DETAILED ACTION
This Office Action is in response to the Amendment filed on 5/18/2026.
Claim(s) 1-3 and 6-20, are now pending in the application.
The previous claim objections of claim(s) 1-20 are withdrawn in light of Applicant’s amendment and remarks.
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.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-3 and 6-20 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 1 states “a) 10-40 wt. % of at least one thermoplastic styrene block copolymer (TPS) and 40 to 60 wt. % of at least one polypropylene copolymer(co-PP) or a combination of at least one polypropylene copolymer (co-PP) and linear low density polyethylene (LLDPE)”. It is unclear whether the limitation of 40-60 wt.% also applies to the combination of at least one polypropylene copolymer and linear low density polyethylene. For the purposes of examination , claim 1 will be interpreted as a polymer compound that comprises, a) 10-40 wt. % of at least one thermoplastic styrene block copolymer (TPS) and 40 to 60 wt. % of a combination of at least one polypropylene copolymer (co-PP) or 40 to 60 wt. % of at least one polypropylene copolymer (co-PP) and/or a linear low density polyethylene (LLDPE).
Use of parentheses in Claims 7, 8, 10, and 18 – e.g. (DIN ISO 7619-1), etc. – renders the scope of the claim’s indefinite, as it is unclear whether the limitations enclosed in parentheses are optional or required. For the purposes of examination, these limitations will be interpreted as being required.
All other claims are rejected as being dependent on 35 U.S.C. 112(b) rejected claim 1.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claims 6 and 12 are rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. Claim 6 sets forth at least 1 wt% TPS which fails to further limit the subject matter of a minimum of at least 10 wt% TPS of claim 1. Claim 12 sets forth the polymer compound comprising between 1 wt% and 80 wt% co-PP which fails to further limit claims 1’s limitation of 40-60 wt% of at least one co-PP. Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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, 6-7 and 12-19 are rejected under 35 U.S.C. 103 as being unpatentable over US20130026127 to Mängel et al. in view of US20130206770 to Poel et al. and in view of US20100006532 to Lee (as found on the IDS dated 5/10/2022), as evidenced by KRATON® G1651 H Polymer to Kraton Corporation.
Regarding Claims 1, 6, 14, and 15, Mängel teaches a twist-crown closure comprising a polymer-based sealing insert which is not based on PVC [0005] and comprises a closure blank [0014] reading on a vessel closure comprising a closure blank and a sealing element comprising a polymer compound that is PVC-free. Mängel teaches the polymer compound comprising 10-40% TPE based on styrene-ethylene-butylene styrene [0019] having a 31% styrene content [0032] reading on at least 10-40% TPS, and a SEBS with styrene content levels between 20% and 40%; 2-20% of copolymer consisting of polypropylene and polyethylene [0022] such as ADFLEX® C 200 F [0025] and 10-30% LLDPE [0020] wherein the polymer compound has a shore A hardness of between 50 and 90 [Abstract] reading on a Shore A hardness between 30 and 85. The combination of 2-20% propylene copolymer and 10-30 wt% LLDPE is reasonably calculated as 12-50 wt%, thereby reading on 46-60wt% of the combination of at least one co-PP and LLDPE.
Mängel does not teach a vessel closure that does not contain more than 10% of liquid constituents at 20°C.
However, Poel teaches a polymer compound for seals for use with fat-containing filling materials [Poel, Title] that can comprise SEBS and co-PP [Poel, 0051] and has only amounts of, or more preferably, no (0 weight percent) constituents where are liquid at application temperature [Poel, 0039]. In a preferred embodiment, the material also contains preferably not more than 7% of lubricants [0041].
Mängel and Poel are analogous art as they are from the same field of endeavor, namely PVC free seals comprising polymer compounds. 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 reduce the liquid components to an amount close to zero weight percent as taught by Poel with Mängel’s vessel closure thereby arriving at the claimed invention.
The motivation to avoid liquid ingredients is to stop the migration of constituents of the packaging into the food [Poel, 0005] which is undesirable but also strictly regulated by law [Poel, 0007]
Mängel and Poel are silent regarding the MFR of the polymer compound and do not expressly teach the TPS is a linear SEBS.
However, Lee teaches a retort liner [title] comprising polypropylene copolymers [Lee, 0059] and in a preferred embodiment comprising linear styrenic block copolymers such as KRATON® G1651H that comprise 30% styrene [Lee, 0050].
Mängel and Lee are analogous art as they are from the same field of endeavor, namely closures comprising polypropylene and SEBS. 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 Mängel’s SEBS with the linear copolymer KRATON® G1651 taught by Lee thereby arriving at the claimed invention.
The motivation would have been that it has been held that it is obvious to select a known material based on its suitability for its intended use. See Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945); In re Leshin, 277 F.2d 197, 125 USPQ 416 (CCPA 1960); and MPEP 2144.07. In the instant case, Lee shows that KRATON® G1651 is known in the art to be suitable for seals comprising polymer compounds. Kraton Corporation further provides evidence that KRATON G1651 H polymer is especially suitable in applications that must withstand weathering and high processing temperatures [Description, KRATON G1651 H Polymer Technical Data Sheet] which would be desirable in a container closure of Mängel that would undergo sterilization at high temperatures.
With respect to the claimed MFR of less than 2.0g/ 10, the Office recognizes that all of the claimed effects or physical properties are not positively stated by the reference(s). However, Mängel, when modified in the manner proposed above, teaches a composition comprising the same commercially available TPS and co-PP used within the ranges taught by applicant [Instant application, 0058, 0066] prepared by a substantially similar process. Therefore, the claimed effects and physical properties - i.e. MFR of less than 2.0g/ 10min - would implicitly be achieved in a product prepared from all of the claimed ingredients in the claimed amounts by a substantially similar process. See In Re Spada, 911, F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990) and MPEP 2111.01 (I)(II). If it is applicant’s position that this would not be the case: (1) evidence would need to be provided to support the applicant’s position and (2) it would be the Office’s position that the application contains inadequate disclosure as to how to obtain the claimed properties in a product prepared from all of the claimed ingredients in the claimed amounts by a substantially similar process.
Regarding Claim 2, Mängel, Poel, and Lee teach the Vessel closure in claim 1, wherein the polymer compound substantially does not comprise any compounds that correspond to a POE [Mängel, [0025]-[0034]]
Regarding Claim 3, Mängel, Poel, and Lee teach the Vessel closure in claim 1, wherein the polymer compound substantially does not comprise any compounds that correspond to a homo-PP [Mängel, [0025]-[0034].
Regarding Claim 7, Mängel, Poel, and Lee teach the Vessel closure in claim 1, wherein the same TPS is used in instant application, KRATON® G1651 [0056] is used [Lee, 0050]. Kraton Corporation provides evidence that KRATON® G1651 has a Shore A hardness of 60 [KRATON® G1651 H Polymer, [Typical Properties]], reading on a Shore A hardness from 50 to 90 at 23°C.
Regarding Claim 12, Mängel, Poel, and Lee teach the Vessel closure in claim 1, wherein then vessel closure comprises 8% of polyolefin [Mängel, 0027] ADFLEX® C 200 F [0025] reading on the vessel closure comprises 1-80% co-PP.
Regarding Claim 13, Mängel, Poel, and Lee teach the Vessel closure in claim 1, comprising LLDPE polyethylene [Mängel, 0034].
Regarding Claim 16, Mängel, Poel, and Lee teach the Vessel closure in claim 1, wherein the sealing insert is useable under conditions of sterilization [Claim 44].
Regarding Claim 17, Mängel, Poel, and Lee teach the Vessel closure in claim 1, wherein the container closure provides vacuum retention in the closed state [Poel, claim 33] reading on showing vacuum retention.
Regarding Claim 18, Mängel, Poel, and Lee does not teach a compression set of a maximum of 50%. Consequently, the Office recognizes that all of the claimed effects or physical properties are not positively stated by the reference(s). However, Mängel, Poel, and Lee, when modified in the manner proposed above, teaches a product prepared from all of the claimed ingredients in the claimed amounts by a substantially similar process. Therefore, the claimed effects and physical properties - i.e. compression set of a maximum of 50% - would implicitly be achieved in a product prepared from all of the claimed ingredients in the claimed amounts by a substantially similar process. See In Re Spada, 911, F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990) and MPEP 2111.01 (I)(II). If it is applicant’s position that this would not be the case: (1) evidence would need to be provided to support the applicant’s position and (2) it would be the Office’s position that the application contains inadequate disclosure as to how to obtain the claimed properties in a product prepared from all of the claimed ingredients in the claimed amounts by a substantially similar process.
Regarding Claim 19, Mängel, Poel, and Lee teach the Vessel closure in claim 1, as set forth above and incorporated herein by reference.
The transitional phrase "consisting essentially of" limits the scope of a claim to the specified materials or steps "and those that do not materially affect the basic and novel characteristic(s)" of the claimed invention. In re Herz, 537 F.2d 549, 551-52, 190 USPQ 461, 463 (CCPA 1976) [A]bsent a clear indication in the specification or claims of what the basic and novel characteristics actually are, "consisting essentially of" will be construed as equivalent to "comprising." See, e.g., PPG, 156 F.3d at 1355, 48 USPQ2d at 1355. In the instant case, there is no clear indication in the specification or claims as to what additional materials are excluded by the recitation of “consisting essentially of”. Thus, the instant claims have been interpreted as “comprising". As detailed in the rejection of Claim 1 above, Mängel, Poel, and Lee teach the Vessel closure including a polymer compound comprising at least on TPS and at least one co-PP.
Claim(s) 8-11 is/are rejected under 35 U.S.C. 103 as being unpatentable over Mängel in view of Poel as applied to claim 1 above, and further as evidence by Adflex C 200 F Technical Data Sheet.
Regarding Claim 8 - 11, Mängel, Poel, and Lee teach the Vessel closure in claim 1, wherein the same ADFLEX series found in instant application [0068] is provided by Mangel, such as ADFLEX® C 200 F [Mängel, [0025]]. LyondellBasell provides evidence that ADFLEX® C 200 F has a Shore D hardness of 40, reading on a Shore D hardness of less than 55; an MFR of 6g/10 min, reading on an MFR of less than 30 and at least 0.1 g/10 min; and a melting point of 142°C, reading on a melting point below 165°C [Adflex C 200 F Technical Data Sheet, [Typical Properties]].
Claim 20 is rejected under 35 U.S.C. 103 as being unpatentable over Mängel et al. in view of Poel as applied to claim 1 above, and further in view of US2018/0281260 to Ben-Daat et al.
Regarding claim 20, Mängel in view of Poel teach the Vessel closure as set forth in claim 1 and incorporated herein by reference.
Mängel in view of Poel does not particularly teach the polymer compound comprises SEEPS.
However, Ben-Daat teaches SEBS as well as SEEPS as suitable examples of thermoplastic elastomers [0044]. 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 SEEPS for SEBS used in Mängel in view of Poel. The motivation would have been that it is obvious to substitute equivalents known for the same purpose. (MPEP 2144.06) Ben-Daat discloses that both SEBS and SEEPS are suitable thermoplastic elastomers to give plastomeric, elastoplastomeric, or elastomeric properties [Ben-Daat, 0044] for use in caps, thus providing evidence of obviousness in substituting one for the other in such products.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1, 3 and 6-20 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-13, 17, 19, and 21-22 of copending Application No. 17/775,787.
Although the claims at issue are not identical, they are not patentably distinct from each other because Application No. 17/775,787 sets forth a vessel closure that comprises 10-50 wt% of at least one TPS and 20-65 wt% of at least two different propylene copolymers wherein the polymer compound has a Shore A hardness between 30 and 85 at 70°C and a melt flow index of less than 20g/ 10min and the polymer compound does not contain more than 10% of components that are liquid at 20°C.
Though the co-pending application Melt flow index 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)
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented. 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 5/18/2026 have been fully considered but they are not persuasive.
112(b) rejection has been maintained for claims 7, 8, 10, and 18 because the testing method (ISO 7619-1) is in parentheses. This renders the scope of the claim’s indefinite, as it is unclear whether the limitations enclosed in parentheses are optional or required. For the purposes of examination, these limitations will be interpreted as being required.
Applicant states neither Mangel or Poel teach the newly amended amounts of 10-40 weight % of at least one TPS and 40-60 weight % of at least one co-PP or combination of co-PP/LLDPE.
In response, attention is drawn to the updated rejection of newly amended claim 1 wherein Mangel teaches all limitations of claim 1 in their respective amounts.
Applicant’s request that the obviousness-type double patenting rejection be held in abeyance is noted.
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.
Correspondence
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DEVIN MITCHELL DARLING whose telephone number is (703)756-5411. The examiner can normally be reached Monday - Friday 7:30am - 5:00pm.
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/DEVIN MITCHELL DARLING/Examiner, Art Unit 1764
/MELISSA A RIOJA/Primary Examiner, Art Unit 1764
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