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 .
DETAILED ACTION
Examiner’s Note
Applicant has amended (amendment filed 26 Apr. 2024) the polymer list in claim 1 to no longer include cyclic olefin copolymer (COC), while including cyclic olefin polymer (COP) in the listing of allowed polymeric materials. No guidance is provided in applicant’s specification nor in applicant’s responses filed 04 Nov. 2024, 14 Mar. 2025, 24 Jun. 2025, 22 Dec. 2025, 14 May 2026 regarding the monomeric content of a cyclic olefin polymer versus the monomeric content of a cyclic olefin copolymer. For the claim rejections below, examiner is interpreting cyclic olefin polymer as being composed of only cyclic olefin monomers. Clarification is requested.
It is suggested that in the present claims “cyclic olefin polymer (COP)” is amended to recite “cyclic olefin homopolymer (COP)”.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claim 33 is confusing, as the method appears to require simply the practitioner must take into account the material of construction of the base layer in selecting its thickness. It is the examiner’s position that one of ordinary skill in the art would adjust the thickness of the base layer based on the material of construction of the base layer, so it is not clear to the examiner how this dependent claim further limits claim 1.
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
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 1-3, 8, 11, 24-25, and 33-34 are rejected are rejected under 35 U.S.C. 103 as being unpatentable over Statelman (WO 2015/171443 A1, published 12 Nov. 2015, hereinafter Statelman) in view of Naegeli et al. (US Patent 5,353,985, published 11 Oct. 1994, hereinafter Naegeli) and evidence provided by Omnexus (“Comprehensive guide on polyethylene terephthalate (PET),” accessed 03 May 2024, hereinafter Omnexus).
Regarding claims 1-2, 8, 25, and 33, Statelman teaches a paperboard barrier structure comprising a paper layer (first outer layer), film layer (base layer) of PET, and second sealing layer (contact layer) of HDPE (Abstract and paragraphs 0016, 0026-0027, and 0034). Statelman teaches that his second sealing layer is applied to a laminate containing his film layer (base layer) via adhesive lamination (paragraph 0035). Statelman teaches that the thickness of his PET film is 36 to 142 gauge (9 to 35 µm) (paragraph 0026). Statelman teaches that his first barrier coating attached to his film layer of PET is an aluminum oxide coating (paragraph 0030).
As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, 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).
Therefore, it would have been obvious to one of ordinary skill in the art to have selected thicknesses of PET layer (base layer) from the overlapping portions of the ranges taught by Statelman because overlapping ranges have been held to be prima facie obviousness.
As evidenced by Omnexus, polyethylene terephthalate (PET) shows resistance to moisture (page 1, 1st paragraph); hence, PET is water resistant.
Statelman does not disclose the thickness of his HDPE seal layer.
Naegeli teaches a package with an HDPE seal layer with a thickness of 1 to 100 µm (Abstract and col. 4, lines 46-50).
Given that Statelman and Naegeli are drawn to multilayer films for packaging, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use the thickness of a HDPE seal layer as taught by Naegeli in the laminate process taught by Statelman. Since Statelman and Naegeli are both drawn to multilayer films for packaging, one of ordinary skill in the art would have a reasonable expectation of success in using the thickness of a HDPE seal layer as taught by Naegeli in the laminate process taught by Statelman. Further, Naegeli teaches these sealing layers are known in the art (col. 4, lines 46-50), and Naegeli teaches his seals allow for sterilizing treatment and subsequently permits easy opening of a sealed-on lid (col. 2, lines 61-64).
Regarding claim 3, Statelman in view of Naegeli teaches claim 1, and Statelman does not disclose that his second sealing layer (contact layer) is a multilayer, hence it is the examiner’s position that this layer is a monolayer.
Regarding claim 11, Statelman in view of Naegeli teaches claim 1, and Statelman teaches that his second sealing layer may be activated, such as with radiation (paragraph 0034). Thus, it is the examiner’s position that Statelman is teaching that the surface of this layer is corona treated.
Regarding claim 24, Statelman in view of Naegeli teaches claim 1, and Statelman teaches that his laminate may be used as a lid (paragraph 0042 and Figure 2).
Regarding claim 34, Statelman in view of Naegeli teaches the elements of claim 1.
Statelman in view of Naegeli does not disclose the oxygen or water vapor transfer rates of his aluminum oxide-coated polyester film. However, given that given that the aluminum-oxide coated polyester film taught by Kunz in view of Naegeli is composed of the same two materials with overlapping thicknesses as the claimed invention, within the overlapping thickness, the aluminum oxide-coated polyester film of Kunz in view of Naegeli would inherently have the same oxygen and water vapor transfer rates as the claimed invention, and therefore, would fall within the claimed ranges for oxygen and water vapor transfer rates.
Claims 4 and 5 are rejected are rejected under 35 U.S.C. 103 as being unpatentable over Statelman (WO 2015/171443 A1, published 12 Nov. 2015, hereinafter Statelman) in view of Naegeli et al. (US Patent 5,353,985, published 11 Oct. 1994, hereinafter Naegeli) and further in view of Nomura and Koyama (JP 2004/010655 A, published 15 Jan. 2004, hereinafter Nomura) and evidence provided by Palmetto Industries (“Is polypropylene waterproof? What about polypropylene fabric?”, published 15 Apr. 2022, hereinafter Palmetto) and Omnexus (“Comprehensive guide on polyethylene terephthalate (PET),” accessed 03 May 2024, hereinafter Omnexus).
Note: Citation references to Nomura are based on the supplied English translation.
Regarding claims 4 and 5, Statelman in view of Naegeli teaches the elements of claim 1.
Statelman teaches the use of adhesive lamination (paragraph 0035) and the use of a polyurethane adhesive as an adhesive for elsewhere in his multilayer laminate (paragraph 0035); however, Statelman in view of Naegeli does not disclose the specific claimed polyurethane adhesive.
Nomura teaches the use a two-package curable polyurethane adhesive for gas barrier laminates that has good adhesion to various polymers, paper, and metals (Abstract). Nomura teaches that his polyurethane composition comprises aromatic polyfunctional amines or aliphatic polyfunctional amines (claim 7). Nomura teaches the solvent for his polyurethane composition is ethyl acetate (page 4, lines 158-161).
Given that Statelman and Nomura are drawn to multilayer films for packaging, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use the adhesive composition taught by Nomura in the adhesive lamination process taught by Statelman in view of Naegeli. Since Statelman and Nomura are both drawn to multilayer films for packaging, one of ordinary skill in the art would have a reasonable expectation of success in using the adhesive composition taught by Nomura in the adhesive lamination process taught by Statelman in view of Naegeli. Further, Nomura teaches that his polyurethane composition has good adhesion to various polymers, especially after being subjected to boiling or retorting treatments (Abstract), and his polyurethane composition has both high gas barrier properties and high adhesion properties, especially good adhesion to various polymers (page 2, lines 58-63).
Claims 1-4, 8, 11, 24-26, and 33-34 are rejected are rejected under 35 U.S.C. 103 as being unpatentable over Kunz et al. (US Patent 5,387,449, published 07 Feb. 1995, hereinafter Kunz) and evidence provided by Amborski and Flierl (“Physical properties of polyethylene terephthalate films,” Ind.Eng.Chem., Vol. 45, No. 10, pp. 2290-2295, published Oct. 1953, hereinafter Amborski).
Regarding claims 1-2, 4, 8, 11, 24-26, and 33, Kunz teaches a composite of plastic films for packaging for a pouch, with the composite comprising a polyester film (first outer layer) with a thickness of 6 to 23 µm, a ceramic layer of thickness 10 to 500 nm, a polyester film (base layer) of thickness of 6 to 23 µm, and a polyolefin film of thickness 15 to 200 µm (Abstract and col. 2, lines 13-16). Kunz teaches the ceramic layer is be deposited the intermediate polyester film (base layer) (col. 2, lines 64-66), and the ceramic layer is the oxides of aluminum and/or silicon (col 4, lines 36-39). Kunz teaches the polyolefin is high-density polyethylene (HDPE) (col. 3, lines 14-16). Kunz teaches the layers are laminated via adhesive lamination or extrusion lamination (col. 6, lines 31-35), and the adhesive is a solvent-containing urethane (col. 5, line 66 – col. 6, line 8). Kunz teaches the layers undergo a corona treatment to improve adhesion (col. 6, lines 24-30). Kunz teaches the polyester in his polyester films (base layer and first outer layer) is polyethylene terephthalate (PET) (col. 28-31). Kunz teaches the total thickness of his composite is 27 (6+6+15+0.01) to 247 µm (23+23+200+0.5) (claim 1).
As evidenced by Amborski, polyethylene terephthalate films are relatively impermeable to oxygen (page 2294, 1st column, 3rd paragraph).
As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, 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).
Therefore, it would have been obvious to one of ordinary skill in the art to have selected thicknesses of the sealant layer (contact layer), polyester film (base layer), and full composite film (laminate film) from the overlapping portions of the ranges taught by Kunz because overlapping ranges have been held to be prima facie obviousness.
In light of the overlap between the claimed method for the providing a laminate film and that disclosed by Kunz, it would have been obvious to one of ordinary skill in the art to use a method for the providing a laminate film, including the method taught by Kunz, and thereby arrive at the claimed invention.
Regarding claim 3, Kunz teaches the elements of claim 1.
Kunz does not disclose that his sealant layer (contact layer) is composed of multiple layers; therefore, Kunz’s sealant layer (contact layer) is a monolayer.
Regarding claim 34, Kunz teaches the elements of claim 1.
Kunz does not disclose the oxygen or water vapor transfer rates of his ceramic-polyester film. However, given that given that the ceramic-polyester film taught by Kunz is composed of the same two materials with overlapping thicknesses as the claimed invention, within the overlapping thickness, the ceramic-polyester film of Kunz would inherently have the same oxygen and water vapor transfer rates as the claimed invention, and therefore, would fall within the claimed ranges for oxygen and water vapor transfer rates.
Claim 5 is rejected are rejected under 35 U.S.C. 103 as being unpatentable over Kunz et al. (US Patent 5,387,449, published 07 Feb. 1995, hereinafter Kunz) in view of Nomura and Koyama (JP 2004/010655 A, published 15 Jan. 2004, hereinafter Nomura) and evidence provided by Amborski and Flierl (“Physical properties of polyethylene terephthalate films,” Ind.Eng.Chem., Vol. 45, No. 10, pp. 2290-2295, published Oct. 1953, hereinafter Amborski).
Note: Citation references to Nomura are based on the supplied English translation.
Regarding claim 5, Kunz teaches the elements of claim 4, and Kunz teaches the layers are laminated via adhesive lamination (col. 6, lines 31-35), and the adhesive is a solvent-containing urethane (col. 5, line 66 – col. 6, line 8)
Kunz does not disclose the claimed two-component polyurethane adhesive.
Nomura teaches the use a two-package curable polyurethane adhesive for gas barrier laminates that has good adhesion to various polymers, paper, and metals (Abstract). Nomura teaches that his polyurethane composition comprises aromatic polyfunctional amines or aliphatic polyfunctional amines (claim 7). Nomura teaches the solvent for his polyurethane composition is ethyl acetate (page 4, lines 158-161).
Given that Kunz and Nomura are drawn to multilayer films for packaging, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use the adhesive composition taught by Nomura in the adhesive lamination process taught by Kunz. Since Kunz and Nomura are both drawn to multilayer films for packaging, one of ordinary skill in the art would have a reasonable expectation of success in using the adhesive composition taught by Nomura in the adhesive lamination process taught by Kunz. Further, Nomura teaches that his polyurethane composition has good adhesion to various polymers, especially after being subjected to boiling or retorting treatments (Abstract), and his polyurethane composition has both high gas barrier properties and high adhesion properties, especially good adhesion to various polymers (page 2, lines 58-63).
Response to Arguments
Applicant's arguments filed 14 May 2026 have been fully considered, but they were not persuasive.
Applicant amended claims 1-2 and 33 and cancelled claim 35.
Applicant argues that the PET film thickness of Statelman is not the same as that presently claimed, and that the Office Action has not provided any reason why a person of ordinary skill in the art would have been motivated to modify the PET film thickness discussed by Statelman to use a thickness different than what is disclosed by Statelman.
However, the examiner is not stating to use a different thickness in Statelman. Rather, the examiner is stating that the thickness of Statelman overlaps that claimed, and therefore, it would have been obvious to one of ordinary skill in the art to use a PET film with thickness in Statelman, including that presently claimed.
As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, 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).
Therefore, it would have been obvious to one of ordinary skill in the art to have selected a thickness from the overlapping portion of the range taught by Statelman because overlapping ranges have been held to be prima facie obviousness.
Applicant may overcome the teaching of Statelman by claiming a base layer thickness patently distinct from the thickness range taught by Statelman.
Applicant argues that one of ordinary skill in the art would not combine the teachings of Statelman and Naegeli.
However, Naegeli teaches that sealing layers are known in the art, and therefore, it is the examiner’s position that his teaching on the thickness of seal layers is applicable to a broad range of packaging.
Again, Naegeli teaching on sealing layer thickness overlaps with the claimed range. A finding of unexpected results over the claimed sealing thickness range would be required to overcome the teaching of Naegeli.
Applicant argues that one should include both PET layers taught by Kunz as his base layer, which would have thickness of 12 µm.
However, the thickness of the two PET layers of Kunz overlaps with the claimed thickness of the base layer.
Additionally, the current claims do not limit the current invention to a base layer and a contact layer joined by an adhesive layer; therefore, the ceramic layer and second PET layer in Kunz configuration represent additional layers in the laminate. Claim 25 requires the existence of additional layers.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Arcaro et al. (US Patent Application 2021/0129493 A1, priority 14 Dec. 2017, published 06 May 2021) teaches a multilayer structure in which the layers are bound by adhesive lamination. Mueller et al. (DE 19610263 A1, published 18 Sep. 1997) teaches a multilayer composite film in which the layers are bound by adhesive lamination.
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 extension fee 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 date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JOHN VINCENT LAWLER whose telephone number is 571-272-9603. The examiner can normally be reached on M - F 8:00 am- 5:00 pm ET. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Callie Shosho, can be reached at 571-272-1123. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JOHN VINCENT LAWLER/Primary Examiner, Art Unit 1787
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