DETAILED ACTION
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Drawings
The drawings were received on 17 November 2025. These drawings are acceptable.
Claim Rejections - 35 USC § 103
Claims 1, 3-5, 7, 8, 10, and 12-15 are rejected under 35 U.S.C. 103 as being unpatentable over Wang et al. (US 2016/0272389).
Wang is directed to a laminate used to make a packaging tube (paragraph 0001). The laminate comprises: an outer sealant layer, a paper layer, a barrier layer, and an inner sealant layer (paragraph 0005-0009). The tube is formed by rolling the laminate to form an overlapping side seam (Figures 2 A/B and paragraph 0072). A tie layer may present between the barrier layer and the inner sealant layer (paragraph 0016). The outer sealant layer may be formed of polypropylene (paragraph 0053). The inner sealant layer may be formed of polypropylene (paragraph 0057) having a thickness of as high as 100 microns (paragraph 0060). The inner sealant layer may be a cast film (paragraph 0061). The inner sealant layer may have high flowability, including a melt flow rate as high as 10 g/10 min, to ensure deformation and flow at the side seam during heat sealing of the tube such that the inner sealant layer covers up the edges of the other layers at the side seam (Figure 4 and paragraph 0059). The barrier layer may be a polypropylene film coated with silicon oxide or a metal barrier (paragraph 0062). The total thickness of the laminate is 200 to 400 micron (paragraph 0068).
The outer and inner sealant layers read on the outer and inner layers of the claims; the polypropylene film coating with silicon oxide reads on the barrier layer comprising an oxide material (i.e., the silicon oxide) an a carrier layer (i.e., the polypropylene film).
While Wang do not illustrate an embodiment wherein polypropylene is used to form the inner and outer sealant layers, it would have been obvious to one of ordinary skill in the art to use any of the materials explicitly disclosed by Wang for the sealant layers. Additionally, one of ordinary skill in the art would have immediately envisaged that the inner sealant layer has a higher ability to flow and higher melt flow rate than any component in the barrier layer since it is designed to flow during sealing and cover up the edges of the other layers.
Regarding claims 5 and 12, since the ranges of melt flow indices for the inner sealant and thicknesses for the inner sealant layer and overall laminate overlap the ranges recited in these claims, the courts have held that a prima facie case of obviousness exists. See MPEP 2144.05.
Regarding claim 7, one of ordinary skill in the art would expect that, if a first polymer has a higher melt flow index than a second polymer, the first polymer would inherently have a lower molecular weight than the second polymer.
Regarding claim 13, in the absence of a showing of criticality or unexpected results, it would have been obvious to one of ordinary skill in the art to position the barrier layer such that the oxide layer was oriented towards either face of the laminate, including the inner sealant layer.
Regarding claim 14, the laminate of Wang is taken to have a "substantially symmetrical" structure on either side of the barrier layer since the paper layer is the only component on one side of the barrier layer that does not have a complementary layer on the other side.
Claims 2 and 9 are rejected under 35 U.S.C. 103 as being unpatentable over Wang et al. (US 2016/0272389) in view of Miyake et al. (JP 2000-211627).
Wang suggests all the limitations of claims 2 and 9, as outlined above, except for: the use of an aluminum oxide as coating for the barrier layer (claim 2) and the use of biaxially oriented polypropylene for the barrier layer (claim 9). Wang does suggest using oriented, metallized, polypropylene as the barrier layer (paragraph 0062).
Miyake is directed to a container body formed by sealing the edge seam of a rolled laminate (paragraph 0021 and Figure 4). The laminate comprises: a cast polypropylene layer outer layer, a paper layer, a barrier layer, and a cast polypropylene inner layer (paragraph 0023). The barrier layer may be biaxially oriented polypropylene film on which has been deposited a thin film of silicon oxide or aluminum oxide (paragraph 0025).
Regarding claim 2, Miyake shows that silicon oxide and aluminum oxide are known in the art as functionally equivalent structure for forming barrier layers in laminates used to make containers having an overlapping side seam. Therefore, because these two materials were art-recognized equivalents at the time the invention was made, one of ordinary skill in the art would have found it obvious to substitute aluminum oxide for the silicon oxide in the barrier layer of Wang.
Regarding claim 9, Miyake show that it is known to use biaxially oriented polypropylene films as barrier layers in laminates used to form tubes through the use of overlapping seals. The courts have held the selection of a known material (e.g., biaxially oriented polypropylene film) based on its suitability for its intended use (e.g., base layer in a barrier film to be coated with an oxide) supported a prima facie obviousness determination. See MPEP 2144.07.
Claim 6 is rejected under 35 U.S.C. 103 as being unpatentable over Wang et al. (US 2016/0272389) in view of Su et al. (US 2003/0049475).
Wang suggests all the limitations of claim 6, as outlined above, except for the melt flow index of the polypropylene used in the barrier layer.
Su is directed to a polyolefin film comprising a skin seal layer and a core metallized layer (paragraph 0017). The core layer is preferably a polypropylene having a preferred melt flow index of 1 to 3 g/10 min (paragraph 0024).
It would have been obvious to one of ordinary skill in the art to use a polypropylene having a melt flow index of 1 to 3 g/10 min as the polypropylene for the barrier layer of Wang since the courts have held the selection of a known material based on its suitability for its intended use supported a prima facie obviousness determination. See MPEP 2144.07.
Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable over Wang et al. (US 2016/0272389) in view of Jammet et al. (US 2017/0080669).
Wang suggests all the limitations of claim 11, as outlined above, except for the use of a crosslinked polyurethane as the tie layer.
Jammet is directed to a tube formed from a rolled laminate with an overlapping seam (paragraphs 0008-0017 and Figure 1). The layers may be assembled using an adhesive, such as one comprising polyurethane.
It would have been obvious to one of ordinary skill in the art to use a polyurethane as the adhesive in the laminate of Wang since the courts have held the selection of a known material (e.g., polyurethane) based on its suitability for its intended use (e.g., tie layer in a laminate used to form a tube with an overlapping seam) supported a prima facie obviousness determination. See MPEP 2144.07. Moreover, since the polyurethane is not specified as thermoplastic polyurethane, one of ordinary skill in the art would immediately envisage the use of a crosslinked polyurethane as the tie layer since urethane-based adhesives are typically crosslinked. Alternatively, it would have been obvious to use a crosslinked polyurethane based on the limited number of types of polyurethanes available (i.e., two - crosslinked and non-crosslinked).
Response to Arguments
Applicant's arguments filed 17 November 2025 have been fully considered but they are not persuasive.
The applicant argues that Wang discloses the possibility of obtaining a laminated layer comprising inner and outer layers comprising polypropylene and a barrier layer comprising an oxide material barrier and a carrier layer made of polypropylene, but that this possibility requires making choices that are not suggested or exemplified. Rather, the applicant argues that one of ordinary skill in the art reading Wang would be encouraged to use inner and outer layers of polyethylene and metal foil as a barrier.
This is not persuasive since Wang explicitly teaches that the inner and outer layers may be polypropylene and the barrier layer may be an oxide barrier material on a polypropylene carrier layer. The courts have held that disclosed examples or preferred embodiments do not constitute a teaching away from a broader disclosure or nonpreferred embodiments. See MPEP 2123.
The applicant argues that Wang teaches that both the inner and outer layer have high flow, citing paragraphs 0054 and 0059.
This is not persuasive because, while Wang teaches an embodiment wherein the outer layer has a high flow (paragraph 0054) and an embodiment wherein the inner layer has a high flow (paragraph 0059), there is no indication that these both must be in the same embodiment. Additionally, since the benefits of provided by an inner or outer layer having high flow appear to be the same (i.e., covering up the edges of the other layers at the side seam, thus protecting them from contact with the contents of the tube and minimizing or eradicating water penetration), one of ordinary skill in the art would have a reasonable expectation of success in employing a tube wherein only one of the inner and outer layer has high flow.
The applicant argues that, since there is no internal paper layer in the claimed laminated material, one of ordinary skill in the art would have no reason to want to protect the internal layers at the side seam.
This is not persuasive since the claims as written do not exclude the presence of a paper layer. Rather, the claims are written with open language and therefore open to the inclusion of any other layer, including a paper layer.
Additionally, in view of the arguments presented on page 8 of the response filed 17 November 2025, the inner and outer layer of claim 8 are understood to consist of polypropylene.
Conclusion
THIS ACTION IS MADE FINAL. 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 RAMSEY E ZACHARIA whose telephone number is (571)272-1518. The best time to reach the examiner is weekday afternoons, Eastern time.
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/RAMSEY ZACHARIA/Primary Examiner, Art Unit 1787