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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 10/8/2025, has been entered.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 19 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. Specifically, claim 19 broadens the scope of the film thickness “the film has a thickness of from 20 to 50 μm” whereas claim 12 recites a narrower “thickness of about 30 μm”. For the purpose of further examination, it is taken to mean in claim 12 that “the film has a thickness of from 20 to 50 μm”.
Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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.
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.
Claims 6-11, 21-22, 31 are rejected under 35 U.S.C. 103 as being unpatentable over Li (CN106674701, herein Li, a machine translation is being used for citation purpose), in the view of Herbst (US20090269379, herein Herbst).
Regarding claims 6, 21-22, 31, Li teaches the antibacterial film composition [0057] consisting of: linear low-density polyethylene (LLDPE) [0059] as component (A); the antibacterial agent is nano silver [0036] reads on component (C); fully vulcanized powdered rubber [0038], which is used as lubricant [0039] reads on component (E), co-used with inorganic antibacterial agent nano silver [0038], Li teaches the content of the antibacterial agent is 0.1-2 parts by weight relative to 100 parts by weight of the polyethylene composition [0022], and powder rubber to an inorganic antibacterial agent ratio is 1:0.1-10 [0038], therefore, the fully vulcanized powdered rubber [0038] range is 0.01% to 20%, which encompasses the range of component (E).
Li does not teach the specific components B, D and the specific ranges of the components B, C, D. However, Herbst teaches a polymer composition with antimicrobial activity [0029] including: antibacterial agent (b): zinc pyrithione [0018] as component B; antimicrobial component (a) [0015] including: silver salt [0016]; colloidal silver [0023] as component C; zeolite [0016] as component D. Herbst teaches the ranges of Components a) and b) are preferably used in a ratio ranging from 0.5:20 to 20:0.5; The total amount of components a) and b) preferably is in the range from 0.01% to 10% [0024-25], therefore, the range of zinc pyrithione is0.5/(20+0.5)x0.01% = 0.000244% = 2.44 ppm to 20/(20+0.5)x10%=9.75%=9750 ppm, encompasses the claimed range; and the silver salt; zeolite ranges are 0.5/(20+0.5)x0.01% = 0.000244% = 2.44 ppm to 20/(20+0.5)x10%=9.75%=9750 ppm, encompasses the claimed range. Li and Herbst are considered to be analogous to the claimed invention because they are in the same field of endeavor, that of the polyethylene based antimicrobial composite formation. Therefore, it would have been obvious to someone of ordinary skill in the art before the effective filing date of the claimed invention to have modified the composition of Li and add the polymer composition with antimicrobial activity [0029] including: antibacterial agent (b): zinc pyrithione [0018] as component B; antimicrobial component (a) [0015] including: silver salt [0016]; colloidal silver [0023] as component C; zeolite [0016] as component D, and the ranges of Components a) and b) are preferably used in a ratio ranging from 0.5:20 to 20:0.5; The total amount of components a) and b) preferably is in the range from 0.01% to 10% [0024-25] into the composition formation, and further selected percentages from the components B and C and yield optimized mass ratio of components B and C as claimed, into the claimed mass ratio range, because doing so would further lead to the desired property of exhibit good long-term activity and a good toxicological profile [0026].
Li and Herbst collectively teach the composition above, is capable of form the film with the thickness of the claimed range, which is the selection of a known material based on its suitability for its intended use supported a prima facie obviousness determination in Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) [MPEP 2144.07]
In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976). See MPEP § 2144.05.
The Office realizes that all of the claimed effects or physical properties are not positively stated by the reference(s). However, Li and Herbst teach all of the claimed ingredients, in the claimed amounts, and Li further teaches the thickness of the film can be 10-200 μm [0043], as the composition being made by a substantially similar process. The original specification does not provide any disclosure on how to obtain the claimed properties outside the components of the composition itself. Therefore, the claimed effects and physical properties, i.e., transparency, would necessarily arise from a composition with all the claimed ingredients and the amounts. "Products of identical chemical composition can not have mutually exclusive properties." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. If it is the applicant’s position that this would not be the case: (1) evidence would need to be provided to support the applicant’s position; and (2) it would be the Office’s position that the application contains inadequate disclosure that there is no teaching enabling a person of ordinary skill in the art to obtain the claimed properties with only the claimed ingredients, absent undue experimentation.
Regarding claim 7, Li and Herbst collectively teach the polymer composition as set forth in claim 6 above. Li is silent on the masterbatch preparation, however, Herbst teaches Components a) and b) which inclue zinc pyrithione, silver salt, zeolite added to the plastic material in the form of a masterbatch (“concentrate”) which contains these components in a concentration of about 1 to 80% by weight of the loaded carrier [0049], which overlap the ranges of zinc pyrithione, silver salt, zeolite; further indicates the carrier resin such as LDPE, HDPE [0050], in the range of 20 to 99%, overlaps the claimed range. Li and Herbst are considered to be analogous to the claimed invention because they are in the same field of endeavor, that of the polyethylene based antimicrobial composite formation. Therefore, it would have been obvious to someone of ordinary skill in the art before the effective filing date of the claimed invention to have modified the composition of Li and add the Components a) and b) which include zinc pyrithione, silver salt, zeolite added to the plastic material in the form of a masterbatch (“concentrate”) which contains these components in a concentration of about 1 to 80% by weight of the loaded carrier [0049]; the carrier resin such as LDPE, HDPE [0050], in the range of 20 to 99%, and further selected percentages from zinc pyrithione and silver and yield optimized mass ratio of zinc pyrithione, silver ion as claimed, into the claimed mass ratio range, into the composition formation, because doing so would further lead to the desired property of exhibit good long-term activity and a good toxicological profile [0026].
In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976). See MPEP § 2144.05.
Regarding claims 8-11, Li and Herbst collectively teach all of the claimed ingredients, in the claimed amounts of the components (A), (B), (C), (D) and (E) as set forth in claims 6 and the Components a) and b) which include zinc pyrithione, silver salt, zeolite added to the plastic material in the form of a masterbatch (“concentrate”) [0049] as taught by Herbst in claim 7 above. Li further teaches add the mixed material to the feeder of a twin screw. During the processing, the temperature of the screw is maintained between 180-240°C [0078], as co-extrusion, which is higher than the LDPE (melting temp.105°C and 115°C) and LLDPE (melting temp.112-124°C) read on step (i) and (ii). Li further teaches the antibacterial composition added to a multi-layer extrusion casting machine [0094], which reads on the step (iii) cast film extrusion.
Claims 12, 15, 19, 32 are rejected under 35 U.S.C. 103 as being unpatentable over Li (CN106674701, herein Li, a machine translation is being used for citation purpose), in the view of Herbst (US20090269379, herein Herbst).
Regarding claims 12, 19, 32, Li teaches the antibacterial film composition [0057] as packaging bags for protect packaged food and meat [0004-5], consisting of: linear low-density polyethylene (LLDPE) [0059] as component (A); the antibacterial agent is nano silver [0036] reads on component (C); fully vulcanized powdered rubber [0038], which is used as lubricant [0039] reads on component (E), co-used with inorganic antibacterial agent nano silver [0038], Li teaches the content of the antibacterial agent is 0.1-2 parts by weight relative to 100 parts by weight of the polyethylene composition [0022], and powder rubber to an inorganic antibacterial agent ratio is 1:0.1-10 [0038], therefore, the fully vulcanized powdered rubber [0038] range is 0.01% to 20%, which encompasses the range of component (E). Li teaches the thickness of the film can be 10-200 μm [0043] overlaps the claimed range.
Li does not teach the specific components B, D and the specific ranges of the components B, C, D, however, Herbst teaches a polymer composition with antimicrobial activity [0029] including: antibacterial agent (b): zinc pyrithione [0018] as component B; antimicrobial component (a) [0015] including: silver salt [0016]; colloidal silver [0023] as component C; zeolite [0016] as component D. Herbst teaches the ranges of Components a) and b) are preferably used in a ratio ranging from 0.5:20 to 20:0.5; The total amount of components a) and b) preferably is in the range from 0.01% to 10% [0024-25], therefore, the range of zinc pyrithione is 0.5/(20+0.5)x0.01% =0.000244% =2.44 ppm to 20/(20+0.5)x10%=9.75%=9750 ppm, encompasses the claimed range; and the silver salt; zeolite ranges are 0.5/(20+0.5)x0.01%=0.000244%=2.44 ppm to 20/(20+0.5)x10%=9.75%=9750 ppm, encompasses the claimed range. Li and Herbst are considered to be analogous to the claimed invention because they are in the same field of endeavor, that of the polyethylene based antimicrobial composite formation. Therefore, it would have been obvious to someone of ordinary skill in the art before the effective filing date of the claimed invention to have modified the composition of Li and add the polymer composition with antimicrobial activity [0029] including: antibacterial agent (b): zinc pyrithione [0018] as component B; antimicrobial component (a) [0015] including: silver salt [0016]; colloidal silver [0023] as component C; zeolite [0016] as component D, and the ranges of Components a) and b) are preferably used in a ratio ranging from 0.5:20 to 20:0.5; The total amount of components a) and b) preferably is in the range from 0.01% to 10% [0024-25], and further selected percentages from the components B and C and yield optimized mass ratio of components B and C, into the claimed mass ratio range, and apply into the composition formation, because doing so would further lead to the desired property of exhibit good long-term activity and a good toxicological profile [0026].
In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976). See MPEP § 2144.05.
The Office realizes that all of the claimed effects or physical properties are not positively stated by the reference(s). However, Li and Herbst teach all of the claimed ingredients, in the claimed amounts, and Li further teaches the thickness of the film can be 10-200 μm [0043], as the composition being made by a substantially similar process. The original specification does not provide any disclosure on how to obtain the claimed properties outside the components of the composition itself. Therefore, the claimed effects and physical properties, i.e., transparency, shelf-life, would necessarily arise from a composition with all the claimed ingredients and the amounts. "Products of identical chemical composition can not have mutually exclusive properties." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. If it is the applicant’s position that this would not be the case: (1) evidence would need to be provided to support the applicant’s position; and (2) it would be the Office’s position that the application contains inadequate disclosure that there is no teaching enabling a person of ordinary skill in the art to obtain the claimed properties with only the claimed ingredients, absent undue experimentation.
Regarding claim 15, Li and Herbst teach food packaging film as set forth in claim 12 above, Li further teaches the inhibit the growth of harmful bacteria on the film surface, prevent the spread of bacteria, and protect packaged food and meat to a certain extent, thus extending their shelf life [0005] collectively reads on the foodstuff is a baked good and increasing shelf-life includes preventing or slowing mildewing.
Claims 23, 27 are rejected under 35 U.S.C. 103 as being unpatentable over Li (CN106674701, herein Li, a machine translation is being used for citation purpose), in the view of Herbst (US20090269379, herein Herbst), as applied to claim 6 above, in the view of Song (US20180065105, herein Song).
Regarding claims 23, 27, Li and Herbst teach the polymer composition as set forth in claim 6 above, Li is silent on wherein the zeolite (component D) is a hydrophobic particulate zeolite having a mean average particle size in the range of 5 to 10 μm. However, Song teaches a hydrophobic [0048] particulate zeolite “Zeolite 4A”, “Zeolite 13X” size 3.5 × 103 nm = 3.5 μm [P12; table 2] as the specified zeolite (component D), which lies in the claimed range. Li and Song are both considered to be analogous to the claimed invention because they are in the same field of endeavor, that of zeolite and thermoplastic resin composite providing a good combination of packaging/storage applications. Therefore, it would have been obvious to someone of ordinary skill in the art before the effective filing date of the claimed invention to have modified Li to add the zeolite (component D) is a hydrophobic particulate zeolite having particle size 3.5 μm [P12; table 2]. Doing so would further achieve the predictable results of antimicrobial property enabled by the selection of the physical and chemical properties of zeolite as multifunctional filler.
Claim 25 is rejected under 35 U.S.C. 103 as being unpatentable over Li (CN106674701, herein Li, a machine translation is being used for citation purpose), in the view of Herbst (US20090269379, herein Herbst), as applied to claim 6 above, in the view of Hausmann (WO2016094281, herein Hausmann)
Regarding claim 25, Li and Herbst teach the polymer composition as set forth above in claim 6, Li teaches linear low-density polyethylene (LLDPE) [0059] as component (A), but is silent on wherein the thermoplastic polymer matrix (component A) consists of low density polyethylene (LDPE) and linear low density polyethylene (LLDPE) in a ratio in the range of 20:80 to 80:20. However, Hausmann teaches a “blend comprising LLDPE and LDPE” [P18; L7], “blend comprising 70 to 95 weight % of LLDPE and 5 to 30 weight% of LDPE” [P18; L7] overlaps the claimed range. Li and Hausmann are both considered to be analogous to the claimed invention because they are in the same field of endeavor, that of polyethylene, metal salt based thermoplastic resin composite providing packaging materials application. Therefore, it would have been obvious to someone of ordinary skill in the art before the effective filing date of the claimed invention to have modified Li to substitute the “blend comprising LLDPE and LDPE” [P18; L7], “blend comprising 70 to 95 weight % of LLDPE and 5 to 30 weight% of LDPE” [P18; L7] into the composition. Doing so would further achieve the desired property as of “The mechanical properties and ease of processing of the stretch film composition render stretch wrapping films applicable for covering, containing or enclosing articles or objects during transport and storage to provide protection and unitizing.” [P18; L36]
In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976). See MPEP § 2144.05.
Claims 28-30 are rejected under 35 U.S.C. 103 as being unpatentable over Li (CN106674701, herein Li, a machine translation is being used for citation purpose), in the view of Herbst (US20090269379, herein Herbst).
Regarding claims 28-29, Li teaches the antibacterial film composition [0057] consisting of: linear low-density polyethylene (LLDPE) [0059] as component (A); the antibacterial agent is nano silver [0036] reads on component (C); fully vulcanized powdered rubber [0038], which is used as lubricant [0039] reads on component (E), co-used with inorganic antibacterial agent nano silver [0038], Li teaches the content of the antibacterial agent is 0.1-2 parts by weight relative to 100 parts by weight of the polyethylene composition [0022], and powder rubber to an inorganic antibacterial agent ratio is 1:0.1-10 [0038], therefore, the fully vulcanized powdered rubber [0038] range is 0.01% to 20%, which encompasses the range of component (E). Li teaches the thickness of the film can be 10-200 μm [0043] overlaps the claimed range.
Li does not teach the specific components B, D and the specific ranges of the components B, C, D, however, Herbst teaches a polymer composition with antimicrobial activity [0029] including: antibacterial agent (b): zinc pyrithione [0018] as component B; antimicrobial component (a) [0015] including: silver salt [0016]; colloidal silver [0023] as component C; zeolite [0016] as component D. Herbst teaches the ranges of Components a) and b) are preferably used in a ratio ranging from 0.5:20 to 20:0.5; The total amount of components a) and b) preferably is in the range from 0.01% to 10% [0024-25], therefore, the range of zinc pyrithione is 0.5/(20+0.5)x0.01%=0.000244%=2.44 ppm to 20/(20+0.5)x10%=9.75%=9750 ppm, encompasses the claimed range; and the silver salt; zeolite ranges are 0.5/(20+0.5)x0.01%=0.000244%=2.44 ppm to 20/(20+0.5)x10%=9.75%=9750 ppm, encompasses the claimed range. Li and Herbst are considered to be analogous to the claimed invention because they are in the same field of endeavor, that of the polyethylene based antimicrobial composite formation. Therefore, it would have been obvious to someone of ordinary skill in the art before the effective filing date of the claimed invention to have modified the composition of Li and add the polymer composition with antimicrobial activity [0029] including: antibacterial agent (b): zinc pyrithione [0018] as component B; antimicrobial component (a) [0015] including: silver salt [0016]; colloidal silver [0023] as component C; zeolite [0016] as component D, and the ranges of Components a) and b) are preferably used in a ratio ranging from 0.5:20 to 20:0.5; The total amount of components a) and b) preferably is in the range from 0.01% to 10% [0024-25] into the composition formation, and further selected percentages from the zinc pyrithione and silver and yield optimized mass ratio of zinc pyrithione and silver as claimed, into the claimed mass ratio range, because doing so would further lead to the desired property of exhibit good long-term activity and a good toxicological profile [0026].
In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976). See MPEP § 2144.05.
The Office realizes that all of the claimed effects or physical properties are not positively stated by the reference(s). However, Li and Herbst teach all of the claimed ingredients, in the claimed amounts, and Li further teaches the thickness of the film can be 10-200 μm [0043], as the composition being made by a substantially similar process. The original specification does not provide any disclosure on how to obtain the claimed properties outside the components of the composition itself. Therefore, the claimed effects and physical properties, i.e., transparency, would necessarily arise from a composition with all the claimed ingredients and the amounts. "Products of identical chemical composition can not have mutually exclusive properties." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. If it is the applicant’s position that this would not be the case: (1) evidence would need to be provided to support the applicant’s position; and (2) it would be the Office’s position that the application contains inadequate disclosure that there is no teaching enabling a person of ordinary skill in the art to obtain the claimed properties with only the claimed ingredients, absent undue experimentation.
Regarding claim 30, Li teaches the antibacterial film composition [0057] consisting of: linear low-density polyethylene (LLDPE) [0059] as thermoplastic polymer; the antibacterial agent is selected as nano silver [0036] as antimicrobial component, Li does not explicitly teach the zeolite, however, Herbst teaches a polymer composition with antimicrobial activity [0029] including: zeolite [0016]. Li and Herbst are considered to be analogous to the claimed invention because they are in the same field of endeavor, that of the polyethylene based antimicrobial composite formation. Therefore, it would have been obvious to someone of ordinary skill in the art before the effective filing date of the claimed invention to have modified the composition of Li and add polymer composition with antimicrobial activity [0029] including: zeolite [0016], into the claimed mass ratio range, because doing so would further lead to the desired property of exhibit good long-term activity and a good toxicological profile [0026].
Response to Arguments
Applicant’s arguments, filed 10/8/2025, with respect to the rejection(s) of claim(s) 1 under 35 USC § 103 have been fully considered and are persuasive. Therefore, the rejection has been withdrawn. However, upon further consideration, a new ground(s) of rejection is made in view of Li (CN106674701, herein Li, a machine translation is being used for citation purpose), and Herbst (US20090269379, herein Herbst).
In this case, the newly added references Li and Herbst collectively teach the composition as set forth above in the new rejection.
In response to the “unexpectedly superior shelf-life of foodstuff”, is not persuasive.
When Examples E1 and E2, and Comparative Examples C1, C2, C3 are considered as a whole, they establish results associated with the ranges, respect to the claimed ranges provided for comparison. Claim 6 is open to 200 to 3000 ppm, related to the polymer composition, of a zeolite (component D). However, Examples E1 and E2 only has the single value of 0.3% by weight of ZEOflair 100. Hence, The Examples E1 and E2 are therefore insufficient to establish non-obviousness.
Whether unexpected results are the result of unexpectedly improved results or a property not taught by the prior art, the objective evidence of nonobviousness must be commensurate in scope with the claims which the evidence is offered to support. In other words, the showing of unexpected results must be reviewed to see if the results occur over the entire claimed range. See MPEP 716.02(d).
Correspondence
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Zhen Liu whose telephone number is (703)756-4782. The examiner can normally be reached Monday-Friday 9:00 am - 5:00 pm.
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/Z.L./
Examiner, Art Unit 1767
/MARK EASHOO/Supervisory Patent Examiner, Art Unit 1767