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 6/24/2025 has been entered. Claims 3, 8-10, 13 and 18-19 have been canceled. Claims 1-2, 4-7, 11-12, and 14-17 are pending in the application, with independent claim 1, the sole independent claim in the application, amended to now require at least seven layers with layer (a) or a first layer from the outside amended to now recite that the layer “consists of a polyester” as opposed to “layer (a) consists of a polyamide (PA)”.
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Note: the abbreviations “PVDC” and “PVdC” are utilized interchangeably below.
Claim Rejections - 35 USC § 112
Claim 2 is 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. Claim 2 recites the limitation " the thermoplastic resin of the first layer " in line 2 (and line 5), and also recites the limitation “the sealable resin of the seventh layer” in lines 3-4, however, there is insufficient antecedent basis for these limitations in the claim.
Claims 11-12 and 14-17 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. Claim 11 recites, “Multilayered, coextruded, non-crosslinked composite film, manufactured by the method according to claim 1; wherein the composite film comprises the following layered structure, counting from an outside to an inside, comprising seven layers, wherein: a first layer…consists of a polyester; a second layer…consists of an adhesion promoter (HV); a third layer…consists of a polyolefin (PO), an ethylene-vinyl acetate copolymer (EVA), an ionomer (IO), an ethylene-methyl methacrylate copolymer (EMMA), an ethylene-methacrylic acid copolymer (EMA), or any mixture thereof; a fourth layer…consists of an adhesion promoter (HV); a fifth layer…consists of polyvinylidene chloride (PVdC) which is a thermoplastic formed from vinylidene dichloride; a sixth layer…consists of an adhesion promoter (HV); and a seventh layer…consists of a polyolefin (PO), an ethylene-vinyl acetate copolymer (EVA), an ionomer (IO), an ethylene-methyl methacrylate (EMMA), an ethylene-methacrylic acid copolymer (EMA), or any mixture thereof; wherein the thickness of the first layer is at most 10 % of the thickness of the entire multilayered composite film” (emphasis added). However, given that claim 1 from which claim 11 depends already recites the same “wherein the composite film comprises the following layered structure…at most 10 % of the thickness of the entire multilayered composite film” limitation starting from “wherein the composite film” (as underlined and bolded above) to the end of the claim, duplication of the limitation in dependent claim 11 without referring to the layers and layer materials as “the” or “said” not only is redundant but also renders the claims indefinite given that it is unclear as to whether said layers and layer materials of claim 11 are meant to be the same or different from those already recited in claim 1, e.g. a second polyester mixed with a first polyester for a/the first layer, and particularly for those layers that recite “or any mixture thereof”. Hence, one having ordinary skill in the art would not be reasonably apprised of the scope of the claimed invention and could not interpret the metes and bounds of the claim so as to understand how to avoid infringement. Dependent claims 12 and 14-17 do not remedy the above.
Claim 12 is 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. Claim 12 recites the limitation " the thermoplastic resin of the first layer " in line 2 (and line 5), and also recites the limitation “the sealable resin of the seventh layer” in lines 3-4, however, there is insufficient antecedent basis for these limitations in the claim.
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 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 with respect to claim 11, the Examiner has again interpreted the redundant, repeated limitations as referring to the same limitations as already recited in claim 1.
Double Patenting
Claims 1-2 and 4-7 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 8 of copending Application No. 17/601906 (reference application), and similarly, Claims 11-12 and 14-17 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 18 of copending Application No. 17/601906. Although the claims at issue are not identical, they are not patentably distinct from each other because copending claim 8 encompasses all of the limitations of instant claims 1-2 and 4-7, either explicitly or implicitly, while copending claim 18 similarly encompasses all of the limitations of instant claims 11-12 and 14-17. More specifically, copending claim 8 is directed to a method of manufacturing a multilayered composite film including a step of co-extruding, a step of biaxial orientation, and omitting any crosslinking by means of radioactive radiation, wherein the composite film of copending claim 8 has the same layer structure, layer materials, and properties as instant claims 1-2 and 4-7; wherein with respect to instant clam 2, PET as the first layer of copending claim 8 has a melting temperature of 170 °C or higher; the “at most 5%” limitation of instant claim 4 is recited in copending claim 1 from which copending claim 8 depends; none of the layers of the layer structure of copending claim 8 disposed between the first and seventh layer contains polyamide or ethylene-vinyl alcohol copolymer as in instant claim 5 or instant claim 6, respectively; and the “at least 50%” shrinkage limitation of instant claim 7 is met by the “at least 50%” shrinkage limitation of copending claim 1 from which copending claim 8 depends. A similar analysis is made with respect to instant claims 11-12 and 14-17 over copending claim 18 as above with respect to instant claims 1-2 and 4-7 over copending claim 8.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claim Rejections - 35 USC § 103
Claims 1-2, 4-7, 11-12, and 14-17 are rejected under 35 U.S.C. 103 as being unpatentable over Fusarpoli (US2017/0066228A1). 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 “seventh layer”); 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 (Paragraphs 0192-0203, reading upon the instantly claimed “first layer”); 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 “fifth layer…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), and is produced by a method including a step of co-extruding at least layers (b), (c) and (a) 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 0186-0203), reading upon the claimed “first layer from the outside consists of a polyester” as in instant claims 1 and 11, and “the thermoplastic resin of the first layer has a melting temperature of 170 °C or higher” as in instant claims 2 and 12. Fusarpoli also teaches that the outermost layer (b) of aromatic polyester (reading upon the instantly claimed first layer that 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) (as the instantly claimed first layer) 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 takes the position that claimed “wherein the thickness of the first layer is at most 10 % of the thickness of the entire multilayered composite film” as recited in instant claims 1 and 11 as well as the claimed “thickness of the first layer is at most 5% of the thickness of the entire composite film” as recited in instant claims 4 and 14 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 teaches that the outer heat-sealable layer (a) forming an innermost layer of the packaging film (reading upon the claimed seventh layer) 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 1 and 11, wherein in the most preferred embodiment, the sealing layer (a) consists of a blend between two very low density polyethylene (VLDPE) resins (Paragraph 0182), reading upon the claimed “seventh layer…consists of a polyolefin (PO)…or any mixture thereof” of instant claims 1 and 11. 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, absent any clear showing of criticality and/or unexpected results, the claimed invention as recited in instant claims 1-2, 4, 11-12, and 14 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 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 first layer and the outer heat-sealable layer (a) as the instantly claimed seventh layer 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 7 and 17, 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 7 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). 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 7 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.
Claims 1-2, 4-7, 11-12, and 14-17 are rejected under 35 U.S.C. 103 as being unpatentable over Zanaboni (WO2018/134224A1). 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 (reading upon the instantly claimed “seventh layer”); 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 “first layer…consists of a polyester” as recited in instant claims 1 and 11; page 17, lines 10-24).
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 10 % of the thickness of the entire multilayered composite film” as in instant claims 1 and 11, as well as the claimed “at most 5 % of the total thickness of the entire composite film” as in instant claims 4 and 14, with respect to the instantly claimed first layer, thereby rendering the claimed thickness % range obvious to one having ordinary skill in the art (page 17, lines 25-33). Zanaboni teaches that preferably, the inner gas barrier layer (c) “comprises at least one gas barrier polymer selected among polyvinylidene chloride polymers (PVDC), vinylidene chloride/ methyl acrylate copolymers, ethylene-vinyl alcohol copolymers (EVOH), polyamides, acrylonitrile-based copolymers, polyesters and blend thereof, more preferably selected among polyvinylidene chloride polymers (PVDC) and vinylidene chloride/ methyl acrylate copolymers or their blends,” and given that at page 9, lines 15-16, Zanaboni recites, “As used herein, the term ‘polymer’ refers to the product of a polymerization reaction, and is inclusive of homo-polymers, and co-polymers” (emphasis added), Zanaboni clearly teaches and/or suggests the instantly claimed “fifth layer…consist of polyvinylidene chloride (PVdC) which is a thermoplastic formed from vinylidene dichloride” (page 18, line 16-page 19, line 3), particularly in light of the 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 teaches that in one embodiment, the biaxially oriented, coextruded multilayer packaging film having heat shrinkability and heat seal properties, that is formed by a general method as instantly claimed and having a layer structure including an outer sealant layer (a) of preferably VLDPE (as the instantly claimed seventh layer), an outer polyester layer (b) of preferably PET (as the instantly claimed first layer), and an inner gas barrier layer (c) of preferably PVDC as discussed in detail above (as the instantly claimed fifth layer), 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 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 and/or render obvious the instantly claimed layered structure comprising at least seven layers as recited in instant claims 1 and 11. Hence, absent any clear showing of criticality and/or unexpected results, the claimed invention as recited in instant claims 1-2, 4-5, 11-12, and 14-15 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 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 consisting of 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 7 and 17, 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 7 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).
Response to Arguments
Applicant’s arguments filed 6/24/2025 have been considered but are not persuasive and/or moot in view of the new grounds of rejection presented above as well as the additional remarks in the Claim Interpretation section with respect to the claimed “polyvinylidene chloride (PVdC) which is a thermoplastic formed from vinylidene dichloride” as recited in instant claims 1 and 11, wherein in addition to the above discussion with respect to the definition or accepted meaning of PVDC in the art (as evidenced by the above cited references) and the lack of a “special definition” in the instant specification, the Examiner notes that the recitation “formed from vinylidene dichloride” as recited in instant claims 1 and 11 does not limit the PVDC to “pure” PVDC and/or PVDC homopolymer and/or exclude the incorporation of other co-monomers from which the PVDC is formed, as argued by the Applicant (see pages 10-11 of the response). Further, although Zanaboni recites that the PVDC resin preferably comprises a thermal stabilizer and lubricating processing aid as argued by the Applicant on page 10 of the response, Zanaboni does not specifically require said additives, and teaches an example utilizing 100% PVDC, and further given that a “nonpreferred portion of a reference disclosure is just as significant as the preferred portion in assessing the patentability of claims.” (In re Nehrenberg, 280 F.2d 161, 126 USPQ 383 (CCPA 1960)), Applicant’s arguments over Zanaboni, as may be applied to the above obviousness rejection over Zanaboni, are not persuasive.
The Applicant also argues in the paragraph bridging pages 10-11 that by “[l]imiting the PVdC polymer material to pure PVdC not containing any methacrylate monomers results in a higher stiffness of the resulting film which is in accordance with Claim 1” and that “[t]his achieves a high processability (in stretching and further processing), wherein “[i]n contrast, the inclusion of methyl acrylate [as in Zanaboni] enhances the flexibility and thereby lowers the stiffness of the film,” arguing that “[t]hus, the addition of methacrylate monomers allegedly teaches away from Claim 1.” The Applicant further argues that “Zanaboni discloses in all Examples 1 to 17 and Comparative Examples C1 to C6 film structures having nine layers wherein the PVDC containing layer is the sixth layer if the outermost layer of the PET is considered the first layer” which “is a completely different structure compared to Claim 1 which comprises seven layers with the fifth layer being the one consisting of PVdC homopolymer.” However, the Examiner respectfully disagrees and notes that the instant claims do not recite “PVdC homopolymer” as argued by the Applicant, and given that specification does not provide a “special definition” to limit the claimed PVDC to the homopolymer only, Applicant’s arguments regarding “PVdC homopolymer” are not persuasive. The Examiner also notes that the instant disclosure at the time of filing provides no discussion with respect to limiting the claimed PVdC to PVdC homopolymers nor that incorporating a comonomer in the PVDC, as is conventional in the art as evidenced by the references cited in the Claim Interpretation section above, would be a teaching away from the instant invention, such that the Applicant’s arguments actually appear to be arguing an invention that was not disclosed at the time of filing. As to the examples of Zanaboni that are allegedly “a completely different structure compared to Claim 1”, it is noted that Zanaboni clearly states that the examples “are merely illustrative and are not to be interpreted as a limitation to the scope of the…invention that is defined by the appended claims” (Page 31, lines 25-27), and given that Zanaboni clearly recites in the claims that the film comprises at least the outer sealant layer (a), outer polyester layer (b), inner gas barrier layer (c), first core layer (d1) positioned between the sealant layer (a) and the gas barrier layer (c), and a second core layer (d2) positioned between the gas barrier layer (c) and the outer polyester layer (b) (Claim 1), e.g. a layer structure of: (b)//(d2)//(c)//(d1)//(a) with “//” indicating that additional layers may be therebetween; wherein layer (b) preferably consists of polyester (Claim 4), layer (c) preferably consists of PVDC (Claim 7), layers (d1) and (d2) consist of polymers reading upon the HV and/or polymers of the instantly claimed second, third, fourth, and/or sixth layers (Claims 1 and 9); and further recites in the specification that the sealable layer (a) preferably consists of VLDPE (pages 15-16), and that the film may further include one or more tie and/or additional layer(s) such as formed of EVA (Page 7, line 30-Page 8, line 2; Page 19-Page 24, line 4; Page 24, line 9), wherein the number of layers of the films is even more preferably 7 to 12 layers (Page 24, lines 15-17), Applicant’s arguments that the non-limiting examples are allegedly “completely different” from the claimed invention are not persuasive as would be applied to the above obviousness rejection over Zanaboni.
Any objection or rejection from the prior office action not restated above has been withdrawn by the Examiner in light of Applicant’s claim amendments and arguments filed 6/24/2025.
Citation of pertinent prior art
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Kitada (EP3489012A1) discloses a heat-shrinkable, co-extruded multilayer film comprising an inner product-containing surface layer of EVA, a barrier layer of vinylidene chloride-based resin, and optional intermediate layers formed from VLDPE or EVA, and/or other layers such as formed from VLDPE, PET, nylons and other polyamides, with an example seven-layer structure of VLDPE/EVA/EMA/PVDC/EMA/EVA/EVA.
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 MONIQUE R JACKSON whose telephone number is (571)272-1508. The examiner can normally be reached Mondays-Thursdays from 10:00AM-5:00PM.
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/MONIQUE R JACKSON/Primary Examiner, Art Unit 1787