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 .
The amendments filed 2/20/2026 have been entered.
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim(s) 28-39 and 46-47 is/are rejected under 35 U.S.C. 103 as being unpatentable by US PG Pub no. 2015/0217537 (Nguyen et al., of record) in view of US PG Pub No. 2003/0035867 (Kinard et al., of record) and US PG Pub No. 2010/0190020 (Frederiksen et al. hereinafter).
In re claim 28, with reference to Figs. 1, 2, and 5, Nguyen et al. discloses: A food packaging unit from a pulp material (paragraph 0017), the packaging unit comprising a food (paragraph 0021) receiving and/or carrying compartment (108); and a biodegradable laminated multi-layer (107) coupled to the food receiving and/or carrying compartment, wherein the multi-layer comprises: an inner cover layer (formed by composites 110, 150, or 180, see Figs. 2 and 5) comprising an amount of a biodegradable aliphatic polyester (198); a first intermediate layer of a biodegradable material for connecting and/or sealing adjacent layers (196); a functional layer comprising a vinyl polymer (192, “NatureFlex” disclosed as a vinyl polymer in paragraph 0026); a second intermediate layer of a biodegradable material for connecting and/or sealing adjacent layers (199, via ink similar to element 168); and an outer cover layer comprising an amount of a biodegradable aliphatic polyester (190), wherein the food packaging unit is a compostable food packaging unit (paragraph 0017).
It has been held that recitation with respect to the manner in which claimed apparatus is intended to be employed (for food) does not differentiate the claimed apparatus from a prior art apparatus satisfying the claimed structural limitations. See MPEP 2114, II.
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Nguyen fails to disclose wherein the vinyl polymer is a vinyl alcohol polymer such as an amorphous vinyl alcohol polymer and/or butandiol vinyl alcohol co-polymer (BVOH)
However, Kinard et al. discloses a vinylidene chloride and pulp tray, which is alternatively formed with vinyl alcohol (Paragraph 0027).
It would have been obvious to one having ordinary skill in the art at the time the invention was made to have formed the vinyl polymer barrier of Nguyen et al. as another known gas barrier material such as vinyl alcohol polymer, since it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. MPEP 2144.07. Please note that in the instant application, page 15, lines 32-36, applicant has not disclosed any criticality for the claimed limitations.
Nguyen et al. fails to disclose wherein the inner cover and outer cover layers are formed of biodegradable aliphatic polyester.
However, Nguyen et al. however discloses utilization of a film (196 for example) formed of a polybutylene succinate (PBS) (see Nguyen et al. paragraphs 0027-0028).
It would have been obvious to one having ordinary skill in the art at the time the invention was made to have formed inner and outer cover layers of Nguyen et al. from a known film material such as PBS, since it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. MPEP 2144.07. Please note that in the instant application, page 2, lines 19-22, applicant has not disclosed any criticality for the claimed limitations.
Nguyen et al. in view of Kinard et al. fails to disclose wherein the pulp material is fluff pulp material.
However, Frederiksen et al. discloses a three-dimensional packaging (paragraph 0025) formed from fluff pulp material (paragraphs 0024-0025) which is biodegradable (“natural fibres” paragraph 0024) which provides many advantages over a wet pulp method including “Since the water content is substantially lower for the members in the dry process, the drying requires only a fraction of the energy” (paragraph 0020).
Therefore, it would have been obvious to one having ordinary skill in the art at the time the invention was made to have utilized a particular known type of biodegradable pulp material as the biodegradable pulp material of Nguyen et al. in view of Kinard et al. as taught by Frederiksen et al., since it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. MPEP 2144.07. Please note that in the instant application, page 4, lines 3-30, applicant has not disclosed any criticality for the claimed limitations (i.e. for the “moulded” vs. “fluff” component of the pulp material, and repeatedly presents the materials as both satisfying the requirements of the claimed invention heretofore).
In re claim 29, with reference to the Figs. noted above, Nguyen et al. in view of Kinard et al. and Frederiksen et al. discloses the claimed invention including wherein the laminated multi-layer is a co-extruded laminated multi-layer (extrusion, paragraph 0027).
In accordance to MPEP 2113, the method of forming the device is not germane to the issue of patentability of the device itself. Therefore, this limitation has not been given patentable weight. Please note that 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, i.e the food packaging unit, does not depend on its method of production, i.e. coextrusion. In re Thorpe, 227 USPQ 964, 966 (Federal Circuit 1985).
In re claim 30, with reference to the Figs. noted above, Nguyen et al. in view of Kinard et al. and Frederiksen et al. discloses the claimed invention including wherein the laminated multi-layer is melted or fused with the compartment (Ngyuen et al. paragraph 0026, e.g. heat sealable), and wherein the packaging unit comprises a layer of biodegradable aliphatic polyester (i.e. layer 198) on a food contact surface to improve melting or fusing of the laminated multi-layer thereon (at the inner cover 198, as in re claim 28 above).
In re claim 31, with reference to the Figs. noted above, Nguyen et al. in view of Kinard et al. and Frederiksen et al. discloses the claimed invention including wherein the laminated multi-layer is melted in a fluff pulp material matrix (paragraphs 0017-18, as in re claim 28 above).
In re claim 32, with reference to the Figs. noted above, Nguyen et al. in view of Kinard et al. and Frederiksen et al. discloses the claimed invention including wherein a biodegradable top seal film for covering the food receiving or carrying compartment (See Fig. 2 above), wherein the packaging unit comprises a circumferential edge comprising a connecting surface for the top seal film that is substantially free of the laminated multi-layer, wherein the top seal film comprising a biodegradable aliphatic polyester (as in re claim 28 above).
In re claim 35, with reference to the Figs. noted above, Nguyen et al. in view of Kinard et al. and Frederiksen et al. discloses the claimed invention including wherein the biodegradable aliphatic polyester comprises an amount of one or more of PBS (Nguyen et al. paragraphs 0027-28), PHB, PHA, PCL, PLA, PGA, PHBH and PHBV.
In re claim 36, with reference to the Figs. noted above, Nguyen et al. in view of Kinard et al. and Frederiksen et al. discloses the claimed invention including wherein the laminated multi-layer comprises a colouring agent (ink, Nguyen et al. paragraph 0028) that is biodegradable and more preferably compostable.
In re claim 37, with reference to the Figs. noted above, Nguyen et al. in view of Kinard et al. and Frederiksen et al. discloses the claimed invention including wherein the unit is biodegradable (paragraph 0017) at a temperature in the range of 5 to 60 °C.
Please note that the claims are directed to apparatus which must be distinguished from the prior art in term of structure rather function [MPEP 2144]. Hence, the functional limitations “wherein the unit is biodegradable at a temperature in the range of 5 to 60 °C” which are narrative in form have not been given any patentable weight. In order to be given patentable weight, a functional recitation must be supported by recitation in the claim of sufficient structure to warrant the presence of the functional language. In re Schreiber, 128 F.3d 1473, 1477-78, 44 USPQ2d 1429, 1431-32 (Fed. Cir. 1997)
In re claim 38, with reference to the Figs. noted above, Nguyen et al. in view of Kinard et al. and Frederiksen et al. discloses the claimed invention including wherein the biodegradable aliphatic polyester is bio-based (paragraph 0027).
In re claim 39, with reference to the Figs. noted above, Nguyen et al. in view of Kinard et al. and Frederiksen et al. discloses the claimed invention including wherein an amount of natural and/or alternative fibers (i.e. via NKME in element 194, see paragraph 0028).
In re claim 33, with reference to the Figs. noted above, Nguyen et al. in view of Kinard et al. and Frederiksen et al. discloses the claimed invention including wherein the total thickness of the laminated multi-layer is in the range of 20-150 µm (paragraph 0020).
Nguyen et al. in view of Kinard et al. and Frederiksen et al. fails to disclose wherein the thickness of the individual layers is within the range of 5-50 µm, preferably in the range of 5-30 µm.
It would have been obvious to one of ordinary skill in the art at the time of the invention to have modified the layer thickness based on the required strength of the final container vs. material cost, since it has been held that the Federal Circuit held that, where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device (MPEP 2144.04 IV, A).
In re claim 34, with reference to the Figs. noted above, Nguyen et al. in view of Kinard et al. and Frederiksen et al. discloses the claimed invention except wherein the amount of biodegradable aliphatic polyester in the food packaging unit is in the range of 0.5-20 wt.%, more preferably in the range of 1-15 wt.%, wherein the amount of biodegradable aliphatic polyester in the food packaging unit is even more preferably in the range of 2- 10 wt.%, even further more preferably in the range of 5-9 wt.%, and most preferably in the range of 6.5-8 wt.%.
However, it would have been obvious to one having ordinary skill in the art at the time the invention was made to have modified the desirable range of biodegradable material to balance desired strength with compostability since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233. Please note that in the instant application, page 9, applicant has not disclosed any criticality for the claimed limitations.
In re claim 46, with reference to the Figs. noted above, Nguyen et al. in view of Kinard et al. and Frederiksen et al. discloses: A food packaging unit, the packaging unit comprising a food receiving and/or carrying compartment; and a biodegradable laminated multi-layer coupled to the food receiving and/or carrying compartment, wherein the multi-layer comprises: an inner cover layer comprising an amount of a biodegradable aliphatic polyester; a first intermediate layer of a biodegradable material for connecting and/or sealing adjacent layers; a functional layer comprising a vinyl alcohol polymer; a second intermediate layer of a biodegradable material for connecting and/or sealing adjacent layers; and an outer cover layer comprising an amount of a biodegradable aliphatic polyester, wherein the food packaging unit is a compostable food packaging unit (i.e formed from biodegradable fluff pulp material as in re claim 28 above), wherein the food packaging unit comprises a bottom part and a plurality of side walls from a fluff pulp material, wherein the vinyl alcohol polymer comprises an amorphous vinyl alcohol polymer (as in re claim 28 above), and wherein the total thickness of the laminated multi layer is in the range of 20-150 pm (as in re claim 33 above), wherein the amount of biodegradable aliphatic polyester in the food packaging unit is in the range of 5-9 wt.% (as in re claim 34 above).
In re claim 47, with reference to the Figs. noted above, Nguyen et al. in view of Kinard et al. and Frederiksen et al. discloses the claimed invention including wherein the biodegradable aliphatic polyester comprises an amount of one or more of PBS, PHB, PHA, PCL, PLA, PGA, PHBH and PHBV (as in re claim 35 above).
Response to Arguments
Applicant’s arguments with respect to the pending claim(s) have been considered but are moot because the new ground of rejection necessitated by the amendment.
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 ANDREW T KIRSCH whose telephone number is (571)270-5723. The examiner can normally be reached Mon-Fri, 9a-5p EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nathan Jenness can be reached at 571-270-5055. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ANDREW T KIRSCH/Primary Examiner, Art Unit 3733
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