DETAILED OFFICIAL ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Examiner Note
It is noted that all references hereinafter to Applicant’s specification (“spec”) are to the published application US 2023/0095919, unless stated otherwise. Further, any italicized text utilized hereinafter is to be interpreted as emphasis placed thereupon.
Response to Amendment
The Amendment filed 19 June 2025 in response to the Non-Final Rejection dated 02 June 2025 (hereinafter “NFOA”) has been entered. Claim 1 has been amended, and claims 2, 6, and 8 have been canceled. As such, claims 1, 3, 5, and 9 remain pending and under consideration on the merits.
The amendments to claim 1 have overcome the objection to claim 1 previously set forth [NFOA, ¶7]. As such, the objection has been withdrawn, and the Examiner thanks Applicant for correction of the issues.
The amendments to claim 1 have overcome the rejection of claims 1 and 5 under 35 U.S.C. 102(a)(1) as anticipated by Tanaka [NFOA, ¶10-18], the rejection of claims 1-3, 5-6, and 8-9 under 35 U.S.C. 102(a)(1) as anticipated by Okude [NFOA, ¶19-20], and the rejection of claims 1-3, 5-6, and 8-9 under 35 U.S.C. 103 as unpatentable over Okude [NFOA, ¶22-32]. The 102(a)(1) and 103 rejections have been withdrawn.
New grounds of rejection are set forth below, necessitated by the amendments to the claims and made in view of alternative/additional interpretation(s) of the previously cited prior art of record to Okude.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1, 3, 5, and 9 are rejected under 35 U.S.C. 103 as being unpatentable over Okude (CN 104334459 B; “Okude”) (previously cited).
Regarding claim 1, Okude discloses a multilayer container material, and container formed therefrom suitable for packaging liquids [0002, 0004, 0008-0009, 0028, 0080; Figs. 2-3]. The material (formed by extrusion lamination) exhibits the following layers in the order stated, in accordance with Okude [0028-0033, 0037, 0042, 0051, 0056, 0072, 0089, 0095, 0097, 0099; Fig. 2], wherein the corresponding claimed layers (A-F) of the liquid-packaging carton material defined by claim 1 are indicated by the italicized text in parentheses, e.g. (reads on layer B).
layer (A) – thermoplastic resin, LDPE (outer surface side) (reads on layer B)
layer (B) – paper (reads on layer A)
layer (E) – thermoplastic resin, linear-LDPE (LLDPE) (reads on layer C)
layer (C) – barrier, aluminum foil (reads on layer D)
layer (F) – adhesive, ethylene-methyl acrylate copolymer (EMAA) having MFR of 2.0 to 16.0 g/10 min [0099] (reads on layer E)
layer (D) – thermoplastic resin, LLDPE having MFR 2.0 to 16.0 g/10 min [0032, 0097] (reads on layer F)
The MFR range (2.0 to 16.0) of the EMAA copolymer forming adhesive layer (F) (layer E) encompasses, and thereby renders prima facie obvious the claimed adhesive resin (layer E) MFR range of 6 to 9 g/10 min (MPEP 2144.05(I)). The MFR range (2.0 to 16.0) of the LLDPE forming layer (D) (layer F) overlaps with, and thereby renders prima facie obvious the claimed thermoplastic resin (layer F) MFR range of 15 g/10 min or more (MPEP 2144.05(I)).
In view of thereof, Okude discloses an exemplary embodiment of the multilayer material [Example 20], wherein layer (F) is formed from EMAA copolymer (NC0908C, Mitsui Dupont) having MFR of 8.0 g/10 min [0120-0121, 0169-0170] (within claimed adhesive resin (layer E) MFR range of 6 to 9 g/10min), and wherein layer (D) is formed from LLDPE having an MFR of 12.0 g/10 min [0169-0170], of which is greater than the MFR of the EMAA copolymer of layer (F). As such, Okude reasonably teaches that the LLDPE forming layer (D) exhibits a higher MFR than the MFR of the EMAA copolymer forming layer (F) (claim 1, thermoplastic resin (layer F) having higher MFR than the MFR of adhesive resin (layer E)).
Further, it is noted that Okude teaches that when the MFR ranges of the EMAA copolymer and the LLDPE are each within the range of 2.0 to 16.0 g/10 min, the continuity of extrusion lamination (forming the material) becomes easy, and the interlayer adhesion strength between layers (F) and (D) is increased, allowing/providing for horizontal sealing capability and increased pinhole resistance after boiling [0056, 0097, 0099].
In view of the totality of the foregoing (¶9-12 above), and in view of MPEP 2123(I) and (II) and MPEP 2144.05(I) and (II), it would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to have adjusted (i.e. increased/decreased) the MFR of each of the EMAA copolymer of layer (F) and LLDPE of layer (D) within their respective ranges of 2.0 to 16.0 g/10 min – starting from/inclusive of the MFR of LLDPE being greater than that of EMAA – through routine experimentation in order to have optimized any one or more of the extrudability, interlayer adhesion strength (layer (F)–layer (D)), and pinhole resistance of the multilayer material, or alternatively to have achieved a predetermined/desired degree of thereof.
The aforesaid routine experimentation/optimization – in light of and in accordance with the teachings/Examples of Okude set forth/cited above where the MFR of LLDPE is higher than that of EMAA, and the EMAA MFR is suitably 8.0 g/10 min – would have necessarily resulted in embodiment(s) of the multilayer material where the MFR of the EMAA copolymer would have been within (increased/decreased over) the claimed range of 6.0 to 9.0 g/10 min, e.g. 8.0 g/10 min, and the MFR of the LLDPE would have been increased to 15.0 g/10 min, e.g. up to a maximum of 16.0 g/10 min.
In accordance with the foregoing modification, Okude encompasses, and renders prima facie obvious, the embodiment(s) of the multilayer material where the MFR of the EMAA copolymer forming layer (F) (adhesive resin layer E) would have been 8.0 g/10 min, and the MFR of the LLDPE forming layer (D) (thermoplastic resin layer F) would have been 15 g/10 min, up to 16.0 g/10 min, each of said MFR values being within the respective claimed ranges (adhesive resin, 6 to 9 g/10 min; thermoplastic resin 15 g/10 min or more) and the MFR of LLDPE being higher than the MFR of EMAA (melt mass-flow rate of thermoplastic resin higher than melt mass-flow rate of adhesive resin).
The embodiments of the multilayer material of Okude, set forth/cited above and in accordance with the modification above (hereinafter “modified Okude”), read on the liquid-packaging carton material defined by each and every limitation of claim 1.
Applicant is respectfully directed to MPEP 2144.05(II)(A) and (II)(B), which indicate that where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation – the normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set of percentage ranges is the optimum combination of percentages. Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. A change in form, proportions, or degree ‘will not sustain a patent’ – it is a settled principle of law that a mere carrying forward of an original patented conception involving only change of form, proportions, or degree, or the substitution of equivalents doing the same thing as the original invention, by substantially the same means, is not such an invention as will sustain a patent, even though the changes of the kind may produce better results than prior inventions.
Regarding claim 3, the rejection of claim 1 above reads on the liquid-packaging carton material defined by claim 3.
Regarding claim 5, the rejection of claim 1 above is incorporated herein by reference (not repeated) and reads on the liquid-packaging carton defined by claim 5. That is, in accordance with the disclosure of Okude set forth/cited above, it would have been obvious to have formed a liquid-packaging carton from the embodiment(s) of the multilayer material of modified Okude, i.e. from the embodiments of the multilayer material resultant from the foregoing experimentation/optimization.
Regarding claim 9, in view of the rejection of claim 3 above, the grounds of rejection of claim 5 above are incorporated herein by reference (not repeated) and apply to, and read on, the liquid-packaging carton defined by claim 9 in the same manner.
Response to Arguments
Applicant’s arguments presented on pp. 4-6 of the Remarks filed 02 December 2025 have been fully considered and found persuasive. Accordingly, and as stated above, the objection to claim 1 and rejections under 35 U.S.C. 102(a)(1) previously set forth in the NFOA have been withdrawn.
Applicant’s arguments presented on p. 7 of the Remarks regarding Okude and the corresponding rejection of the claims under 35 U.S.C. 103 previously set forth in the NFOA have been fully considered, but are moot as the 103 rejection previously set forth [NFOA, ¶22-32] has been withdrawn.
However, the aforesaid arguments presented on p. 7 of the Remarks, taken as directed to Okude in the context of the new grounds of rejection under 35 U.S.C. 103 set forth above to facilitate compact/expedient prosecution, have not been found persuasive.
Applicant asserts that Okude does not disclose a technical effect associated with the MFR of layer (D) (LLDPE) being higher than that of the MFR of layer (F) (EMAA), and further, that the examples of Okude include encompass embodiments where said MFRs are equal and where the MFR of layer (F) is greater than that of (D).
However, it is first noted that Okude explicitly discloses multiple examples of the multilayer material where the MFR of layer (D) (LLDPE) is greater than the MFR of layer (F) (EMAA), including Example 20 [0169-0170; 0109-0124] relied upon above in the grounds of rejection, wherein the MFR of EMAA forming layer (F) (reads on claimed layer E) is 8.0 g/10 min [0120-0121] and the MFR of LLDPE forming layer (D) (reads on claimed layer F) is 12.0 g/10 min [0170]. Additionally, Example 21 [0171-0172; 0109-0124] utilizes LLDPE having an MFR of 11.0 g/10 min to form layer (D) and the EMAA having MFR of 8.0 g/10 min to form layer (F). Therefore, Okude explicitly discloses, and reasonably teaches one of ordinary skill, that the MFR of (thermoplastic) layer (D) may be greater than the MFR of (adhesive) layer (F).
Furthermore, Okude explicitly attributes the LLDPE MFR range of 2.0 to 16.0 g/10 min, in conjunction with the EMAA MFR range of 2.0 to 16.0 g/10 min, to multiple technical effects (see ¶12 above) [Okude, 0056, 0097, 0099], in direct contrast to Applicant’s assertion on p. 7 of the Remarks.
In view of the foregoing, it is the Examiner’s position that Okude provides more than sufficient motivation for one of ordinary skill in the art to have, prior to the effective filing date of the claimed invention, made the modifications set forth above in the rejection under 35 U.S.C. 103 (see ¶10-17).
For these reasons above, Applicant’s arguments taken as directed to the new grounds of rejection under 35 U.S.C. 103 set forth above have not been found persuasive.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the Examiner should be directed to Michael C. Romanowski whose telephone number is (571)270-1387. The Examiner can normally be reached M-F, 09:30-17:30.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, Applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the Examiner by telephone are unsuccessful, the Examiner’s supervisor, Aaron Austin can be reached at (571) 272-8935. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/MICHAEL C. ROMANOWSKI/Primary Examiner, Art Unit 1782