DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 12/23/2025 has been entered.
Claims 1-19 are pending as amended on 12/23/2025. Claims 1-7 and 15 stand withdrawn from consideration.
Any rejections and/or objections made in the previous Office action and not repeated below are hereby withdrawn. The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office Action.
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 10-14 and 16 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.
Independent claim 8 recites a film comprising a polyethylene composition. The film is not limited to any particular thickness or type of film.
Claims 10-14 and 16 depend from claim 8, and further limit the scope of the claim to films which exhibit certain properties. The properties in the dependent claims are recited as being determined on “a 40 µm thick blown film.”
It is not clear whether:
claims 10-14 and 16 are limited to a film which is a blown film and which has a thickness of 40 µm, OR
claims 10-14 and 16 encompass any type of film having any thickness, and the recited property needs to be met only when the film is a 40 µm thick blown film, OR
claims 10-14 and 16 are not limited to any particular film type or any particular thickness, yet, the recited property needs to be met by every film encompassed by the claims (in which case, it is not clear how one would determine whether a film which is not blown and/or which has a thickness other than 40 µm exhibits the recited property).
Because of the uncertainty and multiple conflicting interpretations set forth above, the scope of claims 10-14 and 16 is not clear. For purposes of applying prior art, claims 10-14 and 16 have been interpreted as being limited to a blown film having a thickness of 40 µm.
Claim Rejections - 35 USC § 103
Claim(s) 8, 9 and 17-19 is/are rejected under 35 U.S.C. 103 as being unpatentable over Lehtinen et al (US 2008/0139749).
As to claims 8, 9, 17 and 18, Lehtinen discloses various articles, including a blown film, cast film, or extrusion coated substrates [0001], corresponding to a film as recited in claim 8 and further corresponding to the species of film recited in instant claim 9, respectively, formed using a polyethylene copolymer composition [0001, 0012-13].
Lehtinen discloses that the VLDPE is multimodal and comprises at least a LMW (low molecular weight) fraction and a HMW (high molecular weight) fraction [0013], and discloses embodiments wherein the VLDPE composition is bimodal [0016]. As further discussed below, Lehtinen’s bimodal VLDPE composition corresponds to the “base resin” as recited in claim 8.
Lehtinen discloses that the polyethylene copolymer is prepared with at least one C4-10-alpha olefin comonomer in a process comprising a first stage of polymerizing ethylene with at least one comonomer in the presence of a single site catalyst (corresponding to a “single site catalyst system” as recited in claim 8) to form a LMW component [0065], and then transferring the resulting mixture to a gas phase reactor and polymerizing ethylene and at least one comonomer in the gas phase to form a HMW component [0066], which yields a multimodal copolymer having a density of less than 920 kg/m3 [0067]. Lehtinen teaches that the density of the VLDPE composition is preferably at least 905 kg/m3 [0024]. Lehtinen’s range of 905-920 kg/m3 encompasses the presently claimed range of 913.0-920.0 kg/m3. See also Lehtinen’s composition of Example 3, which has a density of 915 kg/m3, falling within the presently claimed range.
Lehtinen discloses an embodiment wherein the VLDPE composition comprises only one comonomer [0073-74, 0081], and names butene as an example comonomer ([0073]: “In one embodiment of the invention only one comonomer is used. The comonomer is e.g. hexene or butene, preferably hexene.”) While hexene is named in [0073] as preferred in an embodiment when only one comonomer is used, note that butene is clearly named in [0073] as an alternative comonomer for an embodiment when only one comonomer is used. Lehtinen teaches that the overall comonomer content in the VLDPE composition is 0.5-15 mol% [0028], which encompasses the presently claimed range of 8.0 to 13.0 wt%. Lehtinen further exemplifies VLDPE compositions comprising only butene as comonomer, with butene contents of 8.1 and 10.5 wt% (see Tables 1 and 2, examples 1-3), which fall within the range of 8.0 to 13.0 wt% recited in claim 8. Therefore, Lehtinen discloses a bimodal VLDPE composition (which consists essentially of ethylene and 1-butene and is free of 1-hexene, as recited in claim 17) comprising a LMW fraction which is a first ethylene-1-butene copolymer (corresponding to instant (A)) and a HMW fraction which is a second ethylene-1-butene copolymer (corresponding to instant (B)).
Lehtinen discloses a comonomer content in the LMW fraction of up to 5 mol%, most preferably 0.5 to 1.5 mol% [0028]. As calculated by the examiner (based on the molecular weights of ethylene and butene; i.e., 28 g/mol and 56 g/mol, respectively), Lehtinen’s disclosed range of 0.5 to 1.5 mol% comonomer content corresponds to an ethylene-1-butene copolymer having 1.0 wt% to 3.0 wt% butene, which falls within the presently recited butene content range (for fraction (A)) of 0.5 to 7.5 wt%.
Lehtinen further teaches that in the HMW polymer, the comonomer content is preferably up to 15 mol%, and in some applications preferably 3.5 to 6 mol% [0028], which is a higher comonomer content (i.e., in the case of ethylene-1-butene copolymer, a higher 1-butene content) than in the LMW (“first”) fraction (satisfying the butene content requirement for instant (B) recited in instant claim 8). Additionally, a butene content of “up to 15 mol%” corresponds to an ethylene-1-butene copolymer having up to 30 wt% butene, which encompasses the range of 15.0 to 25.0 wt % recited in claim 18. Case law has established that a prima facie case of obviousness is established where the claimed ranges overlap the ranges disclosed by the prior art. See MPEP 2144.05. It would have been obvious to the person having ordinary skill in the art, therefore, to have selected any butene content in the HMW fraction within a range of up to 30 wt%, including within the presently claimed range of 15.0-25.0 wt%, in order to e.g., control the density and/or MFR2 of the fraction [0033].
As to the presently recited melt flow rate MFR2 of fraction (A):
Lehtinen teaches typical MFR2 values (according to ISO 1133 at 190 C and 2.16 kg) for the bimodal polymer depend on the intended application: for extrusion coating the MFR2 is 5-20 g/10 min, while for a blown film, the MFR2 is preferably 0.1 to 3.0 g/10 min [0021] (or 0.01 to 2 g/10 min [0081]). The density and MFR2 of each fraction can be controlled by adjusting various process conditions [0033]. Lehtinen further teaches that the LMW fraction has a MFR2 of 1 to 300 g/10 min [0022], which overlaps the presently claimed range of 1.0 to less than 50.0 g/10 min. Considering Lehtinen’s disclosure, the person having ordinary skill in the art would have been motivated to select any appropriate MFR2 for Lehtinen’s LMW fraction within the disclosed range in order to adjust the MFR2 of the final composition as desired for a given type of intended application. One would have further recognized that, in addition to the MFR2 of the LMW fraction, the MFR2 of the final composition must depend on the MFR2 of the HMW fraction and the weight ratio of LMW:HMW fractions. It would have been obvious to the person having ordinary skill in the art, therefore, to have prepared Lehtinen’s LMW fraction having any appropriate MFR2 within the disclosed range of 1 to 300 g/10 min (by taking into account, e.g., the MFR2 of the HMW fraction, as well as the weight ratio of LMW:HMW fractions), including an MFR2 within the presently claimed range of 1.0 to less than 50.0 g/10 min. Case law has established that a prima facie case of obviousness is established where the claimed ranges overlap the ranges disclosed by the prior art. See MPEP 2144.05.
As to claim 19, Lehtinen suggests a film according to claim 8, as set forth above. As previously discussed, Lehtinen teaches typical MFR2 values (according to ISO 1133 at 190 C and 2.16 kg) for the bimodal polymer depend on the intended application: for extrusion coating the MFR2 is 5-20 g/10 min, while for a blown film, the MFR2 is preferably 0.1 to 3.0 g/10 min [0021]. The MFR2 of each fraction can be controlled by adjusting various process conditions [0033].
Lehtinen fails to teach the MFR2 of the HMW fraction (corresponding to instant fraction (B)). However, the MFR2 of fraction (B) as presently recited is a value which is calculated based on:
the MFR2 of the A fraction,
the MFR2 of the blend of fractions A and B, and
the weight percentages of each of fractions A and B in the blend, as described on p 31 of the instant specification:
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Lehtinen discloses:
a suitable range for the MFR2 of the LMW fraction corresponding to instant A (1 to 300 g/10 min [0022], which encompasses the presently disclosed range of 1 to 50 g/10 min; instant spec p 5),
a suitable range for the MFR2 of the composition comprising both LMW (corresponding to instant A) and HMW (corresponding to instant B) fractions (0.1 to 3.0 g/min for a blown film application [0021], which substantially overlaps the presently disclosed range of 0.7 to 4.0 g/10min; instant spec p 9),
a suitable range for the weight percentage of the LMW fraction in the blend of LMW and HMW fractions (30-70% [0027], which encompasses the presently disclosed range of 30 to 47 wt%; instant spec p 6), and
a suitable range for the weight percentage the HMW fraction in the blend of LMW and HMW fractions (30-70% [0027], which encompasses the presently disclosed range of 43 to 65 wt%; instant spec p 8).
Given that the ranges for each of the inputs disclosed by Lehtinen encompass or substantially overlap the ranges for each of the inputs disclosed in the instant specification, there is reasonable basis to conclude that there is substantial overlap between the presently recited MFR(B) range recited in claim 19 and the range of MFR2 outputs which must be associated with a HMW fraction as disclosed by Lehtinen. For the reasons set forth in the rejection above, when preparing a composition as suggested by Lehtinen, it would have been obvious to the person having ordinary skill in the art to have selected any appropriate MFR2 values for the final composition and LMW fraction from within Lehtinen’s disclosed ranges, and any appropriate weight percentages for the LMW and HMW fractions from within Lehtinen’s disclosed ranges, in order to achieve a desired balance of properties and processability, including MFR2 values and weight percentages which correspond to a HMW fraction MFR2 within the presently claimed range. Case law has established that a prima facie case of obviousness is established where the claimed ranges overlap the ranges disclosed by the prior art. See MPEP 2144.05.
Claim(s) 10-14 and 16 is/are rejected under 35 U.S.C. 103 as being unpatentable over Lehtinen et al (US 2008/0139749) in view of Miranda et al (US 2019/0002676).
The rejection of claims 8 and 9 over Lehtinen are incorporated here by reference. As set forth above, Lehtinen suggests a film according to claims 8 and 9. Instant claims 10-14 and 16 depend from claim 8, and recite various properties of the film. Note that in each of the examples of the instant specification (i.e., both the inventive examples exhibiting the recited properties, and comparative examples), the films are formed from a polyethylene composition as presently recited blended with a commercial linear low density polyethylene.
Lehtinen discloses that the multimodal VLDPE composition can be extruded onto a substrate, cast, or blown as a film [0081, 0100], and that it is possible to blend with other polymers, such as 0-50% LDPE [0100] or up to 30 wt% in the case of HDPE, MDPE or LLDPE [0105]. Lehtinen discloses that films formed from the polymer of the invention have good hot-tack and/or tear properties [0107], and that the polymers allow a broader sealing window such that the sealing operation can take place at a lower temperature [0108]. However, Lehtinen fails to disclose each of the properties recited in instant claims 10-14 and 16.
Miranda discloses that polyethylene is the most widely used thermoplastic polymer in the world, being made into a wide range of products [0001]. Miranda teaches that films include blown or cast films useful as shrink film, fling film, stretch film, sealing film, etc… [0114]. Miranda teaches a monolayer film thickness ranging from 0.25 to 10 mils (equivalent to 6.4 to 254 micron) [0115]. Considering Miranda's disclosure, when preparing a blown film from a polyethylene composition (such as suggested by Lehtinen), it would have been obvious to the person having ordinary skill in the art to have selected and measured properties on a film having any thickness within a range of, e.g., 6.4 to 254 micron (including 40 micron) in order to provide a product with properties appropriate for a given intended application.
Miranda teaches that blending of two or more polymers is often applied to control the overall property profile of materials and/or to aim for cost reduction. For polyethylene resins, blending primarily aims at improving the balance of processability and mechanical properties of the final product [0005]. Miranda discloses methods of making a polymer composition that may include melt blending a plurality of polyethylenes in the molten state [0010].
Miranda teaches films which exhibit sealing properties including a seal initiation temperature of 60 to 100 C [0097] (which encompasses the range of 90-100 C recited in claim 11 and 94-98 C recited in claim 16) and a hot tack sealing temperature in the range of 80-125 C [0101] (which encompasses the range of 88-97 C recited in claim 12 and 90-95 C recited in claim 16). Miranda further teaches other film properties such as tear resistance, improved processability and better optical properties, including a MD Elmendorf tear strength of at least 230 gF (i.e., at least 2.3 N, which falls within the range of at least 0.6 N recited in claim 10 and at least 0.8 N recited in claim 16) and TD Elmendorf tear strength of at least 800 gF (i.e., at least 7.8 N, which falls within the range of at least 5.0 N recited in claim 10 and at least 7.5 N recited in claim 16) [0105], a haze of less than 8% [0113], which falls within the range of not more than 14.0% recited in claim 13 (and not more than 10.0% recited in claim 16), and a gloss of at least 85% [0111], which encompasses the range of at least 92.0% recited in claim 14 (and at least 94.0% recited in claim 16).
Considering Miranda’s disclosure (e.g., in [0114]), one having ordinary skill in the art would have recognized that polyethylene is utilized to form a wide range of types of films intended for a wide range of applications. Miranda discloses various ranges in [0096-0113] which establish values which one would have considered “improved” or “beneficial” for a polyethylene intended for use in various film applications. One would have further understood that an optimum combination of properties for a polyethylene film depends on the intended application thereof. The person having ordinary skill in the art would have been motivated, therefore, to tailor the properties of a film comprising polyethylene within the various ranges disclosed by Miranda in order to achieve a desired balance between sealing properties, tear resistance, processability and optical properties as appropriate for any given application. It would have been obvious to the person having ordinary skill in the art, therefore, to have formed a blown film (having a thickness of, e.g., 40 microns) from a blend comprising multimodal VLDPE having good hot tack, sealing, and tear properties, as suggested by modified Lehtinen, having any appropriate properties within the ranges taught by Miranda, including properties which fall within the presently claimed ranges.
Response to Arguments
Applicant's arguments filed 12/23/2025 have been fully considered.
Applicant argues (pp 6-7) that in view of Lehtinen’s teaching in [0073] that “typically for film applications hexene is preferably used as the comonomer,” and in view of Lehtinen’s exemplified films wherein hexene is included, there is no motivation to arrive at a claimed film (comprising a polyethylene composition wherein butene is utilized as the only comonomer). Applicant further argues (p 7, last full paragraph) that Lehtinen discloses preferred MFR ranges for the LMW fraction which are outside the claimed range for fraction A.
However, disclosed examples and preferred embodiments do not constitute a teaching away from a broader disclosure or nonpreferred embodiments (MPEP 2123). The broader range of LMW MFR values disclosed by Lehtinen (1 to 300 g/10 min) encompasses the claimed range, and, Lehtinen broadly discloses [0073] an embodiment of an invention wherein “only one comonomer is used,” and names “hexene or butene” as examples of the comonomer. Lehtinen’s disclosure that hexene is preferably used for typical film applications does not teach away from using the other named comonomer (butene) instead of hexene for film applications. To further illustrate that Lehtinen’s teaching in [0073] is not a teaching away from using butene as the only comonomer for film applications: Lehtinen claims a blown film (claim 25) and a cast film (claim 26) which comprise an ethylene copolymer as recited in claim 24. The ethylene copolymer recited in Lehtinen’s claim 24 encompasses copolymers of ethylene and “at least one… comonomer,” with no limitation placed on the comonomer species. Therefore, Applicant’s argument that one would not have arrived at a film as claimed due to Lehtinen’s disclosed examples and preferred embodiment is not persuasive for at least the reason that Lehtinen broadly discloses a VLDPE composition comprising one comonomer used for a cast or blown film [0081], does not teach away from selection of butene as the one comonomer, and discloses a broad MFR range which encompasses the claimed range.
Additionally: as acknowledged by Applicant, Lehtinen exemplifies polyethylene compositions wherein butene is the one comonomer (Examples 1-3), and the compositions are used for extrusion coating. A coating (i.e., layer) of a polyethylene composition on a substrate is reasonably considered a “film” of polyethylene composition, absent a special definition of “film” which would exclude such a coating. Therefore, Applicant’s argument that one would not have arrived at a film as claimed due to Lehtinen’s disclosed examples and preferred embodiment is not persuasive for at least the reason that an extrusion coating is considered encompassed by the term “film.”
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to RACHEL KAHN whose telephone number is (571)270-7346. The examiner can normally be reached Monday to Friday, 8-5.
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/RACHEL KAHN/Primary Examiner, Art Unit 1766
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