DETAILED ACTION
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
Claim 13 is 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 or a joint inventor regards as the invention.
Claim 13 is rendered indefinite because it depends from a canceled claim.
Claim Interpretation
For the purpose of examination, claim 13 is taken to depend from claim 1.
Claim Rejections - 35 USC § 103
Claims 1, 2, 5, 7, 12, 17, 19-21, and 23-25 are rejected under 35 U.S.C. 103 as being unpatentable over Yamada et al. (WO 2019/189092).
Note: since WO 2019/189092 was not published in the English language, citations in this action refer to US 2021/0023828 - i.e., the publication based on the US national stage application of WO 2019/189092.
Yamada et al. is directed to a laminate used on make a package or pouch (paragraph 0001) for packaging food (paragraph 0256). The laminate contains 90 mass% or more of polyethylene (paragraph 0021). The laminate comprises a substrate, an interlayer, and a heat seal layer (Figure 2 and paragraph 0046). The substrate (corresponding to the second layer of the claims) may be produced by an inflation method (paragraph 0100) - i.e., a blown extrusion method - and has a preferred thickness of 9 to 50 mm (paragraph 0118). The interlayer (corresponding to the first layer of the claims) is biaxially oriented (paragraph 0156-0160) and has a thickness of 9 to 50 mm (paragraph 0163). The heat seal layer (corresponding to the sealing layer of the claims) contains at least one of HDPE, MDPE, LDPE, and LLDPE (paragraph 0133). The laminate can further include an adhesive layer between any layer (paragraph 0170). The package bag or pouch is formed by first either (a) folding the laminate in two such that the heat seal layers face each other or (b) superposing two sheets of laminate with the heat seal layers facing each other, followed by heat sealing the end of the folded or superposed laminate(s) (Figure 5 and 6 and paragraph 0251-0253).
Regarding the thickness ranges in claims 1, 5, 20, 21, and 25, the thicknesses recited in Yamada et al. overlap these ranges. The courts have held that a prima facie case of obviousness exists for overlapping ranges, including end points. See MPEP 2144.05I.
Regarding the limitation in claims 1 and 24 that the first and second layer are bonded via lamination and the limitation in claim 17 that an adhesive layer is positioned between the first and second layers (i.e., the interlayer and substrate of Yamada et al.), Yamada et al. teach forming their laminate by laminating together preformed layers representing the substrate, interlayer, and heat seal layer with adhesive layers applied between each layer.
Regarding the limitation in claims 23 and 24 that the sealing layer comprises first and second polyethylenes, the teaching in Yamada et al. that their heat seal layer contains at least one of HDPE, MDPE, LDPE, and LLDPE suggests the use of more than one of the recited polyethylenes.
Claims 8-10 and 18 are rejected under 35 U.S.C. 103 as being unpatentable over Yamada et al. (WO 2019/189092) as applied to claim 1 above, and further in view of Pan et al. (US 2017/0021599).
Yamada et al. suggests all the limitations of claims 8-10 and 18, as outlined above, except for specifying that their interlayer (i.e., the layer corresponding to the first layer) is formed from a polymer as recited in these claims.
Pan et al. is directed to a biaxially oriented multilayer polyethylene-based film comprising a core between two skin layer (paragraph 0005). The film is used to make packaging, such as a pouch, for food and drink (paragraph 0010). The polyethylene of Pan et al. has greater than 50 mol% ethylene (including equal to or greater than 90 mol%) and less than 30 mol% of an alpha-olefin comonomer, such as 1-hexene (paragraphs 0013-0014). The polyethylene has a density of 915 to 940 kg/m3, a melt index of 0.1 to 5 g/10 min, and an Mw/Mn value of 1.5 to 6 (paragraphs 0015 and 0017). This polymer is used in the core layer while commercially available polyethylenes, such as DOWLEX™ 2042G, is used for the skin (Table 4).
It would have been obvious to one of ordinary skill in the art to use the polyethylene of Pan et al. for the interlayer of Yamada et al. since the courts have held the selection of a known material (e.g., the polyethylene taught by Pan et al.) based on its suitability for its intended use (e.g., the core layer of a polyethylene packaging laminate) supported a prima facie obviousness determination. See MPEP 2144.07.
Since the ranges of ethylene content, comonomer content, density, melt index, and Mw/Mn for the polyethylene of Pan et al. overlap the ranges recited in claims 8-10, the courts have held that a prima facie case of obviousness exists for these limitations. See MPEP 2144.05.
Regarding the a-TREF values recited in claims 8 and 18, the polyethylene of Pan et al. is formed by a solution phase polymerization process using Zeigler-Natta catalysts (paragraphs 0023-0025). According to the instant specification, the polyethylene used in the invention (i.e., polyethylene having the a-TREF values recited in claims 8 and 18) is a linear low density polyethylene produced using a Zeigler-Natta type catalyst in a solution polymerization process (see paragraph 0063 on page 12 of the instant specification). Since the ethylene/alpha-olefin copolymer of Pan et al. is also formed using Zeigler-Natta catalysts and the resulting polymer has a density, melt index, and Mw/Mn overlapping those of the instant invention, one of ordinary skill in the art would expect the polymer of Pan et al. to intrinsically satisfy the a-TREF limitations recited in claims 8 and 18.
Claims 13-16 are rejected under 35 U.S.C. 103 as being unpatentable over Yamada et al. (WO 2019/189092) as applied to claims 1 and 23 above, and further in view of Pan et al. (US 2017/0021599) as evidenced by Tau et al. (US 2008/0207836).
Yamada et al. suggest all the limitations of claims 13-16, as outlined above, except for specifying that their heat seal layer comprises a polymer having the properties recited in these claims. However, in addition to suggesting the use of a blend of polyethylenes, Yamada et al. further teach the use of a linear low density polyethylene as the polyethylene of the heat seal layer (paragraph 0136).
Pan et al. is directed to a biaxially oriented multilayer polyethylene-based film comprising a core between two skin layer (paragraph 0005). The film is used to make packaging, such as a pouch, for food and drink (paragraph 0010). In the embodiments of Inventive films 1-3, the skin layers are formed of DOWLEX™ 2042G resin (Table 4), a linear low density polyethylene (see paragraph 0074 of Tau et al.).
Tau et al. show that DOWLEX™ 2042G is a copolymer of ethylene with 6 wt% 1-octene (paragraph 0074). Since this copolymer is formed from the same comonomers in the same amounts as the sealing layer of the instant invention (i.e., a copolymer of ≥ 80 wt% ethylene and 5-20 wt% 1-octene), one of ordinary skill in the art would expect it to intrinsically possess an a-TREF, shear storage modulus, and chemical composition distribution broadness satisfying the limitations of claim 13.
It would have been obvious to one of ordinary skill in the art to use DOWLEX™ 2042G as the linear low density polyethylene layer of Yamada et al. since the courts have held the selection of a known material (e.g., DOWLEX™ 2042G) based on its suitability for its intended use (e.g., linear low density outer layer of polyethylene packaging laminate) supported a prima facie obviousness determination. See MPEP 2144.07. This polymer reads on the first polyethylene of claims 13 and 14 and the second polyethylene of claim 15.
Regarding claim 16, Yamada et al. teach that their substrate may be composed of the same material as their heat seal layer (paragraph 0058).
Double Patenting
Claims 1, 5, 8, 9, 12, 17, 19-21 and 23-25 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 7, 10, 13, and 14 of copending Application No. 18/267,587 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because the inventions of instant claims 1, 5, 8, 9, 12, 17, 19-21 and 23-25 represent a genus of which the inventions described by claims 1, 10, 13, and 14 of copending Application No. 18/267,587 are species. See In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993). The claims of copending Application No. 18/267,587 represent a species of the instant claims since they require the blown film to be sealing layer comprising the recited polyethylene copolymer while the instant claims allow the second layer to be any polyethylene blown film.
Regarding the thickness in claims 1, 5, and 20, 21, and 25, it would have required no more than routine skill and ordinary ability to determine a suitable thicknesses for the first and second films claimed in copending Application No. 18/267,587. Since the laminate of copending Application No. 18/267,587 is claimed as a package, such as a heat seal bag, one of ordinary skill in the art would expect such routine experimentation to result in thicknesses that satisfy the limitations of claims 1, 5, and 20, 21, and 25 since they are claimed to be used for the same purpose.
Regarding claim 17, one of ordinary skill in the art would have immediately envisaged the presence of an adhesive layer based on the recitation in claim 7 of copending Application No. 18/267,587 that the second film is adhered to the first film.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Response to Arguments
Applicant's arguments filed 29 September 2025 have been fully considered but they are not persuasive.
The courts have held that disclosed examples do not constitute a teaching away from a broader disclosure (see MPEP 2123). Therefore, while the embodiments of the Examples of Yamada et al. no longer anticipate the claims, the current claims are rendered obvious over the reference as a whole for the reasons outlined above in paragraphs 5 through 7 of this action.
However, the provisional nonstatutory double patenting rejection over Application No. 17/767,537 has been withdrawn because this application has gone abandoned and is no longer copending.
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 RAMSEY E ZACHARIA whose telephone number is (571)272-1518. The best time to reach the examiner is weekday afternoons, Eastern time.
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/RAMSEY ZACHARIA/Primary Examiner, Art Unit 1787
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