DETAILED OFFICIAL 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 .
Examiner Note
It is noted that all references hereinafter to Applicant’s specification (“spec”) are to the published application US 2023/0166895, unless stated otherwise. Further, any italicized text utilized hereinafter is to be interpreted as emphasis placed thereupon.
Response to Amendment
The Amendment filed 08 June 2026 in response to the Non-Final Rejection dated 09 March 2026 (hereinafter “NFOA”) has been entered. Claims 1, 16, and 28 have been amended – claims 1-4, 6-9, 11-13, 15-16, 18-20, 22-23, and 28 remain pending, claims 19-20 and 22-23 remain withdrawn, and claims 1-4, 6-9, 11-13, 15-16, 18, and 28 are under consideration on the merits.
The amendment to claim 16 has overcome the rejection of claim 16 under 35 U.S.C. 112(b) [NFOA, ¶9-11]. As such, the 112(b) rejection has been withdrawn, and the Examiner thanks Applicant for correction of the issues.
The amendments to the claims have overcome each and every rejection under 35 U.S.C. 103 previously set forth in the NFOA [¶15-50]. As such, the 103 rejections have been withdrawn. However, new grounds of rejection are set forth herein, necessitated by the amendments to the claims and made in view of newly cited prior art (indicated below) identified as a result of additional search/consideration completed by the undersigned Examiner.
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 1-2, 6-9, 11-12, 15-16, and 28 are rejected under 35 U.S.C. 103 as being unpatentable over Timmerman et al. (WO 2018/222042; “Timmerman”) (previously cited), in view of Cleveland et al. (US 2007/0184220; “Cleveland”) (previously cited) and Meyer et al. (US 2019/0144664; “Meyer”) (newly cited).
Henderson et al. (US 2016/0186013; “Henderson”) (newly cited) is relied upon as an evidentiary reference in support of the rejection.
Skupin et al. (US 2013/0139983; “Skupin”) (previously cited) is relied upon as an evidentiary reference in support of the rejection of claim 16.
Regarding claim 1, Timmerman discloses a biodegradable food packaging unit in the form of a container defining an outer surface and an inner surface, the latter defining, at least in-part, a compartment for holding the food product [Abstract; p. 1 ln. 1-10; p. 6 ln. 7-15; p. 8 ln. 12-13; Figs. 2A-2B, 4A-4B]. The container is formed from a moulded fluff pulp material inclusive of a binder (to bind the fluff pulp) that is a biodegradable aliphatic polyester, suitably PBS [p. 1 ln. 13–p. 2 ln. 36; pp. 4-7] (container comprises a moulded fiber matrix with an amount of biodegradable aliphatic polyester, and wherein the moulded fiber matrix comprises a fluff pulp material).
The PBS binder is added to the fluff pulp material in an amount of 0.75-10 wt.%, preferably 1-8 wt.% [p. 4 ln. 3-13]. Further, Timmerman teaches that conventional polymer films, in combination with coating(s) of PBS and/or other biodegradable aliphatic polyesters, may be provided on the surface(s) (including the inner surface intended for food-contact) of the container in order to impart oxygen and/or grease barrier properties thereto [p. 4 ln. 19-22; p. 5 ln. 21-27; p. 5 ln. 34–p. 6 ln. 8].
With respect to the differences relative to the biodegradable packaging unit (hereinafter “unit”) defined by claim 1, Timmerman is silent regarding the inner surface comprising the biodegradable multi-layer according to claim 1 (layers and layer sequence thereof), and regarding the polyvinyl alcohol of the functional layer of said multi-layer (according to claim 1) comprising an amorphous vinyl alcohol polymer.
Cleveland discloses a biodegradable laminate suitable for use in producing food packaging [Abstract; 0002, 0004, 0013, 0045]. The laminate comprises a paper substrate which is laminated to a multilayer polymeric film which contributes to the oxygen and/or water vapor barrier properties of the laminate, wherein the multilayer polymeric film and the entirety of the laminate are biodegradable [0013-0015]. Cleveland teaches that the multilayer polymeric film may comprise (in the following stated order) layer F, layer G, layer H, layer I, and layer J [Fig. 2; 0041]. Layers F and J are moisture resistant layers which may be formed from a polyhydroxyalkanoate (PHA) or other degradable polyesters [0041]. Layers G and I are formed from a biodegradable tie material or alternatively polylactic acid (PLA) [0041-0042, 0055], and layer H is formed from an oxygen barrier material which is suitably polyvinyl alcohol (PVOH) [0041]. Thus, the multilayer polymeric film of Cleveland may be represented as: PHA/tie/PVOH/tie/PHA, wherein tie is PLA or another biodegradable tie material.
Cleveland discloses that layer H, formed from PVOH and functioning as the primary oxygen barrier material of the multilayer polymeric film, may be formed as an aqueous coating or via extrusion coating [0041].
Meyer is directed to biodegradable packaging films/materials, including those for use in forming containers [Abstract; 0003, 0015, 0019, 0043, 0046]. Meyer teaches that “G-Polymer” (Nippon Gohsei), also known as Nichigo-G-Polymer, is an amorphous PVOH resin and is suitable for use as an interlayer material in biodegradable multilayer films – including those which are based on paper – to impart very high oxygen barrier properties thereto [0046-0050]. The amorphous PVOH “Nichigo-G-Polymer” is fully biodegradable; dissolves in water; is non-toxic; is processable via extrusion, including formation of multilayer articles; and exhibits a larger difference between melting point and decomposition temperature relative to said difference exhibited by PVOH, as evidenced by Henderson [0061, 0065-0067, 0069, 0074].
Timmerman, Cleveland, and Meyer each constitute prior art which is directly analogous to the claimed invention – biodegradable packaging materials/containers. In view of the combined teachings of the foregoing prior art, it would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to have modified the container of Timmerman by (1) having utilized/provided the multilayer polymeric film of Cleveland (set forth/cited above) on the inner surface of the container in order to impart thereto oxygen and/or water-vapor barrier properties (as desired/recognized by Timmerman) while maintaining the overall biodegradability of the container (as desired/recognized by Timmerman and Cleveland); and by (2) having utilized an amorphous PVOH, such as Nichigo-G-Polymer, as the PVOH polymer constituting layer H of said multilayer polymeric film, in order to impart very high oxygen barrier properties to the container, and/or because Nichigo-G-Polymer would have been readily recognized as an extrudable, biodegradable PVOH polymer suitable for use as the primary oxygen barrier material (i.e. PVOH layer H) of said film (MPEP 2144.07).
In accordance with the foregoing modifications, the container of Timmerman (hereinafter “modified Timmerman”) would have included the multilayer polymeric film (F/G/H/I/J, i.e. PHA/tie/PVOH/tie/PHA wherein tie is PLA or another biodegradable tie material) laminated to the inner surface thereof, wherein the PVOH forming layer H would have been “Nichigo-G-Polymer” (amorphous PVOH).
The multilayer polymeric film of the container of modified Timmerman reads on the biodegradable multi-layer defined by claim 1 – layer F (PHA) reads on inner cover layer; layer G (PLA or biodeg tie) reads on first intermediate layer; layer H (Nichigo-G-Polymer) reads on functional layer comprising polyvinyl alcohol, wherein the polyvinyl alcohol comprises an amorphous vinyl alcohol polymer; layer I (PLA or biodeg tie) reads on second intermediate layer; and layer J (PHA) reads on outer cover layer. As such, the container of modified Timmerman reads on the unit defined by each and every limitation of claim 1.
Regarding claim 2, as set forth above, the moulded fluff pulp material includes PBS in an amount of 0.75-10 wt.%, preferably 1-8 wt.%, each of which are within the claimed biodegradable aliphatic polyester range (nominally) 0.1 to 12 wt.% of the unit. Given that the amount range of PBS disclosed by Timmerman is within/overlaps the claimed range nominally, there is a reasonable expectation that the amount range of PBS would have overlapped and/or fell within, and therefore renders obvious, the amount range of 0.1 to 12 wt.% of the unit as defined by claim 2. See MPEP 2112(IV), (V); MPEP 2112.01(I) and (II); MPEP 2145 and 2145(I).
Regarding claim 6, the rejection of claim 1 above reads on the unit defined by claim 6. Layer G and layer I, each formed from PLA, read on the claimed biodegradable aliphatic polyester of the one or more intermediate layers of the unit defined by claim 6.
Regarding claims 7-8, in view of the rejection of claim 1 above, Timmerman discloses that the container (biodegradable food packaging unit) may further include a lid or cover for sealing the compartment [p. 7 ln. 25–p. 8 ln. 13]. Modified Timmerman is silent regarding the lid or cover comprising the claimed biodegradable multi-layer.
However, in view of the disclosure/teachings of Cleveland set forth/cited above in the rejection of claim 1, it would have been prima facie obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to have utilized the laminate of Cleveland, or the multilayer polymeric film of Cleveland, to form the lid or cover of the container of modified Timmerman in order to impart-, and/or to achieve the predictable result of increased-, oxygen and/or water vapor barrier properties to/of the lid or cover.
As a result of the foregoing modification, the lid or cover of the container of modified Timmerman would have been formed from the multilayer polymeric film (or laminate including said film and a paper layer) of Cleveland set forth above, said film comprising: F/G/H/I/J, i.e. PHA/tie/PVOH/tie/PHA wherein tie is PLA or another biodegradable tie material). The aforesaid lid or cover of modified Timmerman reads on the lid or cover of the unit defined claim 7. The lid or cover formed from the laminate inclusive of the multilayer polymeric film and paper layer reads on the unit defined by claim 8.
Regarding claim 9, in view of the rejection of claim 8 above, it is noted that the mere duplication of parts has no patentable significance unless a new and unexpected result is produced (MPEP 2144.04(VI)(B)). Thus, the presence of additional, i.e. “second” paper layer as recited in claim 9 would have been obvious over the biodegradable food packaging unit of modified Timmerman.
Regarding claim 11, in view of the rejection of claim 1 above, Cleveland teaches that to promote adhesion between the PHA layer (F) and the paper-based substrate (e.g. paperboard) upon which the multilayer polymeric film is provided, a primer layer formed from PVOH is first coated on the substrate [0016-0017, 0039, 0057-0058]. Additionally/alternatively, Cleveland teaches that the multilayer polymeric film may be applied in combination with other multilayer films [0044-0045], and also teaches the use/inclusion of two PVOH layers in the multilayer films, providing for increased oxygen barrier performance [0047-0048; Figs. 5A-5C].
In view of the foregoing, it would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to have modified the container of modified Timmerman (set forth above in rejection of claim 1) by having coated a primer layer on the inner surface of the container prior to provision of the multilayer polymeric film (F/G/H/I/J) thereon, and/or to having utilized additional PVOH layers within the multilayer polymeric film, as taught by Cleveland in order to have increased the adhesion between the multilayer polymeric film (PHA layer, F) and the inner surface of the container formed from the moulded fluff pulp material or to have achieved the predictable result of increased oxygen barrier performance imparted to/exhibited by the container via the multilayer polymeric film.
In accordance with either of the foregoing modifications, the multilayer polymeric film (biodegradable multi-layer) of modified Timmerman would have included at least one additional PVOH layer relative to layer H (Nichigo-G-Polymer) (functional layer comprising PVOH, wherein the PVOH comprises an amorphous vinyl alcohol polymer), said additional layer thereby reading on the additional functional layer defined by the unit of claim 11 (wherein the biodegradable multi-layer comprises at least two functional layers).
Regarding claim 12, in view of the rejection of claim 11 above, at least the first modification set forth in ¶26 reads on the unit defined by claim 11. That is, the container of modified Timmerman would have comprised the following layer sequence: moulded fluff pulp substrate/PVOH primer/PHA/tie/amorphous PVOH/tie/PHA, of which includes a PHA layer F (and additional tie layer based on PLA) interposed between the PVOH primer layer (additional functional layer) and the amorphous PVOH layer H (functional layer comprising PVOH, wherein the PVOH comprises an amorphous vinyl alcohol polymer).
Regarding claim 15, the rejection of claim 12 above is incorporated herein by reference (not repeated for sake of brevity), wherein the container of modified Timmerman in accordance with at least the aforesaid first modification reads on the unit defined by claim 15 – layer H of the multilayer polymeric film: PVOH primer/PHA/tie/amorphous PVOH/tie/PHA is positioned asymmetrically.
Regarding claim 16, in view of the rejection of claim 1 above, Cleveland teaches that calcium carbonate (alternatively, kaolin and/or talc) is suitably added to any of the layers of the multilayer polymeric film, as a cost savings measure, and to provide an increase in the degradation rate by reducing the amount of biodegradable resin utilized [0018, 0053, 0058]. As such, it would have been prima facie obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to have added calcium carbonate to any one or more of the layers of the multilayer polymeric film of the container of modified Timmerman, thereby resulting in the presence of calcium carbonate in film.
Calcium carbonate, talc, and kaolin are pigments (and interchangeably recognized as fillers) [Skupin, 0017, 0083], i.e. compounds which impart color to a substance/material. Calcium carbonate is a naturally occurring inorganic compound, and as such readily recognized as biodegradable or biodegradable to at least some degree under one or more conditions. Thus, the presence of calcium carbonate in the multilayer polymeric film of the container of modified Timmerman reads on unit defined by claim 16 (wherein the biodegradable multi-layer comprises a colouring agent that is biodegradable). It is noted that claim 16 does not define the degree of, or one or more standards for determining the requisite degree of, biodegradability exhibited by the claimed colouring agent such that the broadest reasonable interpretation thereof is any degree of biodegradability.
Regarding claim 28, the rejection of claim 1 and rejection of claim 2 above (¶10-19) are incorporated herein by reference (not repeated for sake of brevity) and, taken in combination, read on the unit defined by claim 28. That is, the container (biodegradable food packaging unit) of modified Timmerman established thereby reads on each and every limitation of the unit defined by claim 28.
Claims 3-4 are rejected under 35 U.S.C. 103 as being unpatentable over Timmerman in view of Cleveland and Meyer, as evidenced by Henderson, as applied to claim 1 above, further in view of Galema et al. (WO 2018/021907; “Galema”) (previously cited).
Regarding claims 3-4, in view of the rejection of claim 1 under 35 U.S.C. 103 set forth above, Timmerman teaches that the biodegradable aliphatic polyester binder added to the fluff pulp material in order to bind said fluff pulp upon moulding/heating the fluff pulp material may take the form of fibers [p. 4 ln. 3-12, 14-16]. Specifically, Timmerman names PBS and PLA as suitable biodegradable aliphatic polyester binders, but only refers to the binder in fiber form as “PLA fibres” [p. 4 ln. 16].
In view thereof, Timmerman reasonably teaches that the biodegradable aliphatic polyester binder may be in fiber form, and can be formed from either or both of PLA and PBS. As such, it would have been prima facie obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to have utilized PBS in the form of fibers as the biodegradable aliphatic polyester binder included in the fluff pulp material which is moulded into the container. Additionally, see MPEP 2144.06(I) and (II), MPEP 2144.07.
Nevertheless, additionally/alternatively, Galema teaches that both PLA and PBS are biodegradable aliphatic polyesters which are suitable for inclusion in pulp (fibrous) material – which is moulded into food packaging units [Abstract; Figs. 2-4; p. 1; p. 4 ln. 18–p. 5 ln. 17; p. 7 ln. 23-26] – in filamentary form, i.e. fiber form [p. 3 ln. 30–p. 4 ln. 11].
In view of the combined teachings of the foregoing prior art, it would have been prima facie obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to have utilized PBS in the form of fibers as the biodegradable aliphatic polyester binder included in the fluff pulp material which is moulded into the container.
In accordance with the foregoing, the PBS binder included in the moulded fluff pulp material of the container of modified Timmerman would have been in fiber form (i.e. added to the fluff pulp material in fiber form prior to moulding/heat consolidation). The container of modified Timmerman reads on each unit defined by claims 3-4 (wherein the biodegradable aliphatic polyester in the moulded fiber matrix comprises fibers, wherein the fibers comprise PBS).
Claims 13 and 18 are rejected under 35 U.S.C. 103 as being unpatentable over Timmerman in view of Cleveland and Meyer, as evidenced by Henderson, as applied to claim 1 above, further in view of Cabell et al. (WO 2009/136783; “Cabell”) (previously cited). Skupin is relied upon as an evidentiary reference in support of the rejection of claim 18.
Regarding claims 13 and 18, in view of the rejection of claim 1 under 35 U.S.C. 103 set forth above, it is noted that Timmerman, taken in view of the teachings of Cleveland and Meyer (modified Timmerman), is silent regarding the thickness of the multilayer polymeric film of the container exhibiting a thickness of 20-150 µm (claim 13), and regarding the moulded fluff pulp material (inclusive of PBS binder) comprising calcium carbonate (claim 18).
The disclosure and teachings of Cabell previously set forth/cited in the Final Rejection dated 29 January 2024 (¶8, ¶12-13, ¶26, and ¶28) are incorporated herein by reference.
Cabell teaches that the biodegradable, food-compatible polymeric foil (i.e. film) which covers the inner surface of the container (food packaging unit) suitably exhibits a thickness of 15-200 µm [p. 7 ln. 1-3; p. 5 ln. 26-29], of which is “very thin” given that the moulded fiber layer (substrate) exhibits sufficient dimensional stability [p. 5 ln. 26-29] (which allows for use of the tray in food packaging applications).
Cabell also teaches that about 1-12 wt.% chalk (i.e. calcium carbonate [Skupin, 0083]) may be added to the fibrous pulp, in order to impart dimensional stability thereto and to prevent shrinking during drying [p. 6 ln. 30-32].
Given that Timmerman discloses that the moulded fluff pulp material (including PBS binder) exhibits sufficient strength and stability for its intended use as a food packaging unit, through inclusion of one or more additives (including binder) in the fluff pulp and the moulding and heat consolidation process [p. 2 ln. 12-16; p. 4 ln. 1-6], it would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to have modified the container of modified Timmerman (set forth above in rejection of claim 1) by having formed the multilayer polymeric film to a thickness of 15-200 µm; and by having added chalk (calcium carbonate) to the fluff pulp material in order to have increased the dimensional stability of the moulded fluff pulp material/container and reduced shrinking thereof during/after the moulding process.
The film thickness would have been recognized as suitable for, i.e. “thick enough” for provision of the requisite/predetermined barrier properties to the container for food packaging applications, while remaining “thin enough” to avoid unnecessary contribution to the strength/dimensional stability of the container and the higher costs associated therewith (i.e. higher costs associated with utilizing a greater/excess amount of film material).
In accordance with the aforesaid modifications, the multilayer polymeric film of the container of modified Timmerman would have exhibited a thickness of 15-200 µm, and the moulded fluff pulp material (in addition to PBS binder) would have included calcium carbonate. The thickness range encompasses, and thereby renders prima facie obvious the claimed range of 20 to 150 µm (MPEP 2144.05(I)) (claim 13), and the presence of calcium carbonate in the moulded fluff pulp material reads on the unit defined by claim 18 (wherein the matrix comprises an amount of calcium carbonate).
Response to Arguments
Applicant’s arguments presented on pp. 7-10 of the Remarks filed 08 June 2026 have been considered but are moot in view of the new grounds of rejection – necessitated by the amendments to the claims – set forth above.
Further, in an effort to facilitate compact/expedient prosecution, and to the extent that any of Applicant’s arguments may be [re]applied to the new grounds of rejection set forth above, the Examiner respectfully notes that one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references – the test for obviousness is what the combined teachings of the references would have suggested to [a PHOSITA] (see MPEP 2145(IV)).
Pertinent Prior Art
The following constitutes a list of prior art which are not relied upon herein, but are considered pertinent to the claimed invention and/or written description thereof. The prior art are purposely made of record hereinafter to facilitate compact/expedient prosecution, and consideration thereof is respectfully suggested.
US 2020/0140187 to Vidal et al. – teaches use of highly amorphous polyvinyl alcohol, e.g. Michem® Flex Barrier 3510, as an oxygen barrier layer in compostable, multilayer packaging materials [Abstract; 0062, 0111-0112, 0116]
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.
Any inquiry concerning this communication or earlier communications from the Examiner should be directed to Michael C. Romanowski whose telephone number is (571)270-1387. The Examiner can normally be reached M-F, 09:30-17:30.
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If attempts to reach the Examiner by telephone are unsuccessful, the Examiner’s supervisor, Aaron Austin can be reached at (571) 272-8935. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/MICHAEL C. ROMANOWSKI/Primary Examiner, Art Unit 1782
