DETAILED ACTION
This action is in response to the amendment filed on 3/30/2026.
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claim Interpretation
It is noted for claim interpretation the limitation “high concentration” hydrogen peroxide in claim 1, line 12 is interpreted in light of the specification (see paragraphs 0003 and 0018 and MPEP 2173.05(b)) as a concentration of the hydrogen peroxide is at least about 20%.
Claim Rejections - 35 USC § 112
Claims 1-11, 13-15, 17-19, and 25 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.
Amended claim 1 is directed to “A method for providing a film lidding structure” including following “laminating a cast polypropylene layer to the foil layer using adhesive to form a lidding structure”, i.e. following providing the film lidding structure, “heat sealing the cast polypropylene layer to a rim of a container to form a lidded container; sterilizing the lidded container using high concentration hydrogen peroxide at elevated temperature; and drying the lidded container using hot sterile air” so that the preamble “A method for providing a film lidding structure” is unclear and confusing as a lidded container is provided. It is suggested to delete “A method for providing a film lidding structure” and insert therein - - A method for providing a lidded container - - to overcome this rejection. This is the interpretation given the limitation for purposes of examination.
Claim 4 recites the limitation “the at least one base layer” in line 1. There is insufficient antecedent basis for this limitation in the claim.
Claim 13 recites the limitation “the at least one base layer” in line 1. There is insufficient antecedent basis for this limitation in the claim.
Claim 13 recites the limitation “the rim of the container” in line 2. There is insufficient antecedent basis for this limitation in the claim.
Claim 13 recites the limitation “the at least one base layer is adhered to the rim of the container”. The limitation is unclear and confusing as amended claim 12 is directed to “A method for producing a film lidding structure” deleting and thus without any recitation of at least one base layer or a container or a further step of using the film lidding structure so that is unclear how claim 13 is intended to further limit claim 12.
Claims 14, 15, and 17-19 each recites the limitation “the at least one HDPE flexible film layer” in line 1. There is insufficient antecedent basis for this limitation in the claims. It is suggested to delete in claim 12, line 3 “high-density polyethylene (HDPE)” and insert therein - - at least one high-density polyethylene (HDPE) flexible film layer - - to overcome this rejection. This is the interpretation given the limitation for purposes of examination.
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.
Claims 2, 4, and 5 are 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.
Claim 2 recites the limitation “the at least one HDPE flexible film layer is reverse printed” wherein amended claim 1 recites the limitation “reverse printing ink onto an inner surface of the HDPE flexible film layer” so that claim 2 is of improper dependent form for failing to further limit the subject matter of the claim upon which it depends.
Claim 4 recites the limitation “the at least one base layer comprises cast polypropylene” wherein amended claim 1 recites the limitation “laminating a cast polypropylene layer to the foil layer using adhesive to form a lidding structure; heat sealing the cast polypropylene layer to a rim of a container to form a lidded container”, i.e. the cast polypropylene layer is considered a base layer of the lidding structure see further the 35 U.S.C. 112(b) rejection above, so that claim 4 is of improper dependent form for failing to further limit the subject matter of the claim upon which it depends.
Claim 5 recites the limitation “the film lidding structure comprises the following layers, in order: HDPE, ink, adhesive, foil, adhesive, and cast polypropylene” wherein amended claim 1 recites the limitation “providing at least one high-density polyethylene (HDPE) flexible film layer; reverse printing ink onto an inner surface of the HDPE flexible film layer; laminating the reverse-printed HDPE flexible film layer to a foil layer using adhesive to form a laminate; laminating a cast polypropylene layer to the foil layer using adhesive to form a lidding structure”, i.e. comprises the following layers in order: HDPE, reverse (and not inclusive of surface) printed ink, adhesive, foil, adhesive, and cast polypropylene, so that claim 5 is of improper dependent form for failing to further limit the subject matter of the claim upon which it depends.
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
Claims 12-14, 16, 20, 21, and 26 are rejected under 35 U.S.C. 103 as being unpatentable over Wuest et al. (U.S. Patent Application Publication 2004/0043238).
Regarding claims 12, 14, 16, 20, 21, and 26, Wuest discloses a method for providing a film structure, the method comprising: providing a film structure comprising at least one flexible (can be unwound and folded into a cylinder see paragraphs 0004 and 0041) film layer (outer layer 112) such as of high-density polyethylene (HDPE) (Paragraph 0033), ink (Paragraph 0034) printed on an interior surface of the at least one flexible film layer (and regarding claim 14 wherein the at least one HDPE flexible film layer is reverse printed), tie layer (118) such as of adhesive (Paragraph 0035), oxygen barrier layer (114) such as of foil (Paragraph 0032), tie layer (120) such as of adhesive (Paragraph 0035), and inner sealant layer (116) such as of cast polypropylene (Paragraph 0054) (and regarding claim 16 wherein the film structure comprises, in order, HDPE, ink, adhesive, foil, adhesive, and cast polypropylene); and sterilizing the structure using hydrogen peroxide at a concentration of between about 20% and about 50% and at a temperature of between about 50°C and about 75°C (35% and about 70°C see paragraphs 0004, 0005, 0044, and 0057 and regarding claim 20 wherein the concentration of the hydrogen peroxide is at least 35% and regarding claim 21 wherein the temperature is about 65°C) (regarding claim 26) wherein the structure is dried using hot sterile air following the sterilizing step, without rinsing the structure (sterilizing unit in which the film structure issuing from the sterilizing bath is subjected to thermal/fluidic processing (e.g. by hot-air jets) to remove any residual sterilizing agent see paragraph 0006). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention the method for providing a film structure as taught by Wuest comprises: providing a film structure comprising at least one flexible high-density polyethylene (HDPE) film layer, ink (and regarding claim 14 wherein the at least one HDPE flexible film layer is reverse printed), adhesive, foil, adhesive, and cast polypropylene (and regarding claim 16 wherein the film structure comprises, in order, HDPE, ink, adhesive, foil, adhesive, and cast polypropylene); and sterilizing the structure using hydrogen peroxide at a concentration of between about 20% and about 50% and at a temperature of between about 50°C and about 75°C (regarding claim 20 wherein the concentration of the hydrogen peroxide is at least 35% and regarding claim 21 wherein the temperature is about 65°C it being noted in the case where the claimed ranges overlap or lie inside ranges disclosed by the prior art a prima facie case of obviousness exists and similarly, a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close see MPEP 2144.05) (regarding claim 26) wherein the structure is dried using hot sterile air following the sterilizing step, without rinsing the structure following that expressly disclosed by Wuest (see paragraph numbers above) regarding materials and method to predictably provide the sterilized film structure.
As to the limitation in claim 12 of “A method of providing a film lidding structure” and claim 13, the film structure taught by Wuest is capable of an intended use as a film lidding structure (see MPEP 2111.02 wherein the effect of the preamble is to recite purpose or intended use) such as by using the film structure as a film lidding by the cast polypropylene (taken as a base layer) is adhered to a rim of a container such as by sealing (the limitation of claim 13 rejected in as much as it is currently understood see the 35 U.S.C. 112(b) rejection above).
Claims 15 and 17-19 are rejected under 35 U.S.C. 103 as being unpatentable over Wuest as applied to claims 12-14, 16, 20, 21, and 26 above, and further in view of Francklow et al. (U.S. Patent Application Publication 2023/0088010).
Wuest is described above in full detail.
Regarding claim 15, Wuest does not expressly teach the at least one HDPE flexible film layer comprises an outer surface that is printed and an overlacquer is applied adjacent the printed material. It is well understood by one of ordinary skill in the art the at least one HDPE flexible film layer comprises an outer surface that is printed and an overlacquer is applied adjacent the printed material as a surface print that may be washed off or otherwise removed during recycling as evidenced by Francklow (Paragraphs 0021, 0022, and 0031). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention the at least one HDPE flexible film layer taught by Wuest comprises an outer surface that is printed and an overlacquer is applied adjacent the printed material as a surface print that may be washed off or otherwise removed during recycling as evidenced by Francklow.
Regarding claims 17-19, Wuest does not require any particular method to produce the at least one HDPE flexible film (which at least one film may be oriented to add desirable stiffness, heat resistance, dimensional stability and/or tear properties see paragraph 0038). It is well understood by one of ordinary skill in the art the at least one HDPE flexible film is produced (including with orientation) via a blown film process wherein the at least one HDPE flexible film is (at least) machine direction oriented or is produced (such as biaxially oriented) via a cast tentered process as evidenced by Francklow (Paragraphs 0033 and 0034). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention the at least one HDPE flexible film taught by Wuest is produced via a blown film process wherein the at least one HDPE flexible film is (at least) machine direction oriented or is produced via a cast tentered process as is well understood by one of ordinary skill in the art to conventionally and predictably produce the film as evidenced by Francklow.
Allowable Subject Matter
Claims 1, 3, 6-11, and 25 would be allowable if rewritten or amended as suggested above to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action.
The following is a statement of reasons for the indication of allowable subject matter:
The prior art of record (including Wuest teaching sterilization prior to package formation see paragraphs 0007 and 0041) fails to teach or suggest a method for providing a lidded container as claimed and including forming the lidding structure with the claimed materials prior to heat sealing the cast polypropylene layer to a rim of a container to form a lidded container; sterilizing the lidded container using high concentration hydrogen peroxide at elevated temperature; and drying the lidded container using hot sterile air.
Response to Arguments
Applicant's arguments filed 3/30/2026 have been fully considered.
In view of the amendments and remarks filed on 3/30/2026 the rejections set forth in the Office action mailed on 12/30/2025 are withdrawn.
The declaration of Joesph D. Gagne under 37 CFR 1.132 filed 3/30/2026 is insufficient to overcome the rejection of claims 12-21 and 26 based upon Wuest as set forth above because: An affidavit or declaration under 37 CFR 1.132 must compare the claimed subject matter with the closest prior art to be effective to rebut a prima facie case of obviousness (see MPEP 716.02(e)). A comparison of the claimed subject matter with a typical PET film lidding asserting the HDPE structure prevents migration of peroxide (see paragraph 13 of the declaration) is not a comparison with Wuest wherein Wuest recognizes the same (including both HDPE and cast polypropylene outer layers) teaching “Furthermore, the inner sealant layer 116 must be resistant to deformation or de-lamination due to contact with a hot hydrogen peroxide sterilization solution and must not appreciably absorb hydrogen peroxide. The inner sealant layer should also shed the hydrogen peroxide sterilization solution quickly and easily since the amount of residual sterilization solution permitted in a final packaged product is governed by strict standards (the maximum permissible amount being in the order of a few parts per million).” (see paragraph 0030) including cast polypropylene as the inner sealant layer (see paragraph 0054) and “The outer layer 112 may include any polymeric layer that provides peroxide resistance to the packaging film” including “high density polyethylene (HDPE)” as the outer layer including acting as an exterior coating so that “No polyester layer is exposed to the hydrogen peroxide sterilization solution due to the exterior coating. Un-coated polyester layers as surface layers have been found to absorb hydrogen peroxide, causing the edges to swell and unsuitable tracking on packaging machines. Thus, the outer surface of any polyester layer is protected by an exterior coating, while the opposite surface is protected by being adhered to an interior layer of the packaging film.” (see paragraph 0033).
Further, as to paragraphs 15 and 16 of the declaration and applicants argument on page 6 of the response filed on 3/30/2026 that “… Wuest’s preferred Film #1 uses biaxially oriented polypropylene film as the outer layer, not HDPE, and the inner sealant layer of Wuest’s preferred embodiment is a coextruded LLDPE-containing multilayer film, not cast polypropylene. To arrive at the claimed structure from Wuest alone would require selecting HDPE as the outer layer from among the range of materials disclosed, selecting a foil barrier layer (Wuest Film #5 uses foil but retains LLDPE coextruded film as the inner layer), and separately selecting cast polypropylene as the innermost layer (Wuest Film #4 uses cast polypropylene as the inner layer but uses metallized biaxially oriented nylon as the barrier, not foil ). No single embodiment of Wuest combines HDPE outer layer, foil barrier, and cast polypropylene inner layer.”.
This argument is not persuasive wherein Wuest (as described above) teaches as materials that provide peroxide resistance suitable for the inner sealant layer and for the outer layer includes cast polypropylene and HDPE respectively and including foil as oxygen barrier layer therebetween (Paragraph 0032 and specific teaching of metal foil or metallized film having a thin layer of metal also considered foil). It being further noted there is no asserted unexpected results regarding comparing HDPE and biaxially oriented polypropylene film and/or comparing cast polypropylene and coextruded LLDPE-containing multilayer film.
Further, as to paragraph 13 of the declaration and applicants argument on page 7 of the response filed on 3/30/2026, “Specifically, the claimed HDPE laminate structure survived sterilization in a heated hydrogen peroxide bath for up to six hours and in some cases in excess of thirteen hours with no distortion, ink smearing, or delamination at any layer of the laminate. In direct contrast, a typical PET film lidding structure fails under the same conditions in approximately two to four hours- a performance difference of three to six times. This magnitude of improvement was not predicted or expected by persons of ordinary skill in the art at the time of the invention, as explained in the Gagne Declaration. The unexpected results are directly tied to the claimed laminate structure. The HDPE outermost layer functions as an effective barrier against peroxide migration into the interior layers of the laminate, protecting the trapped ink and adhesive layers from the chemical attack that causes delamination and smearing in PET-based lidding. This barrier performance is an inherent property of the claimed laminate structure and is present whether sterilization occurs before or after sealing to a container.”.
This argument is not persuasive including wherein an affidavit or declaration under 37 CFR 1.132 must compare the claimed subject matter with the closest prior art to be effective to rebut a prima facie case of obviousness (see MPEP 716.02(e) and further as discussed above wherein Wuest does not teach exposed PET layers). Further, “Expected beneficial results are evidence of obviousness of a claimed invention, just as unexpected results are evidence of unobviousness thereof.” (see MPEP 716.02(c)) wherein Wuest teaches “Furthermore, the inner sealant layer 116 must be resistant to deformation or de-lamination due to contact with a hot hydrogen peroxide sterilization solution and must not appreciably absorb hydrogen peroxide. The inner sealant layer should also shed the hydrogen peroxide sterilization solution quickly and easily since the amount of residual sterilization solution permitted in a final packaged product is governed by strict standards (the maximum permissible amount being in the order of a few parts per million).” (see paragraph 0030) including cast polypropylene as the inner sealant layer (see paragraph 0054) and “The outer layer 112 may include any polymeric layer that provides peroxide resistance to the packaging film” including “high density polyethylene (HDPE)” as the outer layer so that “No polyester layer is exposed to the hydrogen peroxide sterilization solution due to the exterior coating. Un-coated polyester layers as surface layers have been found to absorb hydrogen peroxide, causing the edges to swell and unsuitable tracking on packaging machines. Thus, the outer surface of any polyester layer is protected by an exterior coating, while the opposite surface is protected by being adhered to an interior layer of the packaging film.” (see paragraph 0033).
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JOHN L GOFF II whose telephone number is (571)272-1216. The examiner can normally be reached 7:30 AM - 4:00 PM EST Monday - Friday.
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/JOHN L GOFF II/Primary Examiner, Art Unit 1746
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