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 .
Continued Examination Under 37 CFR 1.114
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 2 October 2025 has been entered.
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 (i.e., changing from AIA to pre-AIA ) 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, 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.
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.
Claims 1, 2, 8, 13 and 15-18 are rejected under 35 U.S.C. 103 as being unpatentable over United States Patent Application Publication No. US 2009/0274920 (hereinafter “Li”), and further in view of United States Patent Application Publication No. US 2016/0068665 (hereinafter “Budhavaram”).Regarding claims 1 and 13 Li teaches a thermoformed article comprising a film comprising a biodegradable polymer composition (title and paragraph [0033]). Li teaches the biodegradable polymer composition comprises a renewable polymer and/or natural fiber, where the renewable polymers include cellulose-based polymers (abstract and paragraph [0027]). Li teaches an embodiment for the cellulose-based polymers includes a single polymer of cellulose acetate (paragraph [0047]). Li teaches the term thermoforming refers to preparing a shaped or formed article from a film (paragraph [0033]), which corresponds to a film comprising the aforementioned biodegradable polymer composition. Li teaches the renewable polymer, including the single polymer of cellulose acetate embodiment, comprises at least about 60 wt% of the composite (paragraph [0067]), which encompasses/overlaps the claimed range. Li teaches the use of additional materials include performance promoters or modifiers, such as plasticizers (paragraph [0006]). Li teaches plasticizers may be used in an amount of from about 0.01 to about 45 wt% (paragraph [0063]), which encompasses the claimed range. Li teaches methods of making the thermoformed article include subjecting the film to sufficient heat and pressure in order to form a three-dimensional article with a defined shape (paragraph [0033], [0051] and [0070]). Li does not explicitly teach wherein the film, when tested according to a gel analysis test, displays defects having a size of 300 microns or greater of less than about 5,000 defects/m2. It would have been obvious to one having ordinary skill in the art at the time of the invention to reduce the defects in the film which forms the aforementioned thermoformed article using nothing more than routine experimentation to optimize the structural integrity and stability of the thermoformed article. It has been held where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art unless such a range is shown to be critical. Please see MPEP § 2144.05(II)(A). Li also teaches an embodiment may be a thermoformed article such as a food or beverage cup, lid, cutlery item, foodservice item, molded tray, food storage container, etc. (paragraph [0070]), which corresponds to a thermoformed article having a defined shape including at least one wall. Li does not explicitly teach the thermoformed article (including the at least one wall) having a haze of less than about 10% when tested according to ASTM Test D1003 (2013), and the film being transparent. Budhavaram teaches a plasticized cellulose ester composition useful in food storage applications (abstract, paragraphs [0023] and [0100]). Budhavaram teaches the clarity (transparency) of the cellulose ester plastics described herein may be important in some applications (e.g., high clarity (or low haze) may be useful in food packaging, mobile phone enclosures, and the like) (paragraph [0100]), which corresponds to a product exhibiting transparency. Budhavaram does not explicitly teach the plasticized cellulose ester composition has a haze of less than about 10% when tested according to ASTM Test D1003 (2013). It would have been obvious to a person having ordinary skill in the art at the time of the invention to determine an appropriate degree of “low haze” using nothing more than routine experimentation to achieve the desired clarity which is important in a food packaging application. It has been held where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art unless such a range is shown to be critical. Please see MPEP § 2144.05(II)(A). Li and Budhavaram are analogous inventions in the field of plasticized cellulose ester resin compositions used in food storage applications. It would have been obvious to one skilled in the art at the time of the invention to modify the haze of the cellulose acetate of Li with the optimized low haze optical property of Budhavaram to provide a desired clarity of the article which is important in a food packaging application.Regarding claim 2 In addition, Li does not explicitly teach wherein the film, when tested according to a gel analysis test, displays defects having a size of 200 microns or greater of less than about 25,000 defects/m2, displays defects having a size of 100 microns or greater of less than about 70,000 defects/m2, and displays a total defect area of less than about 9,000 mm2. It would have been obvious to one having ordinary skill in the art at the time of the invention to reduce the defects in the film which forms the aforementioned thermoformed article using nothing more than routine experimentation to optimize the structural integrity and stability of the thermoformed article. It has been held where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art unless such a range is shown to be critical. Please see MPEP § 2144.05(II)(A).Regarding claim 8 In addition, Li teaches the film of the thermoformable composite is extruded (abstract, and paragraphs [0033] and [0071]).Regarding claim 15 In addition, Li teaches the thermoformed article includes a food storage container (food packaging) application (paragraph [0070]).Regarding claims 16-18 In addition, Li teaches an embodiment that includes a food storage container application (paragraph [0070]). Li does not explicitly teach the plasticizers include a triglyceride, a 1,2,3-triacetylglycol, or all the plasticizers listed in claim 17 (minus the glycerin ester, addressed below). Budhavaram teaches a plasticized cellulose ester composition useful in food storage applications (abstract, paragraphs [0023] and [0100]). Budhavaram teaches the plasticizer may be a food-grade plasticizer, which may be useful in producing a plasticized cellulose ester for use in applications where the cellulose ester plastics may directly or indirectly contact food (e.g., food containers). Examples of food-grade plasticizers include triacetin (triglyceride or 1,2,3-triacetylglycol), triethyl citrate (triglyceride), tributyl citrate (triglyceride), alkyl lactones, polyethylene glycols, 2-phenoxyethanol, glycerol tribenzoate, etc. (paragraph [0046]). It would have been obvious to a person having ordinary skill in the art at the time of the invention to modify the plasticizers of Li with the food-grade plasticizers of Budhavaram to use a plasticizer which is intended to function in the food storage container application disclosed by Li.Regarding claim 17 In addition, Li teaches plasticizers include esters of glycerin (paragraph [0063]).
Claims 4 and 5 are rejected under 35 U.S.C. 103 as being unpatentable over Li and Budhavaram as applied to claim 1 above, and further in view of United States Patent Number 8,444,757 (hereinafter “Yamada”).Regarding claims 4 and 5 The limitations for claim 1 have been set forth above. In addition, Li does not explicitly teach the film comprises an antioxidant, the antioxidant comprising a phosphite, wherein the phosphite comprises a diphosphite, and the diphosphite being present in the thermoformed article in an amount from about 0.001 to about 0.35 wt%. Yamada teaches a thermoplastic cellulose ester composition comprising a plasticizer and a cellulose acetate (abstract). Yamada teaches the composition comprises 0.1 wt%, which falls within the claimed range, of bis(2,6-di-t-butyl-4-methylphenyl) pentaerythritol diphosphite as a phosphorus-based antioxidant to form a composition formed into pellets for processing (column 12, line 36 through column 13, line 4). It would have been obvious to a person having ordinary skill in the art at the time of the invention to modify the cellulose acetate of Li with the diphosphite antioxidant of Yamada to protect Li’s biodegradable polymer composition from degradation related to oxidation.
Claims 6 and 7 are rejected under 35 U.S.C. 103 as being unpatentable over Li and Budhavaram as applied to claim 1 above, and further in view of United States Patent Application Publication No. US 2016/0264776 (hereinafter “Wolfe”).Regarding claims 6 and 7 The limitations for claim 1 have been set forth above. In addition, Li teaches useful plasticizers include aliphatic carboxylic acid, where analogous esters of the aliphatic carboxylic acid include diisooctyl sebacate (paragraph [0063]), corresponding to the aliphatic carboxylic acid being a polycarboxylic acid. Li also teaches the plasticizers are used in an amount ranging from about 0.01 to about 45 wt% (Id), which overlaps the claimed range. Li does not explicitly teach the aliphatic carboxylic acid (polycarboxylic acid) comprises citric acid. Wolfe teaches a biodegradable extrudable polymer composition comprising a base polymer comprising polylactic acid and cellulose ester (abstract, and paragraphs [0024] – [0025]). Wolfe teaches various esters derived from carboxylic acids may be included to act as plasticizers for the polymer, where exemplary carboxylic acids include citric acid (paragraph [0041]). Li and Wolfe are analogous inventions in the field of carboxylic acid based plasticizers for extrudable cellulose-based compositions. It would have been obvious to one skilled in the art at the time of the invention to modify the aliphatic carboxylic acid plasticizer of Li with the citric acid of Wolfe to provide an aliphatic carboxylic acid known to be useful as a plasticizer in cellulose-based polymer compositions.
Claim 9 is rejected under 35 U.S.C. 103 as being unpatentable over Li and Budhavaram as applied to claim 1 above, and further in view of United States Patent Number 6,787,245 (hereinafter “Hayes”).Regarding claim 9 The limitations for claim 1 have been set forth above. In addition, Li does not explicitly teach the film has been uniaxially or biaxially stretched. Hayes teaches a film that has been uniaxially or biaxially stretched improves performance of the film in properties such as tensile strength, flexibility, toughness and shrinkability, in the directions of stretching (column 17, line 54 through column 18, line 10). Therefore, it would have been obvious to a person having ordinary skill in the art at the time of the invention to modify the film of Li with the uniaxial or biaxial stretching of Hayes to improve the tensile strength, flexibility, toughness and/or shrinkability of the film in the directions of stretching.
Claim 12 are rejected under 35 U.S.C. 103 as being unpatentable over Li and Budhavaram as applied to claim 1 above, and further in view of United States Patent Application Publication No. US 2007/0252293 (hereinafter “Sato”).Regarding claim 12 The limitations for claim 1 have been set forth above. In addition, Li does not explicitly teach the cellulose acetate has a degree of substitution of from about 2.1 to 2.8. Sato teaches the substitution degree of a cellulose acetate provides a trade-off relationship between the mechanical property and melt formation property; that is, an increase in the overall substitution degree denotes a decrease in mechanical strength and improvement in the melt form property (paragraph [1089]). Absent a showing of criticality with respect to the degree of substitution (a result-effective variable), it would have been obvious to a person having ordinary skill in the art at the time of the invention to determine an appropriate degree of substitution of the cellulose acetate polymer of Li through routine experimentation in order to achieve the desired balance between the mechanical property and melt formation property of Li’s biodegradable polymer composition, as taught by Sato. It has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. Please see MPEP § 2144.05(II)(B).
Claim 19 is rejected under 35 U.S.C. 103 as being unpatentable over Li and Budhavaram as applied to claim 1 above, further in view of Sato, further in view of Wolfe, and further in view of Yamada.Regarding claim 19 The limitations from claim 1 have been set forth above. In addition, Li does not explicitly teach the cellulose acetate has a degree of substitution of from about 2.1 to 2.8. Sato teaches the substitution degree of a cellulose acetate provides a trade-off relationship between the mechanical property and melt formation property; that is, an increase in the overall substitution degree denotes a decrease in mechanical strength and improvement in the melt form property (paragraph [1089]). Absent a showing of criticality with respect to the degree of substitution (a result-effective variable), it would have been obvious to a person having ordinary skill in the art at the time of the invention to determine an appropriate degree of substitution of the cellulose acetate polymer of Li through routine experimentation in order to achieve the desired balance between the mechanical property and melt formation property of Li’s biodegradable polymer composition, as taught by Sato. It has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. Please see MPEP § 2144.05(II)(B). Li teaches an embodiment that includes a food storage container application (paragraph [0070]). Li does not explicitly teach the plasticizers include a triglyceride. Budhavaram teaches a plasticized cellulose ester composition useful in food storage applications (abstract, paragraphs [0023] and [0100]). Budhavaram teaches the plasticizer may be a food-grade plasticizer, which may be useful in producing a plasticized cellulose ester for use in applications where the cellulose ester plastics may directly or indirectly contact food (e.g., food containers). Examples of food-grade plasticizers include triacetin, triethyl citrate, tributyl citrate (triglycerides), etc. (paragraph [0046]). It would have been obvious to a person having ordinary skill in the art at the time of the invention to modify the plasticizers of Li with the food-grade plasticizers of Budhavaram to use a plasticizer which is intended to function in the food storage container application disclosed by Li. In addition, Li also teaches useful plasticizers include aliphatic carboxylic acid, where analogous esters of the aliphatic carboxylic acid include diisooctyl sebacate (paragraph [0063]), corresponding to the aliphatic carboxylic acid being a polycarboxylic acid. Li also teaches the plasticizers are used in an amount ranging from about 0.01 to about 45 wt% (Id), which overlaps the claimed range. Li does not explicitly teach the aliphatic carboxylic acid (polycarboxylic acid) comprises citric acid. Wolfe teaches a biodegradable extrudable polymer composition comprising a base polymer comprising polylactic acid and cellulose ester (abstract, and paragraphs [0024] – [0025]). Wolfe teaches various esters derived from carboxylic acids may be included to act as plasticizers for the polymer, where exemplary carboxylic acids include citric acid (paragraph [0041]). Li and Wolfe are analogous inventions in the field of carboxylic acid based plasticizers for extrudable cellulose-based compositions. It would have been obvious to one skilled in the art at the time of the invention to modify the aliphatic carboxylic acid plasticizer of Li with the citric acid of Wolfe to provide an aliphatic carboxylic acid known to be useful as a plasticizer in cellulose-based polymer compositions. Li does not explicitly teach the cellulose-based polymer comprises a diphosphite antioxidant in an amount from about 0.001 to about 0.35 wt%. Yamada teaches a thermoplastic cellulose ester composition comprising a plasticizer and a cellulose acetate (abstract). Yamada teaches the composition comprises 0.1 wt%, which falls within the claimed range, of bis(2,6-di-t-butyl-4-methylphenyl) pentaerythritol diphosphite as a phosphorus-based antioxidant to form a composition formed into pellets for processing (column 12, line 36 through column 13, line 4). It would have been obvious to a person having ordinary skill in the art at the time of the invention to modify the cellulose-based polymer of Li with the diphosphite antioxidant of Yamada to protect Li’s biodegradable polymer composition from degradation related to oxidation.
Response to Arguments
Applicant's arguments filed 2 October 2025 have been fully considered but they are not persuasive.
The applicant argued, regarding Budhavaram, (1) it is unclear how the Office is proposing to achieve this “desired clarity” of Budhavaram in Li, and (2) it is unclear why one skilled in the art would do so, as the cellulose ester that can be used in Li is included in a core layer of Li, not an outer layer, where Budhavaram does not explain why a low haze optical property is important but presumably, it is for when cellulose ester is an outer, visible layer, which is not the case in Li. This argument is not persuasive. Regarding (1), the applicant’s argument is not clear. The examiner suspects the applicant is expecting the rejection of record to detail strategies for how to ensure transparency to the film from the prior art. A person having ordinary skill in the art would reasonably expect a comparable degree of transparency when comparing the cellulose-based polymers (which includes a cellulose acetate, which is identical to the composition claimed by the applicant) from Li and the cellulose acetate from the instant set of claims. Furthermore, Budhavaram provides teaching and motivation for why a person having ordinary skill in the art should maintain the transparency of a plasticized cellulose ester composition for use in food storage applications. Regarding (2), the reason why a person having ordinary skill in the art would make the modification proposed by the examiner in the rejection of record is detailed in said rejection of record. That is, the modification of the cellulose acetate of Li with the optically transparent property of Budhavaram provides a desired clarity of the article which is disclosed by the prior art as being an important feature in a food packaging application. Furthermore, the applicant’s arguments with regard to the cellulose ester composition of Li being a core layer, and not an outer layer fails to establish nonobviousness of the claims. The examiner is of the position that the prior art’s teaching of providing transparency to an article would require optical transparency throughout the entire article, not just an outer layer.
The applicant stated Dr. Li has provided a declaration to explain why the film of Li would not be transparent. The applicant argued Dr. Li explains that the composite of Li includes a natural fiber, which has a different refractive index for visible light and thus is opaque. Moreover, the claimed defects would not be met by Li as the gel analysis test for defects would not be able to be conducted. This argument is not persuasive. It is initially noted that there is no declaration submitted by Dr. Li in the current record. Therefore, the applicant has failed to appropriately submit an evidentiary declaration under 37 CFR 1.132. See MPEP §716. Nevertheless, with regards to the natural fiber from Li, the examiner respectfully submits the entire disclosure of Li recites the incorporation of a natural fiber as being an optional feature with the recitation of “and/or a natural fiber” throughout the disclosure. In other words, the position that the film would not be transparent because the inclusion of a natural fiber frames the argument on a feature which is not required by Li. Therefore, a person having ordinary skill in the art would readily recognize the presence of embodiments where a natural fiber is not necessarily included. Additionally, the applicant has failed to provide any evidence explaining why the gel analysis test for defects would not be able to be conducted in the film from Li. It is respectfully submitted that the structure of the defects of the thermoformed article, as defined in the claims, is what has been given patentable weight, not the manner in which the defects were analyzed.
Conclusion
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/BRIAN HANDVILLE/Primary Examiner, Art Unit 1783