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 6/16/2025 has been entered. Claims 10 and 20 have been canceled. Claims 1-9 and 11-19 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.
Claim Interpretation
Consistent with MPEP § 2111, claims are given their broadest reasonable interpretation wherein “the meaning given to a claim term must be consistent with the ordinary and customary meaning of the term (unless the term has been given a special definition in the specification), and must be consistent with the use of the claim term in the specification and drawings. Further, the broadest reasonable interpretation of the claims must be consistent with the interpretation that those skilled in the art would reach. In re Cortright, 165 F.3d 1353, 1359, 49 USPQ2d 1464, 1468 (Fed. Cir. 1999).” However, 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.)
Given the above, it is first noted that with respect to the claimed “polyvinylidene chloride (PVdC) which is a thermoplastic formed from vinylidene dichloride” as recited in instant claims 1 and 11, the term “polyvinylidene chloride” by definition and consistent with the ordinary and customary meaning in the art refers to a polymer formed from vinylidene chloride, i.e. 1,1-dichloroethylene which may also be referred to as “vinylidene dichloride” as recited by the Applicant (see for example, the Wikipedia.org article entitled “1,1-Dichloroethylene”, particularly “Other names” in the right column on page 1), as a majority of the monomer units thereof, wherein the term “polyvinylidene chloride” encompasses both vinylidene chloride copolymers as well as the vinylidene chloride homopolymer as evidenced by Biron (Thermoplastics and Thermoplastic Composites, Section 4.8 Polyvinylidene Chloride, pp. 329-333) or McKeen (The Effect of Sterilization Methods on Plastics and Elastomers, Section 9.4 Polyvinylidene Chloride, pp. 277-282) or Morris (The Science and Technology of Flexible Packaging, Section 4.2.8 Polyvinylidene Chloride) or Wessling (Vinylidene Chloride Polymers in Kirk-Othmer Encyclopedia of Chemical Technology, Entire document, particularly the first paragraph on page 1, and Sections 2-3) or Yang (US2003/0218152A1, Paragraph 0023) or Wallace (US2003/0157355A1, Paragraph 0064) or Ishio (USPN 4,863,768, Col. 14, lines 3-7) or Glaser (US2011/0104342A1, Paragraph 0050), or Douglas (US2020/0031550A1, Paragraph 0056), etc; with each of Biron, McKeen, Morris, and Wessling actually disclosing that commercial or industrialized PVDC is provided as a copolymer of vinylidene chloride, typically with minor amounts of vinyl chloride or other monomer(s), given that as noted by Wessling, PVDC homopolymer “lacks the thermal stability required for processing” (first paragraph on page 1) and as noted by Morris, “decomposes near its melting point making processing a challenge” (second paragraph of Section 4.2.8 on page 88). Hence, absent a special definition to the contrary, “polyvinylidene chloride (PVdC)” as recited in the present application and instant claims has been interpreted as (co)polymers of vinylidene (di)chloride for applying prior art.
It is also noted that by definition, the term “respectively” means “in the order given” (as evidenced by the Merriam-Webster Dictionary as shown on the attached Google search results, or by Springer – International Publisher) and is used to clarify the order and connection between two or more items in a first list with a corresponding number of items in a second list, as shown in the examples on the attached Google search results and/or the examples from Springer, and hence, absent any “special definition” for the term “respectively” in the present specification, the Examiner again notes that the recitation “of at least 350 MPa and at most 700 MPa in the machine direction and in the transverse direction, respectively” (emphasis added) is interpreted as at least 350 MPa in the machine direction and at most 700 MPa in the transverse direction, not 350 MPa to 700 MPa in both the machine direction and the transverse direction (which would be the case if the “respectively” was deleted).
Claim Rejections - 35 USC § 112
Claims 1-9 and 11-19 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 enablement requirement, for generally the reasons recited in the prior office action and restated below with respect to the amended claims. The claim(s) contains subject matter which was not described in the specification in such a way as to enable one skilled in the art to which it pertains, or with which it is most nearly connected, to make and/or use the invention. Claim 1 recites, “Method for manufacturing a multilayered composite film, wherein the method includes at least the following steps: a step of co-extruding at least three layers (a), (b) and (c)…and a step of biaxial orientation of the composite film thus co-extruded; wherein the layer (a) consists of a thermoplastic resin having a Vicat softening temperature of above 100 °C, measured according to DIN EN ISO 306; wherein the layer (b) consists of a polyvinylidene chloride (PVdC) which is a thermoplastic formed from vinylidene dichloride…the layer (c) contains or consists of a sealable resin; wherein the thermoplastic resin of the layer (a) consists of a polyester; wherein any crosslinking of the composite film by means of radioactive radiation is omitted during the manufacturing of the composite film; wherein the composite film has only one layer containing polyvinylidene chloride (PVdC) which is the layer (b); wherein the thickness of the layer (a) is at most 5% of the thickness of the entire composite film; and wherein the composite film has a shrinkage of at least 50%, in each of the longitudinal and transverse directions, measured in water at 90°C within 1 second after immersion; wherein the composite film has a stiffness, expressed as modulus of elasticity…of at least 350 MPa and at most 700 MPa in the machine direction [MD] and in the transverse direction [TD], respectively” (emphasis added, wherein it is again noted that given the presence of “respectively” in the stiffness limitation and based upon the definition and use of the term “respectively” as evidenced by the attached Google search thereof, the “at least 350 MPa” range is interpreted as corresponding to the MD only and the “at most 700 MPa” range corresponding to the TD only), with claim 11 directed to a multilayered composite film manufactured by the method of claim 1; however, the present disclosure fails to provide any guidance as to how one having ordinary skill in the art can make and/or use the claimed invention such that the multilayered composite has the claimed combination of shrinkage and stiffness properties without conducting undue experimentation (even if the MPa ranges are meant to correspond to both the MD and the TD). In determining whether the specification meets the enablement requirement, the Examiner considered the following factors as set forth in In re Wands: (A) The breadth of the claims; (B) The nature of the invention; (C) The state of the prior art; (D) The level of one of ordinary skill; (E) The level of predictability in the art; (F) The amount of direction provided by the inventor; (G) The existence of working examples; and (H) The quantity of experimentation needed to make or use the invention based on the content of the disclosure.
First, with respect to the breadth of the claims, it is noted that although the claimed invention requires a specific combination of film properties in the longitudinal/machine direction and the transverse direction as noted above, the claimed method of manufacturing the film is itself very broad in that it only includes two process steps, a co-extruding step and a biaxial orientation step, neither of which recites any particular process parameters for said step, e.g. co-extrusion temperatures, quenching temperatures, stretching temperatures, orientation ratios, annealing temperatures, etc., and thus aside from the omission of a crosslinking step by means of radioactive radiation and the limitations with respect to the layer materials and the thermal and mechanical properties of the resulting multilayered composite film, the actual method for manufacturing the multilayered composite film as recited in the claims is extremely broad.
With respect to the nature of the invention and state of the prior art, the Examiner again refers to the teachings of Fusarpoli, US2017/006628A1, which is specifically directed to improving film stiffness of shrinkable films while preserving optical and shrinkage properties, with reference to Fraschini, EP2030784A1, which is similarly directed to a method of producing multilayer, biaxially oriented, heat shrinkable coextruded film, and is utilized by Fusarpoli with respect to the process conditions for the working examples; or the teachings of Zanaboni, WO2018/134224A1, which is directed to producing multilayer non-cross-linked heat-shrinkable films that have excellent shrinkability, good optics and strength without using internal layers of stiff resins and cross-linking; and more broadly, Buchner, Foods, 4. Food Packaging in Ullmann’s Encyclopedia of Industrial Chemistry, given that the films of each of the above references as well as those of the instant invention are designed as packaging films, particularly for use in food packaging, an art area with a vast amount of prior art, as evident by Buchner, and that may be further categorized based upon the item(s) or food product(s) to be packaged. See also the “State of the Art” section on pages 1-4 of the present specification as filed.
With respect to the level of one of ordinary skill in the art and level of predictability in the art, the Examiner again refers to Applicant’s own arguments on pages 11-13 of the response filed 11/4/2024, wherein the Applicant recites that the “present multilayer structures are complex constructions where the experienced skilled artisan knows that the functioning of a manufacturing method or stability of the resulting multilayer structure is basically not predictable due to its complexity and the number of parameters having an influence” and that “[a]ccordingly, persons skilled in the art are surprised what tremendous effects small modifications of the raw material composition or of the production’s method can have,” further stating that “[t]hese systems are simply too complex to predict the outcome, if one or more parameters are changed” and “[t]hus, they are far from being predicable” (see paragraph bridging pages 11-12). However, in looking at the amount of direction provided by the Applicant and the existence of working examples, it is noted that only a limited number of inventive examples are provided and that of those limited examples, none of them is reported as having the combination of limitations as recited in the amended claims. In fact, hot shrinkage properties “measured in water at 90°C within 1 second after immersion” as in the claimed invention are not reported for any of the examples, inventive or comparative; and although inventive Example 1 is listed in Table 5 as having stiffness properties in both the MD and TD falling within the claimed ranges for the modulus of elasticity, it is noted that Example 1 is a seven-layer composite film having a layered structure of PET/HV/PP/HV/PVDC/HV/PE with a PET layer thickness of 5 µm and a total thickness of 50 µm, as reported in Table 10, such that the PET layer of Example 1, as the claimed layer (a), constitutes 10% of the thickness of the entire composite film, falling outside of the claimed range of at most 5%. Example 2 has a PET layer thickness of 5% but is also a seven-layer film with no property values reported for said film. Additionally, there is no specific information on how any of these inventive and comparative films were manufactured, and although the present disclosure provides a very brief discussion with respect to the method of manufacturing composite films on pages 20-21 utilizing “a device or system of the same applicant for manufacturing tubular food films for food packaging, such as, for example, shrink films or shrink bags, by the jet-blow method or jet blow molding method or nozzle blow molding method, if the device disclosed in patent specification DE 199 16 428 B4 of the same applicant for rapidly cooling thin thermoplastic tubes after their extrusion is additionally used” wherein for “this purpose, a corresponding further development according to patent specification DE 100 48 178 B4 can also be taken into account;” reciting that “the tubular film produced from the plastic melt in the nozzle blow head is subjected to intensive cooling” and that in “order to avoid repetition, full reference is made to the contents of DE 199 16 428 B4 and DE 100 48 178 B4 with regard to details of the methods, structure and mode of operation of this cooling system, which is also referred to as a calibration system;” the present disclosure does not appear to provide any discussion with respect to the specific process parameters, particularly temperatures and stretching ratios, utilized to produce any of the examples, inventive or comparative.
In fact, the present disclosure provides no indication or guidance as to how one could determine what process parameters to modify or even could be modified in order to produce a composite film that meets the property limitations of the claimed invention or produce “inventive” examples in comparison to comparative examples falling outside of the claimed limitations; and although a skilled artisan may be capable of measuring the claimed properties according to the known standards and/or as described in the instant specification, one of ordinary skill in the art would clearly recognize the amount of undue or unreasonable experimentation needed to “reverse engineer” the claimed composite film in order to determine what process conditions, what type of sealable resin, how many total layers and what materials and thicknesses of each layer from an almost infinite combination of layers, layer materials, and processing conditions, in order to provide a multilayered composite film having the claimed combination of properties, especially given the “complex constructions where the experienced skilled artisan knows that the functioning of a manufacturing method or stability of the resulting multilayer structure is basically not predictable due to its complexity and the number of parameters having an influence” as stated by the Applicant. Further, if the claimed “polyvinylidene chloride (PVdC) which is a thermoplastic formed from vinylidene dichloride” as now recited in amended claims 1 and 11 was interpreted as argued by the Applicant in the response filed 6/16/2025 as meaning that the PVdC is a PVDC homopolymer such that the claimed layer (b) consists of the PVDC homopolymer only, wherein “[t]his means, that any modified PVdC polymer material, e.g. a copolymer, is [allegedly] excluded from the scope of the present application by definition” (an interpretation or “definition” that the Examiner respectfully disagrees with in light of the above discussion in the Claim Interpretation section as supported by the cited evidentiary references), then it is further noted that the Applicant fails to provide any guidance as to how the layer (b) consisting of PVDC homopolymer could be melt processed in the claimed method given that as discussed above, PVDC homopolymer lacks thermal stability and decomposes near its melting point making processing a challenge. Therefore, the Examiner maintains her position that the original disclosure does not describe the claimed subject matter in a way that one skilled in the art could make and/or use the invention without performing undue experimentation.
Claim Rejections - 35 USC § 103
In the event that the Applicant maintains a position that contrary to the above rejection under 35 U.S.C. 112(a), the claimed invention is enabled by the present disclosure and that one having ordinary skill in the art would be able to make and/or use the claimed invention having the claimed combination of properties in light of the present disclosure as argued by the Applicant in the response filed 6/16/2024, then the Examiner maintains her position that the claimed invention would have been obvious over the cited prior art references for generally the reasons discussed in the prior office action and restated below with respect to the amended claims, wherein it is noted that “polyvinylidene chloride” (PVDC, also utilized interchangeable with PVdC below) by definition and its accepted meaning in the art encompasses copolymers of vinylidene chloride (aka vinylidene dichloride) as discussed above and is not limited to poly(vinylidene chloride) homopolymer.
Claims 1-9 and 10-19 are rejected under 35 U.S.C. 103 as being unpatentable over Fusarpoli (US2017/0066228A1) for generally the reasons recited in the prior office action and restated below with respect to the amended claims.
As discussed in the prior office action, Fusarpoli teaches a multilayer coextruded biaxially oriented barrier heat-shrinkable packaging film (Paragraphs 0046-0054 and 0106-0138) and method of manufacturing thereof, wherein the multilayer coextruded biaxially oriented barrier heat-shrinkable packaging film comprises at least one outer heat-sealable layer (a) forming an innermost layer of the packaging film (Paragraphs 0055 and 0369, reading upon the instantly claimed layer (c) that “forms a surface of the composite film facing or coming in contact with a good to be packaged” and contains or consists of a sealable resin); one layer (b) which is not directly adhered to the heat sealable layer (a) and comprises one or more aromatic (co)polyesters, preferably an outermost layer of the packaging film, and preferably consists of a single aromatic polyester resin (reading upon the instantly claimed layer (a) that forms an outward surface of the composite film as well as the amended “consists of a polyester” as recited in instant claims 1 and 11; Paragraphs 0192-0203); and at least one internal gas barrier layer (c) comprising or most preferably consisting of polyvinylidene chloride (PVDC) (Paragraph 0210) with “PVDC” specifically defined as referring to vinylidene chloride homopolymers or copolymers in Paragraph 0097 (reading upon the instantly claimed “layer (b)…disposed between the layer (a) and the layer (c)” and “consists of polyvinylidene chloride (PVdC) which is a thermoplastic formed from vinylidene dichloride” as recited in amended claims 1 and 11), wherein preferably the film comprises only one internal gas barrier layer (c) comprising PVDC (Paragraph 0138, reading upon the claimed “wherein the composite film has only one layer containing polyvinylidene chloride (PVdC) which is the layer (b)” as in amended claims 1 and 11), and is produced by a method including a step of co-extruding at least layers (b), (c) and (a) as the instantly claimed “at least three layers (a), (b) and (c)”, respectively, simultaneously (Paragraphs 0407-0426), and a step of biaxial orientation of the film thus co-extruded as in the instantly claimed invention, and given that Fusarpoli clearly teaches that the coextruded film may be optionally crosslinked by irradiation, if desired, but is preferably not irradiated (Paragraphs 0370, 0424, 0429, and 0439-0443), Fusarpoli clearly teaches “wherein any crosslinking of the composite film by means of radioactive radiation is omitted during the manufacturing of the composite film” (Entire document, particularly as noted above and Examples).
With respect to the outermost layer (b) that preferably consists of a single aromatic polyester resin, Fusarpoli teaches that suitable aromatic (co)polyesters for layer (b) include those as described in Paragraphs 0197-0203, and although Fusarpoli teaches that “[t]he outermost or external layer must also be carefully selected for its heat resistance during the sealing step [wherein for] example it is advantageous to select for this layer a polymer having melting point higher than the sealing temperature” (Paragraph 0391), and that the (co)polyester(s) of layer (b) preferably has/have a melting point higher than 225°C (Paragraph 0186-0187), Fusarpoli does not specifically teach that the aromatic (co)polyester(s) has/have a Vicat softening point as instantly claimed (Paragraphs 0186-0203). However, with respect to the preferred embodiment taught by Fusarpoli wherein the aromatic (co)polyester layer (b) consists of a single aromatic polyester resin, Fusarpoli teaches that said single aromatic polyester resin is preferably the PETs RAMAPET® N180 and RAMAPET® N1 by Indorama (Paragraph 0203), both of which have a Vicat softening point of greater than 100°C (as evidenced by Goossens, US2023/0041985A1, Examples, Table 5; Margol, Effect of recycled poly(ethylene terephthalate) core layer on the mechanical properties of three-layer poly(ethylene terephthalate) films, Materials section; and/or Andrzejewski (Development of Thermal Resistant FDM Printed Blends. The Preparation of GPET/PC Blends and Evaluation of Material Performance, Sections 2.1 and 3.2, and Table 2; each of which is only referenced and relied upon for the Vicat softening temperature for said commercially available polymers), and hence the claimed “layer (a) consists of a thermoplastic resin having a Vicat softening temperature of above 100 °C, measured according to DIN EN ISO 306” (a standard method for measuring a Vicat softening temperature) would have been obvious to one having ordinary skill in the art given that it is prima facie obviousness to choose from a finite number of identified, predictable solutions, with a reasonable expectation of success.
Fusarpoli also teaches that the outermost layer (b) of aromatic polyester (reading upon the instantly claimed layer (a) that forms an outward surface of the composite film and consists of polyester) can have a typical thickness comprised within the range from 1.5 to 35 microns, preferably 3 to 30 microns, and more preferably from 4 to 25 microns (overlapping the claimed thickness range of instant claims 4 and 14, and hence rendering the claimed range obvious to one skilled in the art, Paragraph 0195). Fusarpoli also teaches that the aromatic polyester is preferably only present in the outer layer (b), such that the percentage by weight of the aromatic polyester with respect to the total weight of the whole film is at least 3% (Paragraph 0194), and given that Fusarpoli teaches that the outermost layer (b) preferably consists of the aromatic polyester as noted above, with preferred polyesters RAMAPET® N180 and RAMAPET® N1 having a density of 1.4 and 1.39 g/cc, respectively, as evidenced by Table 1, with the PVDC and polyolefin polymers for the barrier and tie/sealable layers having lower densities; and particularly given that Fusarpoli teaches that the total thickness of the multilayer film is generally not higher than 250 microns (Paragraph 0172), such that the relative thickness of layer (b) may be as low as 0.6% (e.g. 1.5/250, or as high as 10%, e.g. 25/250, for the total film thickness of 250 microns); preferably a total film thickness from 10 to 150 microns, and more preferably 20 to 120 microns, such that the thickness of layer (b) may preferably be as low as 2% (e.g. 3/150), or more preferably as low as 3.3% (e.g. 4/120) based upon the recited total thickness ranges, the Examiner again takes the position that claimed “wherein the thickness of layer (a) is at most 5 % of the thickness of the entire composite film” as recited in instant claims 1 and 11 would have been obvious over the teachings of Fusarpoli given that a prima facie case of obviousness exists where the claimed ranges overlap or lie inside ranges disclosed by the prior art.
Fusarpoli further teaches that the heat-shrinkable film has a free shrink in both the machine and the transverse directions of at least 10%, preferably at least 15%, and more preferably at least 20% at 85°C (Paragraph 0073); and a total free shrink at 85°C of at least 45%, preferably at least 55%, and more preferably at least 60% measured according to ASTM D2732 (Paragraphs 0052 and 0355), thereby encompassing the claimed shrinkage ranges and thus reading upon and/or rendering obvious the instantly claimed shrinkage properties as recited in instant claims 1, 7, 11 and 17 given that a prima facie case of obviousness exists where the claimed ranges lie inside ranges disclosed by the prior art (see for example, MPEP § 2144.05); and although the non-limiting working examples were tested for free shrink at 85°C for 5 seconds, and tested for drop loss by packaging meat with an example heat-shrinkable film by immersion in hot water at 85°C for 3 seconds (Examples, Paragraphs 0475 and 0484), Fusarpoli provides a clear teaching and/or suggestion that the high shrinkage properties can be controlled and/or tailored by the selected layer materials and stretching conditions utilized during the manufacturing process as is typical in the art, based upon the intended end use of the heat-shrinkable film (Entire document).
With respect to the claimed stiffness properties as recited in amended claims 1 and 11, Fusarpoli discusses stiffness in the Background section, noting that in general, “an improved stiffness of the film is generally desirable as results in packages with less leakers, leakers which are due to accidental openings or ruptures during the packaging process or handling of the packages” while “[m]ore rigid films also provide for an improved machinability, which allows to decrease the rejects and increase the speed of the packaging cycles” (Paragraph 0008). Fusarpoli teaches that [a]dditionally, more stiff films provide for flexible containers which are easier to be aligned and loaded with the product” and “[f]inally, they generally show improved stability during bubble orientation and better printability; “[h]owever, in the case of shrinkable films, it has been observed that, an increase in the stiffness…often results in inferior shrinking properties or, in case a high shrink is anyway achieved, in worsened optical characteristics after shrink (e.g., gloss, haze)” (Paragraph 0009). Fusarpoli specifically teaches that “in relation to PVDC barrier heat shrinkable films, [Fusarpoli] has explored the possibility to improve film stiffness, meanwhile preserving optical and shrinking properties by introducing aromatic (co)polyesters in the film structure, in particular in the outer layer” (Paragraph 0029), and provides several working examples demonstrating the improvement in elastic modulus of composite film according to the invention with values ranging from a minimum of 8120 kg/cm2 (796 MPa) for a 74.9 µm film containing a PET outer layer of 8.5 µm thickness (11.3%, Example 3), to a maximum of 10800 kg/cm2 (1059 MPa) for a 60.1 µm film containing a PET outer layer of 17.6 µm thickness (29.3%, Example 1), in the longitudinal (machine) direction (LD), reading upon the claimed at least 350 MPa in the machine direction as instantly claimed; and 8070 kg/cm2 (791 MPa) for the 74.9 µm film containing the 8.5 µm thick PET outer layer (11.3%) to 13300 kg/cm2 (1304 MPa) for the 60.1 µm film containing the 17.6 µm thick PET outer layer (29.3%), in the transverse direction (TD) (with 791 MPa being slightly outside of the claimed at most 700 MPa endpoint) over Comparative Example 1 having an elastic modulus of 255 MPa in both the LD and TD but no PET outer layer, while maintaining very good overall shrinking properties, together with high free shrink values and low haze (Examples). Fusarpoli also provides a third example, Example 2, which has the same layer structure and layer materials as Example 3 but slightly different layer thicknesses and overall film thickness, wherein Example 2 has a total thickness of 90 µm with a PET outer layer of 9.5 µm (10.6%) with two thicker internal abuse resistant layers (17.7 µm for 39.3% in comparison to 11.9 µm for 31.8%) providing a modulus in the LD of 8450 kg/cm2 (829 MPa) and TD of 8230 kg/cm2 (807 MPa); and although Fusarpoli does not specifically teach an example having a combination of properties as instantly claimed, Fusarpoli does not limit the stiffness properties of the film such that the composite film has a modulus of elasticity measured according to DIN EN ISO 527 of at least 350 MPa and at most 700 MPa in the machine direction and in the transverse direction, respectively, as instantly claimed. However, given that Fusarpoli clearly teaches introducing the aromatic (co)polyesters in the film structure to improve the stiffness properties thereof, wherein the thickness of the outermost layer (b) consisting of the aromatic polyester may range from 1.5 to 35 microns and the weight of the aromatic polyester which is preferably only present in the outermost layer (b) relative to the total weight of the whole film is at least 3%; as well as the known “rule of mixture” with respect to multilayer films as a means for estimating the modulus of elasticity of a film (Ef) as is typical in the art, i.e. Ef = V1E1+V2E2+…VnEn, wherein V1, V2…Vn are the volume fractions of each layer and E1, E2…En are the modulus properties of each layer in bulk, the Examiner takes the position that the claimed modulus of elasticity properties would have been obvious over the teachings of Fusarpoli, particularly in light of the working examples, and that one having ordinary skill in the art before the effective filing date of the claimed invention would have been motivated to utilize routine experimentation to determine the optimum aromatic polyester layer (b) thickness and/or relative weight within the ranges taught by Fusarpoli to provide the desired improved stiffness properties for a particular end use of the multilayer film. Hence, absent any clear showing of criticality and/or unexpected results, the Examiner takes the position that the claimed invention as recited in instant claims 1, 4, 7, 11, 14, and 17 would have been obvious over the teachings of Fusarpoli, particularly given that Fusarpoli teaches a multilayer, coextruded, biaxially oriented barrier heat-shrinkable packaging film comprising the same layer materials and layer structure as in the instantly claimed invention, and manufactured by the same coextrusion and biaxial orientation process as discussed in detail above.
With respect to instant claims 2 and 12, it is again noted that Fusarpoli teaches that the aromatic (co)polyester of the outermost layer (b), as the instantly claimed layer (a), is preferably the PETs RAMAPET® N180 and RAMAPET® N1 by Indorama (Paragraph 0203), both of which have melting points higher than 170°C as instantly claimed, and given that Fusarpoli clearly teaches that the aromatic (co)polyester preferably has a melting point higher than 225°C (Paragraph 0187), the claimed invention as recited in instant claims 2 and 12 would have been obvious over the teachings of Fusarpoli.
With respect to instant claims 3 and 13, Fusarpoli teaches that the outer heat-sealable layer (a) forming an innermost layer of the packaging film comprises a polymer typically selected from those recited in Paragraphs 0176-0183, including ethylene vinyl acetate copolymers (EVA) and various polyolefins reading upon the resins of instant claims 3 and 13. Hence, the claimed invention as recited in instant claims 3 and 13 would have been obvious over the teachings of Fusarpoli.
With respect to instant claims 5-6 and 15-16, Fusarpoli teaches that in one embodiment, the film may comprise one or more optional internal abuse resistant layers that may contain polyamides, while alternatively, in another embodiment, the film does not comprise any abuse resistant layer (Paragraphs 0115-0136), and given that Fusarpoli teaches that the internal barrier layer (c) is formed from PVDC, with no layers of the film being taught as comprising ethylene-vinyl alcohol copolymer (EVOH) or any other layers aside from the optional internal abuse resistant layers comprising a polyamide, Fusarpoli clearly teaches and/or suggestions embodiments wherein “none of the layers of the composite film which are disposed between” the outermost layer (b) as the instant claimed layer (a) and the outer heat-sealable layer (a) as the instantly claimed layer (c) contains a polyamide (PA) as in instant claims 5 and 15, or an ethylene-vinyl alcohol copolymer (EVOH) as in instant claims 6 and 16. Hence, the claimed invention as recited in instant claims 5-6 and 15-16 would have been obvious over the teachings of Fusarpoli (Entire document).
With respect to instant claims 8 and 18, in addition to the discussion above with respect to suitable polymer resins for the heat-sealable layer (a) reading upon the claimed “seventh layer”, outermost layer (b) which preferably consists of the preferred PETs as the claimed “first layer”, and internal barrier layer (c) of PVDC as the claimed “fifth layer”; Fusarpoli teaches that the films can further comprise one or more additional layer(s) comprising acrylate-based resin, ethylene-vinyl acetate (EVA) or polyolefins, wherein the additional layer(s) can be inner layer(s), and given that Fusarpoli also teaches that the layers may be adhered to one another using an adhesive or tie layer(s) (Entire document, particularly Paragraphs 0092, 0242-0243, and 0254), Fusarpoli provides a clear teaching and/or suggestion of a multilayer structure as instantly claimed, particularly given working Example 1. Hence, instant claims 8 and 18 would have been obvious over the teachings of Fusarpoli given that it is prima facie obviousness to choose from a finite number of identified, predictable solutions, with a reasonable expectation of success.
With respect to instant claims 9 and 19, Fusarpoli teaches that the films “are characterized by haze values before shrink lower than 20%, preferably lower than 15%, more preferably lower than 12%, measured according to ASTM D1003” and given the haze values properties as reported in Table 5, instant claims 9 and 19 would have been obvious over the teachings of Fusarpoli (Paragraph 0318, Examples, Table 5).
Claims 1-9 and 11-19 are rejected under 35 U.S.C. 103 as being unpatentable over Zanaboni (WO2018/134224A1), for generally the reasons recited in the prior office action and restated below with respect to the amended claims.
As discussed in the prior office action, Zanaboni teaches “a multilayer packaging film characterized by an improved sealability even through contamination with excellent shrinkability good optics and strength without using internal layers of stiff resins and cross-linking, to flexible containers made therefrom, such as bags, pouches and the like, useful for packaging articles, in particular food items” (Abstract) and a process for manufacturing the film by coextrusion and biaxial orientation, wherein the film comprises at least an outer sealant layer (a), an outer polyester layer (b), an inner gas barrier layer (c), a first core layer (d1) positioned between the sealant layer (a) and the gas barrier layer (c), a second core layer (d2) positioned between the gas barrier layer (c) and the outer polyester layer (b), and no inner layer comprising a major portion of polyamide(s) (as in instant claims 5 and 15) or polyester(s) (page 5, line 22 – page 7, line 10). Zanaboni teaches that the sealant layer (a) is a heat-sealable layer that typically comprises EVA, linear ethylene alpha-olefin copolymers, PP, ethylene-propylene copolymers, ionomers, and blends of two or more thereof, particularly linear low density polyethylene (LLDPE), linear medium density polyethylene (LMDPE), and very low and ultra low density polyethylene (VLDPE and ULDPE), and most preferably a blend of two VLDPE resins (as in instant claims 3 and 13), with a seal initiation temperature lower than 110°C (page 15, line 22 – page 16, line 9); wherein the outer layer (b) comprises one or more polyester(s) having a melting point higher than the melting point of polymers in the heat sealant layer (a), preferably higher than 180°C (as in instant claims 2 and 12), such as poly(ethylene 2,6-naphthalate), poly(butylene terephthalate) (PBT), and particularly preferably PET, and admixtures thereof (page 16, line 18 – page 17, line 24). Zanaboni teaches that in a preferred embodiment, the polyester layer consists of a single polyester resin (reading upon the claimed “layer (a) consists of a polyester” as recited in instant claims 1 and 11), particularly preferred are PETs RAMAPET® N180 and RAMAPET® N1 by Indorama (page 17, lines 10-24) which as discussed above have a Vicat softening point as instantly claimed, such that the claimed “layer (a) consists of a thermoplastic resin having a Vicat softening temperature of about 100 °C, measured according to DIN EN ISO 306” (as standard method for measuring a Vicat softening temperature) would have been obvious to one having ordinary skill in the art given that it is prima facie obviousness to choose from a finite number of identified, predictable solutions, with a reasonable expectation of success.
Zanaboni teaches that the outer layer (b) of polyester has a thickness of at least 1.5 microns and at most 10 microns (as in instant claims 4 and 14), and preferably constitutes 3% to 15% of the total thickness of the film, overlapping the claimed “at most 5 % of the total thickness of the entire composite film with respect to the instantly claimed layer (a), thereby rendering the claimed thickness % range obvious to one having ordinary skill in the art (page 17, lines 25-33). Zanaboni teaches that the inner gas barrier layer (c) preferably comprises PVDC, wherein the PVDC resin preferably comprises a thermal stabilizer and a lubricating processing aid, which, for example, comprises one or more acrylates, with the term “PVDC” including copolymers with (meth)acrylate monomers (reading upon the claimed “polyvinylidene chloride (PVdC) which is a thermoplastic formed from vinylidene dichloride” as recited in amended claims 1 and 11; page 18, line 16-page 19, line 3), and given that Zanaboni specifically teaches example films comprising only one PVDC layer that is 100% PVDC, Zanaboni provides a clear teaching and/or suggestion that “the composite film has only one layer containing polyvinylidene chloride (PVdC) which is the layer (b)” as recited in amended claims 1 and 11 (Examples).
Zanaboni also teaches that the film may comprise one or more tie layer(s) to improve interlayer adhesion and/or one or more internal additional layer(s) of preferably acrylate-based resin, EVA or polyolefins, with the number of layers of the film ranging from 4 to 30, preferably 6 to 20, and even more preferably from 7 to 12 (page 23, line 30 - page 24, line 17), wherein the film can be produced by co-extrusion followed by biaxial orientation, with no cross-linking treatment of the film including irradiation by electron beam (as in the instantly claimed invention; page 25); and although Zanaboni teaches that “it may be preferable to split the co-extrusion step” (page 26, line 15) such that a “substrate” comprising the PVDC gas barrier layer (c) and the heat sealable layer (a) is coextruded with the remaining layers applied thereon by extrusion coating as in the examples and described on pages 26-28, Zanaboni clearly teaches and/or suggests that the composite film, as a whole, can be produced by coextrusion (e.g. all of the layers in a single extrusion step). Zanaboni specifically teaches that “it is possible to avoid both the crosslinking and the incorporation of rigid resins in multilayer barrier films for packaging, and to maintain at the same time good mechanical performance, thanks to the presence of internal layers of specific thickness and composition,” and that in particular, inserting internal core layers of selected composition, thickness and position in “conventional non-crosslinked multilayer barrier packaging films including a sealant layer, a barrier layer, a polyester outer layer and no internal layers made of stiff resins, surprisingly provides for tapes which are highly stretchable and stable at orientation and which result in films with very high free shrink, good bond among the adjacent layers, excellent sealability also through contamination, good optical properties, even after shrink, and mechanical strength suitable for conventional packaging applications” (page 5, lines 4-13). Zanaboni does not specifically limit the mechanical properties of their multilayer films, particularly the elastic modulus thereof as instantly claimed, however, Zanaboni does provide various non-limiting working examples having elastic modulus properties ranging from 3980 kg/cm2 (390 MPa) to 4720 kg/cm2 (463 MPa) in the LD (MD), and from 3990 kg/cm2 (391 MPa) to 4990 kg/cm2 (489 MPa) in the TD, at 23°C according to ASTM D 882, falling within the claimed ranges “of at least 350 MPa and at most 700 MPa in the machine and in the transverse direction, respectively” such that the instantly claimed stiffness properties when measured according to DIN EN ISO 527 (comparable to ASTM D 882) would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention (Examples, Tables 13-14). Zanaboni also teaches that the films are preferably characterized by a % free shrink in longitudinal or transverse direction of at least 35%, or at least 40%, at 85°C in water according to ASTM D2732, and preferably a total shrink at 85°C higher than 80%, more preferably higher than 90% (page 24, lines 27-31), thereby reading upon and/or suggesting shrinkage properties as recited in instant claims 1, 7, 11 and 17; and although the non-limiting working examples taught by Zanaboni were tested for free shrink by immersion in a heated water bath at 85°C for 5 seconds, and tested for linear tear propagation by being shrunk by immersion into hot water for 3-4 seconds (Examples), Zanaboni provides a clear teaching and/or suggestion that the high shrinkage properties of the film can be controlled and/or tailored by the selected layer materials and stretching conditions utilized during the manufacturing process as is typical in the art, based upon the intended end use of the heat-shrinkable film (Entire document). Hence, absent any clear showing of criticality and/or unexpected results, the Examiner takes the position that the claimed invention as recited in instant claims 1-5, 7, 11-15, and 17 would have been obvious over the teachings of Zanaboni, particularly given that Zanaboni teaches a multilayer, coextruded, biaxially oriented barrier heat-shrinkable packaging film comprising the same layer materials and layer structure as in the instantly claimed invention, and manufactured by the same coextrusion and biaxial orientation process as discussed in detail above.
With respect to instant claims 6 and 16, Zanaboni teaches that the inner gas barrier layer (c) may comprise at least one of the gas barrier polymers listed at page 18, lines 16-20, which includes PVDC and EVOH, however, given that Zanaboni clearly teaches that the inner gas barrier layer preferably comprises PVDC and teaches working examples comprising PVDC as the inner gas barrier layer and no EVOH layer between positioned between the outer layer and the sealant layer, the claimed invention as recited in instant claims 6 and 16 would have been obvious over the teachings of Zanaboni.
With respect to instant claims 8 and 18, Zanaboni teaches that in one embodiment, the biaxially oriented, coextruded multilayer packaging film having heat shrinkability and heat seal properties, that is formed as instantly claimed and have a general layer structure as recited in instant claims 1 and 11, including an outer sealant layer (a) of preferably VLDPE, an outer polyester layer (b) of preferably PET, and an inner gas barrier layer (c) of preferably PVDC as discussed in detail above, may further comprise a first core layer (d1) of preferably EVA positioned between the sealant layer (a) and the gas barrier layer (c), a second core layer (d2) of preferably EVA positioned between the gas barrier layer (c) and the outer polyester layer (b), such that Zanaboni clearly teaches a five-layer structure of PET/EVA/PVDC/EVA/PE, and given that Zanaboni also teaches that one or more tie layer(s) to improve interlayer adhesion, such as of modified polyethylene or modified EVA (page 23), and/or one or more internal additional layer(s), preferably consisting of acrylate-based resin, EVA or polyolefins (PO) as discussed above, may be further incorporated into the multilayer film, and that the multilayer film may preferably have 7 layers as discussed above, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to incorporate two additional tie and/or internal layers of EVA and/or PO between the outer polyester layer and the PVDC gas barrier layer of the above five-layer structure, particularly in light of the working examples, such that a seven-layer structure of polyester/tie/EVA/tie/PVDC/EVA/PE or a seven-layer structure of polyester/EVA/PO tie/EVA/PVDC/EVA/PE would have been obvious to one having ordinary skill in the art, and either would read upon the instantly claimed layered structure comprising at least seven layers as recited in instant claims 8 and 18. Hence, absent any clear showing of criticality and/or unexpected results, the claimed invention as recited in instant claims 8 and 18 would have been obvious over the teachings of Zanaboni given that it is prima facie obviousness to choose from a finite number of identified, predictable solutions, with a reasonable expectation of success.
With respect to instant claims 9 and 19, Zanaboni teaches that the films preferably have a haze value after shrink at 85°C in water, measured according to ASTM D1003, of not higher than 25%, preferably lower than 20%, and more preferably lower than 16% (page 25, lines 1-3), with the working examples specifically exhibiting 6% or less haze before shrink (Examples, Tables 13-14). Hence, the claimed invention as recited in instant claims 9 and 19 would have been obvious over the teachings of Zanaboni.
Response to Arguments
Applicant's arguments filed 6/16/2025 have been fully considered but are not persuasive with respect to the 112(a) rejection and the 103 rejections over Fusarpoli or Zanaboni as restated above with respect to the amended claims, particularly in light of the additional remarks under the Claim Interpretation section above Specifically, with respect to the 112(a) enablement rejection, the Applicant first argues:
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However, the Examiner again notes that given the definition and proper use of the term “respectively” as specifically recited in instant claims 1 and 11 following the two “respective” directions after the two MPa ranges, with no “special definition” provided by the Applicant for the term, one skilled in the art would clearly interpret the first range as corresponding to the first direction and the second range as corresponding to the second direction. If the Applicant’s intent is to require a range of at least 350 MPa and at most 700 MPa for both the machine direction and the transverse direction, then the Examiner suggests that the term “respectively” be deleted from the claims.
The Applicant also argues on pages 8-9 of the response:
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However, the Examiner first notes that the majority of the claims are not directed to a seven-layer structure; only claims 8 and 18 are directed to the seven-layer structure argued by the Applicant. It is also noted that of the limited seven-layer examples provided by the Applicant, none of the examples meet the claim limitations as recited in instant claims 1 and 11, and further, although a skilled artisan would be able to select from the suitable materials recited in the present specification for the respective layers of the claimed multilayered composite film and even able to coextrude a film such that the thickness of the outer layer is at most 5% as instantly claimed as argued by the Applicant, the Examiner again notes that the Applicant provides no guidance as to how one could determine what process parameters to modify or even could be modified in order to produce a composite film that meets the property limitations of the claimed invention or produce “inventive” examples in comparison to comparative examples falling outside of the claimed limitations, nor how to select from an almost limitless combination of the number of layers, layer materials including a vast number of possible polyesters and/or heat-sealable resin, and layer ordering/structures (and especially if the instantly claimed layer (b) is limited to one that consists of PVDC homopolymer as argued by the Applicant).
The Applicant then argues:
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However, the Examiner does not find these arguments persuasive and again notes that even Applicant’s