DETAILED ACTION
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 05 September 2025 has been entered.
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
Claims 1, 3-14, and 16-21 are rejected under 35 U.S.C. 103 as being unpatentable over Kawai et al. (US 2017/0183426) in view of Gotro (Polymer Innovation Blog) and as evidenced by the Admer™ GT6E Technical Data Sheet.
Kawai et al. is directed to an ethylene-vinyl alcohol copolymer resin composition and a multilayer structure formed from it (paragraph 0001). The composition further comprises 1 to 1,000 ppm of alkali metal salt of an organic acid (paragraph 0035), preferably sodium acetate or potassium acetate (paragraph 0123). The ethylene vinyl alcohol copolymer may further include structural units derived from vinyl silane (paragraph 0062). The composition further comprises a polyolefin (paragraph 0038), such as linear low density polyethylene, medium density polyethylene, or high density polyethylene (paragraph 0136). The mass ratio of ethylene-vinyl alcohol copolymer resin to polyolefin is 0.1/99.9 to 99.9/0.1, with a ratio of 4/96 being within the particularly preferred range (paragraph 0137). An ethylene-vinyl alcohol copolymer resin to polyolefin ratio of 0.1/99.9 is equivalent to a polyolefin to ethylene-vinyl alcohol copolymer resin ratio of about 100/0.1, while an ethylene-vinyl alcohol copolymer resin to polyolefin ratio of 4/96 is equivalent to a polyolefin to ethylene-vinyl alcohol copolymer resin ratio of about 100/4.2. The copolymer resin composition may be used to make a packaging material with multiple layers including a layer of an inorganic vapor-deposited film layer (paragraphs 0220-0221), i.e. a layer that one of ordinary skill in the art would expect to exhibit gas barrier properties. A thermoplastic resin layer may be laminated on the base layer of a laminate comprising a metal vapor-deposited layer (paragraph 0257-0258).
Kawai et al. do not teach the use of a bio-polyethylene resin as the polyolefin resin of the composition. Kawai et al. do teach that that polyolefin is preferably a polyethylene resin such as linear low density polyethylene, medium density polyethylene, or high density polyethylene (paragraph 0136).
Gotro shows that bio-polyethylene may be derived from bio-ethanol produced by subjecting sugar from sugar cane to a fermentation process (page 2). Gotro teaches that bio-polyethylene - having the same structure and applications as fossil fuel polyethylene - is a drop-in equivalent for fossil fuel based polyethylene (page 3).
It would have been obvious to one of ordinary skill in the art to use a bio-polyethylene as taught by Gotro as the polyethylene in the ethylene-vinyl alcohol composition of Kawai et al. because it is a green polymer derived from a renewable feedstock.
Regarding claims 4, 5, 12, and 13, Kawai et al. illustrate that the polyolefin component may be a combination of a polyethylene and an acid-modified polyolefin, such as Admer™ GT-6A maleic anhydride-modified polyethylene (paragraph 0489). According to the Technical Data Sheet, Admer™ GT-6A is a maleic anhydride grafted LLDPE-based adhesive - i.e. a maleic anhydride-modified ethylene-a-olefin copolymer.
Regarding claim 11, Kawai et al. teach that sodium acetate and potassium acetate are preferred alkali metal salts (paragraph 0123). One skilled in the art would be motivated to use a combination of the preferred alkali metal salts in the composition of Kawai et al. because the courts have held that it is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose. The idea of combining them flows logically from their having been individually taught in the prior art. See MPEP 2144.06.
Regarding claims 16 and 17, it would be obvious to use linear low density polyethylene, medium density polyethylene, or high density polyethylene - and not low density polyethylene - as the polyethylene of Kawai et al. since Kawai et al. explicitly teach the use of these polyethylene as their polyolefin resin and do not require that low density polyethylene be included in the composition.
Regarding claim 18, one of ordinary skill in the art would immediately recognize that high density polyethylene is an ethylene homopolymer.
Regarding claim 20, one of ordinary skill in the art would immediately recognize that linear low density polyethylene is an ethylene copolymer with less than 50% of an a-olefin comonomer.
Double Patenting
Claims 1, 3-8, 10-14, 16, 17, and 21 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 and 3 of U.S. Patent No. 12,534,601 in view of Kawai et al. (US 2017/0183426).
Claims 1 and 3 of U.S. Patent No. 12,534,601 recite all the limitations of instant claims 1, 3-8, and 10-14 except for the presence of 10 to 1500 ppm of alkali metal salt with respect to the ethylene-vinyl alcohol copolymer and all the limitations of claims 16 and 17 except for specifying that the polyethylene is not low-density polyethylene.
Kawai et al. is directed to an ethylene-vinyl alcohol copolymer resin composition (paragraph 0001). The composition further comprises an alkali metal salt of an organic acid (paragraph 0035) and a polyolefin (paragraph 0038). The preferred alkali metal salt is potassium acetate or sodium acetate (paragraph 0123), while the polyolefin may be polyethylene other than low density polyethylene (paragraph 0141). Adding an alkali metal salt to the composition improves the appearance, long-run stability, and interlayer adhesion forces when formed into a multilayer structure (paragraph 0035). The most preferred content of alkali metal salt is 80 to 150 ppm (paragraph 0124).
It would have been obvious to one of ordinary skill in the art to add 80 to 150 ppm of an alkali metal salt, such as potassium or sodium acetate, to the composition recited in claims 1 and 3 of U.S. Patent No. 12,534,601 to improve the appearance and long-run stability of the composition as well as interlayer adhesion forces when formed into a multilayer structure.
Regarding claim 4, component (C) reads on adhesive resin (D).
Regarding claims 5, 12, and 13, since Kawai et al. teach that maleic acid modified polyolefin, such as a maleic anhydride-modified ethylene-a-olefin copolymer, may be used as an acid-modified polyolefin to be added to an ethylene-vinyl alcohol copolymer composition (paragraphs 0140-0142 and 0489), it would have been obvious to one of ordinary skill in the art to use a maleic acid modified polyolefin, such as maleic anhydride-modified ethylene-a-olefin copolymer, as the acid-modified ethylene--olefin copolymer.
Regarding claim 11, Kawai et al. teach that sodium acetate and potassium acetate are preferred alkali metal salts (paragraph 0123). One skilled in the art would be motivated to use a combination of the preferred alkali metal salts in the composition of Kawai et al. because the courts have held that it is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.
Regarding claims 16 and 17, Kawai et al. show that the functional equivalence of low density polyethylene and linear low density polymer as polyolefins added to ethylene-vinyl alcohol compositions (paragraph 0141). Therefore, it would have been obvious to one of ordinary skill in the art to use linear low density polyethylene as the polyethylene recited in the claims of copending Application No. 17/579,009.
Regarding claim 21, Kawai et al. show that the ethylene-vinyl alcohol copolymer further include structural units derived from vinyl silane can also be used as the ethylene-vinyl alcohol copolymer (paragraph 0062).
Claims 18-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 and 3 of U.S. Patent No. 12,534,601 in view of Kawai et al. (US 2017/0183426) as set forth above, and further in view of Gotro (Polymer Innovation Blog).
Claims 1 and 3 of U.S. Patent No. 12,534,601 taken in view of Kawai et al. suggest all the limitations of claims 18-20, as outlined above, except for the manner in which the bio-polyethylene is derived.
Gotro shows that bio-polyethylene may be derived from bio-ethanol produced by subjecting sugar from sugar cane to a fermentation process (page 2). Gotro teaches that bio-polyethylene - having the same structure and applications as fossil fuel polyethylene - is a drop-in equivalent for fossil fuel based polyethylene (page 3).
It would have been obvious to one of ordinary skill in the art to use bio-polyethylene formed according to Gotro as the bio-polyethylene of the claims since it is formed from a renewable feedstock.
It would have been obvious to one of ordinary skill in the art to use the process of Gotro to form the bio-polyethylene claimed in U.S. Patent No. 12,534,601 because it formed from a renewable feedstock.
Response to Arguments
Applicant’s arguments with respect to the claims have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to RAMSEY E ZACHARIA whose telephone number is (571)272-1518. The best time to reach the examiner is weekday afternoons, Eastern time.
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/RAMSEY ZACHARIA/Primary Examiner, Art Unit 1787