DETAILED 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 .
Response to Amendment
Amendments to the claims, filed on 2/10/25, have been entered in the above-identified application.
Any rejections made in the previous action, and not repeated below, are hereby withdrawn.
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claim Rejections - 35 USC § 103
Claim 1-4 and 6-12 are rejected under 35 U.S.C. 103 as being unpatentable over Mueller et al (US 2009/0317611 A1).
Regarding claims 1-4 and 6-8, Mueller teaches a multilayer barrier film comprising a first outer layer (12), a first inner layer (14) adjacent to the first out layer, a second inner layer (16) adjacent to the a first inner layer, a third inner layer (18) adjacent to the second inner layer, and a fourth inner layer (20); wherein a film having a greater number of layers than that shown care included (para 66; fig 1); and be formed into a pouch including that of a sealing layer (i.e.., second outer layer; the second outer layer comprises a sealing material); so the fourth inner layer is located between the third inner layer and the second out layer (e.g., sealing layer). Mueller further teaches wherein the first outer layer (12) is in direct contact with the first inner layer (14), which is in direct contact with the second inner layer (16), which is in direct contact with the third inner layer (18) (fig 1).
Mueller teaches the outer layer may be polyamide having a moisture vapor permeability greater than about 40 g-mil/100 in2-day (i.e., a first outer layer comprising a first polymeric material having a moisture vapor transmission rate (MVTR) of greater than or equal to 10 gram.mil/100in2/day; wherein the first polymeric material is not a retortable grade ethylene vinyl alcohol (EVOH) copolymer, wherein the first polymeric material of the first outer layer independently comprises a polyamide; wherein the moisture vapor transmission rate (MVTR) of the first polymeric material of the first outer layer is in a range of greater than or equal to 10 gram.mil/100in2/day to less than 80 gram.mil/100in2/day) (para 71).
Mueller teaches the first inner layer and third inner layer comprising a first grade ethylene vinyl alcohol copolymer (para 67). Mueller further teaches the multilayer barrier film is subjected to being autoclaved (para 65, 79, 81) which would have suggested or otherwise rendered obvious to one of ordinary skill in the art at the time of invention the use of a retortable grade (EVOH) copolymer.
Mueller teaches the second inner layer comprising a second polymeric material having a moisture vapor transmission rate (MVTR) of greater than or equal to 10 gram.mil/100in2/day and wherein the moisture vapor transmission rate (MVTR) of the second polymeric material of the second inner layer is in a range of greater than 10 gram.mil/100in2/day to less than 80 gram.mil/100in2/day (e.g., moisture vapor permeability of less than about 20 g-mil/100 in2-day-atm) (para 83).
Mueller teaches the fourth inner layer (20) comprises a third polymeric material such as polypropylene (para 67, 88)
Mueller fails to teach the second polymeric material of the second inner laver independently comprises a polyamide; wherein the moisture vapor transmission rate (MVTR) of the second polymeric material of the second inner layer is greater than 20 gram.mil/100in2/day.
However, Mueller teaches the use of polyamide and EVOH positioned in adjacent film layers (para 72); and Mueller would have suggested polyamides having an (MVTR) of greater than 20 gram.mil/100in2/day (para 72); so, it would have been obvious to one of ordinary skill in the art at the time of invention to use a polyamide film as the second inner layer to adjust or greaten the MVTR multilayer barrier film. One of ordinary skill in the art at the time of invention would have been performing a simple substitution of one known element for another (e.g., a polyamide film for the second inner layer) to obtain predictable results (e.g., a multilayer barrier film with an adjusted or greater MVTR).
Regarding claims 9 and 10, Mueller teaches the use of sublayers in general as well as the outer layer comprising sublayers comprising polyolefins; and the use of tie layers (para 9-12, 19, 68, 84, 91, 94; fig 2); so Mueller would have suggested or otherwise rendered obvious to one of ordinary skill in the art at the time of invention wherein the second outer layer comprises two or more sublayers; wherein a first sublayer of the second outer layer comprises a polyolefin and a second sublayer of the second outer layer is a tie layer, such that the second sublayer is between the first sublayer and either the third inner layer.
Regarding claim 11, Mueller would have suggested or otherwise rendered obvious to one of ordinary skill in the art at the time of invention the structure, composition, and method of making the multilayer barrier film; so it is deemed to be thermoformable.
As stated in In re Best, 562 F.2d 1252, 1255 (CCPA 1977): Where, as here, the claimed and prior art products are identical or substantially identical, or are produced by identical or substantially identical processes, the PTO can require an applicant to prove that the prior art products do not necessarily or inherently possess the characteristics of his claimed product. [citation omitted] Whether the rejection is based on "inherency" under 35 U.S.C. § 102, on "prima facie obviousness" under 35 U.S.C. § 103, jointly or alternatively, the burden of proof is the same, and its fairness is evidenced by the PTO's inability to manufacture products or to obtain and compare prior art.
Regarding claim 12, the limitation “coextruded” of the instant claim is a product by process limitation and does not determine the patentability of the product, unless the process results in a product that is structurally distinct from the prior art. The process of forming the product is not germane to the issue of patentability of the product itself, unless Applicant presents evidence from which the Examiner could reasonably conclude that the claim product differs in kind from those of the prior art (MPEP § 2113). No difference can be discerned between the product that results from the process steps recited in claim 12 and the product of Mueller. Furthermore, Mueller teaches its multilayer barrier films, and therein its layer, may be coextruded (para 95-97).
Response to Arguments
Applicant's arguments filed 2/10/25 have been fully considered but they are not persuasive.
Applicant contends that Mueller characterizes the third layer as “comprising low permeable material” and having a moisture vapor permeability of less than 20 g-mil/100 in2-day-atm. Mueller characterizes the outer layer as “comprising highly permeable material” and having a moisture vapor permeability of greater than 40 g-mil/100 in2-day-atm. These characteristics are repeated throughout Mueller and are critical to the expected performance of the films disclosed therein. From this, it is clear that Mueller is teaching that the third layer SHOULD NOT comprise the same type of polymer as a single polymer could not meet both of the moisture vapor transmission targets. Mueller teaches that polyamide is appropriate for the highly permeable outer layer, and it would be easily understood that such a material would not be appropriate for the low permeable third layer. Such a structure, having polyamide comprised in each of the outer layer and the third layer (second inner layer in the current claims), would be against the teaching of Mueller modified as suggested by the examiner.
This is not persuasive since Mueller suggests other embodiments, e.g., as can be appreciated by those having ordinary skill in the art, multilayer films within the scope of the presently disclosed subject matter are not limited to the five-layer structure depicted in FIG. 1 (para 66). Therefore, since Mueller teaches the use of polyamide and EVOH positioned in adjacent film layers (para 72); and Mueller would have suggested polyamides having an (MVTR) of greater than 20 gram.mil/100in2/day (para 72); so, it would have been obvious to one of ordinary skill in the art at the time of invention to use a polyamide film as the second inner layer to adjust or greaten the MVTR multilayer barrier film. One of ordinary skill in the art at the time of invention would have been performing a simple substitution of one known element for another (e.g., a polyamide film for the second inner layer) to obtain predictable results (e.g., a multilayer barrier film with an adjusted or greater MVTR).
Conclusion
THIS ACTION IS MADE FINAL. 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 NATHAN L VAN SELL whose telephone number is (571)270-5152. The examiner can normally be reached Mon-Thur, Generally 7am-6pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, M. Veronica Ewald can be reached on 5712728519. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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NATHAN VAN SELL
Primary Examiner
Art Unit 1783
/NATHAN L VAN SELL/ Primary Examiner, Art Unit 1783
