DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Applicants' arguments have been fully considered. Rejections and/or objections not reiterated from previous office actions are hereby withdrawn due to Applicant's amendments and/or arguments. The following rejections and/or objections are either reiterated or newly applied.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103(a) which forms the basis for all obviousness rejections set forth in this Office action:
(a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made.
Claims 1-11 are rejected under 35 U.S.C. 103(a) as being unpatentable over US-20180134011-A1 to Parkinson et al. in view of WO 2018/063578 to Zheng et al. and further in view of. US 20120258307 A1 to Cretekos
Re claims 1, 8-9, and 11 Parkinson discloses multilayer film comprising first layer (corresponding to claimed first layer/first composition) which comprises linear low density polyethylene having density less than 0.93 g/cm3 and melt index of less than 2 g/10 min [41-44], third layer (corresponding to claimed 2nd layer) comprising polyethylene having density less than 0.92 g/cm3 and melt index less than 2 g/10 min [62-66], and second layer (corresponding to claimed 3rd layer) comprising polyethylene [50-56]. The total thickness of the multilayer film is 25-200 microns with the 3rd layer comprising at least 30% of the total thickness [86] which means the first layer and second layer comprise 70% of the total thickness, i.e. each of the first layer and second layer comprises 35% of the total thickness. Therefore, given that the first layer comprises 100% of the first composition and comprises 35% of the total thickness of the multilayer film, the multilayer film would necessarily comprise at least 29% of the first composition.
There is no disclosure in Parkinson that the first layer comprises MWCDI or I10/I2 as claimed or that the third layer comprises a first polyethylene having a density greater than 0.95 g/cm3 as claimed.
Zhang discloses a multilayer structure comprising a layer with 80-95% ethylene-based polymer having a density of 0.91-0.94 g/cm3 and melt index (I2) of 0.1-50 g/10 min (page 3, lines 22-23 and page 5, lines 15-23) and the layer having MWCDI of 0.9-10 and I10/I2 >= 7.0-1.2xlog (I2) (page 3, lines 6-10). The layer has improved adhesion and toughness (page 1, lines 22-23).
Thus, it would have been obvious to one of ordinary skill in the art to use the layer of Zhang as the first layer of Parkinson in order to produce a layer with improved adhesion and toughness.
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 reWertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In reWoodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). See MPEP 2144.05.
Thus, it would have been obvious to one of ordinary skill in the art to use the layer of Zhang as the first layer of Parkinson in order to produce a layer with improved adhesion and toughness being obvious to have selected from the overlapping portion of the ranges of claimed density, amount and melt index for improving heat performance taught by the reference because overlapping ranges have been held to establish prima facie obviousness. MPEP 2144.05.
Thus, it would have been obvious to one of ordinary skill in the art to use the layer of Zhang as the first layer of Parkinson in order to produce a layer with improved adhesion and toughness.
Analogous art Cretekos discloses polyethylene of overlapping recitations including the claimed density of > 0.95 g/cm3 etc., melt index and amount [35] teaches overlapping amounts, density and melt indices of polyethylene using suitable HDPE of a melt index;1.0 g/10 min ;0.5 g/10 min, as measured in accordance with ASTM D1238, under a load of 2.16 kg at 190.degree. C. (190.degree. C./2.16 kg). The HDPE has a density in the range of about 0.940 g/cm.sup.3 to about 0.970 g/cm.sup.3, and a melting point of in the range of about 115.degree. C. to about 140.degree. C. For example, the HDPE has a density in the range of 0.950 g/cm.sup.3 to 0.970 g/cm.sup.3, and a melting point in the range of 120.degree. C. to 134.degree. C. The motivation for using the HDPE is for advancing a matte effect [38]. The multilayer film comprises overlapping ranges of at least 15% of the first polyethylene see [24], [40-43].
Thus, it would have been obvious to one of ordinary skill in the art to use the material and layer of Cretekos, using the HDPLE in the second layer of Parkinson in order to produce a layer with improved matte effects within overlapping ranges as set forth above.
Re claim 2, given that Parkinson in view of Zhang and Cretekos disclose multilayer film as claimed, it would necessarily have the same overall density as claimed.
Re claim 3, given that Parkinson discloses the third layer comprises at least 30% of the total thickness of the multilayer thickness which means the first layer and second layer comprises 70% of the total thickness, i.e. each of the first layer and second layer comprises 35% of the total thickness, it is clear that the first composition and the first polyethylene would necessarily have a combined amount of at least 60%.
Re claims 4-7 and 10, Parkinson discloses the multilayer film can comprises at least 5 layers with a fourth layer on the surface of the first layer and a fifth layer on the surface of a second layer [88]. The fourth and fifth layer can comprise 100% of the same polymer as the first layer [88]. Given that Parkinson in view of Zhang and Cretekos discloses multilayer film a claimed, it is clear the multilayer film would have the same average time to failure due to grease migration, dart impact, tear value and water vapor transmission rate as claimed.
Re claims 4-6, and 8-9, Parkinson teaches [86, 101] overlapping ranges of less than 80 microns total and when the first and second layers are 8 microns, the total remainder is 25 microns less 16 microns.
Claims 1-11 are rejected under 35 U.S.C. 103(a) as being unpatentable over US-20180134011-A1 to Parkinson et al. in view of WO 2018/063578 to Zheng et al. and further in view of US 2016/0339663 to Clare
Re claims 1, 8-9, and 11 Parkinson discloses multilayer film comprising first layer (corresponding to claimed first layer/first composition) which comprises linear low density polyethylene having density less than 0.93 g/cm3 and melt index of less than 2 g/10 min [41-44], third layer (corresponding to claimed 2nd layer) comprising polyethylene having density less than 0.92 g/cm3 and melt index less than 2 g/10 min [62-66], and second layer (corresponding to claimed 3rd layer) comprising polyethylene [50-56]. The total thickness of the multilayer film is 25-200 microns with the 3rd layer comprising at least 30% of the total thickness [86] which means the first layer and second layer comprise 70% of the total thickness, i.e. each of the first layer and second layer comprises 35% of the total thickness. Therefore, given that the first layer comprises 100% of the first composition and comprises 35% of the total thickness of the multilayer film, the multilayer film would necessarily comprise at least 29% of the first composition.
There is no disclosure in Parkinson that the first layer comprises MWCDI or I10/I2 as claimed or that the third layer comprises a first polyethylene having a density greater than 0.95 g/cm3 as claimed.
Zhang discloses a multilayer structure comprising a layer with 80-95% ethylene-based polymer having a density of 0.91-0.94 g/cm3 and melt index (I2) of 0.1-50 g/10 min (page 3, lines 22-23 and page 5, lines 15-23) and the layer having MWCDI of 0.9-10 and I10/I2 >= 7.0-1.2xlog (I2) (page 3, lines 6-10). The layer has improved adhesion and toughness (page 1, lines 22-23).
Thus, it would have been obvious to one of ordinary skill in the art to use the layer of Zhang as the first layer of Parkinson in order to produce a layer with improved adhesion and toughness.
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 reWertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In reWoodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). See MPEP 2144.05.
Thus, it would have been obvious to one of ordinary skill in the art to use the layer of Zhang as the first layer of Parkinson in order to produce a layer with improved adhesion and toughness being obvious to have selected from the overlapping portion of the ranges of claimed density, amount and melt index for improving heat performance taught by the reference because overlapping ranges have been held to establish prima facie obviousness. MPEP 2144.05.
Thus, it would have been obvious to one of ordinary skill in the art to use the layer of Zhang as the first layer of Parkinson in order to produce a layer with improved adhesion and toughness.
Analogous art Clare discloses packaging having core layer of HDPE with overlapping ranges density of 0.95-0.97 g/cc and melt index I2 of 0.2-10 9/10 minutes [0126, 0136] where motivation would be to provide stiffness [0064]. The multilayer film comprises overlapping ranges of at least 15% of the first polyethylene see [9-49], [112].
Thus, it would have been obvious to one of ordinary skill in the art to use the material and layer of Clare use the HDPLE and the second layer of Parkinson in order to produce a layer with stiffness within overlapping ranges as set forth above.
Re claim 2, given that Parkinson in view of Zhang and Clare disclose multilayer film as claimed, it would necessarily have the same overall density as claimed.
Re claim 3, given that Parkinson discloses the third layer comprises at least 30% of the total thickness of the multilayer thickness which means the first layer and second layer comprises 70% of the total thickness, i.e. each of the first layer and second layer comprises 35% of the total thickness, it is clear that the first composition and the first polyethylene would necessarily have a combined amount of at least 60%.
Re claims 4-7 and 10, Parkinson discloses the multilayer film can comprises at least 5 layers with a fourth layer on the surface of the first layer and a fifth layer on the surface of a second layer [88]. The fourth and fifth layer can comprise 100% of the same polymer as the first layer [88]. Given that Parkinson in view of Zhang and Clare discloses multilayer film a claimed, it is clear the multilayer film would have the same average time to failure due to grease migration, dart impact, tear value and water vapor transmission rate as claimed.
Re claims 4-6, and 8-9, Parkinson teaches [86, 101] overlapping ranges of less than 80 microns total and when the first and second layers are 8 microns, the total remainder is 25 microns less 16 microns.
Response to Arguments
Applicants’ arguments are acknowledged and found unconvincing. Applicant argues the HDPLE is now claimed and is not taught; however, the polyethylene taught by Creketos is taught above. Applicant argues the matte effect of the HDPE not being in the second layer; however it is clear it would have been obvious to have used HDPLE material in a second layer (see also HDPE –[0139-145], Cretekos) as it would have been obvious for the reason of at least a matte effect. The Examiner is not relying on Cretekos structure of a second layer but is using the material from the secondary reference. The structure of Cretekos as argued is not the way the combination was combined as the primary reference essentially teaches the claimed invention.
References of Interest
The remaining references listed on form(s) 892 and/or 1449 have been reviewed by the examiner and are considered to be cumulative to or less material than the prior art references relied upon in the rejection above.
US-20180043670-A1 to Zhu et al teaches a similar construction see Abstract, Figure.
US 20120308751 A1 to Neill [0102] HDPE-2 is a moisture-barrier high density homopolymer of polyethylene having a reported melt index of 1.2 g/10 min (at 190.degree. C./2.16 kg), a reported density of 0.966 g/cm3, a moisture vapor transmission rate of 1.1 g/m.sup.3/24 h at 38.degree. C., 100% RH and is commercially available as Surpass.RTM. HPs167-AB available from Nova Chemicals Corporation (Calgary, Alberta, Canada) – the reason being the melt index yields a suitable MVTR for packaging.
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 TAMRA L. DICUS whose telephone number is (571)272-2022. The examiner can normally be reached M-F 8:00 am 4:00 pm.
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TAMRA L. DICUS
Primary Examiner
Art Unit 1787
/TAMRA L. DICUS/Primary Examiner, Art Unit 1787
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