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 .
1.Claims 3, 4 and 6 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.
Claim 3, last line, the “preferably…” clause renders the metes and bounds of the claim uncertain. Preferable limitations should be set forth in separate dependent claims. Claim 4, the language after the word “arbitrary” in the penultimate line is colloquial and should properly be deleted. Certainly, the aspect of “every feasible way” in the last line of the claim is indefinite since it would not be clear exactly what such entails. Claim 6, line 2, the recitation “a film with less defects” is indefinite as it is unclear exactly what the film is being compared to—ie, “less defects” than what?
2.The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim(s) 7 and 10 is/are rejected under 35 U.S.C. 102a1 as being anticipated by Mavridis et al 2023/0023978 (see paragraphs 0012, 0064 and 0047).
Mavridis et al discloses forming films (paragraph 0012, lines 9-10) that are formed from a visbroken LDPE recyclate with a MFR of greater than 5 g/10 min (see paragraph 0064) which would be measured at 190 deg C and 2.16 kg load—ie, ISO 1133 (see paragraph 0047).
3.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) 1-13 is/are rejected under 35 U.S.C. 103 as being unpatentable over Mavridis et al 2023/0023978 (see paragraphs 0006-0007, 0012, 0030, 0045-0049, 0062-0066, 0076, 0078, 0188 and 0237).
Mavridis et al discloses the basic claimed visbreaking method wherein LDPE recyclate undergoes thermal visbreaking in an extruder that has at least two temperature zones (see paragraph 0237) to obtain a visbroken LDPE recyclate. The LDPE recyclate has the instant density and a MFR and MW that overlaps with the instant (see paragraphs 0045-0049) and the visbroken LDPE recyclate has a density, MFR and MW that also overlaps with the instant (see paragraphs 0062-0066). Overlapping ranges for the noted parameters would indicate that the instant process is obvious over that disclosed in the applied reference. Instant claim 2 is taught at paragraph 0078 and instant claim 3 is taught at paragraph 0188 of Mavridis et al. Instant claim 4 is disclosed at paragraph 0237, wherein at least two different temperature zones are taught for the visbreaking extruder—ie, 250 deg C and 325 deg C. The exact amount of energy imparted to the recyclate as set forth in instant claim 5 would have been an obvious aspect in Mavridis et al dependent on the amount of thermal degradation required for the visbreaking. It is submitted that the formation of a film with “less defects” would have been an obvious aspect in the applied reference since the visbroken LDPE recyclate is clearly formed into a film with the instant MFR and the visbreaking improves the processing characteristics of the recyclate (see paragraph 0002) so that it would be formed more easily, such conventionally affording fewer defects. The visbroken LDPE and film of instant claims 7 and 10 have been additionally rejected under 103 in this paragraph in the event that the anticipation rejection is deemed to be untenable. While it is certainly believed that instant claims 7 and 10 are anticipated by the applied reference, it is also clear that any differences between the instant claims and that taught in Mavridis et al would have been obvious given that no line of distinction can be ascertained. The exact increase in MFR as set forth in instant claim 8 and the density ratio of instant claim 9 are submitted to have been within the skill level of the art given the range disclosures for these parameters in the applied reference. Again, see compare the values for each disclosed at paragraphs 0047 and 0046 with those taught at paragraphs 0064 and 0063, respectively, for the MFR and the density. The method steps in instant product claim 11 do not impart patentability to the product when the general steps are already taught in the applied reference. Any differences in film properties are submitted to have been obvious thereover. The exact gloss of the film as set forth in instant claim 12 is submitted to be an obvious aspect in the film of Mavridis et al dependent on exact use desired for the film—ie, packaging, optical, etc. The extruder temperature range of instant claim 13 is disclosed at paragraph 0237 of the applied reference.
4.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 1-13 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-13 of copending Application No. 19/215,499 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because the copending application sets forth a visbreaking method, visbroken LDPE recyclate and film that is substantially similar to the instant with the only discernible differences being slightly different parameter values and the inclusion of LLDPE recyclate in the LDPE. Obviously, one of ordinary skill in the art would be able to modify the instant claims using LLDPE recyclate as would be well known in the art. Also, the exact values for the MFR of the LDPE recyclate and the LDPE visbroken recyclate would have been quite obvious to one of ordinary skill in the art.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
5.Any inquiry concerning this communication or earlier communications from the examiner should be directed to MATHIEU D VARGOT whose telephone number is (571)272-1211. The examiner can normally be reached on Mon-Fri from 9 to 6.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Christina A Johnson, can be reached at telephone number 571 272-1176. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/MATHIEU D VARGOT/Primary Examiner, Art Unit 1742
