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 .
Response to Amendment
Applicant’s amendment filed on 02/17/2026 is acknowledged. In light of amendments, new grounds of rejection are set forth below. Claims 1-10, 14-16, 19 and 20 are examined on the merits in this office action.
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 Salmang et al. (US 2012/0193266 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). 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, 5, 7-10 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). A specific example of polyethylene includes Luflexen 18PFAX (see paragraph 0040). A specific example of blend of COC and polyethylene includes 20 to 80 wt% of COC and 20 to 80 wt% of Luflexen 18PFAX (see page 4, Table 1). 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 20 to 80 wt% of Luflexen 18PFAX (polyethylene) disclosed by Heukelbach et al. as described above, it therefore would have been obvious to one of the ordinary skill in the art to use 20 to 80 wt% of Luflexen 18PFAX (polyethylene) 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. 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 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.
Salmang et al. disclose a polymer blend comprising at least 70 wt% of HDPE having melt index of 0.1 to 4.0 g/10 min and at least 10 wt% of LDPE having melt index of 0.15 to 4.0 g/10 min (see Abstract and paragraphs 0020, 0021, 0045). The polymer blend has increased melt strength resulting in a wider processing window (see Abstract).
In light of motivation for using a polymer blend comprising at least 70 wt% of HDPE having melt index of 0.1 to 4.0 g/10 min and at least 10 wt% of LDPE having melt index of 0.15 to 4.0 g/10 min disclosed by Salmang et al. as described above, it therefore would have been obvious to one of the ordinary skill in the art to use a polymer blend comprising at least 70 wt% of HDPE having melt index of 0.1 to 4.0 g/10 min and at least 10 wt% of LDPE having melt index of 0.15 to 4.0 g/10 min of Salmang 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 increased melt strength resulting in a wider processing window, and thereby arrive at the claimed invention.
The only deficiency of Salmang et al. is that Salmang et al. disclose the use of LDPE having melt flow index of “4.0 g/10 min”, while the present claims require LDPE having melt flow index of “about 6.0 g/10 min”.
It is apparent, however, that the instantly claimed melt flow index of LDPE and that taught by Salmang et al. are so close to each other that the fact pattern is similar to the one in In re Woodruff , 919 F.2d 1575, USPQ2d 1934 (Fed. Cir. 1990) or Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 227 USPQ 773 (Fed.Cir. 1985) where despite a “slight” difference in the ranges the court held that such a difference did not “render the claims patentable” or, alternatively, that “a prima facie case of obviousness exists where the claimed ranges and prior art ranges do not overlap but are close enough so that one skilled in the art would have expected them to have the same properties”.
In light of the case law cited above and given that there is only a “slight” difference between the melt flow index of LDPE disclosed by Salmang et al. and the melt flow index disclosed in the present claims, it therefore would have been obvious to one of ordinary skill in the art that the melt flow index of LDPE disclosed in the present claims is but an obvious variant of the melt flow index disclosed in Salmang et al., and thereby one of ordinary skill in the art would have arrived at the claimed invention.
Priscal et al. in view of Heukelbach et al., Sumida et al. and Salmang 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 Salmang et al. meets the requirements of the claimed product, Priscal et al. in view of Heukelbach et al., Sumida et al. and Salmang 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.
Priscal et al. in view of Heukelbach et al., Sumida et al. and Salmang 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 Salmang 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 Salmang et al. would necessarily inherently have moisture vapor permeation rate as presently claimed.
Regarding claim 2, Priscal et al. in view of Heukelbach et al., Sumida et al. and Salmang 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 80 wt% of HDPE and LDPE (at least 70 wt% HDPE and at least 10 wt% LDPE based on Salmang 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 Salmang 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 19, given that the multilayer polymer film of Priscal et al. in view of Heukelbach et al., Sumida et al. and Salmang 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 Salmang 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 Salmang 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 Salmang et al. (US 2012/0193266 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) 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 Salmang 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 Salmang 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 Salmang et al. (US 2012/0193266 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). 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). A specific example of polyethylene includes Luflexen 18PFAX (see paragraph 0040). A specific example of blend of COC and polyethylene includes 20 to 80 wt% of COC and 20 to 80 wt% of Luflexen 18PFAX (see page 4, Table 1). 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 20 to 80 wt% of Luflexen 18PFAX (polyethylene) disclosed by Heukelbach et al. as described above, it therefore would have been obvious to one of the ordinary skill in the art to use 20 to 80 wt% of Luflexen 18PFAX (polyethylene) 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. 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 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.
Salmang et al. disclose a polymer blend comprising at least 70 wt% of HDPE having melt index of 0.1 to 4.0 g/10 min and at least 10 wt% of LDPE having melt index of 0.15 to 4.0 g/10 min (see Abstract and paragraphs 0020, 0021, 0045). The polymer blend has increased melt strength resulting in a wider processing window (see Abstract).
In light of motivation for using a polymer blend comprising at least 70 wt% of HDPE having melt index of 0.1 to 4.0 g/10 min and at least 10 wt% of LDPE having melt index of 0.15 to 4.0 g/10 min disclosed by Salmang et al. as described above, it therefore would have been obvious to one of the ordinary skill in the art to use a polymer blend comprising at least 70 wt% of HDPE having melt index of 0.1 to 4.0 g/10 min and at least 10 wt% of LDPE having melt index of 0.15 to 4.0 g/10 min of Salmang et al. instead of HDPE in the interior layer (core layer) of Priscal et al. in view of Sumida et al. in order to provide increased melt strength resulting in a wider processing window, and thereby arrive at the claimed invention.
The only deficiency of Salmang et al. is that Salmang et al. disclose the use of LDPE having melt flow index of “4.0 g/10 min”, while the present claims require LDPE having melt flow index of “about 6.0 g/10 min”.
It is apparent, however, that the instantly claimed melt flow index of LDPE and that taught by Salmang et al. are so close to each other that the fact pattern is similar to the one in In re Woodruff , 919 F.2d 1575, USPQ2d 1934 (Fed. Cir. 1990) or Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 227 USPQ 773 (Fed.Cir. 1985) where despite a “slight” difference in the ranges the court held that such a difference did not “render the claims patentable” or, alternatively, that “a prima facie case of obviousness exists where the claimed ranges and prior art ranges do not overlap but are close enough so that one skilled in the art would have expected them to have the same properties”.
In light of the case law cited above and given that there is only a “slight” difference between the melt flow index of LDPE disclosed by Salmang et al. and the melt flow index disclosed in the present claims, it therefore would have been obvious to one of ordinary skill in the art that the melt flow index of LDPE disclosed in the present claims is but an obvious variant of the melt flow index disclosed in Salmang et al., and thereby one of ordinary skill in the art would have arrived at the claimed 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), 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). 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, 5, 7-10 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). A specific example of polyethylene includes Luflexen 18PFAX (see paragraph 0040). A specific example of blend of COC and polyethylene includes 20 to 80 wt% of COC and 20 to 80 wt% of Luflexen 18PFAX (see page 4, Table 1). 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 20 to 80 wt% of Luflexen 18PFAX (polyethylene) disclosed by Heukelbach et al. as described above, it therefore would have been obvious to one of the ordinary skill in the art to use 20 to 80 wt% of Luflexen 18PFAX (polyethylene) 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. 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 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 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.
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.
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 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 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), 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) 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), 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). 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). A specific example of polyethylene includes Luflexen 18PFAX (see paragraph 0040). A specific example of blend of COC and polyethylene includes 20 to 80 wt% of COC and 20 to 80 wt% of Luflexen 18PFAX (see page 4, Table 1). 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 20 to 80 wt% of Luflexen 18PFAX (polyethylene) disclosed by Heukelbach et al. as described above, it therefore would have been obvious to one of the ordinary skill in the art to use 20 to 80 wt% of Luflexen 18PFAX (polyethylene) 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. 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 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 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 02/17/2026 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 firstly, Priscal does not disclose or suggest a core layer comprising a blend of HDPE and LDPE as recited in amended claim 1. Priscal discloses that "first and second interior layers 102 and 104 each comprise at least one of a high density polyethylene (HDPE), a blend of a high density polyethylene and a high density polyethylene nucleation additive with an optional hydrocarbon resin (HDPE-Blend), or a bimodal high density polyethylene having a distribution of a low molecular weight region and a high molecular weight region (HDPE-Bimodal)." Priscal, paragraph [0030]. Notably, Priscal does not teach or suggest incorporating LDPE into the interior/core layers.
Priscal et al. disclose the first interior layer and the second interior layer each comprise high density polyethylene (HDPE) (see paragraphs 0030, 0041). It is agreed that Priscal do not disclose incorporating LDPE into the interior/core layers. Therefore, Priscal has been combined with Salmang et al. that discloses a blend of HDPE and LDPE to provide increased melt strength resulting in a wider processing window.
Applicants argue that furthermore, Priscal's film structure is fundamentally different from that recited in amended claim 1. Priscal discloses that "thermoformed base component 12 comprises a multilayer thermoplastic film 100 comprising a five-layer structure of a first exterior layer 101, a first interior layer 102, a central core layer 103, a second interior layer 104, and a second exterior layer 105." Priscal, paragraph [0029]. Critically, Priscal teaches that the central core layer 103 comprises ethylene vinyl acetate copolymer (EVA), not a blend of HDPE and LDPE. Priscal, paragraph [0030]. This is distinct from the three-layer structure with a core layer comprising HDPE and LDPE as recited in amended claim 1.
However, in light of open language, i.e. “A thermoformable multi-layer polymer film comprising”, the present claims are open to inclusion of additional layers including a core layer comprising ethylene vinyl acetate (EVA). There is nothing in the present claim that requires that the thermoformable multi-layer polymer film is a three-layer structure.
Applicants argue that critically, the claimed LDPE MFI of about 6 g/10 min falls entirely outside Salmang's disclosed LDPE melt index range of 0.15 to 4.0 g/10 min. Indeed, the claimed LDPE MFI is 50% higher than the upper limit of Salmang's disclosed range. The specific combination of HDPE at about 1.2 to 2 g/10 min and LDPE at about 6 g/10 min as recited in amended claim 1 is not taught or suggested by Salmang, as the claimed LDPE MFI value is outside the range disclosed in Salmang. Salmang provides no motivation to select an LDPE having an MFI outside its disclosed range, and there is no teaching in any of the cited references that would lead a skilled artisan to select an LDPE with an MFI of about 6 g/10 min for use in a core layer of a thermoformable multi-layer polymer film.
However, the only deficiency of Salmang et al. is that Salmang et al. disclose the use of LDPE having melt flow index of “4.0 g/10 min”, while the present claims require LDPE having melt flow index of “about 6.0 g/10 min”.
It is apparent, however, that the instantly claimed melt flow index of LDPE and that taught by Salmang et al. are so close to each other that the fact pattern is similar to the one in In re Woodruff , 919 F.2d 1575, USPQ2d 1934 (Fed. Cir. 1990) or Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 227 USPQ 773 (Fed.Cir. 1985) where despite a “slight” difference in the ranges the court held that such a difference did not “render the claims patentable” or, alternatively, that “a prima facie case of obviousness exists where the claimed ranges and prior art ranges do not overlap but are close enough so that one skilled in the art would have expected them to have the same properties”.
In light of the case law cited above and given that there is only a “slight” difference between the melt flow index of LDPE disclosed by Salmang et al. and the melt flow index disclosed in the present claims, it therefore would have been obvious to one of ordinary skill in the art that the melt flow index of LDPE disclosed in the present claims is but an obvious variant of the melt flow index disclosed in Salmang et al., and thereby one of ordinary skill in the art would have arrived at the claimed invention.
Further, applicants have provided no evidence (i.e. data) to show criticality of LDPE having melt flow index of “about 6.0 g/10 min” compared to LDPE having melt flow index of “4.0 g/10 min”.
Applicants argue that further, in Salmang's specific working example at para [0045], the HDPE has a higher melt flow rate (0.29 g/10 min) than the LDPE (0.25 g/10 min). Therefore, Salmang's HDPE has a higher MFR than its LDPE. The amended claim 1 requires the low density polyethylene to have an MFI of about 6 g/10 min and the high density polyethylene to have an MFI of about 1.2 to 2 g/10 min. Therefore, the present claims require the MFI of LDPE to be greater than the MFI of HDPE, in contrast to the MFRs disclosed in the working example in Salmang.
While applicants argue that at para [0045], Salmang discloses that the MFI (referred to as MFR in Salmang) of HDPE is 0.29 g/10 min and that of LDPE is 0.25 g/10min, this is only one of the examples. Salmang also broadly discloses a polymer blend comprising at least 70 wt% of HDPE having melt index of 0.1 to 4.0 g/10 min and at least 10 wt% of LDPE having melt index of 0.15 to 4.0 g/10 min (see Abstract and paragraphs 0020, 0021, 0045). Given the broad disclosure of melt indices, Salmang et al. do not teach away from away from the subject matter of claim 1.
Further, "applicant must look to the whole reference for what it teaches. Applicant cannot merely rely on the examples and argue that the reference did not teach others." In re Courtright, 377 F.2d 647, 153 USPQ 735,739 (CCPA 1967).
Applicants argue that Wen does not remedy the deficiencies with respect to the specific MFI values for HDPE and LDPE in the core layer and the specific 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 the thermoformable multi-layer polymer film, and in combination with the primary reference, discloses the presently claimed invention.
In light of amendments, claim objections are withdrawn.
In light of amendments, 112(a) paragraph rejections are withdrawn.
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.
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/KRUPA SHUKLA/Examiner, Art Unit 1787
/CALLIE E SHOSHO/Supervisory Patent Examiner, Art Unit 1787
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