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 17 and 19 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 17 recites the limitation "the layer of adhesive or extrusion lamination" in line 2. There is insufficient antecedent basis for this limitation in the claim. Claim 1, from which claim 17 depends, does not previously recite a layer of adhesive or extrusion lamination. It is thus unclear to what the claim is referring. For purposes of examination, claim 17 is interpreted as instead reciting “ a layer of the adhesive or extrusion lamination is a polyurethane adhesive layer.”
Claim 19 recites the limitation "the separate of adhesive or extrusion lamination" in line 2. There is insufficient antecedent basis for this limitation in the claim. Claim 2, from which claim 19 depends, does not previously recite a separate of adhesive or extrusion lamination. It is thus unclear to what the claim is referring. For purposes of examination, claim 19 is interpreted as instead reciting “the
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1-2, 4-5, 8, and 14-20 are rejected under 35 U.S.C. 103 as being unpatentable over Brandt et al. (US 20090280278 A1) (previously cited).
Regarding claim 1, Brandt teaches a recyclable plastic packaging formed from a plastic film composite based on polyethylene with a first surface and a second surface wherein the first surface forms an outer side of the plastic packaging, and the second surface forms an inner side of the plastic packaging facing a packaging interior (Brandt, Abstract, Par. 0025-0027, 0036, 0044, 0055, 0064, 0071, 0075-0078, and 0109). Brandt teaches that the recyclable plastic packaging comprising a sealing film forming a sealing layer (layer S) at a second surface, a monoaxially oriented polyethylene film (C) that forms the first surface, and a biaxially oriented polyethylene film (A) arranged between the monoaxially oriented polyethylene film and the sealing film (Brandt, Par. 0056, 0075-0078, 0090-0092, and 0114-0117). Brandt teaches that the monoaxially oriented polyethylene film has a thickness of from 15 to 50 µm (Brandt, Par. 0115). Brandt teaches that the biaxially oriented polyethylene film has a thickness of at most 40 µm, including at most 15 µm (Brandt, Par. 0026 and 0064). This results in the monoaxially oriented polyethylene film having a greater thickness than the biaxially oriented polyethylene film, and results in a thickness ratio between the monoaxially oriented polyethylene film and the biaxially oriented polyethylene film of at least 1:1 (2:2), which overlaps the claimed range of at least 3:2 and therefore establishes a prima facie case of obviousness over the claimed range, see MPEP 2144.05, I. Further, Brandt provides examples (See example 1 of the table between Par. 0165-0166) where the layer (C) has a thickness of 30 µm and the layer (A) has a thickness of 15 µm, resulting in a thickness ratio of 2:1 (4:2) (Brandt, Par. 0165-0166), which lies within the claimed range, see MPEP 2131.03. While Brandt does not state that the examples use polyethylene, Brandt teaches that the layer (C) can be monoaxially oriented polyethylene and the layer (A) can be biaxially oriented polyethylene as stated above. Therefore, it would have been obvious to one of ordinary skill in the art to use this thickness ratio when using biaxially oriented polyethylene as the layer (A) and monoaxially oriented polyethylene as the layer (C). Brandt further teaches a layer order of S/A/B and that the combined thickness of the layer A and all layers on the side of A facing away from layer B is from 5-100 µm. (Brandt, Par. 0026, 0064, 0067, 0090-0092, 0134, and 0162). This results in a sealing layer (s) thickness of 5-85 µm, which overlaps the claimed range of between 25 µm and 90 µm and therefore establishes a prima facie case of obviousness over the claimed range, see MPEP 2144.05, I. Brandt teaches that the monoaxially oriented polyethylene film and the biaxially oriented polyethylene film are joined by a polyethylene adhesive (B) (Brandt, Abstract, Par. 0109, 0114, 0135-0137) – Brandt’s layer (B) satisfies the limitation of a polyethylene adhesive as it is a polyethylene layer that is printed on wherein the print comprises an adhesive, including a primer, which improves adhesion between the layers (Brandt, Abstract, Par. 0032-0033, 0037, 0094-0097, 0109, and 0135-0137). Brandt teaches the sealing layer is formed of polyethylene, and does not state that the polyethylene is oriented and thus teaches the sealing layer is formed of an un-oriented polyethylene (Brandt, Par. 0090-0092). Brandt teaches that the plastic film composite can comprise only the layers (S), (A), (B), and (C), and that these layers all comprise polyethylene and do not require any additional additives (Brandt, Par. 0056, 0075-0078, 0090-0092, 0114-0117, and 0134). Therefore, Brandt teaches all of the films forming the plastic composite film comprise 100 wt.% polyethylene, which satisfies the claimed range, see MPEP 2131.03.
Alternatively, if the print in the region (D) of layer (B) is considered one of the films of the invention, Brandt teaches that the plastic film composite can comprise only the layers (A), (B), and (C), and that these layers all comprise polyethylene and do not require any additional additives except for the printed region (D) on the layer (B) (Brandt, Par. 0056, 0075-0078, 0090-0092, and 0114-0117). Brandt teaches the printed region (D) covers less than 50% of the surface of the film (Brandt, Par. 0040). Therefore, Brandt teaches the layers (A) and (C) comprise 100 wt.% polyethylene, and the layer (B) comprises at least greater than 50% polyethylene, and therefore, Brandt renders obvious the limitation of the films forming the plastic composite film comprising at least 80 wt.% polyethylene, see MPEP 2144.05, I.
Regarding claim 2, Brandt teaches a recyclable plastic packaging formed from a plastic film composite based on polyethylene with a first surface and a second surface wherein the first surface forms an outer side of the plastic packaging, and the second surface forms an inner side of the plastic packaging facing a packaging interior (Brandt, Abstract, Par. 0025-0027, 0036, 0044, 0055, 0064, 0071, 0075-0078, and 0109). Brandt teaches that the recyclable plastic packaging comprising a sealing layer at a second surface that is formed from a biaxially oriented coextruded multilayer polyethylene film (Layers A and S) and a monoaxially oriented polyethylene film (C) forming the first surface (Brandt, Par. 0056, 0075-0078, 0090-0092, and 0114-0117). Brandt teaches that the monoaxially oriented polyethylene film has a thickness of from 15 to 50 µm (Brandt, Par. 0115). Brandt teaches that the multilayer biaxially oriented polyethylene film has a thickness of from 5-100 µm. (Brandt, Par. 0026, 0064, 0067, 0090-0092, and 0162). This results in embodiments wherein the monoaxially oriented polyethylene film has a greater thickness than the biaxially oriented polyethylene film, and results in a thickness ratio between the monoaxially oriented polyethylene film and the biaxially oriented polyethylene film of 10:1 to 1:2, which overlaps the claimed range of at least 3:2 and therefore establishes a prima facie case of obviousness over the claimed range, see MPEP 2144.05, I. Brandt teaches that the monoaxially oriented polyethylene film and the biaxially oriented polyethylene film are joined by a polyethylene adhesive (B) (Brandt, Abstract, Par. 0109, 0114, 0135-0137) – Brandt’s layer (B) satisfies the limitation of a polyethylene adhesive as it is a polyethylene layer that is printed on wherein the print comprises an adhesive, including a primer, which improves adhesion between the layers (Brandt, Abstract, Par. 0032-0033, 0037, 0094-0097, 0109, and 0135-0137). Brandt teaches that the plastic film composite can comprise only the layers (S), (A), (B), and (C), and that these layers all comprise polyethylene and do not require any additional additives (Brandt, Par. 0056, 0075-0078, 0090-0092, and 0114-0117). Therefore, Brandt teaches all of the films forming the plastic composite film comprise 100 wt.% polyethylene, which satisfies the claimed range, see MPEP 2131.03. Brandt teaches the sealing layer comprises LDPE with a density of from 0.86 to 0.93 g/cm3 (Brandt, Par. 0075-0078 and 0090-0092), which overlaps the claimed range of between 0.886 to 0.915 g/cm3, and therefore establishes a prima facie case of obviousness over the claimed range, see MPEP 2144.05, I.
Alternatively, if the print in the region (D) of layer (B) is considered one of the films of the invention, Brandt teaches that the plastic film composite can comprise only the layers (A), (B), and (C), and that these layers all comprise polyethylene and do not require any additional additives except for the printed region (D) on the layer (B) (Brandt, Par. 0056, 0075-0078, 0090-0092, and 0114-0117). Brandt teaches the printed region (D) covers less than 50% of the surface of the film (Brandt, Par. 0040). Therefore, Brandt teaches the layers (A) and (C) comprise 100 wt.% polyethylene, and the layer (B) comprises at least greater than 50% polyethylene, and therefore, Brandt renders obvious the limitation of the films forming the plastic composite film comprising at least 80 wt.% polyethylene, see MPEP 2144.05, I.
Regarding claim 4, Brandt teaches that the monoaxially oriented polyethylene film has a thickness of from 15 to 50 µm, including an example of 30 µm (Brandt, Par. 0115 and 0165-0166 – see Table 2), which lies within the claimed range of 10 µm to 70 µm and therefore satisfies the claimed range, see MPEP 2131.03.
Regarding claim 5, Brandt teaches that the biaxially oriented polyethylene film has a thickness of at most 40 µm, including at most 15 µm, including an example of 15 µm (Brandt, Par. 0025 and 0165-0166 – see Table 2), which lies within the claimed range of between 10 µm and 40 µm
Regarding claim 8, the limitation of being formed by flat film extrusion is considered a product by process limitation. 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) (See MPEP 2113). The monoaxially oriented polyethylene film and the biaxially oriented polyethylene film structure of the prior art discloses a product which reasonably appears to be either identical or substantially identical to the claimed product-by-process monoaxially oriented polyethylene film and the biaxially oriented polyethylene film structure subjected to the process steps of flat film extrusion, and therefore absent any objective evidence showing to the contrary, the addition of the process limitations of claim 8 does not provide a patentable distinction over the prior art.
Regarding claim 14, Brandt teaches that the monoaxially oriented polyethylene film and the biaxially oriented polyethylene film are joined by a polyethylene adhesive (B) (Brandt, Abstract, Par. 0114). Brandt’s layer (B) satisfies the limitation of a polyethylene adhesive as it is a polyethylene layer that is printed on wherein the print comprises an adhesive which improvs adhesion between the layers (Brandt, Abstract, Par. 0032-0033, 0037, and 0094-0097).
Regarding claim 15, Brandt teaches the monoaxially oriented polyethylene film has a thickness of from 15 to 50 µm (Brandt, Par. 0115), which lies within the claimed range of between 10 µm and 70 µm and therefore satisfies the claimed range, see MPEP 2131.03
Regarding claim 16, Brandt teaches that the multilayer biaxially oriented polyethylene film has a thickness of from 5-100 µm. (Brandt, Par. 0026, 0064, 0067, 0090-0092, and 0162), which overlaps the claimed range of between 10 µm and 40 µm, and therefore establishes a prima facie case of obviousness over the claimed range, see MPEP 2144.05, I.
Regarding claims 17 and 19, Brandt teaches the adhesive comprises a binder that is polyurethane and therefore teaches a layer of the adhesive comprises polyurethane, satisfying the claimed limitation of being a polyurethane adhesive layer (Brandt, Par. 0093-0095).
Regarding claims 18 and 20, Brandt teaches that the monoaxially oriented polyethylene film and the biaxially oriented polyethylene film are joined by a polyethylene (Brandt, Abstract, Par. 0114). Regarding the limitation of the polyethylene being extrusion laminated, this is a product-by-process limitation. 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) (See MPEP 2113). The film structure of the prior art discloses a product which reasonably appears to be either identical or substantially identical to the claimed product-by-process film structure subjected to the process steps of extrusion lamination, and therefore absent any objective evidence showing to the contrary, the addition of the process limitations of claims 18 and 20 do not provide a patentable distinction over the prior art.
Claims 1, 4-5, 8, 14, and 17-20 are rejected under 35 U.S.C. 103 as being unpatentable over Brandt et al. in view of Koesters (EP 2987744 A1; herein English machine translation used for all citations) (previously cited) and Zborowski et al. (US 20180339498 A1).
The following rejections are given as an alternative to the rejections under 35 U.S.C. 103 in view of Brandt above.
Regarding claim 1, Brandt teaches a recyclable plastic packaging formed from a plastic film composite based on polyethylene with a first surface and a second surface wherein the first surface forms an outer side of the plastic packaging, and the second surface forms an inner side of the plastic packaging facing a packaging interior (Brandt, Abstract, Par. 0025-0027, 0036, 0044, 0055, 0064, 0071, 0075-0078, and 0109). Brandt teaches that the recyclable plastic packaging comprising a sealing film forming a sealing layer (layer S) at a second surface, a monoaxially oriented polyethylene film (C) that forms the first surface, and a biaxially oriented polyethylene film (A) arranged between the monoaxially oriented polyethylene film and the sealing film (Brandt, Par. 0056, 0075-0078, 0090-0092, and 0114-0117). Brandt teaches that the monoaxially oriented polyethylene film has a thickness of from 15 to 50 µm (Brandt, Par. 0115). Brandt teaches that the biaxially oriented polyethylene film has a thickness of at most 40 µm, including at most 15 µm (Brandt, Par. 0026 and 0064). This results in the monoaxially oriented polyethylene film having a greater thickness than the biaxially oriented polyethylene film, and results in a thickness ratio between the monoaxially oriented polyethylene film and the biaxially oriented polyethylene film of at least 1:1 (2:2), which overlaps the claimed range of at least 3:2 and therefore establishes a prima facie case of obviousness over the claimed range, see MPEP 2144.05, I. Further, Brandt provides examples (See example 1 of the table between Par. 0165-0166) where the layer (C) has a thickness of 30 µm and the layer (A) has a thickness of 15 µm, resulting in a thickness ratio of 2:1 (4:2) (Brandt, Par. 0165-0166), which lies within the claimed range, see MPEP 2131.03. While Brandt does not state that the examples use polyethylene, Brandt teaches that the layer (C) can be monoaxially oriented polyethylene and the layer (A) can be biaxially oriented polyethylene as stated above. Therefore, it would have been obvious to one of ordinary skill in the art to use this thickness ratio when using biaxially oriented polyethylene as the layer (A) and monoaxially oriented polyethylene as the layer (C). Brandt further teaches a layer order of S/A/B and that the combined thickness of the layer A and all layers on the side of A facing away from layer B is from 5-100 µm. (Brandt, Par. 0026, 0064, 0067, 0090-0092, and 0162). This results in a sealing layer (s) thickness of 5-85 µm, which overlaps the claimed range of between 25 µm and 90 µm and therefore establishes a prima facie case of obviousness over the claimed range, see MPEP 2144.05, I. Brandt teaches that the monoaxially oriented polyethylene film and the biaxially oriented polyethylene film are joined by a polyethylene adhesive (B) (Brandt, Abstract, Par. 0109, 0114, 0135-0137) – Brandt’s layer (B) satisfies the limitation of a polyethylene adhesive as it is a polyethylene layer that is printed on wherein the print comprises an adhesive, including a primer, which improves adhesion between the layers (Brandt, Abstract, Par. 0032-0033, 0037, 0094-0097, 0109, and 0135-0137). Brandt teaches the sealing layer is formed of polyethylene, and does not state that the polyethylene is oriented and thus teaches the sealing layer is formed of an un-oriented polyethylene (Brandt, Par. 0090-0092). Brandt teaches that the plastic film composite can comprise only the layers (S), (A), (B), and (C), and that these layers all comprise polyethylene and do not require any additional additives (Brandt, Par. 0056, 0075-0078, 0090-0092, and 0114-0117). Therefore, Brandt teaches all of the films forming the plastic composite film comprise 100 wt.% polyethylene, which satisfies the claimed range, see MPEP 2131.03.
Alternatively, if the print in the region (D) of layer (B) is considered one of the films of the invention, Brandt teaches that the plastic film composite can comprise only the layers (A), (B), and (C), and that these layers all comprise polyethylene and do not require any additional additives except for the printed region (D) on the layer (B) (Brandt, Par. 0056, 0075-0078, 0090-0092, and 0114-0117). Brandt teaches the printed region (D) covers less than 50% of the surface of the film (Brandt, Par. 0040). Therefore, Brandt teaches the layers (A) and (C) comprise 100 wt.% polyethylene, and the layer (B) comprises at least greater than 50% polyethylene, and therefore, Brandt renders obvious the limitation of the films forming the plastic composite film comprising at least 80 wt.% polyethylene, see MPEP 2144.05, I.
In view of the specific embodiment of Brandt set forth/cited immediately above, (it can be said that) Brandt does not disclose with sufficient specificity that the oriented PE film (C) is monoaxially oriented.
Koesters teaches a packaging comprising a composite film based on polyethylene, wherein the composite film comprises an outer film that is a monoaxially oriented polyethylene film (Koesters, Par. 0001, 0013, and 0017).
Brandt and Koesters are analogous art as they both teach packaging comprising a composite film based on polyethylene comprising an outer film that is oriented polyethylene. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have used the teachings of Koesters and monoaxially orient the oriented polyethylene film (C) of Brandt. This would allow for improved gloss, transparency, and appearance (Koesters, Par. 0017).
In view of the specific embodiment of Brandt set forth/cited immediately above, (it can be said that) Brandt does not disclose with sufficient specificity that the sealing layer is unoriented.
Zborowski teaches a recyclable plastic packaging formed from a plastic film composite with a first surface and a second wherein the first surface of the plastic film composite forms an outer side of the plastic packaging, and the second surface of the plastic film composite forms an inner side of the plastic packaging facing a packaging interior (Zborowski, Abstract, Par. 0010, 0017, and 0054). Zborowski teaches that the plastic film composite comprises a polyethylene film comprising a sealing layer (Second layer) at the second surface (Zborowski, Abstract, Par. 0002, 0018, and 0023-0025). Zborowski teaches that the plastic film composite comprises a monoaxially oriented polyethylene film (first layer) (Zborowski, Abstract, Par. 0011 and 0018-0019). Zborowski teaches that the sealing layer may be oriented, and thus teaches the sealing film may be an unoriented polyethylene film (Zborowski, Par. 0023-0024). Zborowski teaches the seal layer is formed of polyethylene and does not state that other materials are required and thus teaches that the seal layer comprises 100% polyethylene (Zborowski, Par. 0023-0024), which lies within the claimed range of at least 80 wt.% polyethylene and therefore satisfies the claimed range, see MPEP 2131.03. Zborowski teaches the seal layer has a thickness of 0.5 to 5.0 mils (12.7 to 127 µm) (Zborowski, Par. 0030), which overlaps the claimed range of between 25 µm and 90 µm and therefore establishes a prima facie case of obviousness over the claimed range, see MPEP 2144.05, I.
Modified Brandt and Zborowski are analogous art as they both teach multilayer plastic packaging comprising a monoaxially oriented polyethylene layer and a polyethylene sealing layer. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have used Zborowski’s sealing layer as the sealing layer of modified Brandt. This would allow for a flexible package capable of being heat sealed, with specific optical properties such as haze, gloss, and transparency (Zborowski, Abstract and Par. 0031-0033).
Regarding claim 4, modified Brandt teaches that the monoaxially oriented polyethylene film has a thickness of from 15 to 50 µm, including an example of 30 µm (Brandt, Par. 0115 and 0165-0166 – see Table 2), which lies within the claimed range of 10 µm to 70 µm and therefore satisfies the claimed range, see MPEP 2131.03.
Regarding claim 5, modified Brandt teaches that the biaxially oriented polyethylene film has a thickness of at most 40 µm, including at most 15 µm, including an example of 15 µm (Brandt, Par. 0025 and 0165-0166 – see Table 2), which lies within the claimed range of between 10 µm and 40 µm
Regarding claim 8, the limitation of being formed by flat film extrusion is considered a product by process limitation. 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) (See MPEP 2113). The monoaxially oriented polyethylene film and the biaxially oriented polyethylene film structure of the prior art discloses a product which reasonably appears to be either identical or substantially identical to the claimed product-by-process monoaxially oriented polyethylene film and the biaxially oriented polyethylene film structure subjected to the process steps of flat film extrusion, and therefore absent any objective evidence showing to the contrary, the addition of the process limitations of claim 8 does not provide a patentable distinction over the prior art.
Regarding claim 14, modified Brandt teaches that the monoaxially oriented polyethylene film and the biaxially oriented polyethylene film are joined by a polyethylene adhesive (B) (Brandt, Abstract, Par. 0114). Modified Brandt’s layer (B) satisfies the limitation of a polyethylene adhesive as it is a polyethylene layer that is printed on wherein the print comprises an adhesive which improvs adhesion between the layers (Brandt, Abstract, Par. 0032-0033, 0037, and 0094-0097).
Regarding claims 17 and 19, modified Brandt teaches the adhesive comprises a binder that is polyurethane and therefore teaches a layer of the adhesive comprises polyurethane, satisfying the claimed limitation of being a polyurethane adhesive layer (Brandt, Par. 0093-0095).
Regarding claims 18 and 20, modified Brandt teaches that the monoaxially oriented polyethylene film and the biaxially oriented polyethylene film are joined by a polyethylene (Brandt, Abstract, Par. 0114). Regarding the limitation of the polyethylene being extrusion laminated, this is a product-by-process limitation. 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) (See MPEP 2113). The film structure of the prior art discloses a product which reasonably appears to be either identical or substantially identical to the claimed product-by-process film structure subjected to the process steps of extrusion lamination, and therefore absent any objective evidence showing to the contrary, the addition of the process limitations of claims 18 and 20 do not provide a patentable distinction over the prior art.
Claims 2 and 15-16 are rejected under 35 U.S.C. 103 as being unpatentable over Brandt et al. in view of Koesters.
The following rejections are given as an alternative to the rejections under 35 U.S.C. 103 in view of Brandt above.
Regarding claim 2, Brandt teaches a recyclable plastic packaging formed from a plastic film composite based on polyethylene with a first surface and a second surface wherein the first surface forms an outer side of the plastic packaging, and the second surface forms an inner side of the plastic packaging facing a packaging interior (Brandt, Abstract, Par. 0025-0027, 0036, 0044, 0055, 0064, 0071, 0075-0078, and 0109). Brandt teaches that the recyclable plastic packaging comprising a sealing layer at a second surface that is formed from a biaxially oriented coextruded multilayer polyethylene film (Layers A and S) and a monoaxially oriented polyethylene film (C) forming the first surface (Brandt, Par. 0056, 0075-0078, 0090-0092, and 0114-0117). Brandt teaches that the monoaxially oriented polyethylene film has a thickness of from 15 to 50 µm (Brandt, Par. 0115). Brandt teaches that the multilayer biaxially oriented polyethylene film has a thickness of from 5-100 µm. (Brandt, Par. 0026, 0064, 0067, 0090-0092, and 0162). This results in embodiments wherein the monoaxially oriented polyethylene film has a greater thickness than the biaxially oriented polyethylene film, and results in a thickness ratio between the monoaxially oriented polyethylene film and the biaxially oriented polyethylene film of 10:1 to 1:2, which overlaps the claimed range of at least 3:2 and therefore establishes a prima facie case of obviousness over the claimed range, see MPEP 2144.05, I. Brandt teaches that the monoaxially oriented polyethylene film and the biaxially oriented polyethylene film are joined by a polyethylene adhesive (B) (Brandt, Abstract, Par. 0109, 0114, 0135-0137) – Brandt’s layer (B) satisfies the limitation of a polyethylene adhesive as it is a polyethylene layer that is printed on wherein the print comprises an adhesive, including a primer, which improves adhesion between the layers (Brandt, Abstract, Par. 0032-0033, 0037, 0094-0097, 0109, and 0135-0137). Brandt teaches that the plastic film composite can comprise only the layers (S), (A), (B), and (C), and that these layers all comprise polyethylene and do not require any additional additives (Brandt, Par. 0056, 0075-0078, 0090-0092, and 0114-0117). Therefore, Brandt teaches all of the films forming the plastic composite film comprise 100 wt.% polyethylene, which satisfies the claimed range, see MPEP 2131.03. Brandt teaches the sealing layer comprises LDPE with a density of from 0.86 to 0.93 g/cm3 (Brandt, Par. 0075-0078 and 0090-0092), which overlaps the claimed range of between 0.886 to 0.915 g/cm3, and therefore establishes a prima facie case of obviousness over the claimed range, see MPEP 2144.05, I.
Alternatively, if the print in the region (D) of layer (B) is considered one of the films of the invention, Brandt teaches that the plastic film composite can comprise only the layers (A), (B), and (C), and that these layers all comprise polyethylene and do not require any additional additives except for the printed region (D) on the layer (B) (Brandt, Par. 0056, 0075-0078, 0090-0092, and 0114-0117). Brandt teaches the printed region (D) covers less than 50% of the surface of the film (Brandt, Par. 0040). Therefore, Brandt teaches the layers (A) and (C) comprise 100 wt.% polyethylene, and the layer (B) comprises at least greater than 50% polyethylene, and therefore, Brandt renders obvious the limitation of the films forming the plastic composite film comprising at least 80 wt.% polyethylene, see MPEP 2144.05, I.
In view of the specific embodiment of Brandt set forth/cited immediately above, (it can be said that) Brandt does not disclose with sufficient specificity that the oriented PE film (C) is monoaxially oriented.
Koesters teaches a packaging comprising a composite film based on polyethylene, wherein the composite film comprises an outer film that is a monoaxially oriented polyethylene film (Koesters, Par. 0001, 0013, and 0017).
Brandt and Koesters are analogous art as they both teach packaging comprising a composite film based on polyethylene comprising an outer film that is oriented polyethylene. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have used the teachings of Koesters and monoaxially orient the oriented polyethylene film (C) of Brandt. This would allow for improved gloss, transparency, and appearance (Koesters, Par. 0017).
Regarding claim 15, modified Brandt teaches the monoaxially oriented polyethylene film has a thickness of from 15 to 50 µm (Brandt, Par. 0115), which lies within the claimed range of between 10 µm and 70 µm and therefore satisfies the claimed range, see MPEP 2131.03
Regarding claim 16, modified Brandt teaches that the multilayer biaxially oriented polyethylene film has a thickness of from 5-100 µm. (Brandt, Par. 0026, 0064, 0067, 0090-0092, and 0162), which overlaps the claimed range of between 10 µm and 40 µm, and therefore establishes a prima facie case of obviousness over the claimed range, see MPEP 2144.05, I.
Claims 1-2, 4-5, 8, and 15-16 are rejected under 35 U.S.C. 103 as being unpatentable over Zborowski et al. in view of Brandt et al.
Regarding claim 1, Zborowski teaches a recyclable plastic packaging formed from a plastic film composite with a first surface and a second wherein the first surface of the plastic film composite forms an outer side of the plastic packaging, and the second surface of the plastic film composite forms an inner side of the plastic packaging facing a packaging interior (Zborowski, Abstract, Par. 0010, 0017, and 0054). Zborowski teaches that the plastic film composite comprises a polyethylene film comprising a sealing layer (Second layer) that forms the second surface and may be oriented and thus teaches an unoriented polyethylene sealing film forming the sealing layer (Zborowski, Abstract, Par. 0002, 0018, and 0023-0025). Zborowski teaches that the plastic film composite comprises a monoaxially oriented polyethylene film (first layer) that forms the first surface (Zborowski, Abstract, Par. 0011 and 0018-0019). Zborowski teaches that the monoaxially oriented polyethylene film has a thickness of about 10 µm to about 50 µm (Zborowski, Par. 0022). Zborowski teaches the sealing layer has a thickness of 0.5 to 5 mils (12.7-127 µm) (Zborowski, Par. 0030), which encompasses the claimed range of between 25 µm and 90 µm, and therefore establishes a prima facie case of obviousness over the claimed range, see MPEP 2144.05, I. Zborowski teaches that the monoaxially oriented polyethylene film and the sealing film comprise polyethylene and does not state that any further additives or other layers are required (Zborowski, Abstract, Par. 0018-0019 and 0023-025). Therefore, Zborowski teaches wherein all of the films of the plastic film composite comprise 100% polyethylene, which lies within the claimed range of at least 80 wt.% polyethylene and therefore satisfies the claimed range, see MPEP 2131.03. Further, as the plastic composite film comprises polyethylene it satisfies the limitation of being based on polyethylene. Zborowski teaches that the films forming the plastic film composite are joined by adhesive (Zborowski, Abstract, Par. 0035).
Zborowski is silent regarding a biaxially oriented polyethylene film arranged between the monoaxially oriented polyethylene film and the sealing film. Zborowski is further silent regarding the monoaxially oriented polyethylene film having a greater thickness than the biaxially oriented polyethylene film, wherein a thickness ratio between the monoaxially oriented polyethylene film and the biaxially oriented polyethylene film amounts to at least 3:2.
Brandt teaches a flexible plastic packaging comprising a polyethylene sealing film (S), a monoaxially oriented film (C), and a biaxially oriented polyethylene film (A) arranged between the sealing film and the monoaxially oriented film (Brandt, Par. 0056, 0075-0078, 0090-0092, and 0114-0117). Brandt teaches the biaxially oriented polyethylene film has a thickness of at most 40 µm, including at most 15 µm (Brandt, Par. 0026 and 0064). Brandt does not state that any additives are required of the biaxially oriented polyethylene film and thus teaches the biaxially oriented polyethylene film comprises 100 wt.% polyethylene, which satisfies the claimed range of at least 80 wt.%, see MPEP 2131.03.
Zborowski and Brandt are analogous art as they both teach flexible packaging comprising a polyethylene sealing film and a monoaxially oriented film. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have included the biaxially oriented film of Brandt in the flexible packaging of Zborowski, arranged between the monoaxially oriented film and the sealing film. This would allow for excellent sensory properties with regard to retention of odor and taste of the packaged product (Brandt, Par. 0024-0025). This further results in a thickness ratio between the monoaxially oriented film to the biaxially oriented film of at least 10:15 (2:3), which overlaps the claimed range of at least 3:2 and therefore establishes a prima facie case of obviousness over the claimed range, see MPEP 2144.05, I. This further result in embodiments wherein the monoaxially oriented film has a greater thickness than the biaxially oriented film.
Regarding claim 2, Zborowski teaches a recyclable plastic packaging formed from a plastic film composite with a first surface and a second wherein the first surface of the plastic film composite forms an outer side of the plastic packaging, and the second surface of the plastic film composite forms an inner side of the plastic packaging facing a packaging interior (Zborowski, Abstract, Par. 0010, 0017, and 0054). Zborowski teaches that the plastic film composite comprises a biaxially oriented polyethylene film comprising a sealing layer that forms the second surface (Zborowski, Abstract, Par. 0002, 0018, and 0023-0025). Zborowski teaches that the plastic film composite comprises a monoaxially oriented polyethylene film (first layer) that forms the first surface (Zborowski, Abstract, Par. 0011 and 0018-0019). Zborowski teaches that the monoaxially oriented polyethylene film has a thickness of about 10 µm to about 50 µm (Zborowski, Par. 0022). Zborowski teaches the biaxially oriented film has a thickness of 0.5 to 5 mils (12.7-127 µm) (Zborowski, Par. 0030). Zborowski teaches that the monoaxially oriented polyethylene film and the sealing film comprise polyethylene and does not state that any further additives or other layers are required (Zborowski, Abstract, Par. 0018-0019 and 0023-025). Therefore, Zborowski teaches wherein all of the films of the plastic film composite comprise 100% polyethylene, which lies within the claimed range of at least 80 wt.% polyethylene and therefore satisfies the claimed range, see MPEP 2131.03. Further, as the plastic composite film comprises polyethylene it satisfies the limitation of being based on polyethylene. Zborowski teaches that the films forming the plastic film composite are joined by adhesive (Zborowski, Abstract, Par. 0035). Zborowski teaches the sealing layer comprises a density of 0.880 to 0.915 g.cm3 (Zborowski, Par. 0016 and 0024-0025), which overlaps the claimed range of between 0.886 to 0.915 g/cm3 and therefore establishes a prima facie case of obviousness over the claimed range, see MPEP 2144.05, I.
Zborowski is silent regarding the biaxially oriented polyethylene film being a coextruded multilayer polyethylene film. Zborowski is further silent regarding the monoaxially oriented polyethylene film having a greater thickness than the biaxially oriented polyethylene film, wherein a thickness ratio between the monoaxially oriented polyethylene film and the biaxially oriented polyethylene film amounts to at least 3:2.
Brandt teaches a flexible plastic packaging comprising a monoaxially oriented film (C), and biaxially oriented multilayer coextruded polyethylene film (layers A and S) (Brandt, Par. 0056, 0075-0078, 0090-0092, and 0114-0117). Brandt teaches the layer A has a thickness of at most 40 µm, including at most 15 µm (Brandt, Par. 0026 and 0064). Brandt does not state that any additives are required of the biaxially oriented polyethylene film and thus teaches the biaxially oriented polyethylene film comprises 100 wt.% polyethylene, which satisfies the claimed range of at least 80 wt.%, see MPEP 2131.03. Brandt teaches the layer A is formed of LLDPE with a density of from 0.86 to 0.93 g/cm3 (Brandt, Par. 0075-0078 and 0090-0092), which overlaps the claimed range of between 0.886 to 0.915 g/cm3, and therefore establishes a prima facie case of obviousness over the claimed range, see MPEP 2144.05, I.
Zborowski and Brandt are analogous art as they both teach flexible packaging comprising a biaxially oriented polyethylene sealing film and a monoaxially oriented film. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have included the layer A of Brandt in the biaxially oriented polyethylene film of Zborowski. This would allow for excellent sensory properties with regard to retention of odor and taste of the packaged product (Brandt, Par. 0024-0025). This further results in a thickness ratio between the monoaxially oriented film to the biaxially oriented film of 10:142 to 50:12.7 (0.14:2 to 7.87:2), which overlaps the claimed range of at least 3:2 and therefore establishes a prima facie case of obviousness over the claimed range, see MPEP 2144.05, I. This further result in embodiments wherein the monoaxially oriented film has a greater thickness than the biaxially oriented film.
Regarding claim 4, Zborowski teaches that the monoaxially oriented polyethylene film has a thickness of about 10 µm to about 50 µm, including from about 20 µm to about 30 µm (Zborowski, Par. 0022), which lies within the claimed range of from 10 µm to 70 µm and therefore satisfies the claimed range, see MPEP 2131.03.
Regarding claim 5, Zborowski teaches the biaxially oriented polyethylene film has a thickness of at most 40 µm, including at least 15 µm (Brandt, Par. 0026 and 0064), resulting in an overall thickness of 12.7 to 142 µm, which overlaps the claimed range of between 10 µm and 40 µm and therefore establishes a prima facie case of obviousness over the claimed range, see MPEP 2144.05, I.
Regarding claim 8, Zborowski teaches that either the biaxially oriented polyethylene film or the monoaxially oriented polyethylene film may comprise an adhesive which can be extruded (Zborowski, Abstract, Par. 0035). Therefore, Zborowski teaches that either the biaxially oriented polyethylene film or the monoaxially oriented polyethylene film are produced by flat film extrusion.
Further, the limitation of being formed by flat film extrusion is considered a product by process limitation. 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) (See MPEP 2113). The monoaxially oriented polyethylene film and the biaxially oriented polyethylene film structure of the prior art discloses a product which reasonably appears to be either identical or only slightly different than the claimed product-by-process monoaxially oriented polyethylene film and the biaxially oriented polyethylene film structure subjected to the process steps of flat film extrusion, and therefore absent any objective evidence showing to the contrary, the addition of the process limitations of claim 8 does not provide a patentable distinction over the prior art.
Regarding claim 15, Zborowski teaches that the monoaxially oriented polyethylene film has a thickness of about 10 µm to about 50 µm, including from about 20 µm to about 30 µm (Zborowski, Par. 0022), which lies within the claimed range of from 10 µm to 70 µm and therefore satisfies the claimed range, see MPEP 2131.03.
Regarding claim 16, Zborowski teaches the biaxially oriented polyethylene film has a thickness of from 0.5 mils to 5.0 mils (12.7 to 127 µm) plus a layer that is at most 15 µm (Zborowski, Par. 0030; Brandt, Par. 0026 and 0064), resulting in an overall thickness of 12.7 to 142 µm, which overlaps the claimed range of between 10 µm and 40 µm and therefore establishes a prima facie case of obviousness over the claimed range, see MPEP 2144.05, I.
Response to Arguments
Applicant’s remarks and amendments filed 02 December 2025 have been fully considered.
On pages 7 and 9 of the remarks, Applicant argues that Brandt does not require a lamination adhesive. This is not found persuasive for the following reason:
Brandt teaches printed region (D) that is printed on the layer (B) at the interface of layers (A) and (B) (Brandt, Abstract, Par. 0032-0033, 0037, 0094-0097, and 0114). Brandt teaches that the printed region (D) comprises an adhesive that improves adhesion between the layers (Brandt, Par. 0093-0097). Brandt further teaches the adhesive may comprise a primer in the region (D) that promotes adhesion (Brandt, Par. 0103). A primer in Brandt satisfies the broadest reasonable interpretation of the claimed adhesive. Therefore, Brandt specifically teaches joining the films by an adhesive (the printed region (D)). While Brandt may discuss disadvantages of including an adhesive, this does not teach away from the specific teachings in the broad disclosure of Brandt that include a printed region (D) comprising an adhesive that improves adhesion. Therefore, Applicant’s argument is unpersuasive.
Secondly, on page 7 of the remarks, Applicant argues that Brandt focuses on VICAT temperature, which is irrelevant to the context of the present invention. This is not found persuasive for the following reason:
The instant claims do not claim a specific VICAT temperature. Brandt’s teaching of a specific VICAT temperature thus does not teach away from any aspect of the present disclosure. Applicant has merely made a conclusory statement regarding a teaching of Brandt and has not described why this teaching results in Brandt not rendering obvious the claimed invention. Therefore, Applicant’s argument is unpersuasive.
Thirdly, on page 7 of the remarks, Applicant argues that Brandt’s examples are not relevant to the instant claims. This is not found persuasive for the following reason:
The broad disclosure of Brandt teaches the instant claim 1 as stated in the grounds of rejection above. Regarding the examples of Brandt, Disclosed examples and preferred embodiments do not constitute a teaching away from a broader disclosure or nonpreferred embodiments. In re Susi, 440 F.2d 442, 169 USPQ 423 (CCPA 1971), see MPEP 2123, II. Therefore, Brandt teaches the instant claim 1 and Applicant’s argument is unpersuasive.
Fourthly, on pages 7-9 of the remarks, Applicant argues that one of ordinary skill in the art would not choose the specific polyethylene, layer thickness, and orientation of the layers from the list of Brandt. This is not found persuasive for the following reasons:
Brandt teaches a multilayer film comprising a layer arrangement of a sealing layer (S), a film (A), and a film (C) as stated above for claim 1 (Brandt, Par. 0056, 0075-0078, 0090-0092, and 0114-0117). Brandt teaches the sealing layer may comprises polyethylene, and does not state that it is oriented and thus teaches an unoriented sealing layer comprising polyethylene (Brandt, Par. 0090-0092). Brandt teaches the film (A) comprises polyethylene and is biaxially oriented (Brandt, Par. 0025, 0064, and 0075-0078). Brandt teaches the film (C) comprises polyethylene and is monoaxially oriented (Brandt, Par. 0025, 0064, and 0114-0117). While Brandt teaches other possible materials and orientation for the layers, it is the examiner’s position that the amount of choices is not so vast as to not be obvious to one of ordinary skill in the art. To note, A genus does not always anticipate a claim to a species within the genus. However, when the species is clearly named, the species claim is anticipated no matter how many other species are additionally named. See Ex parte A, 17 USPQ2d 1716 (Bd. Pat. App. & Inter. 1990), see MPEP 2131.02.
Furthermore, alternative grounds of rejection have been made above wherein the Koesters and Zborowski render obvious the orientation of the sealing layer and the monoaxially oriented film.
Regarding the thicknesses, Brandt teaches that the monoaxially oriented polyethylene film has a thickness of from 15 to 50 µm (Brandt, Par. 0115). Brandt teaches that the biaxially oriented polyethylene film has a thickness of at most 40 µm, including at most 15 µm (Brandt, Par. 0026 and 0064). This results in the monoaxially oriented polyethylene film having a greater thickness than the biaxially oriented polyethylene film, and results in a thickness ratio between the monoaxially oriented polyethylene film and the biaxially oriented polyethylene film of at least 1:1 (2:2), which overlaps the claimed range of at least 3:2 and therefore establishes a prima facie case of obviousness over the claimed range, see MPEP 2144.05, I. Further, Brandt provides examples (See example 1 of the table between Par. 0165-0166) where the layer (C) has a thickness of 30 µm and the layer (A) has a thickness of 15 µm, resulting in a thickness ratio of 2:1 (4:2) (Brandt, Par. 0165-0166), which lies within the claimed range, see MPEP 2131.03. While Brandt does not state that the examples use polyethylene, Brandt teaches that the layer (C) can be monoaxially oriented polyethylene and the layer (A) can be biaxially oriented polyethylene as stated above. Therefore, it would have been obvious to one of ordinary skill in the art to use this thickness ratio when using biaxially oriented polyethylene as the layer (A) and monoaxially oriented polyethylene as the layer (C). Brandt further teaches a layer order of S/A/B and that the combined thickness of the layer A and all layers on the side of A facing away from layer B is from 5-100 µm. (Brandt, Par. 0026, 0064, 0067, 0090-0092, 0134, and 0162). This results in a sealing layer (s) thickness of 5-85 µm, which overlaps the claimed range of between 25 µm and 90 µm and therefore establishes a prima facie case of obviousness over the claimed range, see MPEP 2144.05, I.
For the reasons stated above Brandt renders obvious the claimed polyethylene material, layer thicknesses, and orientation of the layers and Applicant’s argument is unpersuasive.
Fifthly, on page 8 of the remarks, Applicant argues that Brandt does not teach the entire composite has a purity of 80% PE. This is not found persuasive for the following reason:
As stated above, Brandt teaches that the plastic film composite can comprise only the layers (S), (A), (B), and (C), and that these layers all comprise polyethylene and do not require any additional additives (Brandt, Par. 0056, 0075-0078, 0090-0092, 0114-0117, and 0134). Therefore, Brandt teaches all of the films forming the plastic composite film comprise 100 wt.% polyethylene, which lies within the claimed range of at least 80% and therefore satisfies the claimed range, see MPEP 2131.03. While Brandt teaches other possible embodiments, this does not teach away from the broad disclosure of Brandt that teaches a film comprising only layers of polyethylene. Therefore, Brandt satisfies the claimed PE content limitation and Applicant’s argument is unpersuasive.
Sixthly, on pages 9-10 of the remarks, Applicant argues that the binder of Brandt is not an adhesive. This is not found persuasive for the following reason:
Brandt teaches that the monoaxially oriented polyethylene film and the biaxially oriented polyethylene film are joined by a polyethylene adhesive (B) (Brandt, Abstract, Par. 0109, 0114, 0135-0137). Brandt’s layer (B) satisfies the limitation of a polyethylene adhesive as it is a polyethylene layer that is printed on wherein the print comprises an adhesive, including a primer and a binder, which improves adhesion between the layers (Brandt, Abstract, Par. 0032-0033, 0037, 0094-0097, 0109, and 0135-0137). A layer, such as the layer (B) of Brandt, which comprises polyethylene (or a polyurethane binder – see Brandt, Par. 0095) and improves adhesion, satisfies the claimed limitation of a polyethylene or polyurethane adhesive. Therefore, Brandt teaches the claimed adhesive and Applicant’s argument is unpersuasive.
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 THOMAS J KESSLER JR whose telephone number is (571)272-3075. The examiner can normally be reached 7:30-5:30 M-Th.
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/THOMAS J KESSLER/Examiner, Art Unit 1782