DETAILED ACTION
Notice of Pre-AIA or AIA Status
1. 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
2. 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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 June 15, 2026 has been entered.
Response to Amendment
3. The amendment filed by Applicant on June 15, 2026 has been fully considered. The amendment to instant claim 1 is acknowledged. In light of the amendment, all previous rejections are withdrawn. The new grounds of rejections are set forth below.
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.
4. Claims 1-2, 4-8, 10, 12-14, 17-19, 21, 23-24 are rejected under 35 U.S.C. 103 as being unpatentable over Thomas et al (US 2018/0133070) in view of German et al (US 2010/0310892), Chang et al (US 2017/0253012, Chang’012), Chang et al (US 7,355,089, Chang’089) and VERSIFY flyer, 2016.
5. Thomas et al discloses an elastic composition in the form of film comprising:
A) a core layer and
B) at least one skin layer ([0065]),
including the structures comprising two layers or three layers ([0048]), such as comprising an elastic core positioned between two thermoplastic skin layers ([0066], as to instant claims 2, 18-19),
wherein:
the core layer A) is elastic/elastomeric and comprises elastomeric polyolefins, specifically an ethylene/alpha olefin copolymer, wherein the alpha olefin includes 1-butene, 1-pentene, 1-hexene, only ([0054]) or in combination with a propylene/alpha-olefin copolymer ([0011], [0050], [0058], as to instant claims 1, 5-6, 10, 12), specifically commercial elastomeric copolymer of polyethylene INFUSE ([0057]) and having MFR of 0.1-10 g/10 min ([0060]);
the skin layer(s) possess some degree of elasticity and formed from materials used for the core layer (“discussed above” as cited in [0067]), which materials include propylene/alpha olefin copolymers VISTAMAXX (6102) and VERSIFY ([0058]) and further such skin layers are formed from inelastic polymers to ensure that the strength of the film is sufficiently enhanced ([0067]), specifically LLDPE such as DOWLEX 2517 and DOWLEX 2047 ([0067]),
wherein the core layer constitutes 70-98%wt of the total film ([0068]).
6. Given the core layer constitutes 70-98%wt of the total film, therefore, it would have been obvious to a one of ordinary skill in the art that the outer/skin layer(s) will comprise 2-30%wt of the total film (as to instant claim 1). Since PTO cannot conduct experiments the proof of burden is shifted to the applicants to establish an unobviousness difference, see In re Best, 562 F.2d 1252, 195 USPQ 430 (CCPA 1977). See MPEP § 2112.01.
7. Thus, based on the teachings of Thomas et al that ethylene/alpha olefin copolymers are used for making the core ([0011]), it would have been obvious to a one of ordinary skill in the art to choose and use (for making said core) either:
i) the ethylene/alpha olefin copolymers only (as to instant claims 6-8,10), wherein the ethylene-alpha olefin copolymers maybe a combination of ethylene/1-hexene copolymer and ethylene/1-butene copolymers, since 1-hexene and 1-butene are cited as the preferable alpha olefins (as to instant claim 8), including the commercial products INFUSE or
ii) the ethylene/alpha olefin copolymers in further combination with propylene-alpha olefin copolymers (as to instant claims 5 and 12), since it would have been obvious to choose material based on its suitability. Case law holds that the selection of a known material based on its suitability for its intended use supports prima facie obviousness. Sinclair & Carroll Co vs. Interchemical Corp., 325 US 327, 65 USPQ 297 (1045).
8. Further, based on the teachings of Thomas et al that the skin layer(s) possess some degree of elasticity and formed from materials used for the core layer (“discussed above” as cited in [0067]), which materials include propylene/alpha olefin copolymers VISTAMAXX (6102) and VERSIFY ([0058]) and further such skin layers are formed from inelastic polymers to ensure that the strength of the film is sufficiently enhanced ([0067]), specifically LLDPE such as DOWLEX 2517 and DOWLEX 2047 ([0067]), therefore, it would have been obvious to a one of ordinary skill in the art to choose and use the combination of propylene/alpha olefin copolymer such as VERSIFY with LLDPE such as DOWLEX 2517 and DOWLEX 2047 to form the skin layer(s) of the elastic film of Thomas et al as well, so to ensure said skin layers are having both some degree of elasticity but also sufficiently enhanced strength, and since it would have been obvious to choose material based on its suitability, thereby arriving at the present invention. Case law holds that the selection of a known material based on its suitability for its intended use supports prima facie obviousness. Sinclair & Carroll Co vs. Interchemical Corp., 325 US 327, 65 USPQ 297 (1045).
9. It is noted that the commercial products INFUSE are used in instant invention to form the core layer; the commercial products VERSIFY and DOWLEX 2517 and DOWLEX 2035 are used for making skin layers of instant invention (see p. 20, lines 17-28 of instant specification).
10. As to instant claim 21, the film further comprises particulate fillers including calcium carbonate or titanium dioxide ([0070]).
11. The elastic film is used for making absorbent hygiene products including diapers ([0123]).
12. The elastic film is laminated with facing layers and wound into a roll ([0084]-[0085], as to instant claim 23) and further stretched ([0093], as to instant claim 24).
13. Though Thomas et al discloses the skin layer comprising a propylene/alpha olefin copolymer and LLDPE, Thomas et al does not recite the amount of used LLDPE.
14. However, German et al discloses a film comprising a blend X of:
a) 50-99%wt of a linear low density polyethylene (LLDPE) and
b) 1-50%wt of a propylene-alpha olefin copolymer, such as commercial product Versify ([0029]) and having Mw of as low as 10,000 or 50,000 and MFR of 0.5-500 g/10 min ([0027], [0025]),
wherein said film is having excellent strength, elasticity and are used for diapers and personal care ([0052], Abstract).
German et al further teaches that such films can be used in multilayer films ([0038]), wherein given “A” is a conventional film layer and “B” is a film comprising said
LLDPE+ propylene/alpha olefin copolymer blend (blend X above) ([0044]), the multilayer films are having the structure A/B or B/A/B’ ([0047]), i.e. the film comprising said blend X can be used as either one or both outer layers in the multilayered films.
15. Thus, German et al explicitly teaches that i) the blend X comprising LLDPE can be used not only as the core layer, but further as outer layer(s) in the multi-layered films such as in the structures B/A/B’ ([0047], claim 22), and ii) the outer layers in the multi-layered structures constitute 10-30%wt of the total film ([0012]), therefore, based on the teachings of German et al, it would have been obvious to a one of ordinary skill in the art to choose and use the blend X as at least one outer layer B in the multi-layered structures used in amount of 10-30%wt based on the total multi-layered structure as well, since it would be obvious to choose material based on its suitability. Case law holds that the selection of a known material based on its suitability for its intended use supports prima facie obviousness. Sinclair & Carroll Co vs. Interchemical Corp., 325 US 327, 65 USPQ 297 (1045).
16. Though German et al recites that the B layer is preferably used as the core layer, and not outer layers, this does not negate a finding of obviousness under 35 USC 103 since a preferred embodiment such as an example is not controlling. Rather, all disclosures “including unpreferred embodiments” must be considered. In re Lamberti 192 USPQ 278, 280 (CCPA 1976) citing In re Mills 176 USPQ 196 (CCPA 1972).
17. Since a) the blend X of German et al comprising the combination of LLDPE+ propylene/alpha olefin copolymer is taught in the art as being used for making multilayered films, including using that as outer layer(s) of said films, b) the outer films constitute 10-30%wt of the multi-layered films, as taught by German et al and Thomas et al, c) said films comprising the blend X of German et al are having excellent strength and also elasticity, as required by Thomas et al, and d) said films are used for making diapers and personal care items, similarly to those of Thomas et al, therefore, it would have been obvious to a one of ordinary skill in the art to combine the teachings of German et al and Thomas et al, and to use, or obvious to try to use the film comprising the blend X of German et al comprising 50%wt of LLDPE as the skin layer(s) in the multilayered film of Thomas et al, since such combination of LLDPE+ propylene/alpha olefin copolymer provides excellent strength and at least some elasticity, and it would have been obvious to choose material based on its suitability. Case law holds that the selection of a known material based on its suitability for its intended use supports prima facie obviousness. Sinclair & Carroll Co vs. Interchemical Corp., 325 US 327, 65 USPQ 297 (1045). Case law holds that the mere substitution of an equivalent (something equal in value or meaning, as taught by analogous prior art) is not an act of invention; where equivalency is known to the prior art, the substitution of one equivalent for another is not patentable. See In re Ruff 118 USPQ 343 (CCPA 1958).
18. Since in the multi-layered structure of Thomas et al in view of German et al,
i) the core layer constitutes 70-98%wt of the total film ([0068] of Thomas et al), and thereby the outer/skin layer(s) will intrinsically and necessarily comprise 2-30%wt of the total film, and
ii) the skin layer(s), comprising the blend X, comprise 50%wt of the LLDPE, therefore, the amount of LLDPE based on the total weight of the multilayered structure of Thomas et al in view of German et al will be 2%x(0.50)=1%wt to 30x(0.50)=15%wt, i.e. in the range of 1-15%wt as well (as to instant claims 1, 17). 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). MPEP 2112.01(I). Since PTO cannot conduct experiments the proof of burden is shifted to the applicants to establish an unobviousness difference, see In re Best, 562 F.2d 1252, 195 USPQ 430 (CCPA 1977). See MPEP § 2112.01.
19. Though Thomas et al in view of German et al disclose the propylene-alpha olefin copolymer of the skin layer having Mw of as low as 10,000 or 50,000 and MFR of 0.5-500 g/10 min or 0.5-40 g/10 min, Thomas et al in view of German et al do not recite the molecular weight of the elastomers in the core layers, and their weight ratio.
20. However,
1) Chang’012 discloses a stretch-modified elastomeric multilayer film used for making absorbent hygiene products ([0012]), comprising:
A) a core layer comprising a first ethylene-alpha olefin copolymer having melt index of 0.5-5 g/10 min and
B) at least one outer layer comprising:
- a second ethylene-alpha olefin block copolymer (as to instant claim 4) having melt
index of 0.5-25 g/10 min and one or more additional polymers including propylene
random copolymers VERSIFY ([0051]; [0052]);
- an anti-block agent comprising talc, silica ([0006], [0053], Abstract, as to instant
claim 21),
wherein the thickness of the core layer is 70-95% of the overall thickness and the outer layers comprises 5-30% of the overall thickness of the film ([0016]) and wherein
the at least one outer layer comprises a second ethylene-alpha olefin copolymer, such as ethylene-octene copolymer ([0044]), having melt index different than the melt index of the first ethylene-alpha olefin copolymer ([0046]).
The ethylene-alpha olefin copolymer elastomer of the core comprises melt index of 0.5-5 g/10 min, or 0.5-5 g/10 min, or 0.5-3 g/10 min ([0037]) and the elastomers of the at least one outer layer comprises melt index of 0.5-25 g/10 min, or 5-20 g/10 min or 5-15 g/10 min ([0046]). Thus, Chang’012 specifically teaches the range/values of melt index of the core being lower than the values of melt index of the outer layer. Chang’012 further specifically teaches that the melt index of the first ethylene-alpha olefin copolymer is different than the melt index of the second ethylene-alpha olefin copolymer ([0046]).
Based on the teachings of Chang’012, it would have been obvious to a one of ordinary skill in the art to choose and use the elastomer of the core having melt index of 0.5 g/10 min to less than 5 g/10 min; and the elastomer of the outer layer having melt index of more than 5 g/10 min to 25 g/10 min, as also taught by Thomas et al in view of German et al ([0025]), since it would have been obvious to choose material based on its suitability. Further, since melt index values are inversely related to average molecular weight, given the elastomer of the core is having melt index of 0.5 g/10 min or 5 g/10 min and the elastomer of the outer layer is having melt index of 25 g/10 min or Mw of as low as 10,000 or 50,000 ([0027] of German et al), the elastomers of the core will intrinsically and necessarily have average molecular weight higher than that of the elastomer of the outer layer, and the ratio of said molecular weight values of said elastomers of the core and the outer layer would be reasonably expected to be within the broad range of 7.5:1 to 1.5:1 as well. 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). MPEP 2112.01(I). Since PTO cannot conduct experiments the proof of burden is shifted to the applicants to establish an unobviousness difference, see In re Best, 562 F.2d 1252, 195 USPQ 430 (CCPA 1977). See MPEP § 2112.01.
2) Further, though Chang’012 does not explicitly recite molecular weight of the ethylene-alpha olefin block copolymers,
Chang’089 discloses ethylene-alpha olefin block copolymers used for making elastic films and laminates (claim 1), which are substantially the same as those disclosed by Chang’012, wherein Chang’089 provides a correlation between melt index and Mw of such polymers.
Thus, the ethylene-alpha olefin block copolymer having melt index of 0.5 g/10 min shows Mw of 148,500 and Mn of 74,900 (example 16);
the ethylene-alpha olefin block copolymer having melt index of 9.1 g/10 min shows Mw of 66,200 and Mn of 36,500 (example 11).
3) The commercial propylene copolymers VERSIFY are having MFR of about 8 g/10 min or 25 g/10 min (see the VERSIFY flyer), and thereby will intrinsically and necessarily have Mw and Mn lower than those for ethylene-alpha olefins having melt index of 0.5 g/10 min.
21. Given:
1) Thomas et al in view of German et al disclose the multilayered core/skin-based films for making absorbent hygiene products, wherein Thomas et al in view of German et al disclose the use of elastomeric copolymer of polyethylene INFUSE having MFR of 0.1-10 g/10 min for the core layer ([0060] of Thomas et al); and commercial elastomer products VERSIFY for the skin layers including propylene/alpha olefin copolymer for the skin layers having Mw of 10,000 or 50,000 and MFR of about 10 or 20 or 30 g/10 min ([0025], [0027] of German et al);
2) Chang’012 discloses multilayered core/skin films for absorbent hygiene products, wherein the elastomer of the core is having melt index of 0.5-5 g/10 min, or 0.5-3 g/10 min ([0037]) and the elastomers of the at least one outer layer comprise melt index of 5-15 g/10 min ([0046]);
3) Chang’089 discloses ethylene-alpha olefin block copolymers used for making elastic films and laminates, specifically the ethylene-alpha olefin block copolymer having melt index of 0.5 g/10 min, Mw of 148,500 and Mn of 74,900 (example 16) and
the ethylene-alpha olefin block copolymer having melt index of 9.1 g/10 min, Mw of 66,200 and Mn of 36,500 (example 16),
4) the commercial propylene copolymers VERSIFY are having MFR of about 8 g/10 min or 25 g/10 min (see the VERSIFY flyer),
5) the propylene/alpha olefin copolymer of the skin layers is having Mw of 10,000 or 50,000 ([0027] of German et al,
therefore, it would have been obvious to a one of ordinary skill in the art to combine the teachings of Thomas et al in view of German et al, Chang’089, Chang’012 and VERSIFY flyer, and to choose and use, or obvious to try to choose and use the ethylene-alpha olefin block copolymer having melt index of 0.5 g/10 min, Mw of 148,500 and Mn of 74,900 to form the core of the elastic film of Thomas et al in view of German et al, and to choose and use, or obvious to try to use the commercial elastomeric propylene copolymers VERSIFY such as having Mw of 50,000, and ethylene-alpha olefin block copolymer having melt index of 9.1 g/10 min, Mw of 66,200 and Mn of 36,500 to form the outer layer(s) of the elastic film of Thomas et al in view of German et al, since it would have been obvious to choose material based on its suitability (as to instant claims 1, 13). Case law holds that the selection of a known material based on its suitability for its intended use supports prima facie obviousness. Sinclair & Carroll Co vs. Interchemical Corp., 325 US 327, 65 USPQ 297 (1045). Case law holds that the mere substitution of an equivalent (something equal in value or meaning, as taught by analogous prior art) is not an act of invention; where equivalency is known to the prior art, the substitution of one equivalent for another is not patentable. See In re Ruff 118 USPQ 343 (CCPA 1958). The key to supporting any rejection under35 USC 103 is the clear articulation of the reason(s) why the claimed invention would have been obvious. The Supreme Court in KSR noted that the analysis supporting a rejection under 35 USC 103 should be made explicit. The Court quoting In re Kahn, 441 F.3d 977, 988, 78 USPQ2d 1329, 1336 (Fed. Cir. 2006), stated that "‘[R]ejections on obviousness cannot be sustained by mere conclusory statements; instead, there must be some articulated reasoning with some rational underpinning to support the legal conclusion of obviousness.’" KSR, 550 U.S. at 418, 82 USPQ2d at 1396. Exemplary rationales that may support a conclusion of obviousness include:
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(A) Combining prior art elements according to known methods to yield predictable results;
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(B) Simple substitution of one known element for another to obtain predictable results;
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(C) Use of known technique to improve similar devices (methods, or products) in the same way;
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(D) Applying a known technique to a known device (method, or product) ready for improvement to yield predictable results;
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(E) "Obvious to try" – choosing from a finite number of identified, predictable solutions, with a reasonable expectation of success;
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(F) Known work in one field of endeavor may prompt variations of it for use in either the same field or a different one based on design incentives or other market forces if the variations are predictable to one of ordinary skill in the art; (G) Some teaching, suggestion, or motivation in the prior art that would have led one of ordinary skill to modify the prior art reference or to combine prior art reference teachings to arrive at the claimed invention. MPEP 2141
22. Given the ethylene-alpha olefin copolymer elastomers of the core layer of the comprise Mw of 148,500; the elastomers of the outer layer(s) comprise melt index of about 8-9 g/10 min, which corresponds to Mw of about 66,200, and propylene/alpha olefin copolymers having Mw of 50,000, therefore, the ratio of Mwcore/Mwouter would be reasonably expected to be in the range of 7.5:1 to 1.5:1 as well (as to instant claims 1 and 14).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). MPEP 2112.01(I). Since PTO cannot conduct experiments the proof of burden is shifted to the applicants to establish an unobviousness difference, see In re Best, 562 F.2d 1252, 195 USPQ 430 (CCPA 1977). See MPEP § 2112.01.
23. All ranges in the composition of Thomas et al in view of German et al, Chang’012, Chang’089 and VERSIFY flyer are overlapping with the corresponding ranges of those as claimed in instant invention. It is well settled that where the prior art describes the components of a claimed compound or compositions in concentrations within or overlapping the claimed concentrations a prima facie case of obviousness is established. See In re Harris, 409 F.3d 1339, 1343, 74 USPQ2d 1951, 1953 (Fed. Cir 2005); In re Peterson, 315 F.3d 1325, 1329, 65 USPQ 2d 1379, 1382 (Fed. Cir. 1997); In re Woodruff, 919 F.2d 1575, 1578 16 USPQ2d 1934, 1936-37 (CCPA 1990); In re Malagari, 499 F.2d 1297, 1303, 182 USPQ 549, 553 (CCPA 1974).
24. Since the multilayered film/composition of Thomas et al in view of German et al, Chang’012, Chang’089 and VERSIFY flyer is substantially the same as that claimed in instant invention, i.e. comprises at least two layers (a core layer and at least one outer layer), the core layer comprising elastomeric ethylene-alpha olefin copolymers, including commercial product INFUSE, with the outer layer comprising a combination of propylene copolymers VERSIFY and LLDPE, and is cited as being stretched, therefore, the film of Thomas et al in view of German et al, Chang’012, Chang’089 and VERSIFY flyer will intrinsically and necessarily comprise, or would be reasonably expected to comprise the properties, including a hysteresis loss after stretching at 120% elongation, that are either the same as those claimed in instant invention, or having values in the ranges overlapping with those claimed in instant invention as well. 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). MPEP 2112.01(I). Since PTO cannot conduct experiments the proof of burden is shifted to the applicants to establish an unobviousness difference, see In re Best, 562 F.2d 1252, 195 USPQ 430 (CCPA 1977). See MPEP § 2112.01.
25. It is further noted that instant specification does not provide any evidence of criticality in using the elastomers in the core layer and the outer layer of the claimed film and fiber having molecular weight values in the ratio of about 7.5:1 to about 1.5:1 as claimed in instant invention. Thus, only one inventive example (Sample 1) and one Control example are presented in instant specification, with no citation of the molecular weights of said polymers and no citation of the ratio of molecular weight values of the core layer and the outer layer provided. The commercially available polymers were used for making both the core and the outer layers.
26. Claims 1, 22 are rejected under 35 U.S.C. 103 as being unpatentable over Thomas et al (US 2018/0133070) in view of German et al (US 2010/0310892), Chang et al (US 2017/0253012, Chang’012), Chang et al (US 7,355,089, Chang’089) and VERSIFY flyer, 2016, in further view of Davis et al (US 2019/0054720).
27. The discussion with respect to Thomas et al (US 2018/0133070) in view of German et al (US 2010/0310892), Chang et al (US 2017/0253012, Chang’012), Chang et al (US 7,355,089, Chang’089) and VERSIFY flyer, 2016, set forth in paragraphs 4-25 above, is incorporated here by reference.
28. Though Thomas et al does not explicitly recite the outer side of the outer layer being patterned,
Davis et al discloses multilayered elastomeric films having outer layer surface of said film being patterned or textured ([0001], [0014], Abstract).
29. Since elastomeric multilayered films are taught in the art to be textured or patterned, as shown by Davis et al, it would have been obvious to a one of ordinary skill in the art to combine the teachings of Davis et al and Thomas et al of in view German et al, Chang’012, Chang’089 and VERSIFY flyer, 2016 and to form the multi-layered film of Thomas et al of in view German et al, Chang’012, Chang’089 and VERSIFY flyer, 2016 having outer surface of the outer layer as patterned or textured as well, given such is desired depending on the end-use of the multilayered product. The key to supporting any rejection under 35 USC 103 is the clear articulation of the reason(s) why the claimed invention would have been obvious. The Supreme Court in KSR noted that the analysis supporting a rejection under 35 USC 103 should be made explicit. The Court quoting In re Kahn, 441 F.3d 977, 988, 78 USPQ2d 1329, 1336 (Fed. Cir. 2006), stated that "‘[R]ejections on obviousness cannot be sustained by mere conclusory statements; instead, there must be some articulated reasoning with some rational underpinning to support the legal conclusion of obviousness.’" KSR, 550 U.S. at 418, 82 USPQ2d at 1396. Exemplary rationales that may support a conclusion of obviousness include:
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(A) Combining prior art elements according to known methods to yield predictable results;
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(B) Simple substitution of one known element for another to obtain predictable results;
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(C) Use of known technique to improve similar devices (methods, or products) in the same way;
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(D) Applying a known technique to a known device (method, or product) ready for improvement to yield predictable results;
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(E) "Obvious to try" – choosing from a finite number of identified, predictable solutions, with a reasonable expectation of success;
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(F) Known work in one field of endeavor may prompt variations of it for use in either the same field or a different one based on design incentives or other market forces if the variations are predictable to one of ordinary skill in the art; (G) Some teaching, suggestion, or motivation in the prior art that would have led one of ordinary skill to modify the prior art reference or to combine prior art reference teachings to arrive at the claimed invention. MPEP 2141
30. Claims 1-3, 20 are rejected under 35 U.S.C. 103 as being unpatentable over Thomas et al (US 2018/0133070) in view of German et al (US 2010/0310892), Chang et al (US 2017/0253012, Chang’012), Chang et al (US 7,355,089, Chang’089) and VERSIFY flyer, 2016, in further view of Poon et al (US 2006/0199931) and Chen et al (WO 2019/061267).
It is noted that while the rejection is made over WO 2019/061267 for date purposes, in order to elucidate the examiner's position the corresponding US equivalent viz. US 2020/0362477 is relied upon. All citations to paragraph numbers, etc., below refer to US 2020/0362477.
31. The discussion with respect to Thomas et al (US 2018/0133070) in view of German et al (US 2010/0310892), Chang et al (US 2017/0253012, Chang’012), Chang et al (US 7,355,089, Chang’089) and VERSIFY flyer, 2016, set forth in paragraphs 4-25 above, is incorporated here by reference.
32. Though Thomas et al recites the two-layered laminate comprising a core layer and a skin layer as a film, and not as a fiber,
1) Poon et al discloses a film and further a bicomponent core/sheath or side-by-side fiber ([0237] comprising ethylene-alpha olefin copolymers (Abstract), wherein the exemplified ethylene-alpha olefin copolymers are the same as those exemplified by Chang’089 (see Examples 11 and 16 in Table 3 of Chang’089 and Examples 11 and 16 in Table 3 of Poon et al).
2) Chen et al discloses a bicomponent core/sheath fiber used for making absorbent hygiene articles comprising ethylene/alpha olefin copolymer core ([0014]) and propylene-based elastomer sheath in combination with polyethylene ([0026], [0027], [0053]).
33. Thus, both Poon et al and Chen et al teach that such ethylene-alpha olefin copolymers and propylene copolymer-based elastomers can be used for making not only multilayered film, but further fiber, including bicomponent core/sheath fiber as well.
34. Therefore, based on the combined teachings of Thomas et al, Poon et al and Chen et al, it would have been obvious to a one of ordinary skill in the art to use, or obvious to try to use the multi-layered structure of Thomas et al in view of German et al, Chang’012, Chang’089 and VERSIFY flyer, to form not only film, but bicomponent fiber as well, since it would have been obvious to choose material based on its suitability. Case law holds that the selection of a known material based on its suitability for its intended use supports prima facie obviousness. Sinclair & Carroll Co vs. Interchemical Corp., 325 US 327, 65 USPQ 297 (1045).
35. Claims 1-3, 20, 23-24 are rejected under 35 U.S.C. 103 as being unpatentable over Thomas et al (US 2018/0133070) in view of German et al (US 2010/0310892), Chang et al (US 2017/0253012, Chang’012), Chang et al (US 7,355,089, Chang’089), VERSIFY flyer, 2016, Poon et al (US 2006/0199931), Chen et al (WO 2019/061267) in further view of Billarant et al (US 6,541,403).
It is noted that while the rejection is made over WO 2019/061267 for date purposes, in order to elucidate the examiner's position the corresponding US equivalent viz. US 2020/0362477 is relied upon. All citations to paragraph numbers, etc., below refer to US 2020/0362477.
36. The discussion with respect to Thomas et al (US 2018/0133070) in view of German et al (US 2010/0310892), Chang et al (US 2017/0253012, Chang’012), Chang et al (US 7,355,089, Chang’089), VERSIFY flyer, 2016, Poon et al (US 2006/0199931), Chen et al (WO 2019/061267) set forth in paragraphs 30-34 above, is incorporated here by reference.
37. Thomas et al in view of German et al, Chang’012, Chang’089, VERSIFY flyer, 2016, Poon et al and Chen et al do not explicitly recite the bicomponent fiber being wound and further stretched.
38. However, Billarant et al discloses bicomponent elastomeric fiber, wherein Billarant et al explicitly teaches that after formation, the fiber is wound and further stretched (col. 2, lines 44-64).
39. Since the bicomponent fiber is taught in the art as being wound after formation and further being stretched, as shown by Billarant et al, therefore, it would have been obvious to a one of ordinary skill in the art to combine the teachings of Billarant et al and Thomas et al in view of German et al, Chang’012, Chang’089, VERSIFY flyer, 2016, Poon et al and Chen et al, and wind and further stretch the bicomponent fiber of Thomas et al in view of German et al, Chang’012, Chang’089, VERSIFY flyer, 2016, Poon et al and Chen et al after its formation, since such steps of forming the fiber are taught in the art, as shown by Billarant et al as well, thereby arriving at the present invention. The key to supporting any rejection under 35 USC 103 is the clear articulation of the reason(s) why the claimed invention would have been obvious. The Supreme Court in KSR noted that the analysis supporting a rejection under 35 USC 103 should be made explicit. The Court quoting In re Kahn, 441 F.3d 977, 988, 78 USPQ2d 1329, 1336 (Fed. Cir. 2006), stated that "‘[R]ejections on obviousness cannot be sustained by mere conclusory statements; instead, there must be some articulated reasoning with some rational underpinning to support the legal conclusion of obviousness.’" KSR, 550 U.S. at 418, 82 USPQ2d at 1396. Exemplary rationales that may support a conclusion of obviousness include:
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(A) Combining prior art elements according to known methods to yield predictable results;
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(B) Simple substitution of one known element for another to obtain predictable results;
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(C) Use of known technique to improve similar devices (methods, or products) in the same way;
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(D) Applying a known technique to a known device (method, or product) ready for improvement to yield predictable results;
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(E) "Obvious to try" – choosing from a finite number of identified, predictable solutions, with a reasonable expectation of success;
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(F) Known work in one field of endeavor may prompt variations of it for use in either the same field or a different one based on design incentives or other market forces if the variations are predictable to one of ordinary skill in the art; (G) Some teaching, suggestion, or motivation in the prior art that would have led one of ordinary skill to modify the prior art reference or to combine prior art reference teachings to arrive at the claimed invention. MPEP 2141
Response to Arguments
40. Applicant's arguments filed on June 15, 2026 have been fully considered but they are moot in light of new grounds of rejections and discussion set forth above.
41. In addition, it is noted that:
1) The above rejections are based on the combination of references. One cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., Inc., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
2) Though Thomas et al does not explicitly teach the amount of LLDPE, the secondary reference of German et al was applied for the teachings of that.
3) German et al teaches the blend X comprising LLDPE used in multilayer films ([0038]), wherein given “A” is a conventional film layer and “B” is a film comprising said
LLDPE+ propylene/alpha olefin copolymer blend (blend X above) ([0044]), the multilayer films are having the structure A/B or B/A/B’ ([0047]), i.e. the film comprising said blend X can be used as either one or both outer layers in the multilayered films.
4) Thus, German et al explicitly teaches that i) the blend X comprising LLDPE can be used not only as the core layer, but further as outer layer(s) in the multi-layered films such as in the structures B/A/B’ ([0047], claim 22), and ii) the outer layers in the multi-layered structures constitute 10-30%wt of the total film ([0012]), therefore, based on the teachings of German et al, it would have been obvious to a one of ordinary skill in the art to choose and use the blend X as at least one outer layer B in the multi-layered structures used in amount of 10-30%wt based on the total multi-layered structure as well, since it would be obvious to choose material based on its suitability. Case law holds that the selection of a known material based on its suitability for its intended use supports prima facie obviousness. Sinclair & Carroll Co vs. Interchemical Corp., 325 US 327, 65 USPQ 297 (1045).
5) Though German et al recites that the B layer is preferably used as the core layer, this does not negate a finding of obviousness under 35 USC 103 since a preferred embodiment such as an example is not controlling. Rather, all disclosures “including unpreferred embodiments” must be considered. In re Lamberti 192 USPQ 278, 280 (CCPA 1976) citing In re Mills 176 USPQ 196 (CCPA 1972).
6) Since in the multi-layered structure of Thomas et al in view of German et al,
i) the core layer constitutes 70-98%wt of the total film ([0068] of Thomas et al), and thereby the outer/skin layer(s) will intrinsically and necessarily comprise 2-30%wt of the total film, and
ii) the skin layer(s), comprising the blend X, comprise 50%wt of the LLDPE, therefore, the amount of LLDPE based on the total weight of the multilayered structure of Thomas et al in view of German et al will be 2%x(0.50)=1%wt to 30x(0.50)=15%wt, i.e. in the range of 1-15%wt as well (as to instant claims 1, 17). 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). MPEP 2112.01(I). Since PTO cannot conduct experiments the proof of burden is shifted to the applicants to establish an unobviousness difference, see In re Best, 562 F.2d 1252, 195 USPQ 430 (CCPA 1977). See MPEP § 2112.01.
7) In response to Applicant’s argument that there is no teaching, suggestion, or motivation to combine the references, the examiner recognizes that obviousness may be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so found either in the references themselves or in the knowledge generally available to one of ordinary skill in the art. See In re Fine, 837 F.2d 1071, 5 USPQ2d 1596 (Fed. Cir. 1988), In re Jones, 958 F.2d 347, 21 USPQ2d 1941 (Fed. Cir. 1992), and KSR International Co. v. Teleflex, Inc., 550 U.S. 398, 82 USPQ2d 1385 (2007).
8) In response to Applicant’s argument that the examiner’s conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant’s disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to IRINA KRYLOVA whose telephone number is (571)270-7349. The examiner can normally be reached 9am-5pm EST M-F.
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/IRINA KRYLOVA/Primary Examiner, Art Unit 1764
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