DETAILED ACTION
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 10/1/2025 has been entered.
Claims 14-16 were cancelled.
Claims 1-13, 17, 19, and 21-22 are now pending in the application.
The previous objections and 35 USC 112 rejections of claims 1-13, 17, 19, and 21-22 are withdrawn in light of Applicant’s amendment and remarks.
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.
Claims 1, 3-7, 10-12, 14-17, 19 and 22 are rejected under 35 U.S.C. 103 as being unpatentable over US2010/0006532 to Lee et al. (as found on the IDS dated 5/10/2022) in view of US2014/0209611 to Mangel.
Regarding claim 1, Lee teaches a retort liner such a closure [Abstract], that provides improved sealing capability [0018] reading on a vessel closure seal; that does not comprise PVC [0015], comprises styrene-ethylene/butylene-styrene (SEBS) [0041] reading on a thermoplastic styrene block copolymer (TPS); a preferred embodiment of at least two different polyolefin (co)polymers [0058] such as ethylene/propylene copolymer [0056] reading on at least two different co-PPs; in an amount of about 1-60 parts polyolefin polymer or copolymer based on 100 parts by weight of the total styrenic block copolymers present [0061] reading on 20-65 wt% of at least one co-PP. Furthermore, the retort liner has a Shore A hardness from 50 to 80 [0064] reading on a Shore A hardness between 30 and 85; and a melt index of about 10 to 27 [0021] reading on a melt flow index of less than 20g / 10 min.
Lee does not teach a polymer compound containing less than 10% liquid components at 20°C.
However, Mangel teaches a seal insert made of seal material which comprises at least one polymer mixed with further substances, wherein the seal material is substantially free from components that are liquid at application temperature [Claim 1]. Lee and Mangel are analogous art as they are from the same field of endeavor, namely Closures comprising polymer compounds. Before the effective filing date of the instantly claimed invention, it would have obvious to a person of ordinary skill to remove the liquid components, as Mangel did, with Lee’s retortable liner.
The motivation to remove the liquid components from Lee’s vessel closure seal as done in Mangel’s PVC-free closure would be to reduce the migration of undesirable substances [Abstract] wherein the presence of larger contents of liquid substances such as substances that are liquid at room temperature are undesirable and should be at most 10% but in some cases have no traceable contents of liquid substances [Mangel, 0008].
Lee is silent regarding 20-40 wt% of at least one polyolefin elastomer.
However, Mangel teaches POE [Mangel, 0106] found at a concentration of 40% [Mangel, 0115], 38% [Mangel, 0119], and 20% [Mangel, 0123] reading on 20-40 wt% of at least one POE.
Before the effective filing date of the instantly claimed invention, it would have obvious to a person of ordinary skill to add Mangel’s POE in the range of 20-40 wt% as specified above to Lee’s composition.
The motivation would have been that POE’s are considered resilient thermoplastics [0106] and therefore would contribute resiliency to a closure.
Lee does not particularly teach the thermoplastic styrene elastomer in an amount of 10-50 wt%.
However, Mangel teaches PVC-Free closures [title] comprising thermoplastic elastomers wherein the thermoplastic elastomer is particularly preferably SEBS in an amount of at least 5% by weight of the sealing compound [Mangel, 0127].
Before the effective filing date of the instantly claimed invention, it would have been obvious to a person of ordinary skill in the art to use Mangel’s amount of thermoplastic elastomer in Lee’s composition.
Though the prior art amount of TPS (at least 5 wt%) not identical to the claimed range (10-50 wt%), it does overlap. It has been held that, where the claimed ranges overlap or lie inside ranges disclosed by the prior art, a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPG 90 (CCPA 1976) (MPEP 2144.05)
Regarding claim 2, Lee teaches the vessel closure seal according to claim 1, wherein the vessel closure seal comprises at least two different co-PPs. Claim 2 does not require the at least one co-PP to be present and therefore does not further limit the embodiment in which two different co-PPs are present.
Regarding claim 3, Lee teaches the vessel closure seal according to claim 1. Homo-PP is set forth as a possible species of polyolefin [0056] but is not required. Embodiments in which the polymer compound substantially does not comprise homo-PP are thus readily envisioned from the reference.
Regarding claims 4 and 5, Lee teaches the vessel closure seal according to claim 1, comprising a styrenic block copolymer such as Kraton® G1651H, a linear copolymer based on styrene and ethylene/butylene with a polystyrene content of about 30% [0050] reading on a linear SEBS with a styrene content of level between 26% and 34% styrene.
Regarding claim 6, Lee does not expressly teach the amount of TPS in the embodiment described in the rejection of Claim 1. However, Example 1 comprises 100 parts of SEBS out of a total of 286.89 parts, calculated to be 34.8% of the composition [Example 1, Table 1]. It would have been obvious to a person having ordinary skill in the art to provide TPS in the amount in Example 1 in the embodiment described in the rejection of Claim 1. The motivation would have been that Lee shows to be a suitable quantity of TPS for manufacturing the disclosed vessel closure seals.
Regarding claim 7, Lee teach the vessel closure seal according to claim 1, comprising the same commercially available linear SEBS, Kraton G1651H® [0050] found in the instant application [page 14], therefore it is reasonably expected to have a shore A hardness of 50 to 90 and a 5% by weight solution in toluene has a dynamic viscosity of > 50 mPa.s (measured at 25°C) and a 10% by weight solution in toluene has a dynamic viscosity of >1000 mPa.s , reading on the ranges of claim 7.
Regarding claim 10 and 11, Lee teaches the vessel closure seal according to claim 1, comprising at least two or at least three different polyolefin (co)polymers wherein the melt index ranges generally from about 0.1 to about 6 or 8 grams of polymer per 10 minutes [0058] reading on a co-PP with an MFI of below 30 g/10 min and at least one co-PP with MFI of at least 0.1 g/10 min.
Regarding claim 17, Lee does not expressly teach the amount of lubricants in the embodiment described in the rejection of Claim 1. However, Table 1, Table 2, and Table 3 comprise examples wherein the amount of lubricant added is always less than 10%. It would have been obvious to a person having ordinary skill in the art to provide the lubricant in the amount in Tables 1-3 in the embodiment described in the rejection of Claim 1. The motivation would have been that Lee shows to be a suitable quantity of lubricants for manufacturing the disclosed vessel closure seals.
Regarding claim 19, Lee teaches the vessel closure seal according to claim 1, wherein the closure is retortable [Lee, Abstract] i.e., pasteurize-able at temperature above 98°C.
Regarding Claim 22, Lee in view of Mangel teach the vessel closure seal in claim 1, wherein the seal material is substantially free from components that are liquid at application temperature [Mangel, Claim 1].
Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over US20100006532 to Lee et al. (as found on the IDS dated 5/10/2022) and US20140209611 to Mangel as evidenced by US9133332 to Kawamoto.
Regarding claim 8, Lee in view of Mangel teach the vessel closure seal according to claim 7 as set forth above and incorporated by reference herein. Lee teaches a second SEBS such as Kraton® MD6945 with a polystyrene content of about 13% [0050]. Kawamoto further provides Kraton® MD6945s physical properties such as a shore A hardness of 35 and a MFR of 4 g/10 min [Table 4] reading on a second SEBS with a styrene content of between 10% and 23%, a shore A hardness between 30 and 60, and an MFI between 2 and 30 g/10min.
Claim 9 and 12 are rejected under 35 U.S.C. 103 as being unpatentable over US20100006532 to Lee and US20140209611 to Mangel, as applied to Claim 1 above, and further in view of DE202012009538 (as found on the IDS dated 5/10/2022). For the purposes of examination, citations for DE202012009538 are taken from a machine translation equivalent of the document.
Regarding claim 9 and 12, Lee in view of Mangel teach the vessel closure seal according to claim 1 as set forth above and incorporated herein by reference.
Lee in view of Mangel do not particularly teach a first co-PP with a Shore D hardness below 25 and are further silent on the second co-PP with a Shore D Hardness above 25.
However, DE202012009538 teaches a vessel closure made of metal or plastic for a vessel for containing food or beverage under vacuum containing at least one polymer and not including PVC [Abstract] comprising a (co)PP with a shore D hardness below 60 and a polyolefin with Shore D hardness above 60 [claim 31]. Lee and Mangel and DE202012009538 are analogous art as they are from the same field of endeavor, namely vessel closure compositions. It would be readily envisioned from the disclosure of different copolymers that these copolymers would have different melting points, therefore reading on the melting point of the first co-PP is higher than that of the second co-PP.
Before the effective filing date of the instantly claimed invention, it would have been obvious to a person of ordinary skill in the art to substitute a first co-PP having a Shore D below 60 and a second co-PP having a Shore D above 60 into Lee’s vessel closure seal. The motivation is that the combination of a “softer” polyolefin (with a lower Shore D hardness, below 60) with the polyolefin having a Shore D hardness above 60 would obtain the necessary softness and improved sliding properties at low temperatures [0047]. This would allow easy opening of the vessel even at low temperatures e.g. when stored in refrigerators [0011].
Though the prior art range is not identical to the claimed range, it does overlap. It has been held that, where the claimed ranges overlap or lie inside ranges disclosed by the prior art, a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPG 90 (CCPA 1976) (MPEP 2144.05)
Claim 13 is rejected under 35 U.S.C. 103 as being unpatentable over US20100006532 to Lee and US20140209611 to Mangel, as applied to Claim 1 above, and further in view of US20180118431 to Hayakawa et al.
Regarding claim 13, Lee in view of Mangel teaches the vessel closure seal according to claim 1 as set forth above and incorporated herein by reference.
Lee in view of Mangel do not teach the polymer compound comprising a first co-PP with a melting point above 145°C.
However, Hayakawa does teach a food container [Title] comprising an olefin-based resin that is preferably polypropylene [0076] wherein the olefin-based resin is more preferably a polymer having a melting point of 155°C or higher [0078]. Hayakawa and Lee are analogous art as they are from the same field of endeavor, namely food storage devices containing polypropylene.
Before the effective filing date of the instantly claimed invention, it would have been obvious to a person of ordinary skill in the art to provide a co-PP with a high melting point, as taught by Hayakawa, as one of the polyolefins in the vessel closure seal of lee, thereby arriving at the claimed invention.
The motivation to add Hayakawa’s high melting point polymer to Lee in view of Mangel’s vessel closure seal is to make the resulting elastomer composition improved in compressive permanent strain resistance [Hayakawa, 0078]. Compressive permanent strain resistance is ideal in a sealing application to provide resistance to permanent indentation or deformation that can cause failure of the seal [Lee, 0040].
Claim 21 is rejected under 35 U.S.C. 103 as being unpatentable over US20100006532 to Lee and US20140209611 to Mangel, as applied to Claim 1 above, and further in view of EP2223984 to Poel-Asendorf (as cited on the IDS dated 11/25/2024) . For the purposes of examination, citations for Poel-Asendorf are taken from a machine translation equivalent of the document.
Regarding claim 21, Lee in view of Mangel teaches the vessel closure seal according to claim 20 as set forth above and incorporated herein by reference.
Lee in view of Mangel are silent regarding a vessel closure having a diameter of at least 28mm.
However, Poel-Asendorf also teaches a vessel closure [0001] comprising a polyethylene/polypropylene copolymer and SEBS block copolymer [0059] with an inner diameter of more than 2.5 cm up to those where the inner diameter of the opening to be closed is larger than 4cm [0011]. Lee and Poel-Asendorf are analogous art as they are from the same filed of endeavor, namely vessel closure seals.
Before the effective filing date of the instantly claimed invention, it would have been obvious to a person of ordinary skill in the art to provide a larger diameter vessel closure, as taught by Poel-Asendorf, with the vessel closure seal of Lee in of Mangel, thereby arriving at the claimed invention.
The motivation to modify Lee with Poel-Asendorf is that there is a need for vessel closures that have a polymer-based sealing element that is not PVC-based that are suitable for vessels with relatively large openings [Poel-Asendorf, 0006]
Response to Arguments
Applicant's arguments filed 10/1/2025 have been fully considered but they are not persuasive.
Applicant states that Lee teaches the amount of styrenic block copolymer always exceeds the amount of polyolefin polymer or copolymer by at least 66% and thus Lee does not teach or suggest the amended instantly claimed ranges.
In response, attention is drawn to the updated rejection of claim 1 wherein Lee in view of Mangel teaches the newly amended instantly claimed ranges of TPS, Co-PP, and POE.
In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
For these reasons, Applicant's arguments are not persuasive.
Conclusion
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/DEVIN MITCHELL DARLING/Examiner, Art Unit 1764
/ARRIE L REUTHER/Supervisory Primary Examiner, Art Unit 1764