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 .
Claim Objections
Claims 1 and 19 are objected to because of the following informalities:
Claim 1 recites the limitation “wherein when said one or more other extruded layers of linear low density polyethylene comprises more than one other extruded layers of ethylene-containing polymer" should instead recite "wherein when said one or morelinear low density polyethylene" due to the present claim amendments.
Claim 19 recites the limitation “more than one other extruded layers” which should instead recite “more than one .
Appropriate correction is required.
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.
Claims 11, 23, and 30 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 11 recites the limitation "the middle layer of the inner film layer" in lines 2-3. There is insufficient antecedent basis for this limitation in the claim. Claim 1, from which claim 11 depends, does not previously recite a middle layer of the inner film layer. For purposes of examination, claim 11 is interpreted such that the inner film layer must comprise a layer of a recycled HDPE resin and a post-consumer HDPE resin as supported by the instant specification Page 7.
Claims 23 and 30 recite the phrase “improved recyclability” in line 2. It is unclear what exactly is meant by improved recyclability as it is unclear as to what is being compared to be improved. For purposes of examination, claims 23 and 30 are considered satisfied if the laminate-tube container is recyclable to at least some extent.
Claim Rejections - 35 USC § 102
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1-2, 4, 6, 12, 16, 20-22 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Banerjee et al. (US 20170008247 A1) (newly cited).
Regarding claim 1, Banerjee teaches a laminate-tube container which is made of a laminated film or sheet comprising, comprising the following layers in order: a printing layer (printing on outer layer), an outer film layer of polyethylene (outer PE film layer, 102-1), a metallized film layer of polyethylene (substrate layer, 106), an intermediate film layer of polyethylene (PE layer sandwiching core EVOH layer), an extruded layer of LLDPE (PE layer sandwiching core EVOH layer or alternatively the LDPE extrusion layer, 110), and an inner film layer of polyethylene (film layer 102-2 of PE) (Banerjee, Abstract, Par. 0017-0021, 0026-0028, 0046-0048, and Fig. 1).
Regarding claim 2, Banerjee teaches the layers in the order of a printing layer (printing on outer layer) which is a normal surface printing, an outer film layer of polyethylene (outer PE film layer, 102-1), a metallized film layer of polyethylene (substrate layer, 106), an intermediate film layer of polyethylene (PE layer sandwiching core EVOH layer), an extruded layer of LLDPE (PE layer sandwiching core EVOH layer or alternatively the LDPE extrusion layer, 110), and an inner film layer of polyethylene (film layer 102-2 of PE) (Banerjee, Abstract, Par. 0017-0021, 0026-0028, 0046-0048, and Fig. 1).
Regarding claim 4, Banerjee teaches the outer film layer may be reverse printed and thus teaches the layers in the order an outer film layer of polyethylene (outer PE film layer, 102-1), a metallized film layer of polyethylene (substrate layer, 106), a printing layer (printing on outer layer) which is a reverse printing, an intermediate film layer of polyethylene (PE layer sandwiching core EVOH layer), an extruded layer of LLDPE (PE layer sandwiching core EVOH layer or alternatively the LDPE extrusion layer, 110), and an inner film layer of polyethylene (film layer 102-2 of PE) (Banerjee, Abstract, Par. 0017-0023, 0026-0028, 0046-0048, and Fig. 1).
Regarding claim 6, Banerjee teaches the metallized film layer is polyethylene and thus an ethylene homopolymer (Banerjee, Par. 0021).
Regarding claim 7, Banerjee does not state the film is oriented and thus teaches an oriented film.
Regarding claim 12, Banerjee teaches outer or inner film layer includes a single-layer film (Banerjee, Par. 0046 and Fig. 1).
Regarding claim 16, Banerjee teaches the barrier layer is formed of EVOH (Banerjee, Abstract).
Regarding claims 20-21, Banerjee teaches the laminate-tube container is used to package products such as food and creamy cosmetics (Benerjee, Par. 0005 and 0073).
Regarding claim 22, Banerjee teaches the outer layer is transparent revealing a metal layer and thus a metallic appearance would be obtained (Banerjee, Abstract, Par. 0008, 0037).
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1-7, 11-31 are rejected under 35 U.S.C. 103 as being unpatentable over Limatibul (US-20190016100-A1) (newly cited) in view of Banerjee et al.
Regarding claim 1, Limatibul teaches a laminate-tube container made of a laminated film or sheet comprising the laminated layers included: an intermediate film layer of polyethylene (outer polyolefin layer), an extruded layer of LLDPE (extruded PO layer of intermediate layer), and an inner film layer of polyethylene (inner polyolefin layer) (Limatibul, Abstract, Par. 0017-0028).
Limatibul is silent regarding a printing layer, an outer film layer of an ethylene-containing polymer, and a metallized film layer of ethylene homopolymer of copolymer of ethylene and alpha-olefin selected from 1-butene, 1-hexene, 1-octene, and mixtures thereof.
Banerjee teaches a laminate-tube container which is made of a laminated film or sheet comprising, comprising the following layers in order: a printing layer (printing on outer layer), an outer film layer of polyethylene (outer PE film layer, 102-1), a metallized film layer of polyethylene (substrate layer, 106), an intermediate film layer of polyethylene (PE layer sandwiching core EVOH layer), an extruded layer of LLDPE (PE layer sandwiching core EVOH layer or alternatively the LDPE extrusion layer, 110), and an inner film layer of polyethylene (film layer 102-2 of PE) (Banerjee, Abstract, Par. 0017-0021, 0026-0028, 0046-0048, and Fig. 1).
Limatibul and Banerjee are analogous art as they both teach laminate-tube containers containing multiple polyethylene layers. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have included Banerjee’s print layer, outer layer, and metallized film layer in the film of Limatibul. This would allow for a printed material with good aesthetic values and good resilience (Banerjee, Abstract, Par. 0021). This further results in a laminate having the following layers in order: print layer (Banerjee), outer film layer (Banerjee), metallized layer (Banerjee), intermediate layer (Limatibul), extruded layer of LLDPE (Limatibul), and inner film layer (Limatibul).
Regarding claim 2, modified Limatibul teaches the following layers in order: printing layer (printing on outer layer, Banerjee) that is normal surface printing, outer film layer of PE (outer PE film layer, 102-1, Banerjee), metallized film layer of polyethylene (substrate layer, 106, Banerjee), intermediate film layer of polyethylene (outer polyolefin layer), an extruded layer of LLDPE (extruded PO layer of intermediate layer), and an inner film layer of polyethylene (inner polyolefin layer) (Limatibul, Abstract, Par. 0017-0028; Banerjee, Abstract, Par. 0017-0021, 0026-0028, 0046-0048, and Fig. 1).
Regarding claim 3, modified Limatibul teaches the following layers in order: printing layer (printing on outer layer, Banerjee) that is normal surface printing, outer film layer of PE (outer PE film layer, 102-1, Banerjee), metallized film layer of polyethylene (substrate layer, 106, Banerjee), intermediate film layer of polyethylene (outer polyolefin layer), an extruded layer of LLDPE (extruded PO layer of intermediate layer), a first tie layer, barrier layer (intermediate layer), second tie layer, an extruded layer of LLDPE (Extruded PO layer of intermediate layer), and an inner film layer of polyethylene (inner polyolefin layer) (Limatibul, Abstract, Par. 0017-0028; Banerjee, Abstract, Par. 0017-0021, 0026-0028, 0046-0048, and Fig. 1).
Regarding claim 4, modified Limatibul teaches the outer film layer may be reverse printed and therefore teaches the following layers in order: outer film layer of PE (outer PE film layer, 102-1, Banerjee), printing layer (printing on outer layer, Banerjee) that is reverse printed, metallized film layer of polyethylene (substrate layer, 106, Banerjee), intermediate film layer of polyethylene (outer polyolefin layer), an extruded layer of LLDPE (extruded PO layer of intermediate layer), and an inner film layer of polyethylene (inner polyolefin layer) (Limatibul, Abstract, Par. 0017-0028; Banerjee, Abstract, Par. 0017-0022, 0026-0028, 0046-0048, and Fig. 1).
Regarding claim 5, modified Limatibul teaches the outer film layer may be reverse printed and therefore teaches the following layers in order: outer film layer of PE (outer PE film layer, 102-1, Banerjee), printing layer (printing on outer layer, Banerjee) that is reverse printed, metallized film layer of polyethylene (substrate layer, 106, Banerjee), intermediate film layer of polyethylene (outer polyolefin layer), an extruded layer of LLDPE (extruded PO layer of intermediate layer), a first tie layer, barrier layer (intermediate layer), second tie layer, an extruded layer of LLDPE (Extruded PO layer of intermediate layer), and an inner film layer of polyethylene (inner polyolefin layer) (Limatibul, Abstract, Par. 0017-0028; Banerjee, Abstract, Par. 0017-0022, 0026-0028, 0046-0048, and Fig. 1).
Regarding claim 6, modified Limatibul teaches the metallized film layer is polyethylene and thus an ethylene homopolymer (Banerjee, Par. 0021).
Regarding claim 7, modified Limatibul does not state the film is oriented and thus teaches an oriented film.
Regarding claim 11, modified Limatibul teaches the inner film includes an HDPE resin (Limatibul, Par. 0024). Regarding the limitation of the HDPE being post-consumer or recycled, this is considered a product-by-process limitation. 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 re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985) (See MPEP 2113). The HDPE structure of the prior art discloses a product which reasonably appears to be either identical or substantially identical to the claimed product-by-process HDPE structure subjected to the process steps of being obtained from a recycled material, and therefore absent any objective evidence showing to the contrary, the addition of the process limitations of claim 11 does not provide a patentable distinction over the prior art.
Regarding claim 12, modified Limatibul teaches the inner film includes a single layer film (Limatibul, Par. 0025).
Regarding claim 13, modified Limatibul teaches the inner film includes a three-layer film of polyolefin/HDPE/polyolefin (Limatibul, Par. 0024-0025).
Regarding claim 14, modified Limatibul teaches a layer structure of print layer/outer layer/metallized layer/intermediate film layer (outer PO layer of Limatibul), extruded layer of LLDPE (second outer PO layer of Limatibul)/PO layer (intermediate PO layer)/tie/EVOH/tie/PO layer (intermediate PO layer)/PO layer (inner PO layer) (Limatibul, Abstract, Par. 0017-0028; Banerjee, Abstract, Par. 0017-0021, 0026-0028, 0046-0048, and Fig. 1). The layers of PO layer/tie /EVOH/tie/PO layer satisfies the limitation of the claimed inner film layer.
Regarding claim 15, modified Limatibul teaches a layer structure of print layer/outer layer/metallized layer/intermediate film layer (outer PO layer of Limatibul), extruded layer of LLDPE (second outer PO layer of Limatibul)/PO layer (third outer PO layer of Limatibul)/HDPE layer (intermediate PO layer)/tie/EVOH/tie/HDPE layer (intermediate PO layer)/PO layer (inner PO layer) (Limatibul, Abstract, Par. 0017-0028; Banerjee, Abstract, Par. 0017-0021, 0026-0028, 0046-0048, and Fig. 1). The layers of PO layer/HDPE/tie /EVOH/tie/HDPE/PO layer satisfies the limitation of the claimed inner film layer.
Regarding claim 16, modified Limatibul teaches the barrier layer is formed of EVOH (Limatibul, Par. 0019-0022).
Regarding claim 17, modified Limatibul teaches the barrier layer is a barrier to oxygen comprising EVOH with an ethylene content of 27-48 mol% (Limatibul, Par. 0019-0022, 0030, 0046), which overlaps the claimed range of 32-44 mol.% and therefore establishes a prima facie case of obviousness over the claimed range, see MPEP 2144.05, I.
Regarding claims 18-19, modified Limatibul teaches the extruded layer of LLDPE can be a second inner layer and has a thickness of 120-200 microns (Limatibul, Par. 0026), which overlaps the claimed ranges of 158-645 microns and 130-455 microns and therefore establishes a prima facie case of obviousness over the claimed range, see MPEP 2144.05, I.
Regarding claims 20-21 and 27-28, modified Limatibul teaches the laminated tube container is used to package products such as food and creamy cosmetics (Limatibul, Par. 0002-0006, 0017; Benerjee, Par. 0005 and 0073).
Regarding claims 22 and 29, modified Limatibul teaches the outer layer is transparent revealing a metal layer and thus a metallic appearance would be obtained (Banerjee, Abstract, Par. 0008, 0037).
Regarding claim 23 and 30, modified Limatibul teaches a multilayer film structure that is identical or substantially identical to the claimed film. Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977), see MPEP 2112.01. Modified Limatibul teaches a film structure comprising the same materials and the same layers as stated above for claims 1-5, including polyethylene layers, tie layers, an EVOH layer, and a metallized layer. Modified Limatibul thus teaches a film that is identical or substantially identical to the claimed film. Therefore, absent objective evidence to the contrary, the laminate tube-container of modified Limatibul would have inherently exhibited at least some recyclability, satisfying the claim limitation, see MPEP 2112.01.
Regarding claim 24, modified Limatibul teaches preparing the printing layer for laminating on the laminate-tube container, subjecting the film of polyethylene to metal evaporation on one side (See vacuum evaporation), performing adhesive lamination with the intermediate polyethylene film layer and the outer polyethylene film layer using an adhesive agent, and performing lamination with the inner polyethylene layer by extrusion lamination with hot-melted resins of LLDPE (Limatibul, Abstract, Par. 0017-0028; Banerjee, Abstract, Par. 0017-0021, 0026-0028, 0046-0048, and Fig. 1). Modified Limatibul teaches the laminate-tube container has a total thickness of 300-460 microns (Limatibul, Par. 0019), which lies within the claimed range of 158-645 microns and therefore satisfies the claimed range, see MPEP 2131.03.
Regarding claim 25, modified Limatibul teaches preparing the printing layer for laminating on the laminate-tube container, subjecting the film of polyethylene to metal evaporation on one side (See vacuum evaporation), performing adhesive lamination with the intermediate polyethylene film layer and the outer polyethylene film layer with a reverse printing layer using an adhesive agent, and performing lamination with the inner polyethylene layer by extrusion lamination with hot-melted resins of LLDPE (Limatibul, Abstract, Par. 0017-0028; Banerjee, Abstract, Par. 0017-0021, 0026-0028, 0046-0048, and Fig. 1). Modified Limatibul teaches the laminate-tube container has a total thickness of 300-460 microns (Limatibul, Par. 0019), which overlaps the claimed range of 130-455 microns and therefore establishes a prima facie case of obviousness over the claimed range, see MPEP 2144.05, I.
Regarding claim 26, modified Limatibul teaches the printing layer is normal surface printed (Limatibul, Par. 0020).
Regarding claim 31, modified Limatibul teaches the EVOH has an ethylene content of 27-48 mol% (Limatibul, Par. 0019-0022, 0030, 0046), which overlaps the claimed range of 32-35 mol.% and therefore establishes a prima facie case of obviousness over the claimed range, see MPEP 2144.05, I.
Claims 8-10 and 32 are rejected under 35 U.S.C. 103 as being unpatentable over Limatibul in view of Banerjee et al. as applied to claims 1 and 6 above, further in view of Shah et al. (US 20160144603 A1) (newly cited).
Regarding claim 8, modified Limatibul teaches all of the elements of the claimed invention as stated above for claims 1 and 6. Modified Limatibul teaches the metallization is effected by a physical vapor deposition process (See vacuum deposition) (Banerjee, Abstract).
Modified Limatibul is silent regarding the metallized film layer being prepared by pretreating the film by corona or plasma treatment prior to metallization.
Shah teaches a multilayer film comprising a polyethylene substrate that is metallized through vacuum vapor deposition, wherein the polyethylene substrate is subject to a plasma or corona treatment prior to metallization (Shah, Abstract, Par. 0003-0004 and 0046-0048).
Modified Limatibul and Shah are analogous art as they both teach multilayer films comprising a metallized polyethylene substrate. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to used the metallized polyethylene film of Shah as the metallized polyethylene layer of modified Limatibul. This would allow for improved adhesion of the metallized layer to the film layer (Shah, Par. 0001 and 0003-0004).
Regarding claim 9, modified Limatibul teaches the metal includes aluminum (Shah, Par. 0048).
Regarding claims 10 and 32, modified Limatibul teaches the metallized film layer exhibits an optical density of 2.0 to 2.8 (Shah, Par. 0047), which lies within the claimed ranges of at least 2.0 and 2.0 to 2.8 and therefore satisfies the claimed range, see MPEP 2131.03.
Response to Arguments
Applicant’s remarks and amendments filed 24 September 2025 have been fully considered.
Applicant requests withdrawal of the rejections under 35 USC § 112 set forth in the previous office action.
The rejections under 35 USC § 112 set forth in the previous office action have been withdrawn due to the present claim amendments.
Applicant argues that the prior art of record does not teach the newly amended claims. This is found persuasive.
The previous grounds of rejection have been withdrawn due to the present claim amendments. New grounds of rejection have been made above in view of newly cited Benerjee and newly cited Limatibul.
Conclusion
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 THOMAS J KESSLER JR whose telephone number is (571)272-3075. The examiner can normally be reached 7:30-5:30 M-Th.
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/THOMAS J KESSLER/Examiner, Art Unit 1782
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