DETAILED ACTION
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 09/03/2026 has been entered.
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1-3, 5, 7-10, 14-16, 19 and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Priscal et al. (US 2017/0158400 A1 cited in IDS) in view of Heukelbach et al. (US 2006/0020084 A1 cited in IDS), Sumida et al. (JP 2008179687 A cited in IDS) and Demirors et al. (US 2016/0177073 A1 cited in IDS), taken in view of evidence by TOPAS® (TOPAS® cyclic olefin copolymer, cited in the IDS of 01/20/2023) and Fantinel et al. (US 2011/0212283 A1 cited in IDS). It is noted that the disclosures of Sumida et al. are based on a machine translation of the reference which was included in the action mailed 09/28/2024.
Regarding claims 1, 7, 8, 10 and 14-16, Priscal et al. disclose a package (packaged product) comprising a base component (multi-layer polymer film) and a lidding component (see Abstract and paragraph 0019). The base component sealed to the lidding component forms a cavity for receiving one or more products (see Abstract, Figure 2 and paragraph 0021).
The base component (multi-layer polymer film) can be thermoformed (see paragraphs 0020, 0021). That is, the base component is a thermoformed web made from the thermoformable multilayer film. The total thickness of the base component is about 12.7 to 508 microns (see paragraph 0054). Given that the base component is thermoformed, the cavities are thermoformed cavities. Given that the package is a blister package, which is well known to be rupturable, it is clear the lidding layer is a rupturable layer that can be opened by pressure on the opposite side of the packaged product (see paragraphs 0003, 0019, 0021).
The base component (multi-layer polymer film) comprises a first exterior layer 101 (first outermost layer), a first interior layer 102 (core layer), a second interior layer 104 (core layer) and a second exterior layer 105 (second outermost layer) (see Figure 3 and paragraph 0030). The first exterior layer and the second exterior layer each includes at least 50 wt% of cyclic olefin copolymer, wherein the cyclic olefin copolymer has a glass transition temperature of about 50 °C to about 178 °C (see paragraphs 0030, 0031, 0041). While Priscal et al. do not disclose glass transition temperature measured by differential scanning calorimetry, given the absence of criticality of differential scanning calorimetry, Priscal et al. meets present claim. A specific example of cyclic olefin copolymer included TOPAS® family of resins (see paragraph 0031). The cyclic olefin copolymer is a copolymer of norbornene and ethylene (see paragraph 0033). As evidenced by TOPAS®, TOPAS® cyclic-olefin copolymer have melt flow rate of 0.9 to 11.0 g/10 minutes at 230 °C and 2.16 kg load (see page 7, Table 3, Physical Properties of TOPAS). The first interior layer and the second interior layer each comprise high density polyethylene (HDPE) (see paragraphs 0030, 0041).
Priscal et al. do not disclose the first exterior layer and the second exterior layer comprises polyethylene. Priscal et al. do not disclose the first exterior layer and the second exterior layer comprises a functionalized polymer and a mineral filler. Priscal et al. do not disclose the first interior layer and the second interior layer comprises a polymer blend of HDPE and LDPE as presently claimed.
Heukelbach et al. disclose a thermoformable film comprising 5 to 100 wt% of COC with glass transition temperature in range of 65 to 200 °C that can be used in combination with polyethylenes (see Abstract and paragraph 0028). Accordingly, the amount of polyethylene can be 0 to 95 wt%. Heukelbach et al. disclose polyethylene includes Luflexen 18PFAX (see paragraph 0040). As evidenced by Fantinel et al., Luflexen 18PFAX has a melt flow rate of 1 g/10 min (2.16 kg), 2.5 g/10 min (5 kg) and 5.7 g/10 min (10 kg) (page 19, paragraph 0216 and Table 1). Given melt flow of “about” 2 g/10 min includes values slightly and below 2 g/10 min, Luflexen 18PFAX (polyethylene) meets melt flow as presently claimed. Further, the melt flow of 2.5 g/10 min and 5.7 g/10 min overlap with melt flow of polyethylene as presently claimed. The thermoformable film has a high heat distortion temperature and a high water vapor barrier (see paragraph 0001).
In light of motivation for using 0 to 95 wt% of polyolefin such as Luflexen 18PFAX disclosed by Heukelbach et al. as described above, it therefore would have been obvious to one of the ordinary skill in the art before the effective filing date of the claimed invention to use 0 to 95 wt% of polyolefin such as Luflexen 18PFAX in both the first exterior layer (first outermost layer) and the second exterior (second outermost layer) each comprising cyclic-olefin copolymer of Priscal et al. in order to provide a high heat distortion temperature and a high water vapor barrier, and thereby arrive at the claimed invention.
Priscal et al. disclose at least 50 wt% of cyclic olefin copolymer as noted above. Heukelbach et al. disclose 0 to 95 wt% of polyethylene as noted above. Accordingly, Priscal et al. in view of Heukelbach et al. disclose 50 to 100 wt% of cyclic olefin copolymer and 0 to 50 wt% of polyethylene.
Priscal et al. in view of Heukelbach et al. do not disclose the first exterior layer and the second exterior layer comprises a functionalized polymer and a mineral filler. Priscal et al. in view of Heukelbach et al. do not disclose the first interior layer and the second interior layer comprises a polymer blend of HDPE and LDPE as presently claimed.
Sumida et al. disclose a resin composition comprising a cyclic olefin resin, an olefin-based resin and a filler (see Abstract and page 6, paragraph 8). The olefin-based resin has a melt flow rate of 0.1 to 20 g/10 minutes in order to improve appearance of molded article (see page 5, paragraph 1). The olefin-based resin can be maleic grafted polypropylene, i.e. functionalized polymer (see page 4, paragraph 7). The olefin-based resin is present in amount of 1 to 70 wt% (see page 5, paragraph 4). The olefin-based resin improves moldability, flexibility, elongation at break and impact strength (see page 5, paragraph 3). The filler such as talc (i.e. mineral filler) is present in amount of 0.01 to 100 parts by weight with respect to 100 parts by weight of cyclic-olefin resin and olefin-based resin (see page 6, paragraph 9). That is, the amount of filler is 0.01 to 50 wt%. Fillers are well known to provide reinforcement properties.
In light of motivation for using 1 to 70 wt% of functionalized polymer having a melt flow rate of 0.1 to 20 g/10 minutes and 0.01 to 50 wt% of mineral filler disclosed by Sumida et al. as described above, it therefore would have been obvious to one of the ordinary skill in the art before the effective filing date of the claimed invention to use 1 to 70 wt% of functionalized polymer having a melt flow rate of 0.1 to 20 g/10 minutes and 0.01 to 50 wt% of mineral filler of Sumida et al. in both the first exterior layer (first outermost layer) and the second exterior (second outermost layer) each comprising cyclic-olefin copolymer of Priscal et al. in view of Heukelbach et al. in order to improve appearance of molded article, moldability, flexibility, elongation at break and impact strength as well as reinforcement properties, and thereby arrive at the claimed invention.
Priscal et al. in view of Heukelbach et al. and Sumida et al. do not disclose the first interior layer and the second interior layer comprises a polymer blend of HDPE and LDPE as presently claimed.
Demirors et al. disclose a polymer blend comprising at least about 50 wt% of HDPE having melt index of < 4 g/10 min and about 1 to about 20 wt% of LDPE having melt index of about 0.1 to about 10 g/10 min (see Abstract). The polymer blend has improved optical performance such as reduced haze as well as lower tear strength (see paragraphs 0003 and 0023).
In light of motivation for using a polymer blend comprising at least about 50 wt% of HDPE having melt index of < 4 g/10 min and about 1 to about 20 wt% of LDPE having melt index of about 0.1 to about 10 g/10 min disclosed by Demirors et al. as described above, it therefore would have been obvious to one of the ordinary skill in the art before the effective filing date of the claimed invention to use a polymer blend comprising at least about 50 wt% of HDPE having melt index of < 4 g/10 min and about 1 to about 20 wt% of LDPE having melt index of about 0.1 to about 10 g/10 min of Demirors et al. instead of HDPE in both the first interior layer (core layer) and the second interior layer (core layer) of Priscal et al. in view of Heukelbach et al. and Sumida et al. in order to provide improved optical performance such as reduced haze as well as lower tear strength, and thereby arrive at the claimed invention.
Regarding claim 2, Priscal et al. in view of Heukelbach et al., Sumida et al. and Demirors et al. disclose the multi-layer polymer film as presently claimed. Further, Priscal et al. disclose the first interior layer (core layer) and the second interior layer (core layer) each have thickness of at least 20% or more of the total thickness of the multilayer polymer film (see paragraph 0042). Given that the first interior layer (core layer) and the second interior layer (core layer) each have a thickness of 20 to 99 %, the remaining layers including the first exterior layer (first outermost layer) and the second exterior layer (second outermost layer) have thickness 1 to 80% of the total thickness of the multilayer polymer film. Given that the first interior layer (core layer) and the second interior layer (core layer) have at least 70 wt% of HDPE and LDPE (at least 50 wt% HDPE and 20 wt% LDPE based on Demirors et al.) and given that first interior layer and the second interior layer can have thickness as low as 20% and as high as 99% of the total thickness of the multilayer polymer film, it is clear that the amount of HDPE and LDPE in the multi-layer polymer film would necessarily overlap that presently claimed.
Regarding claim 3, Priscal et al. in view of Heukelbach et al., Sumida et al. and Demirors et al. disclose the multi-layer polymer film as presently claimed. Further, Priscal et al. disclose the first interior layer (core layer) and the second interior layer (core layer) each have thickness of at least 20% or more of the total thickness of the multilayer polymer film (see paragraph 0042). Given that the first interior layer (core layer) and the second interior layer (core layer) each have a thickness of 20 to 99 %, the remaining layers including the first exterior layer (first outermost layer) and the second exterior layer (second outermost layer) have thickness 1 to 80% of the total thickness of the multilayer polymer film. Given that the first exterior layer (first outermost layer) and the second exterior layer (second outermost layer) have at least 50 wt% of cyclic olefin copolymer and given that first exterior layer and the second exterior layer can have thickness as low as 1% and as high as 80% of the total thickness of the multilayer polymer film, it is clear that the amount of cyclic olefin in the multi-layer polymer film would necessarily overlap that presently claimed.
Regarding claim 5, Priscal et al. in view of Heukelbach et al., Sumida et al. and Demirors et al. do not disclose the multilayer polymer film having a moisture vapor permeation rate as presently claimed. However, given that the multilayer polymer film of Priscal et al. in view of Heukelbach et al., Sumida et al. and Demirors et al. disclose multi-layer polymer film comprising outermost layer and core layers having components as presently claimed in amounts that overlap that presently claimed, within the overlapping ranges, it is clear that the multilayer film of Priscal et al. in view of Heukelbach et al., Sumida et al. and Demirors et al. would necessarily inherently have moisture vapor permeation rate as presently claimed.
Regarding claim 9, Priscal et al. in view of Heukelbach et al., Sumida et al. and Demirors et al. do not disclose the multi-layer polymer is formed by extruding at least said first and second polymer blends in a sheet having three or more layers and do not disclose the thermoformed web formed by the method as presently claimed. However, it is noted that “[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process”, In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985) . Further, “although produced by a different process, the burden shifts to applicant to come forward with evidence establishing an unobvious difference between the claimed product and the prior art product”, In re Marosi, 710 F.2d 798, 802, 218 USPQ 289, 292 (Fed. Cir.1983). See MPEP 2113.
Therefore, absent evidence of criticality regarding the presently claimed process and given that Priscal et al. in view of Heukelbach et al., Sumida et al. and Demirors et al. meets the requirements of the claimed product, Priscal et al. in view of Heukelbach et al., Sumida et al. and Demirors et al. clearly meet the requirements of present claims.
Given that the base component (multi-layer polymer film) comprises first outermost layer, two core layers and second outer most layer, the base component is a sheet having three or more layers.
Regarding claim 19, given that the multilayer polymer film of Priscal et al. in view of Heukelbach et al., Sumida et al. and Demirors et al. is identical to that presently claimed, it is inherent or obvious that the multilayer film of Priscal et al. in view of Heukelbach et al., Sumida et al. and Demirors et al. meets the floating criteria per the Association of Plastic Recyclers Document Code HDPE-CG-01.
Regarding claim 20, Priscal et al. in view of Heukelbach et al., Sumida et al. and Demirors et al. disclose each of the exterior layer (outermost layer) comprising functionalized polymer having a melt flow rate of 0.1 to 20 g/10 minutes as noted above.
Claim 4 is rejected under 35 U.S.C. 103 as being unpatentable over Priscal et al. (US 2017/0158400 A1 cited in IDS) in view of Heukelbach et al. (US 2006/0020084 A1 cited in IDS), Sumida et al. (JP 2008179687 A cited in IDS) and Demirors et al. (US 2016/0177073 A1 cited in IDS), taken in view of evidence by TOPAS® (TOPAS® cyclic olefin copolymer, cited in the IDS of 01/20/2023) and Fantinel et al. (US 2011/0212283 A1 cited in IDS) as applied to claim 1 above, further in view of Wen et al. (CN 209739424 U cited in IDS). It is noted that the disclosures of Wen et al. are based on a machine translation of the reference (cited in IDS of 11/19/2025).
Regarding claim 4, Priscal et al. in view of Heukelbach et al., Sumida et al. and Demirors et al. disclose thermoformable multi-layer film as set forth above. Priscal et al. disclose the multi-layer film is a blister package. There is no disclosure of the density of the thermoformable multi-layer film.
As evidenced by Wen et al., blister packaging is known to save raw and auxiliary materials, be lightweight, and convenient to transport (see paragraph 0004).
Therefore, it would have been obvious to one of ordinary skill to control the density of the thermoformable multi-layer blister package of Priscal et al. in view of Heukelbach et al., Sumida et al. and Demirors et al. to values, including those presently claimed, in order to produce a blister package that is light weight and convenient to transport, and thereby arrive at the present invention.
Claim 6 is rejected under 35 U.S.C. 103 as being unpatentable over Priscal et al. (US 2017/0158400 A1 cited in IDS) in view of Heukelbach et al. (US 2006/0020084 A1 cited in IDS), Sumida et al. (JP 2008179687 A cited in IDS) and Demirors et al. (US 2016/0177073 A1 cited in IDS), taken in view of evidence by TOPAS® (TOPAS® cyclic olefin copolymer, cited in the IDS of 01/20/2023) and Fantinel et al. (US 2011/0212283 A1 cited in IDS). It is noted that the disclosures of Sumida et al. are based on a machine translation of the reference which was included in the action mailed 09/28/2024.
Regarding claim 6, Priscal et al. disclose a package (packaged product) comprising a base component (multi-layer polymer film) and a lidding component (see Abstract and paragraph 0019). The base component sealed to the lidding component forms a cavity for receiving one or more products (see Abstract, Figure 2 and paragraph 0021).
The base component (multi-layer polymer film) can be thermoformed (see paragraphs 0020, 0021). That is, the base component is a thermoformed web made from the thermoformable multilayer film. The total thickness of the base component is about 12.7 to 508 microns (see paragraph 0054). Given that the base component is thermoformed, the cavities are thermoformed cavities. Given that the package is a blister package, which is well known to be rupturable, it is clear the lidding layer is a rupturable layer that can be opened by pressure on the opposite side of the packaged product (see paragraphs 0003, 0019, 0021).
The base component (multi-layer polymer film) comprises a three-layer structure such as A/B/A, wherein layer A is an exterior layer comprising cyclic olefin copolymer (COC) and layer B is an interior layer comprising high density polyethylene (HDPE) (see paragraphs 0023 and 0025). The layers A read on two outermost layers and the layer B reads on a core layer disposed between the two outermost layers. Given that the three-layer structure can only comprise A/B/A, the three-layer structure reads on a multi-layer polymer film consisting of core layer disposed between two outermost layers. The first exterior layer (first outermost layer) and the second exterior layer (second outermost layer) each includes at least 50 wt% of cyclic olefin copolymer, wherein the cyclic olefin copolymer has a glass transition temperature of about 50 °C to about 178 °C (see paragraphs 0030, 0031, 0041). While Priscal et al. do not disclose glass transition temperature measured by differential scanning calorimetry, given the absence of criticality of differential scanning calorimetry, Priscal et al. meets present claim. A specific example of cyclic olefin copolymer included TOPAS® family of resins (see paragraph 0031). The cyclic olefin copolymer is a copolymer of norbornene and ethylene (see paragraph 0033). As evidenced by TOPAS®, TOPAS® cyclic-olefin copolymer have melt flow rate of 0.9 to 11.0 g/10 minutes at 230 C and 2.16 kg load (see page 7, Table 3, Physical Properties of TOPAS).
Priscal et al. do not disclose the first exterior layer and the second exterior layer comprises polyethylene. Priscal et al. do not disclose the first exterior layer and the second exterior layer comprises a functionalized polymer and a mineral filler. Priscal et al. do not disclose the first interior layer and the second interior layer comprises a polymer blend of HDPE and LDPE as presently claimed.
Heukelbach et al. disclose a thermoformable film comprising 5 to 100 wt% of COC with glass transition temperature in range of 65 to 200 °C that can be used in combination with polyethylenes (see Abstract and paragraph 0028). Accordingly, the amount of polyethylene can be 0 to 95 wt%. Heukelbach et al. disclose polyethylene includes Luflexen 18PFAX (see paragraph 0040). As evidenced by Fantinel et al., Luflexen 18PFAX has a melt flow rate of 1 g/10 min (2.16 kg), 2.5 g/10 min (5 kg) and 5.7 g/10 min (10 kg) (page 19, paragraph 0216 and Table 1). Given melt flow of “about” 2 g/10 min includes values slightly and below 2 g/10 min, Luflexen 18PFAX (polyethylene) meets melt flow as presently claimed. Further, the melt flow of 2.5 g/10 min and 5.7 g/10 min overlap with melt flow of polyethylene as presently claimed. The thermoformable film has a high heat distortion temperature and a high water vapor barrier (see paragraph 0001).
In light of motivation for using 0 to 95 wt% of polyolefin such as Luflexen 18PFAX disclosed by Heukelbach et al. as described above, it therefore would have been obvious to one of the ordinary skill in the art before the effective filing date of the claimed invention to use 0 to 95 wt% of polyolefin such as Luflexen 18PFAX in both the first exterior layer (first outermost layer) and the second exterior (second outermost layer) each comprising cyclic-olefin copolymer of Priscal et al. in order to provide a high heat distortion temperature and a high water vapor barrier, and thereby arrive at the claimed invention.
Priscal et al. disclose at least 50 wt% of cyclic olefin copolymer as noted above. Heukelbach et al. disclose 0 to 95 wt% of polyethylene as noted above. Accordingly, Priscal et al. in view of Heukelbach et al. disclose 50 to 100 wt% of cyclic olefin copolymer and 0 to 50 wt% of polyethylene.
Priscal et al. in view of Heukelbach et al. do not disclose the first exterior layer and the second exterior layer comprises a functionalized polymer and a mineral filler. Priscal et al. in view of Heukelbach et al. do not disclose the first interior layer and the second interior layer comprises a polymer blend of HDPE and LDPE as presently claimed.
Sumida et al. disclose a resin composition comprising a cyclic olefin resin, an olefin-based resin and a filler (see Abstract and page 6, paragraph 8). The olefin-based resin has a melt flow rate of 0.1 to 20 g/10 minutes in order to improve appearance of molded article (see page 5, paragraph 1). The olefin-based resin can be maleic grafted polypropylene, i.e. functionalized polymer (see page 4, paragraph 7). The olefin-based resin is present in amount of 1 to 70 wt% (see page 5, paragraph 4). The olefin-based resin improves moldability, flexibility, elongation at break and impact strength (see page 5, paragraph 3). The filler such as talc (i.e. mineral filler) is present in amount of 0.01 to 100 parts by weight with respect to 100 parts by weight of cyclic-olefin resin and olefin-based resin (see page 6, paragraph 9). That is, the amount of filler is 0.01 to 50 wt%. Fillers are well known to provide reinforcement properties.
In light of motivation for using 1 to 70 wt% of functionalized polymer having a melt flow rate of 0.1 to 20 g/10 minutes and 0.01 to 50 wt% of mineral filler disclosed by Sumida et al. as described above, it therefore would have been obvious to one of the ordinary skill in the art before the effective filing date of the claimed invention to use 1 to 70 wt% of functionalized polymer having a melt flow rate of 0.1 to 20 g/10 minutes and 0.01 to 50 wt% of mineral filler of Sumida et al. in both the first exterior layer (first outermost layer) and the second exterior (second outermost layer) each comprising cyclic-olefin copolymer of Priscal et al. in view of Heukelbach et al. in order to improve appearance of molded article, moldability, flexibility, elongation at break and impact strength as well as reinforcement properties, and thereby arrive at the claimed invention.
Priscal et al. in view of Heukelbach et al. and Sumida et al. do not disclose the first interior layer and the second interior layer comprises a polymer blend of HDPE and LDPE as presently claimed.
Demirors et al. disclose a polymer blend comprising at least about 50 wt% of HDPE having melt index of < 4 g/10 min and about 1 to about 20 wt% of LDPE having melt index of about 0.1 to about 10 g/10 min (see Abstract). The polymer blend has improved optical performance such as reduced haze as well as lower tear strength (see paragraphs 0003 and 0023).
In light of motivation for using a polymer blend comprising at least about 50 wt% of HDPE having melt index of < 4 g/10 min and about 1 to about 20 wt% of LDPE having melt index of about 0.1 to about 10 g/10 min disclosed by Demirors et al. as described above, it therefore would have been obvious to one of the ordinary skill in the art before the effective filing date of the claimed invention to use a polymer blend comprising at least about 50 wt% of HDPE having melt index of < 4 g/10 min and about 1 to about 20 wt% of LDPE having melt index of about 0.1 to about 10 g/10 min of Demirors et al. instead of HDPE in both the first interior layer (core layer) and the second interior layer (core layer) of Priscal et al. in view of Heukelbach et al. and Sumida et al. in order to provide improved optical performance such as reduced haze as well as lower tear strength, and thereby arrive at the claimed invention.
Response to Arguments
Applicant's arguments filed 09/03/2026 have been fully considered. In light of amendments, new grounds of rejections are set forth above. All arguments except as set forth below are moot in light of new grounds of rejections.
Applicants argue that none of the cited references Priscal, Heukelbach, Sumida, TOPAS, Fantinel or any combinations thereof teach or suggest the subject matter of claim 1 at least because none of the cited references provide any hints or suggestions related to the specific (i) weight ratios of COC and polyolefin in the outermost layers; (ii) MFI values for HDPE and LDPE in the core layer and (iii) the MFI values for polyethylene and cyclic olefin copolymer in the outermost layers as recited in amended claim 1.
In light of amendments, new grounds of rejections are set forth above. Priscal in view of Heukelbach, Sumida and Demirors disclose subject matter of claim 1 as noted above.
Applicants argue that the Office cited Demirors for disclosing "polyethylene polymer blend comprises at least about 50% by wt. of at least one high density polyethylene resin (HDPE), and about 1% to about 20% by wt. of at least one low density polyethylene resin (LDPE). Final Rejection, page 18, #61. Demirors relates to low haze polyethylene polymer blends comprising high density polyethylene (HDPE) and low density polyethylene (LDPE). See Demirors, para [0001]. There is no disclosure in Demirors related to thermoformable films, multi-layer films, or thermoformable multi-layer films such as the film of the present claims. Indeed, Demirors clearly discloses blown monolayer films, in contrast to thermoformable multi-layer films of the present claims. See Demirors, para [0004], [0021], [0022], [0023], and [0051]. Therefore, a skilled person would find no motivation to combine Demirors with Priscal, Heukelbach, Sumida, TOPAS, and/or Fantinel, and have a reasonable expectation to arrive at the multi-layer films of the present claims.
However, Priscal et al. already disclose a thermoformable multi-layer polymer film. Further, Priscal et al. disclose the core layer comprising high density polyethylene (HDPE). Demirors disclose a blend of HDPE and LDPE provides improved optical performance as well as lower tear strength. Given that both Priscal and Demirors disclose HDPE resin and given that Demirors provides proper motivation for using blend of HDPE and LDPE, it would have been obvious to combine Demirors with Priscal.
Further, Demirors is only used as teaching reference in order to teach blend of HDPE and LDPE. It is noted that the "test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference... Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art", In re Keller, 642 F.2d 413,208 USPQ 871,881 (CCPA 1981) and that "combining the teachings of references does not involve an ability to combine their specific structures", In re Nievelt, 482 F.2d 965, 179 USP 224, 226 (CCPA).
Further, Dermirors disclose the blend is used to prepare an article, wherein the article may be a blown monolayer film (see paragraph 0004). That is, the blend is not limited only to a blown monolayer film. Accordingly, other types of films such as a thermoformable film or a thermoformable multilayer film can be prepared from the blend, absent evidence to the contrary.
Applicants argue that the Office engages in the picking and choosing of elements from various prior art documents using Applicant's own disclosure of the instant application as a guide. This, however, constitutes an inadmissible "ex post facto" analysis of the prior art documents obtained with foreknowledge of the subject matter constituting the instant disclosure.
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). In the instant application, a proper motivation has been provided while combining the prior art documents.
Applicants argue that Wen does not remedy the deficiencies with respect to the specific (i) weight ratios of COC and polyolefin in the outermost layers; (ii) MFI values for HDPE and LDPE in the core layer and (iii) the MFI values for polyethylene and cyclic olefin copolymer in the outermost layers as recited in amended claim 1.
However, note that while Wen do not disclose all the features of the present claimed invention, Wen is used as teaching reference, and therefore, it is not necessary for this secondary reference to contain all the features of the presently claimed invention, In re Nievelt, 482 F.2d 965, 179 USPQ 224, 226 (CCPA 1973), In re Keller 624 F.2d 413, 208 USPQ 871, 881 (CCPA 1981). Rather this reference teaches a certain concept, namely density of thermoformable multi-layer film, and in combination with the primary reference, discloses the presently claimed invention.
Applicants argue regarding claim 6 that none of the cited references Priscal, Heukelbach, Sumida, Demirors, TOPAS, Fantinel or any combinations thereof teach or suggest the subject matter of claim 1 at least because none of the cited references provide any hints or suggestions related to the specific (i) weight ratios of COC and polyolefin in the outermost layers; (ii) MFI values for HDPE and LDPE in the core layer and (iii) the MFI values for polyethylene and cyclic olefin copolymer in the outermost layers as recited in amended claim 1.
In light of amendments, new grounds of rejections are set forth above. Priscal in view of Heukelbach, Sumida and Demirors disclose subject matter of claim 6 as noted above.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KRUPA SHUKLA whose telephone number is (571)272-5384. The examiner can normally be reached M-F 7:00-3:00 PM.
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/KRUPA SHUKLA/Examiner, Art Unit 1787
