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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 19 February 2026 has been entered.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1, 3, 5-9, 11-12, 14-16, 20-22, 24, and 26-30 are rejected under 35 U.S.C. 103 as being unpatentable over Komuro (WO 2019083000 A1; US 20200172712 A1 used as English translation) (previously cited) in view of Ikeda et al. (JP 2005082226 A; herein English machine translation used for all citations) (previously cited) and Yamakoshi et al. (US 20170267851 A1) (previously cited).
Regarding claim 1, Komuro teaches a resin composition comprising an ethylene vinyl alcohol copolymer (EVOH) (A) with an ethylene content of 20 to 60 mol% (Komuro, Abstract and Par. 0024-0029), which is the same as the claimed range and therefore satisfies the claimed range, see MPEP 2131.03. Komuro teaches the resin composition comprises carboxylic acid (Komuro, Abstract, Par. 0024, and 0037). Komuro teaches the resin composition comprises a monovalent metal acetate compound (alkali metal compound) (Komuro, Par. 0024 and 0052) and a thermoplastic polyamide resin (Komuro, Par. 0064-0068). Komuro teaches a content of the monovalent metal acetate compound in terms of the monovalent metal atom is 0.001 to 0.1 wt.% (10 to 1000 ppm), including 0.005 to 0.03 wt.% (50 to 300 ppm) (Komuro, Par. 0056), which lies within the claimed range of 10 ppm or more and 800 ppm or less and therefore satisfies the claimed range, see MPEP 2131.03. Komuro teaches the resin composition is part of a multilayer material comprising a layer of the resin composition and a layer of a polyester resin (Komuro, Par. 0088-0090). Komuro teaches the resin composition includes a carboxylic acid metal salt; however, Komuro teaches the metal may be metals such as Nickel or Copper, which can form monovalent or trivalent salts (Komuro, Abstract, and Par. 0042-0044). Komuro therefore teaches embodiments wherein the resin composition includes a carboxylic acid monovalent or trivalent salt and does not comprise a carboxylic acid divalent metal salt, satisfying the claim limitation.
Komuro is silent regarding a divalent metal hydroxide comprising at least one member selected from the group consisting of magnesium hydroxide, calcium hydroxide, and zinc hydroxide, wherein a content of the divalent metal hydroxide is 4 ppm or more and 1200 ppm or less, and a mass ratio of the amount of monovalent metal acetate compound in terms of the monovalent metal atom and the amount of the divalent metal hydroxide in terms of the divalent metal atom is 0.1 to 37.5.
Ikeda teaches a multilayer structure comprising a polyester layer, and an EVOH resin layer wherein the EVOH resin layer comprises EVOH and a divalent metal hydroxide that is a magnesium hydroxide, a zinc hydroxide, or a calcium hydroxide in an amount of 0.001 to 1 wt.% (10 to 10000 ppm) (Ikeda, Par. 0001-0002, 0005-0006, and 0036-0038), which overlaps the claimed range of 4 ppm or more and 1200 ppm or less and therefore establishes a prima facie case of obviousness over the claimed range, see MPEP 2144.05, I.
Komuro and Ikeda are analogous art as they both teach resin compositions comprising EVOH. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have included the divalent metal hydroxide of Ikeda in the resin composition of Komuro. This would allow for improved interlayer adhesion (Ikeda, Par. 0037). Using a content of 50-300 ppm of monovalent metal acetate compound and a content of 10-10000 ppm divalent metal hydroxide compound, this would further result in a mass ratio of the amount of the monovalent metal acetate compound in terms of the monovalent metal atom and the amount of the divalent metal hydroxide in terms of the divalent metal atom of 0.005 to 30, which overlaps the claimed range of 0.1 to 37.5 and therefore establishes a prima facie case of obviousness over the claimed range, see MPEP 2144.05, I.
Modified Komuro is silent regarding a matrix phase containing the ethylene-vinyl alcohol copolymer and a dispersion phase containing the polyamide resin, wherein an average dispersed particle size of the dispersion phase containing the polyamide resin is 2 µm or less.
Yamakoshi teaches a resin composition comprising a matrix phase containing EVOH, and a dispersion phase containing a polyamide resin, wherein an average dispersed particle size of the dispersion phase containing the polyamide resin is 1 µm or less (Yamakoshi, Abstract, Par. 0001, 0011-0016, and 0044-0045), which lies within the claimed range of 2 µm or less and therefore satisfies the claimed range, see MPEP 2131.03. Yamakoshi teaches that the resin composition comprises a magnesium compound and a sodium compound (Yamakoshi, Abstract, Par. 0001, 0012-0023, and 0048).
Modified Komuro and Yamakoshi are analogous art as they both teach resin compositions comprising EVOH, polyamide, a magnesium compound, and a sodium compound. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have created the resin composition of modified Komuro such that the EVOH is a matrix phase and the polyamide is a dispersion phase with the claimed average dispersed particle size. This would allow for a resin composition with superior hue, appearance, thermal stability, and film formation (Yamakoshi, Abstract, Par. 0011, and 0024-0026).
Regarding claim 3, modified Komuro teaches the polyamide resin is present in an amount of less than 30 wt.% the amount of EVOH (Komuro, Par. 0064-0065). This results in a mass ratio of EVOH to polyamide of at least 77/33, which overlaps the claimed range of 55/45 to 99/1 and therefore establishes a prima facie case of obviousness over the claimed range, see MPEP 2144.05, I.
Regarding claim 5, modified Komuro teaches the resin composition comprises EVOH and the thermoplastic polyamide (Komuro, Par. 0064-0068) and does not state that other thermoplastics are required and thus teaches embodiments where the EVOH and the polyamide occupy 100 % by mass of a thermoplastic resin composition constituting the resin composition, which lies within the claimed range of 95% by mass or more, see MPEP 2131.03.
Regarding claims 6 and 27, modified Komuro teaches the content of the monovalent metal compound in terms of the monovalent metal atom is 0.001 to 0.1 wt.% (10 to 1000 ppm), including 0.005 to 0.03 wt.% (50 to 300 ppm) (Komuro, Par. 0056), which lies within the claim 6 range of 50 ppm or more and 500 ppm or less and the claim 27 range of 30 ppm or more and 800 ppm or less and therefore satisfies the claimed ranges, see MPEP 2131.03.
Regarding claim 7, modified Komuro teaches the divalent metal hydroxide comprises magnesium hydroxide (Ikeda, Par. 0001-0002, 0005-0006, and 0036-0038).
Regarding claim 8, modified Komuro teaches the divalent metal hydroxide comprises magnesium hydroxide and need not comprise other metals (Ikeda, Par. 0001-0002, 0005-0006, and 0036-0038), and therefore teaches a proportion of magnesium atoms in the total metal atoms the divalent metal hydroxide is 100 mol%, which lies within the claimed range of 80 mol% or more and therefore satisfies the claimed range, see MPEP 2131.03.
Regarding claim 9, modified Komuro teaches the monovalent metal atom constituting the monovalent metal compound is sodium, potassium, lithium, rubidium, or cesium (Komuro, Par. 0052).
Regarding claims 11 and 28-29, modified Komuro teaches the resin composition comprises a higher fatty acid that is stearic acid as the carboxylic acid (Komuro, Par. 0037-0038). Stearic acid satisfies the limitation of a higher fatty acid as it is given as an example of one by the instant specification Par. 0035 and the instant claim 29. Modified Komuro teaches the higher fatty acid is present in an amount of 0.1 to 40 wt.% based on the amount of the higher fatty acid and a metal salt (Komuro, Par. 0039 and 0048), wherein the metal salt is present in an amount of 0.0001 to 0.05 wt.% (1 to 500 ppm), and thus teaches the higher fatty acid is present in an amount of 0.1 to 200 ppm, which lies within the claimed range of 0.1 ppm or more and 250 ppm or less and therefore satisfies the claimed range, see MPEP 2131.03.
Regarding claim 12, modified Komuro teaches the resin composition can comprise multiple alkali metal compounds, including a phosphate compound (Komuro, Par. 0052-0054).
Regarding claim 14, modified Komuro teaches a shaped article comprising the resin composition (Komuro, Abstract, Par. 0016 and 0021-0022).
Regarding claim 15, modified Komuro teaches a multilayer structure comprising a layer made of the resin composition (Komuro, Abstract, Par. 0016 and 0021-0022).
Regarding claim 16, modified Komuro teaches the divalent metal hydroxide comprises calcium hydroxide (Ikeda, Par. 0036).
Regarding claim 20, modified Komuro teaches the mass ratio of the amount of the monovalent metal atom and the amount of the divalent metal hydroxide in terms of the divalent metal atom of 0.001 to 200 as stated above for claim 1 (Komuro, Par. 0056; Ikeda, Par. 0036-0038), which overlaps the claimed range of 0.1 to 33.3 and therefore establishes a prima facie case of obviousness over the claimed range, see MPEP 2144.05, I.
Regarding claims 21 and 26, modified Komuro teaches the content of the divalent metal hydroxide is 0.001 to 1 wt.% (10 to 10000 ppm) (Ikeda, Par. 0005-0006 and 0036-0038), which overlaps the claim 21 range of 20 ppm or more and 1200 ppm or less and the claim 26 range of 5 ppm or more and 1200 ppm or less and therefore establishes a prima facie case of obviousness over the claimed ranges, see MPEP 2144.05, I.
Regarding claim 22, modified Komuro teaches the resin composition has excellent oxygen barrier properties, including examples of an oxygen transmission rate of 0.2 cc X 20 µm/m2 X day X atm (Komuro, Par. 0003, 0011, 0130, and Table 1), which lies within the claimed range of less than 1.5 µm/m2 X day X atm and therefore satisfies the claimed ranges, see MPEP 2131.03.
Regarding claim 24, modified Komuro teaches a resin composition that is substantially identical to the instant invention as stated above for claims 1, 3, 5-9, 11-12, 14-16, and 20-22. 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. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977), see MPEP 2112.01. Modified Komuro teaches a resin composition comprising EVOH with an ethylene unit content that is the same as the instant invention, the same divalent metal hydroxide, the same monovalent metal compound, and same polyamide resin as the instant invention as stated above for claims 1 , 7-9, and 16. Modified Komuro further teaches the resin composition comprises a carboxylic acid and a phosphate compound as stated above for claims 1 and 11-12. Modified Komuro further teaches the EVOH is in a matrix phase, with a dispersion phase of polyamide with the same particle size as the instant invention as stated above for claim 1. Modified Komuro further teaches a content of the divalent metal hydroxide, monovalent metal compound, EVOH, and polyamide that is the same as the instant invention as stated above for claims 1, 3, and 5-6. Furthermore, modified Komuro teaches the resin composition is excellent in color stability (Komuro, Par. 0019-0020, 0045, 0121-0128, 0174, and Table 1). Further, the instant specification does not state that any other specific modifications are made to the resin composition to achieve the claimed Yl ratio. Modified Komuro thus teaches a resin composition that is substantially identical to the instant invention. Therefore, absent objective evidence to the contrary, the resin composition of modified Komuro would have inherently exhibited the claimed Yl ratio, see MPEP 2112.01.
Regarding claim 30, modified Komuro teaches the monovalent metal acetate compound comprises sodium acetate (Komuro, Par. 0052-0054).
Claim 13 is rejected under 35 U.S.C. 103 as being unpatentable over Komuro in view of Ikeda et al. as applied to claim 1 above, further in view of Tai et al. (JP 2004292677 A; herein English machine translation used for all citations) (previously cited).
Regarding claim 13, modified Komuro teaches all of the elements of the claimed invention as stated above for claim 1. Modified is silent regarding the aspect ratio of the divalent metal hydroxide (B) being 3 or more and 500 or less.
Tai teaches a resin composition comprising an EVOH and an inorganic filler that is magnesium hydroxide (Tai, Pages 1 and 19-20). Tai teaches that the magnesium hydroxide has an aspect ratio of more than 10 (Tai, Pages 19-20), which overlaps the claimed range of 3 or more and 500 or less and therefore establishes a prima facie case of obviousness over the claimed range, see MPEP 2144.05, I.
Modified Komuro and Tai are analogous art as they both teach resin compositions comprising EVOH and magnesium hydroxide. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have used magnesium hydroxide with an aspect ratio that lies within the claimed range as the magnesium hydroxide of modified Komuro. This would allow for improved gas barrier properties (Tai, Pages 19-20).
Response to Arguments
Applicant’s remarks and amendments filed 19 February 2026 have been fully considered.
On pages 6-7 of the remarks, Applicant argues that modified Komuro does not specifically teach the claimed ratio of monovalent metal acetate compound to divalent metal hydroxide. This is not found persuasive for the following reasons:
Modified Komuro teaches a content of the monovalent metal acetate compound in terms of the monovalent metal atom is 0.005 to 0.03 wt.% (50 to 300 ppm) (Komuro, Par. 0056). Modified Komuro teaches a content of the divalent metal hydroxide in terms of the divalent metal atom 0.001 to 1 wt.% (10 to 10000 ppm) (Ikeda, Par. 0001-0002, 0005-0006, and 0036-0038). Using a content of 50-300 ppm of monovalent metal acetate compound and a content of 10-10000 ppm divalent metal hydroxide compound, this results in a mass ratio of the amount of the monovalent metal acetate compound in terms of the monovalent metal atom and the amount of the divalent metal hydroxide in terms of the divalent metal atom of 0.005 to 30, which overlaps the claimed range of 0.1 to 37.5 and therefore establishes a prima facie case of obviousness over the claimed range, see MPEP 2144.05, I.
Applicant points to MPEP 2112 to state that the claimed ratio is not inherent in the prior art. However, the rejection to the claimed ratio as stated above does not rely upon inherency. Instead, both the amount of the divalent metal hydroxide atom and the amount of the monovalent metal acetate compound is stated in the prior art as stated above. This would result in a range of content ratios of the metal compounds which, as stated above, overlaps and therefore renders obvious the claimed range, see MPEP 2144.05, I. While the prior art does not directly recite a ratio of the metal compounds, the recitation of an amount of each compound would necessarily result in a content ratio between the two compounds.
For the reasons stated above, modified Komuro renders obvious the claimed ratio and Applicant’s argument is unpersuasive.
Secondly, on pages 7-8 of the remarks, Applicant argues that the claimed invention has superior and unexpected results compared to embodiments with a C/B ratio outside of the claimed range, or that includes a carboxylic acid divalent metal salt. This is not found persuasive for the following reasons:
To note, As stated in the grounds of rejection above, the resin composition of modified Komuro comprises a divalent metal hydroxide and does not comprise a carboxylic acid divalent metal salt.
Whether the unexpected results are the result of unexpectedly improved results or a property not taught by the prior art, the "objective evidence of nonobviousness must be commensurate in scope with the claims which the evidence is offered to support." In other words, the showing of unexpected results must be reviewed to see if the results occur over the entire claimed range. In re Clemens, 622 F.2d 1029, 1036, 206 USPQ 289, 296 (CCPA 1980). See MPEP 716.02(d). The nonobviousness of a broader claimed range [or genus] can be supported by evidence based on unexpected results from testing a narrower range [or species] if one of ordinary skill in the art would be able to determine a trend in the exemplified data which would allow the artisan to reasonably extend the probative value thereof. In re Kollman, 595 F.2d 48, 201 USPQ 193 (CCPA 1979). See MPEP 716.02(d), I. Applicant’s table I data only provides inventive and comparative data utilizing EVOH without polyamide whereas the instant claims recite that the resin composition comprises both EVOH and polyamide. To note, the data in table 2 does show polyamide, however, the inventive and comparative data in table 2 all utilize specifically 90 mass% EVOH and 10 mass% polyamide, whereas the instant claim 1 broadly recites EVOH and polyamide without any mass ratio. One of ordinary skill in the art would be unable to determine a trend based upon this limited data to reasonably extend the probative data to the much more broadly claimed features as discussed above. Therefore, the inventive and comparative examples are not commensurate in scope with the claimed invention in view of MPEP 716.02(d), I.
Also, to establish unexpected results over a claimed range, applicants should compare a sufficient number of tests both inside and outside the claimed range to show the criticality of the claimed range. In re Hill, 284 F.2d 955, 128 USPQ 197 (CCPA 1960). See MPEP 716.02(d), II.
Applying the required analysis noted above, it is clear that the data provided in the examples is not commensurate with the scope of the claims and does not show criticality in establishing unexpected results as follows. The inventive examples only utilize EVOH having an ethylene unit content of 27 mol.% whereas the instant claims broadly recite an ethylene content of 20-60 mol.%. No comparative data is provided outside of the claimed range. The inventive examples only utilize 90 parts EVOH and 10 parts polyamide or 100 parts EVOH and no polyamide, whereas the instant claim 1 does not recite a ratio of EVOH to polyamide. The inventive examples only utilize one specific polyamide and does not state the particle size whereas the instant claim 1 recites a particle size of 2 µm or less. One of ordinary skill in the art would not be able to reasonably conclude that all possible claimed content ranges/ratios of the materials would necessarily yield the asserted superior and unexpected results.
In view of the foregoing, the data provided is not commensurate in scope with the instant claims as required by MPEP 716.02(d). When all of the evidence is considered, the totality of the rebuttal evidence of nonobviousness fails to outweigh the evidence of obviousness. As such, Applicant’s argument that the instant invention has superior and unexpected results in unconvincing.
Conclusion
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/THOMAS J KESSLER/Examiner, Art Unit 1782