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 .
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 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.
Status of Claims
This action is in reply to the communication filed on December 17, 2025.
Claim 1 has been amended and is hereby entered.
Claim 3 has been cancelled previously.
Claims 1, 2, and 4 – 17 are currently pending and have been examined.
This action is made FINAL.
Response to Arguments
Applicant's arguments filed December 17, 2025 have been fully considered but they are not persuasive.
Applicant argues that the instant packing insert enables controlled uptake of moisture, storage and subsequent release of moisture and allows for controlled re-moisturization rather than mere storage of moisture. Applicant argues that this differs from Varillas which is only interested in one-directional absorption. Applicant notes that the nonwoven of the instant application is a hydroentangled filament nonwoven and as a result, the capillary structure remains open and functional even in the wet state. Examiner respectfully disagrees. It is noted that the features upon which applicant relies are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993). The claims do not require the hydroentangled structure or the controlled return of moisture from the non-woven web. As claimed, the nonwoven web is only required to store liquid solely through capillary action. As noted in the previous rejection and again below, as the water will naturally flow into the pores of the nonwoven web, the water is interpreted as being stored by capillary action. As Varillas does not require any further methods of absorbing moisture, it is interpreted as “solely” storing liquid through capillary action as claimed.
Claim Rejections - 35 USC § 103
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.
The factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
Determining the scope and contents of the prior art.
Ascertaining the differences between the prior art and the claims at issue.
Resolving the level of ordinary skill in the pertinent art.
Considering objective evidence present in the application indicating obviousness or nonobviousness.
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, 4 – 6, 10, and 15 – 17 are rejected under 35 U.S.C. 103 as being unpatentable over Varillas (US20160101916A1).
As per claims 1 and 2, Varillas teaches:
A packing insert for absorption of a liquid (Abstract: A lightweight packaging container for the preservation of fruits and vegetables… an embodiment includes an outer layer of polymeric material having a structural function, a second layer of porous polymeric material having a moisture-absorbing function…”)
The packing insert comprising a covering layer for foods and a storage area connected to the covering layer, the covering layer has perforations configured to allow the liquid to pass through, and the storage comprises a nonwoven (The layers of the packaging insert are shown in Fig. 3. The micro-perforated layer (11) is interpreted as the covering layer which has perforations configured to allow liquid to pass through, and the non-woven plastic fabric material (12) is interpreted as the claimed storage area comprising a nonwoven. As described in [0005], the layers are heat-sealed on the edges, which is interpreted as the layers being connected as claimed.)
Connecting areas formed between the covering layer and the storage area (Abstract: “The multilayer material is folded and the edges are heat-sealed to form a packaging bag with a flat base.”)
Wherein the nonwoven consists of polypropylene or polyethylene filaments, configured to have a buoyancy in water for floating in water such that the packaging insert is adapted to float during recycling and the nonwoven has a density of less than 0.99 g/cm3, wherein the nonwoven is composed of a plastic that has a density of less than 0.97 g/cm3 and more than 0.87 g/cm3 ([0033]: “Additionally the flat-based bag-shaped package has at its base a layer of non-woven synthetic textile material fabric (12) preferably made of polypropylene (PP).” Based on the previously presented evidence that the densities of polypropylene and polyethylene are between 0.855 – 0.946 g/cm3, the nonwoven would have a density of less than 0.99 g/cm3 as claimed. Since the density is less than that of water (1.00 g/m3), it would naturally follow that the nonwoven web would have the claimed buoyancy.)
The nonwoven is adapted to store liquid solely through capillary action exerted by interstices between the filaments (As the water will naturally flow into the pores of the nonwoven web, it is interpreted as being capable of absorbing liquid by capillary action. As Varillas does not require any additionally moisture absorption mechanism, it is reasonable to assume that this is the “sole” method of storing liquids.)
Wherein the packaging insert does not include superabsorbents (As Varillas does not require superabsorbents, it is interpreted as not including superabsorbents as claimed.)
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to select polypropylene as the polymeric material of the nonwoven web of Varillas based the desire to predictably practice the invention of Varillas, as Varillas teaches the components are predictably suitable for use as non-woven webs in the application.
As per claim 4, Varillas teaches:
Wherein the covering layer is composed of a plastic that has a density of less than 0.98 g/cm3 and more than 0.85 g/cm3 ([0033]: “Additionally, the flat-based bag-shaped package has at its base… a layer of polymeric material (11), preferably made of biaxially-oriented polypropylene (BOPP)…” As previously evidenced, the densities of polypropylene and is between 0.855 – 0.946 g/cm3.)
As per claim 5, Varillas teaches:
Wherein the covering layer is composed of a water-impermeable material except for the perforations (In [0033], Varillas teaches that the protective sheets may be made of polypropylene. As these are the same materials taught by the instant specification, they are interpreted as being water-impermeable as claimed.)
The storage area comprises meltable fibers to facilitate bonding of the covering layer and the nonwoven without adhesives (As described in [0023], the inner layers are joined by a heat-sealing process, which is interpreted as resulting from the meltable fibers.)
As per claim 6, Varillas teaches:
Wherein the nonwoven content of the storage area is more than 80% (As the storage area only comprises the nonwoven web, it is interpreted as being 100% of the storage area as claimed.)
As per claim 10, Varillas is silent with respect to the absorption capacity of the storage area. However, Varillas teaches a nonwoven web with the same structure and composition as disclosed by Applicant. Therefore, the property of absorption capacity is considered to naturally flow from the product of the prior art combination (and would be expected to fall within the range in the claim), absent evidence otherwise. Recitation of a newly disclosed property does not distinguish over a reference disclosure of the article or composition claims. When the structure recited in the prior art reference is substantially identical to that of the claims, claimed properties or functions are presumed to be present. Applicant bears responsibility for proving that the reference composition does not possess the characteristics recited in the claims.
As per claim 15, Varillas fails to teach the addition of a hydrophilic agent to the covering layer. However, it would have been obvious to one skilled in the art before the effective filing date of the claimed invention to treat the polyolefin protective sheet of Varillas with a hydrophilic agent in the amount claimed in order to render said naturally hydrophobic protective sheet hydrophilic. Such a modification would have yielded predictably results to the skilled artisan (i.e. a hydrophilic protective sheet for an absorbent packaging insert).
As per claim 16, Varillas teaches:
The packaging insert further comprising a liquid-impermeable material layer arranged on an underside of the storage area that is composed of a polyolefin (Varillas teaches that the packaging contain contains an outer layer of polymeric material having a structural function (Abstract). This is interpreted as the layer on the underside of the storage area. This layer is taught to be made preferably of polyethylene ([0038]). As the overall function of the packaging container is to retain hydration in the packaged product, it would follow that the outermost layer is liquid-impermeable as claimed.)
As per claim 17, Varillas teaches:
A method of preserving food, comprising inserting the packaging insert as claimed in claim 1 in packing for food for absorption of a liquid from the food ([Abstract]: “A lightweight packaging container for the preservation of fruits and vegetables is made from flexible polymeric materials that permit controlled ventilation, enabling the packaged produce to remain hydrated for a longer time, keeping them fresh without the need for refrigeration.”)
Claims 7, 8, and 12 are rejected under 35 U.S.C. 103 as being unpatentable over Varillas (US20160101916A1) as evidenced by the previously presented Wikipedia entries for polyethylene and polypropylene as applied to claims 1, 2, 4 – 6, 10, and 15 – 17 above and further in view of Epping (DE102015009334, previously provided).
As per claims 7 and 8, Varillas does not teach:
Wherein the nonwoven is composed of endless filaments
Wherein the nonwoven is hydroentangled
Epping teaches an absorbent insert for food packaging comprising an absorbent nonwoven pad between two layers of cover material (Abstract). This is a similar use and structure as that of Varillas. Epping teaches that the nonwoven web is preferably a hydroentangled endless filament nonwoven, which provides sufficient permeability and absorption of liquids ([0023 – 0024]).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to select a hydroentangled endless filament nonwoven as the nonwoven of Varillas, motivated by the desire to predictably produce a nonwoven web with sufficient permeability and absorption of liquids as taught by Epping ([0023 – 0024]).
As per claim 12, Varillas does not teach:
Wherein the connecting areas have a surface area ratio of more than 0.5% and less than 15%
Epping teaches an absorbent insert for food packaging comprising an absorbent nonwoven pad between two layers of cover material (Abstract). This is a similar use and structure as that of Terada. Epping teaches bond point or connection areas between the absorbent nonwoven and cover layers are present in an amount of less than 10%, which ensures reliable opening of the bonds if swelling pressure from the liquid absorbed is too large ([0022]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to provide a connecting area surface ratio within the claimed range, motivated by the desire to predictably produce an absorbent insert that provides reliable opening of the bonds if the swelling pressure from the liquid absorbed is too large as taught by Epping ([0022]).
Claims 9, 11, 13 and 14 are rejected under 35 U.S.C. 103 as being unpatentable over Varillas (US20160101916A1) as evidenced by the previously presented Wikipedia entries for polyethylene and polypropylene as applied to claims 1, 2, 4 – 6, 10, and 15 – 17 above and further in view of Terada (EP0320314A2).
As per claim 9, Varillas is silent with respect to a basis weight of the nonwoven sheet. Varillas does not teach:
Wherein the nonwoven has a weight per unit area of more than 20 g/m2 and less than 100 g/m2
Terada teaches an absorptive sheet suitable for food packaging comprising a water absorptive nonwoven sheet with a protective sheet combined on one or both sides (Abstract). This is similar to the structure and application of Varillas. In the Examples, Terada teaches the nonwoven web has a basis weight of 30 g/m2.
It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to chose a basis rate, such as within the claimed range because Terada teaches that the claimed basis rates were known as predictably suitable basis weights for nonwoven sheets for use in food packaging applications.
As per claim 11, Terada teaches:
Wherein the storage area comprises a hydrophilic component, a ratio of the hydrophilic component in the storage area is more than 0.2 wt% and less than 0.8 wt%
Terada teaches an absorptive sheet suitable for food packaging comprising a water absorptive nonwoven sheet with a protective sheet combined on one or both sides (Abstract) and wherein the nonwoven sheet can be formed from polypropylene ([0014]). This is similar to the structure and application of Varillas. Terada teaches that the nonwoven fibers can have hydrophilic polymers on the surface of them ([0013]). While Terada does not teach a specific amount of the hydrophilic polymer, Examiner notes that it would have been obvious to one skilled in the art before the effective filing date of the claimed invention to provide the hydrophilic polymer coatings of the polymers, resulting in the amount of hydrophilic component claimed, since it has been held that where general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 220 F.2d 454, 105 USPQ 233 (CCPA 1955).
It would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to provide a hydrophilic polymer as a component on the nonwoven web of Varillas, because Terada teaches that the structure is predictably suitable for absorptive nonwoven webs in food packaging applications.
As per claims 13 and 14, Varillas teaches the polymeric material contains micro-perforations (Abstract). Varillas does not specify the method of obtaining the micro-perforations. Varillas does not teach:
Wherein the perforations of the covering layer are configured as openings formed as open protuberances that are oriented in a direction of the storage area and the perforations are configured as needle perforations
Terada teaches an absorptive sheet suitable for food packaging comprising a water absorptive nonwoven sheet with a protective sheet combined on one or both sides, wherein the protective sheet contains perforations (Abstract). This is similar to the structure and application of Varillas. Terada teaches that hot needles can be used to form fine holes in the top ([0019]). These holes are interpreted as the open protuberances that are oriented in a direction of the storage area. While Terada does not teach that the perforation is performed as a vacuum perforation, Examiner notes that the limitation is a product by process limitation. Absent a showing to the contrary, it is Examiner's position that the article of the applied prior art is identical to or only slightly different than the claimed article. 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. In re Thorpe, 227 USPQ 964, 966 (Fed. Cir. 1985). The burden has been shifted to Applicant to show unobvious difference between the claimed product and the prior art product. In re Marosi, 218 USPQ 289 (Fed. Cir. 1983). The applied prior art either anticipated or strongly suggested the claimed subject matter. It is noted that if Applicant intends to rely on Examples in the specification or in a submitted declaration to show unobviousness, Applicant should clearly state how the Examples of the present invention are commensurate in scope with the claims and how the Comparative Examples are commensurate in scope with the applied prior art.
It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to use needles to form the perforations in the film of Varillas, resulting in the claimed openings formed as open protuberances that are oriented in a direction of the storage area because Terada teaches that needle perforations were known as a predictably suitable method of producing perforations in similar food packaging applications.
Conclusion
Applicant's amendment necessitated any 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 extension fee 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 date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JENNA N CHANDHOK whose telephone number is (571)272-5780. The examiner can normally be reached on Monday through Friday from 6:30 - 3:30.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Marla McConnell can be reached on (571) 270-7692. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/JENNA N CHANDHOK/Primary Examiner, Art Unit 1789