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 .
Response to Arguments
Applicant's arguments filed 6/22/26 have been fully considered but they are not persuasive.
Applicant argues that Examiner mischaracterizes the claimed contoured body thermoformed from an aqueous slurry comprising virgin bagasse fiber pulp as product-by-process limitations. These limitations define the structural composition of the article, producing a body with specific fiber length, dewatering characteristics, density, and porosity. Chu does not disclose an article made from virgin bagasse fiber pulp by thermoforming from an aqueous slurry, and the Examiner has not established that such an article would be identical to Chou’s article.
However, as stated in the office action, Nakamura discloses the feature of pulp molded container which is thermoformed from an aqueous slurry comprising virgin bagasse fiber pulp (thermoforming a pulp molded food packaging container from a bagasse pulp slurry, paragraphs 2, 17, and 21). Furthermore, as stated in MPEP 2113, the patentability of a product does not depend on its method of production. The specific fiber length, dewatering characteristics, density, and porosity alluded to by Applicant are not recited in the claims, and thermoforming from an aqueous slurry comprising virgin bagasse fiber pulp - in the manner broadly claimed by applicant - can produce bodies having wide ranges of properties. Limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993).
Applicant argues that Nakamura is not directed to a film-lined container; it discloses a pulp bento box designed to resist lid collapse when stacked. There is no basis in the prior art to extract Nakamura's manufacturing process and combine it with Chou's entirely different double-walled, film-lined container architecture. Applicant further argues that there is no teaching in the cited art establishing that a cellulose acetate film would predictably adhere to Nakamura's bagasse fiber container interior in the manner required to function as a liner.
However, in response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). Nakamura is relied upon merely for the principle of forming a container by thermoforming from an aqueous slurry comprising virgin bagasse fiber pulp, and Chou discloses a film liner bonded to at least one surface of its body (Chou, one or more of inner film liner 20 and outer film liner 50, paragraph 24; film liners are bonded to surfaces of the body, paragraphs 20 and 22). The test for obviousness is what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981). Furthermore, Applicant has not provided any specific evidence of record as to why a cellulose-based acetate film liner is distinct from other film liners such that it cannot be bonded to a surface of a fiber article.
Applicant argues that Bao makes no reference to using cellulose acetate as a film liner in a thermoformed pulp container, does not address the bonding process required to adhere such a film to a bagasse fiber surface, and does not address any of the functional requirements of a food packaging liner. The Examiner's rationale that the substitution of Bao’s cellulose acetate film for Nakumara’s plastic film liner is obvious, because cellulose acetate is environmentally friendly with good strength properties, is conclusory.
However, with regards to the process of bonding, and the functional requirement of a food packaging liner, these features are not recited in the rejected claim(s). Concerning the use of cellulose acetate as a film liner in a thermoformed pulp container,
one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). Bao is relied upon merely to demonstrate that cellulose-based acetate film liners are known to be suitable for contact with food (page 19), and would provide advantageous properties if substituted for the film liner of Chou. The test for obviousness is what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981). Furthermore, Applicant has not provided any specific evidence of record as to why a cellulose-based acetate film liner is distinct from other film liners in that it cannot be used in conjunction with a thermoformed pulp container.
Applicant argues that Jean-Mary’s disclosure relates to food odors escaping through thermoplastic garbage bag side walls, not as a solution to food odors from food packaging containers.
However, the problem of food odors escaping from a thermoplastic package is pertinent, and very similar, to the problem of food odors escaping from any food packaging container. Regardless, one of ordinary skill in the art need not see the identical problem addressed in a prior art reference to be motivated to apply its teachings. See MPEP 2144-IV. Here, one of ordinary skill in the art at the time the invention was filed would be reasonably motivated to utilize the film thickness of Jean Mary for the film of Chou in view of Bao and Nakamura since such a film thickness, in combination with a barrier layer (Jean Mary, odor control barrier layer 206, column 14, lines 39-60 and Figure 2B), is effective at control of food odors (Jean Mary, column 10, lines 51-57). Chou in view of Bao and Nakamura discloses that their fiber article is used for storage of food (Chou, paragraph 5).
Election/Restrictions
Claims 16-26 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected method, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on 2/4/22.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 1-6, 8-9, and 11-12 are rejected under 35 U.S.C. 103 as being unpatentable over Chou (U.S. 2016/0236822) in view of Bao (Congyu Bao. Cellulose acetate / plasticizer systems: structure, morphology and dynamics. Polymers. Université
Claude Bernard-Lyon I, 2015), and further in view of Nakamura (JP2001355199A; see
attached machine translation from the EPO), hereinafter referred to as Chou, Bao, and Nakamura, respectively.
As to claim 1, Chou discloses a lined molded fiber article (molded, film coated, multi-surface pulp container 70, paragraph 20 and Figure 4B), comprising a contoured body, wherein the body includes one or more surfaces, and wherein the body includes perforations (holes 31, Figure 4B); and a film liner (one or more of inner film liner 20 and outer film liner 50, paragraph 24) bonded (film liners are bonded to surfaces of the body, paragraphs 20 and 22) to at least one of the one or more surfaces of the body.
Chou discloses their fiber article can be a food tray, bowl, packaging box, or lunch box (paragraph 24). Chou discloses the film liner(s) can be made from Polyethylene (PE), Polyethylene Terephthalate Glycol (PETG), or Polylactic Acid (PLA), including other applicable materials as well (paragraph 24), and therefore does not explicitly disclose a cellulose-based acetate film liner.
However, Bao discloses that cellulose-based acetate film liners are known to be suitable for contact with food (page 19). It would have been obvious to one having ordinary skill in the art at the time the invention was filed to substitute a cellulose-based acetate film liner for the film liner(s) of Chou since cellulose based acetate film liners are environmentally friendly with good strength properties, as disclosed in Bao (page 19). Furthermore, such a substitution would have involved substituting one suitable film liner for another to obtain predictable results.
Chou discloses their article is pulp molded, but does not specify the type of molding or disclose their article is thermoformed from an aqueous slurry comprising virgin bagasse fiber pulp.
Examiner notes that these limits are product-by-process limitations.
Nevertheless, Nakamura discloses a pulp molded container which is thermoformed from an aqueous slurry comprising virgin bagasse fiber pulp (thermoforming a pulp molded food packaging container from a bagasse pulp slurry, paragraphs 2, 17, and 21).
It would have been obvious to one having ordinary skill in the art at the time the invention was filed to look to the prior art and utilize the thermoforming of bagasse fiber pulp for the non-specified pulp molding of Chou since such a substitution is known to provide a container with improved strength and heat resistance, as disclosed in Nakamura (abstract). Furthermore, such a substitution would have involved substituting one molding process for another to obtain predictable results.
As to claim 2, Chou in view of Bao and Nakamura discloses the cellulose-based acetate film liner is impervious to at least one of oil and water (Chou, film is waterproof, paragraphs 5 and 23).
As to claim 3, Chou in view of Bao and Nakamura discloses the cellulose-based acetate film liner is a permeation barrier to at least one of water and oxygen (Chou, film is waterproof, paragraphs 5 and 23).
As to claim 4, Chou in view of Bao and Nakamura discloses the cellulose-based acetate film liner is solvent cast (Bao, page 39).
As to claim 5, Chou in view of Bao and Nakamura discloses the fiber pulp comprises 100% virgin bagasse fiber (Nakamura, raw bagasse obtained from natural or high-fiber plants, paragraph 17).
As to claim 6, Chou in view of Bao and Nakamura discloses the virgin bagasse fiber pulp is depithed (Nakamura, pulp liquid is first poured onto a wire netting, paragraph 24).
As to claim 8, Chou in view of Bao and Nakamura discloses the cellulose-based acetate film liner is cellulose di-acetate (Bao, cellulose diacetate, page 19).
As to claim 9, Chou in view of Bao and Nakamura discloses the cellulose-based acetate film liner is cellulose tri-acetate (Bao, cellulose triacetate, page 19).
As to claim 11, Chou in view of Bao and Nakamura discloses the cellulose-based acetate film liner comprises a food-contact surface (Chou, fiber article can be a food tray, bowl, packaging box, or lunch box, paragraph 24; Bao, cellulose based acetate film liners are known to be suitable for contact with food, page 19).
As to claim 12, Chou in view of Bao and Nakamura discloses a layer of amorphous polyester is disposed between the cellulose-based acetate film liner and the one or more surfaces of the body to which it is bonded (Nakamura, container surface is coated with polyester resin or the like, paragraph 32).
It would have been obvious to one having ordinary skill in the art at the time the invention was filed to incorporate an amorphous polyester barrier layer directly in contact with the surface of the body and between the surface and film liner order to fill the mesh-like shape of the wire netting generated during thermoforming of the article, thereby forming smooth surface, as disclosed in Nakamura (paragraph 33) Such a modification would provide a smoother surface upon which the cellulose-based acetate film liner could adhere.
Claims 13-15 are rejected under 35 U.S.C. 103 as being unpatentable over Nakamura (JP2001355199A; see attached machine translation from the EPO) in view of Bao (Congyu Bao. Cellulose acetate / plasticizer systems: structure, morphology and dynamics. Polymers. Université Claude Bernard- Lyon I, 2015), and further in view of Jean-Mary et al. (U.S. 10,549,888), hereinafter referred to as Nakamura, Bao, and Jean-Mary, respectively.
As to claims 13-14, Nakamura discloses a lined molded fiber article comprising: a contoured body (contoured container 1, Figure 1) including one or more surfaces, thermoformed from an aqueous slurry comprising virgin bagasse fiber pulp (thermoforming contoured container from a bagasse pulp slurry, paragraphs 2, 17, and 21; raw bagasse is obtained from natural or high-fiber plants, paragraph 17), and a film liner (bonding a plastic film liner to the inner surface(s) of the container, paragraph 32) bonded to at least one of the one or more surfaces of the body.
Nakamura does not explicitly disclose a film liner is a cellulose-based acetate film liner.
However, Bao discloses that cellulose-based acetate film liners are known to be suitable for contact with food (page 19). It would have been obvious to one having ordinary skill in the art at the time the invention was filed to substitute a cellulose-based acetate film liner for the film liner(s) of Nakamura since cellulose based acetate film liners are environmentally friendly with good strength properties, as disclosed in Bao (page 19). Furthermore, such a substitution would have involved substituting one suitable film liner for another to obtain predictable results.
Nakamura in view of Bao does not explicitly disclose a barrier layer.
However, Jean Mary disclose the use of a barrier layer (odor control barrier layer 206, column 14, lines 39-60 and Figure 2B) between a film and another surface. The barrier layer is used for odor control related to food odors (column 10, lines 51-57).
It would have been obvious to one having ordinary skill in the art at the time the invention was filed to utilize the barrier layer from Jean Mary in between the body of the fiber article and film liner of Nakamura in view of Bao in order to reduce orders from food stored in the container. Nakamura in view of Bao discloses their fiber article is used for long-term storage of food (Nakamura, packaging of food, paragraph 2).
As to claim 15, Nakamura in view of Bao and Jean Mary discloses the barrier layer comprises polyethylenimine (PEI) (Jean Mary, column 11, lines 59-60).
Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over Chou (U.S. 2016/0236822) in view of Bao (Congyu Bao. Cellulose acetate / plasticizer systems: structure, morphology and dynamics. Polymers. Université Claude Bernard- Lyon I, 2015), and Nakamura (JP2001355199A; see attached machine translation from the EPO), and further in view of Jean-Mary et al. (U.S. 10,549,888) hereinafter referred to as Chou, Bao, Nakamura, and Jean-Mary, respectively.
As to claim 10, Chou in view of Bao and Nakamura disclose the article but is silent as to the film thickness and thus does not explicitly teach that the cellulose-based acetate film liner has a thickness within a range of about 1-5 mil.
However, Jean Mary discloses the use of films having a thickness of 0.1 to 10 mils (column 12, lines 32-37), which encompasses the claimed range. Such films are used in conduct with foodstuff (column 10, line 56).
It would have been obvious to one having ordinary skill in the art at the time the invention was filed to utilize the film thickness of Jean Mary for the film liner of Chou in view of Bao and Nakamura since such a film thickness, in combination with a barrier layer (Jean Mary, odor control barrier layer 206, column 14, lines 39-60 and Figure 2B), is effective at control of food odors (Jean Mary, column 10, lines 51-57). Chou in view of Bao and Nakamura discloses that their fiber article is used for storage of food (Chou, paragraph 5).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
THIS ACTION IS MADE FINAL. 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 Abbas Rashid whose telephone number is (571)270-7457. The examiner can normally be reached 9 AM to 5 PM.
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/Abbas Rashid/ Supervisory Patent Examiner, Art Unit 1748
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