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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 30 March 2026 has been entered.
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 1-2, 4-7, 9, 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) 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.
Regarding claim 2, Kamitori teaches a laminate comprising at least a first sealant layer (base film 1), a vapor deposition film (3), a substrate, and a second sealant layer (sealant film, 5), wherein the substrate 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 second sealant layer is stretched and teaches that optionally the first 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 teaches that the sealant film, (5) may comprise multiple layers (Kamitori, Par. 0102-0104), and therefore the outermost layer (5) can be considered the second sealant layer and another layer (5) can be considered the polyethylene resin layer of the substrate. Kamitori further teaches the substrate 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 first sealant layer and the second sealant layer comprises a polyethylene resin (Kamitori, Par. 0021 and 0100-0102). 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 substrate 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 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.
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 claim 9, Kamitori teaches the first sealant layer is a coextruded film (Kamitori, Par. 0022).
Regarding claims 27 and 29, Kamitori teaches that the laminate is used for a packaging container (Kamitori, Par. 0001-0002).
Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over Kamitori et al. as evidenced by Overview of Materials for Thermoplastic Polyurethane as stated above for claim 1, further in view of Berbert et al. (WO-2019083675-A1) (previously cited).
Regarding claim 8, Kamitori teaches all of the elements of the claimed invention as stated above for claim 1. Kamitori is silent regarding the polyethylene resin layer including at least one layer containing a compatibilizer.
Berbert teaches a barrier laminate comprising a sealant layer and a polyethylene layer wherein the polyethylene layer comprises a compatibilizer (Berbert, Abstract, Par. 007-012, 026, and 061).
Kamitori and Berbert are analogous art as they both teach barrier laminates 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 used the teachings of Berbert and include a compatibilizer in the polyethylene layer of Kamitori. This would allow for a material with improved recyclability (Berbert, Par. 005-007 and 026). 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.
Claim 30 is rejected under 35 U.S.C. 103 as being unpatentable over Kamitori et al. 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 34-35 are rejected under 35 U.S.C. 103 as being unpatentable over Kamitori et al. as evidenced by Overview of Materials for Thermoplastic Polyurethane as stated above for claims 1-2, further in view of Matsui et al. (US 20160176166 A1) (previously cited).
Regarding claims 34-35, Kamitori teaches all of the elements of the claimed invention as stated above for claims 1-2. 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 12-17, 19-21, 24 and 26 are allowed.
Claim 11 is objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
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 12 and 24, or the instant dependent claim 11.
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 11 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 11, 12, or 24. Thus, the subject matter of claims 11, 12, 24, and all claims dependent thereof are found to include allowable subject matter.
Response to Arguments
Applicant’s remarks and amendments filed 30 March 2026 have been fully considered.
On pages 8-9 of the remarks, Applicant first argues that Yamazaki does not teach the total polyethylene content of the laminate is at least 90% by mass. This is found persuasive.
The grounds of rejection in view of Yamazaki have been withdrawn due to the present claim amendments.
Secondly, on page 9 of the remarks, Applicant argues that Kamitori does not teach the total polyethylene content of the laminate is at least 90% by mass. This is not found persuasive for the following reason:
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. Therefore, Applicant’s argument is unpersuasive.
Thirdly, on pages 9-10 of the remarks, Applicant argues that Kamitori does not teach that the first and second sealant layers are unstretched. This is not found persuasive for the following reason:
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). While Kamitori teaches an example where the second sealant layer is stretched, this is a specific example. Disclosed examples and preferred embodiments do not constitute a teaching away from a broader disclosure or nonpreferred embodiments. In re Susi, 440 F.2d 442, 169 USPQ 423 (CCPA 1971), see MPEP 2123. The specific example of Kamitori of a stretched sealant layer does not teach away from the broad disclosure which teaches that the second layer may be unstretched as stated above. Therefore, Applicant’s argument is unpersuasive.
Conclusion
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/THOMAS J KESSLER/Examiner, Art Unit 1782
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