DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1, 4-7, 27, and 29 are rejected under 35 U.S.C. 103 as being unpatentable over Kamitori et al. (JP 2012076292 A, herein English machine translation used for all citations) (previously cited) in view of Gilbert (US 20180354241 A1) as evidenced by Overview of Materials for Thermoplastic Polyurethane (Overview of Materials for Thermoplastic Polyurethane (TPUR), 2023, matweb) (previously cited). Claim 4 is further evidenced by Overview of materials for Linear Low Density Polyethylene (LLDPE) (Overview of Materials for Linear Low Density Polyethylene (LLDPE), 2023, matweb) (previously cited).
Regarding claim 1, Kamitori teaches a laminate comprising at least a first sealant layer, a vapor deposition film (3), and a second sealant layer (Base film, 1), wherein the first sealant layer includes a coextruded film of a polyethylene resin layer (sealant film, 5) and a surface resin layer (2b) wherein the vapor deposition film is located on the surface resin layer of the first sealant layer (Kamitori, Par. 0001, 0012, 0019-0021, 0025, 0039-0042, 0091-0094, 0101-0104, and 0121). Kamitori does not state that the first sealant layer is stretched and teaches that optionally the second sealant layer is stretched and thus is also optionally unstretched, satisfying the limitation of the first and second sealant layers being unstretched films (Kamitori, Par. 0022). Kamitori further teaches the first sealant layer comprises an adhesive resin layer disposed between the surface resin layer and the polyethylene resin layer (5) (Kamitori, Par. 0099). Kamitori does not teach that any additional adhesive layer or adhesive agent is required and thus teaches that the polyethylene resin layer and the surface resin layer are coextruded via no additional adhesive resin or adhesive agent. Kamitori teaches that the second sealant layer comprises a polyethylene resin (Kamitori, Par. 0021). Kamitori’s layer (1) satisfies the claimed sealant layer as it is made of the same material, polyethylene resin, as the sealant layer (5) (Kamitori, Par. 0100-0102). Kamitori teaches that the surface resin layer of the first sealant layer comprises a polyurethane resin material (Kamitori, Par. 0025), which has a melting point of 71.0 to 221°C as evidenced by Overview of Materials for Thermoplastic Polyurethane (Overview of Materials for Thermoplastic Polyurethane, Pages 1-3), which overlaps the claimed range of 150°C or more and 265°C or less and therefore establishes a prima facie case of obviousness over the claimed range, see MPEP 2144.05, I. Kamitori teaches a polyethylene second sealant layer (Base film) with a thickness of up to 400 µm (Kamitori, Par. 0021), a polyethylene heat sealing layer with a thickness up to 50 µm (Kamitori, Par. 0100), and a polyethylene sealant film with a thickness up to 50 µm (Kamitori, Par. 0106), for a total polyethylene layer thickness of up to 500 µm. Kamitori teaches 2 non-polyethylene weather-resistant coating layers with a thickness as low as 0.1 µm each (Kamitori, Par. 0039), a non-polyethylene vapor-deposited layer with a thickness as low as 5 nm (Kamitori, Par. 0043), for a total thickness of non-polyethylene layers as low as ~0.2 µm. With polyethylene layers having a combined thickness of 500 µm and non-polyethylene layers having a thickness as low as 0.2 µm, this results embodiments wherein the polyethylene layers make up 99% of the thickness of the laminate and would thus render obvious a polyethylene content of 90% or more by mass, see MPEP 2144.05, I.
Alternatively, regarding the limitation of the polyethylene resin layer and the surface resin layer being a coextruded film, this limitation is a product-by-process limitation. Even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process. In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985) (See MPEP 2113). The layered structure of the prior art discloses a product which reasonably appears to be either identical or substantially identical to the claimed product-by-process layered structure subjected to the process steps of coextrusion, and therefore absent any objective evidence showing to the contrary, the addition of the process limitations of claim 1 does not provide a patentable distinction over the prior art.
Kamitori is silent regarding the polyethylene resin layer including at least one layer containing a compatibilizer with the at least one layer having a compatibilizer content of 5 to 30 wt.%.
Gilbert teaches a multilayer barrier film comprising a sealant layer and another polyethylene layer wherein the polyethylene layer comprises a compatibilizer in a range of 5 to 10 wt.% (Gilbert, Abstract, Par. 0005-0010, 0025, and 0027), which lies within the claimed range of 5 to 30 wt.% and therefore satisfies the claimed range, see MPEP 2131.03.
Kamitori and Gilbert are analogous art as they both teach multilayer barrier films comprising a sealant layer and a polyethylene layer. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have included the compatibilizer of Gilbert in the polyethylene layer of the first sealant layer of Kamitori. This would allow for improved compatibility (Gilbert, Par. 0027). Further, it is well known that compatibilizers are used to improve mechanical properties. Doing so would amount to nothing more than using a known material in a known environment to accomplish an entirely expected result.
Regarding claim 4, Kamitori teaches that the polyethylene resin is a linear low density polyethylene resin (0101-0102), which has a melting point of 112-114°C as evidenced by Overview of materials for Linear Low Density Polyethylene (Overview of materials for Linear Low Density Polyethylene, Page 1). Kamitori teaches that the resin with a melting point of 150°C or more and 265°C or less is polyurethane resin material (Kamitori, Par. 0025), which has a melting point of 71.0 to 221°C as evidenced by Overview of Materials for Thermoplastic Polyurethane (Overview of Materials for Thermoplastic Polyurethane, Pages 1-3). This results in a melting point difference in the range of 0-107°C, which overlaps the claimed range of 20°C to 80°C, and therefore establishes a prima facie case of obviousness over the claimed range, see MPEP 2144.05, I.
Regarding claims 5, Kamitori teaches that the resin material of the surface resin layer comprises a polymer with a polar group (polyurethane) (Kamitori, Par. 0025).
Regarding claim 6, Kamitori teaches the resin material of the surface resin layer (2b) is polyester (Kamitori, Par. 0025).
Regarding claim 7, Kamitori teaches the polyethylene resin layer has a multilayer structure (Kamitori, Par. 0100-0104).
Regarding claims 27 and 29, Kamitori teaches that the laminate is used for a packaging container (Kamitori, Par. 0001-0002).
Claim 30 is rejected under 35 U.S.C. 103 as being unpatentable over Kamitori et al. in view of Gilbert as evidenced by Overview of Materials for Thermoplastic Polyurethane as stated above for claims 1 and 29, further in view of Yamazaki et al. (JP 2003312753 A, herein English machine translation used for all citations) (previously cited).
Regarding claim 30, Kamitori teaches all of the elements of the claimed invention as stated above for claims 1 and 29. Kamitori is silent regarding the packaging container being a laminated tube.
Yamazaki teaches a laminate that is used for a packaging container wherein the container is a tube (Yamazaki, Par. 0001-0004, and 0022). Yamazaki teaches the laminate comprises a vapor-deposited layer and polyethylene sealant layers (Yamazaki, Par. 0005-0007, 0009, 0017-0020, and Fig. 1B).
Kamitori and Yamazaki are analogous art as they both teach laminated used for packaging containers comprising polyethylene sealant layers and a vapor-deposited layer. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have formed the laminate of Kamitori to form a laminated tube container. This would allow a gas barrier container for holding of different materials such as liquids, (Yamazaki, Par. 0001-0004 and 0022; Kamitori, Par. 0001).
Claims 34 are rejected under 35 U.S.C. 103 as being unpatentable over Kamitori et al. in view of Gilbert as evidenced by Overview of Materials for Thermoplastic Polyurethane as stated above for claim 1, further in view of Matsui et al. (US 20160176166 A1) (previously cited).
Regarding claims 34, Kamitori teaches all of the elements of the claimed invention as stated above for claim 1. Kamitori further teaches a barrier coating layer (weather-resistant coating, 2a) on a side of the vapor deposition layer opposite a side in contact with the surface resin layer (Kamitori, Par. 0012, 0020, and Fig. 3).
Kamitori is silent regarding the barrier coating layer being a gas barrier coating film which is a polycondensation product of a mixture of metal alkoxide and a water-soluble polymer by a sol-gel method in the presence of a sol-gel method catalyst.
Matsui teaches a barrier laminate comprising a vapor deposition film and a barrier coating having weatherability (weather resistance) disposed on one side, wherein the barrier coating is a gas barrier coating film comprising a polycondensation product of a mixture of a metal alkoxide and a water soluble polymer by a sol-gel method (Matsui, Abstract, Par. 0006, 0029-0031, 0048-0054, and Fig. 2). Regarding the limitation of the sol-gel method catalyst, this is considered a product-by-process limitation. Even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process. In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985) (See MPEP 2113). The barrier layer structure of the prior art discloses a product which reasonably appears to be either identical or substantially identical to the claimed product-by-process barrier layer structure subjected to the process steps of using a sol-gel catalyst, and therefore absent any objective evidence showing to the contrary, the addition of the process limitation does not provide a patentable distinction over the prior art.
Kamitori and Matsui are analogous art as they both teach barrier laminates comprising a vapor deposition film and a layer having weatherability disposed thereon. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have included the polycondensation product of Matsui in the barrier coating layer of Kamitori. This would allow for improved gas barrier properties (Matsui, Par. 0048).
Allowable Subject Matter
Claims 2, 9, 12-17, 19-21, 24, 26, and 35 are allowed.
The following is a statement of reasons for the indication of allowable subject matter:
The closest prior art of record does not teach or render obvious each and every limitation of the instant independent claims 9, 12 and 24.
The closest prior art of record is Kamitori as stated above, or modified Yamazaki as described in the previous office action.
The differences between the closest prior art of record and the instant claim 2 are stated below.
Kamitori does not disclose that the substrate is subject to stretching.
Modified Yamazaki does not teach that the laminate has a total polyethylene resin content of 90% or more by mass.
The differences between the closest prior art of record and the instant claim 12 are stated below.
Kamitori does not disclose that the substrate is a multilayer structure wherein each layer of the multilayer structure comprises polyolefin resin, and wherein the substrate is subject to stretching.
Modified Yamazaki does not teach that the laminate has a total polyethylene resin content of 90% or more by mass.
The differences between the closest prior art of record and the instant claim 24 are stated below.
Kamitori does not disclose that the laminate comprises a gas barrier layer that comprises a five-layer structure composed of a first polyolefin resin layer, an adhesive resin layer, a layer containing a gas barrier resin, an adhesive resin layer, and a second polyolefin layer.
Modified Yamazaki does not disclose that the laminate comprises a gas barrier layer that comprises a five-layer structure composed of a first polyolefin resin layer, an adhesive resin layer, a layer containing a gas barrier resin, an adhesive resin layer, and a second polyolefin layer.
The closest prior art of record does not teach or render obvious each and every limitation of the instant claim 2, 12, or 24. Thus, the subject matter of claims 2, 12, 24, and all claims dependent thereof are found to include allowable subject matter.
Response to Arguments
Applicant’s remarks and amendments filed 04 September 2026 have been fully considered.
Applicant argues that the prior art of record does not teach the claimed compatibilizer and range. This is found moot.
The grounds of rejection have been updated in view of the present claim amendments. In the grounds of rejection above, newly cited Gilbert is relied upon to teach the claimed compatibilizer.
Applicant argues that the prior art of record does not teach the instant claim 2. This is found persuasive.
The instant claim 2 has been indicated as containing allowable subject matter above.
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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/THOMAS J KESSLER/Examiner, Art Unit 1782
