DETAILED OFFICIAL 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 .
Examiner Note
It is noted that all references hereinafter to Applicant’s specification (“spec”) are to the published application US 2023/0365828, unless stated otherwise. Further, any italicized text utilized hereinafter is to be interpreted as emphasis placed thereupon.
Election
Applicant's election with traverse of Invention I, claims 1-23 and 29 in the reply filed on 30 July 2025, and Species I-A, claim 7 and Species II-A, claim 15 (polypropylene) is acknowledged. The traversal is on the grounds that Inventions I-III could be easily examined together without imposing an undue burden, as the inventions share one or more common features. This is not found persuasive because the grounds of traversal constitute a conclusory statement regarding ease of examination, and thereby fail to specifically address the reasons for restriction set forth in the Restriction Requirement dated 04 June 2025 [id., ¶4-10].
The requirement is still deemed proper and is therefore made FINAL.
Claims 8 and 24-28 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected invention, there being no allowable generic or linking claim.
Claim Objections
Claim 16 is objected to because of the following informalities:
Improper grammar or typographical error: “wherein the barrier layer is a first barrier layer and a second barrier layer is disposed between the polymer layer and the second polymer layer”
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.
Claims 3, 5-6, and 9 are rejected under 35 U.S.C. 112(b) as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor regards as the invention.
Regarding claim 3, the term “high” of the phrase “high aspect ratio” constitutes a relative term of degree which renders the claim indefinite. The requisite degree of aspect ratio is unclear, and the phrase is not explicitly defined in the spec – as such, one of ordinary skill in the art would not be able to readily envisage or determine the metes and bounds of the scope of the claimed phrase (see MPEP 2173.05(b)(I)).
In order to overcome the indefiniteness issue, it is respectfully suggested to amend claim 3 as follows, of which finds explicit support in the spec [0044]: “wherein the plurality of particles define an aspect ratio of 2:1 to 20:1.” Claim 3 is interpreted for examination on the merits wherein any aspect ratio greater than 1:1 reads on the claimed “high” aspect ratio.
Regarding claims 5-6, the term “high” of the phrase “high cationic charge density” is a relative term of degree which renders the claim indefinite. The requisite degree of cationic charge density is unclear, and the spec does not provide a standard for ascertaining the requisite degree, does not provide a general charge density range/value, and does not provide an example(s) of the charge density value. See MPEP 2173.05(b)(I).
In order to overcome the indefiniteness issue, it is respectfully suggested to strike “high” from each of claims 5 and 6. Claims 5 and 6 are interpreted for examination on the merits wherein any degree of cationic charge density – which results in particle agglomeration reduction (claim 5) and particle repellence (claim 6) – reads on the claimed term “high”.
Regarding claim 9, the phrase “such as” constitutes exemplary and/or preferential claim language which renders the claim indefinite. See MPEP 2173.05(d) – if stated in the claims, examples and preferences may lead to confusion over the intended scope of the claim. In the instant case, it is unclear if the tortuous path within the barrier layer is a preference/example; or necessarily resultant from the presence of the plurality of particles, thereby resulting in the particles being “impermeable”. It is also unclear what chemical compound or material the impermeability of the particles is in relation to, and unclear if the tortuous path (resulting in decreased permeability) created by the particles is the actual feature which results in the claimed impermeability.
In order to overcome the indefiniteness issue, it is respectfully suggested to strike “such as” from the claim, or to strike the entirety of “such as to create a tortuous path within the barrier layer”. For examination on the merits, claim 9 is interpreted wherein the tortuous path is a result of the particles present in the barrier layer being impermeable to any compound/material, and/or where a tortuous path created by the plurality of particles constitutes said particles being “impermeable”.
Appropriate action is required.
Claim Rejections - 35 USC § 102
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 the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1-3, 9-12, 14-15, 19, 22, and 29 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Kravitz et al. (US 2007/0254160; “Kravitz”). Dyble et al. (US 6,609,633; “Dyble”) is relied upon as an evidentiary reference in support of the grounds of rejection.
Regarding claim 1, Kravitz discloses a coated substrate comprising a base film (polymer layer) and a coating layer (barrier layer) exhibiting gas barrier properties formed on at least one surface of said base film, the coated substrate useful as food packaging [Abstract; 0002, 0012-0016, 0024, 0046]. The base film is suitably, inter alia polyethylene terephthalate (PET), polyethylene (PE), e.g. HDPE, or polypropylene (PP), e.g. BOPP, OPP, cast PP [0022, 0034-0036, 0046]. As evidenced by Dyble [col. 7 ln. 48-54], PET, PE, and PP are thermoformable.
The coating layer comprises vermiculite particles, a film-forming polymer, and an anionic dispersant [0013-0020, 0053-0054, 0057-0063]. The vermiculite particles exhibit a high aspect ratio, e.g. greater than 3,000, preferably greater than 5,000 [0019, 0053], and the anionic dispersant functions to disperse the vermiculite particles (functionalize the particles via interaction with the positively-charged particle edges) to prevent agglomeration (maintain dispersed state) of the particles in the layer [0053-0054], allowing the particles to form a tortuous path within the coating layer to thereby reduce the ability of molecules, e.g. oxygen to traverse therethrough [0046, 0053-0054]. The film-forming polymer is suitably, inter alia polyvinyl alcohol (PVOH) or urethane-containing polymers, e.g. polyurethane [0057-0063, 0070-0072].
The coating layer is formed from a coating composition, in particular an aqueous or solvent-based solution comprising the aforesaid particles, polymer, and dispersant, wherein said solution is coated onto the surface of the base film, followed by drying [0046, 0055-0056, 0068, 0070-0072].
The anionic dispersant, which functionalizes the vermiculite particles and prevents agglomeration thereof, reads on the claimed adhesion promoter, in accordance with Applicant’s spec (configured to reduce agglomeration of the particles) [0011, 0031, 0042, 0047-0048]. The vermiculite particles read on the claimed plurality of particles. The dispersion of the functionalized (i.e. coated) vermiculite particles in the film-forming polymer, in the form of the dried layer, reads on the claimed barrier layer, and the dried layer having been formed from the coating solution inclusive of the functionalized particles dispersed in said solution, reads on “the plurality of coated particles are dispersed in a barrier solution”. See MPEP 2113.
It is noted that Applicant’s spec indicates that the barrier solution, inclusive of a polymer, e.g. PVOH and the coated particles dispersed within said solution, is coated onto the polymer layer and dried to form the barrier layer [0042, 0056-0057].
The coated substrate of Kravitz, set forth/cited above, anticipates the claimed thermoformable polymeric sheet (hereinafter “sheet”) defined by each and every limitation of claim 1.
Regarding claim 2, the rejection of claim 1 above reads on the sheet defined by claim 2 – the vermiculite particles are inorganic.
Regarding claim 3, the rejection of claim 1 above, in view of the grounds of rejection of claim 3 under 112(b) above, reads on the sheet defined by claim 3 – the aspect ratio of the vermiculite particles is explicitly disclosed by Kravitz as being “high”, and/or the value of about 3,000 or greater also constitutes a “high” aspect ratio.
Regarding claim 9, the rejection of claim 1 above, in view of the rejection of claim 9 under 112(b) above, reads on the sheet defined by claim 9. As disclosed by Kravitz, the plurality of functionalized vermiculite particles dispersed in the coating layer result in formation of a tortuous path which oxygen molecules must traverse to permeate through the coated substrate [0053], resulting in effective gas barrier properties [0046], e.g. oxygen transmission rate (OTR) of 0.004 cm3/100 in2·day·atm at 0% RH [0072]. The explicit disclosure of the tortuous path, and/or the exemplified low OTR, read on the claimed particles being “impermeable”.
Regarding claims 10 and 12, in view of the rejection of claim 1, Kravitz discloses that the base film may be formed from a coextruded multilayer film, or coated with additional (one or more) polymer sealant layers, wherein said coextruded or sealant layers are suitably polyethylene (PE), including high-density polyethylene (HDPE), polypropylene (PP), or polyethylene terephthalate (PET) [0034, 0036-0037, 0052] (PE, PP, and PET are thermoformable [Dyble, col. 7 ln. 48-54]). Thus, Kravitz reasonably discloses a multilayer substrate comprising, in the following stated sequence, sealant layer 1, sealant layer 2, base film, coating layer (S1/S2/B/C), or alternatively base film 2, base film 1, base film, coating layer (B2/B1/B/C), wherein S1, S2, B2, B1, and B are each, independently, PP, PET, or PE, such as HDPE (see MPEP 2131.02(II)).
In view of MPEP 2131.02(II), Kravitz [0034-0037 anticipates the coated substrate B2/B1/B/C, wherein each of B2, B1, and B are suitably formed from HDPE, i.e. HDPE/HDPE/HDPE/coating. The aforesaid coated substrate reads on each sheet defined by claims 10 and 12, i.e. external cap/core/internal cap/barrier layer, wherein the barrier layer is adjacent the internal cap layer (claim 10), and wherein the external and internal cap layers comprise HDPE (claim 12). Alternatively, Kravitz also anticipates the coated substrate PET/PET/PET/coating, which reads on the sheet defined by claim 10 in the alternative to the foregoing embodiment.
Regarding claim 11, in view of the rejection of claim 10 above, Kravitz discloses that the coating layer may be subsequently laminated or extrusion coated with one or more sealant (S) polymer layers (overlacquer) [0052]. As such, Kravitz anticipates the coated substrate B2/B1/B/C/S, i.e. external cap/core/internal cap/barrier layer/overlacquer. The coated substrate of Kravitz reads on the sheet defined by claim 11 which is dependent upon claim 10.
Regarding claim 14, in view of the rejection of claim 1, Kravitz discloses that one or more additional polymeric layers, e.g. sealant (S) polymers may be disposed on the coating layer, opposite the side of the base film (base/coating/sealant) [0052]. Said sealant polymer and position thereof reads on the claimed second polymer layer and corresponding position “disposed adjacent the barrier layer opposite the polymer layer”.
Regarding claim 15, in view of the rejections of claim 1 and claim 14 above, Kravitz discloses that the base film is suitably PP, and the additional (sealant) polymeric layer is suitably PP (MPEP 2131.02(II)). As such, Kravitz reasonably discloses the multilayer film: base/coating/sealant, wherein both the base film and sealant layer are PP (PP/C/PP), of which reads on the sheet defined by claim 15 as dependent upon claim 14.
Regarding claims 19 and 22, the rejection of claim 1 above reads on each sheet defined by claims 19 and 22, respectively. The film-forming polymer of the coating solution, and which forms the polymeric matrix of the coating layer resultant from coating and drying the solution on the base film, is PVOH. The PVOH of the coating layer reads on the claimed plurality of particles which are “further coated with polyvinyl alcohol”, given that the functionalized vermiculite particles are dispersed in, and thereby necessarily coated with said PVOH forming the polymeric matrix of the layer (claim 19). The PVOH (film-forming polymer) of the coating solution and/or coating layer reads on the claimed “barrier solution is polyvinyl alcohol” (claim 22).
Regarding claim 29, the rejection of claim 1 above is incorporated herein by reference (not repeated) and reads on the packing structure defined by claim 29. As set forth/cited above, Kravitz discloses that the coated substrate suitably takes the form of, e.g. food packaging [0024, 0036, 0039, 0043].
Claims 1-2, 4-7, 9, 14-15, 17, 23, and 29 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Bourgeois (US 2007/0106005; “Bourgeois”). Dyble is relied upon as an evidentiary reference in support of the grounds of rejection.
Regarding claim 1, Bourgeois discloses packaging articles, e.g. sheets, films, preforms, and molded articles formed therefrom, inclusive of a polymer layer and a barrier layer disposed on said polymer layer [Abstract; 0012, 0027-0031, 0034-0036]. The polymer layer is suitably formed from, inter alia PET, PP, or PE [0029-0031] (MPEP 2131.02(II)), all of which are thermoformable, as evidenced by Dyble [col. 7 ln. 48-54].
The barrier layer comprises a barrier polymer and clay nanoparticles dispersed throughout the barrier polymer, said nanoparticles coated with a cationic polymer (adhesion promoter) that is preferably polyethyleneimine (PEI) [0005-0007, 0013, 0020-0025, 0034]. The nanoparticles are suitably, inter alia talc or mica [0021] (MPEP 2131.02(II)); the barrier polymer is suitably, inter alia ethylene vinyl alcohol (EVOH), polyvinylidene chloride (PVDC), other polyalcohols, or polyamide [0006-0007, 0031] (MPEP 2131.02(II)).
The PEI has a high cationic charge density – at least 10 meq/g – which functions to prevent agglomeration of the nanoparticles (maintain dispersed state), thereby reducing permeation of gases or liquids through the packaging article (enhancing gas barrier properties) [0020-0023, 0026, 0032].
The nanoparticles, coated with PEI, read on the claimed plurality of particles coated in an adhesion promoter; the coated nanoparticles dispersed in the barrier polymer read on “plurality of coated particles are dispersed in a barrier solution” (barrier polymer reads on barrier solution, e.g. EVOH is a suitable barrier solution in accordance with Applicant’s spec [0042]).
Given that the polymer layer is formed from a thermoformable polymer; and given that the degree of, or properties associated with, thermoformability of the polymeric sheet are not defined in the claim, the packaging article of Bourgeois reads on “thermoformable”, i.e. would have necessarily exhibited at least some degree of thermoformability (MPEP 2112(V); MPEP 2112.01(I) and (II); MPEP 2145; MPEP 2145(I)). The packaging article of Bourgeois anticipates the thermoformable polymeric sheet defined by each and every limitation of claim 1.
Regarding claims 2 and 4, the clay nanoparticles are suitably mica or talc nanoparticles (claim 2, inorganic; claim 4, talc or mica).
Regarding claims 5-7, the adhesion promoter is PEI, and (as explicitly disclosed by Bourgeois) exhibits a “high” cationic charge density – at least 10 meq/g – which prevents agglomeration of the nanoparticles.
Regarding claim 9, in view of the rejection of claim 9 under 35 U.S.C. 112(b) above, the rejection of claim 1 above reads on the sheet defined by claim 9. Further, it is noted that the nanoparticles are suitably talc or mica (identical species to those recited in claim 4).
Regarding claims 14-15, Bourgeois discloses a multilayer embodiment of the packaging article including polymer layer/barrier layer/polymer layer, i.e. the barrier layer sandwiched between two polymer layers, wherein the polymer layers are each suitably PP [0029-0030] (MPEP 2131.02(II)) (claim 14, further comprising second polymer layer disposed adjacent the barrier layer opposite the polymer layer; claim 15, wherein the polymer layer and second polymer layer are polypropylene).
Regarding claim 17, in view of the rejection of claim 14 above, Bourgeois discloses that the barrier layer may not extend over the entire length of the article, e.g. axial height of the container, but rather may be confined to only a portion or portions thereof, e.g. present only in the sidewall of a container (thus, not present in the neck/finish/base) [0029] (claim 17, wherein the barrier layer is not coextensive with the polymer layer and the second polymer layer).
Regarding claim 23, as set forth in the rejection of claim 1 above, the packaging article (sheet) suitably takes the form of a molded container [0012, 0028, 0036]. The aforesaid molded container reads on (anticipates) the claimed container which is thermoformed from the polymeric sheet – it is noted that “thermoformed from the polymeric sheet” constitutes a product-by-process limitation.
Applicant is respectfully directed to MPEP 2113(I) and (II) – 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. Further, the structure implied by the process steps should be considered when assessing patentability, in particular where the product can only be defined by the process steps by which it is made or where the manufacturing process steps would be expected to impart distinctive structural characteristics to the final product.
Regarding claim 29, the rejection of claim 1 above is incorporated herein by reference (not repeated). The packaging article of Bourgeois set forth/cited above anticipates the packing structure defined by each and every limitation of claim 29.
Claims 1-2, 22, and 29 are rejected under 35 U.S.C. 102(a)(1) as anticipated by Harada et al. (US 5,981,029; “Harada”).
Regarding claim 1, Harada discloses a gas barrier film suitable for use in packaging applications, e.g. foods and chemicals, said film comprising a thermoplastic resin substrate, and a gas barrier coating (layer) formed thereon [Abstract; col. 1 ln. 5-16, col. 2 ln. 13-19, col. 2 ln. 50–col. 4 ln. 53, col. 7 ln. 29-–col. 10 ln. 28]. Harada discloses gas barrier film Example 8 [col. 15 ln. 33-63], wherein the substrate is a biaxially-oriented PET film (BO-PET) [col. 13 ln. 7-29], and the gas barrier layer is formed from a mixed solvent coating solution. Specifically, montmorillonite particles are dispersed in water to provide solution A1; γ-(2-aminoethyl)aminopropyl-trimethoxysilane (adhesion promoter) is dispersed in water to provide solution A2; solutions A1 and A2 are mixed and further dispersed with a homomixer; and the mixed/dispersed solutions (A1+A2) are thereafter mixed with a PVOH/water solution (solution B from Example 1 [col. 12 ln. 62-66]) [col. 5 ln. 34-52].
The mixed solutions (A1+A2) and (B) are further subject to dispersion treatment via homomixer, organic solvent (isopropyl alcohol) is added, and the final mixed/dispersed solution (A1+A2+B) is coated on said BO-PET substrate, followed by drying (120° C, 20 s) to obtain the gas barrier coated layer [col. 15 ln. 50-63; Table 2, Example 8; col. 13 ln. 24-26].
It is noted that Applicant’s spec indicates that to achieve the particles coated in the adhesion promoter, the particles are placed in solution comprising water and the adhesion promoter and are subject to dispersion treatment, and thereafter the dispersed particles/adhesion promoter (solution), rather than being dehydrated, are added to a PVOH solution [0050-0051], of which is coated/dried on the polymer film [053-0057, 0071].
In view of the foregoing, the gas barrier film of Example 8 of Harada anticipates the thermoformable polymer sheet defined by each and every limitation of claim 1. The BO-PET substrate reads on the claimed polymer layer. The gas barrier coated layer reads on the claimed barrier layer – γ-(2-aminoethyl)aminopropyl-trimethoxysilane reads on the claimed adhesion promoter which coats the plurality of particles, the montmorillonite particles read on the claimed particles, and the plurality of coated particles being dispersed in the PVOH solution (B) and thereafter coated/dried on the BO-PET substrate reads on the claimed plurality of coated particles being dispersed in a barrier solution.
Regarding claim 2, the montmorillonite particles are inorganic particles [col. 15 ln. 33-36].
Regarding claim 22, the rejection of claim 1 above reads on the sheet defined by claim 22 – the PVOH solution in which the coated particles are dispersed, and which forms the polymeric matrix of the dried gas barrier coated layer, reads on the claimed barrier solution being polyvinyl alcohol.
Regarding claim 29, the rejection of claim 1 above is incorporated herein by reference and reads on the claimed packing structure defined by claim 29.
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.
Claim 16 is rejected under 35 U.S.C. 103 as being unpatentable over Kravitz as applied to claim 14 under 35 U.S.C. 102(a)(1) above.
Regarding claim 16, in view of the rejection of claim 14 under 35 U.S.C. 102(a)(1) above – which establishes the coated substrate of Kravitz exhibiting the layer sequence base film/coating layer/sealant layer, B/C/S – Kravitz does not explicitly disclose the presence of an additional barrier layer, i.e. “second barrier layer” disposed between the polymer layer (base film) and second polymer layer (sealant layer), as defined in claim 16.
However, Kravitz teaches that the thickness of the coating layer directly affects the gas barrier properties of the coated substrate, and the thickness may be varied accordingly [0046]. In view thereof, and given that the mere duplication of parts has no patentable significance unless it can be objectively established that a new and unexpected result is produced (MPEP 2144.04(VI)(B)), it would have been prima facie obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to have modified the coated substrate of Kravitz set forth above in the rejection of claim 14 (B/C/S) by having formed additional coating layers adjacent/overlying one another, in order to achieve the predictable result of increased gas barrier performance and/or to obtain a (overall) thickness of the coating layer(s) corresponding to a predetermined or desired degree of gas barrier performance. In accordance therewith, the coated substrate of Kravitz would have comprised at least one additional coating layer (C1) disposed between the base film and sealant layer(s), i.e. B/C/C1/S, thereby reading on the sheet defined by claim 16 (wherein the barrier layer is a first barrier layer and a second barrier layer is disposed between the polymer layer and the second polymer layer).
Claim 18 is rejected under 35 U.S.C 102(a)(1) as anticipated by or, in the alternative, under 35 U.S.C. 103 as obvious over Kravitz as applied to claim 1 under 35 U.S.C. 102(a)(1) above.
Regarding claim 18, in view of the rejection of claim 1 under 35 U.S.C. 102(a)(1) above, Kravitz does not explicitly disclose the coated substrate (thermoformable polymeric sheet) “comprises a stretch ratio between 2-5” as defined in claim 18.
However, it is noted that the sheet defined by claim 18, which is “thermoformable”, is directed to the sheet which has not yet been subject to a thermoforming or other process that includes stretching of said sheet. The spec indicates that the barrier layer is applied to the polymer layer prior to stretching which occurs during the thermoforming (or similar) process [0061], wherein the barrier layer may be compatible with thermoforming and may be configured to stretch within the thermoforming process [0063, 0071, 0075, 0084-0085]. As such, the limitation “comprises a stretch ratio between 2-5” of the thermoformable sheet defined by claim 18, which has not yet been thermoformed/stretched, is interpreted as functional language, i.e. is interpreted as the thermoformable polymeric sheet being capable of stretching to a ratio of between 2-5.
In view of the foregoing, and given that the (thermoformable, as established above in rejection of claim 1) coated substrate of Kravitz is substantially identical to the claimed and disclosed thermoformable polymeric sheet in terms of the polymeric species forming the base film and the coating layer, the thickness of the coating layer [Kravitz, 0046; spec, 0061-0062], and the thickness of the base film (of which may be a multilayer film/sheet) [Kravitz, 0035; spec, 0036-0037, 0040], it stands to reason, and there is a strong and reasonable expectation, that the coated substrate of Kravitz would have necessarily possessed the capability to be stretched to a ratio of between 2-5, absent a showing of factually supported objective evidence to the contrary. See MPEP 2112(IV), (V); MPEP 2112.01(I), (II); MPEP 2145; and MPEP 2145(I).
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. The prima facie case can be rebutted by evidence showing that the prior art products do not necessarily possess the characteristics of the claimed products. In re Best, 195 USPQ 430, 433 (CCPA 1977), In re Spada, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990).
Claim 23 is rejected under 35 U.S.C. 103 as being unpatentable over Kravitz as applied to claim 1 under 35 U.S.C. 102(a)(1) above.
Regarding claim 23, in view of the rejection of claim 1 under 35 U.S.C. 102(a)(1) above, Kravitz teaches that the coated substrate (thermoformable polymeric sheet) may suitably take the form of, inter alia a tray or other types of containers, wherein said tray/containers are suitably produced via thermoforming [0036]. Given that the coated substrate of Kravitz would have been readily recognized as thermoformable and as explicitly disclosed is suitable for forming into a tray or other types of containers, it would have been prima facie obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to have thermoformed a tray or other type of container from the coated substrate of Kravitz (as set forth above in the rejection of claim 1). The resultant thermoformed tray or container reads on the container defined by claim 23 (container thermoformed from the thermoformable polymeric sheet of claim 1).
Claim 13 is rejected under 35 U.S.C. 103 as being unpatentable over Kravitz as applied to claim 10 under 35 U.S.C. 102(a)(1) above, further in view of Bourgeois and/or Schwartz (US 2020/0023622; “Schwartz”).
Regarding claim 13, as set forth above in the rejection of claim 10 under 35 U.S.C. 102(a)(1), the coated substrate (thermoformable polymeric sheet) of Kravitz exhibits the layer sequence B2/B1/B/C, wherein B2, B1, and B are each independently selected from, inter alia PET, PP, and HDPE, e.g. HDPE/HDPE/HDPE/C, e.g. PET/PET/PET/C, etc., thereby reading on external cap/core/internal cap/barrier of the sheet defined by claim 10.
Kravitz is silent regarding the core layer (B1) comprising post-consumer resin.
Bourgeois, whose disclosure/teachings set forth/cited above (¶37-49) are incorporated herein by reference, teaches that post-consumer (PC) polymeric material, including PC-PET, PC-PE, and PC-PP [0019, 0030, 0031], may be incorporated into (any of) the polymer(s) forming the one or more structural/base film(s), as well as into the polymer(s) forming the barrier layer [0029-0031]. The articles formed therefrom include food/beverage containers [Abstract; 0026-0027, 0029].
Schwartz teaches that multilayer polymeric thermoformable films/sheets inclusive of layers formed from PET, PE, and/or PP, and thermoformed into containers for food products, suitably include post-consumer resin (PCR) components, e.g. PCR-PET, e.g. PCR-HDPE, e.g. PCR-PP, and including/in-particular in the core layer of the base film [Abstract; 0006-0008, 0011-0016, 0042-0043, 0057-0059].
Bourgeois and Schwartz each constitute prior art which is directly analogous to the claimed invention. In view of the individual or combined teachings thereof, it would have been obvious to one of ordinary skill in the art prior to the effective filing date of the invention to have modified the coated substrate of Kravitz by having utilized post-consumer resin material in any one or more layers of the base film, including but not limited to the “core layer” (B1), in any amount, as PC/PCR PET, PP, and PE would have been readily recognized as suitable for inclusion in the aforesaid layers of thermoformable multilayer films/sheets intended for formation into containers for food packaging (MPEP 2144.07), and/or in order to have reduced the amount of virgin material required to form the aforesaid layers which would have reduced overall material cost and been recognized/understood as beneficial from an environmental standpoint (re-use of recycled material).
Accordingly, any one of, combination of, all of, or specifically B1 of, the layers B2, B1, and B of the coated substrate of Kravitz would have included at least some amount of post-consumer resin, e.g. PC-PET, PC-PE (PC-HDPE), PC-PP, thereby reading on the sheet defined by claim 13 as dependent upon claim 10 (wherein the core layer comprises post-consumer resin).
Claims 20-21 are rejected under 35 U.S.C. 103 as being unpatentable over Kravitz as applied to claim 1 under 35 U.S.C. 102(a)(1) above, further in view of Nawani et al. (US 2014/0275347; “Nawani”).
Regarding claims 20-21, as set forth above in the rejection of claim 10 under 35 U.S.C. 102(a)(1), the coating layer of the coated substrate of Kravitz comprises vermiculite particles having a high aspect ratio dispersed within the PVOH film-forming polymer. Kravitz is silent regarding the particles being coated with an oxygen absorber (claim 20), i.e. coated with ascorbic acid (claim 21) [spec, 0049].
Nawani teaches that the vermiculite particles – prior to dispersion in a film-forming polymer (matrix) and formation of a film/article therefrom which desirably exhibits oxygen barrier properties – are combined with an oxygen scavenger moiety which is intercalated within the gallery spacing of, or deposited on at least a portion of the surface of, the particles to thereby form a “modified-clay” [Abstract; 0001, 0010-0011, 0017, 0019, 0021-0023, 0042, 0046, 0053]. The inclusion of the modified-clay in a polymer matrix allows for formation of food packaging materials which are capable of reducing or eliminating undesired oxidation of foods enclosed therein, and providing longer shelf life thereto [Abstract; 0021-0022, 0024, 0035].
The oxygen scavenging moiety is, inter alia ascorbic acid [0035, 0040], and the vermiculite particles may be compatibilized prior to combination with the scavenging moiety (though not required or limited thereto) with PVOH as a compatibilizer [0032, 0041].
Nawani constitutes prior art which is directly analogous to the claimed invention. In view of the combined teachings of the foregoing prior art, it would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to have modified the coated substrate of Kravitz by combining the vermiculite particles (treated with dispersant) with ascorbic acid via intercalation or coating of ascorbic acid therein/thereon, or by having utilized the PVOH-compatibilized, ascorbic acid-intercalated vermiculite particles or PVOH-compatibilized, ascorbic acid-coated vermiculite particles of Nawani in place of the vermiculite particles (of Kravitz) (MPEP 2144.07), in either instance in order to have increased the oxygen barrier performance of, and/or provide oxygen scavenging (and thus increased barrier) capabilities to, the coating layer of the coated substrate.
In accordance with the aforesaid modification(s), the vermiculite particles of the coating layer of the coated substrate (thermoformable polymeric sheet) of Kravitz would have been intercalated or coated with ascorbic acid, or would have been either of the PVOH-compatibilized vermiculite particles intercalated or coated with ascorbic acid, each of which read on the sheets defined by claims 20-21, respectively (wherein the plurality of coated particles are further coated with an oxygen absorber, wherein the coated particles are further coated with ascorbic acid).
Pertinent Prior Art
The following constitutes a list of prior art which are not relied upon herein, but are considered pertinent to the claimed invention and/or written description thereof. The prior art are purposely made of record hereinafter to facilitate compact/expedient prosecution, and consideration thereof is respectfully suggested.
US 2023/0087382 to Vishtal et al. – discloses PVOH-PAA-nanoclay barrier coating layer, teaches polyurethane may replace the PVOH-PAA polymeric matrix thereof [Abstract; 0046-0047]
US 2020/0269554 to Noda et al. – discloses a water vapor barrier layer and an oxygen barrier layer, each formed from PVOH, a clay such as talc or mica having an aspect ratio of 10 or more, and a dispersant/surfactant, wherein the dispersant/surfactant is added to the clay to form a pre-dispersion prior to mixing/dispersing with aqueous PVOH solution [0085-0096, 0106-0120, 0167-0168]
US 5,552,469 to Beall et al. – discloses exfoliated silicate materials intercalated with a polymer, suitable for dispersion in thermoplastic polymer matrices [Abstract]
Conclusion
Any inquiry concerning this communication or earlier communications from the Examiner should be directed to Michael C. Romanowski whose telephone number is (571)270-1387. The Examiner can normally be reached M-F, 09:30-17:30.
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/MICHAEL C. ROMANOWSKI/Primary Examiner, Art Unit 1782