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 .
Information Disclosure Statement
The information disclosure statements (IDSes) submitted on January 15, 2026, April 13, 2026, and April 20, 2026 were filed after the mailing date of the Non-Final Rejection mailed on January 14, 2026. The submissions are in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statements are being considered by the examiner.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102 of this title, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 1, 5-8, 10, 12-13, 17, and 21 are rejected under 35 U.S.C. 103 as being unpatentable over Andreae et al. US 2017/0008694 in view of Monforton et al. US 2019/0077571, Mintus et al. US 2015/0104546, Labeque et al. US 2017/0298308, and Neuman et al. US 2015/0174867 as further evidenced by Khan et al. US 2016/0024326.
Regarding Claim 1, Andreae et al. discloses a capsule comprising a capsule body (housing 22) composed of at least one polysaccharide (starch) (‘694, Paragraphs [0007], [0009], and [0027]). The capsule body (housing 22) necessarily has an innermost and outermost surface. The capsule body is filled with a beverage powder of coffee (coffee) (‘694, Paragraph [0055]). The capsule body (housing 22) is completely encased over by at least one first coating layer (material layers 25, 26 made of PLA) (‘694, FIG. 5) (‘694, Paragraph [0064]).
Andreae et al. discloses the capsule body being made with a PVOH layer that acts as an oxygen barrier wherein the PVOH oxygen barrier layer is completely encased by at least one coating layer (PLA layers 25, 26) that serves as a moisture barrier (‘694, FIG. 5) (‘694, Paragraph [0064]). However, Andreae et al. is silent regarding the at least one coating layer that serves as a moisture barrier is made of only at least one polyvinyl alcohol. Andreae et al. is also silent regarding the at least one first coating layer having a thickness of from 0.5 to 10 µm.
Monforton et al. discloses a beverage container (package containing a beverage) (‘571, Paragraph [0069]) comprising a container body (package 200) composed of at least one polysaccharide (starches) (‘571, Paragraph [0029]) containing dry food powders (‘571, Paragraph [0021]). The container body (package 200) is completely encased over the container body inner or outer surface by at least one first coating layer (first outer layer 20 and second outer layer 30) (‘571, FIG. 2) (‘571, Paragraph [0073]). Monforton et al. further discloses the at least one first coating layer (first outer layer 20 and second outer layer 30) comprising at least one polyvinyl alcohol (PVOH) (‘571, Paragraph [0053]) wherein the polymeric composition comprises a homopolymer (‘571, Paragraph [0038]). The disclosure of a homopolymer made of PVOH reads on the claimed at least one first coating layer being made of only at least one polyvinyl alcohol.
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Both Andreae et al. and Monforton et al. are directed towards the same field of endeavor of beverage containers made of multilayered polymers having at least one first coating layer that serves as a moisture barrier. Andreae et al. discloses the at least one coating layer to serve as a moisture barrier (‘694, FIG. 5) (‘694, Paragraph ([0064]). Monforton et al. discloses at least one coating layer (first outer layer 20 and second outer layer 30) comprising at least one polyvinyl alcohol (‘571, Paragraph [0053]) comprising a homopolymer (‘571, Paragraph [0038]) wherein the at least one coating layer (first outer layer 20 and second outer layer 30) serves as one or both of the outer layers of a multilayer moisture barrier (‘571, Paragraph [0062]). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the beverage container of Andreae et al. that uses only polylactic acid as the at least one coating layer that serves as a moisture barrier to be made out of only at least one polyvinyl alcohol homopolymer as taught by Monforton et al. since the selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination in view of Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) (MPEP § 2144.07). Monforton et al. teaches that there was known utility in the beverage container art to use only at least one polyvinyl alcohol homopolymer as a material in the construction of at least one coating layer that entirely encases a beverage container body over the container body inner or outer surface that has moisture barrier properties.
Further regarding Claim 1, Monforton et al. discloses the at least one first coating layer (first outer layer 20 and second outer layer 30) having any suitable thickness such as from about 0.0001” to about 0.001” each (‘571, Paragraph [0057]), which converts to about 2.54 µm to about 25.4 µm, which overlaps the claimed at least one coating layer thickness of from 0.5 to 10 µm. The first and outer layer is formed of any suitable polymer such as polyvinyl alcohol (‘571, Paragraph [0053]) wherein the polymeric composition is a homopolymer (‘571, Paragraph [0038]). Where the claimed thickness of the at least one polyvinyl alcohol homopolymer containing coating layer ranges overlaps thicknesses of the at least one first coating layer ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.).
Further regarding Claim 1, Andreae et al. discloses the capsule body being filled with coffee (‘694, Paragraphs [0055] and [0065]). However, Andreae et al. modified with Monforton et al. is silent regarding the coffee that fills the capsule body being a coffee that is a polysaccharide containing material and the coffee being in powder form.
Mintus et al. discloses a capsule comprising a capsule body filled with a polysaccharide containing material (coffee powder coated with polysaccharides of starch) wherein the coffee is a coffee powder (‘546, Paragraphs [0005], [0011], [0017], and [0019]).
Both modified Andreae et al. and Mintus et al. are directed towards the same field of endeavor of coffee capsules filled with coffee. Andreae et al. discloses a capsule comprising a housing filled with ground coffee (‘694, Paragraphs [0004], [0039], and [0055]). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the capsule containing coffee of Andreae et al. and incorporate into the capsule body coffee that is coated with a starch polysaccharide and the coffee being a coffee powder as taught by Mintus et al. since the selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination in view of Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) (MPEP § 2144.07). Mintus et al. teaches that there was known utility in the coffee capsule art to incorporate both a coffee powder and a starch based polysaccharide that coats coffee within the capsule body.
Further regarding Claim 1, Andreae et al. modified with Monforton et al. and Mintus et al. is silent regarding the at least one first coating layer of PVOH having a weight average molecular weight measured by gel permeation chromatography using a polystyrene standard of from 9000 to 120000 g/mol wherein the at least one polyvinyl alcohol or polyvinyl alcohol copolymer has a viscosity of 3 to 110 mPa*s in a 4% aqueous solution at 20°C.
Labeque et al. discloses a capsule (pouch) comprising a capsule body composed of at least one first coating layer (a water soluble film including a polyvinyl alcohol resin blend) (‘308, Paragraph [0001]) wherein it is known in the art that the viscosity of a water soluble polymer such as PVOH is correlated with the weight average molecular weight of the same polymer and often the viscosity is used as a proxy wherein the weight average molecular weight of the PVOH polymer can be in a range of about 30000 to about 175000 (‘308, Paragraph [0075]), which overlaps the claimed weight average molecular weight of from 9000 to 120000 g/mol. Labeque et al. discloses that the water soluble film includes homopolymers of PVOH polymers (‘308, Paragraph [0059]). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the weight average molecular weight of the at least one first coating layer of PVOH to fall within the claimed weight average molecular weight as taught by Labeque et al. since where the claimed weight average molecular weight of the at least one first coating layer of PVOH ranges overlaps weight average molecular weight of the at least one first coating layer of PVOH disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.).
Further regarding Claim 1, in the event that it can be argued that Labeque et al. does not disclose the measurement standards at which the weight average molecular weight being measured by gel permeation chromatography using specifically a polystyrene standard and only discloses measurement using a generic eluent and does not necessarily teach the claimed weight average molecular weight using the claimed polystyrene standard, Labeque et al. also teaches it is known in the art that the viscosity of a water soluble polymer such as PVOH is correlated with the weight average molecular weight of the same polymer and often the viscosity is used as a proxy (‘308, Paragraph [0075]). Differences in the weight average molecular weight of the at least one first coating layer of PVOH will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such weight average molecular weight of the at least one first coating layer of PVOH is critical. One of ordinary skill in the art would adjust the weight average molecular weight of the at least one first coating layer of PVOH based upon the desired viscosity of PVOH used. It is noted that Kahn et al. provides evidence that the weight average molecular weight is measured by gel permeation chromatography in an appropriate eluent (‘326, Paragraph [0053]).
Further regarding Claim 1, Andreae et al. modified with Monforton et al., Mintus et al., and Labeque et al. is silent regarding the at least one first coating layer comprising polyvinyl alcohol having a gas permeability of less than 3 cm3/m2/day/1.01325 MPa at a layer thickness of 1 µm.
Neuman et al. discloses a sheet used to make packaging articles useful to package solid and liquid food substances (‘867, Paragraph [0101]) wherein the sheet is a multilayered biodegradable sheet having a barrier layer that reduces gas permeation rate (‘867, Paragraph [0120]) wherein the biodegradable sheet includes a gas barrier material of polyvinyl alcohol (PVOH), which is a highly polar gas barrier material that exhibits weak interaction with low polarity gases of oxygen and carbon dioxide and which reduces the permeability of gases through the sheet and the PVOH is modified with any appropriate crosslinker to better compatibilize it with the other polymer layers (‘867, Paragraph [0136]).
Both modified Andreae et al. and Neuman et al. are directed towards the same field of endeavor of multilayered food packages comprising at least one barrier coating layer made of polyvinyl alcohol (‘694, Paragraph [0009]) (‘867, Paragraphs [0101] and [0136]). Applicant discloses the at least one first coating layer having a low gas permeability (Specification, Page 3, lines 25-27). Although Neuman et al. does not explicitly teach the exact low gas permeability as claimed, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the gas permeability of the at least one first barrier coating layer of PVOH of modified Andreae et al. to be reduced/low where gas permeability is undesirable as taught by Neuman et al. in order to prevent oxidation of the contents of the capsule. Furthermore, differences in the gas permeability of the at least one coating layer of PVOH will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such gas permeability of the at least one coating layer of PVOH is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). One of ordinary skill in the art would adjust the gas permeability of the at least one first barrier coating layer of modified Andreae et al. to be sufficiently low to prevent oxidation of the interior contents of the multilayered food package.
Further regarding Claim 1, the limitations “in a coffee machine by introducing water into the capsule” are seen to be recitations regarding the intended use of the “capsule.” In this regard, applicant’s attention is invited to MPEP § 2114.I. and MPEP § 2114.II. which states features of an apparatus may be recited either structurally or functionally in view of In re Schreiber, 128 F.3d 1473, 1478, 44 USPQ2d 1429, 1432 (Fed. Cir. 1997). If an examiner concludes that a functional limitation is an inherent characteristic of the prior art, then to establish a prima facie case of anticipation or obviousness, the examiner should explain that the prior art structure inherently possess the functionally defined limitations of the claimed apparatus in view of In re Schreiber, 128 F.3d at 1478, 44 USPQ2d at 1432. See also Bettcher Industries, Inc. v. Bunzl USA, Inc., 661 F.3d 629, 639-40,100 USPQ2d 1433, 1440 (Fed. Cir. 2011). The burden then shifts to applicant to establish that the prior art does not possess the characteristic relied on in view of In re Schreiber, 128 F.3d at 1478, 44 USPQ2d at 1432; In re Swinehart, 439 F.2d 210, 213, 169 USPQ 226, 228 (CCPA 1971). Additionally, apparatus claims cover what a device is, not what a device does in view of Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed. Cir. 1990). A claim containing a recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus if the prior art apparatus teaches all the structural limitations of the claimed in view of Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987). Furthermore, if the prior art structure is capable of performing the intended use, then it meets the claim. Nevertheless, Andreae et al. discloses using the capsule in a capsule holder of a coffee machine wherein hot water is passed into the capsule holder and into the capsule (‘694, Paragraphs [0071]-[0072]).
Regarding Claim 5, Neuman et al. discloses a sheet used to make packaging articles useful to package solid and liquid food substances (‘867, Paragraph [0101]) wherein the sheet is a multilayered biodegradable sheet having a barrier layer that reduces gas permeation rate (‘867, Paragraph [0120]) wherein the biodegradable sheet includes a gas barrier material of polyvinyl alcohol (PVOH), which is a highly polar gas barrier material that exhibits weak interaction with low polarity gases of oxygen and carbon dioxide and which reduces the permeability of gases through the sheet and the PVOH is modified with any appropriate crosslinker to better compatibilize it with the other polymer layers (‘867, Paragraph [0136]).
Both modified Andreae et al. and Neuman et al. are directed towards the same field of endeavor of multilayered food packages comprising at least one barrier coating layer made of polyvinyl alcohol (‘694, Paragraph [0009]) (‘867, Paragraphs [0101] and [0136]). Applicant discloses the at least one first coating layer having a low gas permeability (Specification, Page 3, lines 25-27). Although Neuman et al. does not explicitly teach the exact low gas permeability as claimed, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the gas permeability of the at least one barrier coating layer of PVOH of modified Andreae et al. to be reduced/low where gas permeability is undesirable as taught by Neuman et al. in order to prevent oxidation of the contents of the capsule. Furthermore, differences in the gas permeability of the at least one coating layer of PVOH will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such gas permeability of the at least one coating layer of PVOH is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). One of ordinary skill in the art would adjust the gas permeability of the at least one first barrier coating layer of modified Andreae et al. to be sufficiently low to prevent oxidation of the interior contents of the multilayered food package.
Regarding Claim 6, Monforton et al. discloses the at least one coating layer (first outer layer 20 and second outer layer 30) comprising 2 layers wherein each comprises at least one polyvinyl alcohol (‘571, FIG. 2) (‘571, Paragraphs [0053] and [0073]) wherein the polymeric composition is a homopolymer (‘571, Paragraph [0038]). The disclosure of 2 layers of the at least one coating layer (first outer layer 20 and second outer layer 30) falls within the claimed at least one first coating layer comprising 1 to 5 layers.
Regarding Claim 7, Andreae et al. discloses the at least one first coating layer (material layers 25, 26) (‘694, FIG. 5) (‘694, Paragraph [0064]) being coated with at least one second coating layer (coating of additional material layer) wherein the at least one second coating layer (coating of additional material layer) comprises a polysaccharide (cellulose) (‘694, Paragraph [0007]).
Regarding Claim 8, Andreae et al. discloses the at least one second coating layer (additional moisture impermeable coating material layer) being a polysaccharide that is cellulose (‘694, Paragraph [0007]) wherein the barrier layer has a crosslinking agent (‘694, Paragraph [0012]).
Regarding Claim 10, Andreae et al. discloses the at least one second coating layer (additional moisture impermeable coating material layer) (‘694, Paragraph [0007]) comprising fibers (‘694, Paragraph [0008]).
Regarding Claim 12, Andreae et al. discloses the capsule body being composed of one or more layers of crosslinked polysaccharide (‘694, Paragraphs [0007], [0012], and [0027]).
Regarding Claim 13, Mintus et al. discloses the capsule body being filled with polysaccharide containing material in the form of a pellet (sugarcoated coffee powder or tablet) (‘546, Paragraphs [0038]-[0039]).
Regarding Claim 17, Andreae et al. discloses the fibers being cellulose fibers (‘694, Paragraphs [0027] and [0029]).
Regarding Claim 21, the limitations “wherein the pellet was obtained by pressing at a pressure of 0.01 to 1000 MPa” are product by process limitations. Even though product by process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product by process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process in view of In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985) (citations omitted) (MPEP § 2113.I.).
Claims 9, 16, and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Andreae et al. US 2017/0008694 in view of Monforton et al. US 2019/0077571, Mintus et al. US 2015/0104546, Labeque et al. US 2017/0298308, and Neuman et al. US 2015/0174867 as further evidenced by Khan et al. US 2016/0024326 as applied to claim 8 or claim 12 above in further view of Massey et al. US 2013/0142915.
Regarding Claims 9 and 16, Andreae et al. discloses the at least one second coating layer (additional moisture impermeable coating material layer) being a polysaccharide (‘694, Paragraph [0007]). However, Andreae et al. modified with Monforton et al., Mintus et al., Labeque et al., and Neuman et al. is silent regarding the polysaccharide of the at least one second coating layer being an alkaline earth metal alginate. Applicant discloses that calcium is a type of alkaline earth metal alginate (Specification, Page 5, lines 25-26).
Massey et al. discloses a capsule comprising a capsule body composed of at least one polysaccharide of a coating layer made with an alkaline earth metal alginate (calcium alginate) (‘915, Paragraph [0062]).
Both modified Andreae et al. and Massey et al. are directed towards the same field of endeavor of capsules comprising a capsule body composed of at least one polysaccharide and at least one first coating layer. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the capsule of modified Andreae et al. and incorporate an alkaline earth calcium alginate as the polysaccharide material of the at least one second coating layer as taught by Massey et al. since the selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination in view of Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) (MPEP § 2144.07). Massey et al. teaches that there was known utility in the coffee capsule art to incorporate an alkaline earth calcium alginate as the polysaccharide material that constitutes the barrier coating layer.
Regarding Claim 20, Andreae et al. discloses the at least one second coating layer (additional moisture impermeable coating material layer) being a polysaccharide (‘694, Paragraph [0007]) wherein the barrier layer has a crosslinking agent (‘694, Paragraph [0012]). However, Andreae et al. modified with Monforton et al., Mintus et al., Khan et al., Labeque et al., and Neuman et al. is silent regarding the crosslinked polysaccharide of the capsule body being an alginate. Applicant discloses that calcium is a type of alkaline earth metal alginate (Specification, Page 5, lines 25-26).
Massey et al. discloses a capsule comprising a capsule body composed of at least one polysaccharide of a coating layer made with an alkaline earth metal alginate (calcium alginate) (‘915, Paragraph [0062]).
Both modified Andreae et al. and Massey et al. are directed towards the same field of endeavor of capsules comprising a capsule body composed of at least one polysaccharide and at least one first coating layer. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the capsule of modified Andreae et al. and incorporate an alginate as the crosslinked polysaccharide material of the capsule body as taught by Massey et al. since the selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination in view of Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) (MPEP § 2144.07). Massey et al. teaches that there was known utility in the coffee capsule art to incorporate an alginate as the polysaccharide material of the capsule body.
Claims 11 and 18-19 are rejected under 35 U.S.C. 103 as being unpatentable over Andreae et al. US 2017/0008694 in view of Monforton et al. US 2019/0077571, Mintus et al. US 2015/0104546, Labeque et al. US 2017/0298308, and Neuman et al. US 2015/0174867 as further evidenced by Khan et al. US 2016/0024326 as applied to claim 1 above in further view of Halabisky US 2004/0213930.
Regarding Claim 11, Andreae et al. discloses the capsule body being made from polysaccharides (‘694, Paragraph [0027]). Andreae et al. modified with Monforton et al., Mintus et al., Labeque et al., and Neuman et al. is silent regarding the capsule body being composed of one or more layers of uncrosslinked polysaccharide.
Halabisky discloses a container capable of holding hot coffee (‘930, Paragraph [0021]) made from polysaccharides (cellulose or paperboard) (‘930, Paragraph [0005]) comprising a layer of noncrosslinked fibers (‘930, Paragraph [0017]).
Both modified Andreae et al. and Halabisky are directed towards the same field of endeavor of coffee containers capable of holding hot coffee wherein the container body is made out of cellulose and/or paper polysaccharides. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the container of modified Andreae et al. and construct the capsule body out of one or more layers of uncrosslinked polysaccharides as taught by Halabisky since the selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination in view of Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) (MPEP § 2144.07). Halabisky teaches that there was known utility in the coffee container art to construct the container body out of one or more layers of uncrosslinked polysaccharides. Furthermore, noncrosslinked polysaccharides provide a smooth, denser, less porous surface (‘930, Paragraph [0017]).
Regarding Claims 18-19, Andreae et al. discloses the polysaccharide being cellulose and/or paper and/or cardboard (‘694, Paragraphs [0026]-[0027]). Halabisky discloses the polysaccharides being noncrosslinked (‘930, Paragraph [0017]) wherein the polysaccharides are cellulose or paperboard (‘930, Paragraph [0004]).
Claim 21 is rejected under 35 U.S.C. 103 as being unpatentable over Andreae et al. US 2017/0008694 in view of Monforton et al. US 2019/0077571, Mintus et al. US 2015/0104546, Labeque et al. US 2017/0298308, and Neuman et al. US 2015/0174867 as further evidenced by Khan et al. US 2016/0024326 as applied to claim 13 above in further view of Hudson et al. US 3,511,666.
Regarding Claim 21, the limitations “wherein the pellet was obtained by pressing at a pressure of 0.01 to 1000 MPa” are product by process limitations and are rejected using the rationale regarding product by process limitations enumerated above. However, in the event that it can be shown that the particular process results in a materially different pellet product, Hudson et al. discloses a coffee material formed as a pellet (‘666, Column 1, lines 14-16). Hudson et al. further discloses the pellet being obtained by pressing at a pressure of between 8000 to 16000 psi (‘666, Column 2, lines 36-50), which converts to about 55 MPa to about 110 MPa, which falls within the claimed pressing pressure of 0.01 to 1000 MPa.
Both modified Andreae et al. as well as Hudson et al. are directed towards the same field of endeavor of coffee powders/pellets. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process at which the coffee pellet was obtained to press at the claimed pressure as taught by Hudson et al. since where the claimed pressure at which the coffee pellet was pressed ranges encompasses pressures at which the coffee pellet was pressed ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.). Furthermore, Hudson et al. teaches the pressure being controlled to yield a pellet of sufficient hardness to prevent breakage but not too great so as to cause pellet capping and that the actual pressure used varies with temperature and moisture of the coffee, the blend, the rate of speed of pelletizing, and the amount of degassing (‘666, Column 2, lines 36-50). Differences in the pressure at which the coffee pellet is pressed will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such pressure at which the coffee pellet is pressed is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable pressure ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). One of ordinary skill in the art would adjust the pressure at which the coffee pellet is pressed based upon the temperature and moisture of the coffee, the blend, the rate of speed of pelletizing, and the amount of degassing.
Claims 1, 5-8, 10, 12-13, 17, and 21 are rejected under 35 U.S.C. 103 as being unpatentable over Andreae et al. US 2017/0008694 in view of Monforton et al. US 2019/0077571, Mintus et al. US 2015/0104546, Labeque et al. US 2017/0298308, Neuman et al. US 2015/0174867 and Nickel EP 3 225 566 (cited on Information Disclosure Statement filed November 3, 2021) as further evidenced by Khan et al. US 2016/0024326.
It is noted that the Information Disclosure Statement filed November 3, 2021 filed by applicant indicates that Nickel EP 3 225 566 is equivalent to the USPGPUB of Nickel US 2019/0144199, which is also cited on the Information Disclosure Statement filed November 3, 2021. Nickel EP 3 225 566 has a publication date of October 4, 2017, which predates the foreign filing date of May 7, 2019 of the instant application. All citations in the Office Action are with respect to the English equivalent Nickel US 2019/0144199.
Regarding Claim 1, Andreae et al. modified with Monforton et al., Mintus et al., Labeque et al., and Neuman et al. renders Claim 1 obvious as discussed in the rejections above. However, in the event that it can be argued that Andreae et al. modified with Monforton et al., Mintus et al., Labeque et al., and Neuman et al. does not necessarily teach the capsule body being entirely encased by the at least one coating layer, Nickel discloses a capsule comprising a capsule body (capsule body 2) composed of at least one polysaccharide and filled with a polysaccharide containing material (‘199, Paragraph [0007]). Nickel further discloses the capsule body (capsule body 2) being entirely encased by at least one first coating layer (coating layer 3) (‘199, Paragraphs [0023] and [0053]).
Both modified Andreae et al. and Nickel are directed towards the same field of endeavor of coffee capsules comprising a capsule body (housing 22) composed of at least one polysaccharide (starch) (‘694, Paragraphs [0007], [0009], and [0027]) and filled with a polysaccharide containing material. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the at least one first coating layer of the capsule body of modified Andreae et al. and entirely encase the capsule body by the at least one first coating layer since Nickel teaches that is was known in the coffee capsule art to completely encase the capsule body on all sides by a coating layer (‘199, Paragraph [0054]). It is noted that Claim 1 does not specify whether or not the polysaccharide is crosslinked or uncrosslinked.
Regarding Claim 5, Neuman et al. discloses a sheet used to make packaging articles useful to package solid and liquid food substances (‘867, Paragraph [0101]) wherein the sheet is a multilayered biodegradable sheet having a barrier layer that reduces gas permeation rate (‘867, Paragraph [0120]) wherein the biodegradable sheet includes a gas barrier material of polyvinyl alcohol (PVOH), which is a highly polar gas barrier material that exhibits weak interaction with low polarity gases of oxygen and carbon dioxide and which reduces the permeability of gases through the sheet and the PVOH is modified with any appropriate crosslinker to better compatibilize it with the other polymer layers (‘867, Paragraph [0136]).
Both modified Andreae et al. and Neuman et al. are directed towards the same field of endeavor of multilayered food packages comprising at least one barrier coating layer made of polyvinyl alcohol (‘694, Paragraph [0009]) (‘867, Paragraphs [0101] and [0136]). Applicant discloses the at least one first coating layer having a low gas permeability (Specification, Page 3, lines 25-27). Although Neuman et al. does not explicitly teach the exact low gas permeability as claimed, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the gas permeability of the at least one barrier coating layer of PVOH of modified Andreae et al. to be reduced/low where gas permeability is undesirable as taught by Neuman et al. in order to prevent oxidation of the contents of the capsule. Furthermore, differences in the gas permeability of the at least one coating layer of PVOH will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such gas permeability of the at least one coating layer of PVOH is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). One of ordinary skill in the art would adjust the gas permeability of the at least one first barrier coating layer of modified Andreae et al. to be sufficiently low to prevent oxidation of the interior contents of the multilayered food package.
Regarding Claim 6, Monforton et al. discloses the at least one coating layer (first outer layer 20 and second outer layer 30) comprising 2 layers wherein each comprises at least one polyvinyl alcohol (‘571, FIG. 2) (‘571, Paragraphs [0053] and [0073]) wherein the polymeric composition is a homopolymer (‘571, Paragraph [0038]). The disclosure of 2 layers of the at least one coating layer (first outer layer 20 and second outer layer 30) falls within the claimed at least one first coating layer comprising 1 to 5 layers.
Regarding Claim 7, Andreae et al. discloses the at least one polyvinyl alcohol containing coating layer (PVOH layer 27) (‘694, FIG. 5) (‘694, Paragraph [0064]) being coated with at least one second layer (coating of additional material layer) wherein the at least one coating layer (coating of additional material layer) comprises a polysaccharide (cellulose) (‘694, Paragraph [0007]).
Regarding Claim 8, Andreae et al. discloses the at least one coating layer (additional moisture impermeable coating material layer) being a polysaccharide that is cellulose (‘694, Paragraph [0007]) wherein the barrier layer has a crosslinking agent (‘694, Paragraph [0012]).
Regarding Claim 10, Andreae et al. discloses the at least one polysaccharide containing coating layer (additional moisture impermeable coating material layer) (‘694, Paragraph [0007]) comprising fibers (‘694, Paragraph [0008]).
Regarding Claim 12, Andreae et al. discloses the capsule body being composed of one or more layers of crosslinked polysaccharide (‘694, Paragraphs [0007], [0012], and [0027]).
Regarding Claim 13, Mintus et al. discloses the capsule body being filled with polysaccharide containing material in the form of a pellet (sugarcoated coffee powder or tablet) (‘546, Paragraphs [0038]-[0039]).
Regarding Claim 17, Andreae et al. discloses the fibers being cellulose fibers (‘694, Paragraphs [0027] and [0029]).
Regarding Claim 21, the limitations “wherein the pellet was obtained by pressing at a pressure of 0.01 to 1000 MPa” are product by process limitations. Even though product by process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product by process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process in view of In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985) (citations omitted) (MPEP § 2113.I.).
Claims 9, 16, and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Andreae et al. US 2017/0008694 in view of Monforton et al. US 2019/0077571, Mintus et al. US 2015/0104546, Labeque et al. US 2017/0298308, Neuman et al. US 2015/0174867, and Nickel EP 3 225 566 (cited on Information Disclosure Statement filed November 3, 2021) as further evidenced by Khan et al. US 2016/0024326 as applied to claim 1 above in further view of Massey et al. US 2013/0142915.
It is noted that the Information Disclosure Statement filed November 3, 2021 filed by applicant indicates that Nickel EP 3 225 566 is equivalent to the USPGPUB of Nickel US 2019/0144199, which is also cited on the Information Disclosure Statement filed November 3, 2021. Nickel EP 3 225 566 has a publication date of October 4, 2017, which predates the foreign filing date of May 7, 2019 of the instant application. All citations in the Office Action are with respect to the English equivalent Nickel US 2019/0144199.
Regarding Claims 9 and 16, Andreae et al. discloses the at least one second coating layer (additional moisture impermeable coating material layer) being a polysaccharide (‘694, Paragraph [0007]). However, Andreae et al. modified with Monforton et al., Mintus et al., Labeque et al., Neuman et al. and Nickel is silent regarding the polysaccharide of the at least one second coating layer being an alkaline earth metal alginate. Applicant discloses that calcium is a type of alkaline earth metal alginate (Specification, Page 5, lines 25-26).
Massey et al. discloses a capsule comprising a capsule body composed of at least one polysaccharide of a coating layer made with an alkaline earth metal alginate (calcium alginate) (‘915, Paragraph [0062]).
Both modified Andreae et al. and Massey et al. are directed towards the same field of endeavor of capsules comprising a capsule body composed of at least one polysaccharide and at least one first coating layer. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the capsule of modified Andreae et al. and incorporate an alkaline earth calcium alginate as the polysaccharide material of the at least one second coating layer as taught by Massey et al. since the selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination in view of Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) (MPEP § 2144.07). Massey et al. teaches that there was known utility in the coffee capsule art to incorporate an alkaline earth calcium alginate as the polysaccharide material that constitutes the barrier coating layer.
Regarding Claim 20, Andreae et al. discloses the at least one second coating layer (additional moisture impermeable coating material layer) being a polysaccharide (‘694, Paragraph [0007]) wherein the barrier layer has a crosslinking agent (‘694, Paragraph [0012]). However, Andreae et al. modified with Monforton et al., Mintus et al., Labeque et al., Neuman et al., and Nickel is silent regarding the crosslinked polysaccharide of the capsule body being an alginate. Applicant discloses that calcium is a type of alkaline earth metal alginate (Specification, Page 5, lines 25-26).
Massey et al. discloses a capsule comprising a capsule body composed of at least one polysaccharide of a coating layer made with an alkaline earth metal alginate (calcium alginate) (‘915, Paragraph [0062]).
Both modified Andreae et al. and Massey et al. are directed towards the same field of endeavor of capsules comprising a capsule body composed of at least one polysaccharide and at least one first coating layer. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the capsule of modified Andreae et al. and incorporate an alginate as the crosslinked polysaccharide material of the capsule body as taught by Massey et al. since the selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination in view of Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) (MPEP § 2144.07). Massey et al. teaches that there was known utility in the coffee capsule art to incorporate an alginate as the polysaccharide material of the capsule body.
Claims 11 and 18-19 are rejected under 35 U.S.C. 103 as being unpatentable over Andreae et al. US 2017/0008694 in view of Monforton et al. US 2019/0077571, Mintus et al. US 2015/0104546, Labeque et al. US 2017/0298308, Neuman et al. US 2015/0174867, and Nickel EP 3 225 566 (cited on Information Disclosure Statement filed November 3, 2021) as further evidenced by Khan et al. US 2016/0024326 as applied to claim 1 above in further view of Halabisky US 2004/0213930.
It is noted that the Information Disclosure Statement filed November 3, 2021 filed by applicant indicates that Nickel EP 3 225 566 is equivalent to the USPGPUB of Nickel US 2019/0144199, which is also cited on the Information Disclosure Statement filed November 3, 2021. Nickel EP 3 225 566 has a publication date of October 4, 2017, which predates the foreign filing date of May 7, 2019 of the instant application. All citations in the Office Action are with respect to the English equivalent Nickel US 2019/0144199.
Regarding Claim 11, Andreae et al. discloses the capsule body being made from polysaccharides (‘694, Paragraph [0027]). Andreae et al. modified with Monforton et al., Mintus et al., Labeque et al., Neuman et al., and Nickel is silent regarding the capsule body being composed of one or more layers of uncrosslinked polysaccharide.
Halabisky discloses a container capable of holding hot coffee (‘930, Paragraph [0021]) made from polysaccharides (cellulose or paperboard) (‘930, Paragraph [0005]) comprising a layer of noncrosslinked fibers (‘930, Paragraph [0017]).
Both modified Andreae et al. and Halabisky are directed towards the same field of endeavor of coffee containers capable of holding hot coffee wherein the container body is made out of cellulose and/or paper polysaccharides. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the container of modified Andreae et al. and construct the capsule body out of one or more layers of uncrosslinked polysaccharides as taught by Halabisky since the selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination in view of Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) (MPEP § 2144.07). Halabisky teaches that there was known utility in the coffee container art to construct the container body out of one or more layers of uncrosslinked polysaccharides. Furthermore, noncrosslinked polysaccharides provide a smooth, denser, less porous surface (‘930, Paragraph [0017]).
Regarding Claims 18-19, Andreae et al. discloses the polysaccharide being cellulose and/or paper and/or cardboard (‘694, Paragraphs [0026]-[0027]). Halabisky discloses the polysaccharides being noncrosslinked (‘930, Paragraph [0017]) wherein the polysaccharides are cellulose or paperboard (‘930, Paragraph [0004]).
Claim 21 is rejected under 35 U.S.C. 103 as being unpatentable over Andreae et al. US 2017/0008694 in view of Monforton et al. US 2019/0077571, Mintus et al. US 2015/0104546, Labeque et al. US 2017/0298308, Neuman et al. US 2015/0174867, and Nickel EP 3 225 566 (cited on Information Disclosure Statement filed November 3, 2021) as further evidenced by Khan et al. US 2016/0024326 as applied to claim 13 above in further view of Hudson et al. US 3,511,666.
It is noted that the Information Disclosure Statement filed November 3, 2021 filed by applicant indicates that Nickel EP 3 225 566 is equivalent to the USPGPUB of Nickel US 2019/0144199, which is also cited on the Information Disclosure Statement filed November 3, 2021. Nickel EP 3 225 566 has a publication date of October 4, 2017, which predates the foreign filing date of May 7, 2019 of the instant application. All citations in the Office Action are with respect to the English equivalent Nickel US 2019/0144199.
Regarding Claim 21, the limitations “wherein the pellet is obtained by pressing at a pressure of 0.01 to 1000 MPa” are product by process limitations and are rejected using the rationale regarding product by process limitations enumerated above. However, in the event that it can be shown that the particular process results in a materially different pellet product, Hudson et al. discloses a coffee material formed as a pellet (‘666, Column 1, lines 14-16). Hudson et al. further discloses the pellet being obtained by pressing at a pressure of between 8000 to 16000 psi (‘666, Column 2, lines 36-50), which converts to about 55 MPa to about 110 MPa, which falls within the claimed pressing pressure of 0.01 to 1000 MPa.
Both modified Andreae et al. as well as Hudson et al. are directed towards the same field of endeavor of coffee powders/pellets. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the process at which the coffee pellet was obtained to press at the claimed pressure as taught by Hudson et al. since where the claimed pressure at which the coffee pellet was pressed ranges encompasses pressures at which the coffee pellet was pressed ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.). Furthermore, Hudson et al. teaches the pressure being controlled to yield a pellet of sufficient hardness to prevent breakage but not too great so as to cause pellet capping and that the actual pressure used varies with temperature and moisture of the coffee, the blend, the rate of speed of pelletizing, and the amount of degassing (‘666, Column 2, lines 36-50). Differences in the pressure at which the coffee pellet is pressed will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such pressure at which the coffee pellet is pressed is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable pressure ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). One of ordinary skill in the art would adjust the pressure at which the coffee pellet is pressed based upon the temperature and moisture of the coffee, the blend, the rate of speed of pelletizing, and the amount of degassing.
Response to Arguments
Applicant’s arguments with respect to the previous obviousness rejections of Claims 1, 5-13, and 16-21 under 35 USC 103(a) have been considered but are moot because the new ground of rejection does not rely on the rationale applied in the prior rejection of record for any teaching or matter specifically challenged in the argument. Claim 1 has been amended to recite the newly presented limitations “the capsule body being entirely encased by at least one first coating layer of only at least one polyvinyl alcohol” and deletes the previous limitation “or a polyvinyl alcohol copolymer.” The current rejection relies upon the combination of references of Andreae et al. in view of Monforton et al., Mintus et al., Labeque et al., and Neuman et al. However, the current rejection modifies the rational being applied in view of the new limitations. Namely, the secondary reference of Khan et al. is no longer being relied upon in view of the amendments. Khan et al. is now only being relied upon as an evidentiary reference to teach that it was known in the art that the weight average molecular weight is measured by gel permeation chromatography in an appropriate eluent (‘326, Paragraph [0053]). Additionally, the secondary reference of Monforton et al. discloses the at least one first coating layer (first outer layer 20 and second outer layer 30) comprising at least one polyvinyl alcohol (PVOH) (‘571, Paragraph [0053]) wherein the polymeric composition comprises a homopolymer (‘571, Paragraph [0038]). The disclosure of a homopolymer made of PVOH reads on the claimed at least one first coating layer being made of only at least one polyvinyl alcohol. Both Andreae et al. and Monforton et al. are directed towards the same field of endeavor of beverage containers made of multilayered polymers having at least one first coating layer that serves as a moisture barrier. Andreae et al. discloses the at least one coating layer to serve as a moisture barrier (‘694, FIG. 5) (‘694, Paragraph ([0064]). Monforton et al. discloses at least one coating layer (first outer layer 20 and second outer layer 30) comprising at least one polyvinyl alcohol (‘571, Paragraph [0053]) comprising a homopolymer (‘571, Paragraph [0038]) wherein the at least one coating layer (first outer layer 20 and second outer layer 30) serves as one or both of the outer layers of a multilayer moisture barrier (‘571, Paragraph [0062]). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the beverage container of Andreae et al. that uses only polylactic acid as the at least one coating layer that serves as a moisture barrier to be made out of only at least one polyvinyl alcohol homopolymer as taught by Monforton et al. since the selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination in view of Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) (MPEP § 2144.07). Monforton et al. teaches that there was known utility in the beverage container art to use only at least one polyvinyl alcohol homopolymer as a material in the construction of at least one coating layer that entirely encases a beverage container body over the container body inner or outer surface that has moisture barrier properties.
Examiner notes that Friedrich et al. US 2017/0233539 discloses a water soluble film used to form articles such as pouches or packets including a polyvinyl alcohol (PVOH) polymer, e.g. one or more PVOH homopolymers, one or more PVOH copolymers, and combinations thereof (‘539, Paragraph [0006]) wherein the PVOH polymer of the water soluble film is not limited and includes a single PVOH homopolymer, a single PVOH copolymer, or a blend of PVOH homopolymers, copolymers, or combinations thereof (‘539, Paragraph [0049]) wherein the term “homopolymer” generally includes polymers having a single type of monomeric repeating unit, e.g. a polymeric chain consisting of or consisting essentially of a single monomeric repeating unit wherein a PVOH homopolymer can include a true homopolymer having only vinyl alcohol units (‘539, Paragraph [0055]). Friedrich et al. is not being relied upon in the current rejection. However, Friedrich et al. is being shown as an example of a package including a polyvinyl alcohol (PVOH) polymer, e.g. one or more PVOH homopolymers, one or more PVOH copolymers, and combinations thereof (‘539, Paragraph [0006]), i.e. Friedrich et al. teaches an embodiment of using only at least one polyvinyl alcohol rather than a polyvinyl alcohol copolymer.
Applicant's arguments filed April 13, 2026 with respect to the obviousness combination of Andreae et al. modified with the secondary references of Monforton et al. and Labeque et al. under 35 USC 103(a) have been fully considered but they are not persuasive.
Applicant argues on Page 8 of the Remarks that Paragraph [0055]) of Monforton et al. discloses a multilayer moisture barrier of a combination of polylactic acid with polyvinyl alcohol. Applicant contends that the present invention provides a solution where the barrier is formed solely of a PVOH layer without any additional compositions. Applicant continues that Monforton provides no motivation to improve the gas impermeability of the coating layer.
Examiner argues Paragraph [0055] of Monforton et al. is neither cited to nor relied upon in the current rejection. Monforton et al. discloses any suitable polymer being used to form the first and second outer layer wherein the first and second outer layers include polyvinyl alcohol (‘571, Paragraph [0053]) wherein the polymeric composition comprises a homopolymer (‘571, Paragraph [0038]). Paragraph [0055] of Monforton et al. that applicant cites to (which is not cited to or relied upon in the current rejection) also discloses the multilayer moisture barrier can include a desiccant containing inner layer or separated by one or more desiccant free layers (‘571, Paragraph [0055]). Monforton et al. teaches embodiments of layers without desiccants. A reference may be relied upon for all that it would have reasonably suggested to one having ordinary skill in the art, including nonpreferred embodiments in view of Merck & Co. v. Biocraft Labs., Inc. 874 F.2d 804, 10 USPQ2d 1843 (Fed. Cir. 1989), cert. denied, 493 U.S. 975 (1989). See also Upsher-Smith Labs. v. Pamlab, LLC, 412 F.3d 1319, 1323, 75 USPQ2d 1213, 1215 (Fed. Cir. 2005) (MPEP § 2123.I.). Therefore, this argument is not found persuasive.
Applicant argues on Page 9 of the Remarks that Paragraph [0008]) of Labeque et al. is directed to a water soluble film including a polyvinyl alcohol resin blend.
Examiner argues Paragraph [0008] of Labeque et al. discloses an embodiment of a PVOH homopolymer consisting of a vinyl alcohol monomer unit (‘308, Paragraph [0008]). Applicant points to an embodiment of a PVOH blend that is not being relied upon in the rejection. A reference may be relied upon for all that it would have reasonably suggested to one having ordinary skill in the art, including nonpreferred embodiments in view of Merck & Co. v. Biocraft Labs., Inc. 874 F.2d 804, 10 USPQ2d 1843 (Fed. Cir. 1989), cert. denied, 493 U.S. 975 (1989). See also Upsher-Smith Labs. v. Pamlab, LLC, 412 F.3d 1319, 1323, 75 USPQ2d 1213, 1215 (Fed. Cir. 2005) (MPEP § 2123.I.). Labeque et al. discloses a capsule (pouch) comprising a capsule body composed of at least one first coating layer (a water soluble film including a polyvinyl alcohol resin blend) (‘308, Paragraph [0001]) wherein it is known in the art that the viscosity of a water soluble polymer such as PVOH is correlated with the weight average molecular weight of the same polymer and often the viscosity is used as a proxy wherein the weight average molecular weight of the PVOH polymer can be in a range of about 30000 to about 175000 (‘308, Paragraph [0075]), which overlaps the claimed weight average molecular weight of from 9000 to 120000 g/mol. Labeque et al. discloses that the water soluble film includes homopolymers of PVOH polymers (‘308, Paragraph [0059]). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the weight average molecular weight of the at least one first coating layer of PVOH to fall within the claimed weight average molecular weight as taught by Labeque et al. since where the claimed weight average molecular weight of the at least one first coating layer of PVOH ranges overlaps weight average molecular weight of the at least one first coating layer of PVOH disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.). Therefore, this argument is not found persuasive.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Friedrich et al. US 2017/0233539 discloses a water soluble film used to form articles such as pouches or packets including a polyvinyl alcohol (PVOH) polymer, e.g. one or more PVOH homopolymers, one or more PVOH copolymers, and combinations thereof (‘539, Paragraph [0006]) wherein the PVOH polymer of the water soluble film is not limited and includes a single PVOH homopolymer, a single PVOH copolymer, or a blend of PVOH homopolymers, copolymers, or combinations thereof (‘539, Paragraph [0049]) wherein the term “homopolymer” generally includes polymers having a single type of monomeric repeating unit, e.g. a polymeric chain consisting of or consisting essentially of a single monomeric repeating unit wherein a PVOH homopolymer can include a true homopolymer having only vinyl alcohol units (‘539, Paragraph [0055]).
Clarke et al. US 4,348,293 discloses a layer of water soluble or water insoluble material of a sheet of material used in a laminated bag using a homopolymer or copolymer such as soluble polyvinyl alcohol.
The prior art made of record, cited in a previous 892 Notice of References Cited form, and not relied upon is considered pertinent to applicant's disclosure.
Keuleers et al. US 2018/0037857 discloses a water soluble film comprising a blend of at least two different polyvinyl alcohol homopolymers (‘857, Paragraph [0034]).
Lee et al. US 2017/0355938 discloses the term “homopolymer” generally includes polymers having a single type of monomeric repeating unit, e.g. a polymeric chain consisting of or consisting essentially of a single monomeric repeating unit wherein PVOH homopolymer further includes copolymers having a distribution of vinyl alcohol monomer units and vinyl acetate monomer units depending on the degree of hydrolysis (‘938, Paragraph [0033]).
Kuhl et al. US 2019/0016528 discloses a food container comprising a thermoplastic polymer blend comprising a first thermoplastic polyvinyl alcohol homopolymer and a second bioplastic.
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 ERICSON M LACHICA whose telephone number is (571)270-0278. The examiner can normally be reached M-F, 8:30am-5pm, EST.
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/ERICSON M LACHICA/Examiner, Art Unit 1792
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