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 .
Election/Restrictions
Claim 13 withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected Group , there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on 07/20/2026.
Applicant's election with traverse of Group I: Claims 1-12 drawn to a polymer composition and film in the reply filed on 07/20/2026 is acknowledged. The traversal is on the ground(s) that all claims are sufficiently related and that a thorough search of any one group would result in finding the remaining claims without a search burden. This is not found persuasive because the inventions have both acquired a separate status in the art in view of their .
The requirement is still deemed proper and is therefore made FINAL.
Priority
Acknowledgment is made of applicant’s claim for foreign priority under 35 U.S.C. 119 (a)-(d). The certified copy has been filed in parent Application No. NL-2035565, filed on 08/08/2023.
Specification
The disclosure is objected to because of the following informalities:
On page 10, lines 29-30 phrase "performance being not be handicapped in extruded…” has grammar mistakes due to the use of both “without” and “not be” being a double negative and “not be” not being grammatically correct in this context.
On page 11 line 18, in phrase “it may be that more than on heterophasic propylene copolymers are present…” where “on” should be “one”
On page 13, lines 7-8, “the shrinkage may be at most 5.0, or less than 5.0%, at most 4.0%, less than 4.0%, at most 3.0%”, the “5.0” is missing a percent sign and conjunctions (and/or etc.) are missing.
On page 14, lines 20-21 there is a missing oxford comma in “film, sheets and containers, the matrix…”
On page 14, line 28 has extruded twice “inventor believes that the extruded extruded and optionally moulded polymer composition… “If this is meant to be another, more specific type of extrusion, please clarify the type.
On page 16, line 11 the phrase “sample was held for 5 minutes under at the temperature…” includes “under at the” which is grammatically wrong and confusing. It is guessed that “at the” were mistakenly added.
On page 25, line 30 “according to the present invention may achieved as well by a recycled polymer…” Here it is grammatically wrong to have “may” there.
Throughout the specification applicant is inconsistent with number formatting choices. In some places the decimal separator is a comma as in the European way of denoting decimal places while other places the decimal separator is a period as in the American way of denoting decimal places, (ex: 0,25 vs 0.25). The examiner asks the applicant to choose a decimal separator and stay consistent to limit any possible confusion.
Appropriate correction is required.
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 1 and 3 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 12, and 14 of U.S. Patent No. Chen (US-11407894-B2) (from now on known as Chen B2) in view of González-Montiel et al (Impact-Modified Nylon 6/Polypropylene Blends: 1. Morphology-Property relationships, Polymer, Vol 36, 1995, 4587-4603). Both are analyzing similar polymer compositions that both utilize mechanical properties of both polyamide and polypropylene and create a dual phase morphology.
Regarding claim 1, Chen B2 teaches a polymer composition (see e.g. polymer composition in claim 1) comprising:
Chen B2 teaches (A) composition between 35 and 58 wt.% of polyamide 6 (see e.g. 30-50 wt.% polyamides more specifically Nylon 6 in claim 1), having a relative solvent viscosity (RSV) measured in 90% formic acid of 2.5 or higher (see e.g. polyamide has relative solvent viscosity (RSV) of at least 3.0 in 90% formic acid in claim 1).
Chen B2 teaches B) an amount of maleic anhydride-grafted polypropylene (see e.g. anhydride maleic grafted isotactic polypropylenes in claim 14) where a maleic anhydride concentration of 0.5-1.8 wt.% based on the weight of the maleic anhydride-grafted polypropylene (see e.g. total anhydride content ranging from 0.04-0.4 wt.% of the total weight of the three polypropylenes in the polymer composition in claim 12).
Chen B2 teaches (C) composition between 32 and 63 wt.% of a polypropylene composition (see e.g. between 50-70 wt.% of polypropylene based on the weights of all components in claim 1).
Chen B2 does not explicitly teach in the claims, but in the specification teaches that the composition further contains (B) between 2 and 10 wt.% of a maleic anhydride-grafted polypropylene (see e.g. 3 wt.%-50 wt.% of at least one anhydride grafted polypropylene, which can include a maleic anhydride-grafted polypropylene in 10:27-30) having: i) a MFR of above 40 g/10min (@190°C 2,16kg) (see e.g. high anhydride concentrated (HAC) maleic anhydride-grafted isotactic polypropylene had MFR of 120 g/10 min at 170°C 1.2 Kg in 15:55-58), and ii) a maleic anhydride concentration of 0.5-1.8 wt.% based on the weight of the maleic anhydride-grafted polypropylene (see e.g. low anhydride content has 0.1-0.5 wt% grafted maleic anhydride to weight of anhydride grafted polypropylene and high anhydride content anhydride-grafted polypropylene has more than 0.8 wt % of grafted maleic anhydride based on the weight of anhydride-grafted polypropylene in 10:43-51).
The specification discloses an obvious property of maleic anhydride-grafted polypropylene. Despite the MFR of the maleic anhydride-grafted polypropylene being 120 g/10 min at 170°C and 1.2 kg instead of being measured 190°C and 2.16 kg, it would still be appropriate and obvious since an overlapping range would be expected as patentability is not based upon method of measurement but whether or not the property would have been obvious in view of the prior art. In this case, the MFR while would have gone down with temperature being increased, still would have an overlapping range with the MFR of the maleic anhydride-grafted polypropylene of the invention.
The specification illuminates the claims and further makes the use of maleic anhydride grafted polypropylene obvious in the art. Further the percentage of the three polypropylenes will be less because it is comparing all the anhydride content compared to the three polypropylenes within the mixture instead of based off the weight of the maleic anhydride-grafted polypropylene, meaning the percentage of maleic anhydride would be much higher than claimed and be equivalent to the instant application.
Further Chen B2 doesn’t teach in the claims but teaches in the specification that the C) polypropylene composition having an MFR of less than 25 g/10min (230°C 2,16kg) (see e.g. polypropylenes of the polymer composition have a MFR that is lower than 20g/10 min at 230°C/2.16 kg in 15:38-49).
The specification discloses an obvious property of polypropylene above, that would have been known in the art.
Regarding the overlapping ranges of the compositions and properties, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have selected the overlapping portion of the ranges disclosed by the reference because overlapping ranges have been held to be a prima facie case of obviousness, In re Wertheim, 191 USPQ 90, In re Woodruff, 16 USPQ2d 1934, and In re Peterson, 65 USPQ2d 1379. MPEP 2144.05.
Chen B2 does not teach that the polypropylene composition comprises at least 80 wt.% of one or more heterophasic propylene copolymers when the amount of polyamide 6 is less than 45 wt.%
González-Montiel et al teaches that ethylene-propylene rubber, a known heterophasic propylene copolymer is also known to act as a compatibilizer for polyamide 6 (see e.g. ethylene-propylene random copolymer was found to function as both impact modifiers and compatibilizers for nylon 6/polypropylene blends in abstract). González-Montiel et al further teaches that the ratio of polyamide to polypropylene, the volume fraction of rubber, and the composition influences the morphology and properties of the polymer (see e.g. ratio of polyamide to polypropylene, volume fraction of rubber, molecular weights, effect morphology and mechanical properties of blends in paragraph 4 of introduction). González-Montiel et al teaches that at certain composition of polypropylene, it is expected that the phase will become continuous, instead of being co-continuous and having a heterophasic/dual morphology (see e.g. inversion will take place and polypropylene will become the continuous phase in Morphology paragraph 1 where the co-continuous region is reached at a lower weight percentage of polypropylene in Effect of Nylon 6/PP Ratio in paragraph 2). González-Montiel et al teaches that increasing heterophasic polypropylene and/or compatibilizers, decreases the polypropylene domains, helping to maintain a co-continuous morphology (see e.g. polypropylene domains decrease as the amount of EPR-g-MA in the blend increases, confirming maleated rubbers change the morphology of blends in Effects of Rubber Content in Nylon 6/PP Blends, paragraph 2).
It would have been prima facie obvious for one of ordinary skill in the art to modify the polymer composition taught in Chen with a requirement that when the amount of polyamide 6 is less than 45 wt.% then the polypropylene composition must be at least 80 wt.% of one or more heterophasic polypropylene copolymers as taught in González-Montiel et al because it will allow the polymer composition to retain the dual morphology that allows for an immiscible polymer composition by using part of the polypropylene composition as compatibilizers in the form of heterophasic polypropylene when the polyamide composition is below 50 wt.%.
Regarding claim 3, Chen ‘843 teaches that polyamide 6 has a relative solvent viscosity (RSV) measured in 90% formic acid of 2.7 or higher (see e.g. polyamide such as Nylon 6 having (RSV) measured in 90% formic acid of 3 or higher in claim 1)
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have selected the overlapping portion of the ranges disclosed by the reference because overlapping ranges have been held to be a prima facie case of obviousness, In re Wertheim, 191 USPQ 90, In re Woodruff, 16 USPQ2d 1934, and In re Peterson, 65 USPQ2d 1379. MPEP 2144.05.
Claims 1-3, 6, and 12 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 and 13 of copending Application No. 19/367,146 also known as Chen (US-20260109843-A1) (here on referred to as Chen ‘843). Although the claims at issue are not identical, they are not patentably distinct from each other because both recite the same invention albeit a little more broadly than the instant application.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Regarding claim 1, Chen ‘843 teaches that a polymer composition (see e.g. polymer composition in claim 1) comprising: (A) between 35 and 58 wt.% (see e.g. between 30 and 60 wt % in claim 1) of polyamide 6 (see e.g. one or more polyamides, selected from polyamide 6, polyamide 6/66, or a combination in claim 1) having a relative solvent viscosity (RSV) measured in 90% formic acid of 2.5 or higher (see e.g. each polyamide having (RSV) measured in 90% formic acid of 2.5 or higher in claim 1);
Chen ‘843 discloses that there is also a composition (B) between 2 and 10 wt.% (see e.g. between 1.5 and 15 wt % in claim 1) of a maleic anhydride-grafted polypropylene (see e.g. one or more maleic anhydride-grafted polyolefins in claim 1) having: i) a MFR of above 40 g/10min (@190°C 2,16kg) (see e.g. MFR of above 10 g/10 min in claim 1), and ii) a maleic anhydride concentration of 0.5-1.8 wt.% based on the weight of the maleic anhydride-grafted polypropylene (see e.g. a maleic anhydride concentration of between 0.1 and 1.8 wt % based on weight of maleic anhydride-grafted polyolefins in claim 1);
Chen ‘843 teaches a composition (C) between 32 and 63 wt.% (see e.g. between 25-68.5 wt. % in claim 1) of a polypropylene composition (see e.g. one or more polyolefin compositions selected from a polypropylene composition, a polyethylene composition, or a combination in claim 1) having an MFR of less than 25 g/10min (@230°C 2,16kg) (see e.g. polypropylene MFR of less than 25 g/10 min and polyethylene composition of MFR of less than 5 g/10 min in claim 1), wherein said polypropylene composition comprises at least 80 wt.%, based on the weight of the polypropylene composition, of one or more heterophasic propylene copolymers (see e.g. polypropylene compositions at least 25 wt.% of one or more heterophasic propylene copolymers in claim 1, but is in reference to when weight of maleic anhydride concentration is less than 0.15 wt. % ) wherein the wt.% of the polymers under (A), (B), and (C) is defined based on the combined weight of (A), (B), and (C) (see e.g. based on the combined weight of (A), (B), (C) in claim 1).
The instant application would be obvious for one of ordinary skill in the art over the reference application because the broader genus of polyolefins taught in Chen ‘843 is obvious to specifically claim the polypropylenes of Chen’s instant application because they would have similar properties due to being in the same family. It is also indicated that polypropylene would be preferred as it is the first example of polyolefins. Similarly, the reference application would have been anticipated by the instant application because it describes a species of the claimed polyolefins.
Chen ‘843 does not explicitly disclose that the said polypropylene composition comprises at least 80 wt.%, based on the weight of the polypropylene composition, of one or more heterophasic propylene copolymers when the amount of polyamide 6 is less than 45 wt.% in claim 1.
Instead, Chen ‘843 teaches that polypropylene composition comprises at least 80 wt.%, based on the weight of the polypropylene composition, of one or more heterophasic propylene copolymers when the amount of polyamide 6 is less than 45 wt.% in the specification (see e.g. when the maleic anhydride-grafted concentration reaches 0.14 wt.%, which is less than the 0.15 wt. % listed as the condition for heterophasic propylene copolymer to be at least 25 wt.%, and this occurs when polyamide 6 is only 45 wt. % in paragraph 144). Further Chen ‘843 teaches that in a specific embodiment where a polymer composition of polyamide 6, the polypropylene composition must have at least 80 wt.% and preferably more of a heterophasic polypropylene composition (see e.g. in mixture of PA6 and PA6/66, polypropylene composition must comprise at least 80 wt.% and preferably more of heterophasic polypropylene composition in paragraph 90). Chen ‘843 also teaches that to make a composition of 100 wt.% polypropylene composition where polypropylene composition has at least 25 wt.% of one or more heterophasic propylene copolymers, then initially at least 80 wt.% of heterophasic propylene copolymers must be added to result in 25 wt.% after additional mixing (see e.g. 100 wt.% polypropylene composition based on weight (C), with polypropylene composition having at least 25 wt.% of heterophasic propylene copolymers, where during formation 80 wt.% of heterophasic propylene copolymers are preferably added before additional mixing with polypropylene in paragraph 87).
Additionally, the instant application would be obvious for one of ordinary skill in the art over the reference application because the condition of polypropylene composition comprising at least 80 wt.% of heterophasic propylene copolymers when the polyamide 6 is less than 45 wt. % taught in the instant application is in the reference application in terms of different words as when polyamide 6 is at 45 wt% the total maleic anhydride is also less than 0.15 wt.% requiring at least 25 wt.% of the heterophasic propylene copolymer within the polypropylene composition. The heterophasic propylene copolymer has a 20 wt.% overlap between the applications, making it obvious.
Regarding claim 2, Chen ‘843 teaches that the polymer having a maleic anhydride concentration of less than 0.18 wt.%, based on the combined weight of (A), (B), and (C) (see e.g. total maleic anhydride concentration is less than 0.15 wt.% based on the combined weights in claim 1).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have selected the overlapping portion of the ranges disclosed by the reference because overlapping ranges have been held to be a prima facie case of obviousness, In re Wertheim, 191 USPQ 90, In re Woodruff, 16 USPQ2d 1934, and In re Peterson, 65 USPQ2d 1379. MPEP 2144.05.
Regarding claim 3, Chen ‘843 teaches that polyamide 6 has a relative solvent viscosity (RSV) measured in 90% formic acid of 2.7 or higher (see e.g. each polyamide having (RSV) measured in 90% formic acid of 2.5 or higher in claim 1)
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have selected the overlapping portion of the ranges disclosed by the reference because overlapping ranges have been held to be a prima facie case of obviousness, In re Wertheim, 191 USPQ 90, In re Woodruff, 16 USPQ2d 1934, and In re Peterson, 65 USPQ2d 1379. MPEP 2144.05.
Regarding claim 6, Chen ‘843 teaches an i) extruded or ii) extruded and moulded polymer composition wherein the polymer composition comprises at least 75 wt.% of the polymer composition of the invention (see e.g. extruded article of polymer composition in an amount of at least 75 wt.% of the weight of the article in claim 13).
Regarding claim 12, Chen ‘843 teaches an article comprising the polymer composition of the invention (see e.g. extruded article of polymer composition in claim 13).
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 1-4, 6-7, 10, and 12 are rejected under 35 U.S.C. 103 as being unpatentable over Chen (US-20200199361-A1) in view of González-Montiel et al (Impact-Modified Nylon 6/Polypropylene Blends: 1. Morphology-Property relationships, Polymer, Vol 36, 1995, 4587-4603).
Regarding claim 1, Chen teaches of a polymer composition (see e.g. polymer composition in paragraph 35) comprising:
Chen teaches (A) composition between 35 and 58 wt.% of polyamide 6 (see e.g. 30-50 wt.% polyamides and preferably polyamide 6 in paragraphs 35, 52, 57, and 86), having a relative solvent viscosity (RSV) measured in 90% formic acid of 2.5 or higher (see e.g. polyamide 6 has relative solvent viscosity (RSV) of at least 3.0 in 90% formic acid continuing in further detail of a high viscosity polyamide having an (RSV) of 3.2 in paragraphs 57 and 118);
Chen teaches (B) composition between 2 and 10 wt.% of a maleic anhydride-grafted polypropylene (see e.g. 3 wt.%-50 wt.% of at least one anhydride grafted polypropylene, which can include a maleic anhydride-grafted polypropylene in paragraph 69) having: i) a MFR of above 40 g/10min (@190°C 2,16kg) (see e.g. high anhydride concentrated (HAC) maleic anhydride-grafted isotactic polypropylene had MFR of 120 g/10 min at 170°C 1.2 Kg in paragraph 116), and ii) a maleic anhydride concentration of 0.5-1.8 wt.% based on the weight of the maleic anhydride-grafted polypropylene (see e.g. low anhydride content has 0.1-0.5 wt% grafted maleic anhydride to weight of anhydride grafted polypropylene and high anhydride content anhydride-grafted polypropylene has more than 0.8 wt % of grafted maleic anhydride based on the weight of anhydride-grafted polypropylene in paragraph 70);
Chen teaches (C) composition between 32 and 63 wt.% of a polypropylene composition (see e.g. between 50-70 wt.% of polypropylene based on the weights of all components in paragraphs 35, 52, and 86) having an MFR of less than 25 g/10min (@230°C 2,16kg) (see e.g. polypropylenes of the polymer composition have a MFR that is lower than 20g/10 min at 230°C/2.16 kg in paragraphs 73, 112, 113, and 114).
Despite the MFR of the maleic anhydride-grafted polypropylene being 120 g/10 min at 170°C 1.2 kg instead of being measured 190°C 2.16 kg, it would still be appropriate and obvious since an overlapping range would be expected as patentability is not based upon method of measurement but whether or not the property would have been obvious in view of the prior art. In this case, the MFR while would have gone down with temperature being increased, still would have an overlapping range with the MFR of the maleic anhydride-grafted polypropylene of the invention.
Regarding the overlapping ranges of the compositions and properties, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have selected the overlapping portion of the ranges disclosed by the reference because overlapping ranges have been held to be a prima facie case of obviousness, In re Wertheim, 191 USPQ 90, In re Woodruff, 16 USPQ2d 1934, and In re Peterson, 65 USPQ2d 1379. MPEP 2144.05.
Chen does not teach that the polypropylene composition comprises at least 80 wt.% of one or more heterophasic propylene copolymers when the amount of polyamide 6 is less than 45 wt.%
González-Montiel et al teaches that ethylene-propylene rubber, a known heterophasic propylene copolymer is also known to act as a compatibilizer for polyamide 6 (see e.g. ethylene-propylene random copolymer was found to function as both impact modifiers and compatibilizers for nylon 6/polypropylene blends in abstract). González-Montiel et al further teaches that the ratio of polyamide to polypropylene, the volume fraction of rubber, and the composition influences the morphology and properties of the polymer (see e.g. ratio of polyamide to polypropylene, volume fraction of rubber, molecular weights, effect morphology and mechanical properties of blends in paragraph 4 of introduction). González-Montiel et al teaches that at certain composition of polypropylene, it is expected that the phase will become continuous, instead of being co-continuous and having a heterophasic/dual morphology (see e.g. inversion will take place and polypropylene will become the continuous phase in Morphology paragraph 1 where the co-continuous region is reached at a lower weight percentage of polypropylene in Effect of Nylon 6/PP Ratio in paragraph 2). González-Montiel et al teaches that increasing heterophasic polypropylene and/or compatibilizers, decreases the polypropylene domains, helping to maintain a co-continuous morphology (see e.g. polypropylene domains decrease as the amount of EPR-g-MA in the blend increases, confirming maleated rubbers change the morphology of blends in Effects of Rubber Content in Nylon 6/PP Blends, paragraph 2).
Chen and González-Montiel et al are analogous in the art because they are both analyzing similar polymer compositions that both utilize mechanical properties of both polyamide and polypropylene and create a dual phase morphology. It would have been prima facie obvious for one of ordinary skill in the art to modify the polymer composition taught in Chen with a requirement that when the amount of polyamide 6 is less than 45 wt.% then the polypropylene composition must be at least 80 wt.% of one or more heterophasic polypropylene copolymers as taught in González-Montiel et al because it will allow the polymer composition to retain the dual morphology that allows for an immiscible polymer composition by using part of the polypropylene composition as compatibilizers in the form of heterophasic polypropylene when the polyamide composition is below 50 wt.%.
Regarding claim 2, The polymer composition according to claim 1, having a maleic anhydride concentration of less than 0.18 wt.%, based on the combined weight of (A), (B), and (C) (see e.g. where the low anhydride content has 0.1-0.5 wt% grafted maleic anhydride to weight of anhydride grafted polypropylene and high anhydride content anhydride-grafted polypropylene has more than 0.8 wt % of grafted maleic anhydride based on the weight of anhydride-grafted polypropylene and the anhydride-grafted polypropylene in paragraph 70, only makes up see e.g. 3 wt.%-50 wt.% of at least one anhydride grafted polypropylene within the polypropylene in paragraph 69. The polypropylenes make up 50-70 wt% of the total composition meaning the wt.% of maleic anhydride concentration would be all these percentages multiplied together, which would result in the range of 0.012-0.63 wt.% or more which is within the range of less than 0.18 wt.% overall).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have selected the overlapping portion of the ranges disclosed by the reference because overlapping ranges have been held to be a prima facie case of obviousness, In re Wertheim, 191 USPQ 90, In re Woodruff, 16 USPQ2d 1934, and In re Peterson, 65 USPQ2d 1379. MPEP 2144.05.
Regarding claim 3, Chen teaches that polyamide 6 in the polymer composition has a relative solvent viscosity (RSV) measured in 90% formic acid of 2.7 or higher (see e.g. polyamide 6 has relative solvent viscosity (RSV) of at least 3.0 in 90% formic acid continuing in further detail of a high viscosity polyamide having an (RSV) of 3.2 in paragraphs 57 and 118).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have selected the overlapping portion of the ranges disclosed by the reference because overlapping ranges have been held to be a prima facie case of obviousness, In re Wertheim, 191 USPQ 90, In re Woodruff, 16 USPQ2d 1934, and In re Peterson, 65 USPQ2d 1379. MPEP 2144.05.
Regarding claim 4, Chen teaches the claimed invention above but fails to teach a density of between 0.97 and 1.02 gram/cm3 measured according to ISO 1183-1:2019 (method A – immersion method). It is reasonable to conclude that the property is inherent to Chen due to near identical compositions. Support for said conclusion is found in the use of like materials which would result in the claimed property. The burden is upon the Applicant to prove otherwise.
While Chen does not teach densities directly, a table is provided that contains all the composition percents, where four, A4, A5, A6, and A7 do not include the ethylene vinyl alcohols, that are an additional component in Chen, missing from the instant application. The main categories to pay attention to are the polypropylene homopolymer, random polypropylene and the polyamide 6 (PA6), where the values in parenthesis below the initial weight percentage, is the percentage within the entire polymer composition (see e.g. compositions in Table 1 inside the grey box in particular).
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628
566
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Table 1: Highlighted Chen (US-20200199361-A1) Published in 2020
Similarly, there is a compositions table in the instant application that includes the densities of each embodiment/example. There are three samples here that are directly comparable to Table 1, them being CE1C, E2C, and E2D, one of which is not an embodiment of the invention. The same categories of homopolymer polypropylene, random propylene, and polyamide 6 (PA6) are present. All the examples are in reference to the component to total components (see e.g. as described in Table 2).
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527
626
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Table 2: Highlighted Chen of instant application (Application 18/789,132)
When comparing the Tables, PA6 is in the range of 30-50 wt%, the random polypropylene is in a range of 0-18 wt.%, and the homopolymer propylene is in the range of 27-38 wt.% (see e.g. Tables 1 and 2). When consulting the densities shown in Table 2, all the densities are within the range of 0.98-0.99 g/cm^3, which falls into the claimed range of 0.97-1.02 g/cm^3 (see e.g. Table 2).
Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of [anticipation or obviousness] has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977); see also In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990) (Products of identical chemical composition cannot have mutually exclusive properties.”).
Additionally, González-Montiel et al teaches that the grafted Ethylene-propylene rubber (EPR) and maleic anhydride (MA) or in other words (EPR-g-MA) have a combined density of 0.85 g/cm^3 which when put into the proper percentages, would be comparable to the densities claimed as 0.97-1.02 g/cm^3 (see e.g. Table 1-2 Polymer)
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685
1034
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Table 1-2: Highlighted González-Montiel et al (Impact-Modified Nylon 6/Polypropylene Blends: 1. Morphology-Property relationships, Polymer, Vol 36, 1995, 4587-4603) Published 1995
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have selected the overlapping portion of the ranges disclosed by the reference because overlapping ranges have been held to be a prima facie case of obviousness, In re Wertheim, 191 USPQ 90, In re Woodruff, 16 USPQ2d 1934, and In re Peterson, 65 USPQ2d 1379. MPEP 2144.05.
Regarding claim 6, Chen teaches that the polymer composition can be either i) extruded or ii) extruded and moulded (see e.g. film and sheet extrusion, extrusion blow moulding, injection blow moulding, stretch blow moulding, injection moulding, extrusion coating in paragraphs 98, 104, and 159), where the polymer composition of the extruded or moulded film comprises at least 75 wt.% of the original polymer composition (see e.g. polymer composition may be fully virgin polymer composition of invention or additionally may include recycled polymers which may include one or more anhydride grafted polypropylene in paragraphs 101-103).
“Even 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 as 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).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have selected the overlapping portion of the ranges disclosed by the reference because overlapping ranges have been held to be a prima facie case of obviousness, In re Wertheim, 191 USPQ 90, In re Woodruff, 16 USPQ2d 1934, and In re Peterson, 65 USPQ2d 1379. MPEP 2144.05.
Regarding claim 7, Chen teaches that the polymer composition can be either i) extruded or ii) extruded and moulded (see e.g. film and sheet extrusion, extrusion blow moulding, injection blow moulding, stretch blow moulding, injection moulding, extrusion coating in paragraphs 98, 104, and 159), where the polymer composition of the extruded or moulded film comprises a remaining composition of at most 25 wt.% of either polyamide 6 (see e.g. preferably polyamide 6 in paragraph 57) having a relative solvent viscosity (RSV) measured in 90% formic acid of 2.5 or higher (see e.g. polyamide 6 has relative solvent viscosity (RSV) of at least 3.0 in 90% formic acid continuing in further detail of a high viscosity polyamide having an (RSV) of 3.2 in paragraphs 57 and 118) or of the polypropylene composition having an MFR of less than 25g/10min 230°C 2,16kg) (see e.g. polypropylenes of the polymer composition have a MFR that is lower than 20g/10 min at 230°C/2.16 kg in paragraphs 73, 112, 113, and 114).
Chen does not teach about an alternative embodiment where the polymer composition of the extruded or moulded film is at most 25 wt.% is the above polyamide 6 or polypropylene explicitly but does teach that there could be 0 wt.% of additional polyamide 6 or polypropylene (see e.g. polymer composition may be fully virgin polymer composition of invention in 101). Chen also teaches about recycled polypropylene material being used, that could possibly be from past iterations of the invention, meeting the requirements of MFR and RSV (see e.g. additionally may include recycled polymers which may include one or more anhydride grafted polypropylene in paragraphs 102-103). Chen does not provide a weight percent for the recycled polypropylene.
It would have been prima facie obvious for one of ordinary skill in the art to modify the extruded and/or moulded film taught in Chen to have specific percentages of additional polyamide 6 or polypropylene because the invention of the instant application is desired to be reusable as described in Chen where recycled polypropylene can be used in addition to the invention of the claims.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have selected the overlapping portion of the ranges disclosed by the reference because overlapping ranges have been held to be a prima facie case of obviousness, In re Wertheim, 191 USPQ 90, In re Woodruff, 16 USPQ2d 1934, and In re Peterson, 65 USPQ2d 1379. MPEP 2144.05.
“Even 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 as 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).
Regarding claim 10, Chen teaches that the polymer composition can be either i) extruded or ii) extruded and moulded (see e.g. film and sheet extrusion, extrusion blow moulding, injection blow moulding, stretch blow moulding, injection moulding, extrusion coating in paragraphs 98, 104, and 159), where the polymer composition of the extruded or moulded film comprises at least 75 wt.% of the original polymer composition (see e.g. polymer composition may be fully virgin polymer composition of invention or additionally may include recycled polymers which may include one or more anhydride grafted polypropylene in paragraphs 101-103). Additionally, Chen teaches a possible thickness of 200 microns (see e.g. set layer thickness is 200 microns in paragraph 151).
“Even 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 as 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).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have selected the overlapping portion of the ranges disclosed by the reference because overlapping ranges have been held to be a prima facie case of obviousness, In re Wertheim, 191 USPQ 90, In re Woodruff, 16 USPQ2d 1934, and In re Peterson, 65 USPQ2d 1379. MPEP 2144.05.
Regarding claim 12, Chen teaches an article comprising the polymer composition (see e.g. article comprising this composition of improved polymer in paragraph 8).
Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over Chen (US-20200199361-A1) in view of González-Montiel et al (Impact-Modified Nylon 6/Polypropylene Blends: 1. Morphology-Property relationships, Polymer, Vol 36, 1995, 4587-4603) as applied to claim 1 above, and further in view of Cho et al (US-20210214539-A1).
Regarding claim 5, Chen in view of González-Montiel et al teaches that the polypropylene has a melting temperature of 137.9-167.5°C (see e.g. metallocene-catalyzed polypropylene homopolymer, Ziegler/Natta-catalyzed polypropylene homopolymer and polypropylene random copolymer had Tm between 137.9-167.5°C measured at 7-10 g/10 min in paragraphs 112-114). Chen in view of González-Montiel et al does not teach about the melting temperature of heterophasic polypropylene or the enthalpy of melting.
Cho et al teaches that one or more heterophasic propylene copolymers has:
a) a DSC melting peak temperature of the second heating scan at a heating rate of 20K/minute of between 140°C and 170°C (see e.g. heterophasic polypropylene resin has a melting point of Tm 140 to 170°C using a DSC in paragraph 24), and
b) a normalized melting enthalpy of between 55 and 95 J/g taken from the second heating scan between 80°C and 180°C (see e.g. heterophasic polypropylene resin has a melting enthalpy of 20-85 J/g measured with a DSC in paragraph 24).
Chen in view of González-Montiel et al and Choi et al are analogous because they are both combining polypropylenes for the mechanical advantages with other polymers such as polypropylene’s flexibility, dimensional stability, and chemical resistance. It would have been prima facie obvious for one of ordinary skill in the art to modify the polymer composition of Chen in view of González-Montiel et al with the specific heterophasic polypropylene copolymer properties of melting temperature and heat of enthalpy taught in Cho et al because they are inherent and acts as a compatibilizer.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have selected the overlapping portion of the ranges disclosed by the reference because overlapping ranges have been held to be a prima facie case of obviousness, In re Wertheim, 191 USPQ 90, In re Woodruff, 16 USPQ2d 1934, and In re Peterson, 65 USPQ2d 1379. MPEP 2144.05.
Claims 8-9 are rejected under 35 U.S.C. 103 as being unpatentable over Chen (US-20200199361-A1) in view of González-Montiel et al (Impact-Modified Nylon 6/Polypropylene Blends: 1. Morphology-Property relationships, Polymer, Vol 36, 1995, 4587-4603) as applied to claim 6 above, and further in view of Nyflӧtt et al (SE-2230206-A1).
Regarding claim 8, Chen teaches that the polymer composition can be either i) extruded or ii) extruded and moulded (see e.g. film and sheet extrusion, extrusion blow moulding, injection blow moulding, stretch blow moulding, injection moulding, extrusion coating in paragraphs 98, 104, and 159).
Nyflӧtt et al teaches that it is common practice to have an oxygen permeability of less than 12 ml*mm/(mm2*day) measured according to ASTM F1927-20 at 23°C and 50% relative humidity (see e.g. Oxygen transmission rate (OTR) is less 10 mL/m^2/day and more preferably less than 2 mL/m^2/day at 23°C and 50% RH according to ASTM F1927-20 paragraph 82).
Chen in view of González-Montiel et al and Nyflӧtt et al are analogous in the art because both are creating barrier films to keep packaging fresh. It would have been prima facie obvious for one of ordinary skill in the art to modify the polymer composition taught in Chen in view of González-Montiel et al to be less than 12 ml*mm/(mm^2/day) as taught in Nyflӧtt et al because it would allow the polymer composition film barrier to comply with the known industry standard of food barriers. This is further shown by the same intended use and the same testing method.
“Even 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 as 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).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have selected the overlapping portion of the ranges disclosed by the reference because overlapping ranges have been held to be a prima facie case of obviousness, In re Wertheim, 191 USPQ 90, In re Woodruff, 16 USPQ2d 1934, and In re Peterson, 65 USPQ2d 1379. MPEP 2144.05.
Regarding claim 9, Chen teaches that the polymer composition can be either i) extruded or ii) extruded and moulded (see e.g. film and sheet extrusion, extrusion blow moulding, injection blow moulding, stretch blow moulding, injection moulding, extrusion coating in paragraphs 98, 104, and 159).
Nyflӧtt et al teaches that it is common practice to have a water vapour permeability of less than 0.25 gram*mm/(mm2*day) measured according to ASTM F1249-20 at 23°C and 85% relative humidity (see e.g. water vapor transmission rate (WVTR) of less than 1-5 g/m^2/day if measured at 23°C and 50% or less than 10-20 g/m^2/day if measured at 38°C and 85% according to ASTM F1249-20 in paragraphs 84-85).
It would have been prima facie obvious for one of ordinary skill in the art to modify the polymer composition taught in Chen in view of González-Montiel et al to be less than 0.25 gram*mm/(mm^2/day) as taught in Nyflӧtt et al because it would allow the polymer composition film barrier to comply with the known industry standard of food barriers. This is further shown by the same intended use and the same testing method.
“Even 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 as 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).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have selected the overlapping portion of the ranges disclosed by the reference because overlapping ranges have been held to be a prima facie case of obviousness, In re Wertheim, 191 USPQ 90, In re Woodruff, 16 USPQ2d 1934, and In re Peterson, 65 USPQ2d 1379. MPEP 2144.05.
Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable over Chen (US-20200199361-A1) in view of González-Montiel et al (Impact-Modified Nylon 6/Polypropylene Blends: 1. Morphology-Property relationships, Polymer, Vol 36, 1995, 4587-4603) as applied to claim 1 above, and further in view of Song et al (US-20180043656-A1).
Regarding claim 11, Chen teaches a blown film (see e.g. film and sheet extrusion, extrusion blow moulding, injection blow moulding, stretch blow moulding, injection moulding, extrusion coating in paragraphs 98, 104, and 159), where the polymer composition of the extruded or moulded film comprises at least 75 wt.% of the original polymer composition (see e.g. polymer composition may be fully virgin polymer composition of invention or additionally may include recycled polymers which may include one or more anhydride grafted polypropylene in paragraphs 101-103). Further Chen teaches a thickness of 200 mm but not a thickness of 50 mm. Chen also does not teach about the film having a shrinkage of at most 5% in the MD and TD direction after being heated.
González-Montiel et al teaches of extruded films having a thickness of 20-50 nm, but not in the range of 50 mm (see e.g. thin sections 20-50 nm thick in Experimental, paragraph 4). González-Montiel et al does not teach about shrinkage caused by heat.
Song et al teaches of the film having a thickness of 50 micrometre (see e.g. film has total thickness of 30- 50 micrometers in one embodiment in paragraph 169) and having a shrinkage of at most 5% in MD and TD direction after being placed in a 180°C oven for 2 minutes (see e.g. thermal shrinkage ratio of MD and/or TD is less than 10% and preferably 0-3% after aging in 150 °C for 1 hr. and the film may shrink less than 5% at temperatures up to 200°C in paragraphs 197, 234, and 250 and in Figure 5 with the filled PO films (F-PO), the coated polyester films (C-PST), and the coextruded high Tm films (Coex) all being below 5% at 180°C that corresponds with Table 4 compositions).
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489
851
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Figure 5: Song et al (US-20180043656-A1) Published in 2018
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754
578
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Table 4: Labeled based on paragraph 246 Song et al (US-20180043656-A1) Published in 2018
Chen in view of González-Montiel et al and Song et al are analogous in the art because both are creating immiscible polymers within a matrix and/or a film with a co-continuous phase of droplets. It would have been prima facie obvious for one of ordinary skill in the art to modify the blown film having 75 wt.% of the polymer composition extruded taught in Chen in view of González-Montiel et al with the thickness of 50 microns and the ability to shrink less than 5% when exposed to heat taught in Song et al because it would confirm the continuous phase within the film without doing a costly and time consuming OTR measurement.
“Even 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 as 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).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have selected the overlapping portion of the ranges disclosed by the reference because overlapping ranges have been held to be a prima facie case of obviousness, In re Wertheim, 191 USPQ 90, In re Woodruff, 16 USPQ2d 1934, and In re Peterson, 65 USPQ2d 1379. MPEP 2144.05.
Additional References
An additional reference that reads on the invention is Soliman et al (US-20160297186-A1) and Schauder (WO-2005035648-A1).
Conclusion
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/T.N.W./Examiner, Art Unit 1781
/ALICIA J WEYDEMEYER/Primary Examiner, Art Unit 1781
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