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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 12/01/2025 has been entered.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claim(s) 1-2 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hata et al. (US 5972447) in view of Hirose (US 2019/0367718).
Regarding claim 1, Hata discloses a multilayer film comprising an ethylene vinyl alcohol based copolymer layer having a thickness of 3 to 50 microns (abstract), a heat sealing layer having a thickness of 80 microns (col. 18, lines 17-19) and an adhesive layer (col. 10, lines 30-31 and col. 18, lines 16-17) wherein the ethylene vinyl alcohol based copolymer layer contains sodium ion and a content of sodium ion is 10 to 500 ppm (col. 5, lines 43-50), wherein the ethylene-vinyl alcohol-based copolymer layer comprises an ethylene-vinyl alcohol-based copolymer resin composition and the copolymer having ethylene content of 20 to 60 mol% (abstract), and the composition does not comprise an ethylene-vinyl alcohol-based copolymer which has been modified by oxyalkylene formation (col. 4, lines 54-65).
Hata does not disclose vinyl ester component with a degree of saponification of 99 to 100 mol%.
Hirose discloses multilayer structure comprising ethylene vinyl resin composition comprising EVOH copolymer having ethylene content of 20 to 50 mol% (0049) and degree of saponification of vinyl ester 99 to 100 mol% to obtain excellent oxygen barrier properties and thermal properties (0050).
It would have been obvious to one of ordinary skill in the art to use degree of saponification of vinyl ester of Hirose in the EVOH resin of Hata to obtain excellent oxygen barrier properties and thermal properties.
The recitation in the claims that the multilayer structure is “used in a treatment under a high pressure of 100MPa or more” is merely an intended use. Applicants attention is drawn to MPEP 2111.02 which states that intended use statements must be evaluated to determine whether the intended use results in a structural difference between the claimed invention and the prior art. Only if such structural difference exists, does the recitation serve to limit the claim. If the prior art structure is capable of performing the intended use, then it meets the claim.
It is the examiner’s position that the intended use recited in the present claims does not result in a structural difference between the presently claimed invention and the prior art and further that the prior art structure is capable of performing the intended use. Given that Hata in view of Hirose discloses multilayer film as presently claimed, it is clear that the multilayer film of Hata in view of Hirose would be capable of performing the intended use, i.e. used in a treatment under a high pressure of 100MPa or more, presently claimed as required in the above cited portion of the MPEP.
Regarding claim 2, Hata in view of Hirose discloses the multilayer structure of claim 1 wherein the multilayer structure has a thickness of 50 to 300 microns (abstract).
Claim(s) 1-2 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hiroshi et al. (JP 2003-025518) in view of Hata et al. (US 5972447) and Hirose (US 2019/0367718).
Regarding claim 1, Hiroshi discloses a multilayer film comprising a gas barrier layer C comprising ethylene vinyl alcohol copolymer (paragraph 0008) and having a thickness of 2 to 30 microns (0020), a heat sealing layer D having a thickness of 2 to 120 microns (paragraph 0024) and adhesive layer B (paragraph 0017) wherein Hiroshi is silent with respect to modified ethylene vinyl alcohol with oxyalkylene formation and therefore it is clear that the ethylene vinyl alcohol based copolymer is not modified by oxyalkylene formation.
Hiroshi does not disclose sodium ion in the ethylene vinyl alcohol.
Hata discloses multilayer structure comprising a layer containing ethylene vinyl alcohol made with 10 to 500 ppm of sodium ion and having ethylene content of 20 to 60 mol% (abstract) to improves adhesion between layers and compatibility (col. 5, lines 43-50, col. 6, line 5-11).
It would have been obvious to one of ordinary skill in the art to use the ethylene content and the sodium ion and its amount of Hata in the ethylene vinyl alcohol of Hiroshi to obtain thermal stability.
Hiroshi in view of Hata does not disclose vinyl ester component with a degree of saponification of 99 to 100 mol%.
Hirose discloses multilayer structure comprising ethylene vinyl resin composition comprising EVOH copolymer having ethylene content of 20 to 50 mol% (0049) and degree of saponification of vinyl ester 99 to 100 mol% to obtain excellent oxygen barrier properties and thermal properties (0050).
It would have been obvious to one of ordinary skill in the art to use degree of saponification of vinyl ester of Hirose in the EVOH resin of Hiroshi in view of Hata to obtain excellent oxygen barrier properties and thermal properties.
The recitation in the claims that the multilayer structure is “used in a treatment under a high pressure of 100MPa or more” is merely an intended use. Applicants attention is drawn to MPEP 2111.02 which states that intended use statements must be evaluated to determine whether the intended use results in a structural difference between the claimed invention and the prior art. Only if such structural difference exists, does the recitation serve to limit the claim. If the prior art structure is capable of performing the intended use, then it meets the claim.
It is the examiner’s position that the intended use recited in the present claims does not result in a structural difference between the presently claimed invention and the prior art and further that the prior art structure is capable of performing the intended use. Given that Hiroshi in view of Hata and Hirose discloses multilayer film as presently claimed, it is clear that the multilayer film of Hiroshi in view of Hata and Hirose would be capable of performing the intended use, i.e. used in a treatment under a high pressure of 100MPa or more, presently claimed as required in the above cited portion of the MPEP.
Regarding claim 2, Hiroshi in view of Hata and Hirose discloses the multilayer of claim 1 wherein the surface layer A having a thickness of 10 to 150 microns (paragraph 0016), the adhesive layer having a thickness of 0.5 to 25 microns (paragraph 0018), the gas barrier layer C having a thickness of 2 to 30 microns (paragraph 0020) and the heat sealing layer D having thickness of 2 to 120 microns (paragraph 0024). Therefore, the overall thickness of the multilayer is 14.5 to 325 microns.
Response to Arguments
Applicant's arguments filed 07/21/2025 have been fully considered but they are not persuasive.
Applicant argues that Hata reference does not qualify for anticipation rejection. Examiner agrees and which is why the claims are now rejected under obviousness rejection.
Applicant argues that Hiroshi and Hata neither discloses amended claim limitations. Examiner agrees and the current rejection is modified to teach amended claim limitations.
Applicant points to example 9, which used Resin F with sodium ion of 30 ppm, shows that the interlayer adhesion was relatively low both before and after high pressure processing while examples 1 to 8 and 10-12 used resins A to E and G to I with sodium ions ranging from 100 to 400 ppm and the interlayer adhesion remained strong both before and after high pressure processing. However, it is noted that the data is still not commensurate is scope with the scope of the present claim given that the examples disclose specific compositions with specific thickness for multilayer structure while the present claim recites any compositions and thickness of adhesive layer and heat sealing layer. Further, there is no data points for higher and lower contents of sodium ions, i.e. 400 ppm and 100 ppm.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SAMIR SHAH whose telephone number is (571)270-1143. The examiner can normally be reached 8:00am - 5:00pm.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Callie Shosho can be reached at 571-272-1123. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/SAMIR SHAH/Primary Examiner, Art Unit 1787