarding Claim 8. Konishi teaches the polymer composition of Claim 1 has a biomass degree of preferably 4 to 70% by mass [0117].
Regarding Claim 12. Konishi teaches a process for producing the polymer composition of Claim 1 comprising mixing the ethylene-vinyl acetate and the hydrogenated block/farnesene copolymers [0120].
Regarding Claim 13. Konishi teaches the process of Claim 12 wherein the process further comprises curing in the presence of a peroxide agent [0099] and optionally a foaming agent [0116]. Konishi does not expressly teach adjusting the curing environment, it would be the Office’s position that it would be reasonably expected that curing occurs under ambient conditions and therefore in the presence of oxygen.
Regarding Claim 14. Konishi teaches a shoe sole article prepared from the polymer composition of Claim 1 [0127].
Regarding Claim 15. Konishi teaches an expandable polymer composition comprising the polymer composition of Claim 1, a foaming/blowing agent [0116], and a peroxide agent [0099].
Regarding Claim 16. Tateishi teaches an expanded article prepared from the expandable polymer composition of Claim 15 ([0099], [0116], and [0125]).
Regarding Claim 17. Tateishi teaches the expanded article of Claim 16 has an Asker C hardness of 27 – 44 (Table 3).
Regarding Claim 18. Tateishi teaches a curable polymer composition comprising the polymer composition of Claim 1 and a peroxide agent [0099].
Regarding Claim 19. Tateishi teaches a curable polymer composition comprising the polymer composition of Claim 1 and a peroxide agent. As Tateishi teaches a foaming agent is optionally provided [0116], embodiments in which the foaming agent is not provided would be reasonably expected to result in a cured non-expanded article.
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.
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 2, 9, 11, and 20 are rejected under 35 U.S.C. 103 as being unpatentable over WO 2021/172448 to Konishi et al. (hereinafter Konishi), as applied to Claim 1 above, and further in view of US 2019/0315948 to Delevati et al. (hereinafter Delevati). For the purposes of examination, citations for Konishi are taken from an English language equivalent of the document, US 2023/0025461.
Regarding Claim 2. Konishi teaches the polymer composition of Claim 1 wherein the farnesene polymer has a biomass content as shown in Table 3, corresponding to at least a portion thereof being obtained from a renewable source of carbon.
Konishi does not expressly teach the ethylene-vinyl acetate (EVA) copolymer is further obtained from a renewable source of carbon. However, Delevati teaches the concept of providing EVA copolymers with a bio-based content of at least 5% [0018]. Konishi and Delevati are analogous art as they are from the same field of endeavor, namely EVA copolymer compositions. 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 provide the EVA copolymer in Konishi with a bio-based content of at least 5% as taught by Delevati. The motivation would have been that Delevati teaches the use of products derived from natural sources, as opposed to fossil sources, has increasingly been widely preferred as an effective means of limiting atmospheric carbon dioxide concentration [0015].
Regarding Claim 9. Konishi teaches the polymer composition of Claim 1 but is silent regarding its density. However, Delevati teaches the concept of providing cured non-expanded EVA copolymer articles with densities having a lower limit of 0.7 or 0.8 and an upper limit of 1.0 g/cm3 [0057]. As this article is not expanded, the polymer composition from which it is prepared would also be expected to have substantially the same density. 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 provide the polymer composition of Konishi with a density in the range taught by Delevati. The motivation would have been that Delevati teaches such a density is suitable for cured, non-expanded articles based on EVA copolymers [0058].
Regarding Claim 11. Konishi teaches the polymer composition of Claim 1 but is silent regarding its melt flow index. However, Delevati teaches the concept of providing EVA copolymers with a melt index of at least 10 and an upper limit of 50 or 100 [0029]. 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 provide the polymer composition of Konishi with a density a melt flow index in the range taught by Delevati. The motivation would have been that Delevati teaches such a melt flow index is suitable for the preparation of various articles based on EVA copolymers [0058].
Regarding Claim 20. Konishi teaches the cured non-expanded article of Claim 20 but is silent regarding its Shore A hardness. However, Delevati teaches the concept of providing cured non-expanded EVA copolymer articles with a Shore A hardness of from 60 to 90 [0058]. 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 provide the non-expanded EVA copolymer article in Konishi with a Shore A hardness in the range taught by Delevati. The motivation would have been that Delevati teaches such a Shore A hardness is suitable for cured, non-expanded articles based on EVA copolymers [0058].
Claim 6 is rejected under 35 U.S.C. 103 as being unpatentable over WO 2021/172448 to Konishi et al. (hereinafter Konishi), as applied to Claim 1 above. For the purposes of examination, citations for Konishi are taken from an English language equivalent of the document, US 2023/0025461.
Regarding Claim 6. Konishi teaches the polymer composition of Claim 1 wherein the ethylene-vinyl acetate copolymer comprises more preferably 10 to 50% by mass vinyl acetate [0033]. While this range is not identical to the claimed range of 15 to 25 weight percent, it does overlap. It has been held that where the claimed ranges overlap or lie inside ranges disclosed by the prior art a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPG 90 (CCPA 1976) (MPEP 2144.05)
Notice of References Cited (PTO-892)
The art made of record and not relied upon is considered pertinent to applicant's disclosure. The cited references pertain to polyfarnesene and/or ethylene vinyl-acetate copolymer compositions.
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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