DETAILED ACTION
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
In response to the amendment received 03/16/2026, the 35 U.S.C. 103 rejections of claims 18 and 10-28 have been maintained and the objections to claims 1 and 28 have been withdrawn from the previous office action.
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 1-8 and 10-14 and 19-28 are rejected under 35 U.S.C. 103 as being unpatentable over Published Application US20170259486A1, hereafter Koerner, in view of Foreign Publication WO2018224652A1 (used previously attached machine translation), hereafter Siegl, and further in view of Published Application US20110262668A1, hereafter Akkapeddi, and further in view of Critical Guidance Protocol for Clear PET Resin and Molded Articles, retrieved from https://plasticsrecycling.org/apr-design-hub/testing-protocols-and-labs/apr-testing-protocols/?testing-category=critical-guidance&resin-type=pet#document-feed. Document number PET-CG-01, dated 11/16/2018, hereafter PET-CG-01.
Regarding claim 1, Koerner discloses a method for manufacturing containers ([0042-0044], method of manufacturing container 10), the method comprising the steps of:
forming a top portion (25) of a preform (18) by injecting a first material into a mold (22) ([0043], first phase, injecting material such as, for example, PET or virgin PET into mold to form single layer top portion); and
forming a bottom portion (35) of the preform (18) by injecting a second material ([0043] second phase material, such as, for example PET or virgin PET and a barrier material or additive) into the mold (22) to form inner (44) and outer (40) layers of the bottom portion (35) ([0043-0044], second phase, injecting material to form multilayer bottom portion 35 of preform 18) and injecting a third material ([0044] second layer 42 consists of PET or virgin PET and one or more additives) to form an intermediate layer (42) of the bottom portion (35) that is positioned between the inner layer (44) and the outer layer (40) (Fig 1, [0044], second phase, injecting material to form multilayer bottom portion 35 of preform 18 with third (44), first (40), and second (42) layers), the intermediate layer (42) comprises at least about 20% of a wall thickness of the preform (18) ([0046]);
blow molding the preform (18) into an intermediate article (16) ([0041] blow molding); and
processing the intermediate article (16) to produce a finished container ([0064] trimming intermediate article 16 to produce finished container 10),
wherein at least one of the first material and the second material comprises recycled polyethylene terephthalate ([0043] PET or virgin PET; [0028] recycling virgin PET material to make new container, [0045] first layer 40 and third layer 44 comprise the same material, such as PET or virgin PET),
wherein the third material comprises virgin polyethylene terephthalate and an oxygen scavenger ([0044] second layer 42 consists of virgin PET and an additive; [0031] additive is oxygen scavenger), the oxygen scavenger being present in an amount between about 0.1 wt. % and about 5.0 wt. % of the preform ([0031]), which overlaps with the claimed range of less than 0.1 wt% of the preform, since the term ‘about’ in Koerner necessarily encompasses values slightly above and slightly below the stated value. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists (MPEP 2144.05 (I)).
Further, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the present invention, to use the low end of the range of oxygen scavenger wt% of about 0.1 wt% disclosed by Koerner, in order to reduce the amount of yellowing caused by too much oxidation of the bottle, which is in part caused by too high a proportion of oxygen scavenger in the preform/product, as is well-known and disclosed by both Koerner ([0022]) and Siegl ([0012]).
Modified Koerner is silent on the oxygen scavenger being biased toward a center line of the preform.
In the analogous art of container molding, Akkapeddi discloses that thicker outer structural layers and thinner inner structural layers prevent excess oxygen permeating to the scavenger layer from the outside while also allowing enclosed oxygen content within the container to permeate the inner layer to reach the scavenging layer ([0062]).
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the present invention, to further modify the invention of Koerner to have the oxygen scavenger closer to the center of the preform, in order to prevent excess oxygen permeating to the scavenger layer from the outside while also allowing enclosed oxygen content within the container to permeate the inner layer to reach the scavenging layer, as suggested by Akkapeddi ([0062]).
Modified Koerner discloses or renders obvious all of the claim limitations as set forth above, but does not explicitly disclose the intermediate layer comprising less than 15% of a wall thickness of the preform. As the material cost of the intermediate layer is/are variable(s) that can be modified, among others, by adjusting the thickness of the intermediate layer, with the material cost of the intermediate layer increasing as the thickness of the intermediate layer is increased (Koerner [0022] additives are expensive and it is desirable not to add extra cost into certain sections of the bottle), the thickness of the intermediate layer would have been considered a result effective variable by one having ordinary skill in the art before the effective filing date of the present invention. As such, without showing unexpected results, the claimed thickness of the intermediate layer cannot be considered critical. Accordingly, one of ordinary skill in the art, before the effective filing date of the present invention, would have optimized, by routine experimentation, the thickness of the intermediate layer in the invention of Koerner to obtain the desired balance between material cost of the intermediate layer and the effectiveness of the one or more additives therein (In re Boesch, 617 F.2d. 272, 205 USPQ 215 (CCPA 1980)), since it has been held that where the general conditions of the claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. (In re Aller, 105 USPQ 223).
Modified Koerner is silent on wherein the finished container has 1.5 b* units greater than b* units of a control that is used by the Association of Plastic Recyclers (APR) testing protocol to determine the suitability of post-consumer containers for reuse in polyethylene terephthalate containers when the finished container and the control are measured by the APR testing protocol.
In the analogous art of PET container recycling, PET-CG-01 discloses that 1.5b* higher than the control is the APR preferred value limit (page 10, Evaluation of molded plaques table) that must not be exceeded in order to meet the standard to receive APR recognition (page 1, first paragraph) and if the standard is not met, then the recyclability category is considered by the APR to be detrimental to recycling (page 1, second paragraph).
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the present invention, to further modify the invention of Koerner to ensure it meets the APR standards including 1.5b* higher than the control in order to receive APR recognition and to ensure the product is not detrimental to recycling, as disclosed by PET-CG-01.
Regarding claim 2, modified Koerner further discloses wherein the intermediate layer comprises less than 10% of a wall thickness of the preform, since the thickness of the intermediate layer would have been considered a result-effective variable, as explained above for claim 1.
Regarding claim 3, Koerner further discloses wherein the first material and the second material each comprise recycled polyethylene terephthalate ([0028] recycling virgin PET material to make new container, [0045] first layer 40 and third layer 44 comprise the same material, such as PET or virgin PET).
Regarding claims 4-5, modified Koerner is silent on wherein the first and/or second material comprises recycled polyethylene terephthalate and virgin polyethylene terephthalate.
In the analogous art of injection blow molding of containers, Siegl discloses wherein the material comprises recycled polyethylene terephthalate and virgin polyethylene terephthalate (Siegl [0068] >50% PET recyclate and containing virgin PET).
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the present invention, to further modify Koerner to use the recycled material composition disclosed by Siegl in order to combat the yellowing effect that results from using only recycled PET alone, among other benefits, as suggested by Siegl ([0067]).
Regarding claim 6, Koerner discloses wherein the third material comprises virgin polyethylene terephthalate and the oxygen scavenger ([0046] PET and additive).
Modified Koerner does not disclose wherein the material further comprises recycled polyethylene terephthalate.
Siegl discloses wherein the material comprises recycled polyethylene terephthalate and virgin polyethylene terephthalate (Siegl [0068] >50% PET recyclate and containing virgin PET).
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the present invention, to further modify the method of Koerner to use the recycled material composition disclosed by Siegl in order to combat the yellowing effect that results from using only recycled PET alone, among other benefits, as suggested by Siegl ([0067]).
Regarding claim 7, Koerner discloses wherein the third material comprises virgin polyethylene terephthalate and the oxygen scavenger ([0046] PET and additive).
Modified Koerner does not disclose wherein the material further comprises recycled polyethylene terephthalate, the material having a greater weight percentage of the recycled polyethylene terephthalate than the virgin polyethylene terephthalate.
Siegl discloses wherein the material comprises recycled polyethylene terephthalate, the virgin polyethylene terephthalate and the additive, the material having a greater weight percentage of the recycled polyethylene terephthalate than the virgin polyethylene terephthalate (Siegl [0068] >50% PET recyclate and containing virgin PET and additive).
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the present invention, to further modify Koerner to use the recycled material composition disclosed by Siegl in order to combat the yellowing effect that results from using only recycled PET alone, among other benefits, as suggested by Siegl ([0067]).
Regarding claim 8, modified Koerner discloses all of the claim limitations as set forth above, but the reference does not explicitly disclose wherein the third material comprises 75-99% recycled polyethylene terephthalate, 1-25% the virgin polyethylene terephthalate and the oxygen scavenger.
Siegl discloses wherein the material comprises greater than 50% recycled polyethylene terephthalate, as well as virgin polyethylene terephthalate and the additive (Siegl [0068] >50% PET recyclate and containing additive (4-40 wt%) and virgin PET (balance wt% if recyclate + additive is not 100% - this allows for 75 wt% PET recyclate, 4 wt% additive, and 21 wt% virgin PET, for example, meeting the claim).
As the sustainability of the produced container is/are variable(s) that can be modified, among others, by adjusting the amount of recycled PET, with the sustainability of the produced container increasing as the amount of recycled PET is increased, the amount of recycled PET would have been considered a result effective variable by one having ordinary skill in the art before the effective filing date of the present invention. As such, without showing unexpected results, the claimed relative percentages of virgin and recycled PET in the third material cannot be considered critical. Accordingly, one of ordinary skill in the art, before the effective filing date of the present invention, would have optimized, by routine experimentation, the amount of recycled PET in the third material in the invention of Koerner to obtain the desired sustainability of the produced container (In re Boesch, 617 F.2d. 272, 205 USPQ 215 (CCPA 1980)), since it has been held that where the general conditions of the claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. (In re Aller, 105 USPQ 223).
It would have further been obvious to one of ordinary skill in the art, before the effective filing date of the present invention, to further modify Koerner to use the recycled PET/additive/virgin PET composition disclosed by Siegl in order to combat the yellowing effect that results from using only recycled PET alone, among other benefits, as suggested by Siegl ([0067]).
Regarding claim 10, Koerner further discloses wherein the oxygen scavenger comprises an active oxygen scavenger ([0005] additives such as active oxygen scavengers).
Regarding claim 11, Koerner further discloses wherein the third material consists of the virgin polyethylene terephthalate and the oxygen scavenger ([0044] second layer 42 consists of virgin PET and an additive).
Regarding claim 12, modified Koerner discloses wherein the first and second materials further comprise recycled polyethylene terephthalate ([0028] recycling virgin PET material to make new container, [0044] top portion consists of one material such as PET or virgin PET, [0045] first layer 40 and third layer 44 comprise PET or virgin PET), the first and second materials having a greater weight percentage of the recycled polyethylene terephthalate than the third material ([0045] second layer 42 may comprise only virgin PET and additive).
Regarding claim 13, modified Koerner discloses wherein the first and second materials further comprise recycled polyethylene terephthalate ([0028] recycling virgin PET material to make new container, [0044] top portion consists of one material such as PET or virgin PET, [0045] first layer 40 and third layer 44 comprise PET or virgin PET), the first and second materials having a greater weight percentage of the recycled polyethylene terephthalate than the third material ([0045] second layer 42 may comprise only virgin PET and additive).
Regarding claim 14, modified Koerner discloses wherein the first, second, and third materials further comprise recycled polyethylene terephthalate ([0028] recycling virgin PET material to make new container, [0044] top portion consists of one material such as PET or virgin PET, [0045] first layer 40 and third layer 44 comprise PET or virgin PET, [0045] second layer 42 may comprise PET or virgin PET and additive).
Koerner does not disclose wherein the third material comprising 1-99% of the recycled polyethylene terephthalate, the first material and the second material each comprising 1-99% of the recycled polyethylene terephthalate. However, one of ordinary skill in the art would look to conventional art to determine the percentage of recycled PET typically used in manufacturing.
As the sustainability of the produced container is/are variable(s) that can be modified, among others, by adjusting the amount of recycled PET, with the sustainability of the produced container increasing as the amount of recycled PET is increased, the amount of recycled PET in the first, second, and third materials would have been considered a result effective variable by one having ordinary skill in the art before the effective filing date of the present invention. As such, without showing unexpected results, the claimed relative percentages of virgin and recycled PET in the first, second, and third materials cannot be considered critical. Accordingly, one of ordinary skill in the art, before the effective filing date of the present invention, would have optimized, by routine experimentation, the amount of recycled PET in the first, second, and third materials in the invention of Koerner to obtain the desired sustainability of the produced container (In re Boesch, 617 F.2d. 272, 205 USPQ 215 (CCPA 1980)), since it has been held that where the general conditions of the claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. (In re Aller, 105 USPQ 223).
Regarding claim 19, Koerner discloses a method for manufacturing containers, the method comprising the steps of:
grinding a polyethylene terephthalate (PET) container into a first material ([0028] Fig 3, recycling virgin PET material from intermediate article to make new container);
forming a top portion (25) of a preform (18) by injecting the first material into a mold (22) ([0043], first phase, injecting material into mold to form single layer top portion);
forming a bottom portion (35) of the preform (18) by injecting a second material ([0043] second phase material, such as, for example PET or virgin PET and a barrier material or additive) to form inner (44) and outer (40) layers of the bottom portion and injecting a third material ([0044] second layer 42 consists of PET or virgin PET and one or more additives) to form an intermediate layer (42) of the bottom portion (35) that is positioned between the inner layer (44) and the outer layer (40) ([0043], second phase, injecting material into mold to form multilayer bottom portion 35 of preform 18 with inner, outer, and intermediate layers 44, 40, 42, respectively);
blow molding the preform (18) into an intermediate article (16) ([0041] blow molding); and
processing the intermediate article (16) to produce a finished container (10) ([0064] trimming intermediate article 16 to produce finished container 10),
wherein at least one of the first material and the second material comprises recycled polyethylene terephthalate ([0028] Fig 3, recycling virgin PET material from intermediate article to make new container),
wherein the intermediate layer (42) comprises at least about 20% of a wall thickness of the preform (18) ([0046]), and
wherein the third material comprises virgin polyethylene terephthalate and a second additive ([0044] second layer 42 consists of virgin PET and an additive), the second additive comprising at least one of the group consisting of passive oxygen scavengers and active oxygen scavengers, the second additive being present in an amount between about 0.1 wt. % and about 5.0 wt. % of the preform ([0031]), which overlaps with the claimed range 0f between about 0.01 wt% and about 0.1 wt% of the preform. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists (MPEP 2144.05 (I)).
Further, it would have been obvious to use the low end of the range of oxygen scavenger wt% disclosed by Koerner, in order to reduce the amount of yellowing caused by too much oxidation of the bottle, which is in part caused by too high a proportion of oxygen scavenger in the preform/product, as is well-known and disclosed by both Koerner ([0022]) and Siegl ([0012]).
Koerner does not disclose wherein the first material comprises a first additive, and Koerner is silent on the intermediate layer comprising less than 10% of a wall thickness of the preform.
As the material cost of the intermediate layer is/are variable(s) that can be modified, among others, by adjusting the thickness of the intermediate layer, with the material cost of the intermediate layer increasing as the thickness of the intermediate layer is increased (Koerner [0022] additives are expensive and it is desirable not to add extra cost into certain sections of the bottle), the thickness of the intermediate layer would have been considered a result effective variable by one having ordinary skill in the art before the effective filing date of the present invention. As such, without showing unexpected results, the claimed thickness of the intermediate layer cannot be considered critical. Accordingly, one of ordinary skill in the art, before the effective filing date of the present invention, would have optimized, by routine experimentation, the thickness of the intermediate layer in the invention of Koerner to obtain the desired balance between material cost of the intermediate layer and the effectiveness of the one or more additives therein (In re Boesch, 617 F.2d. 272, 205 USPQ 215 (CCPA 1980)), since it has been held that where the general conditions of the claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. (In re Aller, 105 USPQ 223).
Siegl discloses wherein the material comprises greater than 50% recycled polyethylene terephthalate, as well as virgin polyethylene terephthalate and the additive (Siegl [0068] >50% PET recyclate and containing additive (4-40 wt%) and virgin PET (balance wt% if recyclate + additive is not 100%).
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the present invention, to modify the method of Koerner to use the recycled material composition disclosed by Siegl in order to combat the yellowing effect that results from using only recycled PET alone, as well as to retain higher L values for lighter color, as suggested by Siegl ([0007-0011], [0067]), and because it has been held to be obvious to one of ordinary skill to choose a material based on its suitability for its intended purpose (see MPEP 2144.07).
Modified Koerner is silent on wherein the finished container has 1.5 b* units greater than b* units of a control that is used by the Association of Plastic Recyclers (APR) testing protocol to determine the suitability of post-consumer containers for reuse in polyethylene terephthalate containers when the finished container and the control are measured by the APR testing protocol.
In the analogous art of PET container recycling, PET-CG-01 discloses that 1.5b* higher than the control is the APR preferred value limit (page 10, Evaluation of molded plaques table) that must not be exceeded in order to meet the standard to receive APR recognition (page 1, first paragraph) and if the standard is not met, then the recyclability category is considered by the APR to be detrimental to recycling (page 1, second paragraph).
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the present invention, to further modify the invention of Koerner to ensure it meets the APR standards including 1.5b* higher than the control in order to receive APR recognition and to ensure the product is not detrimental to recycling, as disclosed by PET-CG-01.
Regarding claim 20, Koerner further discloses wherein the second material is different than the first material ([0054] layer 48 comprises additive different from additive in layer 52).
Regarding claim 21, Koerner further discloses wherein the second material is the same as the first material ([0045] first layer 40 and third layer 44 comprise the same material).
Regarding claim 22, Koerner further discloses wherein the third material consists of the virgin polyethylene terephthalate and the second additive ([0044] second layer 42 consists of virgin PET and an additive).
Regarding claim 23, Koerner further discloses the third material may comprise more than one additive ([0044] second layer 42 may comprise more than one additive), and that the third material comprises the first material ([0028] recycling virgin PET material to make new container, [0045] first layer 40 and third layer 44 comprise PET or virgin PET, [0045] second layer 42 may comprise PET or virgin PET and additive).
Regarding claim 24, Koerner discloses wherein the third material comprises the first material ([0028] recycling virgin PET material to make new container, [0045] first layer 40 and third layer 44 comprise PET or virgin PET, [0045] second layer 42 may comprise PET or virgin PET and additive)
Modified Koerner is silent on wherein the third material comprises 75- 99% of the first material and 1-25% virgin polyethylene terephthalate.
Siegl discloses wherein the material comprises greater than 50% recycled polyethylene terephthalate, as well as virgin polyethylene terephthalate and the additive (Siegl [0068] >50% PET recyclate and containing additive (4-40 wt%) and virgin PET (balance wt% if recyclate + additive is not 100% - this allows for 75 wt% PET recyclate, 4 wt% additive, and 21 wt% virgin PET, for example, meeting the claim).
As the sustainability of the produced container is/are variable(s) that can be modified, among others, by adjusting the amount of recycled PET, with the sustainability of the produced container increasing as the amount of recycled PET is increased, the amount of recycled PET would have been considered a result effective variable by one having ordinary skill in the art before the effective filing date of the present invention. As such, without showing unexpected results, the claimed relative percentages of virgin and recycled PET in the third material cannot be considered critical. Accordingly, one of ordinary skill in the art, before the effective filing date of the present invention, would have optimized, by routine experimentation, the amount of recycled PET in the third material in the invention of Koerner to obtain the desired sustainability of the produced container (In re Boesch, 617 F.2d. 272, 205 USPQ 215 (CCPA 1980)), since it has been held that where the general conditions of the claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. (In re Aller, 105 USPQ 223).
It would have further been obvious to one of ordinary skill in the art, before the effective filing date of the present invention, to further modify Koerner to use the recycled PET/additive/virgin PET first material in the third material in order to combat the yellowing effect that results from using only recycled PET alone, among other benefits, as suggested by Siegl ([0067]).
Regarding claim 25, Koerner further discloses wherein the second material consists of the first material ([0044] first layer 40 and single layer of top portion 25 are the same material).
Regarding claim 26, Koerner further discloses wherein the second material consists of the first material ([0044] first layer 40 and single layer of top portion 25 are the same material) and virgin polyethylene terephthalate ([0045] first layer 40 and third layer 44 comprise the same material, such as PET or virgin PET).
Regarding claim 27, modified Koerner discloses wherein the first and second materials further comprises recycled polyethylene terephthalate ([0028] recycling virgin PET material to make new container, [0045] first layer 40 and third layer 44 comprise PET or virgin PET) and that the first material is recycled and fed to the virgin PET melt stream ([0024] dome that is trimmed is ground and added to virgin PET melt stream).
Koerner does not disclose wherein the second material comprises 75- 99% of the first material and 1-25% virgin polyethylene terephthalate.
Siegl discloses wherein the material comprises greater than 50% recycled polyethylene terephthalate, as well as virgin polyethylene terephthalate and the additive (Siegl [0068] >50% PET recyclate and containing additive (4-40 wt%) and virgin PET (balance wt% if recyclate + additive is not 100% - this allows for 75 wt% PET recyclate, 4 wt% additive, and 21 wt% virgin PET, for example, meeting the claim).
As the sustainability of the produced container is/are variable(s) that can be modified, among others, by adjusting the amount of recycled PET, with the sustainability of the produced container increasing as the amount of recycled PET is increased, the amount of recycled PET in the first, second, and third materials would have been considered a result effective variable by one having ordinary skill in the art before the effective filing date of the present invention. As such, without showing unexpected results, the claimed relative percentages of virgin and recycled PET in the first, second, and third materials cannot be considered critical. Accordingly, one of ordinary skill in the art, before the effective filing date of the present invention, would have optimized, by routine experimentation, the amount of recycled PET in the first, second, and third materials in the invention of Koerner to obtain the desired sustainability of the produced container (In re Boesch, 617 F.2d. 272, 205 USPQ 215 (CCPA 1980)), since it has been held that where the general conditions of the claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. (In re Aller, 105 USPQ 223).
Regarding claim 28, Koerner discloses a method for manufacturing containers, the method comprising the steps of:
grinding a plurality of polyethylene terephthalate containers into a first material ([0028] Fig 3, recycling virgin PET material to make new container);
forming a top portion (25) of a preform (18) by injecting the first material into a mold (22) such that the top portion (25) includes only one layer consisting of the first material ([0043], first phase, injecting material into mold to form single layer top portion);
forming a bottom portion (35) of the preform (18) that is connected to the top portion (25) by injecting the first material to form inner (44) and outer (40) layers of the bottom portion (35) and injecting a second material (([0044] second layer 42 consists of PET or virgin PET and one or more additives)) into the mold to form an intermediate layer (42) of the bottom portion (35) that is positioned between the inner layer (44) and the outer layer (40) ([0043], second phase, injecting material into mold to form multilayer bottom portion of preform with inner (44), outer (40), and intermediate (42) layers);
blow molding the preform (18) into an intermediate article (16) ([0041] blow molding); and
processing the intermediate article (16) to produce a finished container (10) ([0064] trimming intermediate article 16 to produce finished container 10),
wherein at least one of the first material and the second material comprises recycled polyethylene terephthalate ([0028] Fig 3, recycling virgin PET material from intermediate article to make new container),
wherein the first material comprises a first additive ([0054] layer 48 comprises additive different from additive in layer 52),
wherein the intermediate layer (42) comprises at least about 20% of a wall thickness of the preform (18) ([0046]), and
wherein the second additive comprises at least one of the group consisting of passive oxygen scavengers and active oxygen scavengers ([0005] additives such as active oxygen scavengers, passive oxygen scavengers, colorants, calcium carbonate fillers, foaming agents, and catalysts), the second additive being present in an amount between about 0.1 wt. % and about 5.0 wt. % of the preform ([0031] which overlaps with the claimed range of between about 0.01 wt% and about 0.1 wt% of the preform. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists (MPEP 2144.05 (I)).
Further, it would have further been obvious to use the low end of the range of oxygen scavenger wt% disclosed by Koerner or even lower, in order to reduce the amount of yellowing caused by too much oxidation of the bottle, which is in part caused by too high a proportion of oxygen scavenger in the preform/product, as is well-known and disclosed by Koerner ([0022])).
Koerner does not disclose wherein the second material comprises a second additive, and Koerner is silent on the intermediate layer comprising between less than 15% of a wall thickness of the preform.
As the material cost of the intermediate layer is/are variable(s) that can be modified, among others, by adjusting the thickness of the intermediate layer, with the material cost of the intermediate layer increasing as the thickness of the intermediate layer is increased (Koerner [0022] additives are expensive and it is desirable not to add extra cost into certain sections of the bottle), the thickness of the intermediate layer would have been considered a result effective variable by one having ordinary skill in the art before the effective filing date of the present invention. As such, without showing unexpected results, the claimed thickness of the intermediate layer cannot be considered critical. Accordingly, one of ordinary skill in the art, before the effective filing date of the present invention, would have optimized, by routine experimentation, the thickness of the intermediate layer in the invention of Koerner to obtain the desired balance between material cost of the intermediate layer and the effectiveness of the one or more additives therein (In re Boesch, 617 F.2d. 272, 205 USPQ 215 (CCPA 1980)), since it has been held that where the general conditions of the claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. (In re Aller, 105 USPQ 223).
Modified Koerner discloses all of the claim limitations as set forth above, but the reference does not explicitly disclose wherein the second material comprises 75-99% recycled polyethylene terephthalate, 1-25% the virgin polyethylene terephthalate and the second additive.
In the analogous art of injection blow molding of containers, Siegl discloses wherein the material comprises greater than 50% recycled polyethylene terephthalate, as well as virgin polyethylene terephthalate and the additive (Siegl [0068] >50% PET recyclate and containing additive (4-40 wt%) and virgin PET (balance wt% if recyclate + additive is not 100% - this allows for 75 wt% PET recyclate, 4 wt% additive, and 21 wt% virgin PET, for example, meeting the claim).
As the sustainability of the produced container is/are variable(s) that can be modified, among others, by adjusting the amount of recycled PET, with the sustainability of the produced container increasing as the amount of recycled PET is increased, the amount of recycled PET would have been considered a result effective variable by one having ordinary skill in the art before the effective filing date of the present invention. As such, without showing unexpected results, the claimed relative percentages of virgin and recycled PET in the third material cannot be considered critical. Accordingly, one of ordinary skill in the art, before the effective filing date of the present invention, would have optimized, by routine experimentation, the amount of recycled PET in the third material in the invention of Koerner to obtain the desired sustainability of the produced container (In re Boesch, 617 F.2d. 272, 205 USPQ 215 (CCPA 1980)), since it has been held that where the general conditions of the claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. (In re Aller, 105 USPQ 223).
It would have further been obvious to one of ordinary skill in the art, before the effective filing date of the present invention, to further modify Koerner to use the recycled PET/additive/virgin PET composition disclosed by Siegl in order to combat the yellowing effect that results from using only recycled PET alone, among other benefits, as suggested by Siegl ([0067]), and because it has been held to be obvious to one of ordinary skill to choose a material based on its suitability for its intended purpose (see MPEP 2144.07).
Modified Koerner is silent on wherein the finished container has 1.5 b* units greater than b* units of a control that is used by the Association of Plastic Recyclers (APR) testing protocol to determine the suitability of post-consumer containers for reuse in polyethylene terephthalate containers when the finished container and the control are measured by the APR testing protocol.
In the analogous art of PET container recycling, PET-CG-01 discloses that 1.5b* higher than the control is the APR preferred value limit (page 10, Evaluation of molded plaques table) that must not be exceeded in order to meet the standard to receive APR recognition (page 1, first paragraph) and if the standard is not met, then the recyclability category is considered by the APR to be detrimental to recycling (page 1, second paragraph).
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the present invention, to further modify the invention of Koerner to ensure it meets the APR standards including 1.5b* higher than the control in order to receive APR recognition and to ensure the product is not detrimental to recycling, as disclosed by PET-CG-01.
Claims 15-18 are rejected under 35 U.S.C. 103 as being unpatentable over Published Application US20170259486A1, hereafter Koerner, in view of Foreign Publication WO2018224652A1 (used previously attached machine translation), hereafter Siegl, and further in view of Published Application US20110262668A1, hereafter Akkapeddi, in view of Critical Guidance Protocol for Clear PET Resin and Molded Articles, retrieved from https://plasticsrecycling.org/apr-design-hub/testing-protocols-and-labs/apr-testing-protocols/?testing-category=critical-guidance&resin-type=pet#document-feed. Document number PET-CG-01, dated 11/16/2018, hereafter PET-CG-01, as stated above for claim 1, and further in view of U.S. Patent No. 7,935,399, hereafter Ekart.
Regarding claims 15-18, modified Koerner discloses wherein the first, second, and third materials further comprise recycled polyethylene terephthalate ([0028] recycling virgin PET material to make new container, [0044] top portion consists of one material such as PET or virgin PET, [0045] first layer 40 and third layer 44 comprise PET or virgin PET, [0045] second layer 42 may comprise PET or virgin PET and additive).
Koerner does not disclose the third material comprising 1-10% of the recycled polyethylene terephthalate, the first material and the second material each comprising 1-90% of the recycled polyethylene terephthalate.
In the analogous art of polyester injection molding, Ekart teaches a material comprising 1-10% of the recycled polyethylene terephthalate (col 14 lines 42-45, may be 95% or more virgin polyester material, including 100%). Ekart further notes that the composition has the ideal crystallinity for processing, since it has sufficient crystallinity for drying, but not the higher crystallinity that is associated with solid-stating polymerization processes prevalent in the polyester industry (col 2 lines 23-28).
As the sustainability of the produced container is/are variable(s) that can be modified, among others, by adjusting the amount of recycled PET, with the sustainability of the produced container increasing as the amount of recycled PET is increased, the amount of recycled PET in the first, second, and third materials would have been considered a result effective variable by one having ordinary skill in the art before the effective filing date of the present invention. As such, without showing unexpected results, the claimed relative percentages of virgin and recycled PET in the first, second, and third materials cannot be considered critical. Accordingly, one of ordinary skill in the art, before the effective filing date of the present invention, would have optimized, by routine experimentation, the amount of recycled PET in the first, second, and third materials in the invention of Koerner to obtain the desired sustainability of the produced container (In re Boesch, 617 F.2d. 272, 205 USPQ 215 (CCPA 1980)), since it has been held that where the general conditions of the claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. (In re Aller, 105 USPQ 223).
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the present invention, to further modify Koerner with the higher amount of virgin PET in the second layer in order to gain the processing advantages of lower crystallinity as noted by Ekart and to reduce the amount of yellowing and clouding in the produced PET based product, as suggested by Siegl, and because it has been held to be obvious to one of ordinary skill to choose a material based on its suitability for its intended purpose (see MPEP 2144.07).
Claim 29 is rejected under 35 U.S.C. 103 as being unpatentable over Published Application US20170259486A1, hereafter Koerner, in view of Foreign Publication WO2018224652A1 (used previously attached machine translation), hereafter Siegl, and further in view of Published Application US20110262668A1, hereafter Akkapeddi, in view of Critical Guidance Protocol for Clear PET Resin and Molded Articles, retrieved from https://plasticsrecycling.org/apr-design-hub/testing-protocols-and-labs/apr-testing-protocols/?testing-category=critical-guidance&resin-type=pet#document-feed. Document number PET-CG-01, dated 11/16/2018, hereafter PET-CG-01, as stated above for claim 1, and further in view of Published Application US20160130433A1, hereafter Lynch.
Regarding claim 29, Koerner discloses wherein the oxygen scavenger comprises a polymer ([0030] oxygen scavenger includes one or more polymers).
Modified Koerner is silent on wherein the oxygen scavenger comprises a polytetramethylene ether glycol-PET copolymer.
In the analogous art of oxygen scavenger composition-containing PET containers, Lynch discloses wherein the oxygen scavenger comprises a polytetramethylene ether glycol-PET copolymer ([0012] oxidizable polyether-based additive is PTMEG-b-PET copolymer).
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the present invention, to further modify the invention of Koerner to select PTMEG-b-PET copolymer as the oxygen scavenger as disclosed by Lynch as a selection of a known material based on its suitability for the intended use (MPEP 2144.07).
Response to Arguments
Applicant’s arguments filed 03/16/2026 have been fully considered but they are not persuasive.
In response to applicant’s arguments relating to the 37 CFR 1.132 declaration of co-inventor Douglas Dygert, the examiner notes that no such declaration has been received, and thus, the declaration cannot be considered, and arguments based on the declaration are thereby moot.
In response to applicant’s arguments regarding claims 1, 19, and 28 on page 11 of applicant’s remarks that Koerner, Siegl, Akkapeddi, Ekart, and Lynch do not contemplate the use of recycled PET for manufacturing clear PET containers, the examiner disagrees, and notes that at least Koerner ([0028] regrinding material from first phase; [0029] reusing bottle dome materials by grinding, blending, and adding to melt stream; [0024] PET or virgin PET), Siegl ([0068]), and Akkapeddi ([0072]) each involve the use of recycled PET in the manufacture of clear containers.
In response to applicant’s arguments regarding claims 1, 19, and 28 on page 12 of applicant’s remarks that one skilled in the art would have no reasonable expectation of success in achieving the precise b* value recited in the claims, the examiner disagrees. Since the b* value of 1.5 or higher than control claimed in the present application and disclosed in PET-CG-1 is required by the APR to ensure the product is not detrimental to recycling (page 1, second paragraph), this constitutes an implicit expectation of success for one skilled in the art, since such a standard would otherwise be objectively useless if one skilled in the art did not reasonably expect the standard to be achievable.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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.
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/T.G.H./Examiner, Art Unit 1754
/SUSAN D LEONG/Supervisory Patent Examiner, Art Unit 1754
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