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 .
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 2/17/2026 has been entered.
Response to Amendment
This office action is in response to the Amendment filed on 2/05/2026. Claims 1-13 are pending in the application.
The double patenting rejection over copending Application No. 17/943,508 (reference application) in view of Komuro (WO 2019/083000 A1, US 2020/0172712 A1 used as English translation) is WITHDRAWN due to the terminal disclaimer submitted by the Applicant on dated 1/29/2026.
The rejections of claims 1-13 are MAINTAINED for the reasons set forth below. To ensure Applicant’s amendments are fully addressed, the rejections are set forth in full.
Claim Analysis
Summary of Claim 1:
A resin composition comprising:
a thermoplastic resin (A) that does not contain a polar group;
a thermoplastic resin (B) that contains a polar group;
an ethylene-vinyl alcohol copolymer (C) that has an ethylene content of 20 to 60 mol%;
an aliphatic carboxylic acid (D) having 3 or more carbon atoms; and
an aliphatic carboxylic acid metal salt (E) that is a metal salt of the aliphatic carboxylic acid (D),
wherein a metal species of the aliphatic carboxylic acid metal salt (E) is at least one selected from the group consisting of elements belonging to the fourth period d- block in the long periodic table, and
the thermoplastic resin (A) that does not contain a polar group is contained in an amount of 66 to 99 wt.% with respect to a total sum of contents of the resin composition, and
the ethylene-vinyl alcohol copolymer (C) having an ethylene content of 20 to 60 mol% is contained in an amount of 0.1 to 25 wt.% with respect to the total sum of the contents of the resin composition.
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 the October 16, 2025 Office action.
Claims 1-13 are rejected under 35 U.S.C. 103 as being unpatentable over Kawai et al. (JP 2018-141170) as listed on the IDS dated 12/13/2022; English Machine translation provided by Applicant).
Regarding claim 1, Kawai et al. teach a resin composition comprising a polyolefin, thereby reading on the thermoplastic that does not contain a polar group (claim 1); an acid modified polyolefin having a carboxyl or anhydride group ([0041]-[0043], claim 4), thereby reading on the thermoplastic resin having a polar group and an ethylene vinyl alcohol copolymer having an ethylene content of 20-60 mol% [0023]-[0028], claim 1). Kawai et al. further teach the resin composition comprising a fatty acid metal salt (claim 5), specifically a metal salt including zinc salts derived from an aliphatic carboxylic acids with more than 3 carbons, such as lauric acid and stearic acid [0045], as required by the instant claim. Furthermore, Kawai et al. teach that the content of ethylene vinyl alcohol copolymer (EVOH) is preferably 30% by mass or less [0031], which overlaps with the claimed range (0.1-25 wt.%), which implies a polyolefin resin content of 70-99.9 wt.%. Additionally, the examples of Kawai et al. teach 87 wt.% of polyolefin and 5.5. wt. % of EVOH (Table 1), as required by the instant claim.
Kawai et al. do not particularly teach the claimed aliphatic carboxylic acid as an analogue of the aliphatic carboxylic acid metal salt (having the same carbon number) .
However, Kawai et al. teach that in addition to a fatty acid metal salt (C10-C26) ([0044]-[0045]), an aliphatic carboxylic acid having 1-26 carbon atoms may also be added (i.e. stearic acid and lauric acid) [0053], which implies a longer-chain of aliphatic carboxylic acid and longer-chain of fatty acid metal salts can be used in the composition. Both the fatty acid metal salt (C10-C26) and the aliphatic carboxylic acid (C1-C26) overlap in the C10-C26 range, then the use of a carboxylic acid together with its corresponding metal salt is recognized by Kawai. Therefore, it would have been obvious to select a carboxylic acid and its metal salt (i.e. a fatty acid metal having a chain length of 18 carbons and a carboxylic acid having a chain length of 18 carbons) based on the fact that they are both suitable and the acid and its corresponding metal salt provide excellent appearance, mechanical strength [0044], color retention [0054]. Further, It is noted that paragraph [0055] demonstrates that combinations of an acid and a salt of that acid are suitable and it is reasonable to extend the teaching of [0055] to the paragraph [0045] that discusses the fatty acid metal salts and the aliphatic carboxylic acid discussed in paragraph [0053].
Regarding claim 2-3, Kawai et al. teach the resin composition contains polyolefins such as polyethylene, polypropylene [0030], as required by the instant claims.
Regarding claim 4, Kawai et al. teach a preferably range of 1% to 20% by mass of the thermoplastic resin containing g a polar group (acid modified polyolefin) [0043], as required by the instant claim.
Regarding claim 5, Kawai et al. teach the acid modified polyolefin contains a carboxy group or an anhydride group [0042], as required by the instant claim.
Regarding claim 6, Kawai et al. teach maleic anhydride modified polyolefins and maleic anhydride graft modified ethylene-vinyl acetate copolymer and a vinyl monomer among others [0042], as required by the instant claim.
Regarding claim 7, Kawai et al. teach the use of aliphatic carboxylic acids such as stearic acid and lauric acid ( see rejection claim 1), within a resin composition used in the formation of multilayer structures and thermoformed containers (claim 8).
The difference between Kawai et al. and the instant claims is that Kawai et al. do not disclose the content of aliphatic carboxylic acid in terms of carboxylic acid ion.
However, Kawai et al. teach the same aliphatic carboxylic acids in an amount of 50 ppm to 10,000 ppm [0054], which encompasses the claimed range (0.0001 to 150 ppm). It is noted that the degree of ionization of these acids depends on the resin composition and the surrounding environment. Kawai et al.’s composition is substantially identical to the claimed composition (e.g. polyolefins, EVOH, polar modified polyolefins, salt metal of an aliphatic carboxylic acid and aliphatic carboxylic acids). Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention that such amounts would inherently result in carboxylic acid ion levels encompassing with the claimed range. Because the PTO does not have proper means to conduct experiments, the burden of proof is now shifted to Applicant to show otherwise. (See In re Best, 562 F.2d 1252, 195 USPQ 430 (CCPA 1977); In re Fitzgerald, 205 USPQ 594 (CCPA 1980).)
Regarding claim 8, Kawai et al. teach the use of fatty acid metal salts of lauric acid, stearic acid, behenic acid, wherein the metal can be zinc [0045], within a resin composition used in the formation of multilayer structures and thermoformed containers (claim 8). Kawai et al. further teach the content of the aliphatic carboxylic acid metal salt is preferably from 50 ppm to 10,000 ppm [0046]. It is noted that zinc constitutes approximately 10,3% by weight of zinc stearate (Mw of [(Zn(C17H35COO)2] = 634.4 g/mol, Mw Zn = 65.4 g/mol). Thus, 50-10,000 ppm of zinc stearate corresponds to a zinc ion (metal ion) content of approximately 5.15 to 1,030 ppm, which encompasses the claimed range (0.01-90 ppm). "[A] prior art reference that discloses a range encompassing a somewhat narrower claimed range is sufficient to establish a prima facie case of obviousness." (In re Peterson, 315 F.3d 1325, 1330, 65 USPQ2d 1379, 1382-83 (Fed. Cir. 2003).) It would have been obvious to one of ordinary skill in the art at the time the invention was made to have selected the overlapping portion of the range taught by Kawai et al.
Regarding claim 9, Kawai et al. teach the resin composition comprising a polyolefin, EVOH, an aliphatic carboxylic acid salt (e.g. zinc stearate) and an aliphatic carboxylic acid (see rejection claim 1). Kawai et al. further teach that a saturated carboxylic acid having 1 to 26 carbon atoms is preferred, acetic acid is particularly preferred, and that such acids can be included in addition to the aliphatic carboxylic acid salt [0053]. Thus, Kawai et al. implies the use of acetic acid (C2) alongside other carboxylic acids such as stearic acid (C18) in the resin composition. In view of Kawai et al.’s teaching of adding these aliphatic carboxylic acids to prevent discoloration and gelling formation [0054], it would have been obvious for a person of ordinary skill in the art to use both acetic acid and a distinct aliphatic carboxylic acid (D), with a reasonable expectation of success and the predictable result of providing a resin composition with excellent appearance [0055]. Moreover, Kawai et al. teach the content of the aliphatic carboxylic acid is preferably from 50 ppm to 10,000 ppm, which overlaps the claimed range (0.01 to 1000 ppm), as discussed in the rejection of claim 7.
Regarding claim 10, Kawai et al. teach a method of preparation comprising melt kneading and pelletizing the resin composition [0107], as required by the instant claim.
Regarding claim 11, Kawai et al. teach the resin composition is suitable as molding materials for various thermoformed containers such as bottles, cups, trays and packaging materials [0020], as required by the instant claim.
Regarding claims 12 and 13, Kawai et al. teach a multilayer structure comprising the resin composition, a thermoformed container comprising the multilayer structure (claim 8), which are suitable as a molding material for packaging materials, as required by the instant claims.
Claims 1-13 are rejected under 35 U.S.C. 103 as being unpatentable over Kawai et al. (JP 2018-141170) in view of Komuro (WO 2019/083000 A1, US 2020/0172712 A1 used as English translation; as listed on the IDS dated 12/13/2022) .
Regarding claim 1, the composition of Kawai et al. is previously discussed in the rejection of claim 1 set forth in paragraph 9. Kawai et al. teach that in addition to a fatty acid metal salt (C10-C26) ([0044]-[0045]), an aliphatic carboxylic acid having 1-26 carbon atoms may also be added [0053], which implies a longer-chain of aliphatic carboxylic acid and longer-chain of fatty acid metal salts can be used in the composition. Both the fatty acid metal salt (C10-C26) and the aliphatic carboxylic acid (C1-C26) overlap in the C10-C26 range, then the use of a fatty acid together with its corresponding metal salt is recognized by Kawai.
Kawai et al. do not particularly teach the claimed aliphatic carboxylic acid as an analogue of the aliphatic carboxylic acid metal salt (having the same carbon number) .
However, Komuro teaches an ethylene-vinyl alcohol copolymer resin composition comprising an ethylene-vinyl alcohol copolymer, an aliphatic carboxylic acid having a carbon number of 3-30 [0037], an aliphatic carboxylic acid metal salt, which is a metal salt of the aliphatic carboxylic acid (abstract, claim 1). Komuro teaches the anionic moiety of the aliphatic carboxylic acid metal salt is the same as the aliphatic carboxylic acid to obtain a composition with an excellent impact resistance and more excellent color tone stability during melt forming [0045]. Therefore, it would have been obvious before the effective filing date of the claimed invention to use the aliphatic carboxylic acid metal salt and its corresponding aliphatic carboxylic acid having the same carbon number as taught by Komuro, with the expected result of improving the mechanical properties and the color stability of the composition, thereby arriving to the claimed invention.
Regarding claims 2-13, the rejections of the limitations recited in the instant claims have been discussed at the paragraph 8.
Response to Arguments
Applicant's arguments, see p.1-5, filed 02/05/2026 with respect to the rejection of claims 1-13 over Kawai have been fully considered but they are not persuasive.
Applicant states that “even if the claimed subject matter is within the broad disclosure of the cited art, the use of an aliphatic carboxylic acid and a matching metal salt having the same carbon number unexpectedly produces better results than an aliphatic carboxylic acid and a metal salt having a different carbon number. Applicant respectfully submits that this unexpected result sufficiently rebuts any prima facie case of obviousness.”
In response, Examiner acknowledges that the applicant demonstrated this is persuasive based in one particular type of thermoplastic resin A (polypropylene a1), two particular type of thermoplastic resin B (PLEXAR PX6002 and Polyvinyl acetate resin b2), specific ethylene-vinyl alcohol copolymer (C) having an ethylene content of 29 mol% and aliphatic carboxylic acid and matching metal salt having 8, 12, 18 and 22 carbons (See example 1-16 and comp. examples of Table 1 and Table 2). However, they are insufficient to establish unexpected results given that the data is not reasonable commensurate in scope with the scope of the claims. Applicant has not provided sufficient data showing that the lower limit of carbons of the aliphatic carboxylic acid D and its corresponding metal salt is critical. As to the lower limit of carbons, the lowest number of carbons in Table 1 and Table 2 [0218] is 8 , which is well above the claimed lower limit of carbon atoms in the aliphatic carboxylic acid (D) (3 carbon atoms). It is noted that claim 1 recites any generic thermoplastic resin that does not contain a polar group (a), any generic thermoplastic resin that contain a polar group (B), an ethylene-vinyl alcohol copolymer (C) having an ethylene content of 20-60 mol%, an aliphatic carboxylic acid (D) having 3 or more carbon atoms and a carboxylic acid metal salt that is a metal salt of the aliphatic carboxylic acid (D)). These compositions disclosed in the examples and comparative examples would not support unexpected results for all possible compositions as encompassed by instant claim 1.
Further, there is no evidence in the record that demonstrated unexpected results over the entire claimed range of the ethylene content of the ethylene vinyl alcohol copolymer (C) and the entire claimed content of components A and C in the resin composition. As to component C, Tables 1-2 teach a content of component C of 5% (examples 1-16, com. Ex. 1-3 and 6-12) and 30% ( comp Ex. 4-5 ). As to component A, Tables 1-2 teach 90 and 95% (Examples) and 65% (Comp. Ex. 5), 69% (Comp. Ex. 4). Applicant should compare several compositions containing claimed components of A, B, C, D and E in amounts of A and C and ethylene content of C, at several data points over the claimed range to several compositions containing the same claimed components of A, B, C, D and E in amounts of A and C and ethylene content of C, at several data points outside of the claimed range, including data points close to and far from the claimed range.
As a result, the arguments put forth by the applicant are not considered commensurate in scope with the claimed invention. This is why the applicant's arguments are not found to be persuasive.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to OLGA L. DONAHUE whose telephone number is (571)270-1152. The examiner can normally be reached M-F 8:00-5:00.
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/OLGA LUCIA DONAHUE/Examiner, Art Unit 1763
/CATHERINE S BRANCH/Primary Examiner, Art Unit 1763