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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 07/16/2026 has been entered.
Claim Objections
Claim 1 is objected to because of the following informalities: Claim 1, lines 9-10 recites “the multilayer film”, which should be “the multilayer cling film”. Appropriate correction is required.
Claim 1 is objected to because of the following informalities: Claim 1, line 14 recites “an ionomer”, which should be “the ionomer”. Appropriate correction is required.
Claim 3 is objected to because of the following informalities: Claim 3 recites “….the second skin layer is a cling layer comprising an ultra-low-density polyethylene and a polyolefin-based thermoplastic elastomer”. Given that claim 1 already recites the second skin layer comprises an ultra-low-density polyethylene and a polyolefin-based thermoplastic elastomer, claim 3 should be amended to recite “The multilayer cling film of claim 1 wherein the second skin layer is a cling layer.” Appropriate correction is required.
Claim 8 is objected to because of the following informalities: Claim 8, line 2 recites “the core layers”, which should be “the one or more core layers”. Appropriate correction is required.
Claim 8 is objected to because of the following informalities: Claim 8 recites “30 N/mm2”, which should be “30 N/mm2”. Appropriate correction is required.
Claim 9 is objected to because of the following informalities: Claim 9, line 2, line 3 and line 4 recite “the film”, which should be “the multilayer cling film”. Appropriate correction is required.
Claim 9 is objected to because of the following informalities: Claim 9, line 3 recites “the central layer”, which should be “the one or more core layers”. Appropriate correction is required.
Claim 10 is objected to because of the following informalities: Claim 10, line 2, line 3, line 4 and line 5 recite “the film”, which should be “the multilayer cling film”. Appropriate correction is required.
Claim 10 is objected to because of the following informalities: Claim 10, line 3 recites “a first core layer”, which should be “the first core layer”. Appropriate correction is required.
Claim 10 is objected to because of the following informalities: Claim 10, line 4 recites “a second core layer”, which should be “the second core layer”. Appropriate correction is required.
Claim 11 is objected to because of the following informalities: Claim 11 recites “the first skin layer …., the second skin layer…, the first core layer…and the second core layer…”. Given that claim 1 already recites these limitations, claim 11 should be amended to recite “The multilayer cling film of claim 1 wherein: the second skin layer is a cling layer”. It is to be noted that such amendment would result in claim 11 being a duplicate of claim 3. Appropriate correction is required.
Claim 13 is objected to because of the following informalities: Claim 13, lines 10-11 recites “the multilayer film”, which should be “the multilayer cling film”. Appropriate correction is required.
Claim 13 is objected to because of the following informalities: Claim 13, line 15 recites “an ionomer”, which should be “the ionomer”. Appropriate correction is required.
Claim 15 is objected to because of the following informalities: Claim 15 recites “….the second skin layer is a cling layer comprising an ultra-low-density polyethylene and a polyolefin-based thermoplastic elastomer”. Given that claim 13 already recites the second skin layer comprises an ultra-low-density polyethylene and a polyolefin-based thermoplastic elastomer, claim 15 should be amended to recite “The multilayer cling film of claim 13 wherein the second skin layer is a cling layer.” Appropriate correction is required.
Claim 18 is objected to because of the following informalities: Claim 18, line 2 recites “the core layers”, which should be “the one or more core layers”. Appropriate correction is required.
Claim 19 is objected to because of the following informalities: Claim 19, line 2, line 3 and line 4 recite “the film”, which should be “the multilayer cling film”. Appropriate correction is required.
Claim 19 is objected to because of the following informalities: Claim 19, line 3 recites “the core layer”, which should be “the one or more core layers”. Appropriate correction is required.
Claim 20 is objected to because of the following informalities: Claim 20, line 2, line 3, line 4 and line 5 recite “the film”, which should be “the multilayer cling film”. Appropriate correction is required.
Claim 20 is objected to because of the following informalities: Claim 20, line 3 recites “a first core layer”, which should be “the first core layer”. Appropriate correction is required.
Claim 20 is objected to because of the following informalities: Claim 20, line 4 recites “a second core layer”, which should be “the second core layer”. Appropriate correction is required.
Claim 21 is objected to because of the following informalities: Claim 21, line 2 recites “the film”, which should be “the multilayer cling film”. Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 1-11 and 13-21 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Claim 1 and claim 13 each recite that “the multilayer exhibits tear resistance contributed by the polymer compositions of the layer, including the first skin layer”. While the background of the present specification (see page 2, last paragraph) recites that the “stretch wrap film is designed to incorporate…. high tear resistance in the transverse direction, good machine direction tear resistance, high resistance to transverse tear when under machine direction tension”, there is no support to recite the multilayer cling film of the present invention exhibits tear resistance contributed by the polymer compositions of the layer, including the first skin layer. This rejection affects all the dependent claims.
Claim 21 recites “the first skin layer comprises abrasion-resistant resins or additives that contribute to the rear resistance of the film”. While there is support for abrasion-resistant resins or additives in the first skin layer in the present specification (see pages 6-7, bridging paragraph, last two lines), there is no support to recite that abrasion-resistant resins or additives in the first skin layer contribute to the tear resistance of the film.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-11 and 13-21 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 1 recites the limitation "the polymer compositions" in line 10. There is insufficient antecedent basis for this limitation in the claim. This rejection affects all the dependent claims.
Claim 1 recites the limitation "the layers" in lines 10-11. There is insufficient antecedent basis for this limitation in the claim. This rejection affects all the dependent claims.
Claim 1 recites “%” of components present in the first skin layer, the second skin layer and the second core layer. It is not clear if “%” refers to wt%, mol% or vol%. This rejection affects all the dependent claims.
Claim 1, line 16 recites “between about 85% and 96% ultra-low-density polyethylene”. It is not clear if ultra-low-density polyethylene is same as a polyethylene in the second skin layer of if ultra-low-density polyethylene is different than a polyethylene in the second skin layer. For the purpose of examination, the examiner construes that ultra-low-density polyethylene is same as a polyethylene in the second skin layer. It is suggested that claim 1 is amended to recite “between about 85% and 96% of an ultra-low-density polyethylene as the polyethylene”. This rejection affects all the dependent claims.
Claim 8 recites “0.3 Newtons = 30 grams of 30 N/mm2”. It is not clear what is meant by “0.3 Newtons = 30 grams of 30 N/mm2”. Further, it is not clear how 0.3 Newtons is equal to 30 grams.
Claim 11 recites “%” of components present in the first skin layer, the second skin layer and the second core layer. It is not clear if “%” refers to wt%, mol% or vol%. This rejection affects all the dependent claims.
Claim 13 recites the limitation "the polymer compositions" in line 11. There is insufficient antecedent basis for this limitation in the claim. This rejection affects all the dependent claims.
Claim 13 recites the limitation "the layers" in lines 11-12. There is insufficient antecedent basis for this limitation in the claim. This rejection affects all the dependent claims.
Claim 13 recites “%” of components present in the first skin layer, the second skin layer, the first core layer and the second core layer. It is not clear if “%” refers to wt%, mol% or vol%. This rejection affects all the dependent claims. This rejection affects all the dependent claims.
Claim 13, lines 16-17 recites “between about 85% and 96% ultra-low-density polyethylene”. It is not clear if ultra-low-density polyethylene is same as a polyethylene in the second skin layer of if ultra-low-density polyethylene is different than a polyethylene in the second skin layer. For the purpose of examination, the examiner construes that ultra-low-density polyethylene is same as a polyethylene in the second skin layer. It is suggested that claim 13 is amended to recite “between about 85% and 96% of an ultra-low-density polyethylene as the polyethylene”. This rejection affects all the dependent claims.
Claim 18 recites “0.3 Newtons = 30 grams of 30 N/mm2”. It is not clear what is meant by “0.3 Newtons = 30 grams of 30 N/mm2”. Further, it is not clear how 0.3 Newtons is equal to 30 grams.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claims 2, 4, 5 and 14 are rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends.
Claim 2 recites “the slip layer comprises….”. Given that claim 1 already recites this limitation, claim 2 fails to further limit the subject matter of claim 1.
Claim 4 recites “a first core layer…and a second core layer…..”. Given that claim 1 already recites this limitation, claim 4 fails to further limit the subject matter of claim 1. This rejection affects all the dependent claims.
Claim 5 recites “the first core layer…and the second core layer…..”. Given that claim 1 already recites this limitation, claim 5 fails to further limit the subject matter of claim 1.
Claim 14 recites “the slip layer comprises….”. Given that claim 13 already recites this limitation, claim 14 fails to further limit the subject matter of claim 13.
Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
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 1-11 and 21 are rejected under 35 U.S.C. 103 as being unpatentable over Eichbauer (5,752,362 cited in IDS) in view of Kvamme et al. (US 2010/0047599 A1 cited in IDS), Henderson et al. (US 2005/0048303 A1 cited in IDS), Kinnan et al. (US 2014/0272443 A1 cited in IDS) and Hawighorst et al. (US 2014/0319004 A1 cited in IDS).
Regarding claims 1-6, Eichbauer discloses a stretch wrap film (multilayer cling film) comprising outside cling layer 10 (second skin layer), a first puncture resistant layer 20 (first core layer), a second puncture resistant layer 20 (second core layer) and an outside slip layer 40 (first skin layer) (see Figure 2 and col. 7, lines 26-33). That is, the first skin layer is a slip layer and the second skin layer is a cling layer.
The outside slip layer (first skin layer) comprises a linear low density polyethylene resin (LLDPE) having a density of from about 0.925 g/cm3 to about 0.945 g/cm3, and an MI value of from about 2.0 g/10 min to about 5.0 g/10 min (see col. 5, lines 11-14). The density of “about 0.925 g/cm3” of LLDPE meets presently claimed density of “about 0.920 g/cm3” of LLDPE. The outside cling layer (second skin layer) comprises very low density polyethylene resin (VLDPE) (see col. 4, lines 42-46). VLDPE is same as ultra low density polyethylene (ULDPE) utilized in the present invention (see paragraph 0041 of published application).
Eichbauer discloses the use of LLDPE having an MI of “about 2.0 g/10 min”, while the present claims require LLDPE having an MI of “about 1.0 g/10 min”.
It is apparent, however, that the instantly claimed MI of LLDPE and that taught by Eichbauer 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 MI of LLDPE disclosed by Eichbauer and the MI disclosed in the present claims, it therefore would have been obvious to one of ordinary skill in the art that the MI of LLDPE disclosed in the present claims is but an obvious variant of the MI disclosed in Eichbauer, and thereby one of ordinary skill in the art would have arrived at the claimed invention.
The puncture resistant layer comprises a puncture resistant resin material such as a metallocene polyethylene (see col. 5-6, lines 65-12). Further, the puncture resistant layer can be a blend of the puncture resistant resin material and second resin material such as low density polyethylene (LDPE), wherein the second resin material is present in amount of at least 40 wt% (see col. 6, lines 34-47). Accordingly, the puncture resistant layer can be a blend of at most 60 wt% metallocene polyethylene and at least 40 wt% LDPE. Further, the puncture resistant layers can be constructed with same resins or different resins to tailor the properties of the multilayer film (see col. 7, lines 41-43). Accordingly, the first puncture resistant layer (first core layer) can be 100 wt% metallocene polyethylene and the second puncture resistant layer (second core layer) can be a blend of at most 60 wt% metallocene polyethylene and the at least 40 wt% LDPE.
Eichbauer does not disclose the outside slip layer comprises a high density polyethylene and an ionomer. Eichbauer does not disclose the outside cling layer comprises a polyolefin-based thermoplastic elastomer. While Eichbauer the first core layer comprising 100 wt% metallized polyethylene, and the second core layer comprising at most 60 wt% metallocene polyethylene and at least 40 wt% LDPE, Eichbauer do not disclose metallocene polyethylene is metallocene linear low density polyethylene.
Kvamme et al. disclose a polymer blend comprising HDPE and LLDPE polymer (see Abstract). The HDPE has a melt index of 0.6 g/10 min or less and a density of at least 935 kg/m3, i.e. 0.935 g/cm3 (see page 9, claim 1). The HDPE is present in amount of up to 30 wt% and LLDPE is present in amount of 70 to 99 wt% of the blend (see page 9, claim 11). The films comprising the polymer blend provide increased production speeds, highly advantageous shrink properties, good mechanical properties and optical properties as well as low coefficient of friction (see paragraphs 0008, 0013, 0017 and 0103).
In light of motivation for using polymer blend comprising up to 30 wt% HDPE having density of at least 0.935 g/cm3 and melt index of 0.6 g.10 min or less, and 70 to 99 wt% of LLDPE disclosed by Kvamme et al. as described above, it therefore would have been obvious to one of ordinary skill in the art to use up to 30 wt% of HDPE having density of at least 0.935 g/cm3 and melt index of 0.6 g/10 min or less blended with 70 to 99 wt% of LLDPE of the outer slip layer (first skin layer) of Eichbauer in order to provide increased production speeds, highly advantageous shrink properties, good mechanical properties and optical properties as well as low coefficient of friction, and thereby arrive at the claimed invention.
Eichbauer in view of Kvamme et al. do not disclose the outside slip layer comprises an ionomer. Eichbauer in view of Kvamme et al. do not disclose the outside cling layer comprises a polyolefin-based thermoplastic elastomer. While Eichbauer the first core layer comprising 100 wt% metallized polyethylene, and the second core layer comprising at most 60 wt% metallocene polyethylene and at least 40 wt% LDPE, Eichbauer in view of Kvamme et al. do not disclose metallocene polyethylene is metallocene linear low density polyethylene.
Henderson et al. disclose a multilayer comprising a base layer comprising a polyolefin and a tear resistant additive such as an ionomer resin, wherein the ionomer resin can be Surlyn 1605, Surlyn 1652 and Surlyn 1901 (see Abstract and paragraphs 0036, 0037 and 0041). The ionomer resin is identical to that utilized in the present invention (see paragraph 0020 of published application). As evidenced by the present specification, Surlyn 1605 and Surlyn 1901 are ionomer of ethylene acid acrylate terpolymer, and Surlyn 1652 is ionomer of ethylene acid copolymer. The tear resistant additive is present in amount of about 5 to about 60 wt% of the base layer (see paragraph 0037). The tear resistant additive improves the film’s ability to resist tear under normal handling (see paragraph 0037).
In light of motivation for using about 5 to about 60 wt% of tear resistant additive such as an ionomer resin disclosed by Henderson et al. as described above, it therefore would have been obvious to one of ordinary skill in the art to use about 5 to about 60 wt% of tear resistant additive such as an ionomer resin of Henderson et al. in the outer slip layer (first skin layer) of Eichbauer in view of Kvamme et al. in order to improve the film’s ability to resist tear under normal handling, and thereby arrive at the claimed invention.
Eichbauer in view of Kvamme et al. and Henderson et al. do not disclose the outside cling layer (second skin layer) comprises a polyolefin-based thermoplastic elastomer. While Eichbauer the first core layer comprising 100 wt% metallized polyethylene, and the second core layer comprising at most 60 wt% metallocene polyethylene and at least 40 wt% LDPE, Eichbauer in view of Kvamme et al. and Henderson et al. do not disclose metallocene polyethylene is metallocene linear low density polyethylene.
Kinnan et al. disclose a multi-layer stretch wrap film comprising an outer cling layer comprising 50 to 100 wt% ULDPE (ultra low density polyethylene) and 0 to 100 wt% of plastomer (elastomer) (see paragraphs 0015, 0017). The plastomer is ethylene copolymerized with C3-C10 -olefin (see paragraph 0017). That is, the plastomer is propylene-based polyolefin polymer (polyolefin-based thermoplastic elastomer). The cling layer enables the film to cling to itself when the film is wrapped on a load (see paragraph 0014).
In light of motivation for using an outer cling layer comprising 50 to 100 wt% ULDPE (ultra low density polyethylene) and 0 to 100 wt% of plastomer (elastomer) disclosed by Kinnan et al. as described above, it therefore would have been obvious to one of ordinary skill in the art to use 50 to 100 wt% ULDPE (ultra low density polyethylene) and 0 to 100 wt% of plastomer (elastomer) in the outer cling layer of Eichbauer in view of Kvamme et al. and Henderson et al. in order to enable the film to cling to itself when the film is wrapped on a load, and thereby arrive at the claimed invention.
While Eichbauer the first core layer comprising 100 wt% metallized polyethylene, and the second core layer comprising at most 60 wt% metallocene polyethylene and at least 40 wt% LDPE, Eichbauer in view of Kvamme et al., Henderson et al. and Kinnan et al. do not disclose metallocene polyethylene is metallocene linear low density polyethylene.
Hawighorst et al. disclose a core layer comprising metallocene linear low density polyethylene (mLLDPE) which improves tensile strength and tear propagation resistance of the core layer (see paragraph 0075).
In light of motivation for using metallocene linear low density polyethylene (mLLDPE) in the core layer disclosed by Hawighorst et al. as described above, it therefore would have been obvious to one of ordinary skill in the art to use metallocene linear low density polyethylene (mLLDPE) as the metallocene polyethylene in each of the first core layer and the second core layer in Eichbauer in view of Kvamme et al., Henderson et al. and Kinnan et al. in order to improves tensile strength and tear propagation resistance of the first core layer and the second core layer, and thereby arrive at the claimed invention.
Accordingly, Eichbauer in view of Kvamme et al., Henderson et al., Kinnan et al. and Hawighorst et al. disclose the multilayer cling film as presently claimed. Given that the multilayer film comprises the first skin layer, the first core layer, the second core layer and the second skin layer identical to that presently claimed including the polymer compositions of the layers, the multilayer film necessarily inherently exhibits tear resistance contributed by the polymer compositions of the layers, including the first skin layer.
Regarding claim 7, Eichbauer in view of Kvamme et al., Henderson et al., Kinnan et al. and Hawighorst et al. disclose the outer slip layer (first skin layer) identical to that presently claimed. Given that the outer slip layer (first skin layer) comprises the linear low-density polyethylene, the high-density polyethylene and the ionomer identical to that presently claimed, with the amounts of the linear low-density polyethylene, the high-density polyethylene and the ionomer overlapping with that presently claimed as well as density and melt flow of the linear low-density polyethylene and the high-density polyethylene overlapping with that presently claimed, within the overlapping ranges, the outer slip layer (first skin layer) necessarily inherently has a coefficient of friction as presently claimed.
Regarding claim 8, Eichbauer in view of Kvamme et al., Henderson et al., Kinnan et al. and Hawighorst et al. disclose the multilayer cling film as set forth above. Given the outer cling layer (second skin layer) and the core layers of Eichbauer in view of Kvamme et al., Henderson et al., Kinnan et al. and Hawighorst et al. are identical to that presently claimed, the outer cling layer (second skin layer) necessarily inherently has a cling force to the core layers as presently claimed.
Regarding claims 9 and 10, Eichbauer disclose that the outer slip layer (first skin layer) comprises about 5 to about 25 wt% of total film weight (see col. 8, lines 50-53). The outer cling layer (second skin layer) comprises about 5 to about 25 wt% of total film weight (see col. 8, lines 45-50). The inner film layers of the puncture resistant film material (core layers) comprise about 20 to about 85 wt% of total film weight (see col. 8, lines 57-62). That is, each core layer (first core layer and second core layer) is about 10 to about 42.5 wt% of total film weight.
Regarding claim 11, Eichbauer in view of Kvamme et al., Henderson et al., Kinnan et al. and Hawighorst et al. disclose the multilayer cling film as set forth above.
Eichbauer in view of Kvamme et al. and Henderson et al. disclose the outer slip layer (first skin layer) comprising 70 to 99 wt% of LLDPE, up to 30 wt% of HDPE and about 5 to about 60 wt% of ionomer resin.
Eichbauer in view of Kvamme et al., Henderson et al., and Kinnan et al. disclose a multi-layer stretch wrap film comprising an outer cling layer comprising 50 to 100 wt% ULDPE (ultra low density polyethylene) and 0 to 100 wt% of polyolefin-based thermoplastic elastomer.
Eichbauer in view of Kvamme et al., Henderson et al., Kinnan et al. and Hawighorst et al. disclose the first core layer comprising 100 wt% metallocene linear low density polyethylene (mLLDPE), and the second core layer comprising at most 60 wt% metallocene linear low density polyethylene (mLLDPE) and at least 40 wt% LDPE.
Regarding claim 21, Eichbauer in view of Kvamme et al., Henderson et al., Kinnan et al. and Hawighorst et al. disclose the multilayer cling film as set forth above. Given that Henderson et al. disclose that the outer slip layer (first skin layer) comprises the ionomer resin which is a tear resistant additive, the outer slip layer (first skin layer) of Eichbauer in view of Kvamme et al., Henderson et al., Kinnan et al. and Hawighorst et al. comprises the ionomer resin as additive that contribute to the tear resistance of the film.
Claims 13-20 are rejected under 35 U.S.C. 103 as being unpatentable over Eichbauer (5,752,362 cited in IDS) in view of Kvamme et al. (US 2010/0047599 A1 cited in IDS), Henderson et al. (US 2005/0048303 A1), Kinnan et al. (US 2014/0272443 A1 cited in IDS) and Hawighorst et al. (US 2014/0319004 A1 cited in IDS).
Regarding claims 13-16, Eichbauer discloses a stretch wrap film (multilayer cling film) consisting of outside cling layer 10 (second skin layer), a first puncture resistant layer 20 (first core layer), a second puncture resistant layer 20 (second core layer) and an outside slip layer 40 (first skin layer) (see Figure 2 and col. 7, lines 26-33). That is, the first skin layer is a slip layer and the second skin layer is a cling layer.
The outside slip layer (first skin layer) comprises a linear low density polyethylene resin (LLDPE) having a density of from about 0.925 g/cm3 to about 0.945 g/cm3, and an MI value of from about 2.0 g/10 min to about 5.0 g/10 min (see col. 5, lines 11-14). The density of “about 0.925 g/cm3” of LLDPE meets presently claimed density of “about 0.920 g/cm3” of LLDPE. The outside cling layer (second skin layer) comprises very low density polyethylene resin (VLDPE) (see col. 4, lines 42-46). VLDPE is same as ultra low density polyethylene (ULDPE) utilized in the present invention (see paragraph 0041 of published application).
Eichbauer discloses the use of LLDPE having an MI of “about 2.0 g/10 min”, while the present claims require LLDPE having an MI of “about 1.0 g/10 min”.
It is apparent, however, that the instantly claimed MI of LLDPE and that taught by Eichbauer 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 MI of LLDPE disclosed by Eichbauer and the MI disclosed in the present claims, it therefore would have been obvious to one of ordinary skill in the art that the MI of LLDPE disclosed in the present claims is but an obvious variant of the MI disclosed in Eichbauer, and thereby one of ordinary skill in the art would have arrived at the claimed invention.
The puncture resistant layer comprises a puncture resistant resin material such as a metallocene polyethylene (see col. 5-6, lines 65-12). Further, the puncture resistant layer can be a blend of the puncture resistant resin material and second resin material such as low density polyethylene (LDPE), wherein the second resin material is present in amount of at least 40 wt% (see col. 6, lines 34-47). Accordingly, the puncture resistant layer can be a blend of at most 60 wt% metallocene polyethylene and at least 40 wt% LDPE. Further, the puncture resistant layers can be constructed with same resins or different resins to tailor the properties of the multilayer film (see col. 7, lines 41-43). Accordingly, the first puncture resistant layer (first core layer) can be 100 wt% metallocene polyethylene and the second puncture resistant layer (second core layer) can be a blend of at most 60 wt% metallocene polyethylene and the at least 40 wt% LDPE.
Eichbauer does not disclose the outside slip layer comprises a high density polyethylene and an ionomer. Eichbauer does not disclose the outside cling layer comprises a polyolefin-based thermoplastic elastomer. While Eichbauer disclose the first core layer comprising 100 wt% metallized polyethylene, and the second core layer comprising at most 60 wt% metallocene polyethylene and at least 40 wt% LDPE, Eichbauer do not disclose metallocene polyethylene is metallocene linear low density polyethylene.
Kvamme et al. disclose a polymer blend comprising HDPE and LLDPE polymer (see Abstract). The HDPE has a melt index of 0.6 g/10 min or less and a density of at least 935 kg/m3, i.e. 0.935 g/cm3 (see page 9, claim 1). The HDPE is present in amount of up to 30 wt% and LLDPE is present in amount of 70 to 99 wt% of the blend (see page 9, claim 11). The films comprising the polymer blend provide increased production speeds, highly advantageous shrink properties, good mechanical properties and optical properties as well as low coefficient of friction (see paragraphs 0008, 0013, 0017 and 0103).
In light of motivation for using polymer blend comprising up to 30 wt% HDPE having density of at least 0.935 g/cm3 and melt index of 0.6 g.10 min or less, and 70 to 99 wt% of LLDPE disclosed by Kvamme et al. as described above, it therefore would have been obvious to one of ordinary skill in the art to use up to 30 wt% of HDPE having density of at least 0.935 g/cm3 and melt index of 0.6 g.10 min or less blended with 70 to 99 wt% of LLDPE of the outer slip layer (first skin layer) of Eichbauer in order to provide increased production speeds, highly advantageous shrink properties, good mechanical properties and optical properties as well as low coefficient of friction, and thereby arrive at the claimed invention.
Eichbauer in view of Kvamme et al. do not disclose the outside slip layer comprises an ionomer. Eichbauer in view of Kvamme et al. do not disclose the outside cling layer comprises a polyolefin-based thermoplastic elastomer. While Eichbauer disclose the first core layer comprising 100 wt% metallized polyethylene, and the second core layer comprising at most 60 wt% metallocene polyethylene and at least 40 wt% LDPE, Eichbauer in view of Kvamme et al., do not disclose metallocene polyethylene is metallocene linear low density polyethylene.
Henderson et al. disclose a multilayer comprising a base layer comprising a polyolefin and a tear resistant additive such as an ionomer resin, wherein the ionomer resin can be Surlyn 1605, Surlyn 1652 and Surlyn 1901 (see Abstract and paragraphs 0036, 0037 and 0041). The ionomer resin is identical to that utilized in the present invention (see paragraph 0020 of published application). As evidenced by the present specification, Surlyn 1605 and Surlyn 1901 are ionomer of ethylene acid acrylate terpolymer, and Surlyn 1652 is ionomer of ethylene acid copolymer. The tear resistant additive is present in amount of about 5 to about 60 wt% of the base layer (see paragraph 0037). The tear resistant additive improves the film’s ability to resist tear under normal handling (see paragraph 0037).
In light of motivation for using about 5 to about 60 wt% of tear resistant additive such as an ionomer resin disclosed by Henderson et al. as described above, it therefore would have been obvious to one of ordinary skill in the art to use about 5 to about 60 wt% of tear resistant additive such as an ionomer resin of Henderson et al. in the outer slip layer of Eichbauer in view of Kvamme et al. in order to improve the film’s ability to resist tear under normal handling, and thereby arrive at the claimed invention.
Eichbauer in view of Kvamme et al. and Henderson et al. do not disclose the outside cling layer comprises a polyolefin-based thermoplastic elastomer. While Eichbauer disclose the first core layer comprising 100 wt% metallized polyethylene, and the second core layer comprising at most 60 wt% metallocene polyethylene and at least 40 wt% LDPE, Eichbauer in view of Kvamme et al. and Henderson et al. do not disclose metallocene polyethylene is metallocene linear low density polyethylene.
Kinnan et al. disclose a multi-layer stretch wrap film comprising an outer cling layer comprising 50 to 100 wt% ULDPE (ultra low density polyethylene) and 0 to 100 wt% of plastomer (elastomer) (see paragraphs 0015, 0017). The plastomer is ethylene copolymerized with C3-C10 -olefin (see paragraph 0017). That is, the plastomer is propylene-based polyolefin polymer (polyolefin-based thermoplastic elastomer). The cling layer enables the film to cling to itself when the film is wrapped on a load (see paragraph 0014).
In light of motivation for using an outer cling layer comprising 50 to 100 wt% ULDPE (ultra low density polyethylene) and 0 to 100 wt% of plastomer (elastomer) disclosed by Kinnan et al. as described above, it therefore would have been obvious to one of ordinary skill in the art to use 50 to 100 wt% ULDPE (ultra low density polyethylene) and 0 to 100 wt% of plastomer (elastomer) in the outer cling layer of Eichbauer in view of Kvamme et al. and Henderson et al. in order to enable the film to cling to itself when the film is wrapped on a load, and thereby arrive at the claimed invention.
While Eichbauer disclose the first core layer comprising 100 wt% metallized polyethylene, and the second core layer comprising at most 60 wt% metallocene polyethylene and at least 40 wt% LDPE, Eichbauer in view of Kvamme et al., Henderson et al. and Kinnan et al. do not disclose metallocene polyethylene is metallocene linear low density polyethylene.
Hawighorst et al. disclose a core layer comprising metallocene linear low density polyethylene (mLLDPE) which improves tensile strength and tear propagation resistance of the core layer (see paragraph 0075).
In light of motivation for using metallocene linear low density polyethylene (mLLDPE) in the core layer disclosed by Hawighorst et al. as described above, it therefore would have been obvious to one of ordinary skill in the art to use metallocene linear low density polyethylene (mLLDPE) as the metallocene polyethylene in each of the first core layer and the second core layer in Eichbauer in view of Henderson et al. and Kinnan et al. in order to improves tensile strength and tear propagation resistance of the first core layer and the second core layer, and thereby arrive at the claimed invention.
Accordingly, Eichbauer in view of Kvamme et al., Henderson et al., Kinnan et al. and Hawighorst et al. disclose the multilayer cling film as presently claimed. Given that the multilayer film comprises the first skin layer, the first core layer, the second core layer and the second skin layer identical to that presently claimed including the polymer compositions of the layers, the multilayer film necessarily inherently exhibits tear resistance contributed by the polymer compositions of the layers, including the first skin layer.
Regarding claim 17, Eichbauer in view of Kvamme et al., Henderson et al., Kinnan et al. and Hawighorst et al. disclose the outer slip layer (first skin layer) identical to that presently claimed. Given that the outer slip layer (first skin layer) comprises the linear low-density polyethylene, the high-density polyethylene and the ionomer identical to that presently claimed, with the amounts of the linear low-density polyethylene, the high-density polyethylene and the ionomer overlapping with that presently claimed as well as density and melt flow of the linear low-density polyethylene and the high-density polyethylene overlapping with that presently claimed, within the overlapping ranges, the outer slip layer (first skin layer) necessarily inherently has a coefficient of friction as presently claimed.
Regarding claim 18, Eichbauer in view of Kvamme et al., Henderson et al., Kinnan et al. and Hawighorst et al. disclose the multilayer cling film as set forth above. Given the outer cling layer (second skin layer) and the core layers of Eichbauer in view of Kvamme et al., Henderson et al., Kinnan et al. and Hawighorst et al. are identical to that presently claimed, the outer cling layer (second skin layer) necessarily inherently has a cling force to the core layers as presently claimed.
Regarding claims 19 and 20, Eichbauer disclose that the outer slip layer comprises about 5 to about 25 wt% of total film weight (see col. 8, lines 50-53). The outer cling layer comprises about 5 to about 25 wt% of total film weight (see col. 8, lines 45-50). The inner film layers of the puncture resistant film material (core layers) comprise about 20 to about 85 wt% of total film weight (see col. 8, lines 57-62). That is, each core layer (first core layer and second core layer) is about 10 to about 42.5 wt% of total film weight.
Response to Arguments
Applicant's arguments filed 07/16/2026 have been fully considered. In light of amendments, new grounds of rejections are set forth above.
Applicants argue that there is support for the film as a whole with tear resistance and there is support for first skin layer composition contribution to tear resistance.
While the background of the present specification (see page 2, last paragraph) recites that the “stretch wrap film is designed to incorporate…. high tear resistance in the transverse direction, good machine direction tear resistance, high resistance to transverse tear when under machine direction tension”, there is no support to recite “the multilayer cling film of the present invention exhibits tear resistance contributed by the polymer compositions of the layer, including the first skin layer”.
Applicants argue that the Examiner's combination requires selecting disparate teachings from references in different fields or with different purposes and assembling them to match the claims. This is classic hindsight reconstruction using the claims as a roadmap, which is impermissible under KSR Int'l Co. V. Teleflex Inc., 550 U.S. 398, 421 (2007) (requiring articulated reasoning with rational underpinning; obviousness cannot be based on "mere conclusory statements").
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, the rejections are not based on hindsight but based on providing a proper motivation from references themselves and therefore the combination is proper.
Applicants argue that Eichbauer does not teach or suggest an ionomer/HDPE/LLDPE blend in the slip skin or a polyolefin TPE in the cling skin.
However, Eichbauer in view of Kvamme and Henderson disclose an ionomer/HDPE/LLDPE blend in the slip skin, and Eichbauer in view of Kinnan disclose polyolefin TPE in the cling skin.
Applicants argue that Kvamme is not directed to stretch wrap or to a dedicated slip skin layer. A PERSON OF ORDINARY SKILL IN THE ART developing stretch wrap would have no motivation to import Kvamme's shrink-film HDPE blend specifically into Eichbauer's slip skin.
Given that Eichbauer disclose the first skin layer (outside slip layer) comprising LLDPE and Kvamme et al. disclose blend of HDPE and LLDPE provides increased production speeds, high advantageous shrink properties, good mechanical properties and optical properties as well as low coefficient of friction, it would have been obvious to one of the ordinary skill in the art to use blend of HDPE and LDPE instead of LLDPE in the first skin layer (outside slip layer) of Eichbauer. Further, properties such as increased production speeds, high advantageous shrink properties, good mechanical properties and optical properties as well as low coefficient of friction are applicable to any layers including the first skin layer (outside slip layer).
Applicants argue that Henderson's films are often PP-compatible and focus on adhesion/label integrity, not high-elongation stretch wrap with balanced slip/cling/tear. A PERSON OF ORDINARY SKILL IN THE ART in the stretch wrap art would not look to adhesive label films as analogous art or be motivated to add Henderson's ionomer (especially at the broad 5-60% levels) to Eichbauer's slip skin. Doing so risks increasing surface energy/COF or compromising the low-COF slip function essential to stretch wrap. MPEP § 2141.01(a) (analogous art must be from the same field or reasonably pertinent to the problem).
Henderson et al. disclose a layer comprising polyolefin and a tear resistant additive such as an ionomer resin. Given that Eichbauer in view of Kvamme et al. disclose the first skin layer (outside slip layer) comprises polyolefin such as LLDPE and HDPE, and given that Henderson et al. provides a proper motivation for using tear resistant additive such as ionomer resin with polyolefin resin, Henderson can be combined with Eichbauer, regardless of the end-use of Henderson et al.
Further, applicants have provided no evidence (i.e. data) to show that addition of ionomer resin of Henderson would render Eichbauer inoperable for its intended purpose.
Further, Henderson is only used as teaching reference in order to teach ionomer resin in combination with polyolefin resin. 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).
Applicants argue that Kinnan is the closest reference (a Berry Global stretch film with dedicated cling/core/slip layers) but uses polystyrene (1-25%) in the slip layer for post-stretch high slip/abrasion resistance and plastomer (0-100%, olefin-based) in the cling layer. It does not teach or suggest replacing or supplementing the slip with an ionomer + HDPE + specific LLDPE blend, nor does it teach the narrow 4-15% TPE range in cling for optimal balance.
However, given that both Eichbauer and Kinnan disclose cling layer, and given that Kinnan provides a proper motivation for using plastomers in the cling layer, Kinnan has been properly combined with Eichbauer. Also, Kinnan is only used for modifying the cling layer of Eichbauer, and not used for modifying the slip layer of Eichbauer.
Further, note that while Kinnan do not disclose all the features of the present claimed invention, Kinnan 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 polyolefin-based thermoplastic elastomer in cling layer, and in combination with the primary reference, discloses the presently claimed invention.
Applicants argue that the Examiner has pieced together: (1) Eichbauer's structure, (2) Kvamme's HDPE for "low COF/mechanicals," (3) Henderson's ionomer for "tear resistance," and (4) Kinnan's plastomer for "cling." No reference or combination teaches or suggests this specific recipe - particularly the narrow weight ranges now recited in the amended claims (80-95% LLDPE / 4- 20% HDPE / 1-15% ionomer in slip; 85-96% ULDPE / 4-15% TPE in cling) - for achieving a stretch wrap with low COF slip skin that contributes to overall tear resistance while preserving high cling and mechanical performance. The narrow ionomer range (1-15%) is critical: higher amounts per Henderson would likely destroy the slip function or processability in a stretch film. The specific LLDPE MI (~1.0 vs. Eichbauer's 2-5) and exact density/MI pair for LLDPE + HDPE are not taught or motivated as obvious variants when all parameters are considered together. See In re Woodruff, 919 F.2d 1575 (Fed. Cir. 1990) (differences not "slight" in context); Titanium Metals Corp. V. Banner, 778 F.2d 775 (Fed. Cir. 1985).
In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). Examiner is using Eichbauer in view of Kvamme et al., Henderson et al., Kinnan et al. and Hawighorst et al. to teach the multilayer cling film as presently claimed.
Regarding the narrow ionomer range, the fact remains that the amount of ionomer disclosed by Henderson overlaps with that presently claimed. As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Further, applicants have provided no evidence (i.e. data) to show criticality of narrow ionomer range (1-15%). Also, applicants have no evidence (i.e. data) to show amounts of ionomer resin taught by Henderson would destroy the slip function or processability in a stretch film.
It is agreed that Eichbauer discloses the use of LLDPE having an MI of “about 2.0 g/10 min”, while the present claims require LLDPE having an MI of “about 1.0 g/10 min”. It is apparent, however, that the instantly claimed MI of LLDPE and that taught by Eichbauer 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 MI of LLDPE disclosed by Eichbauer and the MI disclosed in the present claims, it therefore would have been obvious to one of ordinary skill in the art that the MI of LLDPE disclosed in the present claims is but an obvious variant of the MI disclosed in Eichbauer, and thereby one of ordinary skill in the art would have arrived at the claimed invention.
Applicants argue that even assuming a person of ordinary skill in the art would combine the references, there is no reasonable expectation of success in arriving at the claimed invention. Adding ionomer (per Henderson) to Eichbauer's slip skin risks raising COF beyond the desired 0.1-1.1 range or interfering with cling-layer performance and stretch properties. Ionomers can increase polarity and adhesion; nothing in the art shows a successful stretch wrap using an ionomer-blended slip skin that maintains the required slip/cling/tear balance without migrating additives. The combination would likely require compensatory changes (e.g., additional slip agents) not present in the claims. See In re Rinehart, 531 F.2d 1048 (CCPA 1976) (expectation of success must be reasonable, not speculative).
Regarding “adding ionomer (per Henderson) to Eichbauer's slip skin risks raising COF beyond the desired 0.1-1.1 range or interfering with cling-layer performance and stretch properties”, applicants have provided no evidence (i.e. data) to support their position.
Further, given that the Eichbauer in view of Kvamme et al., Henderson et al., Kinnan et al. and Hawighorst et al. disclose the multilayer cling film including the first skin layer, the core layers and the second skin layer identical to that presently claimed, the multilayer cling film would maintain the required slip/cling/tear balance without migrating additives, absent evidence to the contrary.
Applicants argue that the amended claims require that the multilayer film exhibits tear resistance contributed by the polymer compositions of the layers, including the first skin layer. Eichbauer attributes tear primarily to cores. Henderson teaches ionomer improves tear in label films under normal handling, not in stretch wrap under machine-direction tension/transverse tear stresses (as emphasized in Applicant's background). The combination does not teach or suggest that the specific narrow low- ionomer slip blend contributes meaningfully to tear resistance in the claimed context. It is not "inherent" - inherency requires the property to be necessarily present, not merely possible or present in a different formulation/context. In re Cruciferous Sprout Litig., 301 F.3d 1343 (Fed. Cir. 2002). The Examiner's inherency argument relies on hindsight and ignores the different end- use and formulation constraints.
However, given that the Eichbauer in view of Kvamme et al., Henderson et al., Kinnan et al. and Hawighorst et al. disclose the multilayer cling film including the first skin layer, the core layers and the second skin layer identical to that presently claimed, the multilayer cling film exhibits tear resistance contributed by the polymer compositions of the layers, including the first skin layer, absent evidence to the contrary.
Further, the basis for inherency is not based on mere possibility or probability but based on the fact that the prior art references explicitly meet all the claim limitations. It is the examiner’s position that a sound basis has been set forth for believing that the product of the prior art is the same as that claimed. The Office realizes that the claimed properties are not positively stated by the reference. However, the reference teaches all of the claimed components. Therefore, the claimed properties would be inherently necessarily be capable of being achieved by the prior art. If it is applicant’s position that this would not be the case: (1) persuasive evidence would need to be provided to support this position; and (2) it would be the Office's position that the application contains inadequate disclosure in that there is no teaching as to how to obtain the claimed properties with only the claimed components. Given that it is the examiner’s position that a sound basis has been provided in the rejections of record for believing that the products of the applicant and the prior art are the same, one would expect the claimed properties to necessarily be present (i.e. naturally flow from the prior art), and thus, the burden is properly shifted back to applicant to show that they are not.
Applicants argue that Hawighorst fails to make up for the deficiencies of Eichbauer, Kvamme, Henderson, and Kinnan.
However, note that while Hawighorst do not disclose all the features of the present claimed invention, Hawighorst 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 a specific metallocene polyethylene (mLLDPE) in core layer, and in combination with the primary reference, discloses the presently claimed invention.
Applicants argue that regarding claim 13, the closed "consisting of" structure with these exact narrow weight percentages, specific resin grades (densities/MIs), and balanced slip/cling/tear performance in a stretch wrap context is not taught or suggested by the combination.
However, Eichbauer in view of Kvamme et al., Henderson et al., Kinnan et al. and Hawighorst et al. disclose the multilayer cling film as set forth above. Regarding remaining arguments with respect to Eichbauer in view of Kvamme et al., Henderson et al. and Kinnan et al., the arguments are not persuasive for the same reasons as noted above.
Applicants argue that Hawighorst is directed to flexible packages for absorbent articles (e.g., diapers) using co- extruded three-layer films with high thermoplastic starch content in print/sealing/core layers plus slip agents (fatty acid amides) for sliding/sealability in packaging machinery. It has no relevance to stretch cling wrap films, no ionomer in a slip skin, no TPE cling layer, no metallocene/LDPE cores, and no teachings on tear resistance contributed by a specific LLDPE/HDPE/ionomer slip blend. Hawighorst addresses bio-based/starch films for sealed pouches - a non-analogous art field. A POSA in stretch wrap pallet packaging would not look to Hawighorst for modifications to Eichbauer/Kinnan.
However, Hawighorst has been only used to teach a specific metallocene polyethylene, such as metallocene LLDPE in the core layers. Given that Hawighorst discloses mLLDPE provides tensile strength and tear proportion resistance of the core layer, the motivation provided by Hawighorst would be applicable to the core layer of Eichbauer, regardless of the end-use of Hawighorst.
Applicants argue that the combination stitches together elements from stretch wrap (Eichbauer/Kinnan), shrink films (Kvamme), adhesive labels (Henderson), and starch-based absorbent packaging (Hawighorst) without any teaching or suggestion that one of ordinary skill would combine them in the precise manner and narrow ranges claimed. This is impermissible hindsight reconstruction. See KSR Int'l Co. V. Teleflex Inc., 550 U.S. 398, 421 (2007); MPEP § 2142 (motivation must have a rational underpinning in the art, not the applicant's 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, the rejections are not based on hindsight but based on providing a proper motivation from references themselves and therefore the combination is proper.
Applicants argue that even if a motivation existed, there would be no reasonable expectation of success in achieving the claimed balanced performance. Adding low levels of ionomer (1-15%) with the exact LLDPE/HDPE grades to a slip skin while maintaining low COF (0.1-1.1), high cling from the TPE layer, and tear contribution from the skin itself is not predictable from the broad teachings. Higher ionomer levels (per Henderson) would likely increase COF or reduce stretchability. Hawighorst's slip agent teachings (amides in starch films) further teach away from the claimed non-migrating ionomer blend. The narrow ranges and specific resin parameters produce a synergistic balance (low-slip unwind + high cling + enhanced tear from skin) not suggested by the art. If data showing unexpected results (e.g., superior tear/slip/cling balance or processability) is available, it further supports non-obviousness.
Regarding “Higher ionomer levels (per Henderson) would likely increase COF or reduce stretchability. Hawighorst's slip agent teachings (amides in starch films) further teach away from the claimed non-migrating ionomer blend”, applicants have provided no evidence (i.e. data) to support their position.
Further, given that the Eichbauer in view of Kvamme et al., Henderson et al., Kinnan et al. and Hawighorst et al. disclose the multilayer cling film including the first skin layer, the core layers and the second skin layer identical to that presently claimed, the multilayer cling film would produce a synergistic balance (low-slip unwind + high cling + enhanced tear from skin), absent evidence to the contrary.
Conclusion
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/KRUPA SHUKLA/Examiner, Art Unit 1787
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