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 2023/0166486, unless stated otherwise. Further, any italicized text utilized hereinafter is to be interpreted as emphasis placed thereupon.
Response to Amendment
The Amendment filed 23 June 2026 in response to the Non-Final Rejection dated 24 March 2026 (hereinafter “NFOA”) has been entered. Claims 1, 6, 11, and 16 have been amended – claims 1-18 remain pending and under consideration on the merits.
The amendment to the specification filed 23 June 2026 has been entered.
The amendments to claims 1 and 11 have overcome the corresponding objections [NFOA, ¶21]. As such, the objections to claims 1 and 11 have been withdrawn.
The amendments to claims 1, 6, 11, and 16 have overcome the rejection of claims 1-18 under 35 U.S.C. 112(a) [NFOA, ¶12-19]. As such, the 112(a) rejection has been withdrawn, and the Examiner thanks Applicant for acknowledgement and correction of the issues.
The rejection of claims 1-18 under 35 U.S.C. 103 as being unpatentable over Kelly in view of Eisenbarth [NFOA, ¶24-43] is maintained hereinbelow. Applicant’s arguments presented in the Remarks filed 23 June 2026 (hereinafter “Remarks”) have been fully considered but not found persuasive – see “Response to Arguments” following the 103 rejection.
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 1-18 are rejected under 35 U.S.C. 103 as being unpatentable over Kelly et al. (WO 2020/068053; “Kelly”) (previously cited), in view of Eisenbarth et al. (US 2005/0031231; “Eisenbarth”) (previously cited).
Regarding claim 1, Kelly discloses a liner for bulk containers, said liner including at least one sidewall, e.g. a first sidewall and a second sidewall each comprising an edge, wherein the liner has a volume of 208 L or greater [Abstract; Figs. 1-3; p. 1 ln. 1-20; p. 2 ln. 1-21; p. 3 ln. 16-26; p. 6 ln. 3-5]. Each of the first sidewall and second sidewall include an interior ply comprising a multilayer film, and an exterior ply comprising a multilayer film, wherein the exterior ply and interior ply are discrete plies, characterized as having an adhesion therebetween (unsealed area) of from 0 g/in to 50 g/in [Abstract; p. 2 ln. 10; p. 3 ln. 25-26; p. 5 ln. 10-26; p. 6 ln. 20-21; p. 19 ln. 1-10]. The liner includes a seal(s) positioned at or near the edges of the sidewall(s) [Fig. 1; p. 6 ln. 1-8].
The interior ply of the first sidewall, and the interior ply of the second sidewall, are formed from a first polyethylene that is linear low-density polyethylene (LLDPE), blended with a first polyolefin-silicone copolymer, e.g. EXFOLA (Mitsui Chemicals America) – the first polyolefin-silicone is present, relative to the weight of the (respective) interior ply, in an amount of 0.1-10 wt.%, and the LLDPE is present in an amount of 40-99.9 wt.% [p. 9 ln. 20–p. 11 ln. 9]. Thus, Kelly reasonably discloses/teaches each interior ply comprising at least 40 wt.% LLDPE and 0.1 wt.% polyolefin-silicone, thereby defining a total minimum of 40.1 wt.% relative to the weight of the interior ply.
Further, Kelly teaches that each interior ply may include, inter alia polypropylene, e.g. as a barrier material [p. 11 ln. 17-22]. That is, Kelly recognizes the use of propylene-based polymers in the liner. Further, Kelly teaches that each interior ply may include processing additives and/or be blended with other materials, including polyolefins [p. 10 ln. 17-25].
With respect to the difference(s) relative to the liner for a bulk container defined by claim 1, Kelly is silent regarding the interior plies comprising 5-50 wt.% of a propylene alpha-olefin copolymer having a density from 0.865-0.900 g/cm3.
Eisenbarth is directed to liners for bulk containers (bulk bags) [Abstract; Figs. 1-2; 0002, 0011, 0014-0016]. Eisenbarth teaches that the liner is formed from ADFLEX Q 100F (Basell Polyolefins) [Abstract; 0016]. Eisenbarth teaches that ADFLEX Q 100F (hereinafter abbreviated “ADFLEX”) is a thermoplastic polyolefin exhibiting flexibility, very high softness, and low modulus; does not contain any slip or anti-blocking agents; is ideal for soft, heavy duty hygienic film; and is suitable/intended for use in modifying (i.e. blending with) LDPE or LLDPE to increase the mechanical characteristics and puncture resistance thereof, and to allow for downgauging (i.e. of resultant films) [Eisenbarth, p. 3]. Further, Eisenbarth teaches that ADFLEX is easily processed on conventional LDPE and LLDPE film lines [p. 3]. ADFLEX exhibits a density of 0.89 g/cm3 [p. 3]. In view of the disclosure/teachings set forth/cited herein, Eisenbarth constitutes prior art which is directly analogous to the claimed invention.
Given that Kelly (i) discloses that the (composition forming the) interior ply of each sidewall can include polyolefins blended with the LLDPE and polyolefin-silicone, and (ii) is directed to, or seeks to achieve, the liner exhibiting abuse/flex-cracking resistance and recognizes that liner experiences fatigue caused by product-weight [Kelly, Abstract; p. 1 ln. 4-7, 14-24] – in view of the combined teachings of the foregoing prior art – 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 modified the liner of Kelly by having blended ADFLEX (ADFLEX Q 100F) with the LLDPE and polyolefin-silicone which form (at least) the interior ply of the first sidewall and the second sidewall, (1) in order to increase the puncture resistance and mechanical characteristics, e.g. flexibility of the liner as a whole, (2) and/or because ADFLEX would have been readily known/recognized as a thermoplastic polyolefin suitable for use in hygienic and heavy duty film applications, (3) including modification of (i.e. blending with) LDPE or LLDE to impart the foregoing properties. See MPEP 2144.07; additionally/alternatively, see MPEP 2144.06(I).
In accordance with the foregoing modification, the interior ply of the first sidewall, and the interior ply of the second sidewall of the liner of Kelly would have been formed from LLDPE, polyolefin-silicone, and ADFLEX (density 0.89 g/cm3). Given that LLDPE defines at least 40 wt.% (up to 99.9 wt.%) of the interior ply, and the polyolefin-silicone defines at least 0.1 wt.% (up to 10 wt.%) of the interior ply, it would have been obvious/logical to have blended up to a maximum of 59.9 wt.% of ADFLEX with the LLDPE and polyolefin-silicone forming the interior ply, i.e. the amount of ADFLEX in forming each interior ply would have necessarily ranged from a nonzero amount up to 59.9 wt.%. Simply put, each interior ply would have comprised, relative to the total weight of the ply, 40-99.9 wt.% LLDPE, 0.1-10 wt.% polyolefin-silicone, and x wt.% ADFLEX, wherein 0 < x ≤ 59.9 wt.%.
The density of ADFLEX is within the claimed range of 0.865-0.900 g/cm3, and the amount of ADFLEX (greater than 0 wt.%, up to 59.9 wt.%) encompasses, and thereby renders prima facie obvious the claimed range of from 5-50 wt.% relative to the interior ply weight (see MPEP 2144.05(I)). As such, the liner of Kelly, as modified above (hereinafter “modified Kelly”), reads on the liner for a bulk container defined by every limitation of claim 1. As evidenced by Applicant’s specification [0059] and the Declaration, ADFLEX Q 100F is a propylene alpha-olefin copolymer.
Regarding claim 2, in view of the rejection of claim 1 above, Kelly discloses that the liner comprises a fitment attached to a sidewall [p. 2 ln. 18; p. 3 ln. 27-28; p. 6 ln. 9-19].
Regarding claim 3, in view of the rejection of claim 1 above, Kelly discloses that the first polyethylene (LLDPE) may be a blend of polyethylene polymers, i.e. LLDPE blended with LDPE, VLDPE, ULDPE, MDPE, and/or mLLDPE [p. 11 ln. 1-9; p. 16 ln. 12-23; claims 1, 7, and 14; claims 18 and 21] (see MPEP 2144.06(I), MPEP 2144.07).
Regarding claim 4, in view of the rejection of claim 1 above, Kelly discloses that the liner exhibits a flex crack failure time of greater than 144 minutes, such as 175 minutes or greater, or 235 minutes or greater, determined in accordance with ASTM D999-08, Method A2 [p. 3 ln. 11-13; p. 15 ln. 16-20; p. 17 ln. 25-30] (MPEP 2144.05(I)). In view of the aforecited disclosure of Kelly; and given that the interior ply of the first sidewall and the second sidewall of the liner of modified Kelly would have included the polyolefin-silicone and ADFLEX, the latter in an amount (wt.%) which encompasses the claimed range and thereby would have necessarily been within said range, there is a strong expectation, and it stands to reason, that the liner of modified Kelly would have necessarily exhibited/possessed a flex crack failure time of greater than 300 minutes as claimed, absent a showing of factually supported objective evidence to the contrary. See MPEP 2112(IV) and (V), MPEP 2112.01(I) and (II), MPEP 2144.05(I), MPEP 2145, and MPEP 2145(I).
Regarding claims 5-6, in view of the rejection of claim 1 above, Kelly discloses throughout that each (first and second) sidewall, in addition to the interior ply and exterior ply, may include an intermediate ply interposed between the interior and exterior plies, wherein the interior ply, intermediate ply, and exterior ply of each sidewall are discrete plies exhibiting adjacent layer adhesion of 0-50 g/in, wherein the intermediate ply may include or be formed from the composition (LLDPE, polyolefin-silicone, and 0 wt.% < ADFLEX < 59.9 wt.%) of the interior ply [see citations above] (see MPEP 2144.05(I)). The liner of modified Kelly, inclusive of the aforesaid intermediate ply, reads on each liner defined by claims 5-6.
Regarding claim 7, in view of the rejection of claim 5 above, Kelly discloses that the intermediate ply may comprise a multilayer film [p. 3 ln. 1-2, 11-26; p. 4 ln. 10-18; p. 6 ln. 20-27].
Regarding claims 8-9, in view of the rejection of claim 7 above, Kelly discloses that the interior, intermediate, and/or exterior plies of each sidewall are suitably coextruded, or may be laminated films [p. 6 ln. 28–p. 7 ln. 23].
Regarding claim 10, in view of the rejection of claim 5 above, Kelly discloses that the interior, exterior, or intermediate ply of either sidewall of the liner may include an oxygen barrier comprising, inter alia ethylene-vinyl alcohol copolymer (EVOH) or polyamide [p. 3 ln. 7-9; p. 11 ln. 10–p. 12 ln. 23].
Regarding claim 11, the rejection of claim 1 above is incorporated herein by reference (not repeated for sake of brevity) and reads on the liner for a bulk container defined by each and every limitation of claim 11.
Regarding claims 12-16, the rejections of claims 2 and 4-6 above are incorporated herein by reference and, in view of the rejection of claim 11 above, read on each liner defined by claims 12-16.
Regarding claim 17, in view of the rejection of claim 7 above, the rejection of claim 1 above reads on the liner defined by claim 17.
Regarding claim 18, in view of the rejection of claim 15 above, the rejection of claim 11 above incorporating therein the rejection of claim 1 reads on the liner defined by claim 18.
Response to Arguments
Applicant’s arguments presented on pp. 9-12 of the Remarks regarding the rejection of the claims under 103 as unpatentable over Kelly in view of Eisenbarth have been fully considered but not found persuasive.
In general/summation (individual responses set forth below), it is the Examiner’s position that Applicant’s arguments constitute arguments of counsel which cannot take the place of factually supported objective evidence necessary to rebut the prima facie case of obviousness (MPEP 2145, 2145(I)), and thereby, that Applicant has failed to provide the necessary evidence to demonstrate the criticality of the claimed amount of propylene alpha-olefin copolymer (5-50% by weight relative to weight of the interior ply) to establish the range as nonobvious and successfully rebut the prima facie case (MPEP 2145, 2144.05(I), 2144.05(III)(A).
On pp. 9-11 of the Remarks, Applicant first asserts that the grounds of rejection which establish the prima facie case of obviousness are based on impermissible hindsight reconstruction [using knowledge gleaned only from Applicant’s specification] (MPEP 2145(X)(A)), (A) relying on selection of a specific material from Eisenbarth, (B) insertion of that material into a specific layer of Kelly, and (C) assignment of a specific wt.% range to said material.
The Examiner respectfully disagrees. Regarding (B) and (C), Kelly (1) explicitly discloses that each interior ply (118) may include 0.1-10 wt.% polyolefin-silicone copolymer, e.g. EXFOLA, and a first polyethylene that is, inter alia LLDPE [p. 2 ln. 16-17, 19-26; p. 3 ln. 11-13; p. 4 ln. 5-7; p. 9 ln. 20–p. 10, ln. 10; p. 10 ln. 30–p. 11 ln. 9; p. 16 ln. 12-23; p. 17 ln. 25-26]. Kelly (2a) explicitly discloses that the first polyethylene (LLDPE) is present in the interior ply in an amount of from 40-99.9 wt.% relative to the weight of the interior ply [p. 11 ln. 7-9]; and (2b) also discloses a more specific range of 60 to 80 wt.% [p. 11 ln. 7-9]. Kelly (3) explicitly discloses that the ply including the polyolefin-silicone copolymer, i.e. the interior ply, can include other materials blended therewith, including “polyolefins” [p. 10 ln. 17-20] – where “polyolefins” include polypropylene and propylene/ethylene copolymers [p. 8 ln. 10-12] – as well as “polypropylene” [p. 11 ln. 17-22]. Given the minimum required amounts of polyolefin-silicone copolymer (0.1 wt.%) and LLDPE (40 wt.%) being relative to the total weight of the interior ply and thus not a relative weight ratio of said copolymer and LLDPE, (4) one of ordinary skill in the art would have readily recognized through rudimentary calculation that up to 59.9 wt.% of each interior ply – or in a more limited or alternative manner, up to 39.9 wt.% – may be defined by the presence of said other materials blended therewith, i.e. polyolefins, e.g. polypropylene or propylene/ethylene copolymers.
In view of (1), (2a), (2b), (3), and (4) above, it is clear beyond any reasonable doubt that the rejection, in contrast to Applicant’s assertions, does not rely on knowledge gleaned only from Applicant’s specification for “insertion of [the material] into a specific layer of Kelly” or “assignment of a specific wt.% range to [the material]”. Phrased alternatively, Kelly discloses and/or reasonably teaches that polyolefins, and specifically polypropylene or propylene/ethylene copolymers, may be blended with LLDPE and the polyolefin-silicone copolymer in an amount of up to 59.9 wt.%, or up to 39.9 wt.%, or even up to 19.9 wt.%, relative to the total weight of the respective interior ply (118).
With regard to Applicant’s assertion of (A) ‘relying upon selection of a specific material from Eisenbarth’ as knowledge (improperly) gleaned only from the specification, it is the Examiner’s position that Eisenbarth (5) readily and clearly constitutes prior art which is directly analogous to the claimed invention (MPEP 2141.01(a)), as the disclosure is directed to liners for bulk containers [Abstract; 0002-0003, 0014-0016]; and (6) provides teachings/motivation – see [NFOA, ¶29] and ¶14 above – which are more than sufficient to support the determination that blending ADFLEX Q 100F (i.e. as the blended/additive polyolefin or propylene/ethylene copolymer) with the LLDPE and polyolefin-silicone copolymer in the interior plies (118) would have been prima facie obvious prior to the effective filing date of the claimed invention.
In light of (5) and (6) above, it is also respectfully noted that Applicant’s Remarks do not acknowledge or explicitly address the (6) cited teachings of Eisenbarth which are relied upon in the rejection to establish the prima facie case of obviousness, and go so far as to assert that the Examiner has not identified any teaching or suggestion that would lead one of ordinary skill in the art to incorporate ADLEX into Kelly’s interior ply at 5-50 wt.%” [Remarks, p. 10]. Specifically, Applicant asserts “…Eisenbarth merely describes a propylene alpha-olefin copolymer material (ADFLEX) and does not disclose or suggest its incorporation into a multilayer liner structure as an interior ply component”, and “does not disclose discrete plies, the role of discrete plies, or adhesion between plies” [Remarks, p. 10]. However, Eisenbarth was not relied upon for discussion of ADFLEX being incorporated into a multilayer liner structure, and Eisenbarth is not required to disclose every element/feature of the claimed invention – Kelly discloses, and was relied upon for, incorporation of propylene/ethylene copolymers into the interior ply blend/composition, and the test for obviousness is what the combined teachings of those references would have suggested to those of ordinary skill in the art (MPEP 2145(III)). Thus it appears that Applicant has intentionally or mistakenly disregarded the actual grounds of rejection which establish the prima facie case.
In view of the totality of the foregoing, Applicant’s first assertion has not been found persuasive, and the Examiner maintains that the grounds of rejection which establish the prima facie case of obviousness are not based on knowledge gleaned only from Applicant’s specification and therefore do not constitute impermissible hindsight reconstruction.
On p. 11-12 of the Remarks, and in conjunction with the assertions addressed above, Applicant asserts that the prior art does not recognize the criticality of the claimed weight range of the propylene alpha-olefin copolymer, then asserts that a prima facie case of obviousness has not been established for the claimed range of 5-50 wt.% propylene alpha-olefin copolymer, followed by the assertion that there would have been no reason to modify the liner of Kelly except for that which is expressed in Applicant’s specification. However, it is respectfully noted that a prima facie case of obviousness has been established for the claimed weight range (see ¶11, ¶16-17 above in the rejection under 35 U.S.C. 103; see [NFOA, ¶12, ¶31-32]; see ¶32 above in Examiner’s response to first argument). Further, it is also noted that it is not required that the prior art recognize any criticality associated with the range in order to render prima facie obvious the claimed range – rather, it is Applicant who bears the burden of establishing the criticality of the claimed range to rebut the prima facie case of obviousness (MPEP 2144.05(III)(A)). Furthermore – and as stated above – Applicant has not addressed the cited teachings of Eisenbarth, and corresponding motivation/rationale, relied upon in the grounds of rejection to establish the prima facie case of obviousness.
For these reasons, Applicant’s assertions have not been found persuasive.
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 Michael C. Romanowski whose telephone number is (571)270-1387. The Examiner can normally be reached M-F, 09:30-17:30.
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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
