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 .
The amendment filed 5/21/2026 has been entered. Claims 5, 7, 10, 20-23 and 26 have been canceled. New claims 27-28 have been added. Claims 1-4, 6, 8-9, 11-19, 24-25, and 27-28 are pending in the application. The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Specification
The disclosure is objected to because of the following informalities: in Table 2 (on pages 39-40 of the specification as originally filed) for Ex. 2, layer 2 is recited as containing 70% LLDPE3 and 25% glass microparticles, for a total of only 95% not 100% of the layer, and given that there is no further description with respect to the missing 5% of layer 2 of Ex. 2 elsewhere in the specification, clarification is required. It is also noted that in describing Ex. 2 on page 41 (of the specification as originally filed), at lines 7-10, the recitation in parentheses on line 10 recites “Ex. 1” but should probably read “Ex. 2”.
Appropriate correction is required.
Claim Rejections - 35 USC § 112
Claims 1-4, 6, 8-9, 11-19, 24-25, and 27-28 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. Claims 1, 15, and 19 have been amended to recite, “a thermoplastic heat-sealable layer (A) compositionally distinct from the thermoplastic multilayer base layer (B),” however, the original disclosure at the time of filing fails to provide support for said limitation.
The dependent claims do not remedy the above and hence are rejected for the same reasons.
Claims 1-4, 6, 8-9, 11-19, 24-25, and 27-28 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention. Claims 1, 15, and 19 have been amended to recite, “a thermoplastic heat-sealable layer (A) compositionally distinct from the thermoplastic multilayer base layer (B),” however, given that the heat-sealable layer (A) is a single layer while the base layer (B) is multilayered, it is unclear whether the “compositionally distinct” refers to the overall composition of the multilayer base layer (B), to a specific layer of the multilayer base layer (B), or to each layer of the multilayer base layer (B) taken individually. Hence, one having ordinary skill in the art would not be reasonably apprised of the scope of the claimed invention and could not interpret the metes and bounds of the claim so as to understand how to avoid infringement, especially given that the specification as filed does not appear to support said limitation (as discussed above).
The dependent claims do not remedy the above and hence are indefinite for the same reasons.
Claim Rejections - 35 USC § 103
Claims 1-4, 6, 8-9, 11-19, 24-25, and 27-28 are rejected under 35 U.S.C. 103 as being unpatentable over Sekiguchi (US2012/0118886A1) as evidenced by Öhman (US2017/0151765A1), and in view of Yoshinaga (JP2015131658A, please refer to the machine translation for the below cited section) for generally the reasons recited in the prior office action and restated below with respect to the amended claims.
As discussed in prior office actions, Sekiguchi teaches a multilayer body comprising at least one thermoplastic layer, as well as a packaging material such as a lid, pouch, and container formed from the multilayer body, particularly for foods such as yogurt and milk products (Entire document, particularly Abstract, Paragraphs 0002-0005, 0044, 0054, 0056, 0061, 0123, 0145, 0147, 0153, 0177-0178, 0184, and Examples), wherein each of the multilayer body, packaging material, and container, provided in four different embodiments of the invention, comprises hydrophobic oxide fine particles having an average primary particle diameter of 3-100 nm coated on and adhered to at least a part of an outermost layer thereof (reading upon the claimed “inorganic coating layer (C) comprising hydrophobic oxide nanoparticles”), and can maintain excellent water repellent properties and non-adhesive properties (Abstract), with pure water contact angles for examples of all four embodiments of the invention being 150° or more (as in instant claim 14) thereby reading upon the instantly claimed “super-hydrophobic coated thermoplastic multilayer packaging film” limitation of instant claims 1, 15 and 19 (Abstract, Paragraphs 0232-0234, 0242-0243, 0246, 0267-0270, 0291-0294, Examples). Sekiguchi teaches that the four embodiments of the invention include: i) a first embodiment directed to a multilayer body and packaging material comprising the hydrophobic oxide fine particles (3) attached to the surface of a thermoplastic resin layer (2) containing particulate filler (6) that is provided on a base layer (1) wherein the particulate filler (6) included in the thermoplastic layer provides bumps and indentations on the surface of the thermoplastic resin layer (2) to which the hydrophobic oxide fine particles (3) are attached such that non-adhesive properties are maintained for a relatively long period of time (Paragraphs 0078-0080); ii) a second embodiment directed to a non-adhesive container for holding contents, such as a bag or wrapper, wherein the hydrophobic oxide fine particles are provided to part or all of at least a surface of the container that comes into contact with the contents, and the container may be formed from the multilayer body of the first invention including the thermoplastic resin layer containing particulate filler which may form 1) only a region of the container onto which the hydrophobic oxide fine particles will attach, or 2) a region including parts to which the hydrophobic oxide fine particles will not attach, or 3) the entire inner surface of the container or the like (thereby clearly teaching and/or suggesting that the thermoplastic resin layer containing particulate filler may form an interior layer given that it may form parts of the container to which the fine particles will not attach as noted in 2) above; Paragraphs 0119-0125); iii) a third embodiment directed to a packaging material consisting of a multilayer body having at least a base layer and a thermal adhesive layer as an outermost layer on one surface of the packaging material to which the hydrophobic oxide fine particles are attached wherein the base layer may be any known material such as a resin layer, and the thermal adhesive layer may be formed by coating a lacquer type thermoplastic adhesive on the base layer (Paragraphs 0145-0146 and 0148-0153); and iv) a fourth embodiment directed to a packaging material consisting of a multilayer body having at least a base layer and a thermal adhesive layer as an outermost layer on one side of the packaging material to which the hydrophobic oxide fine particles are attached, wherein an oxygen absorbent in the form of particles is contained in at least one of the base layer and the thermal adhesive layer (Paragraphs 0168 and 0186).
In looking at each of the four embodiments taught by Sekiguchi with respect to the amended claims, it is noted that in the first embodiment comprising the multilayer body and packaging material having a structure of base layer (1)/thermoplastic resin layer (2)/hydrophobic oxide fine particles (3) as shown in Fig. 1 (copied below), the particulate filler (6) present in the thermoplastic resin layer (2) to provide surface roughness (e.g., bumps and indentations as noted above) can include organic and/or inorganic particles, such as acrylic, silica, and calcium stearate particles (as in instant claim 8), having an average particle diameter of preferably 0.5 to 100 µm (e.g., “microparticles” with an average particle diameter as recited in instant claims 1, 15, and 19) and present in a content of preferably 1 to 80 wt% based on the solid weight of the thermoplastic resin layer (2) (e.g., at least 1% as in instant claims 1, 15, and 19; Paragraph 0092-0099), with the thermoplastic resin layer (2) having a thickness that is not particularly limited, but is preferably about 0.01 µm to 5 mm, more preferably about 0.01 µm to 2 mm, and when functioning as a thermal adhesive layer, preferably 1 to 150 µm (Paragraph 0084), such that given the above ranges, Sekiguchi provides a clear teaching and/or suggestion that the particulate filler can have an average particle diameter that is greater than the thickness of the thermoplastic resin layer, e.g., a layer thickness of 10 µm in combination with an average particle diameter of 12 µm, given that one having ordinary skill in the art before the effective filing date of the claimed invention would have been motivated to select from any thickness and/or any average particle diameter within the ranges taught by Sekiguchi, thereby reading upon the claimed “average particle diameter of at least 20% greater than the thickness of a layer in which the microparticles are incorporated” as recited in instant claims 1, 15, and 19, particularly in light of the working examples disclosed by Sekiguchi for the first embodiment/invention (Paragraphs 0076-0116).
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Sekiguchi teaches that the base layer (1) can be laminated as necessary on the thermoplastic resin layer (2) with the aim of reinforcing the thermoplastic resin layer (2) or conferring other properties, such as moisture permeation resistance, oxygen permeation resistance, light shielding, heat insulation, shock resistance, etc. (Paragraph 0086); and may be formed from a known material as recited in Paragraphs 0087-0088, such as a resin film, a resin film with a vapor deposited layer, an aluminum foil, and laminates thereof. Sekiguchi teaches that various layers used in known packaging materials can also be laminated at any location on the base layer (Paragraph 0088), and that the method of laminating the base layer and the method of laminating the base layer and the thermoplastic resin layer are not particularly limited and may be by known methods such as dry lamination, extrusion lamination, wet lamination, heat lamination, and the like (Paragraph 0089), thereby clearly teaching and/or suggesting that the base layer (1) may be a laminated or multilayer structure as in the instantly claimed invention and given the “and the like” recitation and that co-extrusion is a known “like” method of forming laminates similar to extrusion lamination, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to coextrude the base and thermoplastic resin layers as in instant claim 15. Sekiguchi teaches working examples specifically utilizing a multilayer structure comprising an aluminum deposited polyethylene terephthalate (PET) film as an inner layer of the laminate (Examples 1-1 to 1-9) such that the deposited aluminum layer functions as “an inner gas barrier layer” as in the instantly claimed invention; and although Sekiguchi does not specifically teach that the base layer comprises an inner gas barrier layer comprising a (barrier) polymer selected from among the polymers as recited in instant claims 1, 15, and 19 (e.g., known gas barrier polymers in the art), given that Sekiguchi clearly teaches that various layers used in known packaging materials can be laminated at any location on the base layer, and that the base layer can provide moisture and/or oxygen permeation resistance, i.e., barrier properties, wherein known barrier layers in the packaging art can be inorganic barrier layers such as a vapor deposited layer, aluminum foil, or aluminum deposited layer, e.g., as in Sekiguchi, or organic barrier layers formed from known barrier polymers such as ethylene vinyl alcohol (EVOH) and polyamides as recited in instant claims 1, 15, and 19, and evidenced by Öhman (Paragraphs 0004, 0062, 0068), which specifically teaches that EVOH and polyamides are organic alternative barrier materials having gas barrier properties to inorganic barrier materials such as aluminum foil or an aluminum deposited polymer film as in Sekiguchi in laminated packaging materials (Öhman, Entire document, particularly Paragraphs 0004, 0062, and 0068), the Examiner takes the position that it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to utilize an inner organic barrier layer such as a layer of EVOH or polyamide or similar barrier polymer, as in the instantly claimed invention, in place of the inner inorganic barrier layer in the Examples taught by Sekiguchi given that it is prima facie obviousness to simply substitute one known element for another to obtain predictable results and/or prima facie obviousness to combine prior art elements according to known methods to yield predictable results.
Sekiguchi also teaches that when the thermoplastic resin layer functions as a thermal adhesive layer or heat seal layer, a known thermal adhesive material can be used, for example, in addition to known sealant films, it is possible to use a layer formed from a known lacquer type adhesive that is applied or coated on the base layer (1) to a desired thickness in the above preferred range, followed by application of the hydrophobic oxide fine particles (3) to the surface of the thermal adhesive/heat seal layer opposite the base layer (1) by applying a dispersion containing the hydrophobic oxide fine particles dispersed in a solvent such as water or an organic solvent like an alcohol (as in instant claims 15 and 18), and drying to provide a dried weight of the hydrophobic oxide fine particles (3) attached to the thermoplastic resin layer (2) of preferably 0.01 to 10 g/m2 (e.g., as in instant claims 1, 15, and 19; Paragraphs 0090, 0107-0108, and 0112-0115). Sekiguchi teaches that in forming the thermoplastic resin layer (2) from a lacquer type adhesive or heat seal lacquer, the particulate filler (6) can be added to the heat seal lacquer and then coated onto the base layer (1) to provide a desired dried weight (or thickness; Paragraph 0100), with working examples specifically utilizing acrylic resin beads having an average particle diameter of 30 µm in Examples 1-2 to 1-6, an average particle diameter of 15 µm in Examples 1-7 to 1-8, and an average particle diameter of 8 µm in Example 1-9, added to a heat seal lacquer containing a polyester resin and an acrylic resin to form a thermoplastic resin layer (2) on the PET film as the base layer (1) (thus a heat seal lacquer that is compositionally different from the base layer), having a dried weight of 3 g/m2 for Examples 1-2 to 1-9, and given that the heat seal lacquer provides a dried weight of about 3 g/m2 when no beads are added as demonstrated by Comparative Example 1-1, Sekiguchi provides a clear teaching and/or suggestion that the thickness of the 3 g/m2 heat seal lacquer as the thermoplastic layer (2) of Examples 1-1 to 1-9 (containing the 15 µm or 8 µm acrylic beads) is about 3 µm (given the density of the components thereof), such that the acrylic beads utilized in each of the inventive examples have an average particle diameter of at least 20% greater than the thickness of the heat seal lacquer as the thermoplastic resin layer (2), providing bumps and indentations on the outer surface thereof to which the hydrophobic oxide fine particles (3) are coated and adhered (Examples). Hence, the differences between the teachings and/or suggestions of the first embodiment/invention of Sekiguchi and the claimed invention are that Sekiguchi does not teach that the thermoplastic resin layer (2) comprises two layers, e.g., a first layer adjacent the base layer (1), that as noted above may be formed from various layers including a barrier layer as discussed in detail above (reading upon the instantly claimed thermoplastic multilayer base layer (B) including an inner gas barrier layer (F) as in instant claims 1, 15, and 19) and may be laminated to the thermoplastic resin layer (2) by known methods such as dry lamination, extrusion lamination, wet lamination, heat lamination, and the like (e.g., co-extrusion); and a second layer that would read upon the instantly claimed “thermoplastic heat-sealable layer (A)” with the above first layer comprising said particular filler and being part of the claimed thermoplastic multilayer base layer (B), and the second layer as the claimed “thermoplastic heat-sealable layer (A) being “compositionally distinct from the thermoplastic multilayer base layer (B)” and “directly adhered to the base layer (B)” or the above first layer as part of the claimed “base layer (B)” as instantly claimed.
However, as discussed in the prior office action, given that Sekiguchi teaches that in one embodiment, the thermoplastic resin layer (2) may be applied from a heat seal lacquer in a coating weight to obtain a heat seal layer, or thermoplastic layer (2) having a thickness of preferably 1 to 150 µm when functioning as a thermal adhesive layer, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to apply any number of coating applications or passes of the heat seal lacquer taught by Sekiguchi to provide the desired final layer thickness for the thermal adhesive or heat seal layer of Sekiguchi such that a first pass or coat (e.g., 2A as shown in the modified Fig. 1 below) may be attributed to a layer of the “thermoplastic multilayer base layer (B)” that is adjacent and directly adhered to the “thermoplastic heat-sealable layer (A)” and a second pass or final coat (e.g., 2B as shown in the modified Fig. 1 below) may read upon the claimed “thermoplastic heat-sealable layer (A)” resulting in a final layer structure as instantly claimed, similar to the modified Fig. 1 of Sekiguchi shown below, and given that the resulting 2B layer may or may not contain the acrylic beads (with the latter as shown in the modified Fig. 1) that may settle to a surface of the base layer (1) upon application of the lacquer to the base layer (1) and/or given that the base layer (1), e.g., a PET film, may be laminated with other layers like an organic barrier resin such as EVOH as discussed in detail above, Sekiguchi provides a clear teaching and/or suggestion of a “thermoplastic heat-sealable layer (A)” (e.g., 2B) that is “compositionally distinct” as in the claimed invention from the multilayer base layer and/or the resulting 2A layer (containing the beads), particularly given the lack of clarity with respect to the claimed “compositionally distinct from the thermoplastic multilayer base layer (B)” limitation as discussed in detail above.
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Further, Yoshinaga teaches a similar multilayer body as taught by Sekiguchi that can be utilized as a lid material for packaging foods, e.g., as in Sekiguchi, and that has sufficient adhesion prevention effect, even for contents with a high milk fat or oil content, as well as good heat seal properties, wherein the multilayer material includes a base material or substrate (1), such as a PET sheet or PET film having an inner vapor-deposited barrier layer (Paragraphs 0018-0019; e.g., similar to the base layer (1) of Sekiguchi); an anchor coat layer (2) that may be formed from a polyester-based, acrylic-based, or modified polyolefin-based anchor coating agent (Paragraph 0021; e.g., a thermoplastic resin and similar to the lacquer coating agent of Sekiguchi for forming the thermoplastic resin layer (2) that may be a thermal adhesive layer or heat seal layer as noted above); a heat seal layer (3) comprising a thermoplastic resin that may be selected from various polyolefins, olefin copolymers, and olefin-(meth)acrylic copolymers depending upon the material of a container to be sealed by the multilayer lid material, and that can be applied to the anchor coat layer (2) by a coating method (e.g., similar to the heat seal lacquer taught by Sekiguchi; Paragraphs 0026-0030); and an anti-adhesion layer (4) containing hydrophobic inorganic oxide particles (4a) having a diameter of 5 to 1000 nm (e.g., similar to the hydrophobic oxide particles of Sekiguchi) that provide a “minute uneven surface” that prevents adhesion of the contents (Paragraphs 0032-0034); with the anchor coat layer (2) containing “large” particles (2a), such as inorganic particles or resin particles like acrylic resin particles (e.g., as in the examples of Sekiguchi), having an average particle size of 10 to 100 µm (e.g., similar to the filler particulate taught by Sekiguchi) that provide a “larger unevenness than the fine unevenness caused by the hydrophobic fine particles 4a of the adhesion preventing layer 4” (e.g., similar to the filler particulate taught by Sekiguchi; Paragraph 0022) resulting in two types of unevenness formed in a superimposed manner on the surface of the adhesion prevention layer (e.g., nano-roughness and micro-roughness as in the instant invention) thereby enhancing the adhesion prevention property (Paragraphs 0015-0016), particularly in comparison to a similar multilayer laminate that does not include the “large particles” in the anchor coat layer as evidenced by the working examples of Yoshinaga (Entire document, particularly as noted above as well as Paragraphs 0003-0004, 0006-0007, 0014-0016, 0021-0023, 0026-0030, 0033, and Examples). Yoshinaga teaches that the compounding ratio of the anchor coating agent (2b) to the large particles (2a) should be determined so that unevenness due to the large particles (2a) is formed on the surface of the resulting anchor coat layer (2) and the large particles are securely fixed such that they do not fall off, desirably to provide a ten-point average roughness Rz of the anchor coat layer (2) of 5 µm or more (Paragraph 0024), with examples utilizing spherical acrylic particles having a particle diameter of 20 µm in an anchor coating provided in a coating weight of only 1.0 g/m2 (thus the large particles 2a in the examples of Yoshinaga have a particle diameter of at least 20% greater than the thickness of the anchor coat layer (2) as in the claimed invention with respect to the thickness of the thermoplastic mono or multilayer base layer (B) of instant claims 1, 15, and 19); and similarly the heat seal layer (3) can be provided in a small coating amount, e.g., 3 g/m2 or 6 g/m2 as in the examples, such that the formed heat seal layer (3) has surface irregularities and/or reflects the unevenness of the surface of the anchor coat layer (2) due to the large particles (2a) added to the anchor coating agent (2b), unevenness that in turn is reflected in the anti-adhesion layer (4), and upon heat sealing the multilayer material, the adhesion preventing layer (4) comprising the hydrophobic fine particles (4a) is embedded in the heat seal layer (3) (e.g., similar to the teachings of Sekiguchi; Entire document, particularly Paragraphs 0014-0015, 0032, 0041, 0046-0047, 0051-0052, and Examples).
Hence, given that Sekiguchi and Yoshinaga are of the same field of endeavor, it would have been obvious to one having ordinary skill in the art to provide the thermoplastic resin layer (2) of the first embodiment/invention taught by Sekiguchi as a two-coat or two-layer structure with the particulate filler (6) having an average particle diameter as taught by Sekiguchi in a first coat or first (sub)layer (e.g., 2A) of the lacquer or thermoplastic resin layer (2) that is applied to a base material (1) or substrate, such as a metallized PET resin film or barrier laminate as in the examples of both Sekiguchi and Yoshinaga, or a similar barrier laminate comprising an inner organic barrier layer in place of the metallized inorganic barrier layer as discussed in detail above (and evidenced by Öhman as being known functionally equivalent barrier materials in the art), in a thickness or coating weight as taught by Sekiguchi thereby reading upon and/or rendering obvious the claimed “microparticles are exclusively disposed in a layer of the base (B) directly adhered to the thermoplastic heat-sealable layer (A)” as in new claim 27 and “the microparticles are not disposed in the thermoplastic heat-sealable layer (A)” as in new claim 28, as well as “the microparticles have an average diameter of at least 20% greater than the thickness of a layer in which the microparticles are incorporated” as in the examples taught by both Sekiguchi and Yoshinaga; with a second coat or heat seal coat (e.g., 2B) applied on the first coat or thermoplastic resin layer similar to the teachings of Yoshinaga, in such a manner that the surface of the multilayer body and packaging material having the hydrophobic oxide fine particles adhered thereto as taught by Sekiguchi, which contacts the contents thereof, has a dual surface roughness in order to further improve the non-adhesive or adhesion-preventing properties of the invention taught by Sekiguchi while maintaining good heat seal properties as taught by Yoshinaga. Thus, absent any clear showing of criticality and/or unexpected results, the claimed invention as recited in instant claims 1 and 19, as well as instant claim 15 given that coextrusion is an obvious “like” method of forming a laminate structure as noted above, would have been obvious over the teachings of the first embodiment/invention of Sekiguchi, as evidenced by Öhman, and in view of Yoshinaga given that it is prima facie obviousness to use a known technique to improve similar devices in the same way and/or prima facie obviousness to combine prior art reference teachings to arrive at the claimed invention where there is some teaching, suggestion, or motivation in the prior art that would have led one of ordinary skill to modify the prior art reference.
In terms of the second embodiment/invention of Sekiguchi as discussed in detail in Paragraphs 0118-0142, Sekiguchi teaches that the container, such as a bag or wrapper, may be formed from the multilayer body of the first invention, discussed in detail above, with the hydrophobic fine particles applied in the same manner and to the same dry weight as in the first embodiment, and comprising the thermoplastic resin layer containing the particulate filler which in this embodiment, may form a region including parts to which the hydrophobic fine particles will not attach, and can be applied by coating, spraying, or the like (Paragraph 0123-0125), thereby clearly teaching and/or suggesting that the thermoplastic resin layer containing the particulate filler may form an interior layer of the multilayer body as discussed above; and given that Sekiguchi also teaches that the container body may be made of thermoplastic resin such that it can be welded together with a lid of the same kind of plastic (Paragraph 0127), it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to similarly combine the teachings of Yoshinaga with the teachings of the second embodiment/invention of Sekiguchi (as evidenced by Öhman) for essentially the same reasons as discussed above with respect to the first embodiment/invention, and hence, absent any clear showing of criticality and/or unexpected results, the claimed invention as recited in instant claims 1 and 19 as well as instant claim 15 (given again that coextrusion is an obvious “like” method of forming a laminate structure as noted above) would have been obvious over the second embodiment/invention of Sekiguchi, as evidenced by Öhman, and in view of Yoshinaga for similar reasons as discussed with respect to the first embodiment/invention of Sekiguchi.
In terms of the third embodiment/invention of Sekiguchi, which is described in more detail at Paragraphs 0145-0165, Sekiguchi teaches that the packaging material, such as a lid material, consists of a multilayer body having a base layer (1) and a thermal adhesive (or heat seal) layer (2) laminated as the outermost layer on one surface of the packaging material or multilayer body, with the hydrophobic oxide fine particles attached to the outermost surface of the thermal adhesive layer as discussed above by the same method and in the same dry weight as in the first and second embodiments; and given that the base layer (1) can be formed from a known material or laminate material, such as a resin film with a vapor deposited layer, wherein various layers used in known packaging materials, such as an anchor coat layer (e.g., as in Yoshinaga), can also be laminated at any location on these materials as in the first embodiment wherein an inner organic barrier layer such as a layer of EVOH or polyamide would have been obvious over the inner inorganic barrier layer taught by Sekiguchi or Yoshinaga as discussed in detail above, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to utilize the base material (e.g., metallized PET film or similar organic-barrier-containing composite film as discussed above) and anchor coat layer taught by Yoshinaga comprising the “large” particles in a similar content, average particle diameter, and similar coating weight/thickness as in the examples taught by Yoshinaga, as the base material and anchor coat layer in the invention taught by Sekiguchi, providing dual surface roughness to further improve the non-adhesive or adhesion-preventing properties of the invention taught by Sekiguchi, thereby rendering the claimed invention as recited in instant claims 1 and 19 as well as instant claim 15 (given again that coextrusion is an obvious “like” method of forming a laminate structure as noted above) obvious over the third embodiment/invention of Sekiguchi, as evidenced by Öhman, and in view of Yoshinaga for essentially the same reasons as discussed above with respect to the first and/or second embodiment(s)/invention(s) of Sekiguchi, given that it is prima facie obviousness to simply substitute one known element for another to obtain predictable results and/or prima facie obviousness to use a known technique to improve similar devices in the same way.
In terms of the fourth embodiment/invention of Sekiguchi, as briefly discussed above, the packaging material consists of a multilayer body having at least a base layer and a thermal adhesive layer as an outermost layer on one side of the packaging material to which the hydrophobic oxide fine particles are attached, by the same method and to a dry weight as in the other embodiments, wherein similar to the above embodiments, various other layers used in known packaging materials, such as a barrier layer, can also be laminated at any location on the base layer, which may be a laminate of known material(s) as in the above embodiments (Paragraphs 0167-0173). Sekiguchi specifically teaches that an oxygen absorbent in the form of particles is contained in at least one of the base layer and the thermal adhesive layer as described in further detail in Paragraphs 0167-0215; and given that the oxygen absorbent particles may have an average particle diameter of preferably 1 to 100 µm and can be present in only the base layer in a content of preferably 0.3 to 30 wt% or more preferably 1 to 20 wt% (Paragraphs 0188 and 0192), wherein the base layer can have a thickness that is not particularly limited but may be set appropriately within the range of normally 15 to 500 µm (Paragraph 0175), the oxygen absorbent particles may have an average particle diameter that is at least 20% greater than the thickness of the base layer or “layer in which the microparticles are incorporated” as instantly claimed given that one having ordinary skill in the art before the effective filing date of the claimed invention would have been motivated to utilize any average particle diameter for the oxygen absorbent particles and any thickness for the base layer within the above ranges taught by Sekiguchi, given that it is prima facie obviousness to choose from a finite number of identified, predictable solutions, with a reasonable expectation of success, and hence, unlike the first, second, and third embodiments above, the base layer of Sekiguchi comprising the layer including the oxygen absorbent particles disposed therein and directly adhered to the thermal adhesive layer as the claimed thermoplastic heat-sealable layer (A) reads upon the claimed layer of the base layer (B) directly adhered to the thermoplastic heat-sealable layer (A) and in which the microparticles are disposed. Further, given the teachings of Yoshinaga as discussed in detail above (and incorporated herein by reference) wherein “large” particles having a similar average particle diameter to the average particle diameter of the oxygen absorbent particles taught by Sekiguchi can be incorporated into a relatively thin resin layer adjacent to a thermal adhesive or heat seal layer to which hydrophobic oxide fine particles are coated to form an adhesion prevention layer thereon, in order to provide two types of unevenness formed in a superimposed manner on the surface of the adhesion prevention layer (e.g., dual surface roughness) to further improve the adhesion-preventing properties while maintaining good heat seal properties, such that it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to similarly provide the oxygen absorbent particles in the base layer of the invention taught by Sekiguchi in a similar manner, e.g., larger particle size to layer thickness, to provide similar dual surface roughness properties as taught by Yoshinaga, and that Sekiguchi clearly teaches and/or suggests that the base may have a multilayer structure and may include an inner barrier layer as discussed in detail above wherein one skilled in the art would have been motivated to substitute an inner organic barrier layer such as a layer of EVOH or polyamide for the inner inorganic deposited barrier layer of Sekiguchi or Yoshinaga, obvious functionally equivalent barriers as evidenced by Öhman, resulting in a thermoplastic multilayer base layer that is “compositionally distinct” from the thermal adhesive layer as the claimed “heat-sealable layer (A)”, the claimed invention as recited in instant claims 1 and 19 as well as instant claim 15 (given again that coextrusion is an obvious “like” method of forming a laminate structure as noted above) would have been obvious over the fourth embodiment/invention of Sekiguchi, as evidenced by Öhman, and in view of Yoshinaga given that it is prima facie obviousness to use a known technique to improve similar devices in the same way and/or prima facie obviousness to combine prior art reference teachings to arrive at the claimed invention where there is some teaching, suggestion, or motivation in the prior art that would have led one of ordinary skill to modify the prior art reference.
Hence, absent any clear showing of criticality and/or unexpected results, the claimed invention as recited in instant claims 1, 15, and 19 would have been obvious over any of the embodiments or teachings of Sekiguchi, as evidenced by Öhman, and in view of Yoshinaga as discussed in detail above given that it is prima facie obviousness to use a known technique to improve similar devices in the same way and/or prima facie obviousness to combine prior art elements according to known methods to yield predictable results.
With respect to instant claim 2, Sekiguchi (as evidenced by Öhman) and in view of Yoshinaga provides a clear teaching and/or suggestion of providing the particulate filler, oxygen absorbent particles, and/or “large” particles in the thermoplastic resin layer or base layer adjacent the thermal adhesive or heat seal layer such that the thermal adhesive or heat seal layer does not contain any “large” particulate filler or particles as discussed above. Hence, the claimed invention as recited in instant claim 2 would have been obvious over any of the four embodiments taught by Sekiguchi (as evidenced by Öhman) and in view of Yoshinaga for the same reasons as discussed in detail above with respect to instant claim 1.
With respect to instant claim 3, Sekiguchi teaches resins for the thermoplastic resin layer that may function as a thermal adhesive layer in the first and second embodiments, provided in a content of normally 20 to 100wt% of the layer; and for the thermal adhesive layer of the third and fourth embodiments, as the claimed “heat-sealable layer” that read upon the claimed polymers as recited in instant claim 2, particularly as evidenced by the working examples of Sekiguchi, and hence, the claimed invention as recited in instant claim 2 would have been obvious over the teachings of Sekiguchi (as evidenced by Öhman) and in view of Yoshinaga for the same reasons discussed above with respect to instant claim 1 (Paragraphs 0083, 0085, 0152, 0176, Examples).
With respect to instant claim 4, Sekiguchi teaches that the thermoplastic resin for the thermoplastic resin layer may be a known thermoplastic resin as recited in Paragraph 0083, such as polyethylene resin, acrylic resin, “or the like or a blended resin of these or a copolymer or modified resin or the like containing a mixture of their constituent monomers” (Paragraph 0083, thereby teaching and/or suggesting “a polyolefin selected from polyethylenes, ethylene butyl acrylate copolymers (EBAs) or ethylene acrylic acid copolymers (EAAs)” as in instant claim 4 given that butyl acrylate and acrylic acid are obvious species of acrylic “constituent monomers” in the art), present in a content of more preferably 50 to 99wt% (a “major proportion”); that the base layer can be any known materials used for a base layer such as a resin film or synthetic resin board that may be a laminate of known materials (Paragraph 0087, thereby clearly teaching and/or suggesting the claimed polyolefins given that they are obvious, known resin materials in the art for a base/substrate layer as evidenced by Yoshinaga, Paragraphs 0017-0018); that various other layers used in known packaging materials can also be laminated at any location of the base layer with examples thereof including “printing layers, print protection layers (known as OP layers), coloring layers, adhesive layers, adhesive reinforcing layers, primer coat layers, anchor coat layers, anti-slip layers, lubricant layers, anti-fog layers and the like” (Paragraph 0088); and that the particulate filler that may be present in a content of 1 to 80wt% may be organic particles such as polyethene resin (Paragraphs 0095-0099); while Yoshinaga similarly teaches the use of polyethylene as well as ethylene-acrylic acid copolymer for layers of the multilayer structure as well as polyethylene resin for the large particles (Entire document, particularly Paragraphs 0007, 0017-0019, 0023, and 0026-0029); and given that both Sekiguchi and Yoshinaga that additional layers of said resins can be incorporated into the multilayer structure as discussed above, the Examiner takes the position that absent any clear showing of criticality and/or unexpected results, the claimed invention as recited in amended claim 4 would have been obvious over the teachings of Sekiguchi (as evidenced by Öhman) and in view of Yoshinaga for the same reasons discussed above with respect to instant claim 1 and given that it is prima facie obviousness to combine prior art elements according to known methods to yield predictable results and/or prima facie obviousness to choose from a finite number of identified, predictable solutions, with a reasonable expectation of success.
With respect to instant claim 6, given that Sekiguchi and Yoshinaga clearly teach polyolefin and/or modified polyolefin resins as instantly claimed for said layer containing the “large” particles, the claimed invention as recited in instant claim 6 would have been obvious over the teachings of Sekiguchi (as evidenced by Öhman) and in view of Yoshinaga for the same reasons as discussed above with respect to instant claim 1 (Sekiguchi: Paragraphs 0083, 0088, 0129, 0148-0149, and 0172-0173; Yoshinaga: Paragraphs 0018-0019 with respect to known base layer or substrate materials that include polyethylene, and Paragraph 0021 for modified polyolefin resin for the anchor coat layer).
With respect to instant claim 8, Sekiguchi teaches that the particulate filler, reading upon the claimed “microparticles” given the average particle diameter thereof, for the first and second embodiments may be selected from (micro)particles as instantly claimed (Paragraphs 0092-0097) with examples utilizing acrylic particles; while Yoshinaga similarly teaching “large” particles (2a), reading upon the claimed “microparticles” given the average particle diameter thereof, made of materials as instantly claimed (Paragraph 0023) for the anchor coat layer that can be incorporated into the third embodiment of Sekiguchi as discussed in detail above, such that the claimed invention as recited in instant claim 8 would have been obvious over the teachings of Sekiguchi, at least with respect to the first through third inventions/embodiments (as evidenced by Öhman) and in view of Yoshinaga for the same reasons as discussed above with respect to instant claim 1.
With respect to instant claim 9, as discussed above, Sekiguchi teaches weight contents for the particulate filler (first and second embodiments, reading upon the claimed “microparticles” given the average particle diameter thereof) and the oxygen absorbent particles (fourth embodiment, reading upon the claimed “microparticles” given the average particle diameter thereof), with respect to the total weight of the layer into which they are incorporated, that read fall within the claimed range, and given that as noted above, Yoshinaga teaches that the compounding ratio of the anchor coating agent (2b) to the large particles (2a), as the claimed “microparticles” given the average particle diameter thereof, should be determined so that unevenness due to the large particles (2a) is formed on the surface of the resulting anchor coat layer (2) and the large particles are securely fixed such that they do not fall off, wherein it is further noted that Yoshinaga specifically teaches examples containing the “large” particles in a weight percentage falling within the claimed range (Examples), the claimed invention as recited in instant claim 9 would have been obvious over the teachings of Sekiguchi (as evidenced by Öhman) and in view of Yoshinaga for the same reasons as discussed above with respect to instant claim 1.
With respect to instant claims 11-13, Sekiguchi teaches that the hydrophobic oxide fine particles (e.g., nanoparticles) coated on and attached to the thermoplastic resin layer or thermal adhesive layer in each of the four embodiments (reading upon the claimed “inorganic coating layer (C) comprising hydrophobic oxide nanoparticles”) have an average primary particle diameter of 3 to 100 nm, or preferably 5 to 50 nm or more preferably 5 to 20 nm (Paragraphs 0102, 0131, 0154, and 0178) as in instant claim 12; may be silica, alumina, titania, or the like, but preferably silica (Paragraphs 0105-0106, 0134-0135, 0157-0158, and 0181-0182) as in instant claim 13; and provide a porous layer having a thickness of preferably about 0.1 to 5 µm as in instant claim 11 (Paragraphs 0107, 0136, 0159, and 0183) as in instant claim 11. Hence, the claimed invention as recited in instant claims 11-13 would have been obvious over the teachings of Sekiguchi (as evidenced by Öhman) and in view of Yoshinaga for the same reasons as discussed above with respect to claim 1.
With respect to instant claim 14, as noted above, Sekiguchi teaches that an outermost surface of the multilayer body, packaging material, and container formed from the hydrophobic oxide fine particles, e.g., the porous layer, can maintain excellent water repellent properties and non-adhesive properties (Abstract), with pure water contact angles for examples of all four embodiments of the invention being 150° or more (Abstract, Examples). Hence, the claimed invention as recited in instant claim 14 would have been obvious over the teachings of Sekiguchi (as evidenced by Öhman) and in view of Yoshinaga for the same reasons as discussed above with respect to claim 1.
With respect to instant claims 16-18, in addition to the discussion above with respect to instant claim 15, Sekiguchi teaches that for each of the four embodiments/inventions, the dispersed amount of the hydrophobic oxide fine particles in the solvent, such as water or an alcohol as in instant claim 18, can normally be about 10 to 100 g/L as in instant claim 16 (Paragraphs 0114, 0139, 0164, and 0214), wherein after coating and drying the dispersion, the hydrophobic oxide fine particles provide a dry grammage of 0.01 to 10 g/m2 (as in instant claim 15), and although Sekiguchi does not specifically teach a wet grammage as instantly claimed, given the above dispersed amount and dry grammage taught by Sekiguchi, the claimed wet grammage would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention. Hence, the claimed invention as recited in instant claims 16-18 would have been obvious over the teachings of Sekiguchi (as evidenced by Öhman) and in view of Yoshinaga for the same reasons as discussed above with respect to instant claim 15.
With respect to instant claim 24, it is again noted that Sekiguchi generally teaches that the packaging material may be utilized to package various food products, and although Sekiguchi clearly teaches that the food product may be sealed within the packaging material (Entire document, particularly Paragraphs 0002-0005, 0045, 0056, 0061, 0064, 0120, Examples), and also teaches that the hydrophobic oxide fine particles (nanoparticles) may be applied to the inner surface of a heat-shrink film that may be utilized as a food container lid (Paragraph 0130), Sekiguchi does not specifically teach that the packaging is vacuumized and shrunk to package fresh meat. However, given that one having ordinary skill in the art before the effective filing date of the claimed invention would have been motivated to utilize the food packaging material taught by Sekiguchi (as evidenced by Öhman) and in view of Yoshinaga to package any type of food product typically packaged or sealed within a thermoplastic packaging material including fresh meat as is typical in the art, and more particularly, including in the form of a vacuumized and shrunk package to reduce exposure to air/oxygen, a conventional packaging form for sealing fresh foods in the art, the claimed invention as recited in instant claim 24 would have been obvious over the teachings of Sekiguchi (as evidenced by Öhman) and in view of Yoshinaga for the same reasons as discussed above with respect to instant claim 19.
With respect to instant claim 25, Sekiguchi teaches that the multilayer body may utilized as a food packaging film or container (as discussed above), such as in the form of standing pouches, three-way sealed pouches, four-way sealed pouches and other pouches (Paragraphs 0061 and 0064), wherein the product sealed within the pouch or container may be a wide variety of materials including jelly, pudding, yogurt, instant curry, and other foods, in various forms including as solids, liquids or viscous materials, with non-shrink example containers specifically directed to sealed yogurt packages (Paragraphs 0001-0006 and 0056, Examples). Hence, the claimed invention as recited in instant claim 25 would have been obvious over the teachings of Sekiguchi (as evidenced by Öhman) and in view of Yoshinaga for the same reasons as discussed above with respect to instant claim 19.
With respect to new claims 27-28, as discussed in detail in paragraph 12 above, Sekiguchi (as evidenced by Öhman) and in view of Yoshinaga provide a clear teaching and/or suggestion of a layer structure reading upon and/or rendering obvious the claimed “microparticles are exclusively disposed in a layer of the base (B) directly adhered to the thermoplastic heat-sealable layer (A)” as in new claim 27 and “the microparticles are not disposed in the thermoplastic heat-sealable layer (A)” as in new claim 28, and hence, absent any clear showing of criticality and/or unexpected results, instant claims 27-28 would have been obvious over the teachings of Sekiguchi (as evidenced by Öhman) and in view of Yoshinaga.
Response to Arguments
Applicant's arguments filed 5/21/2026 have been fully considered but they are not persuasive and/or moot in view of the above new grounds of rejection and/or additional remarks above with respect to the teachings of Sekiguchi (as evidenced by Öhman) and in view of Yoshinaga as applied to the amended claims. More specifically, the Applicant first argues on pages 11-13 of the response that Applicant’s claims are allegedly non-obvious because the cited references fail to recognize the problem for which Applicant’s claimed embodiments provide an elegant and novel solution, arguing that art cited by the Office Action “clearly fails to recognize or identify the problem addressed by the Applicant, namely providing a film structure that (i) achieves super-hydrophobic surface properties for reduced product adhesion and (ii) maintains seal strength in self-sealed flexible packaging applications,” with specific reference to In re Sponnoble, 405 F. 2d 578, 585 (C.C.P.A. 1969) and Eibel Process Co. v. Minnesota & Ontario Paper Co., 261 U.S. 45, 68 (1923) in support of Applicant’s arguments (see page 11, last paragraph). The Applicant argues that although Sekiguchi teaches incorporation of particulate materials at or near the surface layer to achieve anti-adhesive properties to prevent sticking of contents, Sekiguchi “fails to recognize that such structures degrade seal strength in flexible packaging applications” and that “[a]s explicitly recognized by Applicant at paragraphs [0015]-[0019] of the instant application, this specific placement of particulates in the sealant layer leads to insufficient seal performance and thereby identifying the previously unrecognized source of failure” (see page 12, first paragraph). The Applicant also argues that the evidentiary reference to Öhman describes the problem of developing laminated packaging materials and manufacturing methods to provide improved multilayer structures, including barrier functionality and surface properties such as appearance or patterning, which “has nothing to do with proving the features of the recited claims” or stated differently, “addresses barrier functionality and surface properties, but is entirely silent as to providing a film structure that (i) achieves super-hydrophobic surface properties for reduced product adhesion and (ii) maintains seal strength in self-sealed flexible packaging applications, and therefore does not recognize, nor solve, the problem recognized by the instant application” (see page 12, second paragraph). The Applicant then argues that Yoshinaga “describes the problem of providing coatings or film structures that achieve hydrophobic surface functionality, including water repellency or anti-wetting performance on substrates”, but “does not address problems related to sealability or multilayer structural performance in packaging, for example, seal degradation, and instead focuses on structure and manufacture of its structure” and “is entirely silent as to sealing interfaces, seal strength, or structural requirements for flexible packaging films” (see paragraph bridging pages 12-13), arguing that Yoshinaga “does not recognize the tradeoff between surface roughness and seal integrity addressed by Applicant. The Applicant argues that “[i]n fact…a person of ordinary skill following the teachings of Sekiguchi and Yoshinaga would be directed toward increasing surface roughness or particulate presence at the outer layer to enhance hydrophobicity, thereby exacerbating the seal degradation problem identified by Applicant” and that “[t]hus, Yoshinaga has nothing to do with proving a specific film structure to possess a super-hydrophobic surface for low adherence to packaged product and improved seal strength when self-sealed for use in flexible packaging applications” (see paragraph bridging pages 12-13). The Applicant further argues that prior super-hydrophobic packaging films, particularly those with particulate in the sealant layer, as in each of the Sekiguchi embodiments, allegedly exhibit insufficient seal strength and poor suitability for flexible packaging despite having desirable anti-adhesion properties, and that “the Applicant resolves recognized problems with solutions directed to mechanical/structural packaging for low adherence and seal strength integrity in flexible films,” arguing that without recognizing the problems or the source of the problems, the cited prior art references, individually and collectively, allegedly “fail to teach or suggest the Applicant’s elegant solutions” (see page 13, first and second full paragraphs). However, the Examiner respectfully disagrees and notes that Sekiguchi clearly teaches that the multilayer packaging material is a heat-sealable packaging material comprising a heat-seal layer and that the layer of hydrophobic oxide fine particles is such that the packaging material can maintain excellent water repellency (hydrophobic) properties, with working examples specifically having a water contact angle of greater than 150°, and thus “super-hydrophobic” properties, and given that the claimed invention does not require any particular seal performance or particular seal strength, and that the Applicant provides no clear showing or evidence that the teachings of Sekiguchi provides insufficient seal strength and poor suitability for flexible packaging, Applicant’s arguments in Section I on pages 11-13 are not persuasive. Further, the fact that the inventor has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious. See Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985).
In Section II on pages 13-14 of the response, the Applicant argues that the Office Action allegedly fails to consider the claims as a whole, referring to MPEP § 2141.02(I) (including case law cited therein) with respect to whether the claimed invention as a whole would have been obvious, and not just whether the differences between the prior art and the claims would have been obvious (see paragraph bridging pages 13-14). The Applicant argues that “[t]herefore, an obviousness inquiry must be directed to all claim features taken as a whole and considered against the cited art, not in a vacuum, but rather in its entirety, and taking into consideration the differences between the problem addressed by the cited art, described above, and the problems solved by the instant claims (e.g., providing a film structure that (i) achieves super-hydrophobic surface properties for reduced product adhesion and (ii) maintains seal strength in self-sealed flexible packaging applications),” arguing that “without recognizing the problems to which Applicant’s claims are addressed, or the source of the problems, combining references in an [alleged] improper hindsight attempt to select elements in [alleged] piecemeal-fashion fails in this instance for many reasons, including showing that elements are [allegedly] missing; when, where, and why such selected elements would be combined; and non-sequitur piecemealing of elements leads to awkward combinations without any supporting evidence as to why or how a combination would operate or even be functional” (see paragraph bridging pages 13-14). The Applicant then argues that “[s]ince the Office Action [allegedly] fails to consider Applicant’s claims as a whole, at least for this further reason, the Applicant respectfully submits that Applicant’s pending Claims 1, 15, and 19 are not obvious over Sekiguchi, and Ohman, or any combination including Yoshinaga” (see last 4 lines of the paragraph bridging pages 13-14). However, the Examiner respectfully disagrees and notes that contrary to Applicant’s arguments, the Office Action did consider Applicant’s claimed invention taken as a whole, especially given that the prior reference to Sekiguchi clearly provides a packaging material comprising heat seal properties as well as “super-hydrophobic” properties, and although the claims are interpreted in light of the specification, 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.) Hence, given again that the claimed invention does not require any particular seal strength properties and that the Applicant provides no clear showing of criticality and/or unexpected results with respect to the claimed invention over the teachings of Sekiguchi as the primary reference, Applicant’s arguments in Section II are not persuasive.
In Section III on pages 14-16, the Applicant argues that the Office Action relies on impermissible hindsight, and more specifically argues that “modifying Sekiguchi to artificially partition a single coating into multiple ‘layers’ based solely on multiple coating passes allegedly “lacks evidentiary support and constitutes impermissible hindsight reconstruction” (see paragraph bridging pages 14-15 through the first paragraph of page 15). The Applicant argues that there is “no teaching or suggestion in Sekiguchi that successive coating passes create discrete layers having (i) identifiable structural boundaries, (ii) compositional differences, or (iii) distinct functional roles,” arguing that “[r]ather, Sekiguchi describes the application of a coating to achieve a desired thickness, not the formation of multiple structurally and functionally distinct layers” and that the “Office Action improperly equates thickness build-up from repeated coating applications with the claimed multilayer architecture” (see second full paragraph of page 15). The Applicant argues that “[t]his conflation is [allegedly] unsupported by the prior art and reflects a reconstruction of Applicant’s claimed structure using Applicant’s disclosure as a template,” arguing that the “Office Action’s reasoning does not satisfy the requirement for a ‘convincing line of reasoning’ under MPEP § 2142” (see third full paragraph of page 15). The Applicant then argues that “the claims require a film structure comprising distinct layers with different functional roles (e.g., a base layer and a heat-sealable layer), not merely a single homogeneous coating of increased thickness” and that the “Office Action [allegedly] fails to show how or why a person of ordinary skill would have modified Sekiguchi to arrive at such a structure,” arguing that “the rejection relies on hindsight to partition a single layer into multiple claimed elements after the fact” and is “a classic example of impermissible hindsight reconstruction, where the claimed invention is used as a blueprint for modifying the prior art” (see paragraph bridging pages 15-16). However, the Examiner respectfully disagrees and first notes that the claims do not require “discrete layers having (i) identifiable structural boundaries, (ii) compositional differences, or (iii) distinct functional roles” as argued by the Applicant, and although the claims have been amended to recite that the thermoplastic heat-sealable layer (A) is “compositionally distinct from the thermoplastic multilayer base layer (B),” given that the base layer (B) is formed from multiple layers including an inner gas barrier layer (F), wherein Sekiguchi also teaches that other layers may be included and laminated with the base layer to provide desired functionality in each of the four embodiments, such that even in the case of the first, second, and third embodiments as presented in the rejection, e.g., where a heat seal layer as taught by Sekiguchi is formed from a single lacquer composition that is built up in multiple passes or sublayers to provide a desired total thickness, the final pass or sublayer (2B) would be compositionally distinct from the remaining multilayered structure or “multilayer base layer (B)” as discussed in detail above, thereby reading upon the added limitation, especially in light of the lack of clarity thereof. The Examiner also notes that Applicant’s arguments with respect to the rejection relying “on hindsight to partition a single layer into multiple claimed elements after the fact” are only applicable to the first, second, and third embodiments, not the fourth embodiment given that as discussed in detail above, Sekiguchi clearly teaches a layer as part of the base layer that includes oxygen absorbent particles disposed therein and given that the Applicant does not address the fourth embodiment which, as discussed above, does not require “partition a single layer into multiple claimed elements” as argued by the Applicant, even if assuming in arguendo that Applicant’s arguments with respect to said partitioning were persuasive (which the Examiner does not), the arguments would be insufficient in overcoming the rejection of at least claims 1, 15, and 19 based upon the fourth embodiment of Sekiguchi. In response to Applicant's argument that the Examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971). In the instant case, the Examiner is relying upon information that is specifically disclosed by Sekiguchi and knowledge which was within the level of ordinary skill at the time the claimed invention was made, as evidenced by the rejection itself, and given that the Applicant is relying upon features that are not recited in the claims, and that the Applicant provides no clear showing of criticality and/or unexpected results with respect to the claimed invention over the teachings of Sekiguchi as the primary reference, Applicant’s arguments in Section III are not persuasive.
In looking at Applicant’s specification and examples in determining whether the results provide any showing of criticality and/or unexpected results over the teachings of the cited prior art references, particularly Sekiguchi, and/or support for the alleged problem to be solved by the claimed invention in comparison to a layer structure similar to that of Sekiguchi as argued by the Applicant, it is noted that the examples are not commensurate in scope with the instant claims such that even if the examples provided a showing of alleged unexpected results, said results could not be utilized to overcome an obviousness rejection because one skilled in the art could not reasonably extend the probative value thereof to the more broadly claimed invention given that each of the inventive examples utilizes a specific super-hydrophobic coating formed from hydrophobic fumed silica particles having an average primary particle diameter of 7 nm (as described in the present specification, see the paragraph bridging pages 40-41) and that are specifically treated with hexamethyldisilazane (HMDS) (as evidenced by the attached EVONIK INDUSTRIES product information for AEROSIL® R812S), in combination with a heat-sealable layer comprising a mixture of LLDPE and LDPE in a thickness of 15 microns or 9.8 microns, adjacent a 15-micron or 14-micron thick layer, respectively, comprising LLDPE and glass microparticles having an average particle size of 30-50 µm (e.g., an average particle size greater than the combined total thickness of the two polyethylene layers), such that one having ordinary skill in the art could not reasonably expect the same “super-hydrophobic surface properties” or water contact angle of higher than 130° (as defined by the present specification at page 9, lines 9-11) while maintaining “seal strength in self-sealed flexible packaging applications” for any hydrophobic oxide nanoparticles having an average particle diameter from 3 to 100 nm, and/or any thermoplastic heat-sealable layer having any thickness, and/or any microparticles of any average particle diameter from 0.5 to 100 microns incorporated into any thermoplastic resin as a directly-adjacent base layer as recited in the instant claims.
Hence, for the above reasons, the Examiner maintains her position that absent any clear showing of criticality and/or unexpected results, the claimed invention would have been obvious over the above cited prior art.
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 MONIQUE R JACKSON whose telephone number is (571)272-1508. The examiner can normally be reached Mondays-Thursdays from 10:00AM-5:00PM.
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/MONIQUE R JACKSON/Primary Examiner, Art Unit 1787
