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 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 20 and 21 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claims 20 and 21 set forth the limitation “the” organic peroxide (b). There is lack of antecedent basis for this limitation in the claim. It is unclear which of the initially set forth at least one organic peroxide (b) this phrase refers to. For the purposes of examination, “the” organic peroxide (b) will be interpreted as referring to the at least one organic peroxide (b).
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.
Claim(s) 15-24 is/are rejected under 35 U.S.C. 103 as being unpatentable by WO2020/021205 to Chao (as cited on the IDS dated 3/20/2025) in view of US2014/0287178 to Clayfield et al. and evidenced by LUPEROX F40P-SP2 B (as cited on the IDS dated 3/20/2025). For the purposes of examination, citations for Chao are taken from a machine translation attached to this Office action, except where expressly noted.
Regarding claims 15, 16, 18, 21, and 22 Chao discloses a composition comprising organic peroxides [0023] such as Luperox F [0046] and a nitroxide [0062] that is preferably 4-hydroxy 2,2,6,6,-tetramethyl-1—piperidinyloxy [0064] (reading on a nitroxide and 2,2,6,6-tetramethylpiperidin-1-oxyl).
Chao is silent regarding what species of Luperox F is used in the composition.
However, Clayfield teaches a polymer composition comprising ethylene/α-olefins and a peroxide [abstract] comprising Luperox F40P-SP2 [Table 2, 0131]. Chao and Clayfield are analogous art as they are from the same field of endeavor, namely compositions comprising peroxide cured polyolefin elastomers.
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 select Clayfield’s species of peroxide (Luperox F40P-SP2) as the peroxide used in Chao, thereby arriving at the claimed invention.
The motivation would have been that it has been held that it is obvious to select a known material based on its suitability for its intended use. See Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945); In re Leshin, 277 F.2d 197, 125 USPQ 416 (CCPA 1960); and MPEP 2144.07. In the instant case, Clayfield shows that Luperox F40P-SP2 is known in the art to be suitable as a peroxide for polyolefin elastomer compositions.
As discussed in the evidentiary reference [LUPEROX F40P-SP2], Luperox F40P-SP2 is a combination of 38-42 wt% of CAS-No 25155-25-3 (reading on component (a) dialkyl peroxides, wherein isomers 1,3 and 1,4 bis(tert-butylperoxyisopropyl)-benzene set forth as species of the instantly claimed dialkyl peroxides in instant claim 18). The evidentiary reference [LUPEROX F40P-SP2] also sets forth Luperox F40P-SP2 contains < 2% of CAS-No 96319-55-0 (reading on component (b) at least one organic peroxide comprising at least one unsaturated side chain, wherein 1-2(tert-butylperoxyisopropyl)-3-isopropenylbenzene is set forth as a species of component (b) in instant Claim 21). The ranges of 38-42 wt% of component (a) and < 2 wt% component (b) can be calculated to correspond to a weight ratio of less than 0.05, reading on the claimed weight ratio from 0.003 to 0.04.
Regarding Claim 17, Chao teaches the composition of claim 15, comprising 1,4 bis(tert--butylperoxyisopropyl)-benzene [0046] reading on formula (II) wherein R1 and R’1 are branched C4 alkyl radical and R2 and R’2 are linear C3 alkyl radical.
Regarding Claim 19, Chao teaches the composition of claim 15, comprising component (a) as a dialkyl peroxide, therefore the limitation of a peroxyketals is not required.
Regarding Claim 20, Chao teaches the composition of claim 15, comprising wherein the evidentiary reference [LUPEROX F40P-SP2] sets forth that Luperox F40P-SP2 contains < 2% of CAS-No 96319-55-0 [LUPEROX F40P-SP2, page 3] thereby reading on component 1-2(tert-butylperoxyisopropyl)-3-isopropenylbenzene) and formula (III) wherein R6 is a branched C3 alkyl group and R’6 is a branched C12 alkyl group substituted with at least one aromatic ring.
Regarding Claim 23 and 24, Chao discloses the composition of claim 15, that comprises crosslinkable polymers [0084] such as EPDM [0085].
Regarding Claim 26, Chao teaches the composition of claim 15, wherein the composition is used to crosslink an elastomeric polymer [0014]
Claim 25 are rejected under 35 U.S.C. 103 as being unpatentable by WO2020/021205 to Chao (as cited on the IDS dated 3/20/2025) in view of US2014/0287178 to Clayfield et al. and evidenced by LUPEROX F40P-SP2 B (as cited on the IDS dated 3/20/2025). For the purposes of examination, citations for Chao are taken from a machine translation attached to this Office action, except where expressly noted.
Regarding Claim 25, Chao discloses a composition comprising organic peroxides [0023] such as Luperox F [0046] and a nitroxide [0062] that is preferably 4-hydroxy 2,2,6,6,-tetramethyl-1—piperidinyloxy [0064] (reading on a nitroxide and 2,2,6,6-tetramethylpiperidin-1-oxyl).
Chao is silent regarding what species of Luperox F is used in the composition.
However, Clayfield teaches a polymer composition comprising ethylene/α-olefins and a peroxide [abstract] comprising Luperox F40P-SP2 [Table 2, 0131]. Chao and Clayfield are analogous art as they are from the same field of endeavor, namely compositions comprising peroxide cured polyolefin elastomers.
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 select Clayfield’s species of peroxide (Luperox F40P-SP2) as the peroxide used in Chao, thereby arriving at the claimed invention.
The motivation would have been that it has been held that it is obvious to select a known material based on its suitability for its intended use. See Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945); In re Leshin, 277 F.2d 197, 125 USPQ 416 (CCPA 1960); and MPEP 2144.07. In the instant case, Clayfield shows that Luperox F40P-SP2 is known in the art to be suitable as a peroxide for polyolefin elastomer compositions.
As discussed in the evidentiary reference [LUPEROX F40P-SP2], Luperox F40P-SP2 is a combination of 38-42 wt% of CAS-No 25155-25-3 (reading on component (a) dialkyl peroxides, wherein isomers 1,3 and 1,4 bis(tert-butylperoxyisopropyl)-benzene set forth as species of the instantly claimed dialkyl peroxides in instant claim 18). The evidentiary reference [LUPEROX F40P-SP2] also sets forth Luperox F40P-SP2 contains < 2% of CAS-No 96319-55-0 (reading on component (b) at least one organic peroxide comprising at least one unsaturated side chain, wherein 1-2(tert-butylperoxyisopropyl)-3-isopropenylbenzene is set forth as a species of component (b) in instant Claim 21). The ranges of 38-42 wt% of component (a) and < 2 wt% component (b) can be calculated to correspond to a weight ratio of less than 0.05, reading on the claimed weight ratio from 0.003 to 0.04.
Chao further teaches that this composition is prepared with a Haake internal mixer [0158] therefore reading on the limitation of “mixing”.
Response to arguments
Applicant’s arguments, see Remarks filed 11/20/2028 with respect to the rejection(s) of claim(s) 15-26 under Chao have been fully considered and are persuasive. Therefore, the rejection has been withdrawn. However, upon further consideration, a new ground(s) of rejection is made in view of Chao in view of Clayfield. Clayfield teaches a polymer composition comprising ethylene/α-olefins and a peroxide [abstract] comprising Luperox F40P-SP2 [Table 2, 0131] wherein it would have been obvious to a person of ordinary skill in the art to select Clayfield’s species of peroxide (Luperox F40P-SP2) as the peroxide used in Chao, thereby meeting the limitations of the at least one organic peroxide (b) and the ratio between at least one organic peroxide (b) and at least one organic peroxide (a).
Notice of References Cited (PTO-892)
The art made of record and not relied upon is considered pertinent to applicant's disclosure. US20040195550 is cited since it comprises a crosslinking promoter that comprises at least one double bond and a detailed description of nitroxides to improve scorch resistance.
Correspondence
Any inquiry concerning this communication or earlier communications from the examiner
should be directed to Devin Darling whose telephone number is (703) 756-5411. The examiner can normally be reached Monday - Friday 7:30am - 5:00pm5:00.
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/DEVIN MITCHELL DARLING/Examiner, Art Unit 1764
/MELISSA A RIOJA/Primary Examiner, Art Unit 1764