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 .
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.
Claim(s) 1 – 20 are rejected under 35 U.S.C. 103 as being unpatentable over Wooster et al. (US 2007/093603 A1), in view of Miranda et al. (US 2019/0002676 A1) and Numilla-Pakarinen et al. (U.S. Patent No. 10,328,678).
With regard to claim 1, Wooster et al. teach a film comprising a sealing layer comprising a homogeneously branched ethylene/olefin interpolymer (Applicant’s “polyethylene A”), wherein the alpha-olefin comprises 4 – 10 carbon atoms (paragraph [0040]). They ethylene/olefin interpolymer preferably has a density of 0.88 g/cm3 (880 kg/cm3) to 0.915 g/cm3 (915 kg/cm3) (paragraph [0043]), which is within Applicant’s claimed range of ≥ 870 and ≤ 920 kg/m3, as determined in accordance with ASTM D792 (2013).
Wooster et al. do not teach fraction of material that is eluted in analytical temperature rising elution fractionation (a-TREF) at a temperature ≤ 30.0°C of ≥ 5.0 wt% and ≤15.0 wt%, with regard to the total weight of the polyethylene; and two distinct peaks in a-TREF curve in elution temperature range between 50°C and 90°C., wherein an elution temperature gap between the two peaks is ≤ 17.5°C.
Wooster et al. teach the ethylene-alpha-olefin interpolymer polymer is similar to Applicant’s polyethylene A, as discussed above. In addition to the information discussed above, Wooster et al. also teach a molecular weight distribution (Mw/Mn) of 1.8 to 2.8 (paragraph [0058]), which overlaps with Applicant’s disclosed polyethylene A molecular weight distribution (Mw/Mn) of 2.0 to 4.0 (spec, paragraph [0027]). Furthermore, Wooster et al. teach the ethylene-alpha-olefin interpolymer has a melt index, determined at 19°0C under a load of 2.16 kg, of 0.2 g/10 min to 200 g/10 min (paragraphs [0010] & [0045]), which overlaps with Applicant’s disclosed polyethylene A melt mass-flow rate, determined at 190°C under a load of 2.16 kg, of ≥ 0.01 and ≤ 10.00 g/10 min (spec, paragraph [0021]).
However, Wooster et al. do not teach other details of Applicant’s polyethylene A, such as an explicit value of Mw, a weight-average molecular weight (Mw) of ≥ 75,000 and ≤ 150,000 g/mol, a number-average molecular weight (Mn) of ≥ 20,000 and ≤ 50,000 g/mol, and a z-average molecular weight (Mz) of ≥ 200,000 and ≤ 400,00 g/mol (spec, paragraph [0027]). Wooster et al. are also silent with regard to the polyethylene copolymer comprising 15 – 30 wt.% moieties derived from 1-octene (spec paragraph [0025]) and equal to or greater than 70 wt.% moieties derived from ethylene (spec paragraph [0022]).
Miranda et al. teach a composition for a film (paragraph [0009]) comprising ethylene alpha-olefin copolymers (paragraph [0011]) comprising an ethylene monomer and an C3-C20 alpha-olefin comonomer (paragraph [0018]), wherein the weight average molecular weight (Mw) in the range of 70-1000 kg/mol (70,000 – 1,000,000 g/mol, which includes Applicant’s disclosed range of 75,000 – 150,00 g/mol), a number average molecular weight (Mn) of 10 – 300 kg/mol (10,000 – 300,000 g/mol, which includes Applicant’s disclosed range of 20,000 – 50,000 g/mol), a Z-average molecular weight (Mz) in the range of 200 to 10,000 kg/mol (200,000 -10,000,000 g/mol, which includes Applicant’s disclosed range of 200,000 – 400,000 g/mol), and a molecular weight distribution (Mw/Mn) in the range of 2 to 20 (paragraphs [0032] – [0034]).
Additionally, the comonomer content is adjusted in each of the three ethylene alpha-olefin present in the blend, such that polyethylene A comprising 0 – 10 wt.% alpha-olefin comonomer results in a CEF peak (elution fraction) in the range of 85°C to 100°C, polyethylene B comprising 10 – 15 wt.% alpha-olefin commoner resulted in a CEF peak (elution fraction) in the range of 70°C to 90°C, and a polyethylene C comprising 15 to 40 wt.% alpha-olefin copolymer resulted in a CEF peak (elution fraction) in the range of 40°C to 75°C (paragraphs [0032] – [0033]). Preferably, the copolymer fraction contains 0 – 30 wt.% alpha-olefin comonomer (paragraph [0018]). Polyethylene A contributes to obtain a higher sealing force, better mechanical properties, such as greater modulus, higher strain in the flow, and higher tensile strength (paragraph [0036]). Polyethylene B also contributes to sealing properties (paragraph [0037]). Polyethylene C contributes to the decrease in sealing temperature and initial sealing temperature, crystallization temperature and melting temperature (paragraph [0038]).
Therefore, based on the teachings of Miranda, it would have been obvious to one of ordinary skill in the art to form the ethylene-alpha-olefin interpolymer (Applicant’s “polyethylene A”) taught by Wooster et al. such that the alpha-olefin comonomer be present in the range of 30 wt.% or less, and as such, the ethylene monomer be present in the range of 60 wt.% or more, the Mw in the range of 70 – 1000 kg/mol, Mn in the range of 10 – 300 kg/mol, and Mz in the range of 200 to 10,000 kg/mol in order to form a film that has a high sealing force, good mechanical properties, a low sealing temperature, low initial sealing temperature, low crystallization temperature and low melting temperature.
The polyethylene A resulting from the teachings of Wooster et al. and Miranda et al. would inherently result in a polyethylene copolymer of the same properties, a fraction of material that is eluted in analytical temperature rising elution fractionation (a-TREF) at a temperature ≤ 30.0°C of ≥ 5.0 wt% and ≤15.0 wt%, with regard to the total weight of the polyethylene; and two distinct peaks in a-TREF curve in elution temperature range between 50°C and 90°C., wherein an elution temperature gap between the two peaks is ≤ 17.5°C.
MPEP 2112 [R-3] states:
The express, implicit, and inherent disclosures of a prior art reference may be relied upon in the rejection of claims under 35 U.S.C. 102 or 103. “The inherent teaching of a prior art reference, a question of fact, arises both in the context of anticipation and obviousness.” In re Napier, 55 F.3d 610, 613, 34 USPQ2d 1782, 1784 (Fed. Cir. 1995) (affirmed a 35 U.S.C. 103 rejection based in part on inherent disclosure in one of the references). See also In re Grasselli, 713 F.2d 731, 739, 218 USPQ 769, 775 (Fed. Cir. 1983).
It has been held that where the claimed and prior art products are identical or substantially identical in structure or are produced by identical or a substantially identical processes, a prima facie case of either anticipation or obviousness will be considered to have been established over functional limitations that stem from the claimed structure. In re Best, 195 USPQ 430, 433 (CCPA 1977), In re Spada, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). The prima facie case can be rebutted by evidence showing that the prior art products do not necessarily possess the characteristics of the claimed products. In re Best, 195 USPQ 430, 433 (CCPA 1977).
Furthermore, Wooster et al. teach the sealing layer comprises an ethylene polymer (B) (Applicant’s “polyethylene B”) (paragraphs [0011], [0016]). The ethylene polymer (B) is another homogeneous ethylene/alpha-olefin interpolymer or a heterogeneously branched interpolymer of ethylene with at least one C3-C20 alpha-olefin (paragraphs [0059] – [0060]), which includes moieties derived from 1-butene, 1-hexene or 1-octene.
Wooster et al. do not teach the sealing layer comprise a polyethylene C, wherein polyethylene C is a low density polyethylene homopolymer.
Numilla-Pakarinen et al. teach a multilayer machine direction-oriented film for packaging materials with good sealing properties, wherein the film comprises at least an (A) layer and (B) layer, at least one of said (A) layer or (B) layer comprises multimodal linear low density polyethylenes (LLDPEs) with a densities in the range of 905 – 940 kg/m3, wherein the multimodal LLDPEs have a lower molecular weight (LMW) component and a higher molecular weight (HMW), wherein said LMW is an ethylene homopolymer and said HMW is an ethylene polymer of at least two C4-C12 alpha olefins (Col. 2, Lines 17 – 19, 40 – 49 & 54 – 65, Col. 3, Line 66 – Col. 4, Line 7). The preferred C4-C12 alpha olefins of the ethylene copolymer are preferably butene, hexene, or octene (Col. 5, Lines 18 – 28 & Col. 6, Lines 5 – 8). The multimodal LLDPE of this composition provides high tear strength at certain post stretching film thicknesses without compromising mechanical properties, such as impact strength, of the film (Col. 1, Lines 1 – 46).
Therefore, based on the teachings of Numilla-Pakarinen et al., it would have been obvious to one of ordinary skill in the art prior to the effective filing date to prefer butene, hexene, and/or octene as the alpha-olefin moiety of the ethylene copolymer (B) (i.e., “polyethylene B”) taught by Wooster et al., as well as incorporation of a low density polyethylene homopolymer into the sealing layer, in order to achieve a sealing layer with superior tear strength without compromising impact strength comprising multi-modal blend of ethylene polymers.
With regard to claim 2, as discussed above, the ethylene-alpha-olefin interpolymer taught by the combined teachings of Wooster et al. & Miranda et al. is of similar structure, and therefore would inherently have the same properties, such as a ratio q2/q1 of an elution quantity of the polyethylene A in a-TREF at a maximum of the peak P2 in the elution curve in the elution temperature interval of between 50.0 and 90.0°C that occurs at the highest temperature (q2) to the elution quantity at the maximum of the peak P1 in the interval of between 50.0 and 90.0°C that occurs at the lowest temperature (q1) is 1.40, the elution quantity being a weight quantity.
With regard to claim 3, as discussed above, the ethylene-alpha-olefin interpolymer taught by the combined teachings of Wooster et al. & Miranda et al. is of similar structure, and therefore would inherently have the same properties, such as a fraction of material that is eluted in a-TREF in the elution temperature range of ≥ 90°C of ≤ 5.0 wt%.
With regard to claim 4, Wooster et al. teaches the ethylene-alpha-olefin discussed above (Applicant’s “polyethylene A”) is present in the sealing layer in the amount of 10 – 95 wt.% (paragraphs [0008] & [0013]), which includes Applicant’s claimed range of ≥ 10.0 wt% and ≤ 90.0 wt.%.
With regard to claim 5, Wooster et al. teaches the sealing layer comprises 5 – 90 wt.% of ethylene polymer (B) (Applicant’s “polyethylene B”) (paragraphs [0011], [0016]), which includes Applicant’s claimed range of ≥ 10.0 wt% and ≤ 70.0 wt.%, with regard to the total weight of the sealing layer.
With regard to claim 6, as discussed above, the ethylene-alpha-olefin interpolymer taught by the combined teachings of Wooster et al. & Miranda et al. is of similar structure, and therefore would inherently have the same properties, such as by determination of the composition of the polyethylene A via a-TREF, difference Δρ in a density ρ2 of the polymer material that is eluted at P2 and a density ρ1 of the polymer material that is eluted at P1 (Δρ = ρ2 – ρ1) is 15 kg/m3.
With regard to claim 7, Wooster et al. teach alpha-olefin is preferably 1-octene (paragraph [0039]).
With regard to claim 8, as discussed above, Miranda et al. teach the ethylene-alpha-olefin (“polyethylene A”) comprising 30 wt.% or less of alpha-olefin (e.g. 1-octene), which includes Applicant’s claimed range of 15 – 30 wt.% 1-octene, had desirable sealing properties.
With regard to claim 9, as discussed above for claim 8, Miranda et al. teach the ethylene-alpha olefin copolymer (“the polyethylene A”) comprising 0 – 30 wt.% alpha-olefin comonomer (paragraph [0018]). Therefore, the remaining 70 wt% or more of the copolymer is derived from ethylene.
With regard to claim 10, Woody et al. teach an ethylene-alpha-olefin copolymer (Applicant’s “polyethylene A”) was formed using a metallocene catalyst (paragraphs [0080] & [0090]). Miranda et al. also teach the ethylene-alpha-olefin copolymer was formed using metallocene catalysts in solution (paragraphs [0011] & [0070]).
With regard to claim 11, Wooster et al. teach an example sealing layer has a thickness of 1.0 mils (25.4 µm) (Table 2), which is within Applicant’s claimed range 1 – 100 µm.
With regard to claim 12, Wooster et al. teach the film may be a monomer (i.e. consists of the sealing layer”) (paragraph [0075]).
With regard to claim 13, Wooster et al. teach the film discussed above for claim 1 may be a multilayer film (paragraph [0075]). As shown in Table 2 (paragraph [0085]), Wooster et al. teach an example in which “layer 3” (an outer layer) of a three-layer film is the sealant layer of the disclosure.
With regard to claim 14, as discussed above, Wooster et al. teach an example comprising layer 1 (an outer layer), layer 2 (an inner layer), and layer 3” (an outer layer) of a three-layer film is the sealant layer of the disclosure.
With regard to claim 15, Wooster et al. teach the multilayer structures comprise from 2 to 7 layers (paragraph [0077]), which overlaps with Applicant’s claimed range of 3 – 15 layers. 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).
With regard to claim 16, the three-layer structure of the example of table 2 discussed above has thicknesses of 0.5 mil/1.0 mil/1.0 mil of the respective layers. 1 mil = 25.4 µm. Therefore, this multilayer structure has a total thickness of structure of 63.5 µm, which is within Applicant’s claimed range of 2 – 150 µm.
With regard to claim 17, as discussed above for claim 1, the polyethylene A resulting from the teachings of Wooster et al. and Miranda et al. would inherently result in a polyethylene copolymer of the same properties, such as the fraction of material that is eluted in analytical temperature rising elution fractionation (a-TREF) at the temperature 30.0°C is ≥ 7.5 wt% and ≤ 12.5 wt%, with regard to the total weight of the polyethylene.
With regard to claim 18, as discussed above for claim 1, the polyethylene A resulting from the teachings of Wooster et al. and Miranda et al. would inherently result in a polyethylene copolymer of the same properties, such as the elution temperature gap between the two peaks is ≤ 15.0°C.
With regard to claim 19, as discussed above for claim 1, Wooster et al. teach the ethylene/olefin interpolymer preferably has a density of 0.88 g/cm3 (880 kg/cm3) to 0.915 g/cm3 (915 kg/cm3) (paragraph [0043]), which overlaps with Applicant’s claimed range of ≥ 900 and ≤ 920 kg/m3, as determined in accordance with ASTM D792 (2013). 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).
With regard to claim 20, as discussed above for claim 1, the polyethylene A resulting from the teachings of Wooster et al. and Miranda et al. would inherently result in a polyethylene copolymer of the same properties, such as the elution temperature gap between the two peaks is ≤ 15.0°C.
Response to Arguments
Applicant argues, “Applicant submits that the combination of cited references does not teach, including inherently all the limitation of claim 1, namely, the claimed a-TREF limitations of polyethylene A. Applicant’s application contains examples to demonstrate that the teachings of the cited references would not necessarily provide such a polyethylene A. More specifically, Example 1 in Applicant’s application as filed satisfies the claimed a-TREF limitations for polyethylene A. Example 2 is not covered by claim 1 despite aligning with the general teachings and compositional windows of Wooster and Miranda” (Remarks, Pg. 2).
“Applicant submits that this comparison is dispositive on inherency. The Office action’s theory of obviousness assumes that combining Wooster’s component (A) with Miranda’s general compositional guidance would inherently yield a polyethylene A fraction with the claimed a-TREF limitations. Example 2 is a concrete counter-example. It fits the cited references’ broad density/melt index/comonomer teachings but lacks the claimed a-TREF limitations (Remarks, Pg. 3).
EXAMINER’S RESPONSE: Applicant's arguments have been fully considered but they are not persuasive. First, Applicant appears to be confusing the example numbers (example 1 vs. example 2) with the polyethylene numbers (PE1 vs PE2) in their working examples that correspond to the recited polyethylene A of claim 1. See Applicant’s tables below.
Applicant’s Example 1 does not meet claim 1 requirements of three distinct polyethylene polymers. Example 1 consists only of PE1 (the recited polyethylene A). See paragraph [0054] of the specification. PE2 is a comparative example of polyethylene A outside the claimed a-TREF range; PE3 corresponds to Applicant’s claimed polyethylene B; PE4 corresponds to Applicant’s claimed polyethylene C. See table below.
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314
910
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Greyscale
Furthermore, contrary to Applicant’s assertion, Example 2 contains PE1 (recited polyethylene A), but does not contain any PE2 (comparative polyethylene A). See Applicant’s table below.
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310
622
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Greyscale
Second, based on the data provided by Applicant’s specification, the only difference between PE1 (inventive polyethylene A) and PE2 (comparative polyethylene A) is the amount of 1-octene in the copolymer (19.8 wt.% vs. 19.1 wt.%). See first table above. As noted on pgs. 4 – 5 of the previous office action, Wooster et al. is silent with regard to the amount of octene-1 in polyethylene A, but Miranda teaches a polyethylene comprising a comonomer (i.e., octene) content in the range of 0 – 30 wt%, which includes Applicant’s inventive and comparative polyethylene A samples comprising octene in the amounts of 19.1 wt.% and 19.8 wt.%.
Applicant asserts the teachings of the cited prior art align with Applicant’s PE2 (comparative polyethylene A), but Applicant’s argument ignores the fact that the teachings of the prior art also align with Applicant’s PE1 (Applicant’s inventive polyethylene A). Applicant’s argument of dispositive inherency is not persuasive because Applicant ignores the fact that within the range of octene content values in the polyethylene A taught by the reference is an embodiment that has the same octene content (19.8 wt.%) as PE1 (Applicant’s polyethylene A of their example 1).
When reading a prior art reference, it is important to understand that every value within the content range of comonomer (i.e., octene) of the polyethylene (A) disclosed by the secondary reference Miranda et al. is a separate and distinct embodiment taught by the reference. The fact that some of the embodiments taught by the reference align with Applicant’s comparative polyethylene A example (PE2) does not disprove the fact that another embodiment taught by the reference align with Applicant’s inventive polyethylene A example (PE1), and that this other embodiment would inherently have the claimed properties. Applicant has not effectively demonstrated that the embodiment taught by the reference that contains the same amount of octene (19.8 wt.% octene in PE1) does not inherently result in the same a-TREF results. Therefore, the rejection based on inherency is maintained.
Third, the fact that the inventor has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious. See MPEP 2112.
Fourth, if Applicant is attempting to assert unexpected results of a-TREF values when considering 19.8 wt.% of octene-1 in polyethylene A compared to 19.1 wt.% of octene-1 of polyethylene A in the non-inventive examples of polyethylene A (both of which are taught in the range of possible octene-1 values by the cited prior art), then further action is needed by Applicant to meet the standards of unexpected results discussed in MPEP 716.02(d). For example, a showing of unexpected results requires evidence of nonobviousness must be commensurate in scope with the claims which the evidence is offered to support. In re Clemens, 622 F.2d 1029, 1036, 206 USPQ 289, 296 (CCPA 1980).
Applicant argues, “Paragraph [0060] further underscores the lack of inherency of the combined teachings of Wooster and Miranda. Specifically, sealing behavior, which can be closely tied to microstructural distributions characterized by a-TREF, varies between compositions prepared under similar conditions. ‘As can be observed, the strength of the seals of the films of example 1 do not differ …; in the case of the films of example 2, one can clearly observe a deterioration of the seal strength.’). Applicant’s application, pg. 15, lns. 10 – 12. The Office Action therefore cannot rely on inherency to meet the a-TREF limitations” (Remarks, Pg. 3).
EXAMINER’S RESPONSE: Applicant's arguments have been fully considered but they are not persuasive. As discussed on pgs. 4 – 5 of the previous office action, Miranda teaches sealing behavior varies between compositions containing different amount of alpha-olefin comonomer (i.e., octene) in a polyethylene blend. Furthermore, as discussed above, the combined teachings of Wooster and Miranda includes an embodiment which aligns with Applicant’s PE1 (inventive polyethylene A). Therefore, the rejection based on inherency is reasonable.
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 NICOLE T GUGLIOTTA whose telephone number is (571)270-1552. The examiner can normally be reached M - F (9 a.m. to 10 p.m.).
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/NICOLE T GUGLIOTTA/Examiner, Art Unit 1781
/FRANK J VINEIS/Supervisory Patent Examiner, Art Unit 1781